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305 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

State of Nebraska ex rel. Counsel for Discipline 

of the Nebraska Supreme Court, relator, 

v. Jackie L. Barfield, respondent.

___ N.W.2d ___

Filed February 21, 2020. No. S-19-204.

1. Disciplinary Proceedings. When no exceptions to the referee’s findings of fact are filed by either party in a disciplinary proceeding, the 

Nebraska Supreme Court may, at its discretion, adopt the findings of the 

referee as final and conclusive.

2. ____. Because attorney discipline cases are original proceedings before 

the Nebraska Supreme Court, the court reviews a referee’s recommendations de novo on the record, reaching a conclusion independent of the 

referee’s findings.

3. ____. Attorneys licensed to practice law in the State of Nebraska 

agree to operate under the supervision of the office of the Counsel for 

Discipline.

4. ____. A license to practice law confers no vested right, but is a conditional privilege, revocable for cause.

5. ____. Violation of any of the ethical standards relating to the practice 

of law or any conduct of an attorney in his or her professional capacity 

which tends to bring reproach on the courts or the legal profession constitutes grounds for suspension or disbarment.

6. ____. The goal of attorney discipline proceedings is not as much punishment as a determination of whether it is in the public interest to allow an 

attorney to keep practicing law.

7. ____. Providing for the protection of the public requires the imposition 

of an adequate sanction to maintain public confidence in the bar.

8. ____. 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 

Nebraska Supreme Court Online Library

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

02/28/2020 08:06 AM CST
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respondent generally, and (6) the respondent’s present or future fitness 

to continue in the practice of law.

9. ____. Each attorney discipline case must be evaluated in light of its 

particular facts and circumstances.

10. ____. For purposes of determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney’s actions both 

underlying the events of the case and throughout the proceeding, as well 

as any aggravating or mitigating factors.

11. ____. In attorney discipline cases, the propriety of a sanction must 

be considered with reference to the sanctions imposed in prior similar cases.

12. ____. Neither good faith nor ignorance of the rules prohibiting commingling client and personal funds provides a defense to a disciplinary 

charge that an attorney violated the rules against commingling.

13. ____. The Nebraska Supreme Court considers commingling of client 

funds with an attorney’s own funds to be a matter of gravest concern in 

reviewing claims of lawyer misconduct.

14. ____. Even when the client suffers no loss, an attorney’s commingling 

of client funds with personal funds is not a trivial or technical rule 

violation.

15. ____. Because it is such a dangerous and unfortunately common basis 

for disciplinary action, there is a continuing need to send a clear and 

strong message deterring attorneys from commingling client and personal funds and from using client trust accounts as personal checking accounts.

16. Disciplinary Proceedings: Evidence. In an attorney discipline case, the 

burden is on the respondent to provide evidence to be considered for 

mitigation of the formal charges.

17. Disciplinary Proceedings. Continuing commitment to the legal profession and the community is a mitigating factor in an attorney discipline case.

18. ____. Having no prior complaints is a mitigating factor in an attorney 

discipline case.

19. ____. An attorney’s poor accounting practices are neither an excuse nor 

a mitigating circumstance in reference to commingled or misappropriated funds.

20. ____. Because cumulative acts of attorney misconduct are distinguishable from isolated incidents, they justify more serious sanctions.

21. Disciplinary Proceedings: Presumptions. Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases only where they are extraordinary and, when aggravating 

circumstances are present, they substantially outweigh those aggravating circumstances.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

Original action. Judgment of disbarment.

Julie L. Agena, Assistant Counsel for Discipline, for relator.

James Walter Crampton for respondent.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

The respondent appeals from the report and recommendation 

of the referee in an attorney disciplinary action. The referee 

recommended disbarment for violations of Neb. Ct. R. of Prof. 

Cond. §§ 3-501.15 (safekeeping property) and 3-508.4 (rev. 

