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State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. Kent J. Trembly, respon

___ N.W.2d ___

Filed June 15, 2018. No. S-17-461.

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. Disciplinary Proceedings. The basic issues in a disciplinary proceeding 

against an attorney are whether discipline should be imposed and, if so, 

the appropriate discipline under the circumstances.

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 

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

to continue in the practice of law.

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

particular facts and circumstances.

5. ____. 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.

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

the sanctions imposed in prior similar cases.

7. Disciplinary Proceedings: Rules of the Supreme Court. A pattern of 

noncompliance with Nebraska disciplinary rules and cumulative acts of 

attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions.

Nebraska Supreme Court Online Library

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

08/31/2018 09:10 AM CDT
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8. Disciplinary Proceedings: Convictions. A felony conviction is 

a strongly aggravating factor in determining the sanction ultimately 

imposed on an attorney.

9. Disciplinary Proceedings. An attorney’s cooperation in disciplinary 

proceedings, taking responsibility for his or her actions, and lack of 

previous discipline are each mitigating factors.

10. ____. A continuing commitment to the legal profession and the community is also a mitigating factor in an attorney discipline case.

11. ____. When no exceptions to the referee’s findings of fact in an attorney 

discipline case are filed, the Nebraska Supreme Court may consider the 

referee’s findings final and conclusive.

12. Disciplinary Proceedings: Case Disapproved. State ex rel. Counsel 

for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765 (2003), is disapproved 

to the extent it was determined therein that a 2-year suspension was a 

sufficient sanction based on the egregious conduct substantiating the 

grounds for disciplinary action.

Original action. Judgment of suspension.

Julie L. Agena, Assistant Counsel for Discipline, for relator.

Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for 

respondent.

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

Papik, JJ., and Hall, District Judg

Per Curiam

This is an attorney discipline case in which the only question before this court is the appropriate sanction. Kent J. 

Trembly admits to receiving a felony conviction for filing a 

false individual income tax return in the U.S. District Court for 

the District of Nebraska. The referee recommended Trembly be 

suspended from the practice of law for 18 months. However, 

after our de novo review of the record, we conclude a 3-year 

suspension from the practice of law is the proper sanction.

BACKGROUND

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

Nebraska on September 28, 1994. At all relevant times, he was 

engaged in the practice of law in Wahoo, Nebraska.
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Grounds for Attorney Disc

On December 16, 2015, the U.S. District Court for the 

District of Nebraska accepted Trembly’s plea of guilty and 

found him guilty of the charge of filing a false tax return for 

tax year 2006, under I.R.C. § 7206(1) (2012). Specifically, 

Trembly filed a U.S. individual tax return that failed to report 

any gross receipts from his business activity—involving 

legal, veterinary, supplement sales, and investment brokerage businesses—omitting gross receipts of $1,110,982.77. On 

December 8, 2016, Trembly was sentenced to probation for 2 

years, with 6 months of home restriction, and restitution in the 

amount of $110,374.58.

Procedural Hist

On May 3, 2017, Counsel for Discipline of the Nebraska 

Supreme Court filed formal charges against Trembly, alleging 

that he violated his oath of office as an attorney, Neb. Rev. 

Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond. 

§ 3-508.4(a) through (c). Trembly admitted to these allegations in his answer, and we sustained Counsel for Discipline’s 

motion for judgment on the pleadings limited to the facts. We 

then appointed a referee for the taking of evidence limited to 

the appropriate discipline.

Referee’s Repo

After an evidentiary hearing, the referee reported his findings of fact and recommendations for the appropriate sanction. The referee reasoned that omitting over $1 million of 

income from a tax return was serious, needed to be deterred, 

and reflected poorly on the reputation of the bar as a whole. 

However, the referee noted that Trembly’s actions did not harm 

any clients and that “Trembly has accepted responsibility for 

the actions that form the basis of this proceeding, has satisfied 

all terms of his probation and has cooperated with Counsel for 

[D]iscipline to resolve this matter expeditiously.”

The referee also identified certain mitigating factors that 

reflect on Trembly’s present and future fitness to practice 

law: Trembly’s cooperation with Counsel for Discipline and 
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acceptance of responsibility; Trembly’s lack of prior disciplinary issues, with Counsel for Discipline or the professional 

boards in the three states where he holds a veterinarian license; 

and his honorable discharge from the Nebraska Air National 

Guard as a lieutenant colonel in 2014.

