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STATE EX REL. COUNSEL FOR DIS. v. GAST

Cite as 296 Neb. 687

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. William E. Gast, responde

___ N.W.2d ___

Filed May 19, 2017. No. S-15-800.

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 the Nebraska Supreme Court 

should impose discipline and, if so, the appropriate discipline under 

the circumstances.

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. To determine whether and to what extent 

discipline should be imposed in a lawyer 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.

5. ____. Cumulative acts of attorney misconduct are distinguishable from 

isolated incidents, therefore justifying more serious sanctions.

6. ____. 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.

7. ____. In evaluating attorney discipline cases, the Nebraska Supreme 

Court considers aggravating and mitigating circumstances.

Nebraska Supreme Court Online Library

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

08/11/2017 09:07 AM CDT
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8. ____. The propriety of a sanction must be considered with reference to 

the sanctions imposed in prior similar cases.

Original action. Judgment of suspension.

Kent L. Frobish, Assistant Counsel for Discipline, for relator.

William E. Gast, pro se.

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

Kelch, and Funke,

Per Curiam

I. NATURE OF CASE

Attorney William E. Gast was charged by the Counsel 

for Discipline with violating Neb. Ct. R. of Prof. Cond. 

§§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a) and (d), and violating his oath of office as an attorney as set forth in Neb. 

Rev. Stat. § 7-104 (Reissue 2012). The charges were based on 

a series of communications sent by Gast to Douglas County 

District Court Judge Peter C. Bataillon and attorney Robert 

Craig. We conclude that Gast violated these provisions as 

charged and order that he be suspended from the practice of 

law for a period of 1 year, to be followed by a period of 2 

years’ probation upon reinstatement.

II. BACKGROUND

This disciplinary proceeding results from Gast’s conduct in the course of litigation in the case State of Florida 

v. Countrywide Truck Ins. Agency1 in the district court for 

Douglas County. The case has been appealed to this court 

several times since it was originally filed in 1998.2 The 

details of the litigation are summarized: The State of Florida, 

1 State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 

N.W.2d 69 (2016).

2 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).
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Department of Insurance (Florida), was appointed as the 

receiver of an insolvent Florida insurance company.3 Florida 

pursued a claim on behalf of the insolvent company against 

Countrywide Truck Insurance Agency, Inc. (Countrywide), 

and its owner David L. Fulkerson, alleging that Fulkerson 

converted money that was owed to the insolvent company for 

his personal use. Gast began representing Fulkerson in early 

2002. Fulkerson died in 2009, and his widow, Diederike M. 

Fulkerson (Diederike), who was the executor of his estate, 

was added as a defendant.

In the most recent appearance of that case before this 

court, Gast appealed the district court’s order granting Florida 

$15,000 in attorney fees as a sanction for a frivolous motion to 

recuse that he had filed.4

Judge Bataillon had taken over the case from another judge 

when that judge retired in 2000. Over the long course of the 

Countrywide litigation, Gast became very dissatisfied with the 

rulings of Judge Bataillon. He believed that Judge Bataillon 

made “blatant errors of law.”

In 2004, Judge Bataillon denied Gast’s motion for partial 

summary judgment on what Gast believed was an unsound 

legal basis and which he believed “made absolutely no sense 

whatsoever.” This led Gast to believe that “something is really 

wrong here, something is really, really wrong.” Gast filed a 

motion to recuse Judge Bataillon on the basis that one of his 

prior orders contained errors that could reasonably be believed 

to be based on either a lack of attention, a lack of ability, a 

lack of impartiality, or some combination of these reasons. 

The motion was denied by Judge Bataillon. Thereafter, Gast 

filed an appeal and a writ of mandamus. The mandamus was 

denied, and the appeal was dismissed for lack of a final, 

appealable order.5 Gast testified at his disciplinary hearing that 

3 See State of Florida v. Countrywide Truck Ins. Agency, supra note 1.

4 Id.

5 State of Florida v. Countrywide Truck Ins. Agency, supra note 2, 270 Neb. 

454, 703 N.W.2d 905 (2005).
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after this point, “everything that happened . . . made it appear 

to me that the outcome was being engineered.”

In 2006, the case was tried, and Gast was convinced the 

result was “predetermined.” At the conclusion of the evidence, 

Florida moved for a directed verdict, which the district court 

granted.6 On appeal, this court reversed the directed verdict, 

reasoning that the intent to defraud creditors is a factual question that should have been decided by the jury.7

After Fulkerson died in 2009, Florida pursued its claim 

against his estate in probate court, which denied the claim. 

After this, Fulkerson’s estate was dropped as a defendant in 

the district court litigation, but Florida continued pursuing its 

claims against his widow, Diederike.

The case was retried to the bench and submitted in April 

2014. After submitting proposed findings of fact and conclusions of law to the court, Gast sent a “Personal, Private and 

Confidential Memorandum” to Judge Bataillon and opposing 

counsel Craig, dated April 15, 2014 (referred to as “exhibit 

A”). The memorandum insinuated that “personal reasons” 

were driving Judge Bataillon’s actions in the case. It states 

in part:

I can only speculate as to your personal reasons, but 

I choose not to. Unfortunately, whatever those might be, 

they may indeed overwhelm [Diederike’s] health. If that 

happens, how will you feel? Not good, I’m sure.