2016) (misconduct) relating to the attorney’s commingling of 

earned and unearned client payments and cash withdrawals 

and checks written from her attorney trust account to pay for 

business and personal expenses. The trust account also suffered several overdrafts. The respondent argues that suspension rather than disbarment is the appropriate discipline for 

her actions.

BACKGROUND

Jackie L. Barfield was admitted to the practice of law in 

the State of Nebraska in 1993, and at all times relevant was 

engaged in the practice of law in Omaha, Nebraska. Formal 

charges against her were filed by the office of the Counsel for 

Discipline of the Nebraska Supreme Court in February 2019.

The charges alleged that between October 2017 and April 

2018, Barfield had written multiple personal checks and had 

made multiple cash withdrawals out of her attorney trust 

account. She had also paid insufficient-fund fees several times. 

Barfield admitted to writing personal checks and taking cash 

withdrawals from her attorney trust account, as well as having 

insufficient funds in that account, since at least 2013. Barfield 

was charged with violating §§ 3-501.15 (safekeeping property) 

and 3-508.4 (misconduct). Barfield, in her answer, admitted to 

the allegations.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

In mitigation, Barfield pled that (1) any economic harm any 

person may have suffered from her acts was “of very brief 

duration,” (2) she has been providing services to economically 

disadvantaged members of the public at lower-than-normal fees 

throughout her career, (3) she is a minister and religious leader 

providing “comfort and moral guidance to her small group of 

followers generally beneficial to the social moral fabric of her 

community,” and (4) she has no prior serious disciplinary complaints except one related to an unpaid bill from a doctor, for 

which she was privately reprimanded approximately 20 years 

before. Pursuant to Barfield’s motion, judgment on the pleadings was granted as to the facts, under Neb. Ct. R. § 3-310(L) 

(rev. 2014).

Neither party filed written exceptions to the referee’s report 

that was issued after a hearing to determine the nature and 

extent of the discipline to be imposed, considering any aggravating and mitigating factors. The report set forth that Barfield 

had been without a business account for approximately 5 years 

and, since at least 2013, has been withdrawing cash and writing checks on her attorney trust account to pay for personal 

and business expenses. Barfield has paid insufficient fund 

charges since 2013 for at least 23 overdrafts on her attorney 

trust account.

The record reflects that previously, in May 2000, the 

Nebraska State Bar Association had privately reprimanded 

Barfield for failing to deposit into her trust account a check 

issued to honor a medical lien in relation to her client’s settlement and for failing to promptly disburse a portion of the settlement funds designated for medical providers. The Counsel 

for Discipline had found in the private reprimand that Barfield 

violated provisions of the Code of Professional Responsibility 

concerning general misconduct, neglect, and preservation of 

the identity of client funds.1

1 Canon 1, DR 1-102(A)(1); Canon 6, DR 6-101(A)(3); and Canon 9, DR 

9-102(A)(1)(2) and (B)(4), of the Code of Professional Responsibility.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

Barfield’s Testimony

Barfield testified at the disciplinary hearing. Barfield was 

not permitted to offer any other evidence concerning mitigation, due to her failure to comply with discovery deadlines.

Barfield explained that her business account had been closed 

approximately 5 years prior due to lack of funds. Rather than 

opening another business account, she used her trust account 

to pay business expenses. She did not open another business 

account until recently.

Barfield testified that for the past 5 years she had worked 

part time as a sole practitioner out of her daughter’s home. She 

explained: “Well, the business expenses are home-related. And 

I practice out of Bellevue, which is my daughter’s home, and 

so it’s been difficult, and that’s one of the reasons that I put 

things related to Barfield Law, I just put it in the trust account.” 

She testified that she has had no support staff since she stopped 

practicing out of a stand-alone building approximately 5 years 

before the hearing.

Barfield testified that her retainers were generally small and 

had been earned sometimes even before they were deposited 

into the trust account. No client had ever complained about 

how their funds were handled. When asked whether her commingling and withdrawals had harmed her clients, she said:

Well, in reading some of the case law and — in my mind 

I didn’t think it was, but in reading the case law, I understand since this case has started that even, you know, if 

you use it there’s a possibility and so, yes, under those 

circumstances I do agree.

