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State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, 

v. William E. Gast, respondent.

___ N.W.2d ___

Filed November 9, 2017. No. S-17-318.

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

trial de novo on the record.

2. ____. The Nebraska Supreme Court evaluates each attorney discipline 

case in light of its particular facts and circumstances.

3. ____. 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.

4. ____. For purposes of determining the proper discipline of an attorney, 

the Nebraska Supreme Court considers the attorney’s acts both underlying the events of the case and throughout the proceeding, as well as 

all aggravating or mitigating factors.

5. ____. The propriety of a sanction must be considered with reference to 

the sanctions imposed in prior similar cases.

6. Judgments: Records: Judicial Notice. A court has the right to examine 

its own records and take judicial notice of its own proceedings and judgments in a former action.

7. Disciplinary Proceedings. Responding to disciplinary complaints in 

an untimely manner and repeatedly ignoring requests for information 

from the Counsel for Discipline indicate a disrespect for the Nebraska 

Supreme Court’s disciplinary jurisdiction and a lack of concern for 

the protection of the public, the profession, and the administration 

of justice.

Nebraska Supreme Court Online Library

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

11/22/2017 08:10 PM CST
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8. ____. An attorney’s failure to respond to inquiries and requests for information from the Counsel for Discipline is an important matter and is a 

threat to the credibility of attorney disciplinary proceedings. The failure 

to respond to formal charges in the Nebraska Supreme Court is of even 

greater moment.

Original action. Judgment of suspension.

Kent L. Frobish, Assistant Counsel for Discipline, for 

relator.

No appearance for respondent.

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

Kelch, and Funke, JJ.

Per Curiam.

INTRODUCTION

This original proceeding arises from formal charges filed by 

the Counsel for Discipline (Relator) against attorney William 

E. Gast. Relator alleges violations of the Nebraska Rules of 

Professional Conduct and Gast’s oath of office as an attorney 

arising from (1) the unauthorized practice of law and (2) frivolous pleadings. We granted Relator’s motion for judgment on 

the pleadings pursuant to Neb. Ct. R. § 3-310(I) (rev. 2014), 

and the facts alleged in the formal charges are deemed admitted. Thus, the only issue we must determine is the appropriate 

discipline to be imposed. Given the facts and circumstances 

of this case, we adopt Relator’s recommended sanction of an 

indefinite period of suspension of at least 1 year, with reinstatement conditioned on Gast’s demonstrating his fitness to 

practice law and addressing the circumstances of the instant 

violations. Such sanction shall run consecutively to the suspension previously imposed by this court.

BACKGROUND

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

Nebraska on January 22, 1973. At all times relevant to these 
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proceedings, Gast was engaged in the practice of law in 

Nebraska. This disciplinary proceeding results from formal 

charges filed by Relator on March 24, 2017. See Neb. Ct. R. 

§ 3-309(H) (rev. 2011).

The undisputed formal charges allege that Gast (1) engaged 

in the unauthorized practice of law in violation of (a) Neb. Ct. 

R. of Prof. Cond. §§ 3-501.4 (failure to communicate with his 

client about her case and his suspension), (b) 3-501.16 (failure 

to withdraw after suspension), (c) 3-505.5 (rev. 2012) (practicing law while suspended), and (d) 3-508.4(d) (engaging in 

conduct prejudicial to administration of justice) and (2) filed 

frivolous pleadings in violation of (a) Neb. Ct. R. of Prof. 

Cond. §§ 3-503.1 (meritorious claims and contentions) and 

(b) 3-508.4(d) (engaging in conduct prejudicial to administration of justice). The formal charges further allege that Gast’s 

acts and omissions violated his oath of office as an attorney 

licensed to practice law in Nebraska. See Neb. Rev. Stat. 

§ 7-104 (Reissue 2012).

Unauthorized Practice of Law

On June 30, 2015, Gast’s license to practice law in 

Nebraska was suspended because Gast failed to report his 

mandatory continuing legal education (MCLE) requirements 

and failed to pay his mandatory assessment to the Attorney 

Services Division.

Gast had previously filed suit on behalf of Connie Surber in 

the district court for Douglas County in case No. CI14-7634. 

