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STATE EX REL. COUNSEL FOR DIS. v. NIMMER

Cite as 300 Neb. 906

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. John C. Nimmer, responde

___ N.W.2d ___

Filed August 31, 2018. No. S-17-111.

1. Disciplinary Proceedings: Appeal and Error. 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.

2. ____: ____. In an attorney discipline proceeding, when a party takes 

exception to the referee’s report, the Nebraska Supreme Court conducts 

a trial de novo on the record, in which the court reaches a conclusion 

independent of the findings of the referee; provided, however, that 

where the credible evidence is in conflict on a material issue of fact, the 

court considers and may give weight to the fact that the referee heard 

and observed the witnesses and accepted one version of the facts rather 

than another.

3. Disciplinary Proceedings. Client trust accounts, in particular, are 

always open to review by the Counsel for Discipline.

4. Disciplinary Proceedings: Rules of the Supreme Court: Time. An 

attorney’s failure to preserve client trust account records does not provide an affirmative defense to charges of impermissible commingling, 

nor does the 5-year preservation rule under Neb. Ct. R. of Prof. Cond. 

§ 3-501.15 constrain or limit the Counsel for Discipline’s investigative 

or prosecutorial duties.

5. Disciplinary Proceedings: Time. There is no time limitation on the 

acts or omissions that can give rise to attorney discipline for violating 

the Nebraska Rules of Professional Conduct, the attorney’s oath, or the 

provisions of Nebraska’s disciplinary rules.

6. Disciplinary Proceedings: Attorneys at Law. Attorneys licensed to 

practice law in the State of Nebraska agree to operate under the supervision of the office of the Counsel for Discipline.

Nebraska Supreme Court Online Library

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

10/05/2018 08:13 AM CDT
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7. ____: ____. A license to practice law confers no vested right, but is a 

conditional privilege, revocable for cause.

8. ____: ____. 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.

9. Disciplinary Proceedings. Violation of the standards set forth in 

the disciplinary rules must be established by clear and convincing 

evidence.

10. Disciplinary Proceedings: Rules of the Supreme Court. Collectively, 

subsections (a) and (b) of Neb. Ct. R. of Prof. Cond. § 3-501.15 prohibit 

the commingling of client funds with an attorney’s personal funds.

11. Disciplinary Proceedings. Generally speaking, an attorney violates the 

rule against commingling when the funds of the client are 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.

12. Disciplinary Proceedings: Proof: Circumstantial Evidence. 

Disciplinary violations can be proved by circumstantial evidence.

13. Disciplinary Proceedings: Attorneys at Law. In the context of attorney discipline cases, the Nebraska Supreme Court has repeatedly recognized the ancient maxim that ignorance of the law is no excuse. It is a 

maxim sanctioned by centuries of experience and it applies with even 

greater emphasis to an attorney at law who is expected to be learned in 

the law.

14. Disciplinary Proceedings. 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. ____. 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 

respondent generally, and (6) the respondent’s present or future fitness 

to continue in the practice of law.

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

particular facts and circumstances.

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

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

19. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb. 

Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more 

of the following disciplinary sanctions: (1) disbarment; (2) suspension; 

(3) probation, in lieu of or subsequent to suspension; (4) censure and 

reprimand; or (5) temporary suspension.

20. Disciplinary Proceedings. 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.

21. ____. 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.

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

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

23. ____. An attorney’s admission of responsibility for his or her actions 

reflects positively upon his or her attitude and character and is to be 

considered in determining the appropriate discipline.

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

Cumulative acts of misconduct can, and often do, lead to disbarment.

25. Disciplinary Proceedings: Words and Phrases. In the context of 

attorney disciplinary proceedings, misappropriation is any unauthorized use of client funds entrusted to an attorney, including not only 

stealing, but also unauthorized temporary use for the attorney’s own 

purpose, whether or not the attorney derives any personal gain or benefit therefrom.

26. Disciplinary Proceedings. Lack of financial harm to clients is not a 

mitigating factor in disciplinary proceedings where an attorney has commingled client and personal funds.

27. ____. Absent mitigating circumstances, disbarment is the appropriate 

discipline in cases of misappropriation or commingling of client funds.

28. Disciplinary Proceedings: Presumptions. Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where they are extraordinary and substantially outweigh any 

aggravating circumstances.

Original action. Judgment of disbarment.

William F. Austin, Special Prosecutor, of Blake & Austin 

Law Firm, L.L.P., for relator.
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John C. Nimmer, pro se.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, F

Papik, JJ., and Dobrovolny, District Jud

Per Curiam

On February 1, 2017, the Counsel for Discipline of the 

Nebraska Supreme Court filed formal charges against John 

C. Nimmer, alleging he violated Neb. Ct. R. of Prof. Cond. 

§§ 3-501.15 and 3-508.4 (rev. 2016) and his oath of office as 

an attorney licensed to practice in Nebraska1 by commingling 

personal funds with client trust account funds. This court 

appointed a referee who held an evidentiary hearing and then 

filed a report finding Nimmer had violated the disciplinary 

rules by depositing personal funds into his client trust account 

and using his client trust account to pay personal expenses. The 

referee recommended a 1-year suspension followed by a 2-year 

period of probation. Nimmer filed an exception to the referee’s 

report, challenging both the finding that he violated the disciplinary rules and the recommended sanction.

We find by clear and convincing evidence that Nimmer 

commingled client funds with personal funds, in violation of 

§§ 3-501.15 and 3-508.4 of the Nebraska Rules of Professional 

Conduct and his oath of office. Furthermore, we conclude on 

this record that the appropriate sanction for Nimmer’s misconduct is disbarment.

