    Nebraska Advance Sheets
186	288 NEBRASKA REPORTS



        State    of  Nebraska ex rel. Counsel for Discipline
              of the   Nebraska Supreme Court, relator,
                   v. Gregory A. P ivovar, respondent.
                                    ___ N.W.2d ___

                         Filed May 23, 2014.     No. S-12-1165.

 1.	 Disciplinary Proceedings. To determine whether and to what extent discipline
      should be imposed in an attorney discipline proceeding, the Nebraska Supreme
      Court considers the following factors: (1) the nature of the offense, (2) the need
      for deterring others, (3) the maintenance of the reputation of the bar as a whole,
      (4) the protection of the public, (5) the attitude of the offender generally, and (6)
      the offender’s present or future fitness to continue in the practice of law.
  2.	 ____. In determining the proper discipline of an attorney, the Nebraska Supreme
      Court considers the attorney’s actions both underlying the events of the case and
      throughout the proceeding, as well as any aggravating or mitigating factors.

   Original action. Judgment of suspension.
   John W. Steele, Assistant Counsel for Discipline, for relator.
   D.C. “Woody” Bradford III, of Bradford & Coenen, L.L.C.,
for respondent.
  Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
   P er Curiam.
                    I. NATURE OF CASE
   The issue presented is what discipline should be imposed
on Gregory A. Pivovar, respondent, for his violation of certain
provisions of the Nebraska Rules of Professional Conduct and
his oath of office as an attorney. Judgment was previously
entered on the pleadings as to the facts. Briefing and oral argu-
ment were ordered on the issue of discipline.
   Upon consideration, we adopt the referee’s recommenda-
tion of a 45-day suspension followed by 2 years of moni-
tored probation.
                       II. FACTS
   On September 12, 1979, respondent was admitted to prac-
tice law in Nebraska. He has received four previous pri-
vate reprimands.
                   Nebraska Advance Sheets
	           STATE EX REL. COUNSEL FOR DIS. v. PIVOVAR	187
	                       Cite as 288 Neb. 186

   The instant disciplinary proceedings relate to formal
charges filed on December 12, 2012, by the Counsel for
Discipline of the Nebraska Supreme Court, relator. In these
charges, relator alleged that certain acts of respondent during
his representation of Danny Robinson violated respondent’s
oath of office as an attorney and Neb. Ct. R. of Prof. Cond.
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (com-
munications), and 3-508.4 (misconduct). Respondent admit-
ted certain allegations, but he denied that he had violated his
oath of office or any of the Nebraska Rules of Professional
Conduct.
   On August 16, 2013, a hearing was held before a court-
appointed referee. Based on the evidence adduced at the hear-
ing, the referee filed a report.
   The referee’s findings may be summarized as follows: In
March 2008, respondent was appointed to represent Robinson
on a motion for postconviction relief from Robinson’s first
degree murder conviction. Respondent represented Robinson
at an evidentiary hearing on the motion for postconvic-
tion relief.
   The district court denied Robinson’s motion, and respond­
ent sent a letter to Robinson informing him of that deci-
sion. Respondent advised Robinson that respondent would
need to be reappointed before respondent could represent
Robinson on appeal. Respondent enclosed an application to
proceed in forma pauperis and the necessary poverty affidavit.
However, respond­nt did not include a notice of appeal or
                    e
advise Robinson that there were only 30 days to file an appeal
(until March 19, 2010). Robinson later sent the district court a
letter requesting the reappointment of respondent for purposes
of appeal and the application to proceed in forma pauperis with
the necessary poverty affidavit.
   On March 18, 2010, the district court granted Robinson’s
application to proceed in forma pauperis and appointed respond­
ent as counsel on appeal. On March 22, respondent received
notice of the appointment. The following day, upon reviewing
Robinson’s file, respondent discovered that no notice of appeal
had been filed.
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   Respondent testified that after he discovered that there was
no appeal, he “‘“[s]tuck [his] head in the sand.”’” He did not
contact the district court to discuss the fact that he had not
received notice of his appointment until after the deadline
for filing an appeal had passed. Respondent researched the
problem but “‘did nothing more.’” At the hearing before the
referee, respondent testified that he “‘“[a]bsolutely”’” should
have done more to resolve the problem.
   In the months following respondent’s appointment to serve
as Robinson’s appellate counsel, Robinson made “‘numer-
ous attempts’” to contact respondent by telephone and letter.
Respondent did not answer “‘[m]ost’” of these communi-
cations. Respondent testified he told Robinson that he was
“‘“working on whether [Robinson] had an appeal or not.”’”
However, Robinson testified that respondent said he was work-
ing on writing the appellate brief. The referee determined
that respondent waited until November 27, 2010, to inform
Robinson that an appeal had not been timely filed.
   The referee concluded there was “‘no dispute that the
respondent “put his head in the sand” and failed to commu-
nicate with . . . Robinson.’” The referee noted that the main
problem was the lack of communication with Robinson, not
the missed opportunity to appeal. The referee explained that
“even though the appeal time was apparently blown in the first
instance, subsequently, . . . Robinson’s appeal was permitted
and the appeal was properly docketed.”
   The referee found by clear and convincing evidence that
respondent had failed to (1) competently represent Robinson,
(2) act with reasonable diligence, and (3) properly communi-
cate with Robinson. The referee determined that respondent
had engaged in conduct prejudicial to the administration of
justice. Thus, the referee concluded that respondent had vio-
lated his oath of office as an attorney and §§ 3-501.1 (com-
petence), 3-501.3 (diligence), 3-501.4 (communications), and
3-508.4 (misconduct).
   The referee recommended discipline in the form of a 45-day
suspension followed by 2 years of probation with a practice
monitor. The referee took into account respondent’s four prior
private reprimands arising from five separate complaints.
                        Nebraska Advance Sheets
	                STATE EX REL. COUNSEL FOR DIS. v. PIVOVAR	189
	                            Cite as 288 Neb. 186