Although Gast had actual knowledge that his license was 

administratively suspended on June 30, 2015, he continued 

to represent Surber in that case and did not inform her that 

his license had been suspended. Gast did not withdraw from 

representing Surber in the district court and did not notify the 

district court and opposing counsel of his suspension.

Gast’s license was later reinstated on January 22, 2016, after 

he complied with his MCLE requirements and paid the appropriate assessment.
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On September 9, 2016, Gast sent a letter informing Relator 

that he had represented Surber during his suspension, between 

June 30, 2015, and January 22, 2016. Gast sent the letter 

after opposing counsel in Surber’s case discovered that Gast’s 

license had been suspended during a time Gast represented 

Surber and informed Gast that he would report Gast’s conduct 

if Gast did not.

According to the formal charges, on September 9, 2016, 

Relator sent the following email to Gast:

“Mr. Gast,

“Thank you for your email and letter. I will open a 

new disciplinary grievance based on your self-report of 

your possible unauthorized practice of law during your 

suspension. Please send me copies of all letters and 

emails you sent regarding . . . Surber’s case between July 

1, 2015 and January 22, 2016, when you were reinstated 

to practice law. If you have any time records regarding 

your representation of . . . Surber during your suspension, 

please provide those. Please state whether you informed 

your client that your license was suspended, and if so, 

state the date when you did so. I will probably need 

additional information as we go forward, but we can start 

with this for now.

“Thank you for your cooperation in this matter.”

Gast did not respond to the email.

On September 15, 2016, Relator sent a certified letter to 

Gast informing him that an investigation had been opened 

regarding his unauthorized practice of law. The letter directed 

Gast to submit an appropriate written response within the 

next 15 working days. See § 3-309(E). Gast signed for the 

certified letter on September 22, but he did not submit a written response.

On November 17, 2016, Relator sent a followup email to 

Gast directing him to file his response to the certified letter. 

On November 21, Gast sent a reply email stating that he would 
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send his written response “‘asap,’” but he did not submit any 

such written response.

Because Gast did not submit a response to Relator, on 

December 13, 2016, Relator sent a followup email to Gast 

directing him to immediately file a response to the September 

15 certified letter or an application for the temporary suspension of his license to practice law would be filed. Gast did not 

file any such response, so on January 12, 2017, the “Chair of 

the District Four Committee on Inquiry” filed an application 

for the temporary suspension of Gast’s license to practice law. 

The application was docketed as case No. S-17-052.

On January 26, 2017, we issued an order to show cause in 

case No. S-17-052, directing Gast to show cause within 7 days 

after receipt of the order why we should not enter an order 

temporarily suspending his license to practice law in Nebraska. 

That order was delivered to Gast by certified mail, and Gast 

signed for it on January 28. Gast did not file a response to the 

order to show cause.

On February 15, 2017, we suspended Gast from the practice 

of law in the State of Nebraska until further order. Relator 

filed these formal charges on March 24.

On May 19, 2017, we issued our decision in another disciplinary matter involving Gast, his only previous discipline 

for violating the Rules of Professional Conduct. See State ex 

rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583 

(2017). That disciplinary matter includes facts relevant to the 

current charges for the unauthorized practice of law.

The previous disciplinary matter commenced in November 

2014, when a grievance was filed with Relator against Gast 

based on a series of communications he sent to Douglas 

County District Court Judge Peter C. Bataillon in the course 

of litigating State of Florida v. Countrywide Truck Ins. 

Agency, 294 Neb. 400, 883 N.W.2d 69 (2016), a lengthy 

and complicated case, referred to here as the “Florida v. 

Countrywide Truck litigation,” which began in January 1998. 
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The private communications urged Judge Bataillon to rule 

based on improper and legally irrelevant grounds. Relator 

ultimately filed formal charges on September 1, 2015, alleging 

that Gast violated the Rules of Professional Conduct and his 

oath of office when he sought to influence the judge by means 

prohibited by law and made statements with reckless disregard 

for truth or falsity regarding the integrity of the judge.

According to the record before this court in State ex rel. 

