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Nebraska Supreme Court Advance S

296 Nebraska Report

STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. Dustin A. Garrison, respo

___ N.W.2d ___

Filed April 27, 2017. No. S-16-803.

Original action. Judgment of suspension.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke,

Per Curiam

INTRODUCTION

This case is before the court on the conditional admission 

filed by Dustin A. Garrison, respondent, on December 27, 

2016. The court accepts respondent’s conditional admission 

and orders that respondent be suspended from the practice of 

law for a period of 90 days followed by 1 year’s monitored 

probation upon reinstatement.

FACTS

Respondent was admitted to the practice of law in the State 

of Nebraska on April 15, 2008. At all relevant times, he was 

engaged in the private practice of law in Beatrice, Nebraska.

On August 24, 2016, the Counsel for Discipline of the 

Nebraska Supreme Court filed formal charges against respondent. The formal charges consist of one count against respondent. With respect to the one count, the formal charges state 

that in August 2008, a client was injured by a vehicle that was 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/27/2017 09:12 AM CDT
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

being driven by Devin Witt and that was registered in Texas 

to “SERCO, Inc.” A police report was issued, which listed 

addresses for both Witt and SERCO in Borger, Texas.

The client initially retained a different attorney to represent 

him in a claim for damages against Witt and SERCO in Texas. 

In July 2009, that attorney was suspended from the practice 

of law, and his partner, respondent, began representing the 

client. No engagement contract was signed between the client 

and respondent.

On February 18, 2010, respondent sent a letter to “Serco, 

Inc.,” in Reston, Virginia, to make a claim for damages suffered by the client in the August 2008 accident. On February 

19, Serco in Virginia, sent a letter to respondent stating that it 

had never employed Witt and that it did not own any vehicles 

that were in Nebraska or that were involved in an accident in 

August 2008.

On May 21, 2012, respondent filed on a complaint on 

behalf of the client against “Serco, Inc.,” a New Jersey corporation, and Witt, individually and as an employee of Serco 

in New Jersey. It was alleged in the complaint that Serco 

in New Jersey had a registered agent in Lincoln, Nebraska. 

Serco in New Jersey was served via U.S. mail through its 

registered agent in Lincoln, and Witt was served via U.S. mail 

at his address in Borger. A summons was served via certified 

mail to Serco in New Jersey, in care of its registered agent 

in Lincoln.

On October 7, 2013, the trial court entered an order of summary judgment against Serco in New Jersey in the amount of 

$210,216.36. In March 2014, respondent initiated garnishment 

proceedings on Serco’s account at a Pennsylvania bank.

In April 2014, Serco in New Jersey filed a motion to vacate 

the default judgment and a motion for temporary injunction, 

in which it stated that it was unrelated to the entity doing 

business as “SERCO in Borger, Texas,” which had been identified in the August 2008 police report. Serco in New Jersey 

further stated in its motions that it had never employed Witt. 
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296 Nebraska Report

STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

On April 24, the trial court entered an order in which it denied 

the motions.

Between December 2010 and April 2015, the client 

and respondent communicated via Facebook messages. 

Throughout the pendency of the case, the client asked numerous questions regarding the progress of the case and asked 

for explanations regarding the lawsuit. According to the formal charges,

[r]espondent responded with statements such as “relax”, 

“I will take care of it”, “I will explain later”, “we are 

fine”, “we won”, “Be happy. We are in the driver’s seat”, 

“I’m busy right now”, “u realize we sued the wrong 

company right? We got the money from a company that 

had it. The correct company would never have had this 

type of money to pay our judgment”, “this is complicated”, “we’ve been busting our asses getting ready for 

this hearing”, “I can’t explain the whole process”, and 

claimed they will have to write a book to explain it all 

to him.

The formal charges state that respondent failed to adequately 

answer the client’s questions and adequately explain what was 

happening regarding the status of the client’s lawsuit.

In April 2014, respondent discussed his fee amount with the 

client via Facebook messages. Respondent informed the client that his usual fee was 33 to 40 percent, but that he would 

accept 33 percent from the client’s award.

Serco in New Jersey appealed the trial court’s decision 

denying its motion to vacate the default judgment. On June 

12, 2015, this court filed an opinion in which we reversed the 

judgment of the trial court and remanded the cause with directions to the district court to vacate the default judgment entered 

against Serco in New Jersey. See Carrel v. Serco Inc., 291 Neb. 

61, 864 N.W.2d 236 (2015).

In July 2015, Serco in New Jersey filed a motion for summary judgment and served respondent at his office address. 

On July 16, new counsel entered an appearance on behalf of 
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296 Nebraska Report

STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

the client, and on July 28, respondent filed a motion to withdraw as counsel.

On July 31, 2015, a first amended complaint was filed 

against “SERCO, INC.,” in Texas and Witt, individually and 

as an employee of SERCO in Texas. The client’s new counsel perfected the service of SERCO in Texas and Witt at the 

addresses provided in the police report of the August 2008 

incident. On December 2, the action against SERCO in Texas 

was dismissed with prejudice and the action against Witt 

was dismissed.