I. BACKGROUND

Nimmer was admitted to the practice of law in the State of 

Nebraska in 1993, and since that time has practiced primarily 

in Omaha and Bellevue, Nebraska. In 2004, Nimmer opened 

a client trust account at an Omaha area bank. The manner in 

which Nimmer has used that client trust account is the central 

issue in this disciplinary proceeding.

1 See Neb. Rev. Stat. § 7-104 (Reissue 2012).
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1. Grievance and Invest

In a letter dated March 11, 2016, the enforcement division 

of the U.S. Securities and Exchange Commission (SEC) notified the Counsel for Discipline of “possible professional misconduct” by Nimmer. The SEC had subpoenaed records from 

Nimmer’s client trust account in connection with an unrelated 

investigation and reported that its “review of Nimmer’s trust 

account transactions revealed that he wrote numerous checks 

for personal expenses, ranging from rent and child support to 

dog boarding and landscaping fees.” On March 18, the Counsel 

for Discipline notified Nimmer that he was the subject of an 

investigation and provided him a copy of the grievance.2

On June 8, 2016, the Counsel for Discipline provided Nimmer 

with copies of the bank records subpoenaed by the SEC and 

asked him to explain several checks written on his client trust 

account that did not appear to be client related. Nimmer was 

also asked to explain a $10,000 check from his mother with 

the memorandum notation “loan” which had been deposited 

into his client trust account. Nimmer declined, at the time, to 

answer the questions posed by the Counsel for Discipline.

The Counsel for Discipline then subpoenaed Nimmer’s client trust account records directly from the bank. Through two 

subpoenas, records were obtained for the time period from 

January 1, 2006, through September 1, 2016. After reviewing 

these records, the Counsel for Discipline determined there were 

reasonable grounds for discipline, and thus reduced the SEC’s 

grievance to a complaint and forwarded it to the Committee on 

Inquiry of the Fourth Judicial District.3 Thereafter, the inquiry 

panel found reasonable grounds for discipline and determined 

it would be in the public’s interest to file formal charges.4

2 See Neb. Ct. R. § 3-309(D) (rev. 2011).

3 See § 3-309(G).

4 See § 3-309(H)(4).
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2. Formal Charg

On February 1, 2017, the Counsel for Discipline filed formal charges against Nimmer. It alleged that between January 

2006 and February 2016, Nimmer wrote personal checks on 

his client trust account to 29 different businesses, individuals, 

and organizations. Additionally, it alleged that on December 

20, 2007, Nimmer deposited a $10,000 check from his mother 

issued to him with the notation “loan” into his client trust 

account. The formal charges alleged that by using his client 

trust account in this fashion, Nimmer commingled his personal funds with client funds and thereby violated his oath 

of office as an attorney licensed to practice in Nebraska5 and 

§ 3-501.15, which provides in part:

(a) A lawyer shall 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. 

Funds shall be kept in a separate account maintained 

in the state where the lawyer’s office is situated. Other 

property shall be identified as such and appropriately 

safeguarded. Complete records of such account funds 

and other property shall be kept by the lawyer and shall 

be preserved for a period of 5 years after termination of 

the representation.

(b) A lawyer may deposit the lawyer’s own funds in a 

client trust account for the sole purpose of paying bank 

service charges on that account, but only in an amount 

necessary for that purpose.

The formal charges also alleged Nimmer’s actions violated 

§ 3-508.4, which provides in relevant part that it is professional 

misconduct for a lawyer to “violate or attempt to violate the 

Rules of Professional Conduct.”6

5 See § 7-104.

6 § 3-508.4(a).
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3. Nimmer Moves t

Dismiss and Re

Nimmer filed a motion to dismiss the formal charges, alleging the Counsel for Discipline “is part of the Nebraska judicial 

branch under the direct supervision of this Court, which violates separation of powers, which violates constitutional due 

process, which in turn negates [the Counsel for Discipline] 

from having standing to have filed the Formal Charges, thereby 

constituting a lack of subject matter jurisdiction.” This court 

overruled Nimmer’s motion to dismiss as meritless.7

Nimmer also moved to recuse the Counsel for Discipline, 

alleging he had a conflict of interest because Nimmer planned 

to call him as a necessary fact witness. We overruled his 

motion to recuse, but determined it was prudent under the circumstances to appoint a special prosecutor.

4. Nimmer Files Answer

Second Motion to D

After his motion to dismiss was overruled, Nimmer filed 

a verified answer to the formal charges. His answer admitted 

some of the factual allegations in the formal charges, but generally denied that his conduct amounted to commingling in violation of the disciplinary rules. Additionally, Nimmer’s answer 

raised several affirmative defenses which will be addressed 

later in this opinion.

Nimmer also filed a second motion to dismiss, this time 

asking that the disciplinary proceeding be dismissed without 

prejudice due to alleged procedural errors predating the filing 

of the formal charges. This court found the motion was meritless and overruled it.

7 See, e.g., Noffsinger v. Nebraska State Bar Assn., 261 Neb. 184, 622 

N.W.2d 620 (2001) (matters regarding admission, suspension, discipline 

and disbarment of attorneys rest exclusively with Nebraska Supreme 

Court; in exercising its inherent power to regulate bar, court uses Counsel 

for Discipline to investigate allegations of misconduct and to prepare, file, 

and dismiss charges of misconduct against attorneys).
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5. Nimmer Seeks to Exclude Cl

Trust Account 

Nimmer filed “Motions to Quash Subpoenas and Exclude 

Evidence,” seeking to prevent his client trust account records 

from being offered at the disciplinary hearing. He argued 

the records had been obtained improperly and suggested 

the SEC had violated federal privacy laws when it provided 

his trust account records to the Counsel for Discipline in 

connection with the grievance. Nimmer acknowledged that 

after receiving the grievance, the Counsel for Discipline 

independently subpoenaed the trust account records as part 

of the disciplinary investigation.8 Nimmer did not claim 

those subpoenas were unreasonable or oppressive,9 but argued 

he did not have an opportunity to object and thus asked 

that all records produced in response to those subpoenas be 

excluded.