As for the overdrafts, Barfield explained that at least one of 

the overdrafts was due to a client’s check bouncing—after she 

had withdrawn the deposit by making a check out to herself.

Barfield noted that since 2014, she has had several health 

concerns related to her knees and hips. She had been trying to 

wind up her practice in Nebraska in order to live permanently 

in Texas, where the weather was better for her health. But the 

winding up was taking longer than she thought, and she was 
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traveling back and forth between a daughter’s home in Texas 

and another daughter’s home in Nebraska. The traveling had 

put an emotional strain on her, and she suffered from anxiety 

and migraines. In fact, she had suffered from “anxiety and 

everything” since she started practicing. Barfield testified that 

she had taken antidepressants “over the years” and had been 

prescribed medication for her anxiety.

With regard to the private reprimand approximately 20 years 

before, Barfield explained that the settlement payment to her 

client had been stopped due to an ongoing criminal matter in 

which the FBI was involved. This stop payment, in conjunction 

with her private practice being otherwise wound down after she 

accepted a position at a university, “threw my whole account 

off” and made it difficult for the doctor in question to contact 

her. Barfield left her job at the university after approximately 

1 year of employment there and, in 2000, after taking another 

year to focus on her family and mental health, returned to private practice.

Barfield asked for any sanction short of disbarment. She 

stated that she now understood that she could not manage 

going back and forth between Texas and Nebraska anymore 

and would stay in Nebraska if allowed to continue to practice, stating:

[M]y intention is if I’m going to practice in Nebraska, I 

have to live in Nebraska. And the going back and forth 

is just too stressful. It’s causing me a lot of anxiety and 

it puts you in the position of having to do more than you 

can handle.

Barfield testified that she served lower-income clients with 

the intention of giving back to her community. She explained, 

“I believe I focus so much probably on trying to do the best 

work for my clients, and I might have been hyper focused on 

that than what was going on in my life.” Barfield testified that 

she never wished to harm her clients and believed she could 

properly manage a trust account in the future.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

Referee’s Recommendation

The referee in his report noted that misuse of client trust 

accounts, even without obvious misappropriation, harms the 

reputation of the bar and that an appropriate sanction should 

be imposed that will deter others from such conduct. Barfield’s 

conduct, the referee found, had tarnished the reputation of 

the bar.

The referee found that the duration and repetitive nature of 

Barfield’s violations reflected negatively on Barfield’s future 

fitness to practice law. Also, the referee considered Barfield’s 

conduct to constitute both commingling and misappropriation 

that caused harm to her clients, reasoning:

[Barfield] admittedly left earned fees in her trust account 

without a clear accounting and separation until it was 

impossible to determine what money belonged to her 

and what belonged to her clients, thus commingling her 

money with client money. Additionally, [Barfield’s] bank 

records show numerous overdrafts in her attorney trust 

account, which is clearly the misappropriation of client funds.

After considering sanctions imposed in similar cases, the referee concluded that the nature of Barfield’s offenses “is of 

the gravest concern to the legal profession and the Court has 

consistently found these violations require disbarment, absent 

mitigation.”

The referee found that Barfield had been cooperative 

throughout the investigation and disciplinary proceedings, 

which the referee considered a mitigating factor. The referee 

agreed with Barfield’s counsel that Barfield’s actions of readily admitting misconduct, acknowledging responsibility for her 

actions, and acknowledging that her violations have harmed 

the public reflected positively upon Barfield’s attitude and 

character.

On the other hand, the referee stated that it appeared that 

Barfield failed to grasp the seriousness of her violations. The 

referee noted that Barfield had expressed that any economic 
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harm was only of very brief duration. The referee also found 

that the lack of actual, or only minimal, harm was not a mitigating factor.

