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           STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD
                         Cite as 291 Neb. 197




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

                   Filed June 19, 2015.    No. S-14-828.

  Original action. Judgment of suspension.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
  Per Curiam.
                        INTRODUCTION
   This case is before the court on the conditional admission
filed by Thomas G. Sundvold, respondent, on April 15, 2015.
Prior to the filing of the conditional admission at issue in this
case, this court filed an opinion on April 4, 2014, in case No.
S-13-002, in which we suspended respondent for a period of 3
years followed by 2 years’ monitored probation upon reinstate-
ment. See State ex rel. Counsel for Dis. v. Sundvold, 287 Neb.
818, 844 N.W.2d 771 (2014). Accordingly, respondent was sus-
pended at the time he filed the present conditional admission.
We accept respondent’s conditional admission and order that
respondent be suspended from the practice of law for a period
of 6 months, which suspension shall commence immediately
consecutive to respondent’s current 3-year suspension followed
by 2 years’ monitored probation upon reinstatement.
                         FACTS
  Respondent was admitted to the practice of law in the State
of Nebraska on September 25, 2003. At all relevant times,
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he was engaged in the private practice of law in Lincoln,
Nebraska.
   As stated above, prior to the filing of the conditional admis-
sion at issue in this case, in case No. S-13-002, the Counsel
for Discipline of the Nebraska Supreme Court filed formal
charges against respondent on January 3, 2013, and it filed
amended formal charges on February 15. The amended formal
charges contained two counts against respondent and generally
alleged that respondent had violated his oath of office as an
attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012), and several
of the Nebraska Rules of Professional Conduct. A referee was
appointed, and after holding an evidentiary hearing, the referee
determined that respondent had violated Neb. Ct. R. of Prof.
Cond. §§ 3-501.1 (competence); 3-501.3 (diligence); 3-501.4(a)
and (b) (communications); 3-501.15(a) and (c) (safekeeping
property); and 3-508.4(a), (c), and (d) (misconduct); and his
oath of office as an attorney. The referee recommended that
respondent be suspended for a period of 3 years, followed by 2
years’ monitored probation.
   Respondent initially filed exceptions to the referee’s report
regarding findings of fact and conclusions of law and the
recommended discipline; however, in his brief to this court,
respondent stated that he withdrew his exceptions to the ref-
eree’s findings of fact and conclusions of law and took excep-
tion only to the referee’s recommended discipline. We filed an
opinion on April 4, 2014, in which we suspended respondent
for a period of 3 years, followed by 2 years’ monitored proba-
tion upon reinstatement. See State ex rel. Counsel for Dis. v.
Sundvold, supra.
   In the current case, case No. S-14-828, formal charges
were filed against respondent on September 10, 2014. The
formal charges consist of two charges against respondent. In
the two counts, it was alleged that by his conduct, respondent
had violated his oath of office as an attorney, § 7-104, and
Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence); 3-501.3
(diligence); 3-501.4(a)(3) (communications); 3-501.5(a)
(fees); 3-501.15(a), (c), (d); and (e) (safekeeping property);
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3-501.16(d) (declining or terminating representation); and
3-508.4(a), (c), and (d) (misconduct).
   With respect to count I, the formal charges state that on
July 5, 2011, an owner of commercial property in Papillion,
Nebraska, filed suit in the district court for Sarpy County for
unpaid rent against a company and the company’s owner. On
August 5, respondent filed an answer on behalf of his client—
the company’s owner. Thereafter, discovery commenced and
the case progressed toward trial.
   On September 18, 2013, the district court scheduled a
status hearing in the case to be held on December 9. On
December 6, respondent filed a certificate of readiness for
trial in which respondent stated that
       “the case is ready for trial; that all discovery proceedings
       including depositions and other necessary preparation has
       been completed; that the testimony of all necessary wit-
       nesses is as of the date hereof available for trial as certi-
       fied hereby; that the trial is estimated to take no less than
       1 day nor more than 2 days.”
On December 19, relying on respondent’s certificate of readi-
ness for trial, the district court issued an order for a pretrial
conference to be held on April 3, 2014, and set the jury trial
to be held on April 22 and 23.