Additionally, Nimmer asked that any client trust account 

records more than 5 years old be excluded even if more 

recent records were admitted. In support, Nimmer relied on 

§ 3-501.15(a), which requires attorneys to maintain complete 

records of client property for 5 years after termination of 

the representation. Nimmer claimed that because he had not 

retained any client records predating 2011, the Counsel for 

Discipline should be prevented from offering any subpoenaed 

trust account records for that period.

The referee found no merit to Nimmer’s arguments for 

exclusion of the subpoenaed trust account records and overruled the motions.

6. Evidentiary He

On December 4, 2017, an evidentiary hearing was held on 

the formal charges. Nimmer represented himself and was the 

only witness to testify.

8 See Neb. Ct. R. § 3-317(A).

9 See § 3-317(D).
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(a) Exhibits

The special prosecutor introduced, and the referee received, 

Nimmer’s client trust account records from 2006 through 

2016. Nimmer did not dispute the veracity of those records 

and instead stated, “I’ll concede every transaction in this 

exhibit is a bona fide transaction. Whatever the notations say, 

they say. . . . [T]he exhibit speaks for itself.”

The special prosecutor also introduced, and the referee 

received, a record of a prior attorney disciplinary proceeding 

involving Nimmer. In 2013, the Counsel for Discipline alleged 

Nimmer had received $12,500 from a client to deliver “qualified investors” as advertised on his website and then failed to 

provide such services.10 Nimmer’s actions were alleged to have 

violated Neb. Ct. R. Prof. Cond. § 3-507.1 and § 3-508.4(a).11

Nimmer entered a conditional admission to the 2013 charges 

and requested a public reprimand.12 This court accepted his 

conditional admission and issued a public reprimand.13

(b) Nimmer’s Testimony

As stated, at the hearing, Nimmer did not dispute the 

veracity of the client trust account records or the accuracy 

of the notations on various checks deposited into and written 

on the client trust account. For instance, Nimmer admitted 

writing numerous checks for personal expenses from his client trust account over the course of several years, including 

checks for rent, checks to his church, checks to his mother, 

and checks for his daughter’s summer camp. He also admitted 

his mother had given him thousands of dollars that he deposited into his client trust account. Nimmer characterized these 

deposits as “credit line[s],” rather than “loan[s]” from his 

mother, but he admitted the funds were placed into his client 

10 State ex rel. Counsel for Dis. v. Nimmer, 286 Neb. 107, 834 N.W.2d 776 

(2013).

11 Id.

12 Id.

13 Id.
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trust account and were available for his personal use “or hers, 

if she asked.”

Nimmer also admitted that on several occasions, he transferred funds from his personal checking account into his client 

trust account. He admitted these funds were not transferred to 

pay bank service charges and were not connected to the representation of any client.

(c) Nimmer’s Affirmative 

Defenses

While Nimmer did not vigorously contest the documentary 

evidence detailing the non-client-related funds going into and 

out of his client trust account, he did argue that this activity 

did not amount to unlawful commingling. In support of this 

contention, Nimmer advanced three basic arguments, which he 

framed as affirmative defenses. First, he argued that writing 

personal checks directly from his client trust account was not 

a violation of § 3-501.15, because it was possible he was writing those checks on earned fees. Second, he argued § 3-501.15 

does not prohibit attorneys from depositing non-client-related 

funds into a client trust account. And third, he argued that even 

if the referee found he had violated the rules against commingling personal and client funds, he acted in “good faith” and 

thus should be exempt from discipline. He makes these same 

arguments in his briefing to this court, and we address them 

later in our analysis.

7. Referee’s Report 

Recommenda

On February, 13, 2018, the referee filed his written report. 

The referee found, summarized, that from January 1, 2006, 

through September 1, 2016, Nimmer impermissibly deposited 

personal funds into his client trust account in amounts more 

than necessary to pay bank service charges on that account and 

used his client trust account to pay personal expenses. It is not 

necessary to recite all of the referee’s factual findings, but the 

following are representative:
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• On or about December 20, 2007, Nimmer deposited a $10,000 

check from his mother with the notation “‘loan’” into his client trust account. Nimmer admitted these funds were for his 

personal use, but were also available to pay his mother’s 

personal expenses if she asked. In that regard, Nimmer wrote 

a check from the client trust account in the amount of $4,775 

to a construction company for repairs to his mother’s house, 

and wrote several checks to his mother for a car he was purchasing from her. None of these checks or transactions were 

connected to representation of a client.

• On or about June 25, 2013, Nimmer deposited two checks 

totaling $10,855.18 into his client trust account. The checks 

had been made payable to Nimmer’s mother, and she endorsed 

both checks over to him. Nimmer described this deposit as 

a “‘credit line’” from his mother. He admitted the funds 

were not connected to the representation of any client, but, 

rather, were intended to be used by Nimmer for his personal 

expenses if necessary.

• On multiple occasions in 2014 and 2016, Nimmer transferred 

money from his personal checking account into his attorney 

trust account. Nimmer admitted these transfers were not to 

pay bank fees and were not in connection with any client representation, but he claimed the transfers were “for the benefit 

of” his daughter.

• Nimmer wrote approximately 35 checks on his client 

trust account to his church, with notations such as “dues,” 

“Almsgiving Fund,” “dinner tickets,” and “Food for Hungry 

Funds.” Nimmer admitted the notations on the checks were 

accurate and the payments were not made in connection with 

client representation.