The referee also considered the “overwhelming showing of
support” for respondent by members of the legal community
and the fact that respondent was cooperative and “gener-
ally remorseful.”
   No exceptions were taken by either party to the referee’s
report. As such, pursuant to Neb. Ct. R. § 3-310(L), the rela-
tor moved for judgment on the pleadings and asked this court
to impose the recommended sanction. We granted the motion
in part with the following minute entry: “Judgment on the
pleadings granted, limited as to the facts. Parties directed to
brief the issue of discipline. Matter to proceed to briefing and
oral argument.”

               III. STANDARD OF REVIEW
   A proceeding to discipline an attorney is a trial de novo on
the record.1

               IV. ASSIGNMENTS OF ERROR
  Neither party has taken exception to the referee’s report.
Neither party assigns any error.

                         V. ANALYSIS
                        1. Background
   Because the motion for judgment on the pleadings was
granted as to the facts, the issue before us is the appropriate
discipline.2 Under Neb. Ct. R. § 3-304(A), we may impose one
or more of the following disciplinary sanctions:
        (1) Disbarment by the Court; or
        (2) Suspension by the Court; or
        (3) Probation by the Court in lieu of or subsequent to
      suspension, on such terms as the Court may designate; or
        (4) Censure and reprimand by the Court; or
        (5) Temporary suspension by the Court[.]
   [1,2] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we

 1	
      State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792
      (2013).
 2	
      See id.
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consider the following factors: (1) the nature of the offense, (2)
the need for deterring others, (3) the maintenance of the repu-
tation of the bar as a whole, (4) the protection of the public,
(5) the attitude of the offender generally, and (6) the offender’s
present or future fitness to continue in the practice of law.3 In
determining the proper discipline of an attorney, we consider
the attorney’s actions “both underlying the events of the case
and throughout the proceeding,” as well as any aggravating or
mitigating factors.4
   Each attorney discipline case must be evaluated individually
in light of its particular facts and circumstances.5 In addition,
the propriety of a sanction must be considered with reference
to the sanctions imposed in prior similar cases.6

