Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/22/2017 09:13 AM CDT




                                                           - 705 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                        STATE EX REL. COUNSEL FOR DIS. v. FITCH
                                                   Cite as 297 Neb. 705




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

                                          Filed September 8, 2017.   No. S-16-1164.

                    Original action. Judgment of public reprimand.
                  Heavican, C.J., Wright, Miller‑Lerman, Cassel, Stacy,
               K elch, and Funke, JJ.
                    Per Curiam.
                                     INTRODUCTION
                  This case is before the court on the conditional admission
               filed by Thomas A. Fitch, respondent, on June 7, 2017. The
               court accepts respondent’s conditional admission and enters an
               order of public reprimand.
                                           FACTS
                  Respondent was admitted to the practice of law in the State
               of Nebraska on April 29, 1992. At all relevant times, he was
               engaged in the practice of law in South Sioux City, Nebraska.
                  On June 6, 2017, the Counsel for Discipline of the Nebraska
               Supreme Court filed amended formal charges against respond­
               ent. The amended formal charges consist of one count against
               respondent arising from his conduct in connection with the
               business of his client in which respondent was a participant.
               The formal charges state that on September 26, 2007, Doug
               Peterson met with respondent at respondent’s office to review
               and notarize documents with regard to Peterson’s agreement
                             - 706 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
             STATE EX REL. COUNSEL FOR DIS. v. FITCH
                        Cite as 297 Neb. 705

to purchase real property in Dixon County, Nebraska. An
abandoned gravel pit was located on the property, and it
was Peterson’s intent to reopen the gravel pit as an ongoing
sand and gravel mining operation. Prior to September 26,
respondent had represented Peterson on several matters. During
their September 26 meeting, Peterson informed respondent
that he was looking for ways to finance his nascent sand and
gravel business.
   Following the meeting, respondent invested in Peterson’s
sand and gravel business, and brought in a longtime friend as
an investor. On February 12, 2008, “Peterson Sand & Gravel,
LLC” (LLC) was formed. Respondent prepared all documents
for the formation of the LLC. Respondent was one of four
members of the LLC.
   Initially, Peterson was elected as the manager of the com-
pany to manage the daily affairs of the company. Peterson
was elected as president of the LLC, and respondent was
elected as the secretary and treasurer. Eventually, Peterson
resigned as president of the LLC because of concerns that
his prior personal bankruptcy and current financial status
might jeopardize the LLC’s ability to obtain a Small Business
Administration loan. On March 21, 2009, all members of the
LLC accepted the resignation of Peterson regarding his mem-
bership in the LLC and all offices he held. Peterson continued
to serve as the daily operations manager of the LLC through
December 2013.
   Despite his previous resignation as president of the LLC,
Peterson signed as president of the LLC in a series of six
promissory notes and commercial debt modification agree-
ments with a bank in South Sioux City. Respondent also signed
each of the loan documents as secretary/treasurer of the LLC.
At the time the loan documents were inaccurately signed by
Peterson as president and by respondent as secretary/treasurer,
respondent knew that Peterson no longer served as president of
the LLC. However, respondent failed to inform the bank that
Peterson was no longer president of the LLC.
                             - 707 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
             STATE EX REL. COUNSEL FOR DIS. v. FITCH
                        Cite as 297 Neb. 705

   The amended formal charges allege that by his omissions,
respondent violated his oath of office as an attorney, Neb.
Rev. Stat. § 7‑104 (Reissue 2012), and Neb. Ct. R. of Prof.
Cond. §§ 3‑501.3 (diligence), 3‑501.8 (conflict of interest), and
3‑508.4 (misconduct).
   On June 7, 2017, respondent filed a conditional admission
pursuant to Neb. Ct. R. § 3‑313(B) of the disciplinary rules,
in which he conditionally admitted that he violated his oath of
office as an attorney and professional conduct rules §§ 3‑501.3,
3‑501.8, and 3‑508.4. In the conditional admission, respondent
knowingly does not challenge or contest the truth of the mat-
ters conditionally asserted and waives all proceedings against
him in exchange for a public reprimand.
   The proposed conditional admission included a declara-
tion by the Counsel for Discipline, stating that respondent’s
proposed discipline is appropriate and consistent with sanc-
tions imposed in other disciplinary cases with similar acts of
misconduct.

                        ANALYSIS
  Section 3‑313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
        (B) At any time after the Clerk has entered a Formal
     Charge against a Respondent on the docket of the Court,
     the Respondent may file with the Clerk a conditional
     admission of the Formal Charge in exchange for a stated
     form of consent judgment of discipline as to all or
     part of the Formal Charge pending against him or her
     as determined to be appropriate by the Counsel for
     Discipline or any member appointed to prosecute on
     behalf of the Counsel for Discipline; such conditional
     admission is subject to approval by the Court. The
     conditional admission shall include a written statement
     that the Respondent knowingly admits or knowingly
     does not challenge or contest the truth of the matter or
                            - 708 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
            STATE EX REL. COUNSEL FOR DIS. v. FITCH
                       Cite as 297 Neb. 705

     matters conditionally admitted and waives all proceed-
     ings against him or her in connection therewith. If a
     tendered conditional admission is not finally approved as
     above provided, it may not be used as evidence against
     the Respondent in any way.
   Pursuant to § 3‑313, and given the conditional admission,
we find that respondent knowingly does not challenge or
contest the matters conditionally admitted. We further deter-
mine that by his conduct, respondent violated conduct rules
§§ 3‑501.3, 3‑501.8, and 3‑508.4 and his oath of office as
an attorney licensed to practice law in the State of Nebraska.
Respondent has waived all additional proceedings against him
in connection herewith. Upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
                        CONCLUSION
   Respondent is publicly reprimanded. Respondent is directed
to pay costs and expenses in accordance with Neb. Ct. R.
§§ 3‑310(P) (rev. 2014) and 3‑323 of the disciplinary rules
within 60 days after an order imposing costs and expenses, if
any, is entered by the court.
                              Judgment of public reprimand.
