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State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, 

v. Thomas G. Sundvold, respondent.

___ N.W.2d ___

Filed April 4, 2014. No. S-13-002.

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

novo on the record.

2. Disciplinary Proceedings: Appeal and Error. In an attorney discipline case, 

the Nebraska Supreme Court reaches its conclusion independent of the findings 

of the referee. However, where the credible evidence is in conflict on a material 

issue of fact, the Nebraska Supreme 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: Proof. Violation of a disciplinary rule concerning 

the practice of law is a ground for discipline, and disciplinary charges against an 

attorney must be established by clear and convincing evidence.

4. Disciplinary Proceedings. In attorney discipline cases, the basic issues are 

whether discipline should be imposed and, if so, the type of discipline under 

the circumstances.

5. ____. The Nebraska Supreme Court evaluates each attorney discipline case in 

light of its particular facts and circumstances and considers the attorney’s acts 

both underlying the events of the case and throughout the proceeding.

6. ____. 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. ____. 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 offender generally, and (6) the offender’s present or 

future fitness to continue in the practice of law.

8. Disciplinary Proceedings: Words and Phrases. In the context of attorney 

discipline proceedings, misappropriation is an 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 

personal gain therefrom.

9. Disciplinary Proceedings. Misappropriation of client funds is one of the most 

serious violations of duty an attorney owes to clients, the public, and the courts.

10. ____. Misappropriation by an attorney violates basic notions of honesty and 

endangers public confidence in the legal profession.

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

in cases of misappropriation or commingling of client funds.

12. ____. The fact a client did not suffer any financial loss does not excuse an attorney’s misappropriation of client funds and does not provide a reason for imposing 

a less severe sanction.
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13. ____. The Nebraska Supreme Court does not view the misappropriation of funds 

from one’s own firm as any less dishonest and deceptive than the misappropriation of client funds.

14. ____. In determining the appropriate discipline of an attorney, the Nebraska 

Supreme Court considers the discipline imposed in cases presenting similar 

circumstances.

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

incidents, therefore justifying more serious sanctions.

16. ____. In evaluating attorney discipline cases, the Nebraska Supreme Court considers aggravating and mitigating circumstances.

Original action. Judgment of suspension.

Kent L. Frobish, Assistant Counsel for Discipline, for 

relator.

Clarence E. Mock, of Johnson & Mock, for respondent.

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

Miller-Lerman, and Cassel, JJ.

Per Curiam.

NATURE OF CASE

The Counsel for Discipline of the Nebraska Supreme Court, 

relator, filed amended formal charges against Thomas G. 

Sundvold, respondent, alleging that he violated his oath of 

office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012), 

and several of the Nebraska Rules of Professional Conduct. 

Respondent filed an answer admitting certain factual allegations but denying other certain factual allegations and denying 

that he violated the rules of professional conduct. This court 

appointed a referee. After holding an evidentiary hearing, 

the referee filed a report and determined that respondent had 

violated Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence); 

3-501.3 (diligence); 3-501.4(a) and (b) (communications); 

3-501.15(a) and (c) (safekeeping property); and 3-508.4(a), 

(c), and (d) (misconduct); and his oath of office as an attorney. 

The referee recommended that respondent be suspended for a 

period of 3 years, followed by 2 years’ monitored probation. 

Respondent filed exceptions to the referee’s report regarding 

findings of fact and conclusions of law and the recommended 

discipline. In his brief to this court, respondent states that he 
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withdraws his exceptions to the referee’s findings of fact and 

conclusions of law and takes exception only to the referee’s 

recommended discipline. Relator agrees with the referee’s 

recommended discipline. We determine that the proper sanction is suspension from the practice of law for a period of 3 

years and, upon reinstatement, 2 years of probation, including monitoring.

STATEMENT OF FACTS

Respondent was admitted to the practice of law in Nebraska 

in September 2003. At all relevant times, respondent was 

engaged in the private practice of law in Lincoln, Nebraska, 

under the jurisdiction of the Committee on Inquiry of the First 

Disciplinary District, which determined reasonable grounds 

existed to discipline respondent. Accordingly, formal charges 

were filed against respondent on January 3, 2013, and amended 

formal charges were filed on February 15.