In the report, the referee acknowledged the seriousness of a 

felony conviction and that this court has generally found disbarment to be the appropriate sanction for attorneys who have 

received a felony conviction. Nevertheless, the referee stated 

that such discipline was not required and that “the nature of 

the conduct . . . ought to be evaluated more thoroughly than the 

final classification of any criminal proceeding.”

The referee found Trembly’s conduct more egregious than 

in cases where attorneys filed no income tax returns, receiving 1-year suspensions, but less egregious than in State ex rel. 

Counsel for Dis. v. Mills1 (Mills I), where we issued a 2-year 

suspension. Because the attorney in Mills I, Stuart B. Mills,

was convicted of a felony for the conduct we had disciplined 

him for after our proceedings and he received no additional 

suspension because of the conviction, the referee determined 

Trembly’s felony conviction was essentially irrelevant to determining his discipline. In weighing the factors for imposing 

discipline and the mitigating factors, the referee determined 

the appropriate sanction for Trembly fell between cases involving 1-year and 2-year suspensions. Accordingly, the referee 

recommended Trembly be suspended from the practice of law 

for 18 months.

ASSIGNMENT OF ERROR

The only question before this court is the appropriate 

discipline.

STANDARD OF REVIEW

[1] Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations 

1 State ex rel. Counsel for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765 (2003).
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de novo on the record, reaching a conclusion independent of 

the referee’s findings.2

ANALYSIS

[2-4] The basic issues in a disciplinary proceeding against 

an attorney are whether discipline should be imposed and, 

if so, the appropriate discipline under the circumstances.3 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.4 Each attorney 

discipline case must be evaluated in light of its particular facts 

and circumstances.5

Violation of a disciplinary rule concerning the practice 

of law is a ground for discipline.6 Further, criminal offenses 

committed by an attorney and involving violence, dishonesty, 

breach of trust, or serious interference with the administration 

of justice require imposition of attorney discipline.7

Trembly admitted being convicted of a felony for filing a 

false individual income tax return and violating the Nebraska 

Rules of Professional Conduct and his oath of office as an 

attorney, § 7-104, in his answer to the formal charges. Thus, 

we granted Counsel for Discipline’s motion for judgment on 

the pleadings as to the facts substantiating the grounds for 

2 State ex rel. Counsel for Dis. v. Halstead, 298 Neb. 149, 902 N.W.2d 701 

(2017).

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

(2018).

4 Id.

5 Id.

6 Id.

7 See § 3-508.4, comment 2. See, also, State ex rel. Counsel for Dis. v. Walz, 

291 Neb. 566, 869 N.W.2d 71 (2015).
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disciplinary action. We must now determine the appropriate 

sanction.

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[.]”

[5,6] 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.8 The propriety 

of a sanction must be considered with reference to the sanctions imposed in prior similar cases.9

Nature of Offen

We have stated that “[t]here should be no question that 

the knowing failure to file tax returns and to pay taxes is a 

serious violation of the ethical obligations of an attorney.”10

Trembly’s actions are even more serious in light of his affirmative misrepresentation to the Internal Revenue Service (IRS) by 

underreporting his income and signing that the amount he did 

report was accurate. We have stated that the failure to file a tax 

return is a crime of moral turpitude, which is now reflected in 

a professional conduct rule prohibition against “commit[ing] 

a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; 

[and] engag[ing] in conduct involving dishonesty, fraud, deceit 

or misrepresentation.”11

8 Jorgenson, supra note 3.

9 Id.

10 State ex rel. NSBA v. Caskey, 251 Neb. 882, 889, 560 N.W.2d 414, 418 

(1997).

11 § 3-508.4.
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Another important consideration regarding the nature of 

Trembly’s offense is the sheer magnitude of Trembly’s conduct. The fact that Trembly underreported over $1.1 million in income makes the misrepresentation substantially more 

egregious.

Deterrence and Reputation

Attorneys have an “‘obligation to uphold the laws of the 

United States’ and [a] felony conviction thus ‘violate[s] basic 

notions of honesty and endanger[s] public confidence in the 

legal profession’” at the most egregious level.12 Accordingly, 

crimes severe enough to warrant a felony conviction are those 

most detrimental to the bar and require a sanction deterring other 

members of the bar from committing such actions. While felonies resulting from actions harming a client or committed in the 

performance of duties as a legal professional are distinguishable 

from felonies committed as a member of the public, both violate 

the basic notion that attorneys are guardians of the law.