Counsel for Dis. v. Gast, supra, in June 2016, Gast gave sworn 

testimony at the formal hearing regarding his suspension in 

2015, the period during which the current formal charges 

allege he engaged in the unauthorized practice of law. Gast 

stated that he failed to pay his dues because he was depressed 

at the time and he “was not [him]self” due to the “way [he] was 

being treated” in matters relating to the Florida v. Countrywide 

Truck litigation. Gast further explained that he did not have the 

money to pay his $98 dues, because he had not been paid in 

the Florida v. Countrywide Truck litigation since 2009 and he 

did not have many other cases. He testified that he accepted 

these consequences to be a “zealous advocate” for his client. 

Regarding the unreported MCLE requirements, Gast again 

stated that he “just wasn’t [him]self” at the time and referred 

to his frustrations with the Florida v. Countrywide Truck litigation. Gast denied representing any clients as of July 1, 2015, 

when he learned of his suspension for failure to pay dues and 

to report MCLE requirements, and he testified that he notified 

his clients of his suspension.

In State ex rel. Counsel for Dis. v. Gast, supra, we suspended Gast from the practice of law for a period of 1 year 

retroactive to March 3, 2017, to be followed by a period of 2 

years’ probation upon reinstatement.

Frivolous Pleadings

The frivolous pleadings charge also relates to the Florida v. 

Countrywide Truck litigation. At all relevant times, Gast represented two of the defendants in that case.
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As mentioned above, the case was filed in the district court 

for Douglas County in January 1998; Gast entered his appearance in February 2002. The case was appealed to this court 

multiple times. See, State of Florida v. Countrywide Truck 

Ins. Agency, 275 Neb. 842, 749 N.W.2d 894 (2008); State of 

Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 

N.W.2d 905 (2005); State of Florida v. Countrywide Truck Ins. 

Agency, 258 Neb. 113, 602 N.W.2d 432 (1999).

On May 12, 2015, the district court, Judge Bataillon presiding, entered judgment for the plaintiff. According to the formal 

charges, on May 29, the district court entered an order finding that Gast filed several frivolous actions over the course of 

the litigation:

“a. As to the Defendant’s [unsuccessful] Motion for 

Recusal of June 2004, and the subsequent [unsuccessful] 

appeal to the Nebraska Supreme Court, . . . this Court 

finds that this was a frivolous action by . . . Gast, however, this Court awards no fees as the Supreme Court was 

in the best position to award fees and did not do so. [See 

State of Florida v. Countrywide Truck Ins. Agency, 270 

Neb. 454, 703 N.W.2d 905 (2005).]

“b. After the initial trial in this matter in 2006, the 

[Defendants] appealed this Court’s directed verdict 

for the Plaintiff to the Nebraska Supreme Court. The 

Nebraska Supreme Court reversed the directed verdict 

decision by this Court and remanded for a new trial. 

[See State of Florida v. Countrywide Truck Ins. Agency, 

275 Neb. 842, 749 N.W.2d 894 (2008).] . . . Thereafter, 

. . . Gast filed Motions requesting this Court to limit the 

issues to be tried. This Court refused these requests as the 

Mandate and the opinion of the Nebraska Supreme Court 

did not so direct. Thereafter, . . . Gast [unsuccessfully] 

appealed the decision by a Writ of Mandamus against this 

Court. . . . This Court finds that these actions by . . . Gast 

[were] frivolous, however, this Court awards no fees as 
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the Nebraska Supreme Court was in the best position to 

award fees and did not do so.

“c. On October 4, 2014, . . . Gast filed a Motion for 

this Court to Recuse itself because of some relationship/

friendship this Court had with Plaintiff’s counsel. . . . 

This Court finds that this Motion for Recusal was groundless and frivolous. . . .”

The district court sanctioned Gast for the frivolous motion 

to recuse filed in 2014 by entering judgment for the plaintiff for costs in the amount of $15,000, to be paid personally 

by Gast.

Gast filed an appeal of the sanction order on June 5, 2015. 

On August 5, 2016, we affirmed the district court’s sanction 

order against Gast. See State of Florida v. Countrywide Truck 

Ins. Agency, 294 Neb. 400, 883 N.W.2d 69 (2016). We determined that the district court had jurisdiction to sanction Gast, 

but we did not examine the factual basis for the sanction, 

because Gast did not question it.

As noted above, we later suspended Gast from the practice of law after Relator made formal charges arising from 

Gast’s communications with Judge Bataillon in the Florida v. 