The amended formal charges contained two counts against 

respondent. Count I generally alleged that respondent, while 

employed by a law firm, failed to properly represent a client, 

a roofing contractor, in a civil suit brought against the client; 

failed to deposit advance fees from the client in the law firm’s 

trust account; and failed to turn over attorney fees received 

from the client to the law firm in accordance with an oral 

agreement with the law firm. Count II generally alleged that 

respondent failed to deliver payments that he received from 

three additional clients to the law firm in accordance with an 

oral agreement with the law firm.

Respondent filed his answer on March 15, 2013, in which 

he admitted certain factual allegations and denied other factual 

allegations and denied that he violated the rules of professional 

conduct. Given respondent’s answer, this court appointed a 

referee on March 25.

On June 11, 2013, an evidentiary hearing was held before 

the referee. On September 10, the referee filed his report. The 

referee found facts substantially as described below. Following 

our review of the record, we determine there is clear and convincing evidence in the record to support these facts.
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Respondent graduated from Creighton University School 

of Law in May 2002. During law school, respondent served 

as a member of the Creighton Law Review and worked as a 

law clerk for an Omaha law firm. As a law clerk, respondent’s 

duties were confined to legal research and brief writing.

Respondent’s first employer after law school was an insurance company, where he worked as a cargo claims attorney 

starting in May 2003. Respondent essentially worked as an 

insurance adjuster negotiating claims. He did not participate in 

any litigation, nor did he draft any pleadings.

In 2006, respondent accepted employment with a carrier 

company as an associate general counsel handling bodily 

injury claims. His duties primarily involved adjusting claims 

for bodily injury. While employed there, respondent was 

not involved in any courtroom litigation or the drafting 

of pleadings.

In August 2010, respondent left the carrier company to 

engage in the private practice of law. Up to that time, respondent did not have any experience in the financial aspects of the 

attorney-client relationship. He had never negotiated a fee, 

handled client funds, or drafted a contract for the provision of 

legal services, nor had he ever worked with a billing system or 

utilized a trust account.

In late September or early October 2010, respondent joined a 

law firm as an associate attorney. Respondent was an employee 

with the law firm as an associate attorney from October 2010 

through December 12, 2011.

Respondent’s compensation was based upon an oral agreement with the law firm. Respondent was to receive a percentage of the gross amount of fees paid by his clients to the law 

firm. Under this agreement, 60 percent of the gross amount 

was to go to respondent and 40 percent was to go to the law 

firm. Respondent was obligated to deliver to the law firm 

all fee payments received by him from his clients, with the 

exception that he was to be allowed to retain fees generated 

from relatives and close friends for certain legal work. In 

exchange, the law firm supplied respondent with an office, 

billing services, and some limited secretarial assistance. The 
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law firm also orally agreed to cover his expenses, including, 

but not limited to, bar dues, seminar fees, organization dues, 

and marketing expenses.

Although respondent was an associate at the law firm, he 

practiced independently, essentially sharing office space with 

no direct supervision by the law firm. Because respondent 

operated largely on his own under this agreement, the law firm 

did not provide him with formal training or oversight related to 

the handling of client funds or billing.

On or about February 7, 2011, respondent entered into a 

fee agreement with a client and the client’s roofing company 

for representation of the client, a roofing contractor, in a civil 

action that had been filed against the client’s company in the 

county court for Seward County. The suit involved a roofing 

contract between the plaintiff and the client’s company for 

work to be done on the plaintiff’s residence, and the plaintiff 

was seeking $7,291.16 in damages. The fee agreement between 

respondent and the client was for an hourly fee of $175, with 

a $1,000 advance fee payment required before representation 

would commence. Respondent received the $1,000 advance fee 

payment on or about February 7.

The advance fee payment received by respondent from 

the client should have been deposited in the law firm’s trust 

account for the benefit of the client. Respondent did not 

deposit the advance fee payment into the law firm’s trust 

account, nor did he inform the law firm that he had received 

the advance fee payment from the client. Respondent deposited 

the advance fee payment into his personal account.

