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For the reasons stated, we hold that the district court did 

not abuse its discretion in denying the motion for CERA 

testing of the shell casings. Young failed to present evidence establishing that CERA testing was a new DNA test 

capable of producing noncumulative, exculpatory evidence 

and that the test was effectively unavailable at the time of his 

2009 trial.

CONCLUSION

For the reasons stated herein, we affirm the district court’s 

denial of Young’s amended motion for DNA testing.

Affirmed.

State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, 

v. Stephen L. Smith, respondent.

___ N.W.2d ___

Filed March 28, 2014. No. S-07-397.

1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admission cases, the Nebraska Supreme Court reviews recommendations de novo on 

the record, reaching a conclusion independent of the referee’s findings. When 

credible evidence is in conflict on material issues of fact, the court considers and 

may give weight to the fact that the referee heard and observed the witnesses and 

accepted one version of the facts rather than another.

2. Disciplinary Proceedings. The Nebraska Supreme Court, as the court which disbars a lawyer, also has the inherent power to reinstate him or her to the practice 

of law.

3. ____. In considering an application for reinstatement to the practice of law, the 

Nebraska Supreme Court owes a solemn duty to protect the public and the legal 

profession, which consideration must be performed without regard to feelings of 

sympathy for the applicant.

4. ____. A mere sentimental belief that a disbarred lawyer has been punished 

enough will not justify his or her restoration to the practice of law. The primary 

concern is whether the applicant, despite the former misconduct, is now fit to be 

admitted to the practice of law and whether there is a reasonable basis to believe 

that the present fitness will permanently continue into the future.

5. Disciplinary Proceedings: Proof. A disbarred attorney has the burden of proof 

to establish good moral character to warrant reinstatement. The applicant must 

carry this burden by clear and convincing evidence.
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6. ____: ____. The proof of good character must exceed that required under an 

original application for admission to the bar because it must overcome the former 

adverse judgment of the applicant’s character.

7. ____: ____. The more egregious the underlying misconduct, the heavier an applicant’s burden to prove his or her present fitness to practice law.

Original action. Judgment of reinstatement.

Kent L. Frobish, Assistant Counsel for Discipline, for 

relator.

Stephen L. Smith, pro se.

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

Miller-Lerman, and Cassel, JJ.

Per Curiam.

INTRODUCTION

Stephen L. Smith was disbarred in 2008. He filed a petition for reinstatement on March 11, 2013. Following a hearing, the referee recommended that the petition for reinstatement be denied. For the reasons stated below, we grant 

Smith’s petition.

FACTUAL BACKGROUND

Smith was admitted to the practice of law in 1994, and was 

a solo practitioner in Omaha, Nebraska. Smith was retained 

by Thomas Kawa in 2005. In 2006, Kawa filed a grievance 

against Smith, alleging that Smith had not provided him an 

accounting of an advance payment made by Kawa.

Smith neglected to respond to the grievance for some time, 

and formal charges were filed against him. Though Smith 

eventually responded, his responses were both incomplete and 

not prompt. The Counsel for Discipline requested that this 

court grant a motion for judgment on the pleadings. We did 

so and, following briefing and argument, disbarred Smith on 

March 7, 2008. A more complete recitation of the underlying 

facts can be found in our opinion disbarring Smith.1

1 State ex rel. Counsel for Dis. v. Smith, 275 Neb. 230, 745 N.W.2d 891 

(2008).
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On March 11, 2013, Smith filed a petition for reinstatement. This court appointed a referee, and a hearing was held 

on Smith’s petition. The evidence presented at the hearing 

included Smith’s testimony, six letters of recommendation, 

a letter from a psychologist, a certificate of completion for 

continuing legal education relating to trust accounts, and a 

Douglas County District Court order and Nebraska Court of 

Appeals memorandum opinion, case No. A-09-611 filed April 

23, 2010, relating to a suit filed by Smith against Kawa.

In his testimony, Smith gave a narrative generally explaining 

that his failure to respond to the initial charges was primarily 

due to the fact that he knew he did not have the proper records 

to do so. Smith indicated in his testimony that if the full story 

regarding the incident with Kawa had been known at the time 

of the formal charges, Smith might not have been disbarred. 

But Smith also takes full responsibility for his failings in 

not keeping proper trust account records and in not properly 

responding to the grievance and charges against him.

