State ex rel. Nebraska State Bar Ass'n v. Schmeling

589 N.W.2d 833, 256 Neb. 275, 1999 Neb. LEXIS 38
CourtNebraska Supreme Court
DecidedFebruary 19, 1999
DocketNo. S-98-992
StatusPublished

This text of 589 N.W.2d 833 (State ex rel. Nebraska State Bar Ass'n v. Schmeling) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Nebraska State Bar Ass'n v. Schmeling, 589 N.W.2d 833, 256 Neb. 275, 1999 Neb. LEXIS 38 (Neb. 1999).

Opinion

Per Curiam.

On September 25, 1998, formal charges were filed by the relator, Nebraska State Bar Association, against the respondent, Richard L. Schmeling, a member of the relator association. Additional formal charges were filed against Schmeling the [276]*276same day. For the reasons set forth below, we order Schmeling’s disbarment, effective immediately.

FACTS

The charges filed against Schmeling in the instant case arise from his representation of two clients in separate matters. We briefly summarize the facts relevant to each complaint.

Hefner Complaint.

Mary Hefner (Hefner) retained Schmeling in 1990 to represent her in the dissolution of her marriage to Carl Hefner, Jr. Hefner paid Schmeling $200 when she retained him and later paid him further sums for his representation. Schmeling filed a petition seeking dissolution of Hefner’s marriage in the district court for Lancaster County on October 26, 1990, and he shortly thereafter obtained an order for temporary support for the benefit of the Hefner children, who lived with Hefner.

Schmeling did not complete the Hefner divorce. Unbeknownst to Hefner, the case was dismissed by the court for lack of prosecution in 1994, and, thus, Hefner was not divorced from Carl Hefner. Hefner alleged that Schmeling did not inform her that her divorce case had been dismissed for lack of prosecution and that she did not learn of the case’s dismissal and her continued married status until another attorney so advised her in 1997.

On July 16, 1997, in a written response to the relator’s request for information about the Hefner case, Schmeling disputed Hefner’s claim that the discovery of her married status came as a surprise to her, because according to Schmeling, as a result of a prior divorce, “Mary knew full well that in order to be divorced, you have to go to court for a hearing[.]” Schmeling stated that he did not complete the divorce because he could not locate Carl Hefner to complete the division of the marital estate and compute child support. Evidence introduced by the relator showed that Carl Hefner was readily located by agencies that enforced Carl Hefner’s child support arrearage and that Carl Hefner personally appeared in a Colorado court in May 1992 regarding income withholding to satisfy his child support obligation.

[277]*277The relator filed charges against Schmeling based upon Schmeling’s representation of Hefner, charging Schmeling with violating the provisions of Canons 1, 6, and 7 of the Nebraska Code of Professional Responsibility, as set forth below:

DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(5) Engage in conduct that is prejudicial to the administration of justice.
DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
(3) Neglect a legal matter entrusted to him.
DR 7-102 Representing a Client Within the Bounds of the Law.
(A) In his representation of a client, a lawyer shall not:
(2) Fail to carry out a contract of employment entered into with a client for professional services[.]

We note that the relator’s reference to DR 7-102 as set forth above incorporates a portion of DR 7-101.

These charges were scheduled for hearing by the Committee on Inquiry of the First Disciplinary District on February 16, 1998. Schmeling acknowledged in writing his receipt of the charges, which were delivered to him by certified mail. Nonetheless, Schmeling did not personally appear at the hearing, and his interests were not represented by counsel. After the relator’s presentation of evidence, the Committee on Inquiry found cause to believe that Schmeling had committed the ethical violations with which he was charged. Formal charges were filed with this court on September 25. Schmeling has not responded to them.

Chrastil Complaint.

In additional formal charges against Schmeling filed with this court on September 25,1998, the relator alleged that during the period of 1989 through 1995, Schmeling represented Mark Chrastil in connection with a workers’ compensation matter. The additional formal charges alleged, inter alia, that in his representation of Chrastil, Schmeling allowed an applicable statute of limitations to expire, thereby extinguishing Chrastil’s ability [278]*278to seek judicial redress for his injury; failed to perform or acquire a study of Chrastil’s lost earning capacity; made insufficient efforts to obtain reimbursement for the costs of treatment for Chrastil’s injury or condition; and pursued no award of permanent partial disability benefits for Chrastil.

Subsequent to the occurrence of the events alleged in the additional formal charges, Chrastil retained other counsel. Chrastil filed a petition against Schmeling alleging professional negligence and seeking $83,120 in damages. Schmeling made no answer or appearance in this case, and on December 23, 1996, Chrastil obtained a judgment against Schmeling. Invoking judicial process, Chrastil collected part of his judgment against Schmeling in May 1997. The remainder of the judgment is unsatisfied.

The relator’s additional formal charges alleging Schmeling’s breach of his professional responsibilities to Chrastil were served upon Schmeling on October 15, 1998. The relator alleged that in Schmeling’s representation of Chrastil, Schmeling breached the following provisions of Canon 1 of the Code of Professional Responsibility:

DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his or her fitness to practice law.

The relator further alleged that Schmeling violated DR 6-101(A)(3) and DR 7-102(A)(2), both of which are set forth above in connection with the charges stemming from Schmeling’s representation of Hefner. Schmeling filed no response to these charges.

Failure to Respond to Relator’s Inquiry.

The relator alleged in a separate count of the additional formal charges that on March 13, 1998, the relator sent Schmeling a copy of Chrastil’s complaint alleging Schmeling’s violation of the Code of Professional Responsibility and requested Schmeling’s response to the allegations. The relator received no [279]*279response from Schmeling. On March 31, a second such letter was sent to Schmeling, again seeking his response to Chrastil’s allegations of unethical and unprofessional breaches of conduct. Schmeling did not respond to this letter or to three subsequent reminder letters sent to him by the relator. Schmeling also did not respond to the additional formal charges filed against him by the relator regarding Chrastil’s complaint.

The relator alleges that Schmeling’s failure to respond constitutes a violation of Canon 1, DR 1-102(A)(1), (4), and (5), which provides as follows, in pertinent part:

DR 1-102 Misconduct.

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Bluebook (online)
589 N.W.2d 833, 256 Neb. 275, 1999 Neb. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-nebraska-state-bar-assn-v-schmeling-neb-1999.