The formal charges allege that by his actions, respondent 

violated his oath of office as an attorney, Neb. Rev. Stat. 

§ 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond. 

§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4(a) and 

(b) (communications), 3-501.5(b) and (c) (fees), and 3-508.4(a) 

(misconduct).

On December 27, 2016, respondent filed a conditional 

admission pursuant to Neb. Ct. R. § 3-313 of the disciplinary 

rules, in which he conditionally admitted that he violated his 

oath of office as an attorney and professional conduct rules 

§§ 3-501.1, 3-501.3, 3-501.4(a) and (b), 3-501.5(b) and (c), 

and 3-508.4(a). Respondent also acknowledged in his conditional admission that he had previously received two private 

reprimands. In the conditional admission, respondent knowingly does not challenge or contest the truth of the matters 

conditionally admitted and waives all proceedings against 

him in connection with the formal charges in exchange for a 

90-day suspension followed by 1 year’s monitored probation. 

Upon reinstatement, if accepted, the monitoring shall be by 

an attorney licensed to practice law in the State of Nebraska 

and who shall be approved by the Counsel for Discipline. 

Respondent shall submit a monitoring plan with his application for reinstatement which shall include, but not be limited 

to the following: During the first 6 months of probation, 

respondent will meet with and provide the monitor a weekly 

list of cases for which respondent is currently responsible, 
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

which list shall include the following: The date the attorneyclient relationship began; the general type of case; the date 

of last contact with the client; the last type and date of work 

completed on the file (pleading, correspondence, document 

preparation, discovery, court hearing); the next type of work 

and date that work should be completed on the case; any 

applicable statutes of limitations and their dates; and the 

financial terms of the relationship (hourly, contingency, et 

cetera). After the first 6 months through the end of probation, 

respondent shall meet with the monitor on a monthly basis 

and provide the monitor with a list containing the same information set forth above. Respondent shall work with the monitor to develop and implement appropriate office procedures 

to ensure that the clients’ interests are protected. Respondent 

shall reconcile his trust account within 10 working days of 

receipt of the monthly bank statement and provide the monitor a copy within 5 working days. Respondent shall submit 

a quarterly compliance record to the Counsel for Discipline 

demonstrating that respondent is adhering to the foregoing 

terms of probation. The quarterly report shall include a certification by the monitor that the monitor has reviewed the 

report and that respondent continues to abide by the terms of 

probation. If at any time the monitor believes respondent has 

violated the professional conduct rules or has failed to comply 

with the terms of probation, the monitor shall report the same 

to the Counsel for Discipline. Finally, respondent shall pay all 

the costs in this case, including the fees and expenses of the 

monitor, if any.

The proposed conditional admission included a declaration 

by the Counsel for Discipline, stating that respondent’s proposed discipline is appropriate.

ANALYSIS

Section 3-313, which is a component of our rules governing 

procedures regarding attorney discipline, provides in pertinent part:
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296 Nebraska Report

STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

(B) At any time after the Clerk has entered a Formal 

Charge against a Respondent on the docket of the Court, 

the Respondent may file with the Clerk a conditional 

admission of the Formal Charge in exchange for a stated 

form of consent judgment of discipline as to all or 

part of the Formal Charge pending against him or her 

as determined to be appropriate by the Counsel for 

Discipline or any member appointed to prosecute on 

behalf of the Counsel for Discipline; such conditional 

admission is subject to approval by the Court. The conditional admission shall include a written statement that 

the Respondent knowingly admits or knowingly does 

not challenge or contest the truth of the matter or matters conditionally admitted and waives all proceedings 

against him or her in connection therewith. If a tendered 

conditional admission is not finally approved as above 

provided, it may not be used as evidence against the 

Respondent in any way.

Pursuant to § 3-313, and given the conditional admission, 

we find that respondent knowingly does not challenge or 

contest the matters conditionally admitted. We further determine that by his conduct, respondent violated conduct rules 

§§ 3-501.1, 3-501.3, 3-501.4(a) and (b), 3-501.5(b) and (c), 

and 3-508.4(a), and his oath of office as an attorney licensed to 

practice law in the State of Nebraska. Respondent has waived 

all additional proceedings against him in connection herewith. 

Upon due consideration, the court approves the conditional 

admission and enters the orders as indicated below.

CONCLUSION

Respondent is suspended from the practice of law for a 

period of 90 days, effective immediately, after which period 

respondent may apply for reinstatement to the bar. Should 

respondent apply for reinstatement, his reinstatement shall be 

conditioned upon respondent’s being on probation for a period 

of 1 year, including monitoring, following reinstatement, 
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON

Cite as 296 Neb. 550

subject to the terms agreed to by respondent in the conditional 

admission and outlined above. Acceptance of an application 

for reinstatement is conditioned on the application’s being 

accompanied by a proposed monitored probation plan, the 

terms of which are consistent with this opinion. Respondent 

shall comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon 

failure to do so, respondent shall be subject to punishment for 

contempt of this court. Respondent 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) (rev. 

2014) and 3-323 of the disciplinary rules within 60 days after 

an order imposing costs and expenses, if any, is entered by 

the court.

Judgment of suspens