Smith indicated that he had a mental health evaluation done 

following his disbarment and that the doctor recommended 

medication, counseling, and further testing. Smith admits 

that he did none of these things. He testified that he did not 

take the recommended medication because he did not feel it 

was necessary. He stated that the symptoms he was experiencing were situational and that he felt they would improve 

over time.

Smith also testified that he periodically met with an acquaintance who was a psychologist to “discuss[] things.” As for the 

testing, there was an indication from the record that he was 

also informed by the acquaintance psychologist that it would 

not be beneficial.

One exhibit is a letter from that psychologist who indicated 

that the depression Smith suffered from at the time of disbarment was a “normal reaction” and that Smith “indicated that 

he has addressed the issues for which he was disbarred. Such 

actions show he moved out of the depression and worked 

toward his future.”

In his testimony, Smith indicated that he had spent the last 

5 years working with his wife, who owned and operated a 
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restaurant and a property management business. Smith testified 

that his job involved legal aspects, though he never acted as 

an attorney. He also testified that he had completed a class on 

trust account management. He testified that he knew he would 

not have the same problems in the future and that he has a 

“better idea of how to keep clear and accurate records.”

The Counsel for Discipline presented no evidence and did 

not object to Smith’s petition. At the hearing, the Counsel 

for Discipline did not specifically request that any conditions 

be placed on Smith’s reinstatement; at oral argument, the 

Counsel for Discipline suggested that Smith be supervised 

for a period of time following any reinstatement. Following 

the hearing, the referee recommended that Smith’s petition 

be denied.

Smith now asks this court to grant his petition for reinstatement. The Counsel for Discipline agrees that the petition 

should be granted.

STANDARD OF REVIEW

[1] In attorney discipline and admission cases, we review 

recommendations de novo on the record, reaching a conclusion 

independent of the referee’s findings.2 When credible evidence 

is in conflict on material issues of fact, however, 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.3

ANALYSIS

[2-4] As the court which disbarred Smith, we have the inherent power to reinstate him to the practice of law.4

 We recognize, however, that in considering an application for reinstatement to the practice of law, this court owes a solemn duty to 

protect the public and the legal profession, which consideration 

must be performed without regard to feelings of sympathy for 

2 State ex rel. Counsel for Dis. v. Scott, 275 Neb. 194, 745 N.W.2d 585 

(2008).

3 Id.

4 See id.
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the applicant.5 A mere sentimental belief that a disbarred lawyer has been punished enough will not justify his or her restoration to the practice of law. The primary concern is whether 

the applicant, despite the former misconduct, is now fit to be 

admitted to the practice of law and whether there is a reasonable basis to believe that the present fitness will permanently 

continue into the future. In short, reinstatement after disbarment is difficult.6

[5-7] A disbarred attorney has the burden of proof to establish good moral character to warrant reinstatement.7

 The applicant must carry this burden by clear and convincing evidence.8

The proof of good character must exceed that required under 

an original application for admission to the bar because it must 

overcome the former adverse judgment of the applicant’s character.9

 It naturally follows that the more egregious the underlying misconduct, the heavier an applicant’s burden to prove his 

or her present fitness to practice law.10

In concluding that Smith’s petition should be granted, we 

examine our prior case law. In State ex rel. Counsel for Dis. v. 

Scott,

11 we had previously suspended the petitioner for 1 year 

for deliberately lying to a court and, 1 week later, disbarred 

him following his conviction for filing a false tax return. He 

filed for reinstatement 8 years later.

This court denied his petition. We noted that after the petitioner was released from prison, he had taken “positive steps” 

to “reestablish himself in the community.”12 We also noted 

that “he now takes responsibility for his past mistakes and 

appears to be remorseful.”13 But we still found the “evidence 

5 Id.

6 Id.

7 Id.

8 See id.

9 Id.

10 Id.

11 Id.

12 Id. at 203, 745 N.W.2d at 592.

13 Id.
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of [the petitioner’s] present moral character to be insufficient 

to overcome the heavy burden imposed by his past egregious 

misconduct.”14

In denying the petition, we distinguished the petitioner’s 

case from others by noting that the petitioner had a “significantly greater history of dishonest conduct.”15 We also noted 

that the petitioner had failed to make restitution to the Internal 

Revenue Service, despite the fact that he still owed between 

$300,000 and $400,000.16

We also denied a petition for reinstatement in State ex rel. 

Counsel for Dis. v. Mellor.

