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

Caporale, J.,

dissenting in part.

I agree that respondent’s conduct is such that disciplinary action is appropriate. I also agree with the clear implication of the majority opinion that justice cannot, and this jurisdiction will not, tolerate interminable procrastinations. In my mind such should certainly be the case. Indeed, such should be the case whether unreasonable delay be practiced by the lawyers who serve justice or the judges who administer it.

It seems to me, however, that the sanction in this case is entirely too harsh, unnecessary, and disproportionate to what has been done in the past. At the very moment when, after two dozen years, respondent demonstrates a glimmer of understanding the nature and requirements of his profession, we make it impossible for him to demonstrate that he is indeed capable of serving the public as a lawyer.

Less than a year ago, we suspended for 1 year one who had accepted a retainer from his client, failed to render the service for which he was retained, lied to his client about his inactivity, and, in a separate matter, failed to disclose the withdrawal of estate funds. State ex rel. NSBA v. Tomek, 214 Neb. 220, 333 N.W.2d 409 (1983). In State ex rel. Nebraska *512 State Bar Assn. v. Divis, 212 Neb. 699, 325 N.W.2d 652 (1982), we publicly reprimanded and placed on probation for 1 year a member of the bar who failed to “act competently by neglecting a matter entrusted to him.” Id. at 700, 325 N.W.2d at 653. I recognize that there is both a quantitative and qualitative difference between the isolated acts presented by the record in Divis and the series of inordinate procrastinations presented by this record. Nonetheless, it seems to me that sacrificing respondent’s professional life without first giving him an opportunity to remedy his conduct is too high a tax to impose in order that others may be deterred or the bar’s reputation protected.

The public could be protected and all other purposes of discipline served by publicly censuring respondent and placing him on probation for a period of 3 years, during which period he would be subject to disbarment should he lapse into his old habits. The terms of probation would require that he procure and maintain malpractice insurance in an amount not less than $500,000; institute and maintain a calendar control system for all professional engagements; display such system to Counsel for Discipline of the Nebraska State Bar Association; and submit to monitoring of continuing compliance with the conditions of probation by Counsel for Discipline or his designate, with any material deviation therefrom to be reported to this court for appropriate action.

Shanahan, J., joins in this dissent.