                   2. R espondent’s Conduct
   Respondent’s conduct surrounding Robinson’s appeal fell
below the standards expected of an attorney under the Nebraska
Rules of Professional Conduct.
   Respondent was not thorough in preparation of the materi-
als necessary for Robinson to appeal from the denial of post-
conviction relief or in communicating with Robinson about
how to proceed with an appeal. Although respondent provided
Robinson with several of the documents necessary to perfect
an appeal and provided Robinson with some pertinent infor-
mation, respondent failed to provide Robinson with a notice
of appeal or to inform Robinson that he had only 30 days
to appeal.
   Respondent’s representation of Robinson on appeal lacked
competence, diligence, and promptness. On the day after
receiving the order of appointment, respondent learned that
an appeal had not been perfected. Despite this discovery,
respondent made no significant effort to resolve the problem.

 3	
      State ex rel. Counsel for Dis. v. Palik, 284 Neb. 353, 820 N.W.2d 862
      (2012).
 4	
      See id. at 359, 820 N.W.2d at 867.
 5	
      State ex rel. Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862
      (2012).
 6	
      Id.
                       Nebraska Advance Sheets
	               STATE EX REL. COUNSEL FOR DIS. v. PIVOVAR	191
	                           Cite as 288 Neb. 186

Although Robinson’s appeal was eventually docketed, this was
not due to efforts of respondent.
   Our main concern is respondent’s lack of communication
with his client. Section 3-501.4(a) states that an attorney must
do the following:
        (1) promptly inform the client of any decision or cir-
     cumstance with respect to which the client’s informed
     consent . . . is required by these Rules;
        (2) reasonably consult with the client about the means
     by which the client’s objectives are to be accomplished;
        (3) keep the client reasonably informed about the status
     of the matter;
        (4) promptly comply with reasonable requests for
     information; and
        (5) consult with the client about any relevant limitation
     on the lawyer’s conduct when the lawyer knows that the
     client expects assistance not permitted by the Rules of
     Professional Conduct or other law.
   Respondent’s interaction with Robinson did not meet
these standards. After respondent was appointed to represent
Robinson on appeal, respondent did not reply to Robinson’s
repeated attempts at communication via telephone and letter.
Additionally, respondent did not keep Robinson reasonably
informed about the status of the appeal. Respondent waited
over 8 months before he told Robinson that his appeal had not
been perfected. This delay is far from diligent or prompt.
                3. Aggravating and Mitigating
                        Circumstances
                       (a) Aggravators
   As the referee noted, respondent’s prior instances of disci-
pline are aggravating factors.7 Respondent has four prior pri-
vate reprimands. All but one of these reprimands involved the
failure to communicate.
   In December 1997, respondent was reprimanded for violat-
ing the provisions of the then-existing Code of Professional

 7	
      See State ex rel. Counsel for Dis. v. Lopez Wilson, 283 Neb. 616, 811
      N.W.2d 673 (2012).
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192	288 NEBRASKA REPORTS



Responsibility relating to misconduct8 and client funds.9
Respondent had cashed a check from a client instead of depos-
iting it as required by the Code of Professional Responsibility.
   In July 2002, respondent was retained to prepare an appli-
cation for modification of child support. Respondent prepared
the application but failed to use the client’s proper name.
Thereafter, he failed to make the necessary revisions to the
application. He did not appear at a scheduled meeting with the
client or respond to the client’s attempts at communication.
The client terminated respondent’s services and requested an
itemized statement and return of her deposit. Respondent failed
to comply with these requests, and when the client submit-
ted a request for fee arbitration with the help of the Nebraska
State Bar Association, respondent did not reply. In May 2003,
respondent was privately reprimanded for violating the provi-
sions of the Code of Professional Responsibility relating to
misconduct10 and competency.11
   In 2010, two separate grievances were brought against
respondent. One client reported that respondent had failed to
file an appellate brief. A second client terminated respond­
ent’s services because of his failure to communicate with the
client. The client requested an itemized statement and refund
of any unearned fees, neither of which respondent provided.
Respondent had not deposited the prepaid fees into his client
trust account. Additionally, he did not respond to inquiries
from the Counsel for Discipline. For these actions, respondent
was reprimanded in July 2010 for violating his oath of office
as an attorney; §§ 3-501.1 (competence), 3-501.3 (diligence),
and 3-501.4 (communications); and Neb. Ct. R. of Prof.
Cond. §§ 3-501.5 (fees), 3-501.16 (declining or terminat-
ing representation), and 3-508.1 (bar admission and discipli­
nary matters).