• Nimmer wrote multiple checks over multiple years out of his 

client trust account to Camp St. Raphael. Nimmer admitted 

those checks were for his daughter’s summer camp and were 

not connected to any client representation.

• Nimmer wrote approximately 20 checks on his client trust 

account payable to the landlord of his Omaha law office 
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in the amount of either $1,750, $2,000, or some multiple 

thereof. Nimmer admitted these checks were “‘most probably’” for his rent.

Based on these and other factual findings, the referee concluded there was clear and convincing evidence Nimmer 

violated §§ 3-501.15(a) and (b) (safekeeping property) and 

3-508.4 (misconduct), and thereby violated his oath of office 

as a licensed attorney. The referee expressly rejected all of 

Nimmer’s affirmative defenses.

The referee also made a recommendation regarding an 

appropriate sanction. The referee analyzed each of the six factors outlined in State ex rel. Counsel for Dis. v. Jorgenson14

and found several aggravating factors, including that 

(1) Nimmer had been disciplined previously in 2013, (2) 

Nimmer’s misconduct in commingling client funds and personal funds went on for nearly a decade, and (3) Nimmer 

had written “a large number of checks” for personal expenses 

on his client trust account. The referee found as a mitigating factor that Nimmer had not “misappropriate[d] any client 

funds.” Ultimately, the referee recommended that Nimmer 

be (1) suspended from the practice of law for a period of 

1 year, (2) required to complete 6 credit hours of continuing legal education in the area of professional responsibility focused on law office management prior to reinstatement, and (3) placed on probation for 2 years during which 

time he must practice under the supervision of a licensed 

Nebraska attorney.

Nimmer timely filed a written exception to the referee’s 

report, the particulars of which we address below. The matter 

has been briefed and argued before this court15 and now is submitted for our determination on the questions of which, if any, 

14 State ex rel. Counsel for Dis. v. Jorgenson, 298 Neb. 855, 906 N.W.2d 43 

(2018).

15 See Neb. Ct. R. § 3-310(M) (rev. 2014).
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Nebraska Rules of Professional Conduct were violated and the 

appropriate sanction for any such violation.16

II. STANDARD OF REVIEW

[1] 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.17

III. ANALYSIS

1. Nimmer’s Excepti

to Referee’s Repo

Nimmer’s written exceptions challenge nearly every aspect 

of the referee’s report. Consolidated and summarized, Nimmer 

takes exception to the referee’s (1) evidentiary rulings, including admitting the subpoenaed records of Nimmer’s client trust 

account; (2) finding clear and convincing evidence of disciplinary violations; (3) rejecting Nimmer’s affirmative defenses; 

and (4) recommending a 1-year suspension.

Nimmer’s brief addresses these exceptions as “assignments 

of error” made by the referee, but we decline to address them 

framed as such, because we do not sit in this matter as an 

appellate court reviewing the record for error. Rather, proceedings for attorney discipline are original proceedings before the 

Nebraska Supreme Court.18

In such original proceedings, when an answer raises an issue 

of fact requiring a hearing, we refer the matter to a referee to 

16 State ex rel. Counsel for Dis. v. Herzog, 281 Neb. 816, 805 N.W.2d 632 

(2011). See, also, State ex rel. Counsel for Discipline v. Gast, 296 Neb. 687, 

696-97, 896 N.W.2d 583, 591 (2017) (“[t]he basic issues in a disciplinary 

proceeding against an attorney are whether the Nebraska Supreme Court 

should impose discipline and, if so, the appropriate discipline under the 

circumstances”).

17 State ex rel. Counsel for Dis. v. Trembly, ante p. 195, 912 N.W.2d 764 

(2018).

18 § 3-310(C).
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oversee discovery and hold a hearing.19 The referee observes 

the rules of evidence, discovery, and motion practice applicable 

in civil actions in Nebraska district courts and is required to 

make a written report stating his or her findings of fact and 

recommendations.20 The referee’s report is transmitted to this 

court along with the record of proceedings,21 and if no written 

exception is taken, this court may, in its discretion, accept the 

referees’ findings as final and conclusive.22

[2] But where, as here, a party takes exception to the referee’s report, this court conducts a trial de novo on the record 

in which we reach a conclusion independent of the findings 

of the referee; provided, however, that where the credible 

evidence is in conflict on a material issue of fact, we consider and may give weight to the fact that the referee heard 

and observed the witnesses and accepted one version of the 

facts rather than another.23 Because of this standard, Nimmer’s 

claims of errors by the referee are simply “immaterial to our 

review.”24

We thus proceed to consider Nimmer’s exceptions, but we 

necessarily limit our consideration to the evidence properly 

admitted, and we reach our own conclusion, independent of the 

referee’s findings and recommendation, on the central questions of whether any Nebraska Rules of Professional Conduct 

have been violated, and the appropriate sanction for any such 

violation.25

For the sake of completeness, we also note that Nimmer’s 

brief assigns error to this court’s prior decisions overruling his 

19 See § 3-310(J).

20 Id.

21 Id.

22 § 3-310(L).

23 Herzog, supra note 16.

24 Id. at 822, 805 N.W.2d at 637.

25 Id.
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two motions to dismiss this disciplinary proceeding. We construe these assignments as requests for this court to exercise 

its inherent authority to reconsider those decisions,26 and we 

decline to do so.

2. Nimmer’s Client Trust A

Records Were Properly Adm

Throughout the proceedings before the referee, and in his 

briefing and oral argument before this court, Nimmer has 

repeatedly challenged the admissibility of his client trust 

account records, particularly those predating 2011. The referee 

found all of Nimmer’s arguments in this regard to be without 

merit. We do too.

