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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

State of Nebraska ex rel. Counsel for Discipline

of the Nebraska Supreme Court, relator, 

v. Tobin D. Wolfe, respondent.

___ N.W.2d ___

Filed September 21, 2018. No. S-18-437.

Original action. Judgment of suspension.

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

Papik, and Freudenberg, JJ.

Per Curiam.

INTRODUCTION

On May 2, 2018, formal charges containing 10 counts 

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

Nebraska Supreme Court, relator, against respondent, Tobin D. 

Wolfe. Respondent filed an answer to the charges on May 23. 

A referee was appointed on June 4. The referee conducted a 

hearing on July 24.

The referee filed a report on August 14, 2018. With respect 

to the 10 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. §§ 3-501.1 (competence), 3-501.3 (diligence), 

3-501.4 (communication), 3-501.5(f) (timely accounting for 

fees), 3-501.16(d) (refunding fees on termination of representation), 3-508.1(b) (responding to bar admission and disciplinary matters), and 3-508.4 (misconduct) (rev. 2016). The 

referee further found that respondent had violated his oath of 

office as an attorney licensed to practice law in the State of 

Nebraska Supreme Court Online Library

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

10/12/2018 08:11 AM CDT
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

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 2 years, commencing from the date of temporary suspension, November 6, 2017, followed by 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. The parties filed a joint 

motion for judgment on the pleadings under Neb. Ct. R. 

§ 3-310(L) (rev. 2014) of the disciplinary rules. 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 April 23, 2013. At all times relevant to these 

proceedings, he has practiced in Lincoln, Nebraska.

The substance of the referee’s findings may be summarized 

as follows: Respondent has practiced law since 2013, including family law, and on November 6, 2017, his license to practice law in Nebraska was temporarily suspended until further 

order of this court. The violations arise from respondent’s 

conduct with respect to 10 clients who filed grievances with 

the Counsel for Discipline between April 3 and December 6, 

2017. The pertinent facts are not in dispute in this case and 

were admitted in respondent’s answer or acknowledged in 

his testimony.

The referee held a hearing at which respondent testified and evidence was adduced. In a report filed August 14, 

2018, the referee found that through respondent’s conduct, 

he had breached provisions of the Nebraska Court Rules of 

Professional Conduct as follows:

• With respect to count I, respondent engaged in misconduct 

under § 3-508.4 by failing to provide a full accounting on 

request under § 3-501.5(f), and failing to properly and timely 

respond to the Counsel for Discipline under § 3-508.1(b).
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

• With respect to count II, respondent engaged in misconduct 

under § 3-508.4 by failing to provide a full accounting under 

§ 3-501.5(f), failing to timely refund unearned fees under 

§ 3-501.16, failing to properly communicate with his client as required by § 3-501.4, and failing to properly and 

timely respond to the Counsel for Discipline in violation of 

§ 3-508.1(b).

• With respect to count III, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

client in violation of § 3-501.4, and failing to timely respond 

to the Counsel for Discipline in violation of § 3-508.1(b).

• With respect to count IV, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

client as required by § 3-501.4, failing to handle a matter 

with the requisite level of competence and diligence required 

by §§ 3-501.1 and 3-501.3, and failing to timely respond to 

the Counsel for Discipline as required by § 3-508.1(b).

• With respect to count V, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

clients in violation of § 3-501.4, failing to handle a matter 

with the requisite level of competence and diligence required 

by §§ 3-501.1 and 3-501.3, and failing to timely respond to 

the Counsel for Discipline as required by § 3-508.1(b).

• With respect to count VI, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

client in violation of § 3-501.4.

• With respect to count VII, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

client in violation of § 3-501.4.

• With respect to count VIII, respondent engaged in misconduct under § 3-508.4 by failing to properly communicate with 

his client in violation of § 3-501.4, failing to timely furnish 

an accounting for fees and costs as required by § 3-501.5(f), 

and failing to return the client’s file upon termination when 

requested.
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301 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

• With respect to count IX, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with 

his client in violation of § 3-501.4 and failing to timely 

furnish an accounting for fees and costs as required by 

§ 3-501.5(f).

• With respect to count X, respondent engaged in misconduct 

under § 3-508.4 by failing to properly communicate with his 

client in violation of § 3-501.4, failing to provide competent 

representation required by § 3-501.1, and failing to act with 

reasonable diligence as required by § 3-501.3.