Countrywide Truck litigation, but those charges did not address 

the frivolousness of any claims. See State ex rel. Counsel for 

Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583 (2017).

Now with the current formal charges, Relator seeks disciplinary sanctions against Gast for rule violations associated 

with filing frivolous pleadings.

Judgment on Pleadings and

Relator’s Recommendation

On March 28, 2017, Gast signed a document acknowledging 

receipt of the summons and formal charges, which had been 

filed on March 24. However, Gast failed to file an answer to 

the formal charges.

On May 4, 2017, Relator filed a motion for judgment 

on the pleadings, and on May 30, we granted the motion, 
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limited to facts. We directed the parties to brief the issue 

of discipline.

Gast did not file a brief.

Relator’s brief recommends that we sanction Gast with an 

indefinite suspension of his license to practice law for a minimum of 1 year. Relator’s brief further recommends that any 

application for reinstatement filed by Gast after the minimum 

suspension period should include a showing under oath which 

demonstrates his fitness to practice law and fully addresses the 

circumstances of the instant violations.

Relator bases its recommendation upon the uncontroverted 

allegations of misconduct, Gast’s prior disciplinary record, 

and similar cases. Relator further notes that in the absence of 

responses from Gast, there is no evidence of why he engaged 

in misconduct and no evidence of mitigating factors.

STANDARD OF REVIEW

[1] 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).

ANALYSIS

In this disciplinary matter, Gast faces formal charges stemming from the unauthorized practice of law and frivolous 

pleadings. Because we granted judgment on the pleadings as to 

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

See id. Having examined the facts and circumstances of this 

case in conjunction with other pertinent considerations, we 

agree with Relator’s recommendation.

[2-5] We evaluate each attorney discipline case in light of 

its particular facts and circumstances. State ex rel. Counsel 

for Dis. v. Carbullido, 278 Neb. 721, 773 N.W.2d 141 (2009). 

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 
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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. Id. For 

purposes of determining the proper discipline of an attorney, 

this court considers the attorney’s acts both underlying the 

events of the case and throughout the proceeding, as well as 

all aggravating or mitigating factors. Id. The propriety of a 

sanction must be considered with reference to the sanctions 

imposed in prior similar cases. State ex rel. Counsel for Dis. v. 

Gast, 296 Neb. 687, 896 N.W.2d 583 (2017).

[6] This decision represents the second time we have 

imposed disciplinary sanctions against Gast this year, following several decades with no disciplinary intervention. A 

court has the right to examine its own records and take judicial notice of its own proceedings and judgments in a former 

action. Burns v. Burns, 296 Neb. 184, 892 N.W.2d 135 (2017). 

Thus, in addition to the current formal charges, in our de novo 

review we consider the relevant facts from Gast’s previous 

disciplinary proceedings, as well as the aggravating nature of 

his previous disciplinary offenses. See, State ex rel. Counsel 

for Dis. v. Lopez Wilson, 283 Neb. 616, 811 N.W.2d 673 

(2012); State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 

808 N.W.2d 634 (2012).

In the previous disciplinary matter, Gast’s behavior toward a 

sitting judge showed disrespect for the judicial process, and we 

find this to be an aggravating factor.

In addition, we consider the formal hearing for the previous disciplinary matter, where Gast denied under oath that 

he represented any clients after learning of his administrative suspension for failure to pay dues and to report MCLE 

requirements and testified that he notified his clients of his 

suspension. This testimony conflicts with the current formal 

charges that Gast continued to represent Surber and failed to 

withdraw or to inform her or the court of his administrative 

suspension. Although Relator did not raise this discrepancy 
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in the current formal charges, it does not weigh favorably 

for Gast.

Relator charges Gast with the unauthorized practice of law in 

Surber’s case, a case distinct from the Florida v. Countrywide 

Truck litigation for which he was previously sanctioned. This 

represents a pattern of noncompliance with our disciplinary 

rules, and cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more 

serious sanctions. See State ex rel. Counsel for Dis. v. Gast, 

supra. And we have said that ordinarily, cumulative acts of 

misconduct can, and often do, lead to disbarment. See State ex 

rel. Counsel for Dis. v. Carbullido, 278 Neb. 721, 773 N.W.2d 

141 (2009).

