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

294 N.W.2d 873, 206 Neb. 737, 1980 Neb. LEXIS 921
CourtNebraska Supreme Court
DecidedJuly 22, 1980
DocketNo. 41636
StatusPublished
Cited by1 cases

This text of 294 N.W.2d 873 (State ex rel. Nebraska State Bar Ass'n v. Walsh) 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. Walsh, 294 N.W.2d 873, 206 Neb. 737, 1980 Neb. LEXIS 921 (Neb. 1980).

Opinion

Clinton, J.

This is a disciplinary action brought in this court by the State of Nebraska, ex rel. Nebraska State Bar Association, against Bernard Walsh, Jr., respondent, an attorney and member of the association. The disciplinary proceedings were initiated as a result of complaints made to the Counsel for Discipline, an in[738]*738vestigation by that officer, followed by a hearing before the Committee on Inquiry, 4th Judicial District, and a review by the Advisory Committee. Upon filing of the charges in this court, we appointed a referee who, pursuant to a stipulation of the relator and the respondent, heard the matter on the record made before the Committee on Inquiry. The referee found the charges to be true and recommended disbarment. Exceptions to the report of the referee were filed by the respondent and the matter was then argued in this court. We concur in the recommendation of the referee and enter an order of disbarment.

The respondent is charged with violations of the Code of Professional Responsibility, DR 1-102(A)(1), (3)-(6); DR 6-101; and DR 7-101(A)(2), (3), and of his oath as an attorney taken under Neb. Rev. Stat. § 7-104 (Reissue 1977). The contents of the pertinent disciplinary rules will later be discussed as necessary.

The specific conduct involved in the charges relates to two transactions. The first involves the respondent’s representation of James Paul Hale in a workmen’s compensation case before the Nebraska Workmen’s Compensation Court in the years 1972 and 1973, and the rather bizarre aftermath of that matter, continuing until 1976. The second transaction involves the making and delivery by the respondent of a $3,500 insufficient funds check to June Bowman in October of 1976.

Hale is a deaf mute. Practically all of the communication between Hale and the respondent took place through Hale’s wife. In 1972, Hale was an employee of the Packaging Corporation of America. His job was that of “stripper.” His work involved the removal of excess material from boxes by use of a hammer and apparently required more or less continuous pounding. In September of 1972, the respondent accepted employment by Hale. On Sep[739]*739tember 20, 1972, the respondent filed with the Workmen’s Compensation Court a petition alleging that Hale had, in the course of and arising out of his employment, suffered an injury, referred to as a carpal tunnel syndrome. The record shows that, as a consequence, surgery described as a “release of transverse carpal ligament’’ was performed. The matter was heard by a judge of the Workmen’s Compensation Court on November 6, 1972, and on December 6, 1972, an award was made for 7 weeks’ temporary total disability and for medical, hospital, and pharmaceutical bills. The court found that the evidence was insufficient to sustain a finding of permanent disability. On or about February 8, 1973, respondent met with Mr. and Mrs. Hale and a check for the award of $434, which had been made payable to Hale and the respondent, was endorsed; respondent received an attorney’s fee; and Hale received the balance. At the same time, a satisfaction of the award was signed by Hale and the respondent and the latter filed the same with the court immediately thereafter. At the same conference, Mrs. Hale, on her own initiative, paid Walsh $20 in addition to the fee requested.

The basic nature of the charge in connection with the above transaction is that the respondent did not explain to Mr. and Mrs. Hale that the award of the Workmen’s Compensation Court, made on December 6, 1972, would be final unless an appeal was taken within 14 days, and that he did not advise them that their exclusive remedy against the employer was in the Workmen’s Compensation Court.

In the latter part of 1973 and in 1975, the respondent prepared various petitions captioned for filing in the District Court for Douglas County, all of which related to the injuries alleged to have been suffered by Hale in the course of his employment. None of these petitions were ever filed and the purpose and reason for their preparation is the subject of a [740]*740conflict in the evidence.

There are some very sharp conflicts in the evidence which will be mentioned as necessary. We note, however, that the referee resolved these conflicts on essential matters in favor of the Hales. In disciplinary proceedings, the findings made by the referee are given special consideration on matters that are in irreconcilable conflict. State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960).

A basic conflict in the case is whether respondent explained to the Hales the nature of the workmen’s compensation proceeding, the limited rights which an employee has against the employer, and the necessity of a timely motion for rehearing or appeal if the workman is dissatisfied with the award made by one judge of the Workmen’s Compensation Court. Related thereto is the question of whether the respondent ever gave timely advice that a motion for rehearing before the Workmen’s Compensation Court or, alternatively (under the statute in effect at that time), an appeal to the District Court, had to be made within 14 days of the date of the award.

The referee specifically found that the respondent did not inform the Hales promptly after the award was made or advise them of their right of appeal. The respondent adduced no evidence to show that he did. He testified that he informed them of the right of appeal on February 8, 1973, at the time the satisfaction of the award was signed and the proceeds of the check in payment of the award were divided. This, of course, was long after the time for review had passed. Respondent testified that the Hales were satisfied with the award made and then knew that the award was final.

The respondent’s version of the voluntary payment by Mrs. Hale of $20 was that it was a “tip” because the Hales thought he had done such a good job. Mrs. Hale testified that it was given to Walsh [741]*741to hurry the litigation along. If the Hale testimony is to be believed, this tends to support the conclusion that the respondent never explained to the Hales the finality of the award and that they did not understand it. The testimony on this point is sharply conflicting. The conclusion that the respondent did not explain to them the right of appeal is corroborated by his own explanation that he felt Hale had no case worthy of appeal because the treating surgeon could find no organic basis for the complaints. Respondent seems to have been totally unaware that, even if a disability is functional, it is nonetheless compensable if it arises from an injury in the course of employment. Cardenas v. Peterson Bean Co., 180 Neb. 605, 144 N.W.2d 154 (1966). The record indicates that respondent did not get a second medical opinion on his client’s condition. At the hearing before the workmen’s compensation judge, the medical reports introduced indicated that the condition of Hale’s arm and hand and the ultimate outcome were uncertain. These facts alone would have made prudent a further review at which time more evidence might have been available and the unfavorable progressive nature of the injury might have been more clearly supportable.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

STATE EX REL. NEB. STATE BAR ASS'N v. Walsh
294 N.W.2d 873 (Nebraska Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
294 N.W.2d 873, 206 Neb. 737, 1980 Neb. LEXIS 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-nebraska-state-bar-assn-v-walsh-neb-1980.