Wednesday, March 3, 2010

Nebraska: Lawyer Disbarred for Failure to use the Attorney Trust Account

In State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002), the Nebraska Supreme Court disbarred a lawyer from practicing law in the State of Nebraska, held in contempt of court and ordered to pay all costs associated with his failure to use an Attorney Trust Account and provide documentation for the monies from his client’s personal injury claim that was to be used to satisfy a physician’s lien. The lawyer failed to place the settlement proceeds for the physician’s lien into an Attorney Trust Account, and failed and refused to satisfy the lien.

The Nebraska Supreme Court affirmed the referee’s conclusions that the lawyer’s conduct violated several disciplinary and trust account rules and his oath of office as an attorney, in violation of DR 1-102(A)(1), (4), and (6); DR 6-101(A)(3); DR 9-102(A); Neb. Ct. R. of Discipline 9(E); and Neb. Ct. R. of Trust Accounts and Blanket Bonds 1 and 4.

The lawyer did not dispute or file a written exception to the referee’s report, and the relator filed a motion for judgment on the pleadings, 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. See State ex rel. Counsel for Dis. V. Apker, 263 Neb. 741, 642 N.W.2d 162 (2002).

This case shows the importance of the lawyer’s duty under Rule 1.15 (a) that states a lawyer shall “hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account…with consent of the client or third person.” In addition, Rule 1.15 (d) states that “upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person…a lawyer shall promptly deliver to the client or third person any funds or property that the client or third person is entitled to receive.”

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