The referee also did not consider it as mitigating factors 

that there is no record of complaints from clients, attorneys, or 

courts against Barfield or that Barfield claimed to have modified her trust account practices, because she did so only after 

receiving notice of the disciplinary investigation. Lastly, the 

referee did not consider as mitigating any depression Barfield 

may have experienced, since she did not present any medical 

evidence that the depression was a direct and substantial contributing factor for her misconduct.

The referee found as an aggravating factor that this was not 

the first disciplinary action brought against Barfield concerning 

her trust account. Furthermore, the referee noted that Barfield’s 

current misuse of her trust account was not an isolated incident 

but consisted of cumulative acts occurring over approximately 

5 years.

The referee recommended disbarment with the following 

condition should Barfield apply for reinstatement: “[Barfield] 

should produce evidence satisfactory to the Court that she is fit 

to practice law; and further that the Counsel for Discipline has 

not been notified by the Court that [Barfield] has violated any 

disciplinary rule during her disbarment.” The referee also recommended that Barfield be required to comply with the notification requirements of Neb. Ct. R. § 3-316 (rev. 2014) and that 

she be subject to punishment for contempt if she fails to do 

so. Finally, the referee recommended that Barfield be directed 

to pay costs and expenses in accordance with Neb. Rev. Stat. 

§§ 7-114 and 7-115 (Reissue 2012) and § 3-310(P) and Neb. 

Ct. R. § 3-323(B) within 60 days of any order imposing such 

costs and expenses.

ASSIGNMENT OF ERROR

Barfield disagrees with the referee’s recommendation that 

she should be disbarred as a sanction for her misconduct.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

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STANDARD OF REVIEW

[1] When no exceptions to the referee’s findings of fact are 

filed by either party in a disciplinary proceeding, this court 

may, at its discretion, adopt the findings of the referee as final 

and conclusive.2

[2] Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations 

de novo on the record, reaching a conclusion independent of 

the referee’s findings.3

ANALYSIS

Under § 3-310(L), we accept the findings of the referee as 

final and conclusive. In addition, Barfield admitted the allegations and, pursuant to Barfield’s motion, judgment on the 

pleadings was granted. Barfield violated §§ 3-501.15 (safekeeping property) and 3-508.4 (misconduct). The only issue 

left to consider is the appropriate sanction.

[3-5] Attorneys licensed to practice law in the State of 

Nebraska agree to operate under the supervision of the office 

of the Counsel for Discipline.4 A license to practice law confers no vested right, but is a conditional privilege, revocable 

for cause.5 Violation of any of the ethical standards relating 

to the practice of law or any conduct of an attorney in his or 

her professional capacity which tends to bring reproach on the 

courts or the legal profession constitutes grounds for suspension or disbarment.6

[6,7] Under Neb. Ct. R. § 3-304, this court may impose 

one or more of the following disciplinary sanctions: “(1) 

Disbarment by the Court; or (2) Suspension by the Court; or 

2 See § 3-310(L).

3 State ex rel. Counsel for Dis. v. Nimmer, 300 Neb. 906, 916 N.W.2d 732 

(2018).

4 Id.

5 Id.

6 Id.
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(3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure 

and reprimand by the Court; or (5) Temporary suspension by 

the Court[.]” The goal of attorney discipline proceedings is 

not as much punishment as a determination of whether it is in 

the public interest to allow an attorney to keep practicing law.7

Providing for the protection of the public requires the imposition of an adequate sanction to maintain public confidence in 

the bar.8

[8-11] 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 respondent generally, and (6) the 

respondent’s present or future fitness to continue in the practice of law.9

 Each attorney discipline case must be evaluated in 

light of its particular facts and circumstances.10 For purposes of 

determining the proper discipline of an attorney, we consider 

the attorney’s actions both underlying the events of the case 

and throughout the proceeding, as well as any aggravating or 

mitigating factors.11 Furthermore, the propriety of a sanction 

must be considered with reference to the sanctions imposed in 

prior similar cases.12

[12] Barfield’s use of her trust account as both a business account and a personal account violated the rule against 