   Respondent failed to notify his client that the trial was sched-
uled for April 22, 2014. After December 19, 2013, respondent
failed to contact or subpoena any witnesses for the trial.
   On April 2, 2014, respondent directed his paralegal to send
an e-mail to opposing counsel, which stated: “‘Our client
contacted us to let us know she is having difficulty mak-
ing arrangement[s] to be in Nebraska on April 22nd.’” The
formal charges state that this was a false statement and that
respondent knew it was false when he directed his paralegal
to make it.
   At 3:34 p.m. on April 2, 2014, respondent filed a motion
to continue the pretrial conference set for April 3 at 11:15
a.m. and the trial set for April 22. The formal charges state
that in the motion, respondent falsely stated: “‘The reason
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for this request is because [his client] has recently moved
out of state and is having difficulty making arrangements
to attend the trial.’” Respondent had not informed his client
that the pretrial conference was scheduled for April 3, nor
had he informed her that trial was scheduled for April 22. On
April 3, the district court denied respondent’s motion to con-
tinue the trial.
   On April 4, 2014, as stated above, we suspended respond­
ent from the practice of law for a period of 3 years. The
district court judge became concerned that respondent may
not have informed his client of his suspension and the need
to find replacement counsel for the trial scheduled to begin
April 22. The judge directed his bailiff to contact the client
to see if she had found replacement counsel. On April 15, the
judge’s bailiff spoke with the client by telephone. The client
stated that she was unaware that the trial was scheduled for
April 22, that respondent had been suspended from the prac-
tice of law on April 4, that a pretrial conference was held on
April 3, and that the dates for the pretrial conference and the
trial had been set on December 19, 2013. Upon learning this
information, the judge filed a grievance against respondent
with the Counsel for Discipline on April 28, 2014.
   In his May 20, 2014, response to the grievance, the formal
charges state that respondent falsely stated that his paralegal
had spoken with the client in March and had told the client
that the case was set for trial in April. The formal charges
further state that respondent also falsely stated that he had
attempted to contact opposing counsel to discuss settlement.
The formal charges state that at no time between December
19, 2013, and April 3, 2014, did respondent discuss settlement
with opposing counsel.
   The formal charges allege that by his actions with respect
to count I, respondent violated his oath of office as an attor-
ney and professional conduct rules §§ 3.501.1, 3-501.3,
3-501.4(a)(3), and 3-508.4(a), (c), and (d).
   With respect to count II, the formal charges state that on
March 12, 2014, an estate-related client hired respondent to
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assist him in being appointed as personal representative for
the estate of his brother. Respondent and the estate-related
client entered into a written fee agreement entitled “‘Flat Fee
Agreement,’” which required that the estate-related client pay
$1,500 as a “‘non-refundable flat fee.’” However, the fee
agreement also stated: “‘Should the matter need to be litigated
and a lawsuit is filed, the fee agreement will revert to an hourly
agreement with fees as $175.00 an hour for attorney time and
$75.00 for paralegal time.’”
   The estate-related client paid respondent $1,500 in cash on
March 12, 2014. Respondent did not deposit any portion of
the $1,500 into his client trust account.
   On March 17, 2014, the estate-related client sent respond­
ent a money order for $500. Respondent did not know why
the estate-related client had sent this payment, but respondent
did not contact him to determine the purpose of this payment.
Respondent deposited the $500 money order into his business
account and not his client trust account.
   On April 14, 2014, as stated above, we suspended respond­
ent from the practice of law for a period of 3 years. Respondent
did not refund any portion of the $1,500 payment he had
received from the estate-related client on March 12, nor did
respondent refund any portion of the $500 he had received on
or after March 17.
   On June 17, 2014, the estate-related client filed a grievance
against respondent regarding his failure to refund the unearned
fee payments. A copy of the grievance letter was mailed to
respondent. On July 1, respondent sent the estate-related client
a business check in the amount of $500 as a refund of the $500
payment made on March 17. In respondent’s July 3 reply to the
estate-related client’s grievance, respondent asserted that the
$1,500 payment was a nonrefundable fee.