17 There, the petitioner was disbarred following a federal felony conviction for possession of 

child pornography. We noted that following his release from 

prison, the petitioner sought treatment with a counselor and 

was making “‘excellent’ progress.”18 But we noted two incidents, which the petitioner’s therapist described as “‘slip[s]’” 

caused by stress, and expressed concern, observing that the 

“practice of law is a profession which can be attended by significant stress.”19

We also shared “the referee’s concern that the record 

include[d] no testimony or written support from lawyers or 

judges regarding [the petitioner’s] present character and fitness 

to practice law.”20 We further concluded that the petitioner had 

not “demonstrated that he [was] currently competent to practice law in Nebraska,” as prior to disbarment, the petitioner’s 

law practice in Nebraska was rather limited and he had twice 

failed the Kansas bar examination.21

14 Id.

15 Id.

16 Scott, supra note 2.

17 State ex rel. Counsel for Dis. v. Mellor, 271 Neb. 482, 712 N.W.2d 817 

(2006).

18 Id. at 484, 712 N.W.2d at 819.

19 Id. at 486, 712 N.W.2d at 821.

20 Id.

21 Id. at 488, 712 N.W.2d at 822.
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But we granted a petition for reinstatement in State ex rel. 

NSBA v. Kinney.22 There, the petitioner was disbarred after 

embezzling about $23,000 from his employer’s law firm. And 

several years prior, the petitioner had taken about $20,000 in 

fees, which fees were later repaid. About 20 years after his 

disbarment, the petitioner sought reinstatement.

In granting his petition, we noted that following disbarment, the petitioner had sought treatment for alcohol, drugs, 

and gambling addictions, and then lived in a halfway house. 

He also participated in Alcoholics Anonymous meetings. The 

petitioner acknowledged having an occasional glass of wine 

with friends, but had no recurrence of his previous alcohol problems.

In addition to treatment, the petitioner had paid restitution to his former employer. And his work history following 

disbarment was related to his legal background and showed 

that he was a “responsible and trusted employee.”23 The 

petitioner was also involved with various charitable organizations. Two persons testified as to the petitioner’s good 

moral character, and another 11 individuals, including two 

lawyers, wrote letters supporting his reinstatement. Finally, 

we observed that the petitioner had taken full responsibility 

for his past mistakes.

Because the petitioner had not practiced law in 20 years, this 

court required him to pass the bar examination as a condition 

to reinstatement. We were concerned with his knowledge of the 

law, despite the fact that he had been working in the legal field 

and had attended continuing legal education.

We conclude that Smith should be reinstated to the practice of law. While Smith clearly holds some animosity with 

respect to the circumstances resulting in his disbarment, he 

has accepted responsibility for his role in those events, notably for his failure to respond to the inquiries of the Counsel 

for Discipline and for not keeping more accurate trust account 

records. We also note that Smith was convicted of no crime 

22 State ex rel. NSBA v. Kinney, 274 Neb. 412, 740 N.W.2d 607 (2007).

23 Id. at 417, 740 N.W.2d at 612.
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and that results of separate litigation show that Kawa’s allegations against Smith were without merit.

The record shows that Smith’s failure to respond to the 

Counsel for Discipline was due at least in part to the fact that 

he was depressed. Smith sought some treatment for this condition, though he declined to take medication. The record indicates that this depression was situational and has lifted since 

the time of his disbarment.

Since disbarment, Smith has remained actively working with 

his wife’s company, using skills he attained as an attorney, 

though not practicing law. Moreover, Smith has taken a course 

in trust account management. And the record includes several 

letters recommending Smith’s reinstatement written by three 

judges, one attorney, two doctors, and Smith’s wife. While 

such steps alone are not enough to mandate reinstatement, they 

certainly support the conclusion that reinstatement might well 

be appropriate.

Finally, and notably, the Counsel for Discipline does not 

object to Smith’s reinstatement.

Upon due consideration, we grant Smith’s petition for reinstatement, subject to 2 years of probation and monitoring. 

In addition, because trust account practices were an issue in 

Smith’s disbarment and he proposes to reenter solo practice, 

we also condition Smith’s reinstatement upon a requirement 

that Smith retain, at his expense, an accountant to audit 

his trust account every 6 months during his probationary 

period, with the audit results to be submitted to the Counsel 

for Discipline.

CONCLUSION

We conclude that Smith has met his burden of showing by 

clear and convincing evidence that, subject to the above conditions, his license to practice law should be reinstated. His 

application is granted, and costs are taxed to Smith.

Judgment of reinstatement.