I have long accepted that I will die without ever knowing the real reason(s) for what has transpired in this 

matter since I first became involved in early 2002. But 

I do know that neither I, . . . Fulkerson, nor [Diederike] 

have ever done anything to deserve the hostility that has 

prevailed from my very initial involvement. Which, by 

the way, long predated and actually necessitated the recusal request.

6 State of Florida v. Countrywide Truck Ins. Agency, supra note 2, 275 Neb. 

842, 749 N.W.2d 894 (2008).

7 Id.
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. . . Consider what it is doing to a very sweet 79-yearold woman who deserves NONE of the emotional and 

physical damage that this is causing her. Also, how it 

could impact the integrity and reputation of an otherwise 

respectable Judgeship. And third, the worsening consequences to [Craig] for the mounting costs to Florida and 

the [insolvent company’s] creditors.

. . . .

Bottom line, this case is over, and you both know it. 

The sooner that it is made official, the better it will be 

for all concerned . . . especially the justice system of this 

State, for which it has been a “black eye” for years. If it is 

left to the Supreme Court to do so, it could be very ugly 

indeed for everyone. Ending it now might allow for some 

face-saving for all concerned, and for some well-deserved 

relief for [Diederike].

This memorandum was sent about a week after the case was 

submitted to the court.

In July 2014, Gast’s wife had lunch with the ex-wife of 

Craig. She told Gast’s wife that Craig and Judge Bataillon 

(then-attorney Bataillon) had been “best buds.” According 

to Gast:

[Craig’s ex-wife] related parties, dinner engagements at 

the Omaha Press Club, and the softball team on which . . . 

Craig and [then-attorney] Bataillon played. She told me 

the details, and they would have parties afterwards, and 

sometimes they would go to bars, and the wives would 

meet them, and she referred to Bataillon as Pete.

In August 2014, Gast filed a second motion to recuse Judge 

Bataillon, citing Neb. Rev. Code of Judicial Conduct § 5-302.4 

that “[a] judge shall not permit . . . social . . . interests or 

relationships to influence the judge’s judicial conduct or judgment.” The motion also stated:

This Motion is additionally based upon (among other 

violations) newly-acquired evidence of this Court’s lack 

of “impartiality,” lack of “independence,” and lack of 

“integrity” (as those terms are defined in the Nebraska 
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Code of Judicial Conduct) that existed from soon after 

the Hon. Peter C. Bataillon inherited this action from the 

Hon. Michael McGill and that has continuously persisted 

throughout the period of more than twelve years to the 

very date of this Motion.

It further alleged that Gast “very recently acquired reliable 

information that, for a period of at least twenty years prior to 

the appointment of . . . Judge Bataillon to the Douglas County 

District Court, a very close personal friendship and continuous social relationship had existed between” Judge Bataillon, 

Craig, and Craig’s cocounsel. The petition alleged that the 

relationship was never disclosed by Craig or Judge Bataillon 

and that “the relationship has been improvidently, unethically 

and continuously concealed by the Hon. Peter C. Bataillon, 

Craig and [cocounsel] from the time Bataillon inherited this 

case . . . until the very present day.”

The specific allegations in the motion to recuse included that 

then-attorney Bataillon and Craig played on a summer softball 

team together “for approximately three years in the 1970s or 

early 1980s,” including socializing after games; attended parties together at the cocounsel’s home; and attended dinners at 

the Omaha Press Club.

Following the motion to recuse, Gast sent a letter to Judge 

Bataillon and Craig (referred to as “exhibit B”). It said, 

in part:

Now that the truth of your pre-suit relationship has 

been discovered, the Docket Sheet itself demonstrates the 

“cover-up” quality to each and every successive refusal 

to disclose it after your initial failure to do so. Check 

it out yourselves. It actually takes on a crescendo-like 

appearance on its very face. The lesson about cover-ups 

is that they usually come undone eventually, and the 

consequences to those involved always amplify in direct 

proportion to their pre-discovery duration. This “coverup” is more than 12 years old!

Judge, your responsibility is obvious and it is immediate. . . . You must now recuse sua sponte. And I trust that 
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you will not force me to file the augmented Motion, or to 

conduct a public hearing on it, or to serve the Subpoenas 

or to take the Depositions.

Later in August 2014, the court held a hearing on the 

motion to recuse. At the hearing, Judge Bataillon said, “The 

only contact that I had with . . . Craig was probably in the 

early ’80s I played on the same softball team with him for 

maybe a year or two. That’s it.” Craig did not remember 

being on the same softball team as Judge Bataillon during 

the late 1970’s or early 1980’s, but had been told by Craig’s 

cocounsel that Judge Bataillon had “played some” on the 

team. Judge Bataillon was not persuaded by Gast’s claims. 

He said:

At all times I have upheld the law. At all times I have 

acted fairly and impartially based upon what the evidence 

has been, based upon what the facts have been, and things 

of that nature.

This allegation that I failed to disclose, there was nothing to disclose that — that rises to any level under the 

judicial ethics or any of the lawyers in this matter. As 

such, your motion is overruled.

In September 2014, Gast sent another letter to Judge 

Bataillon, urging him to recuse, citing a case from the Missouri 

Court of Appeals.8 In this letter, Gast suggested that Judge 

Bataillon had “badgered” Gast in a previous hearing and Gast 

“insist[ed]” that Judge Bataillon recuse “at once, for your own 

sake as much as anything else.”