[3] With exceptions not relevant here, all lawyers admitted to practice law on active status with an office in Nebraska 

must have and maintain a client trust account in an approved 

financial institution.27 Additionally, the Counsel for Discipline 

has the broad power to “audit at any time any trust account 

required by these rules.”28 And we have recognized that client 

trust accounts, in particular, are always open to review by the 

Counsel for Discipline.29 The Counsel for Discipline has broad 

subpoena power for investigative purposes,30 and in this case, 

the Counsel for Discipline followed the appropriate procedure 

in subpoenaing Nimmer’s client trust account records.31

Nimmer also argues that even if his client trust account 

records were properly obtained, all such records before 2011 

26 See Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 

(2018) (appellate court has inherent power to reconsider order or ruling 

until divested of jurisdiction).

27 Neb. Ct. R. § 3-902.

28 Neb. Ct. R. § 3-906.

29 State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214 

(2013).

30 § 3-317(A).

31 § 3-317(B).
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should nevertheless have been excluded from evidence. He 

reasons that § 3-501.15(a) requires lawyers to preserve records 

of client trust accounts “for a period of 5 years after termination of the representation.” Nimmer maintains that in reliance 

on this rule, he did not save client subsidiary ledgers prior to 

2011; thus, he argues it would be “unfair” to allow disciplinary 

proceedings against him based on allegations of commingling 

more than 5 years ago.

[4,5] Nimmer’s reliance on the document preservation 

requirement in § 3-501.15(a) is misplaced. An attorney’s failure to preserve client trust account records does not provide an 

affirmative defense to charges of impermissible commingling, 

nor does the 5-year preservation rule constrain or limit the 

Counsel for Discipline’s investigative or prosecutorial duties. 

There is no time limitation on the acts or omissions that can 

give rise to attorney discipline for violating the Nebraska 

Rules of Professional Conduct, the attorney’s oath, or the provisions of Nebraska’s disciplinary rules.32

Moreover, Nimmer repeatedly points to the document preservation rule as the reason he is unable to adequately explain 

the personal funds going into and out of his client trust 

account. But we have difficulty with his suggestion that client ledgers would reveal anything of relevance, given the 

nature of the charges here. The alleged disciplinary violations stem from Nimmer’s impermissible use of his client 

trust account as a personal checking account; such use, by 

its nature, would not have been documented in client ledgers. 

And it is telling that despite the availability of his post-2011 

client ledgers, Nimmer points to nothing in those records that 

adequately explains the violations found to have occurred during that timeframe.

We conclude that all of Nimmer’s client trust account 

records from the period from 2006 through 2016 were properly obtained by the Counsel for Discipline, were provided to 

32 See Neb. Ct. R. § 3-303.
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Nimmer well in advance of the hearing, were properly admitted into evidence by the referee, and are properly before this 

court for consideration.

3. General Principl

Disciplinary Proc

[6-9] Attorneys licensed to practice law in the State of 

Nebraska agree to operate under the supervision of the office 

of the Counsel for Discipline.33 A license to practice law confers no vested right, but is a conditional privilege, revocable 

for cause.34 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.35 Violation of those standards, which are 

set forth in the disciplinary rules, must be established by clear 

and convincing evidence.36

4. There Is Clear and Co

Evidence of Viola

Our de novo review shows clear and convincing evidence 

that Nimmer violated § 3-501.15(a) and (b), and thereby violated § 3-508.4(a) and his oath of office under § 7-104.

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.” This rule requires that client “[f]unds shall be kept 

in a separate account maintained in the state where the lawyer’s office is situated.”

Section 3-501.15(b) recognizes one circumstance under 

which it is permissible for an attorney to deposit his or her 

own funds into a client trust account. “A lawyer may deposit 

33 Crawford, supra note 29.

34 Id.

35 Id.

36 Id.
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the lawyer’s own funds in a client trust account for the sole 

purpose of paying bank service charges on that account, but 

only in an amount necessary for that purpose.”

[10,11] Collectively, subsections (a) and (b) of § 3-501.15 

prohibit the commingling of client funds with an attorney’s 

personal funds. Generally speaking, an attorney violates the 

rule against commingling when the funds of the client are 

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.37

In State ex rel. Counsel for Dis. v. Davis,

38 we found 

clear and convincing evidence of commingling in violation of 

§ 3-501.15(a) and (b) when the attorney used her client trust 

account as both a business account and a personal checking 

account. We reach the same conclusion in the present case.

Here, the record is replete with evidence that Nimmer used 

his client trust account as a personal checking account. From 

2006 through 2016, Nimmer deposited thousands of dollars 

in personal funds into his client trust account. Some of these 

personal funds were from his mother and some were transferred directly from his personal checking account, but none 

were for the sole purpose of paying bank service charges on 

the account.

Nimmer regularly wrote checks on his client trust account 

for personal and business expenses. Much of this evidence 

was admitted by Nimmer and has been summarized in the 

referee’s findings recited previously. But in addition to the 

referee’s findings, our de novo review reveals considerable 

circumstantial evidence that Nimmer’s use of his client trust 

account as a personal checking account was more pervasive 

than the referee’s report would suggest. Given the volume 

37 Annot., 94 A.L.R.3d 846, § 3 (1979 & Supp. 2018).

38 State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d 928 

(2008). 
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of that circumstantial evidence, we cite a few representative examples.

From 2005 through 2009, Nimmer wrote 19 checks on his 

client trust account to the Omaha Public Power District. He 

testified these checks were “more likely than not” his utility 

payments, but claimed that without his pre-2011 subsidiary 

trust account records, he could not be certain.