Protection of P

Trembly’s actions were in his capacity as an individual, not 

an attorney, and did not harm any clients.

Nevertheless, 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.13

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

the bar.14

Attitude of Respon

The referee stated, “Trembly has accepted responsibility for 

the actions that form the basis of this proceeding, has satisfied 

12 State ex rel. Counsel for Dis. v. Council, 289 Neb. 33, 47, 853 N.W.2d 

844, 854 (2014).

13 Walz, supra note 7.

14 Id.
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all terms of his probation and has cooperated with Counsel for 

[D]iscipline to resolve this matter expeditiously.”

Fitness to Continue Practic

[7] There was no evidence presented of Trembly’s being 

unfit to practice law based on any mental condition or any 

other issue in personal life. As mentioned above, a criminal 

act of any kind negatively reflects on an attorney’s fitness to 

practice law. A pattern of noncompliance with our disciplinary 

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

serious sanctions.15

Trembly’s honorable discharge from the National Guard, his 

lack of other misconduct in the legal and veterinary professions, and his commitment to remedying his improper action 

each weigh in favor of his fitness. In fact, this single indiscretion, which occurred over 10 years ago, on his otherwise 

unblemished record of 23 years of legal practice provides a 

strong indication that he is fit to continue practicing and is 

unlikely to reoffend.16

Aggravating 

As discussed above, the referee acknowledged that a felony 

conviction for the conduct at issue in disciplinary proceedings 

is significant, yet the referee gave little weight to Trembly’s 

felony conviction in the recommended sanction. Neither 

Counsel for Discipline nor Trembly takes exception with the 

18-month suspension recommended by the referee. However, 

Counsel for Discipline argues Trembly should be strongly 

sanctioned for his felony conviction.

Trembly contends that the referee was correct in determining we have not adopted a bright-line rule requiring disbarment for a felony conviction and the underlying conduct, 

not the felony conviction, should be our focal point for 

15 Jorgenson, supra note 3.

16 See Walz, supra note 7.
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determining discipline. He argues focusing on a conviction 

for the underlying conduct places undue influence on “the 

serendipitous exercise of unfettered discretion by a prosecuting authority.”17

As the referee and parties acknowledge, we have not 

adopted a bright-line rule requiring the disbarment of attorneys who receive a felony conviction. In State ex rel. Counsel 

for Dis. v. Walz,

18 we explained that “[a]lthough we have not 

stated a ‘bright line rule,’ our case law involving discipline 

for felony convictions indicates that such a conviction reflects 

adversely upon a lawyer’s fitness to practice law and that disbarment is considered to be the appropriate sanction.” We note 

many of the cases cited in Walz included additional significant 

aggravating factors to the felony conviction.19 Nevertheless, 

we stand behind our statement that the serious nature of a 

felony conviction alone is sufficient to warrant disbarment as 

an appropriate sanction but reiterate that such a sanction is 

not required.

Additionally, we do not believe this court should impose a 

bright-line rule that a felony conviction creates a presumption 

in favor of disbarment, as we have for acts of misappropriating funds and commingling.20 Unlike those violations, the acts 

that may result in a felony conviction are simply too numerous 

to apply a rigid rule governing our determination of how to 

handle such conduct. Therefore, we agree with the parties that 

the nature of the conduct underlying the conviction, as well 

as the other factors for determining discipline, is the proper 

focal point for our proceedings. Nevertheless, we also refuse 

to adopt a rule that gives no effect to the existence of a felony 

conviction for the actions of an attorney.

17 Brief for respondent at 9.

18 Walz, supra note 7, 291 Neb. at 575, 869 N.W.2d at 77.

19 See, Council, supra note 12; State ex rel. Counsel for Dis. v. Wintroub, 277 

Neb. 787, 765 N.W.2d 482 (2009).

20 See Council, supra note 12.
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We are not persuaded by Trembly’s argument that the discretionary decision of a prosecuting authority justifies disregarding the ultimate result of criminal charges. Instead, holding 

that the discretionary decision of an attorney charged with the 

duty of enforcing the law justifies disregarding the ultimate 

determination of a judge or jury on the charges brought would 

only harm the legal profession. Such discretionary decisions 

are based on the severity of the underlying offense and the 

need to deter others from committing similar acts, among other 

considerations; these are the same factors we consider in our 

own determination for sanctions. Further, the end result of a 

felony conviction carries with it substantial implications to the 

reputation of the bar and the protection of the public deserving 

of an appropriate disciplinary response.

