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291 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. BOYUM

Cite as 291 Neb. 696

State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, v. 

Bradley A. Boyum, respondent.

___ N.W.2d ___

Filed August 28, 2015. No. S-14-578.

Original action. Judgment of suspension.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

Per Curiam.

INTRODUCTION

On February 4, 2015, amended formal charges containing 

one count were filed by the office of the Counsel for Discipline 

of the Nebraska Supreme Court, relator, against respondent, 

Bradley A. Boyum. Respondent filed an answer to the amended 

formal charges on February 9. A referee was appointed, and the 

referee held a hearing on the charges. Respondent and a client 

of respondent appeared at the hearing and testified, and exhibits were admitted into evidence.

The referee filed a report on May 13, 2015. With respect 

to the amended formal charges, the referee concluded that 

respondent’s conduct had violated Neb. Ct. R. of Prof. Cond. 

§§ 3-501.3 (diligence), 3-501.4(a)(3) (communications), and 

3-508.4 (misconduct). The referee further found that respondent had violated his oath of office as an attorney licensed to 

practice law in the State of Nebraska. See Neb. Rev. Stat. 

§ 7-104 (Reissue 2012). With respect to the discipline to be 

imposed, the referee recommended a 60-day suspension, and 
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Cite as 291 Neb. 696

as a condition of reinstatement, that respondent complete 6 

hours of legal education in the area of professional responsibility, and that upon reinstatement, if accepted, respondent be 

placed on monitored probation for a period of 2 years. Neither 

relator nor respondent filed exceptions to the referee’s report. 

Relator filed a motion for judgment on the pleadings under 

Neb. Ct. R. § 3-310(L) (rev. 2014) of the disciplinary rules. 

We grant the motion for judgment on the pleadings as to the 

facts and impose discipline as indicated below.

STATEMENT OF FACTS

Respondent was admitted to the practice of law in the State 

of Nebraska on September 21, 2004. At all times relevant to 

these proceedings, he was engaged in the practice of law in 

Omaha, Nebraska.

On June 30, 2014, relator filed formal charges against 

respondent, and on February 4, 2015, relator filed amended formal charges against respondent. The amended formal charges 

contained one count generally regarding respondent’s failure to 

communicate with a client and respondent’s failure to perform 

the legal work for the client for which respondent had been 

paid. The formal charges alleged that by his conduct, respondent violated his oath of office as an attorney and §§ 3-501.3, 

3-501.4(a)(3) and (4), and 3-508.4(a) and (d). On February 

9, 2015, respondent filed his answer to the amended formal 

charges, generally denying the allegations set forth in the 

amended formal charges.

A referee was appointed on October 24, 2014, and the referee 

held a hearing on the amended formal charges. Respondent and 

the client testified at the hearing, and exhibits were admitted 

into evidence.

After the hearing, the referee filed his report and recommendation on May 13, 2015. The substance of the referee’s 

findings may be summarized as follows: Respondent first met 

the client in December 2011, and on February 26, 2012, the 

client emailed respondent to schedule a meeting “‘to start our 

estate process.’” The initial estate planning meeting occurred 
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM

Cite as 291 Neb. 696

on March 2 and lasted approximately 1 hour. At the end of 

the meeting, respondent gave the client a folder containing an 

asset information booklet.

No followup meeting was scheduled. At the hearing, the 

client was asked whether he told respondent how quickly he 

wanted to proceed, and the client stated, “‘Quite the opposite. 

I told him I was not in a hurry.’” Respondent testified that 

he believed the client would contact him when the client was 

ready to take the next step. There were no additional contacts 

between respondent and the client in 2012.

On January 16, 2013, the client called respondent to discuss 

an unrelated matter, and at that time, respondent brought up the 

topic of estate planning. Respondent’s notes from the January 

16 telephone call stated that “‘[the client] is still working on 

the asset booklet but they are planning on doing the Living 

Trust packet.’” Respondent’s notes further stated that respondent “‘[d]id [an] estate plan draft,’” and respondent testified at 

the hearing that that meant he had “‘entered information into a 

drafting program.’”

On January 28, 2013, respondent created a document titled 

the client’s “Estate Plan Drafting Notes” (emphasis in original), and according to these notes, respondent “‘[d]rafted 

Estate Plan for [the client] after our conversation from January 

16, 2013 because he said he was going forward with the Living 

Trust packet.’” Respondent testified at the hearing that he did 

not intend to show the original draft of the estate plan to the 

client. Respondent’s notes listed some of the information that 

respondent still needed to gather in order to complete the estate 

plan for the client.

