Nebraska Advance She

356 289 NEBRASKA REPORTS

None of the proposed allegations called into question 

Fernando-Granados’ fault or culpability. Therefore, we find 

that, given the great weight of the evidence against FernandoGranados, there was no ineffective assistance of counsel 

because there was no prejudice to Fernando-Granados’ case.

CONCLUSION

The trial court did not err in denying Fernando-Granados 

an evidentiary hearing because, given the great weight of the 

evidence against him, even finding the allegations true would 

not have been prejudicial to Fernando-Granados’ case.

Affirme

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator, 

Lenny W. Thebarge, Jr., resp

___ N.W.2d ___

Filed October 31, 2014. Nos. S-13-1001, S-14-128.

1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de 

novo on the record.

2. ____. Failure to answer formal charges subjects a respondent to judgment on the 

formal charges filed.

3. ____. Six factors are considered in determining whether and to what extent discipline should be imposed: (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 offender generally, and (6) the offender’s 

present or future fitness to continue in the practice of law.

4. ____. Cumulative acts of attorney misconduct are distinguishable from isolated 

incidents, therefore justifying more serious sanctions.

5. ____. Absent mitigating circumstances, disbarment is the appropriate discipline 

in cases of misappropriation or commingling of client funds.

6. ____. Neglect of client cases and failure to cooperate with the Counsel for 

Discipline are grounds for disbarment.

7. ____. Fabricating evidence with the intent to deceive the Counsel for Discipline 

interferes in a disciplinary investigation, which merits a severe sanction.

8. ____. In an attorney discipline proceeding, failure to regard the rules of professional conduct and failure to abide by one’s oath as an attorney are considered 

aggravating factors.

Original actions. Judgment of disbarment.
Nebraska Advance She

STATE EX REL. COUNSEL FOR DIS. v. THEBARGE 357

Cite as 289 Neb. 356

Kent L. Frobish and John W. Steele, Assistant Counsels for 

Discipline, for relator.

No appearance for respondent.

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

Miller-Lerman, and Cassel,

Per Curi

NATURE OF CASE

Lenny W. Thebarge, Jr. (Respondent), a member of the 

Nebraska State Bar Association, has been formally charged 

with violations of the Nebraska Rules of Professional Conduct 

and his oath of office as an attorney. Formal charges involved 

misappropriation of client funds, failure to communicate with 

clients, and obstruction of justice. We granted judgment on the 

pleadings, and we now determine the appropriate discipline 

for Respondent.

BACKGROUND

In 2011, Respondent was admitted to practice law in the 

State of Nebraska. At all times relevant to these proceedings 

Respondent was engaged in the private practice of law in 

Omaha, Nebraska.

Charges against Respondent are set forth below in detail. 

Respondent has not answered any of the formal charges against 

him, and therefore, judgment on the pleadings was entered.

Coun

In April 2012, Respondent was engaged in legal services with his client Jonathan Nelson. On August 28, 2012, 

Respondent received a check for $10,939.50 on behalf of 

Nelson. Respondent placed the check in his client trust fund 

account. Nelson says he never gave Respondent permission to 

apply this check to his outstanding bill, although Respondent 

claims he was authorized by Nelson to do so. However, 

on August 29, Respondent withdrew $1,700 from his client trust fund, leaving an account balance of only $9,989.50 

and leaving Respondent out of trust by $950 in regard to 

Nelson’s funds.
Nebraska Advance She

358 289 NEBRASKA REPORTS

In November 2012, Nelson filed a grievance with the 

Counsel for Discipline, claiming that Nelson had never been 

provided an accounting on the check received by Respondent. 

During the investigation, Respondent claimed he had a written 

fee agreement with Nelson, but failed to provide copies of the 

written fee agreement to the Counsel for Discipline.

Therefore, Respondent was charged with violating and 

was determined to have violated Neb. Ct. R. of Prof. Cond. 