In October 2014, Gast sent yet another letter to Judge 

Bataillon (referred to as “exhibit C”), which said, in part:

Judge Bataillon, you should realize that you have an 

ever-so-brief opportunity to quietly back out of this case 

on a purely technical ground, i.e. one that is not related 

to misconduct. Before you elect to pass it [sic] up this 

chance, I respectfully submit that you think very carefully 

about your own best interests.

8 Williams v. Reed, 6 S.W.3d 916 (Mo. App. 1999).
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(Emphasis in original.) In this letter, Gast references an incident in a prior hearing (after the motion to recuse hearing) 

in which Judge Bataillon disclosed that he, his wife, and her 

brother were eating dinner at a restaurant and noticed that 

Craig was also eating in the restaurant. Judge Bataillon’s wife 

went over and greeted Craig. Gast said in the letter that Judge 

Bataillon, his wife, and his brother-in-law were all material 

witnesses to the “recusal issue.” Gast wrote, “It is also extraordinarily curious that such a meeting with . . . Craig might have 

occurred purely by chance, at that very time.” He went on 

to say:

Sir, since all of that makes it “material,” my client is entitled to your own sequestered deposition in the event that 

you refuse to recuse. Moreover, all conceivable means 

of conventional and electronic communication between 

yourself and . . . Craig will have to be subpoenaed, in 

order to learn just how “chance” the . . . [r]estaurant 

encounter actually was.

Gast also threatened to depose Judge Bataillon’s wife, his 

brother-in-law, and Craig, “Unless, of course, you recuse now.” 

He concluded, “Sir, I know that you will eventually do the 

right thing. I just pray that it happens in time to do the most 

justice to the office that you hold.”

In May 2015, Judge Bataillon entered judgment for Florida 

in the approximate amount of $2.2 million. Later that month, 

Judge Bataillon granted Florida’s motion for sanctions, concluding that Gast’s motion to recuse was “‘groundless and 

frivolous,’” and awarded $15,000 in attorney fees.9 On appeal, 

this court did not review the district court’s award of attorney 

fees, because Gast’s license to practice law was suspended 

at the time he filed his brief, due to his failure to pay his 

annual dues and complete his required continuing legal education courses.10

9 State of Florida v. Countrywide Truck Ins. Agency, supra note 1, 294 Neb. 

at 403, 883 N.W.2d at 71.

10 State of Florida v. Countrywide Truck Ins. Agency, supra note 1.
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Amended formal charges were filed against Gast in February 

2016, to which Gast filed an answer. The charges were based 

on three communications he sent to Judge Bataillon and Craig: 

exhibit A, the memorandum sent in April 2014; exhibit B, the 

letter sent in August 2014; and exhibit C, the letter sent in 

October 2014.

A disciplinary hearing was held before a referee in June 

2016, at which Gast and Craig testified. At the hearing, Gast 

submitted an amended answer. The referee issued his report 

and recommendation, making the recommended finding that 

Gast had violated certain provisions of the Nebraska Rules 

of Professional Conduct and recommending that Gast be suspended for 30 days and placed on probation upon reinstatement for a period of 2 years. The counsel for discipline filed 

exceptions to the referee’s report and recommended findings 

and a supporting brief, agreeing with some of the recommended findings and disagreeing with others. Gast did not file 

a brief or any exceptions. He appeared at oral arguments but 

did not argue or make any comments.

1. Charge

Gast was charged with violating two particular provisions 

of the Nebraska Rules of Professional Conduct in the amended 

formal charges. These rules provide that “[a] lawyer shall 

not: (1) seek to influence a judge . . . by means prohibited by 

law”11 and that “[a] lawyer shall not make a statement that the 

lawyer knows to be false or with reckless disregard as to its 

truth or falsity concerning the qualifications or integrity of a 

judge . . . .”12 Violation of these particular rules was alleged to 

constitute a violation of the general rule against professional 

misconduct, which provides: “It is professional misconduct 

for a lawyer to: (a) violate or attempt to violate the Rules 

of Professional Conduct [or] (d) engage in conduct that is 

11 § 3-503.5(a)(1).

12 § 3-508.2(a).
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prejudicial to the administration of justice.”13 These violations also were alleged to violate Gast’s oath of office as an 

attorney, as provided in § 7-104, which requires an attorney 

to “solemnly swear [to] support the Constitution of the United 

States, and the Constitution of this state, and [to] faithfully 

discharge the duties of an attorney and counselor, according to 

the best of [his or her] ability.”

Gast admitted that he had violated § 3-503.5(a)(1) of the 

Nebraska Rules of Professional Conduct by seeking to improperly influence Judge Bataillon by going “beyond arguing the 

issues of the case and the facts in evidence therein.” But he 

denied that he had violated § 3-508.2(a) by making a statement 

that he knew was false or with reckless disregard as to its truth 

or falsity concerning the integrity of Judge Bataillon.

2. Exceptions to Recommen

of Refere

The Counsel for Discipline took exception to three of 

the referee’s recommended findings and conclusions: (1) that 

Gast did not make the statement in exhibit B with reckless 

disregard for its truth or falsity, in violation of § 3-508.2(a); 

(2) that Gast had withdrawn his admission that he violated 

§ 3-503.5(a)(1) by sending exhibit C and that Gast did not 

violate § 3-503.5(a)(1) by sending exhibit C; and (3) that Gast 

be suspended for 30 days and given probation for 2 years upon 

reinstatement.

