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300 Nebraska Report

STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI

Cite as 300 Neb. 763

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. Martin J. Troshynski, respo

___ N.W.2d ___

Filed August 17, 2018. No. S-17-269.

Original action. Judgment of suspension.

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

Papik, JJ

Per Curiam

INTRODUCTION

On March 15, 2017, formal charges containing one count 

were filed by the office of the Counsel for Discipline of the 

Nebraska Supreme Court, relator, against respondent, Martin J. 

Troshynski. Respondent filed an answer to the charges on July 

19. A referee was appointed on September 5. On November 

8, relator filed amended formal charges after obtaining leave 

of this court to do so. The referee conducted a hearing on 

December 19.

The referee filed a report on January 9, 2018. With respect 

to the charges, the referee concluded that through respondent’s conduct, he had breached the following provisions of 

the Nebraska Court Rules of Professional Conduct: Neb. Ct. 

R. of Prof. Cond. §§ 3-501.3 (diligence), 3-501.4(a)(3) and 

(4) (communication), 3-503.4 (fairness to opposing party and 

counsel), 3-508.1(b) (responding to bar admission and disciplinary matters), and 3-508.4(a) and (d) (conduct prejudicial 

to administration of justice) (rev. 2016). The referee further 

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STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI

Cite as 300 Neb. 763

found that respondent had violated his oath of office as an 

attorney licensed to practice law in the State of Nebraska. See 

Neb. Rev. Stat. § 7-104 (Reissue 2012). With respect to the 

discipline to be imposed, the referee recommended suspension of respondent’s license to practice law for a period of 45 

days, with a period of supervision of 2 years upon readmission. Respondent agreed to the proposed sanction. Neither 

relator nor respondent filed exceptions to the referee’s report. 

Relator filed a motion for judgment on the pleadings under 

Neb. Ct. R. § 3-310(L) (rev. 2014) of the disciplinary rules. 

Respondent did not respond to the motion. We grant the 

motion for judgment on the pleadings and impose discipline 

as indicated below.

FACTS

Respondent was admitted to the practice of law in the State 

of Nebraska on September 14, 1990. At all times relevant to 

these proceedings, he has practiced in North Platte, Nebraska.

The substance of the referee’s findings may be summarized 

as follows: respondent has been practicing for 27 years, is currently a solo practitioner, and his current law practice involves 

criminal defense and general practice. The violations arise 

from respondent’s conduct with respect to two cases.

T.W. and G.D.’s Case.

In April 2010, T.W. and G.D. retained respondent to represent them in matters arising from their injuries from an automobile collision, and in 2013, respondent filed a complaint in 

the district court for Lincoln County on their behalf. In the 

course of that suit, the defendants served discovery requests to 

respondent in December 2013, but respondent did not provide 

the requested documents in 2014 or most of 2015, despite three 

motions to compel discovery relating to that 2013 request. On 

August 13, 2015, respondent failed to appear at a hearing and 

the district court ordered him to provide the requested documents or the case would be dismissed. Respondent failed to 

comply with the court’s order, and the case was dismissed 
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STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI

Cite as 300 Neb. 763

without prejudice on September 3, 2015. Respondent did not 

notify his clients. T.W. and G.D. learned of the dismissal from 

another source and not from respondent. After respondent filed 

a series of motions attempting to reinstate the case, T.W. and 

G.D.’s lawsuit was ultimately dismissed.

When relator twice requested respondent’s client files 

regarding T.W. and G.D, respondent failed to respond for 

approximately 4 months.

W.N.’s Case.

W.N. retained respondent to represent her in a personal 

injury case arising out of a 2006 automobile collision. 

Respondent filed a complaint in the case in the district 

court for Lincoln County in January 2010. On October 21, 

the defendants sent a discovery request to respondent. On 

July 16, 2012, respondent filed a stipulation to continue the 

matter in which the parties agreed that additional time was 

needed to conduct discovery. On February 5, 2013, the court 

dismissed the case for lack of prosecution. Respondent was 

able to reinstate the case, but continued to fail to respond to 

discovery. The case was dismissed again without prejudice 

after respondent failed to file a response to the court’s order 

to show cause. Respondent failed to communicate with W.N. 

in 2015 and 2016. On June 28, 2017, respondent notified 

W.N. that the matter had been dismissed by the court 2 years 

prior thereto.

In the referee’s report filed January 9, 2018, the referee 

found that respondent violated the Nebraska Court Rules of 

Professional Conduct: §§ 3-501.3 (diligence), 3-501.4(a)(3) 

and (4) (communication), 3-503.4 (fairness to opposing party 

and counsel), 3-508.1(b) (responding to bar admission and 

disciplinary matters), and 3-508.4(a) and (d) (conduct prejudicial to administration of justice), as well as his oath of office 

as an attorney. The referee noted in his report that respondent 

agreed with the stipulated facts and accepts full responsibility 

for failing to respond to discovery requests and for the dismissal of his clients’ cases outside of the statute of limitations. 
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The referee noted that respondent previously had received a 

private reprimand.

In mitigation, respondent testified that he had stage “IIIA 

melanoma” and the court received evidence of cancer treatment 

side effects. The referee noted that numerous attorneys submitted affidavits regarding respondent’s honorable character and 

his work to assist other attorneys and clients. As for the discipline imposed, the referee recommended a 45-day suspension 

with 2 years of supervision upon reinstatement.

ANALYSIS

A proceeding to discipline an attorney is a trial de novo on 

the record. State ex rel. Counsel for Dis. v. Gast, 298 Neb. 203, 

903 N.W.2d 259 (2017). To sustain a charge in a disciplinary 

proceeding against an attorney, a charge must be established by 

clear and convincing evidence. State ex rel. Counsel for Dis. v. 

