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identification was reliable and its admission was not a violation of due process.

(c) Conclusion Regarding 

Eyewitness Identifications

In considering the reliability factors set forth above, the 

eyewitness identifications of both Herbert and Myers were reliable. Moreover, the descriptions separately provided by Herbert 

and Myers were not inconsistent with each other, nor were they 

inconsistent with the other evidence produced at trial. As such, 

both identifications were admissible. Jones’ second assignment 

of error is without merit.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.

State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, v. 

Donna J. Tonderum, respondent.

___ N.W.2d ___

Filed November 22, 2013. No. S-13-083.

1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de 

novo on the record.

2. ____. Under Neb. Ct. R. § 3-304, the Nebraska Supreme Court may impose one 

or more of the following disciplines: (1) disbarment; (2) suspension; (3) probation in lieu of or subsequent to suspension, on such terms as the court may designate; or (4) censure and reprimand.

3. ____. To determine whether and to what extent discipline should be imposed in 

an attorney discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) 

the maintenance of the reputation of the bar as a whole, (4) the protection of the 

public, (5) the attitude of the offender generally, and (6) the offender’s present or 

future fitness to continue in the practice of law.

4. ____. Each attorney discipline case must be evaluated individually in light 

of its particular facts and circumstances, and the Nebraska Supreme Court 

considers the attorney’s acts underlying the events of the case and throughout 

the proceedings.
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5. ____. In determining the appropriate discipline of an attorney, the Nebraska 

Supreme Court considers the discipline imposed in cases presenting similar 

circumstances.

6. ____. The Nebraska Supreme Court considers an attorney’s failure to respond 

to inquiries and requests for information from the Counsel for Discipline as 

an important matter and as a threat to the credibility of attorney disciplinary proceedings.

Original action. Judgment of suspension.

Kent L. Frobish, Assistant Counsel for Discipline, for 

relator.

No appearance for respondent.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Per Curiam.

INTRODUCTION

The Counsel for Discipline of the Nebraska Supreme Court, 

relator, filed formal charges against Donna J. Tonderum for 

disclosing confidential information regarding criminal charges 

against a former client in order to ensure the client’s conviction. Tonderum failed to respond to the formal charges. Upon 

relator’s motion for judgment on the pleadings, we entered 

judgment limited to the facts but reserved ruling on the appropriate discipline. We now conclude that an indefinite suspension from the practice of law is the proper sanction.

BACKGROUND

Tonderum was admitted to the practice of law in Nebraska 

on September 19, 2003. She engaged in the private practice of 

law in Elkhorn, Nebraska.

On February 5, 2013, relator filed formal charges against 

Tonderum. Although Tonderum was served with the formal 

charges, she did not respond to them. On April 3, relator 

moved for a judgment on the pleadings. On May 8, we granted 

judgment on the pleadings as to the facts alleged in the formal 

charges, but we directed the parties to brief the issue of discipline. Only relator filed a brief.
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The record in this case is composed of the uncontested formal charges. On August 13, 2012, the State charged Tonderum’s 

client with first degree sexual assault in the county court 

for Platte County, Nebraska. On that same date, Tonderum 

appeared in court with her client and entered her appearance on 

his behalf. A preliminary hearing was set for September 10. At 

all relevant times, the chief deputy county attorney for Platte 

County prosecuted the case against Tonderum’s client.

On or before August 21, 2012, Tonderum’s client and his 

family hired another attorney to take over his representation. 

Tonderum was informed that her representation of the client 

was terminated. On August 21, the other attorney entered his 

appearance on behalf of the client and a copy of his entry of 

appearance was mailed to Tonderum.

On September 7, 2012, Tonderum called the prosecutor to 

discuss the pending case. Tonderum stated that she no longer 

represented her former client because he had rejected her 

advice and hired the other attorney. Tonderum stated that she 

“hated” the other attorney, that she knew her former client 

was guilty, and that she wanted to make sure the prosecutor 

sent Tonderum’s former client to prison. Tonderum gave the 

prosecutor the names of several witnesses related to the former 

client’s case, stated what their testimonies would be, provided 

contact information for certain witnesses, and stated what she 

expected the defense strategy to be.

On September 10, 2012, the prosecutor notified relator regarding her September 7 telephone conversation with 

Tonderum. The prosecutor also informed the defendant’s new 

attorney of the conversation with Tonderum and of the need for 

the prosecutor’s office to withdraw from prosecuting the case. 

Upon the prosecutor’s motion, the district court appointed a 

special prosecutor.