The referee further found that with regard to each of the counts 

enumerated above, respondent had violated his oath of office 

as an attorney licensed to practice law in the State of Nebraska. 

See § 7-104.

With respect to the discipline to be imposed, the referee 

recommended suspension of respondent’s license to practice 

law for a period of 2 years, commencing from the date of temporary suspension, November 6, 2017, followed by a period of 

supervision of 2 years upon readmission. The referee noted in 

her report that respondent had no prior instances of misconduct or discipline.

In mitigation, respondent presented evidence from medical providers and testified that he began suffering a major 

depressive episode in late 2016 from a mental health condition 

which had been previously undiagnosed. The referee found 

that respondent established that his symptoms played a significant role in his conduct and found that ongoing treatment 

and adherence to respondent’s health maintenance plan would 

reduce the risk of further misconduct.

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 
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

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 undisputed findings of the 

referee, we find that the above-referenced 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 §§ 3-501.1, 3-501.3, 

3-501.4(a)(3) and (4), 3-501.5(f), 3-501.16(d), 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 the parties 

joint motion for judgment on the pleadings.

We have stated that the basic issues in a disciplinary proceeding against a lawyer are whether discipline should be 

imposed, and, if so, the type of discipline appropriate 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

(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, we evaluate each attorney discipline case in 

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

Counsel for Dis. v. Island, supra. For purposes of determining 
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

the proper discipline of an attorney, this court considers the 

attorney’s acts both underlying the events of the case and 

throughout the proceeding, as well as 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 offender generally, and (6) the 

offender’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 there were 

10 separate grievances involving a wide range of misconduct, including failing to communicate with clients, failing 

to diligently complete work, failing to properly account for 

fees, failing to return client files following termination, and 

misstatements. When contacted by relator, respondent initially 

failed to respond for approximately 8 months following the 

initial grievance.

With respect to the discipline to be imposed, the referee 

recommended suspension of respondent’s license to practice 

law for a period of 2 years, commencing from the date of 

temporary suspension, November 6, 2017, followed by a 

period of supervised probation of 2 years upon readmission. 

The referee compared the level of misconduct to that presented in State ex rel. Counsel for Dis. v. Simon, 288 Neb. 

385, 848 N.W.2d 642 (2014). The respondent in Simon had 

nine counts of misconduct and a mental health issue, and this 

court imposed an indefinite suspension with no possibility for 

reinstatement for 14 months, followed by 2 years of probation 

with monitoring.

We have considered the record, the findings which have 

been established by clear and convincing evidence, and the 
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

applicable law. Upon due consideration, the court finds that 

the referee’s recommendation is appropriate and adopts a 

2-year suspension, commencing from November 6, 2017, followed by a period of monitored probation of 2 years upon 

readmission. See id. As noted, no exceptions have been taken 

to this recommendation.

Respondent shall 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 2-year 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 

his application for reinstatement, respondent should have the 

burden of establishing that he is fit to practice law under the 

terms of his probation, including that treatment for his depression has resulted in a meaningful and sustained recovery. Such 

proof shall include a showing that he has continued treatment with a qualified mental health doctor, unless such doctor releases respondent from treatment. 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:

(1) During probation, respondent shall be subject to a treatment monitoring program by the Nebraska Lawyers Assistance 

Program and a practice monitoring program, which should be 

monitored by a licensed practicing attorney who is acceptable 

to the Counsel for Discipline.
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301 Nebraska Reports

STATE EX REL. COUNSEL FOR DIS. v. WOLFE

Cite as 301 Neb. 117

(2) Respondent should comply with treatment recommendations of his treating doctor as monitored by the Nebraska 

Lawyers Assistance Program. If at any time the assistance 

program believes that respondent has failed to comply with his 

treatment requirements, it shall report the same to the Counsel 

for Discipline.

(3) 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.

(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 §§ 3-501.1, 3-501.3, 3-501.4, 

3-501.5(f), 3-501.16(d), 3-508.1(b), and 3-508.4 and 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 2 years, effective November 6, 2017. It is 

the further judgment of this court that upon completion of the 

period of suspension and reinstatement to the bar, respondent 

shall be placed on monitored probation for 2 years, subject to 

the terms set forth above. Respondent is also directed to pay 

costs and expenses in accordance with §§ 7-114 and 7-115 

and §§ 3-310(P) 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 suspension.