Respondent took no steps between January 28 and June 17, 

2013, to gather the missing information for the estate plan. 

Respondent testified at the hearing that he took no action at 

this time, because the client “‘wanted to control the speed 

of the process, the estate planning process.’” The client testified at the hearing that he did not remember whether he 

wanted to move forward with the estate planning process in 

January 2013.
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Cite as 291 Neb. 696

The client initiated a meeting with respondent for estate 

planning purposes, and that meeting was held on June 17, 

2013. At that meeting, the client formally told respondent that 

he wanted to go forward with the estate planning process. The 

client paid respondent a retainer of $1,700, and the client signed 

a legal services agreement. The legal services agreement provided that respondent “‘will prepare the following estate planning documents for client: [six documents are identified],’” 

and it further provided that the client agreed that “‘Attorney’s 

Fees shall be paid as follows: Initial Retainer of $1700.’” The 

legal services agreement set forth the client’s responsibilities, 

including: “‘Before Law Firm has an obligation to perform any 

services for Client, Client must sign this agreement and make 

the payment required in paragraph 3 above.’” The client and 

his wife both signed the contract. The legal services agreement 

did not explicitly set forth other details of how and when the 

work was to be performed.

Respondent contended that at the conclusion of the June 

17, 2013, meeting, he did not have all of the information he 

needed to complete the work identified in the legal services 

agreement. The referee noted in his report that at the hearing, 

respondent “was unable to describe what additional information he needed” and that respondent “became clearly evasive 

about what information he may have needed to complete work 

on the estate plan.” Respondent did not inform the client that 

respondent might need additional information from the client 

and that respondent might be contacting the client to obtain 

additional information.

At the end of the June 17, 2013, meeting, the client’s understanding was that he would receive a draft of the estate plan 

from respondent and that he would be able to review the draft 

before the plan was finalized. The client was unaware that 

respondent did not intend to send a draft of the estate plan to 

the client. The referee stated in his report that he found that the 

client had “expressed desire to receive a draft to review at the 

June 17, 2013 meeting.”
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM

Cite as 291 Neb. 696

The referee stated in his report that the schedule to complete the estate planning work was left open. The referee 

further stated that respondent asserted that the arrangement 

was for the client to contact respondent when he needed some 

work completed. Conversely, the client expected respondent 

to call him sometime after the meeting on June 17, 2013, 

to inform the client when the documents were ready to 

be reviewed.

On August 19, 2013, the client called respondent and left a 

message. Respondent returned the call and left a message. On 

September 9, the client called respondent “‘to get this estate 

process going.’” Respondent did not answer, and the client left 

a message. Late on September 9, respondent sent the client an 

e-mail stating, “‘I saw I missed your call. I will call you in 

the morning.’” Respondent called the client at 6:22 p.m. on 

September 10. The client answered the call, but he indicated 

that it was not a convenient time to talk. The client stated that 

he would call respondent back, but he did not.

Beginning on January 21, 2014, the client attempted 

numerous times to contact respondent to let respondent know 

he was ready and wanting to move forward. The client 

attempted to contact respondent via: a call on January 21, 

a call on January 27, two calls on February 4, an e-mail 

on February 4, two calls on February 6, a call on February 

18, a call on February 20, and three calls on February 25. 

Respondent did not respond to any of the client’s attempts to 

contact him.

On February 25, 2014, the client called relator because he 

was upset that he could not reach respondent. The client wrote 

a grievance letter, which relator received on February 27. On 

March 4, relator sent respondent a letter with a copy of the 

grievance. The March 4 letter was mailed certified, return 

receipt, and addressed to respondent’s correct office address. 

The referee noted in his report that return receipt has never 

been returned, and the letter itself has never been returned. 

Respondent testified at the hearing that he did not receive the 
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Cite as 291 Neb. 696

March 4 letter. An exhibit received at the hearing showed a 

copy of a U.S. Postal Service tracking screen which showed 

that the March 4 letter was delivered on March 5 to area code 

68154, although not the specific address or addresses.

On April 2, 2014, the client was in respondent’s office building on an unrelated matter, and the client asked respondent 

to meet with him. Respondent met the client, and the client 

indicated that “it was time for them to part” and asked for his 

money back. Respondent immediately wrote the client a check 

for the entire $1,700 retainer.

With respect to relator’s efforts to reach respondent, on 

April 15, 2014, relator sent a followup letter by regular mail 

to respondent’s correct address. The letter was never returned 

to relator. Respondent testified that he did not receive the April 

15 letter.