Island, 296 Neb. 624, 894 N.W.2d 804 (2017). Violation of a 

disciplinary rule concerning the practice of law is a ground for 

discipline. Id.

Based on the record and the findings of the referee, we 

find that the above-referenced undisputed facts have been 

established by clear and convincing evidence. Based on the 

foregoing evidence, we conclude that by virtue of respondent’s 

conduct, respondent has violated §§ 3-501.3, 3-501.4(a)(3) and 

(4), 3-503.4, 3-508.1(b), and 3-508.4(a) and (d) of the professional conduct rules. We specifically conclude that respondent 

has violated his oath of office as an attorney, see § 7-104. 

Accordingly, we grant relator’s motion for judgment on 

the pleadings.

We have stated that 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. State ex rel. Counsel for Dis. v. Island, supra. Neb. Ct. 

R. § 3-304 of the disciplinary rules provides that the following 

may be considered as discipline for attorney misconduct:

(A) Misconduct shall be grounds for:

(1) Disbarment by the Court; or
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(2) Suspension by the Court; or

(3) Probation by the Court in lieu of or subsequent to 

suspension, on such terms as the Court may designate; or

(4) Censure and reprimand by the Court; or

(5) Temporary suspension by the Court; or

(6) Private reprimand by the Committee on Inquiry or 

Disciplinary Review Board.

(B) The Court may, in its discretion, impose one or 

more of the disciplinary sanctions set forth above.

See, also, § 3-310(N) of the disciplinary rules.

With respect to the imposition of attorney discipline in an 

individual case, each attorney discipline case must be evaluated 

in light of its particular facts and circumstances. State ex rel. 

Counsel for Dis. v. Island, supra. For purposes of determining 

the proper discipline of an attorney, this 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. Id.

To determine whether and to what extent discipline should 

be imposed in an attorney discipline proceeding, this 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. Id. We have considered prior discipline including reprimands as aggravators. State ex rel. Counsel for Dis. v. Nich, 

279 Neb. 533, 780 N.W.2d 638 (2010).

The evidence in the present case establishes that respondent 

inexcusably failed to comply with discovery requests, attend 

hearings, and keep his clients informed. He failed to communicate with clients for long periods of time and failed to 

keep them informed regarding the dismissal of their matters. 

When contacted by relator, respondent failed to immediately 

respond to requests for records. The referee determined that 

the evidence showed that the clients were distraught and found 
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STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI

Cite as 300 Neb. 763

it frustrating to deal with respondent and suffered greatly from 

respondent’s negligence.

The referee recommended discipline in the form of a 45-day 

suspension followed by 2 years of probation with a practice monitor. The referee took into account respondent’s prior 

private reprimand. The referee also considered the fact that 

respondent had cancer and the showing of support for respondent by members of the legal community and the fact that 

respondent is a “substantial asset to the bar.”

We have considered the record, the findings which have 

been established by clear and convincing evidence, and the 

applicable law. Upon due consideration, the court finds that the 

referee’s recommendation of a 45-day suspension and, upon 

successful application for reinstatement, 2 years of monitored 

probation is appropriate. See State ex rel. Counsel for Dis. v. 

Pivovar, 288 Neb. 186, 846 N.W.2d 655 (2014). No exceptions 

were taken to the referee’s recommendation, and we hereby 

adopt it.

Having imposed a period of suspension, respondent is 

ordered 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. We also direct respondent to pay costs 

and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 

7-115 (Reissue 2012), § 3-310(P), and Neb. Ct. R. § 3-323(B) 

within 60 days after an order imposing costs and expenses, if 

any, is entered by this court.

At the end of the 45-day suspension, respondent may apply 

to be reinstated to the practice of law, provided that he has 

demonstrated his compliance with § 3-316 and further provided that relator has not notified this court that respondent 

has violated any disciplinary rule during his suspension. Upon 

reinstatement, respondent shall complete 2 years of monitored 

probation. During the period of probation, respondent will be 

monitored by an attorney licensed to practice law in the State 

of Nebraska and approved by relator. The monitoring plan 

shall include, but not be limited to, the following:
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STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI

Cite as 300 Neb. 763

(1) On a monthly basis, respondent shall provide the monitoring attorney with a list of all cases for which respondent is 

then currently responsible, said list to include the following 

information for each case: (a) the date the attorney-client relationship began, (b) the type of case (i.e., criminal, dissolution, 

probate, contract, et cetera), (c) the date of the last contact 

with the client, (d) the last date and type of work completed 

on the case, (e) the next type of work and date to be completed 

on the case, and (f) any applicable statute of limitations and 

its date;

(2) On a monthly basis, respondent shall meet with the 

monitoring attorney to discuss respondent’s pending cases;

(3) Respondent shall work with the monitoring attorney to 

develop and implement appropriate office procedures to ensure 

that client matters are handled in a timely manner; and

(4) If at any time the monitoring attorney believes respondent has violated a disciplinary rule or has failed to comply with 

the terms of probation, the monitoring attorney shall report the 

same to relator.

CONCLUSION

The motion for judgment on the pleadings is granted. We find 

that respondent violated conduct rules §§ 3-501.3, 3-501.4(a)(3) 

and (4), 3-503.4, 3-508.1(b), and 3-508.4(a) and (d), as well as 

his oath of office as an attorney, see § 7-104. It is the judgment 

of this court that respondent is suspended from the practice 

of law for a period of 45 days, effective immediately. It is 

the further judgment of this court that upon completion of the 

period of suspension and upon successful application for reinstatement to the bar, respondent shall be placed on monitored 

probation for 2 years, subject to the terms set forth above.

Judgment of suspensi