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Nebraska Supreme Court imposes indefinite suspension on lawyer who contacted the criminal prosecutor after she was fired to “ensure the client’s conviction.”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Nebraska Supreme Court imposing an indefinite suspension on a lawyer who failed to respond to charges that she “disclos(ed) confidential information regarding criminal charges against a former client in order to ensure the client’s conviction.”  The opinion is State of Nebraska ex rel. Counsel for Discipline v. Donna J. Tonderum, SC-13-083, 286 Neb. 942 (November 22, 2013).  The disciplinary opinion is at: https://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-083.pdf

According to the opinion, the lawyer was retained to defend a client charged with criminal first degree sexual assault.  The client and his family subsequently hired another attorney and terminated her representation.  The lawyer then contacted the criminal prosecutor to discuss the case also “stated that she no longer represented her former client because he had rejected her advice and hired the other attorney.  (She) stated that she “hated” the other attorney, that she knew her former client was guilty, and that she wanted to make sure the prosecutor sent (her) former client to prison.

The lawyer gave the prosecutor the names of witnesses related to the former client’s case, stated what their testimony would be, provided contact information for some witnesses, and informed the prosecutor of the expected the defense strategy.  Not surprisingly, the criminal prosecutor called disciplinary counsel and advised the new lawyer for the defendant.

The opinion states that, “(the lawyer’s) failure to respond to the formal charges filed by (disciplinary counsel) is also troublesome. We consider an attorney’s fail­ure to respond to inquiries and requests for information from (disciplinary counsel)  as an important matter and as a threat to the credibility of attorney disciplinary proceedings.  As noted, (the lawyer’s) failure to file an answer to the formal charges leaves us with­out any record of mitigating factors, other than her previous record of no violations, and no way to assess her fitness to practice law.

The court declined to disbar the attorney, notwithstanding her failure to respond to the charges.  “(U)nder the facts of this case, we conclude that an indefinite suspen­sion, with a minimum suspension of 3 years, is the appropri­ate discipline.

Bottom line:  This case is bizarre, to say the least. According to the disciplinary Complaint (which the lawyer did not respond to or rebut), the lawyer was fired from representing the client in the criminal case and, since she was fired and “hated” the successor lawyer, she was willing to breach her client’s confidences in order to “make sure” the former client went to prison.  It is also surprising that the court did not disbar the lawyer, especially in light of her failure to respond to the disciplinary charges.

Let’s be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

www.jac-law.com

 

 

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