III. STANDARD OF REVIEW

[1-3] Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations 

de novo on the record, reaching a conclusion independent 

of the referee’s findings.14 The basic issues in a disciplinary 

proceeding against an attorney are whether the Nebraska 

13 § 3-508.4(a) and (d).

14 See State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566, 869 N.W.2d 71 

(2015).
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Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.15 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.16

IV. ANALYSIS

1. § 3-503.5(a)(1): Seeking to In

Judge by Means Prohibited 

The referee recommended that we find that Gast had violated § 3-503.5(a)(1) with respect to exhibits A and B, but not 

with respect to exhibit C. The Counsel for Discipline disagreed 

with the referee’s recommended finding that Gast did not violate § 3-503.5(a)(1) with respect to exhibit C.

The referee recommended we find that Gast violated 

§ 3-503.5(a)(1) by authoring and transmitting exhibits A and 

B on the basis that in his answer and at the hearing, Gast 

admitted that those communications violated that provision. 

But the referee made the recommended finding that Gast had 

not violated this provision with respect to exhibit C for two 

reasons. First, the referee appears to have concluded that Gast 

withdrew the admission made in his answer that exhibit C 

violated this provision. Second, the referee read our decision 

in State ex rel. Counsel for Dis. v. Koenig,

17 as supporting a 

very narrow reading of the phrase “by means prohibited by 

law” in § 3-503.5(a)(1). He concluded that Gast did not seek to 

influence Judge Bataillon by means prohibited by law. We will 

address these two issues in turn.

We agree that Gast clearly admitted in his answer that he 

violated § 3-503.5(a)(1) by authoring and sending exhibit A. 

15 Id.

16 State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, ___ N.W.2d ___ 

(2017).

17 State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204, 769 N.W.2d 378 

(2009).
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We do not agree that Gast withdrew his admission that he violated that provision by sending exhibit C.

Gast admitted in his answer that he authored the letter and 

that by sending it, he “sought to improperly influence Judge 

Bataillon in violation of § 3-503.5(a)(1) of the Nebraska Rules 

of Professional Conduct.” And Gast stated at the hearing that 

his answer admitted violating this rule with respect to exhibits A, B, and C. But in another part of his answer, he says of 

exhibit C that “although its content remained within the facts 

established on the record of the courtroom proceedings” of 

the State of Florida v. Countrywide Truck Ins. Agency case, 

“the threatening tone” of the letter, which was “transmitted 

on a personal and confidential basis, may indeed be violative 

of Comment [4] of § 3-503.5(a)(1) of the Nebraska Rules of 

Professional Conduct.” The referee relied upon Gast’s statements at the hearing, in which he appeared to equivocate on his 

admission: “I’m now of the opinion [that] I was too hasty in 

agreeing that this was offensive of any rule,” and “I now regret 

the fact that I conceded a violation of Exhibit [C], but it’s in 

the Answer.”

Gast acknowledged that he did, in fact, admit to a violation 

of § 3-503.5(a)(1). At no point in the hearing did Gast seek 

to withdraw his admission orally or to amend his answer. We 

find that Gast has waived his right to contest the fact that he 

violated § 3-503.5(a)(1) of the Nebraska Rules of Professional 

Conduct by authoring and transmitting exhibits A and C.

Even if Gast had not made the admission, we conclude 

that he did violate that rule by sending those exhibits. We 

address this issue in order to clarify our interpretation 

of § 3-503.5(a)(1) of the Nebraska Rules of Professional 

Conduct and the Koenig case, which apparently caused some 

confusion.

Section 3-503.5(a)(1), which is based on rule 3.5(a)(1) 

of the American Bar Association (ABA) Model Rules of 

Professional Conduct, prohibits attorneys from seeking to 

influence a judge “by means prohibited by law.” The relevant 

question is: What constitutes “means prohibited by law” for 
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purposes of this rule? Does this include only criminal acts, 

such as bribery? Or does “law” include rules of professional 

conduct applicable to attorneys and judges?

The editors’ comments to § 3-503.5 of the Nebraska Rules 

of Professional Conduct, as well as the ABA Model Rules of 

Professional Conduct, state: “Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are 

specified in the ABA Model Code of Judicial Conduct, with 

which an advocate should be familiar. A lawyer is required to 

avoid contributing to a violation of such provisions.”18 This 

comment appears to support a broader interpretation of the 

term “means prohibited by law,” to include means prohibited 

by the Nebraska Revised Code of Judicial Conduct.

The Restatement (Third) of the Law Governing Lawyers 

states that “[a] lawyer may not . . . attempt to influence [a 

judicial] officer otherwise than by legally proper procedures,”19

and explains in a comment that “[t]he lawyer codes impose 

correlative duties on lawyers to avoid knowing participation 

in a violation of the judicial codes.”20 This persuasive authority (although not binding as are the Rules of Professional 

Conduct) supports a broader understanding of the prohibition 

on attempting to improperly influence a judge.

Similarly, other states with rules of professional conduct 

based on the ABA Model Rules of Professional Conduct have 

read rule 3.5(a) broadly.21 For example, the Supreme Court of 

Louisiana expressly rejected an argument that the “phrase ‘by 

means prohibited by law’ [in rule 3.5(a)] must be construed 

18 § 3-503.5, comment 1. Accord Model Rules of Prof. Conduct Rule 3.5, 

comment 1 (ABA 2004).