On or about February 7, 2011, when respondent entered 

into the fee agreement with the client, respondent learned that 

a hearing had been set in the client’s case for March 21 at 11 

a.m., by which time the client was to have an answer filed. On 

March 21 at 11 a.m., the plaintiff’s counsel appeared in court, 

but respondent did not appear on behalf of his client, and no 

answer had been filed. The court set the case for trial to be held 

on May 2. At 11:44 a.m. on March 21, respondent filed by fax 

to the court an answer on behalf of the client. A copy of the 

March 21 journal entry was sent to respondent informing him 

that the trial was set for May 2.
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Between March 21 and April 25, 2011, respondent spoke 

with the client about the claim against the client, but respondent did not conduct any formal discovery. On April 25, 

respondent and the plaintiff’s attorney had a telephone conversation regarding a continuance of the approaching May 2 

trial date. Respondent and the plaintiff’s counsel have different recollections about this conversation. The plaintiff’s 

attorney testified by way of an affidavit which was received 

in evidence at the hearing before the referee. The plaintiff’s 

attorney testified that respondent had stated that he was not 

ready for trial and that he intended to file a motion to continue the trial. The plaintiff’s attorney testified in his affidavit 

that he informed respondent that the plaintiff would object to 

a continuance and that therefore, respondent should not state 

in his motion that the plaintiff’s attorney had agreed to any 

requested continuance.

In contrast, respondent testified that the plaintiff’s attorney 

did not have any objection to the proposed continuance but that 

he did not know at the time whether the plaintiff would consent 

to a continuance. Respondent testified that he understood that 

the plaintiff’s attorney agreed to advise him before trial if an 

objection would be lodged against respondent’s motion to continue. Respondent testified that based on this understanding, 

respondent informed his client that the trial was continued and 

that the client was excused from appearing on May 2.

On April 28, 2011, respondent filed a motion to continue 

the trial. Respondent did not verify that the trial had been continued; nevertheless, he informed his client that the client did 

not need to be in court on May 2. Respondent testified at the 

hearing before the referee that since he did not hear from the 

plaintiff’s attorney before trial, he assumed the trial would be 

continued with a new date set by the court.

Respondent did not appear in court for the trial on May 2, 

2011. Several attempts were made by court personnel to contact 

respondent on the morning of May 2, but those attempts were 

unsuccessful. On May 2, the court denied respondent’s motion 

to continue the trial and the trial commenced. The plaintiff put 

on evidence and testified. The court then entered judgment in 

the full amount of the plaintiff’s prayer of $7,291.16.
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Notice of the judgment was mailed to respondent. Respondent 

did not send a copy of the judgment to his client, but respondent informed the client by telephone of the judgment that had 

been entered against him. On May 6, 2011, respondent filed a 

motion to set aside default judgment, and on May 9, a hearing 

on the motion was set for June 17.

On or about May 12, 2011, the client received a copy of 

the judgment from the court. The client called respondent, 

and respondent told the client that he was taking care of the 

matter. On May 17, the client sent a fee payment of $500 

to respondent, and on June 13, the client sent another fee 

payment of $500 to respondent. Respondent did not deliver 

these payments to the law firm but instead kept the money. 

Respondent did not inform the law firm that he had received 

the payments.

A hearing was held on respondent’s motion to set aside 

default judgment on June 17, 2011. The court determined that 

judgment was not by default but instead was entered after an 

evidentiary hearing. On June 20, the court entered a journal 

entry overruling respondent’s motion, and the journal entry was 

mailed to respondent. Respondent did not inform his client that 

the motion was overruled, and he did not send a copy of the 

journal entry to the client.

On August 9, 2011, the plaintiff’s attorney filed a motion for 

order in aid of execution, requesting that respondent’s client 

be ordered to appear in court on September 9 to answer questions regarding the assets of the client’s company. An order for 

a debtor’s examination was issued, and the order was served 

on the client on August 19. Shortly after August 19, the client 

called respondent to ask about the September 9 debtor’s examination. Respondent informed the client that he did not need to 

appear for the hearing.

Respondent did not appear in court on September 9, 2011, 

and he did not file an objection or other pleading on behalf 

of the client regarding the debtor’s examination. Based on 

respondent’s advice, the client did not appear in court for 

the debtor’s examination. On September 9, the court made a 

journal entry regarding the client’s failure to appear for the 

debtor’s examination. The court issued an arrest warrant for 
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the client and set a cash bond of $1,000. A copy of the journal 

entry was mailed to respondent; however, respondent did not 

send a copy to the client and did not notify the client of the 

entry of the arrest warrant.

On October 5, 2011, the client was arrested in McCook, 

Nebraska, based on the warrant issued in Seward County. The 

client posted the $1,000 cash bond and was released. He was 

ordered to appear in court on October 14, and on that date, the 

client and respondent appeared in court for the debtor’s examination. On October 18, respondent filed a motion to withdraw 

as counsel for the client, and the motion was granted the following day.

With respect to a second client, on or about January 21, 

2011, respondent received a payment from the second client in 

the amount of $400. Respondent failed to deliver the payment 

to the law firm or to notify the law firm that he had received 

the payment. Respondent kept the $400.

On or about April 13, 2011, respondent received a payment 

from a third client in the amount of $500. Again, respondent 

failed to deliver the payment to the law firm or to inform the 

law firm that he had received the payment. Respondent kept 

the $500 payment.

During the time respondent was employed by the law firm, 

he represented a fourth client. Respondent received various 

payments from the fourth client, most of which respondent 

delivered to the law firm. However, on five occasions, respondent failed to deliver payments from the fourth client to the law 

firm or to notify the law firm that he had received the payments. The following payments totaling $1,170 were given to 

respondent by the fourth client but were not delivered to the 

law firm: a $300 payment on December 17, 2010; a $750 payment on April 29, 2011; a $40 payment on May 6; a $40 payment on May 31; and a $40 payment on July 25. Respondent 

kept the $1,170.

On December 14, 2011, relator received a letter from 

respondent addressed to “The Nebraska Bar Association . . . 

RE: Self Disclosure.” The letter stated in part, “I [respondent] 

am writing in regards to a matter which I wanted to share 

with the Nebraska Bar Association to ensure proper self 
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disclosure has been made to the Bar Association and to ensure 

all proper steps were taken and accounted for.” Respondent’s 

letter addressed two of the allegations which were later contained in the amended formal charges. First, he disclosed his 

failure to deposit the advance fee from the roofing contractor 

client in the law firm’s trust account and instead depositing the fee in his personal account. Second, respondent disclosed his reasons for not depositing the advance fee in the 

law firm’s trust account. Respondent did not disclose that he 

failed to deliver the payments received from the three other 

clients as described above. He also did not disclose the facts 

and circumstances involving his representation of the roofing 

contractor client, which led to the judgment’s being entered 

against the client and the client’s arrest.

The referee determined that respondent made three false 

statements in his letter. First, the referee determined that 

respondent made false statements with regard to the law firm’s 

failing to pay respondent certain out-of-pocket expenses, 

namely respondent’s 2010 Nebraska and Iowa bar dues. 

Respondent did not join the law firm until October 2010, 

and at that time, his 2010 Nebraska and Iowa bar dues had 

been paid. Second, the referee determined that respondent 

made false statements in his letter regarding his relationship 

with the roofing contractor client. Respondent stated in his 

letter that since he was an acquaintance of the client, he was 

not required to deliver the fee to the law firm. The referee 

determined that respondent was not an acquaintance of the 

client and that this statement was accordingly false. Third, 

the referee determined that respondent made false statements 

regarding the fee arrangement he entered into with the roofing 

contractor client. In the letter, respondent stated that he had a 

flat fee agreement with the client, but he had actually agreed 

to represent the client on an hourly basis with an advance payment of $1,000.

Respondent testified at the hearing before the referee that 

the law firm had failed to pay his out-of-pocket expenses 

as promised under the oral agreement between respondent 

and the law firm. Respondent testified that he made repeated 

requests to the law firm to pay his out-of-pocket expenses 
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and that he also requested, and the law firm failed to provide 

him with, an accounting showing how fees paid to him were 

calculated. Respondent testified that in order to offset amounts 

owed to him by the law firm under the employment agreement, he retained client fees he received from December 2010 

through July 2011.

The referee determined that respondent misappropriated 

$4,070 of client fees due the law firm over a 7-month period 

starting on or about December 17, 2010, and ending on or 

about July 25, 2011. The referee further determined that of the 

$4,070 of client fees respondent misappropriated from the law 

firm, he has paid the law firm $2,000, and that this payment 

was made to the law firm’s trust account by respondent only 

after the roofing contractor client made a demand on him and 

the law firm for the $2,000 which had been paid to respondent. 