Relator sent respondent a third letter to respondent’s correct address on May 8, 2014, and respondent acknowledged 

receiving this letter. Respondent e-mailed a response to relator on May 19. Thereafter, relator filed a complaint with the 

appropriate Committee on Inquiry and subsequently filed formal charges against respondent as described above.

The referee stated in his report that two additional grievance letters were submitted against respondent. With respect 

to the second grievance letter, two of respondent’s clients 

asserted that respondent failed to communicate with them 

and failed to return their estate planning documents. The 

referee noted that respondent apparently did not respond 

promptly to relator regarding the second grievance; however, 

respondent eventually sent a letter to relator regarding the 

grievance in which he denied receiving some of the calls 

claimed to have been made by the clients and stated that 

“‘[t]he fact of the matter is that I handled the matter poorly. 

It is my fault for not being proactive in my attempt to contact 

them as time passed.’” The second grievance did not result 

in the filing of a complaint or the filing of formal charges 

against respondent.
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291 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. BOYUM

Cite as 291 Neb. 696

With respect to the third grievance submitted against 

respondent, two of respondent’s clients asserted that respondent failed to complete work for which the clients had paid. 

Relator sent five letters to respondent regarding the third 

grievance between August and December 2013, and respondent did not respond to any of relator’s five letters. Relator 

called respondent on December 12, and on December 13, 

respondent mailed a written response to relator regarding the 

third grievance. Relator subsequently filed a complaint, and 

on February 20, 2014, the Committee on Inquiry issued a private reprimand to respondent. The referee noted in his report 

that the allegations supporting the private reprimand were that 

respondent violated §§ 3-501.3, 3-501.4(a)(3) and (4), and 

3-508.4(a) and (d).

In his report, the referee determined with respect to the 

allegations set forth in the amended formal charges, based 

on his actions, respondent did not act promptly or diligently, 

that respondent did not keep the client reasonably informed 

about the status of the matter, and that respondent failed 

to cooperate with relator in a timely manner. Accordingly, 

the referee found that respondent violated his oath of office 

as an attorney and professional conduct rules §§ 3-501.3, 

3-501.4(a)(3), and 3-508.4. However, the referee found that 

respondent did not violate § 3-501.4(a)(4) of the professional 

conduct rules.

The referee identified certain aggravating factors, including that two other grievances had been submitted against 

respondent that involved similar misconduct. In both situations, respondent failed to adequately communicate with his 

clients as to the status of their matters and respondent failed 

to promptly respond to the investigation of relator. The referee further stated that one of the other grievances resulted in 

a private reprimand, and a prior reprimand is considered an 

aggravating factor.

The referee also identified certain mitigating factors. The 

referee noted that the client involved in the events at issue 
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM

Cite as 291 Neb. 696

in this case was a “difficult” client who provided confusing 

direction regarding when work was to be done, but the referee 

stated “[t]his fact is barely mitigating since the exact same fact 

provides notice to [respondent] that extra care was needed to 

ensure adequate communication.” The referee acknowledged 

that many letters of support were submitted on respondent’s 

behalf. However, the referee stated that some of the letters 

were “templates which have merely been signed,” and the referee did not give the form letters any mitigating weight. The 

referee further stated that other letters appeared to be sincere, 

original compositions and that those letters were entitled to 

some mitigating weight. The referee further stated that “[a]s a 

matter of proportionality, [respondent’s] failure to respond to 

the investigation into his misconduct was a clear violation but 

was not profoundly significant. . . . I find that [respondent] 

violated the rule but I do not exaggerate the seriousness of this 

particular violation.”

With respect to sanctions to be imposed for the foregoing 

actions, considering the aggravating and mitigating factors, 

the referee recommended that respondent be suspended for 

a period of 60 days; that reinstatement be conditioned on 

respondent’s proof that respondent completed 6 hours of continuing legal education prior to reinstatement; and that upon 

reinstatement, respondent be placed on monitored probation for 

a period of 2 years.

ANALYSIS

In view of the fact that neither party filed written exceptions to the referee’s report, relator filed a motion for judgment on the pleadings under § 3-310(L). When no exceptions to the referee’s findings of fact are filed, the Nebraska 

Supreme Court may consider the referee’s findings final and 

conclusive. State ex rel. Counsel for Dis. v. Council, 289 Neb. 

33, 853 N.W.2d 844 (2014). Based upon the findings in the 

referee’s report, which we consider to be final and conclusive, 

we conclude that the amended formal charges are supported 
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by clear and convincing evidence, and the motion for judgment on the pleadings as to the facts is granted.