commingling. Generally speaking, an attorney violates the 

rule against commingling when the funds of the client are 

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.
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intermingled with those of the attorney in such a way that 

their separate identity is lost and they may be used by the 

attorney for personal expenses or subjected to the claims of the 

attorney’s creditors.13 Section 3-501.15(a) requires a lawyer to 

“hold property of clients or third persons that is in a lawyer’s 

possession in connection with a representation separate from 

the lawyer’s own property.” Section 3-501.15(a) also requires 

that client “[f]unds shall be kept in a separate account maintained in the state where the lawyer’s office is situated.” The 

only exception is when the lawyer’s own funds are deposited 

into a client trust account for the sole purpose of paying bank 

service charges on that account, and the exception applies 

only to deposits in the amount necessary for that purpose.14

Neither good faith nor ignorance of the rules prohibiting commingling client and personal funds provides a defense to a 

disciplinary charge that an attorney violated the rules against 

commingling.15

[13,14] This court considers commingling of client funds 

with an attorney’s own funds to be a matter of gravest concern in reviewing claims of lawyer misconduct.16 The practice 

involves the inherent danger of unforeseen circumstances jeopardizing the safety of the client’s funds.17 Even when the client 

suffers no loss, an attorney’s commingling of client funds with 

personal funds is not a trivial or technical rule violation.18

[15] Because it is such a dangerous and unfortunately 

common basis for disciplinary action, there is a continuing 

need to send a clear and strong message deterring attorneys 

from commingling client and personal funds and from using 

13 Id.

14 § 3-501.15(b).

15 State ex rel. Counsel for Dis. v. Nimmer, supra note 3.

16 Id.

17 See id.

18 Id.
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client trust accounts as personal checking accounts.19

Commingling of client funds with personal funds, even when 

it does not involve obvious misappropriation, harms the reputation of the entire legal profession by undermining public 

confidence and trust in attorneys, in the courts, and in the legal 

system.20 Thus, we have repeatedly said that absent extraordinary mitigating circumstances, disbarment is the appropriate 

discipline in cases of misappropriation or commingling of 

client funds.21

[16,17] The burden is on the respondent to provide evidence to be considered for mitigation of the formal charges. 

Cooperation and remorse during disciplinary proceedings are 

mitigating factors,22 and it is undisputed that Barfield readily 

admitted her misconduct, fully cooperated in the investigation, 

acknowledged responsibility for her actions, and acknowledged that her violations harmed the public. Furthermore, 

Barfield testified that she provided legal services at a reasonable cost to those who could not otherwise afford such 

services. Continuing commitment to the legal profession and 

the community is a mitigating factor in an attorney discipline 

case,23 although we note that the record here is somewhat 

limited as to the level of Barfield’s community involvement 

throughout her career.

19 See id.

20 See id.

21 See id. See, also, State ex rel. Counsel for Dis. v. Thebarge, 289 Neb. 

356, 854 N.W.2d 914 (2014); State ex rel. Counsel for Dis. v. Council, 

289 Neb. 33, 853 N.W.2d 844 (2014); State ex rel. Counsel for Dis. v. 

Crawford, 285 Neb. 321, 827 N.W.2d 214 (2013); State ex rel. Counsel 

for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433 (2010); State ex rel. 

NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000); State ex rel. NSBA 

v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997); State ex rel. NSBA v. 

Woodard, 249 Neb. 40, 541 N.W.2d 53 (1995).

22 See State ex rel. Counsel for Dis. v. Switzer, supra note 21.

23 See, State ex rel. Counsel for Dis. v. Trembly, 300 Neb. 195, 912 N.W.2d 

764 (2018); State ex rel. Counsel for Dis. v. Council, supra note 21.
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[18] Barfield further represents as a mitigating factor that 

there have never been any complaints against her for mishandling clients’ cases or for failing to communicate or act. We 

have recognized that having no prior complaints is a mitigating factor,24 but we have not considered mitigating the lack of 

complaints in one area of conduct when there has been a past 

complaint in another area. Barfield’s assertion ignores the prior 

complaint that resulted in the private reprimand in 2000.