 8	
      See Canon 1, DR 1-102(A)(1), of the Code of Professional Responsibility.
 9	
      See Canon 9, DR 9-102(A)(1) and (2), of the Code of Professional
      Responsibility.
10	
      See DR 1-102(A)(1).
11	
      See Canon 6, DR 6-101(A)(3), of the Code of Professional Responsibility.
                        Nebraska Advance Sheets
	                STATE EX REL. COUNSEL FOR DIS. v. PIVOVAR	193
	                            Cite as 288 Neb. 186

   Most recently, in December 2012, respondent was privately
reprimanded for violating §§ 3-501.4 (communications) and
3-508.4(a) and (d) (misconduct). Respondent had been retained
to represent an individual on his motion for postconviction
relief, but he did little work on the case. At one point, respond­
ent went almost 6 months without taking any action in the case.
When respondent conducted depositions, he did not inform the
client that he was doing so. The client repeatedly contacted
respondent without reply. Based on these actions, respondent
was “sternly reprimanded.”

                            (b) Mitigators
   The referee identified several mitigating factors, including
respondent’s remorseful attitude and cooperation throughout
the disciplinary proceedings. The referee also considered the
overwhelming showing of support for respondent from mem-
bers of the legal community. Letters were received in sup-
port of respondent from 21 members of the legal community,
including retired district court judges, an assistant attorney
general, public defenders, county attorneys, and individual
attorneys. Several letters were also received from individuals
attesting to respondent’s involvement in the community.
   Based on these factors, the referee concluded as follows:
         If we did not have the overwhelming demonstration of
      support for [respondent], I would tend to agree with the
      Relator that the suspension should be 90 days followed by
      a one-year probation with a practice monitor.
         However, I believe that this extraordinary level of sup-
      port should be given some weight in regard to the punish-
      ment of [respondent]. Additionally, I have taken into con-
      sideration that . . . Robinson’s situation was not ultimately
      harmed, in light of the fact that his appeal was ultimately
      perfected and is now being processed.
   We agree with the referee that respondent’s remorseful
attitude and cooperation in these proceedings are mitigating
factors.12 But the fact that Robinson’s appeal was ultimately

12	
      See State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746 N.W.2d
      681 (2008).
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allowed to proceed does not change the fact that respondent
failed to reply to Robinson’s repeated telephone calls and let-
ters and waited over 8 months to inform Robinson about the
problems with his appeal. “‘Even when the client’s interests
are not affected in substance, however, unreasonable delay can
cause a client needless anxiety and undermine confidence in
the lawyer’s trustworthiness.’”13

                     4. Sanction Imposed in
                          Similar Case
   In State ex rel. Counsel for Dis. v. Seyler,14 we imposed
only a 30-day suspension on an attorney who had repeatedly
failed to respond to discovery requests and court orders, failed
to attend hearings, and failed to keep his clients reasonably
informed. Unlike respondent, the attorney in Seyler had no
prior disciplinary proceedings.

                     5. Conclusion as to
                           Discipline
   The evidence establishes that respondent’s representation
of Robinson violated his oath of office as an attorney and
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (com-
munications), and 3-508.4 (misconduct). Respondent’s repre-
sentation was not competent, prompt, or diligent. Furthermore,
respondent failed to keep Robinson informed and to promptly
respond to Robinson’s repeated attempts at communication.
   The evidence shows that respondent is well respected by
the legal community, that he is generally remorseful, and that
he cooperated with relator. However, respondent has four prior
private reprimands, three of which involved a failure to com-
municate with clients.
   Given the pattern of poor communication exhibited in
respondent’s prior reprimands, we find that the referee’s rec-
ommendation of a 45-day suspension followed by 2 years of

