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State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Hart3/28/2003
Original action. Judgment of public reprimand.
INTRODUCTION
On August 19, 2002, formal charges were filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, relator, against respondent, James C. Hart, Jr. Respondent's answer disputed the allegations. A referee was appointed and heard evidence. The referee filed a report on February 5, 2003. With respect to the single count in the formal charges, the referee concluded that respondent's conduct had breached disciplinary rules of the Code of Professional Responsibility. The referee did not make any determination as to whether respondent's conduct violated his oath as an attorney. See Neb. Rev. Stat. ยง 7-104 (Reissue 1997). The referee recommended that respondent should be publicly reprimanded. Neither relator nor respondent filed exceptions to the referee's report.
FACTS
Respondent was admitted to the practice of law in the State of Nebraska in 1972. He has practiced in Douglas County.
The substance of the referee's findings may be summarized as follows: The single count of the formal charges involves respondent's handling of a client's employment discrimination claims. The detailed facts as found by the referee are not disputed by the parties and are not repeated here. In sum, the facts show that from May to October 5, 2001, respondent undertook to represent Vicky Wright with regard to her employment discrimination claims. The referee found that on or about October 5, respondent wrote to Wright and advised her that he was withdrawing as counsel. The referee found that in the course of respondent's representation of Wright, respondent failed to contact relevant agencies concerning Wright's discrimination claims, failed to discuss Wright's claims with her former employer or former co-workers, failed to review documents provided to him by Wright, failed to conduct any research on Wright's claims, and failed to advise Wright of any statute of limitations issues. The referee also found that respondent failed to communicate in a timely manner with Wright regarding her discrimination claims, failed to withdraw from his representation of Wright in a timely manner, and failed to refer Wright to other attorneys practicing in the area or to otherwise protect Wright's interests as those interests were affected by respondent's withdrawal as counsel. The referee found by clear and convincing evidence that as a result of respondent's conduct, respondent had violated Canon 1, DR 1-102(A)(1) (disciplinary rule violation); Canon 6, DR 6-101(A)(3) (neglect); and Canon 7, DR 7-101(A)(2) (failure to carry out contract of employment with client for professional services). The referee also found, however, that contrary to the allegations of paragraph 15 in the formal charges, relator had failed to prove that any "'time for filing suit [based on Wright's employment discrimination claims] had expired.'"
In his report, the referee specifically found by clear and convincing evidence that respondent had violated the disciplinary rules recited above. With respect to the sanction which ought to be imposed for the foregoing violations, and considering the mitigating factors the referee found present in the case, the referee recommended that respondent should be publicly reprimanded.
ANALYSIS
In view of the fact that neither party filed written exceptions to the referee's report, relator filed a motion under Neb. Ct. R. of Discipline 10(L) (rev. 2001). When no exceptions are filed, the Nebraska Supreme Court may consider the referee's findings final and conclusive. State ex rel. Counsel for Dis. v. Apker, 263 Neb. 741, 642 N.W.2d 162 (2002). Based upon the findings in
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