A proceeding to discipline an attorney is a trial de novo 

on the record. State ex rel. Counsel for Dis. v. Thebarge, 

289 Neb. 356, 854 N.W.2d 914 (2014). Violation of a disciplinary rule concerning the practice of law is a ground for 

discipline, and disciplinary charges against an attorney must 

be established by clear and convincing evidence. State ex 

rel. Counsel for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 

771 (2014).

Based on the record and the undisputed findings of the 

referee, we find that the above-referenced facts have been 

established by clear and convincing evidence. Based on the 

foregoing evidence, we conclude that by virtue of respondent’s 

conduct, respondent has violated §§ 3-501.3, 3-501.4(a)(3), 

and 3-508.4 of the professional conduct rules. The record 

also supports a finding by clear and convincing evidence that 

respondent violated his oath of office as an attorney, and we 

find that respondent has violated said oath.

We have stated that the basic issues in a disciplinary proceeding against an attorney are whether discipline should be 

imposed and, if so, the appropriate discipline under the circumstances. See State ex rel. Counsel for Dis. v. Council, 

supra. Neb. Ct. R. § 3-304 of the disciplinary rules provides 

that the following may be considered as discipline for attorney misconduct:

(A) Misconduct shall be grounds for:

(1) Disbarment by the Court; or

(2) Suspension by the Court; or

(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; or

(6) Private reprimand by the Committee on Inquiry or 

Disciplinary Review Board.
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(B) The Court may, in its discretion, impose one or 

more of the disciplinary sanctions set forth above.

See, also, § 3-310(N).

With respect to the imposition of attorney discipline in an 

individual case, each attorney discipline case must be evaluated in light of its particular facts and circumstances. State 

ex rel. Counsel for Dis. v. Council, supra. 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. Id.

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. State 

ex rel. Counsel for Dis. v. Connor, 289 Neb. 660, 856 N.W.2d 

570 (2014).

The evidence in the present case establishes, among other 

facts, that respondent agreed to prepare estate planning documents for the client and was paid a retainer to complete 

such work. However, respondent failed to prepare the documents and failed to effectively communicate with the client 

regarding the status of the work to be completed. In addition, respondent repeatedly failed to cooperate with relator’s investigation.

As aggravating factors, we note, as did the referee, that 

two other grievances had been submitted against respondent 

for similar misconduct and that in those situations, respondent 

similarly failed to cooperate with relator’s investigation in a 

timely manner. Further, the record shows that respondent has 

received a private reprimand.

As mitigating factors, we acknowledge, as did the referee, 

that the client involved with the events at issue in this case was 
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a “difficult” client. We also recognize that several letters of 

support were written on respondent’s behalf.

We have considered the record, the findings which have 

been established by clear and convincing evidence, and the 

applicable law. Upon due consideration, the court finds that 

respondent should be suspended for a period of 60 days.

Before the filing of an application for reinstatement, respondent must complete 6 hours of legal education in the area 

of professional responsibility. Should respondent apply for 

reinstatement, his reinstatement shall be conditioned upon 

the application’s being accompanied by a proposed monitored 

plan and further conditioned on respondent’s being placed on 

monitored probation for a period of 2 years, and the monitoring shall be by an attorney licensed to practice law in the 

State of Nebraska, who shall be approved by the Counsel for 

Discipline. Respondent shall submit a monitoring plan with 

this application for reinstatement which shall include, but not 

be limited to, the following: During the first 6 months of the 

probation, respondent will meet with and provide the monitor a weekly list of cases for which respondent is currently 

responsible, which list shall include 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, or 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 as set forth above; respondent shall reconcile his trust 

account within 10 days of receipt of the monthly bank statement and provide the monitor with a copy within 5 days; and 

respondent shall submit a quarterly compliance report with 

the Counsel for Discipline, demonstrating that respondent is 
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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 the probation.

CONCLUSION

The motion for judgment on the pleadings is granted as 

to the facts. With respect to discipline, it is the judgment of 

this court that respondent should be and is hereby suspended 

from the practice of law for a period of 60 days, effective 

immediately, after which period respondent may apply for 

reinstatement to the bar. Before the filing of an application 

for reinstatement, respondent must complete 6 hours of legal 

education in the area of professional responsibility. Should 

respondent apply for reinstatement, his reinstatement shall 

be conditioned upon respondent’s being on probation for a 

period of 2 years, including monitoring, following reinstatement, subject to the terms outlined above, and 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 § 3-310(P) and Neb. 

Ct. R. § 3-323(B) of the disciplinary rules within 60 days after 

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

the court.

Judgment of suspension.