We also reject the notion that our reinstatement of Mills 

without further sanctions established a precedent that a felony 

conviction is meaningless to the appropriate discipline for an 

attorney’s conduct.21 In Mills I, we determined the discipline 

appropriate for Mills’ misconduct before any conviction had 

been imposed. Then, during our reinstatement proceedings in 

State ex rel. Counsel for Dis. v. Mills22 (Mills II), we considered only whether Mills affirmatively showed both that he had 

fully complied with the order of suspension and that he would 

not engage in practices offensive to the legal profession in 

the future, which he had. Whether Mills should have received 

further sanction for his felony conviction was not before this 

court. Instead, we explained Mills had been disciplined for his 

underlying conduct, with a 2-year suspension, and later for 

his felony conviction in separate proceedings, with a private 

reprimand, which Counsel for Discipline did not appeal to 

this court.23

21 See State ex rel. Counsel for Dis. v. Mills, 272 Neb. 56, 736 N.W.2d 712 

(2006).

22 Id.

23 Id.
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[8] As we indicated in Walz, the fact that Mills had not 

been convicted of a felony at the time of our disciplinary proceedings was relevant to our consideration of the appropriate 

discipline.24 Therefore, we consider a felony conviction to be 

a strongly aggravating factor in determining the sanction ultimately imposed on an attorney.

Mitigating F

[9,10] Trembly fully cooperated with Counsel for Discipline, 

admitted to his misconduct, took responsibility for his actions, 

had practiced for many years, and had no previous disciplinary 

history. Further, the violation he committed was a completely 

isolated act not part of any pattern of misconduct. These are all 

mitigating factors.25 Further, a continuing commitment to the 

legal profession and the community is also a mitigating factor 

in an attorney discipline case.26

[11] In his brief, Trembly argues that letters attesting to his 

good character and honesty were submitted to the referee as 

evidence. However, these letters were not mentioned in the 

referee’s report, and Trembly has not taken exception to the 

findings of fact in the referee’s report. When no exceptions to 

the referee’s findings of fact in an attorney discipline case are 

filed, the Nebraska Supreme Court may consider the referee’s 

findings final and conclusive.27 We find the referee’s report 

final and conclusive, so we do not consider any letters submitted on Trembly’s behalf.

Prior Case

On two prior occasions, we have issued sanctions to attorneys who received a felony conviction for the same offense 

24 Walz, supra note 7.

25 Halstead, supra note 2; Council, supra note 12.

26 Council, supra note 12.

27 State ex rel. Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804 

(2017).
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as Trembly.28 However, in both cases, the attorney voluntarily 

surrendered his license and we determined disbarment was an 

appropriate sanction without analysis.29 Accordingly, we do 

not find either case binding here, where Trembly has not chosen to voluntarily relinquish his license.

Further, our reinstatement proceedings on one of these 

cases, State ex rel. NSBA v. Scott,

30 evidences its dissimilarity from the present case. During that proceeding, we 

reviewed the conduct of the attorney which formed the basis 

for the disciplinary proceedings: He admitted to receiving a 

felony conviction for filing a false income tax return and to 

filing false income tax returns continuously for 15 years.31

In determining whether the attorney should be reinstated, 

we considered the fact he still owed the State of Nebraska 

$18,000 and the IRS $300,000 to $400,000 in unpaid taxes, 

fees, and penalties and over $61,000 in restitution for his 

underlying misconduct.32 Additionally, we noted that 1 week 

before his disbarment, the attorney had received a 1-year 

suspension for deliberately lying to a court, among other 

misconduct.33

The cumulative acts of misconduct and an overall pattern 

of violating our ethical rules, the failure to comply with the 

restitution order of the sentence, and the voluntary license surrender each show a stark contrast between the circumstances 

in State ex rel. NSBA v. Scott34 and this case. We note our 

proposition of law that disbarment ought not to be imposed 

28 State ex rel. NSBA v. Scott, 252 Neb. 749, 566 N.W.2d 741 (1997); State 

ex rel. NSBA v. Watkins, 252 Neb. 588, 563 N.W.2d 790 (1997).