§§ 3-501.15 (safekeeping property), 3-501.16 (declining or terminating representation), 3-508.1 (bar admission and disciplinary matters), and 3-508.4 (misconduct).

Coun

In October 2012, Respondent engaged in legal services for 

Kimberly Cabriales. Cabriales paid Respondent an advance 

fee of $300. Respondent deposited Cabriales’ check into his 

trust account. Prior to this deposit, Respondent’s client trust 

account had a zero balance. Immediately upon depositing 

Cabriales’ check, Respondent transferred $200 from the trust 

account to his own personal account, leaving a balance in 

the trust account of only $100. The next day, Respondent 

transferred the remaining $100 to another account owned 

by Respondent.

Cabriales filed a grievance with the Counsel for Discipline. 

In response to the grievance, Respondent submitted copies 

of four letters he claims he mailed to Cabriales in October, 

November, and December 2012. However, these letters were 

dated 2013. Cabriales denies ever having received any letters 

from Respondent, while Respondent claims that none of the 

letters were returned to him by the post office. Respondent 

refused the Counsel for Discipline’s request to have his computer examined by an expert to establish when the letters 

in question were actually created on Respondent’s computer. 

Therefore, it is assumed that the four letters were fabricated for 

purposes of the grievance filed by Cabriales.

Therefore, Respondent was charged with violating and 

was determined to have violated Neb. Ct. R. of Prof. Cond. 

§§ 3-501.3 (diligence) and 3-501.4 (communications) and 
Nebraska Advance She

STATE EX REL. COUNSEL FOR DIS. v. THEBARGE 359

Cite as 289 Neb. 356

conduct rules §§ 3-501.15 (safekeeping property), 3-508.1 

(bar admission and disciplinary matters), and 3-508.4 

(misconduct).

Coun

In June 2013, Respondent engaged in legal services for 

Michael Miller. Miller paid Respondent a $1,000 advance fee 

for the handling of his divorce. No portion of this advance fee 

was placed into Respondent’s client trust fund account. Miller 

filed a grievance alleging that Respondent failed to communicate with him and failed to provide Miller with an accounting 

regarding his advance fee.

Therefore, Respondent was charged with violating and was 

determined to have violated conduct rules §§ 3-501.3 (diligence), 3-501.4 (communications), § 3-501.15 (safekeeping 

property), and 3-508.4 (misconduct).

Coun

When Counsel for Discipline informed Respondent that it 

was performing an audit of his client trust account, he failed to 

produce any requested information.

Therefore, Respondent was charged with violating and was 

determined to have violated conduct rules §§ 3-501.15 (safekeeping property), 3-508.1 (bar admission and disciplinary 

matters), and 3-508.4 (misconduct).

Coun

In July 2012, Respondent entered into legal services on 

behalf of Brian Rodwell to represent him regarding his child 

support. On July 25, Rodwell paid Respondent a $1,500 

advance fee, against which Respondent agreed to bill Rodwell 

at an hourly rate. On July 26, Respondent had zero funds 

in his client trust account. On July 27, Respondent deposited Rodwell’s advance fee payment into his trust account 

and immediately withdrew $1,000 of the funds. On July 30, 

Respondent withdrew Rodwell’s remaining $500 from his trust 

account, leaving a zero balance.

Respondent filed a complaint to modify decree on behalf 

of Rodwell on May 23, 2013, but then failed to take further 
Nebraska Advance She

360 289 NEBRASKA REPORTS

action on behalf of Rodwell’s case and failed to keep him 

informed of his case’s status. On November 15, the district 

court issued a progression order stating that Rodwell’s complaint to modify would be dismissed unless he failed to schedule a mediation. Respondent did not inform his client of this 

order, and no response to the district court was filed.

Therefore, Respondent was charged with violating and 

was determined to have violated conduct rules §§ 3-501.3 

(diligence), 3-501.4 (communications), 3-501.15 (safekeeping 

property), and 3-508.4 (misconduct).

Proceedings Against R

On December 18, 2013, Respondent’s license to practice law was suspended by the Nebraska Supreme Court. 