The referee also determined that respondent had misappropriated client fees due to the law firm at a point in time when the 

law firm did not owe him money for bar dues.

The referee determined that by his actions, respondent violated conduct rules §§ 3-501.1; 3-501.3; 3-501.4(a) and (b); 

3-501.15(a) and (c); and 3-508.4(a), (c), and (d); and his 

oath of office as an attorney. The referee recommended that 

respondent be suspended for a period of 3 years, followed by 2 

years’ monitored probation.

On September 19, 2013, respondent filed exceptions to the 

referee’s report regarding findings of fact and conclusions of 

law and the recommended discipline. Respondent stated in his 

brief to this court filed October 10, 2013, that he “withdraws 

exceptions 1-4 to the Referee’s report” regarding the referee 

report’s findings of fact and conclusions of law, but that he still 

takes exception to the referee’s recommended discipline.

ASSIGNMENTS OF ERROR

Having withdrawn his exceptions to the referee’s findings 

of fact and conclusions of law, respondent generally states that 

he takes exception to the referee’s recommended discipline. 

Respondent specifically states he takes exception to these 

discipline decisions and quotes from the referee’s report: (1) 

“‘The public needs to be protected from respondent engaging 
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in the conduct found herein to be in violation of Nebraska 

Court Rules of Professional Conduct and in violation of the 

Oath of Office found herein in the future,’” and (2) “‘[t]he 

appropriate discipline is a 3 year suspension of respondent’s 

license to practice law and that respondent be able to apply for 

reinstatement in accordance with the Nebraska Supreme Court 

Rules of Discipline, which application shall include a showing 

which demonstrates his fitness to practice law.’”

STANDARDS OF REVIEW

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

on the record. State ex rel. Counsel for Dis. v. Tonderum, 286 

Neb. 942, 840 N.W.2d 487 (2013). We reach our conclusion 

independent of the findings of the referee. State ex rel. Counsel 

for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634 (2012). 

However, 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. Id.

ANALYSIS

[3-5] Violation of a disciplinary rule concerning the practice of law is a ground for discipline, and disciplinary charges 

against an attorney must be established by clear and convincing evidence. Ellis, supra. In attorney discipline cases, the 

basic issues are whether discipline should be imposed and, 

if so, the type of discipline under the circumstances. State ex 

rel. Counsel for Dis. v. Simon, ante p. 78, 841 N.W.2d 199 

(2013). We evaluate each attorney discipline case in light of its 

particular facts and circumstances and consider the attorney’s 

acts both underlying the events of the case and throughout the 

proceeding. Ellis, supra.

In his report, the referee made findings of fact and determined that respondent violated his oath of office as an 

attorney as provided by § 7-104 and the following provisions of the Nebraska Rules of Professional Conduct: 

§§ 3-501.1; 3-501.3; 3-501.4(a) and (b); 3-501.15(a) and (c); 

and 3-508.4(a), (c), and (d). Upon our review of the record, 

we agree that there is clear and convincing evidence that 
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by his conduct, respondent violated his oath of office as an 

attorney and the provisions of the professional conduct rules 

set forth above. As stated above, in his brief before this court, 

respondent states that he withdraws his exceptions to the 

referee report’s findings of fact and conclusions of law, and 

that he only takes exception to the referee’s recommended 

discipline. Therefore, the only issue before us is the appropriate discipline.

[6,7] 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. Ellis, 

supra. Neb. Ct. R. § 3-304 provides:

(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.

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 offender generally, and (6) the offender’s present or future fitness to continue in the practice of law. State ex 

rel. Counsel for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 

487 (2013).

[8-13] We have previously stated that in the context of 

attorney discipline proceedings, misappropriation is an 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 personal gain therefrom. State ex rel. Counsel for 

Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214 (2013). 
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Misappropriation of client funds is one of the most serious 

violations of duty an attorney owes to clients, the public, and 

the courts. Id. Misappropriation by an attorney violates basic 

notions of honesty and endangers public confidence in the 

legal profession. Id. Absent mitigating circumstances, disbarment is the appropriate discipline in cases of misappropriation 

or commingling of client funds. Id. The fact a client did not 

suffer any financial loss does not excuse an attorney’s misappropriation of client funds and does not provide a reason for 

imposing a less severe sanction. Id. We do not view the misappropriation of funds from one’s own firm as any less dishonest 

and deceptive than the misappropriation of client funds. State 

ex rel. Counsel for Dis. v. Achola, 266 Neb 808, 669 N.W.2d 

649 (2003).

[14] In determining the appropriate discipline of an attorney, we consider the discipline imposed in cases presenting 

similar circumstances. Tonderum, supra. In the referee’s report, 

he relied on three cases from this court regarding an attorney’s misappropriation of funds from a law firm: State ex rel. 

Counsel for Dis. v. Frederiksen, 262 Neb. 562, 635 N.W.2d 

427 (2001); Achola, supra; and State ex rel. Counsel for Dis. v. 

Young, 285 Neb. 31, 824 N.W.2d 745 (2013).

In Frederiksen, the only alleged misconduct against Mark 

D. Frederiksen was the misappropriation of funds by him from 

a law firm of which he was a partner. Frederiksen apparently 

became dissatisfied with his compensation, and over a period 

of 3 years, he misappropriated approximately $15,000 in fees 

paid directly to him by his law firm’s clients. We ordered that 

Frederiksen be suspended from the practice of law for a period 

of 3 years.

In Achola, like in Frederiksen, the only alleged misconduct 

against George B. Achola was the misappropriation of funds 

by him from a law firm of which he was an associate. Achola 

wrote unauthorized checks on his law firm’s account totaling 

more than $20,000 for the payment of his personal expenses. 

In Achola, we stated that sufficient mitigating factors existed 

to support the decision not to disbar Achola, and we ordered 

that Achola be suspended from the practice of law for a period 

of 3 years.
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In Young, formal charges were filed against David James 

Young alleging, inter alia, that Young had failed to deliver 

payments that he had received from a client to the law firm of 

which he was an associate totaling $1,500. Young filed a conditional admission, and we ordered that Young be suspended 

from the practice of law for a period of 20 months followed by 

2 years’ monitored probation upon reinstatement.

Respondent argues that Frederiksen, Achola, and Young are 

not completely relevant to the instant case, because it is not 

evident in those cases that the attorneys were misappropriating client funds as a self-help remedy to offset amounts owed 

to them by their respective law firms, as respondent asserts 

he was doing in this case. We do not find this argument to be 

persuasive. Respondent never informed the law firm that he 

had received the payments from the clients or that he intended 

to keep the payments as a means to offset the amount the 

law firm purportedly owed to him. Respondent was misappropriating the payments owed to the law firm and failed to 

inform the law firm that he was doing so. Respondent’s conduct is similar to that of the attorneys in Frederiksen, Achola, 

and Young.

Respondent further contends that his failure to deposit the 

$1,000 advance fee payment from the roofing client into his 

law firm’s trust account or the respondent’s own trust account 

is an isolated incident of failure to deposit unearned fees into 

a client trust account. Respondent explains that his conduct 

was due to the fact that he did not have any previous experience handling advance fee payments. Accordingly, respondent 

asserts that he should receive a lesser sanction.

[15] While respondent’s failure to deposit the advance fee 

payment received from the roofing client into a trust account 

is the only example in the record of respondent’s misappropriating unearned advance fees, the record indicates several 

other instances where respondent misappropriated fee payments for services that he received from clients. Specifically, 

the record shows that respondent misappropriated clients’ 

fees 10 times over a period of 7 months totaling $4,070. We 

have stated that cumulative acts of attorney misconduct are 

distinguishable from isolated incidents, therefore justifying 
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more serious sanctions. State ex rel. Counsel for Dis. v. Ellis, 

283 Neb. 942, 840 N.W.2d 487 (2013). Respondent admits 

that he failed to deliver these payments to the law firm and 

failed to notify the law firm that he had received these payments. Respondent further admits that he wrongfully resorted 

to “self-help” by failing to deliver the fees to the law firm, 

but he explained that his conduct was due to the fact that he 

believed the law firm owed him money based on their oral 

compensation agreement.

[16] We have stated that in evaluating attorney discipline 

cases, we consider aggravating and mitigating circumstances. 

Ellis, supra. In his report, the referee noted mitigating factors to be considered in determining respondent’s sanction. 