13	
      Palik, supra note 3, 284 Neb. at 359, 820 N.W.2d at 867 (quoting
      § 3-501.3, comment 3).
14	
      State ex rel. Counsel for Dis. v. Seyler, 283 Neb. 401, 809 N.W.2d 766
      (2012).
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	           STATE EX REL. COUNSEL FOR DIS. v. PIVOVAR	195
	                       Cite as 288 Neb. 186

monitored probation is appropriate. No exceptions have been
taken to this recommendation, and we hereby adopt it.
   Upon due consideration of the record, we find that respond­
ent should be and hereby is suspended from the practice of
law for a period of 45 days, effective immediately. Respondent
shall comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon
failure to do so, he shall be subject to punishment for con-
tempt of this court. We also direct respondent to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2012), § 3-310(P) (rev. 2014), and Neb. Ct. R.
§ 3-323(B) within 60 days after an order imposing costs and
expenses, if any, is entered by this court.
   At the end of the 45-day suspension, respondent may apply
to be reinstated to the practice of law, provided that he has
demonstrated his compliance with § 3-316 and further pro-
vided that relator has not notified this court that respondent
has violated any disciplinary rule during his suspension. Upon
reinstatement, respondent shall complete 2 years of monitored
probation. During the period of probation, respondent will be
monitored by an attorney licensed to practice law in the State
of Nebraska and approved by relator. The monitoring plan shall
include but not be limited to the following:
   (1) On a monthly basis, respondent shall provide the moni-
toring attorney with a list of all cases for which respondent is
then currently responsible, said list to include the following
information for each case: (a) the date the attorney-client rela-
tionship began, (b) the type of case (i.e., criminal, dissolution,
probate, contract, et cetera), (c) the date of the last contact
with the client, (d) the last date and type of work completed
on the case, (e) the next type of work and date to be completed
on the case, and (f) any applicable statute of limitations and
its date;
   (2) On a monthly basis, respondent shall meet with the
monitoring attorney to discuss respondent’s pending cases;
   (3) Respondent shall work with the monitoring attorney to
develop and implement appropriate office procedures to ensure
that client matters are handled in a timely manner; and
   (4) If at any time the monitoring attorney believes respond­
ent has violated a disciplinary rule or has failed to comply
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with the terms of probation, the monitoring attorney shall
report the same to relator.
                     VI. CONCLUSION
   It is the judgment of this court that respondent should be
and hereby is suspended from the practice of law for a period
of 45 days, effective immediately. It is the further judgment
of this court that upon completion of the period of suspen-
sion and reinstatement to the bar, respondent shall be placed
on monitored probation for 2 years, subject to the terms set
forth above.
                                     Judgment of suspension.
   McCormack, J., not participating.



      Kim Conroy, Tax Commissioner, and Ruth Sorenson,
          P roperty Tax Administrator, appellants, v.
           K eith County Board of Equalization and
              Central Nebraska Public Power and
                  Irrigation District, appellees.
                                  ___ N.W.2d ___
                        Filed May 23, 2014.    No. S-13-277.

 1.	 Taxation: Judgments: Appeal and Error. An appellate court reviews decisions
     rendered by the Tax Equalization and Review Commission for errors appearing
     on the record.
 2.	 Judgments: Appeal and Error. When reviewing a judgment for errors appear-
     ing on the record, an appellate court’s inquiry is whether the decision conforms
     to the law, is supported by competent evidence, and is not arbitrary, capricious,
     or unreasonable.
 3.	 Taxation: Appeal and Error. An appellate court reviews questions of law aris-
     ing during appellate review of decisions by the Tax Equalization and Review
     Commission de novo on the record.
 4.	 Judgments: Jurisdiction. Jurisdictional questions that do not involve a factual
     dispute present questions of law.
 5.	 Constitutional Law: Intent. Constitutional provisions are not open to construc-
     tion as a matter of course; construction is appropriate only when it has been
     demonstrated that the meaning of the provision is not clear and that construction
     is necessary.
 6.	 Constitutional Law: Courts: Intent. If the meaning is clear, the Nebraska
     Supreme Court gives a constitutional provision the meaning that laypersons
     would obviously understand it to convey.