[19] Barfield does not argue that her mental or physical 

health is a mitigating factor. Regarding depression, we have 

said that in order to be a mitigating factor, the respondent must 

show (1) medical evidence that he or she is affected by depression, (2) that the depression was a direct and substantial contributing cause to the misconduct, and (3) that treatment of the 

depression will substantially reduce the risk of further misconduct.25 No such evidence was presented in this case. Neither, 

rightly, does Barfield argue that her lack of staff and her living 

situation, leading to her admittedly poor accounting practices, 

presented mitigating factors. Poor accounting practices are 

neither an excuse nor a mitigating circumstance in reference to 

commingled or misappropriated funds.26

[20] We have considered prior reprimands as aggravators,27

and we agree with the referee that the conduct resulting in the 

2000 reprimand is an aggravating factor in this case. Because 

cumulative acts of attorney misconduct are distinguishable 

from isolated incidents, they justify more serious sanctions.28

We have said that cumulative acts of misconduct can, and 

often do, lead to disbarment.29 Barfield’s description of her 

24 See State ex rel. Counsel for Dis. v. Pierson, 281 Neb. 673, 798 N.W.2d 

580 (2011).

25 State ex rel. Counsel for Dis. v. Switzer, supra note 21.

26 See State ex rel. Counsel for Dis. v. Nimmer, supra note 3.

27 State ex rel. Counsel for Dis. v. Switzer, supra note 21.

28 Id.

29 See id.
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prior reprimand as a “misunderstanding of a debt owed to a 

medical provider,” which occurred in the “distant past,” does 

not remove it as an aggravating factor.30

Moreover, we consider aggravating the fact that the acts 

of commingling presently at issue were both intentional and 

routine over the course of several years. During that time, 

Barfield used her trust account as both a business account 

and a personal account, regularly withdrawing cash or paying 

directly from the trust account her utilities, medical expenses, 

and store purchases.

Barfield asserts that the level of moral turpitude reflected in 

her commingling and misappropriation was dissimilar to other 

cases in which we have imposed disbarment, in that she “used 

her own funds from her trust account to pay day to day meager 

expenses because she lost her other accounts to write checks 

from,” adding that “[s]he did not steal anybody’s money.”31 But 

we have repeatedly said that the fact that a client did not suffer 

any financial loss does not excuse an attorney’s misappropriation of client funds and does not provide a reason for imposing 

a less severe sanction than disbarment.32 Further, Barfield fails 

to point to a case where the prolonged use of a trust account 

to pay meager, as opposed to lavish, expenses has led to a 

lesser sanction.

In numerous cases, we have imposed disbarment for commingling or misappropriation when the client did not suffer 

a financial loss, even when there were mitigating factors.33

30 Brief for respondent at 7.

31 Id. at 9, 10.

32 See, State ex rel. Counsel for Dis. v. Crawford, supra note 21; State ex rel. 

Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862 (2012).

33 See, e.g., State ex rel. Counsel for Dis. v. Nimmer, supra note 3; State ex 

rel. NSBA v. Howze, supra note 21; State ex rel. NSBA v. Malcom, supra

note 21; State ex rel. NSBA v. Gridley, 249 Neb. 804, 545 N.W.2d 737 

(1996); State ex rel. NSBA v. Woodard, supra note 21; State ex rel. NSBA 

v. Veith, 238 Neb. 239, 470 N.W.2d 549 (1991).
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In State ex rel. NSBA v. Veith,