Respondent failed to notify either the district court or Rodwell 

of his suspension.

Formal charges were entered against Respondent on 

February 13, 2014. The process server has stated that after 

diligent search and inquiry, Respondent could not be found in 

Douglas County, Nebraska. The process server also stated that 

he verified the address with Respondent’s apartment manager 

and that Respondent was avoiding service.

On May 7, 2014, we granted judgment on the pleadings 

and the facts were deemed established. On June 30, counsel 

appointed for Respondent in this matter resigned due to a failure by Respondent to communicate with counsel in any respect 

since the filing of formal charges. Respondent then failed to 

submit a brief, and thus waived his oral argument.

STANDARD OF REVIEW

[1,2] A proceeding to discipline an attorney is a trial de novo 

on the record.1 Failure to answer formal charges subjects a 

respondent to judgment on the formal charges filed.2

1 State ex rel. Counsel for Dis. v. Chapin, 270 Neb. 56, 699 N.W.2d 359 

(2005).

2 State ex rel. Counsel for Dis. v. Bouda, 282 Neb. 902, 806 N.W.2d 879 

(2011).
Nebraska Advance She

STATE EX REL. COUNSEL FOR DIS. v. THEBARGE 361

Cite as 289 Neb. 356

ANALYSIS

An attorney is bound to the Nebraska Rules of Professional 

Conduct, under which an attorney must perform diligently and 

promptly in representing a client, communicate fully with a 

client, and properly administrate a client’s funds in a separate 

trust account until the attorney has earned the fees he withdraws.3

 Further, a lawyer cannot withdraw from or terminate 

representation unless the lawyer takes steps to protect a client’s interests, gives notice to the client, and surrenders papers 

and property to which the client is entitled.4 Lawyers must 

respond to demands for information in disciplinary investigations and are prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.5

 Finally, 

a lawyer cannot engage in conduct that is prejudicial to the 

administration of justice, including failing to give the Counsel 

for Discipline access to the records of a trust account for 

auditing purposes.6

[3,4] The goal of attorney disciplinary proceedings is not 

as much punishment as determination of whether it is in the 

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

We consider six factors in determining whether and to what 

extent discipline should be imposed: (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 offender generally, and 

(6) the offender’s present or future fitness to continue in 

the practice of law.8 Further, in determining the appropriate sanction, we consider the discipline imposed in similar 

3 See, § 3-501.3; § 3-501.4; § 3-501.15.

4 § 3-501.16(c) and (d).

5 See, § 3-508.1(a) and (b); § 3-508.4(a) and (c).

6 See, § 3-508.4(d); Neb. Ct. R. § 3-906.

7 See State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702 

(2009).

8 State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634 

(2012).
Nebraska Advance She

362 289 NEBRASKA REPORTS

circumstances.9 Cumulative acts of attorney misconduct are 

distinguishable from isolated incidents, therefore justifying 

more serious sanctions.10 We have noted that “‘a pattern of 

neglect reveals a particular need for a strong sanction to deter 

others from similar misconduct, to maintain the reputation of 

the bar as a whole, and to protect the public.’”11

[5] We have held that absent mitigating circumstances, 

disbarment is the appropriate discipline in cases of misappropriation or commingling of client funds.12 In cases involving 

misappropriation and commingling of client funds, mitigating 

factors overcome the presumption of disbarment only if they 

are extraordinary.13

[6,7] Similarly, neglect of client cases and failure to cooperate with the Counsel for Discipline are grounds for disbarment.14 We have stated that an attorney’s failure to make timely 

responses to inquiries of the Counsel for Discipline violates 

ethical canons and disciplinary rules which prohibit conduct 

prejudicial to the administration of justice15 and that an attorney’s failure to respond to inquiries and requests for information from the office of the Counsel for Discipline is considered 

to be a grave matter and a threat to the credibility of attorney 

disciplinary proceedings.16 Even worse, fabricating evidence 

with the intent to deceive the Counsel for Discipline interferes 

in a disciplinary investigation, which we have held merits a 

severe sanction.17

9 Id.

10 Id.

11 Id. at 338, 808 N.W.2d at 642.

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

(2013).