A grievance was filed against Tonderum based upon the 

information provided by the prosecutor. The grievance was 

mailed to Tonderum by relator on September 11, 2012. On 

September 17, Tonderum mailed her response. In her response, 

Tonderum asserted that the allegations were false. She admitted speaking to the prosecutor by telephone on September 7, 

but denied that she had made the statements attributed to her. 
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Tonderum admitted that she no longer represented the client 

on September 7 and that she discussed his case with the prosecutor, including identifying several witnesses and what their 

testimonies would be.

The formal charges were then filed. Relator alleged that 

Tonderum’s acts violated Neb. Rev. Stat. § 7-104 (Reissue 

2012), Tonderum’s oath of office as an attorney licensed to 

practice law in the State of Nebraska, and the Nebraska rules 

governing professional conduct. Specifically, relator alleged 

that Tonderum violated Neb. Ct. R. of Prof. Cond. §§ 3-501.6(a) 

(confidentiality of information); 3-508.1(a) (bar admission and 

disciplinary matters); and 3-508.4(a), (c), and (d) (misconduct). 

As we have already noted, Tonderum failed to respond to the 

formal charges, resulting in a judgment on the pleadings as to 

the facts.

ANALYSIS

[1] A proceeding to discipline an attorney is a trial de novo 

on the record.1 Because we granted judgment on the pleadings as to the facts, the only issue before us is the appropriate discipline.2

[2,3] Under Neb. Ct. R. § 3-304, we may impose one or 

more of the following disciplines: (1) disbarment; (2) suspension; (3) probation in lieu of or subsequent to suspension, on 

such terms as we may designate; or (4) censure and reprimand.3

To determine whether and to what extent discipline should be 

imposed in an attorney discipline proceeding, we consider the 

following factors: (1) the nature of the offense, (2) the need for 

deterring others, (3) the maintenance of the reputation of the 

bar as a whole, (4) the protection of the public, (5) the attitude 

of the offender generally, and (6) the offender’s present or 

future fitness to continue in the practice of law.4

1 State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792 

(2013).

2 See id.

3 State ex rel. Counsel for Dis. v. Palik, 284 Neb. 353, 820 N.W.2d 862 

(2012).

4 Id.
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[4] Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances, and 

this court considers the attorney’s acts underlying the events 

of the case and throughout the proceedings.5 Tonderum has 

been licensed to practice law since September 2003, and this 

is the first disciplinary proceeding initiated against her. In 

other words, she had an unblemished disciplinary record for 

the 9-year period from her admission until the instant violation. But her breach of client confidentiality is an extremely 

serious offense. Moreover, it caused the prosecutor’s office to 

withdraw from the case and necessitated the appointment of a 

special prosecutor. And when confronted with the initial grievance, Tonderum responded by essentially accusing the prosecutor of lying. Tonderum has since failed to respond to the formal 

charges and, thus, has not provided us with any evidence of 

other mitigating circumstances.

[5] In determining the appropriate discipline of an attorney, 

we consider the discipline imposed in cases presenting similar circumstances.6

 As relator correctly observes, there are no 

published Nebraska decisions in which an attorney has been 

sanctioned for violating § 3-501.6.

Although we also look to cases involving the predecessor 

to that rule, Canon 4, DR 4-101, of the Code of Professional 

Responsibility, they provide only limited guidance. In State ex 

rel. Counsel for Dis. v. Beach,

7

 an attorney disclosed confidential information about a client after disciplinary charges were 

filed against him. This court determined that disbarment was 

appropriate, but the attorney in that case had exhibited a pattern of abusive conduct and had two prior reprimands before 

the two cases at issue. In State ex rel. Counsel for Dis. v. Lopez 

Wilson,

8

 an attorney threatened to reveal client confidences 

5 State ex rel. Counsel for Dis. v. Cording, supra note 1.

6 See State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 

174 (2012).

7 State ex rel. Counsel for Dis. v. Beach, 272 Neb. 337, 722 N.W.2d 30 

(2006).

8 State ex rel. Counsel for Dis. v. Lopez Wilson, 262 Neb. 653, 634 N.W.2d 

467 (2001).
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upon learning of the client’s intimate relationship with the 

attorney’s ex-wife. We determined that the attorney should be 

suspended from the practice of law for 2 years. As we stated 

in that case:

Respondent’s conduct has a chilling effect on the public’s perception of attorneys and the [Nebraska State Bar 

Association] in general. The maintenance of the reputation of the [Nebraska State Bar Association] as a whole 

depends in part on the client’s ability to be able to fully 

confide in his or her attorney. If clients do not believe 

they can do this, then attorneys will no longer be able to 

fully and zealously represent their clients.9

Similarly, Tonderum’s conduct in using information obtained 

from a former client against that client reflects negatively on 

the public’s perception of attorneys and could deter clients 

from being completely honest with their attorneys.

