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STATE EX REL. COUNSEL FOR DIS. v. ISLAND

Cite as 296 Neb. 624

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. Bell Island, respon

___ N.W.2d ___

Filed May 5, 2017. No. S-16-715.

Original action. Judgment of public reprimand.

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

Kelch, and Funke,

Per Curiam

INTRODUCTION

On July 22, 2016, formal charges containing one count 

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

Nebraska Supreme Court, relator, against Bell Island, respondent. Respondent filed an answer to the formal charges on 

September 19. A referee was appointed, and the referee held a 

hearing on the charges.

The referee filed a report on February 6, 2017. With respect 

to the formal charges, the referee concluded that respondent’s 

conduct had violated the following provisions of the Nebraska 

Rules of Professional Conduct: Neb. Ct. R. of Prof. Cond. 

§§ 3-503.6 (trial publicity), 3-504.1(a) (truthfulness in statements to others), and 3-508.4(a) and (d) (misconduct). With 

respect to the discipline to be imposed, the referee recommended a public reprimand. Neither relator nor respondent 

filed exceptions to the referee’s report. The parties filed a 

joint motion for judgment on the pleadings under Neb. Ct. R. 

Nebraska Supreme Court Online Library

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

07/14/2017 09:11 AM CDT
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STATE EX REL. COUNSEL FOR DIS. v. ISLAND

Cite as 296 Neb. 624

§ 3-310(L) (rev. 2014) of the disciplinary rules. We grant the 

motion for judgment on the pleadings and impose discipline 

as indicated below.

STATEMENT OF FACTS

Respondent was admitted to the practice of law in the State 

of Nebraska on September 22, 1994. At all times relevant to 

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

Gering, Nebraska.

On July 22, 2016, relator filed formal charges against 

respondent. The formal charges contain one count generally 

regarding respondent’s statements to the press regarding his 

client’s refusal to testify at a murder trial. The formal charges 

alleged that by his conduct, respondent violated his oath of 

office as an attorney pursuant to Neb. Rev. Stat. § 7-104 

(Reissue 2012) and Neb. Ct. R. of Prof. Cond. § 3-504.4(a) 

(respect for rights of third persons), as well as professional 

conduct rules §§ 3-503.6(a), 3-504.1(a), and 3-508.4(a), (c), 

and (d). On September 19, respondent filed his answer to the 

formal charges, generally denying the allegations set forth in 

the formal charges.

A referee was appointed on October 5, 2016. The referee 

held a hearing on the formal charges on December 21.

After the hearing, the referee filed his report and recommendation on February 6, 2017. The substance of the referee’s findings may be summarized as follows: In July 2008, 

a 2-year-old child was murdered in her home in Scotts Bluff 

County. At the time she was murdered, the only adults present 

in the home were the child’s mother, who became respondent’s client; the client’s boyfriend, Dustin Chauncey; and their 

friend. A law enforcement investigation ensued, but no criminal charges were filed at that time. During the investigation, 

in late 2008 or early 2009, respondent began representing the 

client. Prior to respondent’s involvement, the client had given 

several inconsistent statements to law enforcement regarding the events that occurred on the night that her child was 
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Cite as 296 Neb. 624

murdered, but after respondent became involved, the client 

gave no further statements to law enforcement.

Following pressure from the community, the district court 

for Scotts Bluff County appointed James Zimmerman to conduct a grand jury. The court appointed Zimmerman from 

outside the Scotts Bluff County Attorney’s office in order to 

alleviate community concerns that the county attorney had 

not brought criminal charges. The grand jury convened and 

returned an indictment against Chauncey for intentional child 

abuse resulting in death, a Class IB felony. The grand jury also 

indicted the client as an accessory after the fact in the death 

of her child, a Class IV felony. The charges against the client 

were dismissed because the statute of limitations had run. The 

charges against Chauncey proceeded to trial.

Chauncey’s trial commenced on February 23, 2015. 

Zimmerman wanted the client to testify. On February 24, 

Zimmerman sent respondent an email containing an outline 

of the questions which Zimmerman intended to ask the client during his direct examination of her. Respondent did not 

respond to Zimmerman’s email. The client invoked her Fifth 

Amendment right to remain silent, and Zimmerman moved 

to grant the client immunity regarding her testimony. The 

court ordered that the client give her testimony and that if she 

refused, she would be held in contempt of court. After conferring with respondent, the client refused to testify, and she was 

held in contempt of court by an order filed February 24. On 

February 25, the client was brought back before the court. She 

again indicated that she was refusing to testify, and she continued to be held in contempt of court.