13 State ex rel. Counsel for Dis. v. Wintroub, 267 Neb. 872, 678 N.W.2d 103 

(2004).

14 See State ex rel. Counsel for Dis. v. Coe, 271 Neb. 319, 710 N.W.2d 863 

(2006).

15 See State ex rel. NSBA v. Simmons, 259 Neb. 120, 608 N.W.2d 174 (2000).

16 State ex rel. Counsel for Dis. v. Crawford, supra note 12.

17 See State ex rel. Counsel for Dis. v. Ellis, supra note 8.
Nebraska Advance She

STATE EX REL. COUNSEL FOR DIS. v. THEBARGE 363

Cite as 289 Neb. 356

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

18 the respondent 

was facing sanctions for a failure to communicate with his 

clients. The respondent in Ellis claimed he had told the clients 

about an impending dismissal of their case. After an investigation of the respondent’s computer, it was found that the 

respondent had fabricated the letter he alleged to have sent 

to his clients.19 There, the respondent was disbarred from the 

practice of law in Nebraska. The court considered particularly 

that the respondent had been dishonest and had engaged in 

fraud, deceit, and misrepresentation.

As reiterated in the formal charges, Respondent did not 

communicate with his clients regarding their cases and did not 

properly appropriate his clients’ trust fund accounts. He did 

not properly withdraw from representation of any of his clients and still maintains their files to this day. Correspondingly, 

Respondent prejudiced several of his clients’ cases; in particular, he allowed Rodwell’s case to be dismissed completely for 

failure to update the court. The Respondent has not cooperated 

with the Counsel for Discipline in its efforts to investigate 

his case, and in fact, Respondent is evading service from the 

Counsel for Discipline and this court. Respondent failed to 

provide records necessary to audit his client trust account. In 

the one instance when Respondent did reply to the Counsel for 

Discipline, he fabricated evidence of alleged communication 

with his clients. Thus, Respondent has engaged in dishonesty, 

fraud, deceit, and misrepresentation.

[8] Because Respondent has not given any sign of mitigating factors to the court, there are none to consider. However, 

it is considered an aggravating factor that he has exhibited a 

complete failure to regard the rules of professional conduct and 

abide by his oath as an attorney. In order to protect the public 

and to end Respondent’s pattern of conduct, disbarment is the 

proper sanction.

Upon due consideration of the facts of this case, and 

based upon Respondent’s cumulative acts of misconduct and 

18 Id.

19 Id.
Nebraska Advance She

364 289 NEBRASKA REPORTS

disrespect for this court’s disciplinary jurisdiction, the court 

finds that the proper sanction is disbarment.

CONCLUSION

It is the judgment of this court that Respondent should be 

and is hereby disbarred from the practice of law, effective 

immediately. Respondent is directed to pay costs and expenses, 

if any, in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 

(Reissue 2012).

Judgment of disbar

State of Nebraska, appellee, v. Kerstin 

Piper, also known as Kerst

Clarkson, appella

___ N.W.2d ___

Filed October 31, 2014. No. S-13-1029.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case 

from the county court, the district court acts as an intermediate court of appeals, 

and its review is limited to an examination of the record for error or abuse 

of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate 

court generally review appeals from the county court for error appearing on 

the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing 

on the record, an appellate court’s inquiry is whether the decision conforms to 

the law, is supported by competent evidence, and is neither arbitrary, capricious, 

nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions of law in 

appeals from the county court.

5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, 

for which an appellate court has an obligation to reach an independent conclusion 

irrespective of the determination made by the court below.

6. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and 

Error. In reviewing a trial court’s ruling on a motion to suppress based on a 

claimed violation of the Fourth Amendment, an appellate court applies a two-part 

standard of review. Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth 

Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination.