Nebraska Advance Sheets

STATE EX REL. COUNSEL FOR DIS. v. KRUGER 775

Cite as 286 Neb. 775

State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, 

v. Eric W. Kruger, respondent.

___ N.W.2d ___

Filed November 1, 2013. No. S-13-108.

Original action. Judgment of public reprimand.

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

Miller‐Lerman, and Cassel, JJ.

Per Curiam.

INTRODUCTION

Respondent, Eric W. Kruger, was admitted to the practice 

of law in the State of Nebraska on September 12, 1977. At 

all relevant times, he was engaged in the private practice of 

law in Omaha, Nebraska. On February 11, 2013, the Counsel 

for Discipline of the Nebraska Supreme Court filed formal 

charges consisting of one count against respondent. In the one 

count, it was alleged that by his conduct, respondent had violated his oath of office as an attorney, Neb. Rev. Stat. § 7-104 

(Reissue 2012), and Neb. Ct. R. of Prof. Cond. §§ 3-504.1(a) 

(truthfulness in statements to others) and 3-508.4(a), (c), and 

(d) (misconduct).

On May 3, 2013, respondent filed his answer admitting to 

the formal charges. On May 23, a referee was appointed to 

recommend discipline, and on September 4, the referee’s report 

was filed which recommended a public reprimand and supervised probation for a period of 18 months. On September 13, 

respondent filed exceptions to the referee’s report.

On September 23, 2013, respondent filed a conditional 

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

rules, in which he knowingly chose not to challenge or contest 

the truth of the matters set forth in the formal charges and 

waived all proceedings against him in connection therewith in 

exchange for a judgment of public reprimand and no supervised probation.

The proposed conditional admission included a declaration 

by the Counsel for Discipline, stating that respondent’s request 
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776 286 NEBRASKA REPORTS

for public reprimand is appropriate. The Counsel for Discipline 

agreed with respondent that “a term of probation is unnecessary in this case.”

Upon due consideration, we approve the conditional admission and order that respondent be publicly reprimanded.

FACTS

The formal charges generally allege that respondent knowingly made false statements during a settlement negotiation. 

The underlying facts of this case can be found at Smalley v. 

Nebraska Dept. of Health & Human Servs., 283 Neb. 544, 

811 N.W.2d 246 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 

1631, 185 L. Ed. 2d 616 (2013).

The formal charges state that on December 20, 2007, Edward 

M. Smalley was injured when he was struck by a vehicle 

owned by Mark Morehead Construction, Inc. (Morehead), and 

driven by Jerome Speck. On behalf of Smalley, respondent 

filed suit against Speck and Morehead in February 2008.

It was determined that Smalley was eligible for Medicaid 

during his hospital stay, and in March 2008, the hospital 

submitted medical bills for Smalley in excess of $400,000 

to the Nebraska Department of Health and Human Services 

(DHHS) for payment under Medicaid. Pursuant to statutory 

regulations and DHHS’ provider agreement with the hospital, DHHS could fully resolve Smalley’s medical bills with 

a payment of approximately $130,000. Emil Spicka, a medical claims investigator with DHHS, refused to pay Smalley’s 

hospital bills on the basis that “‘third party resources’” might 

be available, such as the liability insurance of Speck and 

Morehead. At the time DHHS denied payment of the medical 

bills, Smalley’s claims against Speck and Morehead had not 

been resolved.

Respondent received a settlement offer of $800,000 from 

Speck and Morehead. According to the formal charges, 

respondent then specifically told Spicka that if DHHS would 

pay Smalley’s hospital bill, Smalley would reimburse Medicaid 

the full amount of its payment to the hospital of approximately 

$130,000. Based upon the affirmative promise and assurance 

of payment from respondent, Spicka authorized the Medicaid 
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STATE EX REL. COUNSEL FOR DIS. v. KRUGER 777

Cite as 286 Neb. 775

payment to the hospital, which effectively extinguished the 

hospital’s claim against Smalley for medical services in excess 

of $400,000.

Immediately after DHHS paid the hospital bill for Smalley, 

respondent amended the complaint in the pending case against 

Speck and Morehead to add DHHS as a defendant. According 

to the amended complaint, respondent acknowledged that he 

intentionally misled Spicka to believe that Smalley would 

agree to pay DHHS the full $130,000 and that he made the 

false promise for the purpose of extinguishing the full hospital 

bill of over $400,000 and with the express intention to thereafter challenge DHHS’ claim to the full $130,000. The formal 

charges allege that respondent knew his promise to Spicka was 

false when he made it.

The issue of DHHS’ entitlement to the $130,000 payment 

from Smalley was litigated, and ultimately on appeal, we determined that DHHS was entitled to full reimbursement of the 

$130,000 Medicaid payment. See Smalley v. Nebraska Dept. of 

Health & Human Servs., supra.

The formal charges allege that respondent’s actions constitute violations of his oath of office as an attorney as provided 

by § 7-104 and professional conduct rules §§ 3-504.1(a) and 

3-508.4(a), (c), and (d).

ANALYSIS

Section 3-313, which is a component of our rules governing procedures regarding attorney discipline, provides in pertinent part:

(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 
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778 286 NEBRASKA REPORTS

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 set forth in the formal charges. We further 

determine that by his conduct, respondent violated professional 

conduct rules §§ 3-504.1(a) and 3-508.4(a), (c), and (d), as 

well as 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

The conditional admission is accepted. Respondent is publicly reprimanded. Respondent is directed to pay costs and 

expenses in accordance with 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 public reprimand.

In re Interest of Samantha L. and Jasmine L., 

children under 18 years of age.

State of Nebraska, Department of Health and

Human Services, appellee and cross-appellee, 

v. Kelly L., appellee and cross-appellant, 

and William H., appellant.

___ N.W.2d ___

Filed November 1, 2013. No. S-13-264.

1. Rules of the Supreme Court: Appeal and Error. Headings in the argument section of a brief do not satisfy the requirements of Neb. Ct. R. App. P. 

§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required to set forth the