19 Restatement (Third) of the Law Governing Lawyers § 113(2) at 191 

(2000).

20 Id., comment f. at 193.

21 E.g., Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990). 

See, also, generally, Mississippi Bar v. Lumumba, 912 So. 2d 871 (Miss. 

2005); In re Disciplinary Action Against Garaas, 652 N.W.2d 918 (N.D. 

2002); Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990).
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narrowly to include only such activities as would amount 

to obstruction of justice, public bribery, or other criminal 

acts.”22 Instead the court said, “‘Conduct “prohibited by law” 

clearly includes violations of criminal law and presumably 

includes other acts that violate statutes, court rules, or other 

legal norms.’”23 The court noted that the Rules of Professional 

Conduct and the Code of Judicial Conduct have the force of 

law and found that the attorney in that case violated rule 3.5(a) 

by attempting to induce a judge to violate the judicial canon 

prohibiting ex parte communications.24

The editors’ comments to the Nebraska Rules of Professional 

Conduct, along with other persuasive authorities, support the 

conclusion that § 3-503.5(a)(1)’s prohibition on attempting to 

influence a judge “by means prohibited by law,” includes by 

means prohibited by the Nebraska Revised Code of Judicial 

Conduct and the Nebraska Rules of Professional Conduct, and 

is not limited to means prohibited by criminal law.

Relevant to this case, § 5-302.4(B) of the Nebraska Revised 

Code of Judicial Conduct provides: “A judge shall not permit 

family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.” 

The comment to that rule explains that “[a]n independent 

judiciary requires that judges decide cases according to the 

law and facts . . . .” (Emphasis supplied.) Section 5-302.4(A) 

states: “A judge shall not be swayed by public clamor or fear 

of criticism.” Neb. Rev. Code of Judicial Conduct § 5-302.9(C) 

provides: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and 

any facts that may properly be judicially noticed.” And comment 4 to § 3-503.5 of the Nebraska Rules of Professional 

Conduct explains that “[t]he advocate’s function is to present evidence and argument so that the cause may be decided 

according to law.”

22 Louisiana State Bar Ass’n v. Harrington, supra note 21, 585 So. 2d at 521.

23 Id. at 521-22.

24 Id.
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Ours is a system in which judicial decisions must be made 

on the basis of the evidence properly before the court and the 

applicable law.25 Urging a judge to make a judicial decision 

for reasons that go beyond the facts and law of the case may 

constitute a violation of an attorney’s ethical obligations and 

may constitute an invitation for the judge to violate his or her 

own ethical duties. This is especially true when, as here, the 

communication is made in private and outside the public light 

of court room proceedings.

The referee perceived some tension between the broader 

interpretation of the term “by means prohibited by law” 

that the editors’ comments to the rule support and the narrower interpretation the referee believed was supported by 

our decision in Koenig.

26 In Koenig, an attorney discipline 

case, Lyle J. Koenig represented a person—who was an 

associate in Koenig’s law practice—charged with driving 

without a valid registration or proper proof of insurance. 

Koenig photographed the license plate of the county attorney, 

which was apparently also expired. He sent a picture of the 

expired license plate along with a letter and a draft “‘Motion 

to Appoint Special Prosecutor’” to prosecute the county 

attorney for his expired vehicle registration.27 In the letter, 

Koenig threatened to file the motion if the charges against 

25 See, e.g., Matter of Boso, 160 W. Va. 38, 45, 231 S.E.2d 715, 718 (1977) 

(“[c]ourts decide cases on the basis of facts and law”). See, also, generally, 

e.g., McNair v. Campbell, 307 F. Supp. 2d 1277, 1332 (M.D. Ala. 2004), 

affirmed in part, and in part reversed on other grounds 416 F.3d 1291 

(11th Cir. 2005) (noting proposition that “the administration of justice 

should be free from extraneous control and influence, that is, factors 

outside the facts and law upon which a case is based”); Reed v. State, 232 

Miss. 432, 434, 99 So. 2d 455, 456 (1958) (stating that trials “should be 

decided on the facts and law, [free] of improper and irrelevant influences 

and possible prejudices”); State v. Hansford, 43 W. Va. 773, 777, 28 S.E. 

791, 793 (1897) (stating that “courts must decide solely upon the facts and 

law of the case”).

26 State ex rel. Counsel for Dis. v. Koenig, supra note 17.

27 Id. at 205, 769 N.W.2d at 382.
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Koenig’s associate were not dropped and promised secrecy if 

they were.

We found that Koenig’s actions constituted “conduct that 

is prejudicial to the administration of justice,” in violation of 

§ 3-508.4(d) of the Nebraska Rules of Professional Conduct. 

We also concluded that Koenig had violated § 3-508.4(e) 

by suggesting that he was able to influence a public official 

through unethical means.

However, we found that Koenig had not violated 

§ 3-508.4(b), which states that it is professional misconduct for 

an attorney to “commit a criminal act that reflects adversely on 

the lawyer’s honesty, trustworthiness or fitness as a lawyer in 

other respects,” and that he had not violated § 3-503.5(a)(1). 

We said:

In this case, the State of Nebraska has not brought a 

charge of bribery or attempted bribery against Koenig. 

There has been no trial or finding by any court that 

Koenig was guilty of any crime associated with the misconduct at issue. We decline to determine or hypothesize 

whether Koenig’s misconduct in this case would constitute a criminal act—i.e., an act that is deemed criminal, 

beyond a reasonable doubt. For similar reasons, we also 

conclude that there is insufficient evidence to show that 

Koenig violated § 3-503.5(a) which provides that “[a] 

lawyer shall not: (1) seek to influence a judge, juror, 

prospective juror or other official by means prohibited by 

law.” We therefore conclude that Koenig did not violate 

§§ 3-503.5(a)(1) and 3-508.4(b).28

The referee in the present case appears to have concluded 

that this section of our Koenig opinion adopted a narrow reading of the phrase “by means prohibited by law.” But that section does not constitute an endorsement of an interpretation 

that limits the reach of § 3-503.5(a)(1) only to criminal acts. 

As our analysis in the Koenig opinion shows (and our review 

of the formal charges in that case confirms), the alleged 

28 Id. at 210, 769 N.W.2d at 385 (emphasis supplied).
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violation of § 3-503.5(a)(1) was premised on the allegation 

that Koenig had engaged in attempted bribery, not that he 

had violated or urged the county attorney to violate the ethical duties under the Nebraska Rules of Professional Conduct. 

To clarify any ambiguity, we disapprove of Koenig to the 

extent that it can be read as limiting our interpretation of 

§ 3-503.5(a)(1) to violations of criminal law alone.

We conclude that there is clear and convincing evidence 

that Gast violated § 3-503.5(a)(1) by attempting to influence 

Judge Bataillon “by means prohibited by law,” that is, by 

means prohibited by the Nebraska Revised Code of Judicial 

Conduct and by the Rules of Professional Conduct, when he 

attempted to convince the judge to grant his motion to recuse 

and rule in his favor in the case for reasons outside of the 

evidence in the case and the applicable law, and through extrajudicial communications.

In exhibit A, the memorandum that Gast sent to Judge 

Bataillon and opposing counsel Craig, he urged the judge to 

look to the applicable law in the case but then also urged him 

and Craig to “examine your respective consciences in light 

of your Christian upbringings.” He goes on to write, “I can 

only speculate as to your personal reasons, but I choose not 

to. Unfortunately, whatever those might be, they may indeed 

overwhelm [Diederike’s] health. If that happens, how will you 

feel? Not good, I’m sure.” By doing so, Gast urged the judge 

to decide the case on the basis of his client’s health rather than 

on the evidence in the case and the applicable law.

Gast went on to write, “I only ask now that each of you 

carefully consider the consequences for not terminating it now, 

before it gets beyond the control of any of us.” He then urged 

the judge to decide the case on the basis of “how it could 

impact the integrity and reputation of an otherwise respectable Judgeship.”

He then said, “If it is left to the Supreme Court” to reverse 

on this basis, “it could be very ugly indeed for everyone. 

Ending it now might allow for some face-saving for all concerned, and for some well-deserved relief for [Diederike].” 
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Here, Gast went beyond urging the court to decide on the basis 

of the evidence in the case and the applicable law, but to rule 

in his client’s favor for “some face-saving” and for the sake of 

his client’s well-being.

In exhibit C, Gast urged Judge Bataillon to reconsider the 

denial of his motion to recuse. He wrote to the judge that “you 

should realize that you have an ever-so-brief opportunity to 

quietly back out of this case on a purely technical ground, i.e.

one that is not related to misconduct.” (Emphasis in original.) 

Gast then wrote, “Before you elect to pass it [sic] up this 

chance, I respectfully submit that you think very carefully 

about your own interests.” By writing this, Gast urged Judge 

Bataillon to either “back out of this case on a purely technical ground,” presumably on Gast’s subject matter jurisdiction 

argument, and to do so in order to protect the judge’s own 

interests, his reputation.

Within exhibits A and C, Gast urged the judge to decide 

the case on the basis of the judge’s reputation, the judge’s 

“Christian upbringing[],” the judge’s own interests, and the 

health and well-being of his client. But a judge is to make 

judicial decisions on the basis of the facts of the case and the 

applicable law.

By sending exhibits A and C, Gast violated § 3-503.5(a)(1) 

by attempting to influence Judge Bataillon to violate the 

Nebraska Revised Code of Judicial Conduct by deciding the 

case on improper and legally irrelevant grounds. As advocates, 

attorneys must “zealously assert[] the client’s position,” but 

must do so “under the rules of the adversary system,” including our ethical rules.29

We also pause to make clear that Gast’s conduct violated 

§ 3-503.5(a)(1) not only because he went beyond arguing 

the facts and the law of the case, but because he did so in 

confidential, out-of-court communications. What made Gast’s 

conduct unethical was that he not only made arguments that 

29 Nebraska Rules of Professional Conduct, Preamble ¶ 2. See, also, State ex 

rel. Counsel for Dis. v. Koenig, supra note 17.
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went beyond the evidence of the case and the applicable law, 

but that he went outside of the judicial system and made these 

improper arguments in private, confidential communications to 

the judge.

2. § 3-508.2(a): Making Statement With R

Disregard as to Its Truth or Fa

Concerning Integrity

The referee recommended that we find that there is not 

clear and convincing evidence that Gast violated the Nebraska 

Rules of Professional Conduct § 3-508.2(a) with respect to 

exhibit B. Specifically, the referee found that while Gast’s 

statement that Judge Bataillon engaged in a “cover-up” was 

false, there is not clear and convincing evidence that Gast 

made the statement with reckless disregard for its truth or 

falsity. The Counsel for Discipline disagrees with the referee’s 

recommended finding that Gast did not violate § 3-508.2(a). 