34 for example, the relator was 

disbarred because of several instances over the course of 8 

months of having a deficient balance in his client trust account, 

which he subsequently attempted to remedy through personal 

loans to cover the deficiencies. The deficiencies were the result 

of transfers to his business account, and the transferred funds 

were used for salaries, office expenses, an upgraded computer 

system and law library, and a car.35

We noted case law from other jurisdictions holding that the 

mere fact that an attorney’s trust account balance falls below 

the amount deposited in and purportedly held in trust supports a finding of misappropriation, explaining that wrongful 

or improper intent is not an element of misappropriation.36 We 

found the proper sanction to be disbarment, despite no aggravating factors and several mitigating factors, including being in 

good standing and free from disciplinary complaint or penalty, 

cooperation with the investigation, remorse, a good reputation 

in the community, and the provision of many pro bono hours.37

We repeated that an attorney has a duty to keep separate and 

properly account for client trust funds and explained that 

an attorney may not use client trust funds to cover business 

expenses.38 We also disapproved of a prior trend toward lighter 

sanctions for such behavior, citing with approval another court’s 

reasoning that imposing lighter discipline would “‘“stand out 

like an invitation to the lawyer who is in financial difficulty for 

one reason or another”’” and that “‘“[t]he profession and the 

public suffer as a consequence.”’”39

34 State ex rel. NSBA v. Veith, supra note 33.

35 Id.

36 See id.

37 See id.

38 Id.

39 Id. at 252, 470 N.W.2d at 558, quoting The Florida Bar v. Breed, 378 So. 

2d 783 (Fla. 1979).
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[21] We have generally imposed the lesser discipline of 

suspension in cases of commingling or misappropriation only 

where (1) it involved an isolated incident or a limited number 

of incidents over a relatively isolated period of time, (2) there 

were multiple significant mitigating factors, and (3) there were 

no aggravating factors.40 Mitigating factors may overcome 

the presumption of disbarment in misappropriation and commingling cases only where they are extraordinary and, when 

aggravating circumstances are present, they substantially outweigh those aggravating circumstances.41

Here, the mitigating factors of Barfield’s cooperation, 

remorse, and efforts to provide affordable representation to 

the community, while laudable, are insufficient both to rebut 

the presumption of disbarment for commingling and to substantially outweigh the aggravating factors. This is not the 

first time Barfield has been disciplined in relation to her 

maintenance of her trust account, and she has for several years 

engaged in a continuous pattern of commingling client funds. 

Especially in light of the prior reprimand, Barfield’s prolonged and persistent violation of the rule against commingling 

reflects a general failure to fully comprehend the serious nature 

of such conduct.42

After balancing the relevant factors in comparison to other 

cases, considering the need to protect the public, considering 

the need to deter others, and considering the reputation of the 

40 See, State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d 

928 (2008); State ex rel. Counsel of Dis. v. Wintroub, 267 Neb. 872, 678 

N.W.2d 103 (2004); State ex rel. Counsel for Dis. v. Huston, 262 Neb. 481, 

631 N.W.2d 913 (2001); State ex rel. NSBA v. Kratina, 260 Neb. 1030, 620 

N.W.2d 748 (2001); State ex rel. NSBA v. Bruckner, 249 Neb. 361, 543 

N.W.2d 451 (1996); State ex rel. NSBA v. Gleason, 248 Neb. 1003, 540 

N.W.2d 359 (1995). But see State ex rel. Counsel for Dis. v. Sundvold, 287 

Neb. 818, 844 N.W.2d 771 (2014).

41 See, State ex rel. Counsel for Dis. v. Nimmer, supra note 3; State ex rel. 

NSBA v. Woodard, supra note 21.

42 See State ex rel. Counsel for Dis. v. Nimmer, supra note 3.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. BARFIELD

Cite as 305 Neb. 79

bar as a whole, we agree with the referee that disbarment is the 

only appropriate sanction.

CONCLUSION

Barfield violated §§ 3-501.15 (safekeeping property) and 

3-508.4 (misconduct). It is the judgment of this court that 

Barfield is disbarred from the practice of law in the State of 

Nebraska, effective immediately. She is directed to comply 

with § 3-316, and upon failure to do so, she shall be subject to 

punishment for contempt.

Judgment of disbarment.

Heavican, C.J., not participating.