From 2006 through 2009, Nimmer wrote 27 checks on his 

client trust account to “Cox Communications.” Nimmer testified that Cox Communications was his current Internet service 

provider and was not a client of his, but he could not remember 

whether he had the same provider at the time the checks were 

written and did not want to “venture a guess.”

Nimmer wrote a check to his ex-wife on the client trust 

account with the notation “Jan./Feb. health ins.” Nimmer testified this check “may have” been a payment to his ex-wife for 

his daughter’s health insurance, but he did not “remember for 

sure.” Additionally, Nimmer wrote at least 22 other checks to 

his ex-wife, many with notations such as “camp,” “daycamp,” 

“Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted 

these checks were not related to any client representation, 

but when asked if the checks represented personal payments 

on behalf of his daughter, Nimmer replied, “I’m not going to 

characterize them that way.” Nimmer himself offered several 

exhibits documenting payments he made from his client trust 

account in 2011, 2013, 2014, and 2016 for his daughter’s summer camp.

Nimmer wrote approximately 15 checks from his client trust 

account to “Cricket.” Nimmer testified, “I think Cricket is a 

cell phone provider,” but he did not recall why he had written 

the checks.

In 2007, Nimmer wrote a check from his client trust account 

to the Nebraska State Bar Association in the amount of $320. 

When asked whether he was paying his bar dues out of his client trust account, Nimmer replied, “There is no notation that 

allows me to say for sure.”
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[12] Disciplinary violations can be proved by circumstantial 

evidence,39 and in this case, we find considerable direct and 

circumstantial evidence which provides clear and convincing 

proof that Nimmer commingled client and personal funds in 

his client trust account and used his client trust account as 

a personal checking account. This misuse of his client trust 

account violated § 3-501.15(a) and (b). And by doing so, 

Nimmer also violated § 3-508.4(a) and his oath of office under 

§ 7-104.

5. No Merit to Nimmer’

Affirmative Defen

Nimmer does not deny depositing non-client-related funds 

into his client trust account, nor does he deny paying personal 

expenses for himself, his mother, and his daughter out of his 

client trust account. Instead, Nimmer raises several arguments, 

framed as affirmative defenses, which he contends preclude a 

finding that he used his client trust account in violation of the 

Nebraska Rules of Professional Conduct. We address his arguments below, and find all to be meritless.

(a) Earned Fees

Nimmer’s verified answer alleged “it is possible though 

unlikely [I] may have paid some personal expenses from fees 

as earned—though without recourse to subsidiary ledgers it is 

impossible to link specific transactions to specifically earned 

fees.” Before the referee and in his briefing to this court, 

Nimmer argues that it is possible he was writing personal 

checks on earned fees. He offered no contemporaneous billings or other credible evidence to support such a theory. And 

even assuming that some of the funds in Nimmer’s client trust 

account may have represented earned fees, Nimmer did not 

withdraw legal fees and expenses from the client trust account 

39 Crawford, supra note 29 (demonstrating that even evidence which is 

largely circumstantial, disputed, and complicated can nonetheless be clear 

and convincing).
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as they were earned to place them in an operating account.40

Instead, he wrote checks for personal expenses directly from 

his client trust account and now attempts to defend his actions 

by suggesting it is possible he was using earned fees. We reject 

this affirmative defense as speculative and unproven, and even 

if Nimmer had offered sufficient proof of earned fees, it would 

not have excused or explained his commingling.

(b) “Third-Party” Funds

Nimmer argues he did not violate § 3-501.15 by depositing personal funds into his client trust account, because, he 

contends, any funds deposited were not his personal funds, 

but instead belonged to nonclient “third parties,” such as his 

daughter and his mother. His attempt to characterize personal 

loans from his mother and funds from his personal checking 

account as anything other than his “own funds” is disingenuous. But even more troubling is Nimmer’s proffered interpretation of § 3-501.15(a).

In Nimmer’s answer, he “affirmatively avers holding third 

party funds in an attorney trust account not in connection with 

legal representation is not prohibited.” In his arguments to this 

court, Nimmer contends that § 3-501.15(a) permits an attorney 

to deposit “third party” funds into a client trust account, even 

if such funds are unconnected to representing a client. We disagree, and reject Nimmer’s position as patently contrary to the 

plain language of § 3-501.15(a).

Section 3-501.15(a) plainly requires that property of “clients” and property of “third persons . . . in a lawyer’s possession in connection with a representation” shall be kept separate 

from the lawyer’s own property and that all “[f]unds” must be 

kept “in a separate account” and all “[o]ther property” must be 

“identified as such and appropriately safeguarded.”

While this rule references “third persons,” it does so only in 

the context of funds in the lawyer’s possession “in connection 

40 See § 3-501.15(c).
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with a [client] representation.” Additionally, the client trust 

account here was an interest-bearing trust account subject to 

additional rules found in chapter 3, article 9, of this court’s 

rules. Those rules make clear that such accounts are for “the 

deposit of funds of clients”41 and not, as Nimmer suggests, for 

holding “third-party” funds that have no connection to the representation of a client.

Nimmer’s proposed interpretation of § 3-501.15(a) borders 

on frivolous and provides no defense to commingling.

(c) No “[G]ood [F]aith” Defense 

to Commingling

Finally, Nimmer argues that if we determine his use of 

the client trust account violated § 3-501.15(a) and (b) by 

commingling personal and client funds, then a “good faith” 

defense should apply to protect him from discipline, because, 

he contends, the commingling provisions of § 3-501.15(a) 

are not sufficiently clear. The referee found that the “good 

faith” defense, sometimes relied upon in defending legal 

malpractice cases, did not apply to protect Nimmer from 

the consequences of violating clear disciplinary rules prohibiting the commingling of client and personal funds. 

We agree.