We agree with the Counsel for Discipline.

Section 3-508.2(a) of the Nebraska Rules of Professional 

Conduct states: “A lawyer shall not make a statement that the 

lawyer knows to be false or with reckless disregard as to its 

truth or falsity concerning the qualifications or integrity of a 

judge . . . .” Comment 1 to § 3-508.2 explains that “false statements by a lawyer can unfairly undermine public confidence in 

the administration of justice.”

While not raised by Gast, the referee cites authority that 

truth is an absolute defense to attorney sanctions for impugning 

the integrity of a judge and that the disciplinary body bears the 

burden of proving falsity.30 Counsel for Discipline has proved 

by clear and convincing evidence that Gast’s allegation that 

30 See Standing Committee v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995) 

(“[a]ttorneys who make statements impugning the integrity of a judge 

are, however, entitled to other First Amendment protections applicable in 

the defamation context. To begin with, attorneys may be sanctioned for 

impugning the integrity of a judge or the court only if their statements are 

false; truth is an absolute defense. . . . Moreover, the disciplinary body 

bears the burden of proving falsity”).
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Judge Bataillon engaged in a “cover-up” of a friendship with 

Craig was false.

Everyone agrees that Gast did not make a knowingly false 

statement. That is, he did not make a false statement that 

he believed to be false. By all accounts, Gast may have 

believed that Judge Bataillon had engaged in a “cover-up” of a 

friendship with Craig. The relevant question is whether, under 

§ 3-508.2(a), Gast acted “with reckless disregard as to [the] 

truth or falsity” of this allegation. We conclude that there is 

clear and convincing evidence that he did.

Because the relevant inquiry is whether Gast made the 

“cover-up” statement in exhibit B with reckless disregard as to 

its truth or falsity, we will focus on his knowledge at that time. 

We determine “reckless disregard” for the truth and falsity of a 

statement about the qualifications or integrity of a judge under 

§ 3-508.2(a) under an objective standard: “Did the attorney 

lack any objectively reasonable basis for making the statement 

at issue, considering its nature and the context in which the 

statement was made?”31

In exhibit B, Gast accused Judge Bataillon and Craig of 

engaging in a “cover-up” of their “pre-suit relationship.” 

He wrote:

Now that the truth of your pre-suit relationship has 

been discovered, the Docket Sheet itself demonstrates the 

“cover-up” quality to each and every successive refusal 

to disclose it after your initial failure to do so. Check 

it out yourselves. It actually takes on a crescendo-like 

31 See In re Dixon, 994 N.E.2d 1129, 1137 (Ind. 2013) (interpreting 

identical provision under Indiana Professional Conduct Rules). See, also, 

Board of Prof. Responsibility v. Davidson, 205 P.3d 1008, 1014 (Wyo. 

2009) (“[d]eterminations of recklessness under [the Wyoming Rules 

of Professional Conduct] are made using an objective, rather than a 

subjective standard. . . . This means that the attorney must have had an 

‘objectively reasonable’ basis for making the statements. . . . In other 

words, the standard is whether a reasonable attorney would have made the 

statements, under the circumstances, not whether this particular attorney, 

with her subjective state of mind, would have made the statements”).
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appearance on its very face. The lesson about cover-ups 

is that they usually come undone eventually, and the 

consequences to those involved always amplify in direct 

proportion to their pre-discovery duration. This “coverup” is more than 12 years old!

A coverup is generally defined as “[a]n attempt to prevent 

authorities or the public from discovering the truth about 

something; [especially] the concealment of wrongdoing by 

a conspiracy of deception, nondisclosure, and destruction of 

evidence,” and “[a] cover-up often involves obstruction of 

justice.”32 It has also been defined as “a device or stratagem 

for masking or concealing” and “a [usually] concerted effort to 

keep an illegal or unethical act or situation from being made 

public.”33 Thus, accusing a judge of a “cover-up” of a relationship with counsel is an accusation that the judge has purposefully concealed an intentional violation of the judge’s ethical 

obligations. No reasonable attorney would make such an accusation lightly and without a significant basis in fact.

While he has failed to file a brief with this court, Gast’s 

answer appears to dispute the charged violation of § 3-508.2(a) 

on the basis that his statement that Judge Bataillon and Craig 

had engaged in a coverup “did not constitute a declarative statement of fact which could be deemed to be true or false[, but, 

rather,] constituted only a possible characterization, description 

or conclusion which could be derived from other facts.” To the 

extent that this constitutes an argument that his statements are 

not subject to § 3-508.2(a) because they are merely expressions 

of opinion, not of fact, we disagree. As discussed above, the 

term “coverup” connotes an active concealment of improper 

or unethical conduct. This is not merely a subjective statement 

of opinion, but an allegation susceptible to an objective, factual inquiry.