On the other hand, there is mitigating evidence that Gast 

failed to pay his dues and comply with MCLE requirements 

because he was financially and emotionally overwhelmed by 

the Florida v. Countrywide Truck litigation. And there is no 

evidence that Gast harmed his client, Surber. However, the 

cumulative nature of Gast’s past and present violations suggests a risk of future harm and necessitates a sanction that 

protects the public and maintains the reputation of the bar as 

a whole.

The second charge of misconduct raised by Relator involves 

instances of frivolous claims or filings by Gast in the course 

of the Florida v. Countrywide Truck litigation. We note that 

one such filing involved a frivolous motion to recuse, for 

which the district court sanctioned Gast.

[7,8] Gast’s lack of participation in the disciplinary process 

is also a factor in our analysis. Responding to disciplinary 

complaints in an untimely manner and repeatedly ignoring 

requests for information from the Counsel for Discipline indicate a disrespect for our disciplinary jurisdiction and a lack of 

concern for the protection of the public, the profession, and the 

administration of justice. State ex rel. Counsel for Dis. v. Tighe, 

295 Neb. 30, 886 N.W.2d 530 (2016). An attorney’s failure 
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to respond to inquiries and requests for information from the 

Counsel for Discipline is an important matter and is a threat 

to the credibility of attorney disciplinary proceedings. State ex 

rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16, 759 N.W.2d 

492 (2009). The failure to respond to formal charges in this 

court is of even greater moment. Id.

In the present disciplinary process, Gast has failed to correspond with Relator, to respond to the formal charges, and 

to brief the issue of discipline as directed by this court. These 

facts do not reflect positively on Gast’s attitude and lead us to 

question his respect for this court’s disciplinary jurisdiction. 

See State ex rel. Counsel for Dis. v. Carbullido, supra. And 

although Gast initially self-reported his unauthorized practice 

of law, this fact has little mitigating impact, because Gast 

was prompted to self-report by opposing counsel’s ultimatum 

and effectively did not participate in the disciplinary process 

thereafter. Consequently, Gast sacrificed the opportunity to 

enlighten us about any additional mitigating factors or his current or future fitness to practice law. See State ex rel. Counsel 

for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 487 (2013). 

Under such circumstances, we have declined to disbar the 

attorney and instead imposed an indefinite suspension. Id. But 

we caution the bar that failing to participate in the disciplinary 

process is a very serious matter.

Finally, we consider the appropriate sanction with reference to the sanctions imposed in prior similar cases. See State 

ex rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 

583 (2017). Prior cases, though factually unique, offer some 

insight. See, e.g., State ex rel. Counsel for Dis. v. Keith, 286 

Neb. 551, 840 N.W.2d 456 (2013) (suspended for approximately 4 months pursuant to terms of conditional admission 

for continuing to represent client after suspension for failure 

to pay bar dues); State ex rel. Counsel for Dis. v. Carbullido, 

278 Neb. 721, 773 N.W.2d 141 (2009) (disbarment for successive instances of unauthorized practice of law, multiple 
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convictions for driving under the influence, and failure to 

respond to inquiries and charges); State ex rel. Counsel for 

Dis. v. Frye, 278 Neb. 527, 771 N.W.2d 571 (2009) (90-day 

suspension pursuant to conditional admission for unauthorized practice of law, failure to respond, disciplinary actions in 

Iowa). We conclude that Relator’s recommended sanction for 

Gast harmonizes with our prior disciplinary cases.

CONCLUSION

Having considered the facts and circumstances of Gast’s 

case, the prior decisions by this court, and his failure to participate in the disciplinary process, and having weighed Gast’s 

present case in view of his prior disciplinary matter, we adopt 

Relator’s recommended sanction of indefinite suspension from 

the practice of law for a minimum of 1 year. Such suspension 

shall run consecutively with the suspension previously imposed 

by this court and shall commence on March 3, 2018. Any 

application for reinstatement filed by Gast after the minimum 

suspension period shall include a showing under oath which 

demonstrates his fitness to practice law and fully addresses the 

circumstances of the instant violations.

Gast is also directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) 

and § 3-310(P) and Neb. Ct. R. § 3-323(B) of the disciplinary rules within 60 days after an order imposing costs and 

expenses, if any, is entered by the court.

Judgment of suspension.