   The formal charges allege that by his actions with respect to
count II, respondent violated his oath of office as an attorney
and professional conduct rules §§ 3-501.5(a); 3-501.15(a), (c),
(d), and (e); 3-501.16(d); and 3-508.4(a).
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           STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD
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   On April 15, 2015, respondent filed a conditional admission
pursuant to Neb. Ct. R. § 3-313 of the disciplinary rules, in
which he conditionally admitted that he violated his oath of
office as an attorney and certain professional conduct rules.
In the conditional admission, respondent knowingly does not
challenge or contest the truth of the matters conditionally
admitted and waived all proceedings against him in connection
therewith in exchange for a 6-month suspension to be added to
his current 3-year suspension followed by 2 years’ monitored
probation as issued in case No. S-13-002. Upon reinstate-
ment, if accepted, respondent shall be placed on monitored
probation as set forth in case No. S-13-002, which states that
“[t]he monitoring shall be by an attorney licensed to practice
law in the State of Nebraska, who shall be approved by the
[Counsel for Discipline].” State ex rel. Counsel for Dis. v.
Sundvold, 287 Neb. 818, 833, 844 N.W.2d 771, 783 (2014).
Respondent shall submit a monitoring plan as set forth in case
No. S-13-002, which states:
      The monitoring plan shall include, but not be limited to,
      the following: During the first 6 months of the proba-
      tion, respondent will meet with and provide the monitor
      a weekly list of cases for which respondent is currently
      responsible, which list shall include the date the attorney-
      client relationship began; the general type of case; the
      date of last contact with the client; the last type and date
      of work completed on the file (pleading, correspondence,
      document preparation, discovery, or court hearing); the
      next type of work and date that work should be com-
      pleted on the case; any applicable statutes of limitations
      and their dates; and the financial terms of the relation-
      ship (hourly, contingency, et cetera). After the first 6
      months through the end of probation, respondent shall
      meet with the monitor on a monthly basis and provide
      the monitor with a list containing the same information
      as set forth above; respondent shall reconcile his trust
      account within 10 days of receipt of the monthly bank
      statement and provide the monitor with a copy within
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      5 days; and respondent shall submit a quarterly compli-
      ance report with the Counsel for Discipline, demonstrat-
      ing that respondent is adhering to the foregoing terms of
      probation. The quarterly report shall include a certifica-
      tion by the monitor that the monitor has reviewed the
      report and that respondent continues to abide by the terms
      of the probation.
Id. at 833-34, 844 N.W.2d at 784.
   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 con-
     ditional admission shall include a written statement that
     the Respondent knowingly admits or knowingly does
     not challenge or contest the truth of the matter or mat-
     ters conditionally admitted and waives all proceedings
     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.
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   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 and 3-501.4(a)(3), to which he admitted, and his
oath of office as an attorney licensed to practice law in the
State of Nebraska. Respondent has waived all additional pro-
ceedings against him in connection herewith. Upon due con-
sideration, we approve the conditional admission and enter the
orders as indicated below.
                        CONCLUSION
   Respondent is suspended from the practice of law for a
period of 6 months, which suspension shall commence imme-
diately consecutive to respondent’s current 3-year suspension
as set forth in case No. S-13-002. See State ex rel. Counsel
for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771 (2014).
Should respondent apply for reinstatement, his reinstatement
shall be conditioned upon respondent’s being on probation
for a period of 2 years, including monitoring, following rein-
statement, subject to the terms agreed to by respondent in the
conditional admission, outlined above, and set forth in case
No. S-13-002, and acceptance of an application for reinstate-
ment is conditioned on the application’s being accompanied
by a proposed monitored probation plan the terms of which
are consistent with this opinion. See id. Respondent shall
comply with Neb. Ct. R. § 3-316, and upon failure to do so,
he shall be subject to punishment for contempt of this court.
Respondent is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B)
of the disciplinary rules within 60 days after the order impos-
ing costs and expenses, if any, is entered by the court.
                                      Judgment of suspension.