During the trial on February 25, 2015, Zimmerman learned 

that a press release had been issued to a local radio station. 

The press release had been issued at respondent’s direction on 

behalf of his client, and it stated:

“[The client] continues to desire to cooperate with the 

Prosecution, however, the only testimony they want to 
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believe is their version of the truth. The Prosecution’s 

version of the truth, while inconsistent with the actual 

events, forces [respondent’s client] to either lie or face 

perjury charges. She continues to desire justice for her 

daughter . . . but will not lie to achieve that result.”

Chauncey’s trial was concluded on February 26, 2015, and 

Chauncey was found guilty of intentional child abuse resulting 

in death. See State v. Chauncey, 295 Neb. 453, 890 N.W.2d 

453 (2017). The client was released from custody, because 

there was no longer a need for her to testify.

On April 27, 2015, after the completion of Chauncey’s 

trial, Zimmerman submitted a formal complaint to relator in 

which he outlined the formal charges he felt should be brought 

against respondent.

In the referee’s report on the formal charges, the referee 

determined that respondent knowingly made false statements 

of material fact and/or law to a third person, made an extrajudicial statement that was disseminated by means of public 

communication that would have had a substantial likelihood 

of materially prejudicing the adjudicative proceeding at issue, 

and engaged in conduct which is prejudicial to the administration of justice. Accordingly, the referee found that respondent 

violated professional conduct rules §§ 3-503.6, 3-504.1(a), 

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

respondent did not violate his oath of office as an attorney or 

professional conduct rule § 3-504.4.

The referee identified certain aggravating factors, including that the nature of the press release was highly offensive 

given the fact that it directly called into question Zimmerman’s 

integrity in the prosecution of the criminal proceedings against 

Chauncey. The referee stated that the public nature of the press 

release called into question the reputation of the bar in a community that was already struggling with the lengthy delay in 

the prosecution of this matter. The referee also recognized that 

the discipline to be imposed must be clear in order to deter 
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others who feel the need to issue such press releases. The referee further noted that respondent had received a public reprimand for an incident that occurred around the same time as the 

incident at issue in this case.

The referee also identified certain mitigating factors, including that respondent’s actions did not endanger the public, that 

respondent regretted the wording of the press release, and that 

respondent did not mean to call into question Zimmerman’s 

integrity and ethics. The referee also noted that other than the 

public reprimand noted above, respondent had not received 

any other discipline, and the referee stated: “Two incidents 

occurring near the same time over a twenty (20) year period 

of practice, would not indicate that he is not fit to continue the 

practice of law in the State of Nebraska.”

With respect to the sanctions to be imposed for the foregoing actions, considering the aggravating and mitigating factors, 

the referee recommended a public reprimand.

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. Ubbinga, 295 Neb. 995, ___ N.W.2d 

___ (2017). Based upon the findings in the referee’s report, 

which we consider to be final and conclusive, we conclude 

that the formal charges are supported by clear and convincing evidence, and the motion for judgment on the pleadings 

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 
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by clear and convincing evidence. State ex rel. Counsel for 

Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771 (2014). See, 

also, State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 

N.W.2d 530 (2016).

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 §§ 3-503.6, 3-504.1(a), and 

3-508.4(a) and (d) of the professional conduct rules.

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. Ubbinga, 

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.

(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. Ubbinga, supra. For purposes of 

determining the proper discipline of an attorney, we consider 
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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. Id.

The evidence in the present case establishes, among other 

facts, that respondent knowingly issued a press release on 

behalf of his client which called into question the integrity 

of Zimmerman, who was the attorney prosecuting the criminal case against Chauncey. The press release indicated that 

Zimmerman wanted respondent’s client to testify at the trial 

and “‘to either lie or face perjury.’” More fully, the press 

release stated that “‘[t]he Prosecution’s version of the truth, 

while inconsistent with the actual events, forces [the client] to either lie or face perjury charges. She continues to 

desire justice for her daughter . . . but will not lie to achieve 

that result.’”

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

press release was offensive and that the public nature of the 

press release called into question the reputation of the bar as a 

whole. We further note that respondent had received a public 

reprimand for an incident that occurred around the same time 

as the incident at issue in this case.

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

that respondent has indicated that he regretted the wording of 

the press release and that he did not mean to call into question 

Zimmerman’s integrity and ethics. We further note, as did the 

referee, that other than a prior public reprimand, respondent 

has not received any other discipline.
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Cite as 296 Neb. 624

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 publicly reprimanded.

CONCLUSION

The motion for judgment on the pleadings is granted. 

Respondent is publicly reprimanded. Respondent is directed 

to pay costs and expenses in accordance with § 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 public reprima