At the time he sent exhibit B, Gast’s only basis of knowledge 

upon which he may have reached his conclusion that Judge 

32 Black’s Law Dictionary 446 (10th ed. 2014).

33 Merriam-Webster’s Collegiate Dictionary 267 (10th ed. 2001).
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Bataillon had engaged in a coverup was Gast’s wife’s conversation with Craig’s ex-wife. At the time he sent the letter, he 

had not followed up with any of the individuals whose names 

he was given to substantiate the claim that Judge Bataillon and 

Craig had been friends. None of the facts provided to Gast, as 

relayed by Gast in his testimony, show anything but a general 

social acquaintance between the two. They played on the same 

softball team and socialized with the team and the players’ 

spouses afterward, and also attended some of the same social 

events. Gast’s motion to recuse, filed days before he sent 

exhibit B, shows that he knew the two played on the same softball team for only 3 years during the 1970’s or early 1980’s, 

well over 30 years earlier. He had no evidence of a continuing relationship. Most importantly, Gast had no evidence that 

either Craig or Judge Bataillon had acted to intentionally cover 

up any past relationship.

No reasonable attorney would accuse a judge of not only 

violating his ethical duty to disclose potential conflicts but of 

covering up a relationship with counsel on the sole basis of 

knowledge (obtained from the counsel’s ex-spouse) that the 

two had decades earlier been general social acquaintances. No 

reasonable attorney would conclude that a failure to disclose an 

acquaintance with counsel from over 30 years ago was due to 

an attempt to cover up the relationship, rather than because the 

fact of the acquaintance was trivial or had been forgotten. No 

reasonable attorney would make this accusation without first 

obtaining a significant factual basis to substantiate it.

But Gast did not substantiate his claim before accusing 

Judge Bataillon of engaging in a coverup. His letters display 

an almost conspiracy-theory-like obsession with his belief that 

Judge Bataillon was biased against him. While any attorney, 

as a zealous advocate, is disappointed when he or she loses 

an argument the attorney feels should have been won, Gast’s 

behaviors exceed reasonable conduct. A reasonable attorney 

would have amassed extensive substantiating evidence before 

lodging such a serious accusation of bias and unethical conduct against a judge. But Gast took the unremarkable fact of a 
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decades-ago social acquaintance between the judge and counsel to conclude that Judge Bataillon had engaged in a coverup. 

We find by clear and convincing evidence that Gast made the 

accusation of a coverup with reckless disregard as to its truth 

or falsity, in violation of § 3-508.2(a) of the Nebraska Rules of 

Professional Conduct.

3. Other Provisi

Gast admitted in his answer that he had violated the other 

provisions he was accused of violating: § 3-508.4(a) and (d) 

(violating rules of professional conduct and engaging in conduct prejudicial to administration of justice). We agree with the 

referee that Gast has waived any objection to the charges that 

he violated these provisions.

4. Oath of Off

Gast’s oath of office as an attorney under § 7-104 includes 

the commitment to “faithfully discharge the duties of an attorney and counselor, according to the best of [one’s] ability.” 

By violating the Nebraska Rules of Professional Conduct as 

discussed above, he violated his oath of office.

5. Sanc

[4-8] Having concluded that Gast violated the Rules of 

Professional Conduct and his oath of office as attorney, we 

must determine the appropriate sanction. To determine whether 

and to what extent discipline should be imposed in a lawyer 

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.34 Cumulative acts of attorney misconduct are distinguishable from isolated incidents, 

34 State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530 

(2016).
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therefore justifying more serious sanctions.35 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.36 In evaluating 

attorney discipline cases, we consider aggravating and mitigating circumstances.37 The propriety of a sanction must be 

considered with reference to the sanctions imposed in prior 

similar cases.38

(a) Mitigating Factors

One mitigating factor is the fact that Gast has no prior history of discipline in his over four decades of legal practice in 

this state. While his license was suspended for a time due to 

his failure to pay his dues and complete his continuing legal 

education requirements, this did not involve a violation of the 

Rules of Professional Conduct.

Additionally, Gast’s behavior does not appear to pose a risk 

to his clients or the public. It does not appear that his behavior here harmed his client in any way. In fact, he seemed to 

be motivated by a desire to serve his client, albeit in a seriously misguided manner. Gast appears to be a competent and 

capable attorney.

(b) Aggravating Factors

One of the chief aggravating factors is Gast’s lack of 

remorse. At the hearing in this case, he stated several times 

that he did not regret sending the letter. He also stated, “I 

regret only the tone. There isn’t anything in here that isn’t 

absolutely true. There isn’t anything in here that isn’t absolutely appropriate . . . .”

35 Id.

36 Id.

37 Id.

38 Id.
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Gast seems to lack any appreciation of how serious his violations were and how baseless and inappropriate his attacks 

on the integrity of Judge Bataillon were. What is troubling is 

Gast’s inability to see anything wrong with his conduct. His 

lack of remorse is a significant aggravating factor, as is the 

serious nature of his infractions.

We also agree with the referee that during the hearing in 

this case, Gast engaged in unnecessary and inappropriate verbal attacks on the Counsel for Discipline. The Counsel for 

Discipline has an important job to do in our profession and has 

performed that job ably in this case.

V. CONCLUSION

We conclude that the appropriate sanction is suspension 

from the practice of law for a period of 1 year, effective from 

March 3, 2017. After 1 year from the date of his suspension, 

Gast may apply for reinstatement. His reinstatement shall be 

conditioned on his being on probation for a period of 2 years. 

Gast 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(B) of the disciplinary rules within 60 days after an order imposing costs and 

expenses, if any, is entered by the court.

Judgment of suspens