The record contained no evidence that respondent was not in 

good standing with the Nebraska State Bar Association, and 

there are no prior disciplinary complaints or penalties against 

respondent. The record showed that respondent has accepted 

responsibility for what happened, and he cooperated throughout the course of the disciplinary proceedings. The record contains a letter of support from one attorney describing respondent’s professionalism and high moral character. Respondent 

has contributed to the profession through his membership in 

various organizations, and he has been an active member in 

the community.

The referee also noted the following aggravating factors in 

his report. In his “Self Disclosure” letter, respondent disclosed 

that he deposited the advance fee from the roofing client in 

his personal account instead of in the law firm’s trust account. 

However, respondent failed to disclose in his letter that he 

had failed to deposit payments he received from the second, 

third, and fourth clients and failed to notify the law firm that 

he had received these payments. He also failed to disclose 

the facts and circumstances of his representation of the roofing client which led to a judgment’s being entered against the 

client. The referee stated that respondent’s representation of 

the roofing client raises questions as to whether respondent is 

competent to practice law. The record indicates that the misappropriation of client funds was not an isolated incident and 

that over a period of 7 months, respondent misappropriated 
Nebraska Advance Sheets

STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 833

Cite as 287 Neb. 818

clients’ fees 10 different times totaling $4,070. Furthermore, 

the referee stated that although it is not clear from the record 

what the outcome of the roofing client’s case would have 

been if respondent had properly represented the client, the client experienced a financial loss due to respondent’s conduct, 

because he was required to post a $1,000 cash bond as a result 

of respondent’s advising the client he did not have to appear 

at the debtor’s examination. We consider the foregoing mitigating and aggravating factors in determining the sanction to 

be imposed.

Given the mishandling of his representation of the roofing client’s case, his failure to deposit the advanced fee of 

$1,000 received from the roofing client into a trust account, 

and his misappropriation of client funds totaling $4,070, we 

consider respondent’s conduct to be serious violations of the 

rules governing attorney conduct. We, therefore, order that 

respondent be suspended from the practice of law for a period 

of 3 years and, upon reinstatement, be subject to 2 years of 

probation, including monitoring. The monitoring shall be by 

an attorney licensed to practice law in the State of Nebraska, 

who shall be approved by the relator. The monitoring plan 

shall include, but not be limited to, the following: During the 

first 6 months of the probation, respondent will meet with and 

provide the monitor a weekly list of cases for which respondent is currently responsible, which list shall include the date 

the attorney-client relationship began; the general type of 

case; the date of last contact with the client; the last type and 

date of work completed on the file (pleading, correspondence, 

document preparation, discovery, or court hearing); the next 

type of work and date that work should be completed on the 

case; any applicable statutes of limitations and their dates; and 

the financial terms of the relationship (hourly, contingency, et 

cetera). After the first 6 months through the end of probation, 

respondent shall meet with the monitor on a monthly basis and 

provide the monitor with a list containing the same information as set forth above; respondent shall reconcile his trust 

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

respondent shall submit a quarterly compliance report with 
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834 287 NEBRASKA REPORTS

the Counsel for Discipline, demonstrating that respondent is 

adhering to the foregoing terms of probation. The quarterly 

report shall include a certification by the monitor that the 

monitor has reviewed the report and that respondent continues 

to abide by the terms of the probation.

CONCLUSION

We find that respondent should be and hereby is suspended 

from the practice of law for a period of 3 years. Should 

respondent apply for reinstatement, his reinstatement shall be 

conditioned upon respondent’s being on probation for a period 

of 2 years, including monitoring following reinstatement, subject to the terms of probation outlined above. Respondent is 

also directed to pay costs and expenses in accordance with 

Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. 

Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 within 60 days after 

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

this court.

Judgment of suspension.

William D. Coffey, appellant, v. 

Planet Group, Inc., appellee.

___ N.W.2d ___

Filed April 4, 2014. No. S-13-194.

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the party against 

whom the judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

2. ____: ____. An appellate court will affirm a lower court’s grant of summary 

judgment if the pleadings and admitted evidence show that there is no genuine 

issue as to any material facts or as to the ultimate inferences that may be drawn 

from the facts and that the moving party is entitled to judgment as a matter 

of law.

3. Statutes: Judgments: Appeal and Error. The interpretation of statutes and 

regulations presents questions of law. An appellate court independently reviews 

questions of law decided by a lower court.

4. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an 

appellate court gives words in a statute their ordinary meaning.