Summary
The Nebraska Supreme Court reviewed attorney-discipline charges arising from Richard M. Fellman’s representation of a client in a child support, custody, and visitation matter. The court found clear and convincing evidence that Fellman neglected the client’s legal matter, improperly deposited an unearned fee, engaged in misconduct, and violated his oath of office. The court imposed a one-year suspension followed by two years of probation upon reinstatement.
Topics
Practice areas
Questions Presented
- Whether clear and convincing evidence established that Fellman neglected a legal matter in violation of DR 6-101(A)(3).
- Whether Fellman violated DR 9-102(A)(2) by depositing an unearned advance fee into his regular business account instead of a trust account.
- Whether Fellman's repeated failures to respond to disciplinary inquiries violated DR 1-102(A)(1), (5), and (6) and his oath of office as an attorney.
- What sanction was appropriate in light of the violations, aggravating factors, mitigating factors, and comparable discipline cases.
Holdings
- Fellman neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) by failing to give timely legal advice, delaying discovery, failing to advance the case toward trial, and failing to keep his client informed.
- Fellman violated DR 9-102(A)(2) by depositing the $1,100 payment into his regular business account rather than his trust account because the payment was an unearned advance fee, not an engagement retainer earned upon receipt.
- Fellman violated DR 1-102(A)(1), (5), and (6), and his oath of office, by repeatedly failing to respond to the Counsel for Discipline's inquiries concerning the grievance and investigation.
- A one-year suspension, followed upon reinstatement by two years of probation with a practice monitor, was the appropriate sanction.
Key quotations
“A proceeding to discipline an attorney is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee” (267 Neb. at 843)
“Peoples’ payment was still unearned when Fellman received it; i.e., Fellman had yet to provide a benefit or service to Peoples.” (267 Neb. at 846)
“Following his period of suspension, Fellman may apply for reinstatement and shall prove that he is fit to practice law under the terms of his probation.” (267 Neb. at 848)
Factual background
Fellman represented Henry Peoples in a child-support, custody, and visitation matter but failed to provide timely advice regarding the reasonableness of Peoples' objectives, delayed notifying Peoples of a cross-petition and discovery, failed to respond promptly to discovery, did not move the case toward trial, and failed to keep Peoples apprised of the case. Fellman deposited a $1,100 initial payment into his regular business account rather than a trust account even though the payment was unearned when received. He also repeatedly failed to respond to the Counsel for Discipline's grievance inquiries, although mitigating evidence showed a diagnosed phobia involving anxiety and panic triggered by public censure or ridicule.
Procedural history
The Counsel for Discipline filed formal charges alleging violations of Nebraska's Code of Professional Responsibility and Fellman's attorney oath. After a formal hearing, the referee found multiple violations and recommended a 90-day suspension followed by two years of probation. On de novo review, the Nebraska Supreme Court independently found the violations established by clear and convincing evidence and imposed a one-year suspension followed by two years of probation upon reinstatement.