Relator directs us to a somewhat similar case from another 

jurisdiction. In The Florida Bar v. Knowles,

10 an attorney who 

had been practicing law for approximately 4 years at the time 

of the misconduct informed an assistant state attorney that she 

believed her client would lie in court and sent confidential 

client paperwork to that attorney. The Florida Supreme Court 

stated: “A lawyer who is upset with her client is not permitted to turn on her client and begin disparaging and betraying 

her. Rather, the lawyer must maintain client confidences, even 

after withdrawing from representation.”11 The court determined that a 1-year suspension was appropriate. However, 

we believe that a 1-year suspension is not adequate under the 

circumstances of the instant case.

We have found no case law from other jurisdictions imposing disbarment without the attorney’s having profited from 

the disclosure of client confidences12 or without multiple 

9 Id. at 661, 634 N.W.2d at 474.

10 The Florida Bar v. Knowles, 99 So. 3d 918 (Fla. 2012).

11 Id. at 924.

12 See In re Smith, 991 N.E.2d 106 (Ind. 2013).
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other instances of misconduct.13 Although we have not often 

looked to the ABA Standards for Imposing Lawyer Sanctions14

for guidance15 and they are not in any sense controlling, 

we observe that the ABA standards suggest different consequences for an attorney’s failure to preserve the client’s confidences depending upon the circumstances of the disclosure 

and the resulting effect upon the client. Generally, the ABA 

standards suggest suspension for an intentional disclosure that 

injures a client but does not benefit the lawyer or another.16

On the other hand, the ABA standards recommend disbarment where the intentional disclosure injures a client and is 

done with the intent to benefit the lawyer or another.17 This 

distinction would suggest suspension of Tonderum rather than 

disbarment, as she apparently sought no benefit for herself 

or another.

[6] Tonderum’s failure to respond to the formal charges filed 

by relator is also troublesome. We consider an attorney’s failure to respond to inquiries and requests for information from 

relator as an important matter and as a threat to the credibility 

of attorney disciplinary proceedings.18 As noted, Tonderum’s 

failure to file an answer to the formal charges leaves us without any record of mitigating factors, other than her previous 

record of no violations, and no way to assess her fitness to 

practice law.

In State ex rel. Counsel for Dis. v. Sutton,

19 an attorney 

failed to respond to the formal charges, leaving this court 

13 See, e.g., People v. Bannister, 814 P.2d 801 (Colo. 1991); In re Ingersoll, 

186 Ill. 2d 163, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Matter of

Ghobashy, 185 A.D.2d 23, 592 N.Y.S.2d 322 (1993).

14 ABA Standards for Imposing Lawyer Sanctions (rev. 1992).

15 See, e.g., State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 

702 (2009).

16 ABA Standards, supra note 14, § 4.22.

17 Id., § 4.21.

18 See State ex rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16, 759 

N.W.2d 492 (2009).

19 State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694 N.W.2d 647 

(2005).
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with a lack of information regarding the nature and extent 

of the misconduct and the attorney’s present or future fitness to practice law. We declined to disbar the attorney and 

instead imposed an indefinite suspension. Similarly, under 

the facts of this case, we conclude that an indefinite suspension, with a minimum suspension of 3 years, is the appropriate discipline.

CONCLUSION

We find and hereby order that Tonderum should be indefinitely suspended from the practice of law in the State of 

Nebraska effective upon the filing of this opinion, with a 

minimum suspension of 3 years. Any application for reinstatement filed by Tonderum after the minimum suspension period 

shall include a showing under oath which demonstrates her 

fitness to practice law and fully addresses the circumstances 

of the instant violation.

Tonderum is directed to comply with Neb. Ct. R. § 3-316, 

and upon failure to do so, she shall be subject to punishment 

for contempt of this court. Tonderum is also directed to pay 

costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 

and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) and 

3-323(B) within 60 days after the order imposing costs and 

expenses, if any, is entered by the court.

Judgment of suspension.

In re Interest of Violet T., a child

under 18 years of age.

State of Nebraska, appellant, v. 

Abigael T., appellee.

___ N.W.2d ___

Filed November 22, 2013. No. S-13-084.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which 

does not involve a factual dispute is determined by an appellate court as a matter 

of law, which requires the appellate court to reach a conclusion independent from 

the lower court’s decision.

2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which 

an appellate court resolves independently of the trial court.