29 Id.

30 State ex rel. NSBA v. Scott, 275 Neb. 194, 745 N.W.2d 585 (2008).

31 Id.

32 Id.

33 Id.

34 Id.
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for an isolated act unless the act is of such a nature that it is 

indicative of permanent unfitness to practice law.35

We have also sanctioned attorneys in numerous cases for 

failing to file income tax returns, each representing a pattern of 

failure to do such.36 In these cases, we have consistently sanctioned the attorneys with a 1-year suspension of their license.37

This case, however, is distinguishable from these cases based 

on the affirmative misrepresentation, the felony conviction, and 

the magnitude of the offense.

The referee found Mills I to be the most analogous case 

to the facts here but also stated that the facts of Mills I were 

more egregious. In Mills I, Mills’ misconduct included filing a 

federal estate tax return form with the IRS containing affirmative misrepresentations. Additionally, Mills showed a pattern 

of misconduct by improperly notarizing and altering client 

renunciations and deeds, lying to an IRS agent, encouraging 

his clients to lie to an IRS agent, and causing a loss to the 

estate he was handling.38

We considered these violations collectively as an isolated 

incident in the attorney’s career because they occurred in 

the course of one case.39 Other mitigating factors included 

Mills’ full compliance with Counsel for Discipline, showing 

of remorse, otherwise unblemished career of 30 years, and 

community involvement. We sanctioned Mills with a 2-year 

suspension.40

Also, as noted above, Mills was convicted of a felony 

for his filing with the IRS after our proceedings in Mills I. 

35 State ex rel. NSBA v. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987).

36 See, e.g., State ex rel. NSBA v. Duchek, 224 Neb. 777, 401 N.W.2d 484 

(1987); State ex rel. Nebraska State Bar Assn. v. Fitzgerald, 165 Neb. 212, 

85 N.W.2d 323 (1957).

37 Id.

38 Mills I, supra note 1.

39 Id.

40 Id.
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We noted in Walz that the absence of this aggravating factor when we sanctioned Mills may have affected the ultimate sanction.41

[12] In light of the felony conviction Mills received and the 

egregious conduct substantiating the grounds for disciplinary 

action, we disapprove of the 2-year suspension imposed in 

Mills I to the extent that it was considered sufficient.

We agree that Mills I includes similar misconduct and mitigating factors to the case at hand. While the breadth of Mills’ 

misconduct was greater than Trembly’s and represented a pattern of misconduct, Trembly’s misconduct was of a greater 

magnitude. Both attorneys had long careers with only one 

period of misconduct, were fully cooperative with Counsel 

for Discipline, and presented other mitigating factors. Based 

on our determination that the 2-year suspension in Mills I was 

insufficient and on the strongly aggravating factor of a felony 

conviction, we think a 2-year suspension would also be insufficient here.

Sanc

Trembly’s felony conviction for filing a false income tax 

return underreporting more than $1.1 million in income was 

an offense of moral turpitude that requires a sanction sufficient to maintain the public’s confidence in the bar and deter 

such action in other attorneys. Further, the magnitude of the 

violation and the resulting felony conviction aggravate the 

misconduct. Conversely, Trembly’s attitude and demonstrated 

fitness to continue practicing law, the fact that no clients were 

harmed by his actions, and the numerous mitigating factors 

each warrant leniency.

These factors make this case most analogous to Mills I, 

in which we sanctioned the attorney with a 2-year suspension. Because the sanction imposed in Mills I was insufficient 

for the violation and because of the aggravating factor of 

41 Walz, supra note 7.
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Trembly’s felony conviction, we hold that a 3-year suspension of Trembly’s license is necessary to maintain the public’s confidence in the bar and deter such action in other 

attorneys.

CONCLUSION

Upon our de novo review of the record, we conclude the 

appropriate sanction for Trembly’s misconduct is a 3-year suspension. Accordingly, we find the referee’s recommendation of 

an 18-month suspension to be in error.

Trembly is hereby suspended from the practice of law for a 

period of 3 years, effective immediately. Trembly 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. Trembly is 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 of the 

disciplinary rules within 60 days after an order imposing costs 

and expenses, if any, is entered by the court.

Judgment of suspens

Heavican, C.J., not participating in the decisi