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State of Nebraska ex rel. Counsel For Discipline of the Nebraska Supreme Court v. Brenda J. Council. Nebraska attorney discipline
Brenda J. Council was a Nebraska attorney and politician. Between 2009-13, she served in the Legislature. She had a campaign committee which had a bank account, and between 2010-12, she took out more than $63,000 from her campaign coffers to use for gambling. This was done without informing the committee or its treasurer. No reports of these transactions were made to the Nebraska Accountability and Disclosure Commission. She also made deposits to "repay those campaign funds," and it appears that all of the borrowed money was repaid.
It turns out that this is a violation of law, and she was convicted in State Court of abuse of public records, a misdemeanor. She paid a fine of $500. She was subsequently convicted in federal court of wire fraud, and sentenced to 3 years probation plus a $500 fine and $100 felony assessment.
Even before the federal charges were filed, the state bar caught wind of the conduct and commenced disciplinary proceedings. Ultimately, after hearing, a referee decided that the appropriate discipline would be a one-year suspension (with credit for time served) along with 2 year's probation, which would include audits of her trust account. The referee opined that "we all lose if our sanction prevents the Respondent from serving her clients in her community as an attorney."
The Supreme Court didn't take quite as charitable a view, and rejected the referee's recommendation. Instead, it disbarred Council. The high court held that conversion of campaign funds was indistinguishable from conversion of trust account funds. In either case, the money is entrusted to the candidate or lawyer for a particular purpose. It also viewed the fact that she was an elected official as an aggravating circumstance. The court also noted that there were multiple acts and active concealment.
The court did note that there were some mitigating factors, such as prior public service, acceptance of responsibility, and the fact that she was seeking help for her gambling addiction.
But in all but two prior cases since the 1990's, the Court noted that it had ordered disbarment in cases of conversion. Both of the cases involving lesser discipline included self-reporting by the attorney, a factor which was not present here. For these reasons, the court ordered disbarment.
289 Neb. 33 (Sept. 12, 2014)
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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