Although we have recognized a “good faith” defense to 

civil liability in legal malpractice claims when the law is not 

well settled,42 we have not applied such a defense in the attorney discipline context, and for good reason. It has no proper 

application.

[13] In the context of attorney discipline cases, “‘[w]e 

have repeatedly recognized the ancient maxim that ignorance 

of the law is no excuse. It is a maxim sanctioned by centuries of experience [and it] applies with even greater emphasis 

41 See § 3-902.

42 See Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 578 N.W.2d 446 

(1998).
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to an attorney at law who is expected to be learned in 

the law.’”43

[14] Simply put, 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.44 The District of Columbia 

Court of Appeals explained it well: “If a failure to understand 

the most central Rules of Professional Conduct could be an 

acceptable defense for a charged violation, even in cases of 

good faith mistake, the public’s confidence in the bar and, 

more importantly, the public’s protection against lawyer overreaching would diminish considerably.”45

We agree with this reasoning. Nimmer cannot avoid disciplinary sanctions for violating the fundamental rules prohibiting commingling by relying on a “good faith” defense.

6. Appropriate San

Having concluded Nimmer violated the Nebraska Rules of 

Professional Conduct and his oath of office by commingling 

client and personal funds, we must determine the appropriate sanction.

[15,16] 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.46 Each attorney discipline 

43 State ex rel. Nebraska State Bar Assn. v. Hollstein, 202 Neb. 40, 58, 274 

N.W.2d 508, 518 (1979).

44 94 A.L.R.3d, supra note 37, § 10 (and cases cited therein).

45 In re Smith, 817 A.2d 196, 202 (D.C. 2003).

46 Trembly, supra note 17.
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case must be evaluated in light of its particular facts and 

circumstances.47

[17,18] 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.48 The propriety 

of a sanction must be considered with reference to the sanctions imposed in prior similar cases.49

[19] 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 

(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[.]”

(a) Nature of Offense

[20] 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.50 We have 

recognized:

The prohibition against commingling of funds is a salutary rule adopted “‘to provide against the probability in 

some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the 

loss of clients’ money. Moral turpitude is not necessarily 

involved in the commingling of a client’s money with an 

attorney’s own money if the client’s money is not endangered by such procedure and is always available to him. 

However, inherently there is danger in such practice for 

47 Id.

48 Id.

49 Id.

50 State ex rel. NSBA v. Statmore, 218 Neb. 138, 352 N.W.2d 875 (1984).
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frequently unforeseen circumstances arise jeopardizing 

the safety of the client’s funds, and as far as the client 

is concerned the result is the same whether his money is 

deliberately misappropriated by an attorney or is unintentionally lost by circumstances beyond the control of 

the attorney.’”51

Even when the client suffers no loss, commingling client 

funds with personal funds is not a trivial or technical rule 

violation.52

(b) Need for Deterring Others

It has been suggested that violating the rule against commingling is one of the most frequent bases for disciplinary 

action against attorneys.53 As such, we agree with the referee 

that the need to send a clear and strong message deterring 

others from commingling client and personal funds, and from 

using client trust accounts as personal checking accounts, is 

paramount. It has been observed: “‘In most jurisdictions, disciplinary authorities treat violations of the rule against commingling trust funds and personal funds very seriously . . . even 

where the client or third party suffers no loss, harsh sanctions 

usually follow as a prophylactic warning that com[m]ingling 

cannot be tolerated.’”54

(c) Reputation of Bar

The referee correctly observed that misuse of client trust 

accounts, 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 generally.

51 Id. at 142, 352 N.W.2d at 878.

52 See Disciplinary Proceedings Against Mulligan, 365 Wis. 2d 43, 870 

N.W.2d 233 (2015).

53 94 A.L.R.3d, supra note 37, § 2.

54 See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis. 

2d at 61-62, 870 N.W.2d at 242.
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(d) Protection of Public

[21,22] 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.55

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

the bar.56

(e) Attitude of Respondent

The referee found that although Nimmer had not admitted his violations, he conceded that “he may have exercised 

poor judgment.” The referee thus concluded, “It appears that 

[Nimmer] is open to the need to seriously correct his practices 

regarding his trust account management, but a period of suspension is necessary to impress upon him the critical need to 

do so.”

[23] An attorney’s admission of responsibility for his or 

her actions reflects positively upon his or her attitude and 

character and is to be considered in determining the appropriate discipline.57 But while we consider and give weight to the 

referee’s observations, our de novo review of the record suggests that, rather than displaying remorse for his actions and 

an openness to changing the behavior that prompted this disciplinary proceeding, Nimmer has generally refused to acknowledge the wrongful nature of his conduct in commingling client 

and personal funds.

Nimmer has challenged this court’s authority to discipline 

him and repeatedly tried to prevent consideration and review 

of his client trust account records. While lawyers facing disciplinary charges should not be discouraged in any way from 

mounting a vigorous defense, some of the legal positions 

55 Trembly, supra note 17.

56 Id.

57 State ex rel. Counsel for Dis. v. Petersen, 271 Neb. 262, 710 N.W.2d 646 

(2006).
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advanced by Nimmer in this proceeding border on the frivolous and reflect an attitude which bears negatively on his 

willingness to conform his conduct to the Nebraska Rules of 

Professional Conduct.

(f) Present or Future Fitness 

to Practice Law

The referee observed that Nimmer “conducted himself during the proceedings appropriately and with knowledge of the 

law and procedure” and thus found “no evidence to suggest 

that Nimmer is not fit to practice law.” Although we consider and give weight to the fact that the referee heard and 

observed Nimmer’s conduct during these proceedings, we 

cannot ignore that Nimmer’s actions in using his client trust 

account as a personal checking account demonstrated continued indifference to the fundamental rule against commingling, 

which we conclude bears negatively on his future fitness to 

practice law.

(g) Aggravating Factors

We agree with the referee that the record supports several 

aggravating factors. Nimmer has already been publicly reprimanded by this court for a violation of the Nebraska Rules of 

Professional Conduct in a prior disciplinary proceeding.58

[24] Moreover, the extended period of time over which 

Nimmer engaged in commingling, and the large number of 

personal checks Nimmer wrote on his client trust account, 

are additional aggravating factors. Nimmer did more than 

commingle on one or two occasions—he engaged in a pattern of conduct that spanned nearly a decade and involved 

hundreds of checks totaling thousands of dollars. Because 

cumulative acts of attorney misconduct are distinguishable 

from isolated incidents, they justify more serious sanctions.59

58 See Nimmer, supra note 10.

59 State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174 

(2012).
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Cumulative acts of misconduct can, and often do, lead to 

disbarment.60

(h) Mitigating Factors

[25] The referee found “the central mitigating fact in this 

case is that Nimmer did not misappropriate any client funds.” 

We have defined misappropriation as any unauthorized use of 

client funds entrusted to an attorney, including not only stealing, but also unauthorized temporary use for the attorney’s 

own purpose, whether or not the attorney derives any personal 

gain or benefit therefrom.61

Nimmer was not charged with misappropriation of client 

funds, but we do not agree this is a mitigating factor. We 

note that after the years of commingling that occurred here, 

it would be difficult to discern whether any client funds were 

misappropriated. Sometimes an attorney can “so inextricably 

com[m]ingle[] client and personal funds” in his or her trust 

account that “it is impossible to know which or whose funds 

were being used at any particular time.”62

[26] Here, we understand the referee’s observation that 

Nimmer “did not misappropriate any client funds” to mean 

the referee saw no evidence that Nimmer’s client trust account 

was overdrawn or that clients suffered documented financial 

loss. But we have been clear that lack of financial harm to clients is not a mitigating factor in commingling cases:

[A] lawyer’s poor accounting procedures and sloppy 

office management are not excuses or mitigating circumstances in reference to commingled funds. The fact that 

the client did not suffer any financial loss . . . does not 

provide a reason for imposing a less severe sanction.”63

60 Id.

61 Crawford, supra note 29.

62 See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis. 

2d at 63-64, 870 N.W.2d at 243.

63 Crawford, supra note 29, 285 Neb. at 365, 827 N.W.2d at 245.
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Fortunately, there was no evidence that Nimmer’s clients suffered a financial loss as a result of his commingling of funds. 

However, we must respectfully disagree with the referee that 

this should be considered a mitigating factor. And we see 

nothing in the record, or the briefing, that suggests any other 

mitigating factor.

(i) Other Cases

In State ex rel. Counsel for Dis. v. Davis,

64 we suspended 

an attorney for 1 year after finding by clear and convincing 

evidence that she used her client trust account as a business 

and personal checking account and failed to promptly deliver 

trust account funds to a client’s health care provider. That 

case, however, involved several mitigating factors including: the attorney suffered from depression and anxiety, the 

attorney was an alcoholic and agreed to undergo treatment, 

the attorney had no prior disciplinary actions, and the referee 

received multiple letters from the community attesting to the 

attorney’s good character and reputation.65

In State ex rel. NSBA v. Veith,

66 we disbarred an attorney after finding by clear and convincing evidence that he 

commingled, and misappropriated, client funds. In doing 

so, we disagreed with the referee’s recommended discipline 

of an 8-month suspension.67 And we found disbarment was 

appropriate even though the attorney had reimbursed his 

clients.68

In State ex rel. NSBA v. Malcom,

69 we disbarred an attorney after finding by clear and convincing evidence that he 

64 Davis, supra note 38.

65 Id.

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

67 Id.

68 Id.

69 State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).
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commingled and misappropriated client funds on 10 occasions. We explained that the attorney’s excuse that the misconduct was inadvertent did not overcome the presumption 

of disbarment.70

(j) Appropriate Sanction

[27,28] Absent mitigating circumstances, this court has 

repeatedly held that disbarment is the appropriate discipline 

in cases of misappropriation or commingling of client funds.71

Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where they 

are extraordinary and substantially outweigh any aggravating 

circumstances.72 In this case, we do not find any such mitigating factors.

For a period of nearly 10 years, Nimmer engaged in a pattern of commingling personal funds with client funds and 

using his client trust account as a personal checking account. 

His violations were serious, and there is no evidence of 

any mitigating factors in the record that explain or excuse 

his misconduct.

Nimmer has been disciplined for misconduct previously, and 

his prolonged and persistent violation of the rule against commingling reflects a general failure, or unwillingness, to fully 

comprehend the serious nature of his conduct. After balancing 

the relevant factors in comparison to other cases, and considering the need to protect the public, the need to deter others, the 

reputation of the bar as a whole, Nimmer’s fitness to practice 

law, and the aggravating circumstances, we conclude the only 

appropriate sanction here is disbarment.

70 Id.

71 See, e.g., 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); Crawford, supra note 29; State ex rel. NSBA v. 

Howze, 260 Neb. 547, 618 N.W.2d 663 (2000); Malcom, supra note 69.

72 Council, supra note 71.
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IV. CONCLUSION

There is clear and convincing evidence that Nimmer violated the Nebraska Rules of Professional Conduct and his oath 

of office by commingling client and personal funds. It is the 

judgment of this court that Nimmer is disbarred from the practice of law in the State of Nebraska, effective immediately. He 

is directed to comply with Neb. Ct. R. § 3-316 (rev. 2014), 

and upon failure to do so, he shall be subject to punishment 

for contempt of this court.

Judgment of disbarme