ELLIS, respondent. No. S–10–986. -- February 24, 2012
FACTS
Ellis was admitted to the practice of law in Nebraska in 1982. In 2003, he entered a conditional admission to charges filed by the Counsel for Discipline. Those charges alleged that due to Ellis' neglect, a client's case was dismissed. Ellis subsequently misled the client regarding the status of that case and gave false information to the Counsel for Discipline's office during the following investigation. We accepted Ellis' conditional admission and suspended him for 1 year. State ex rel. Special Counsel for Dis. v. Ellis, 265 Neb. 788, 659 N.W.2d 829 (2003). Ellis was reinstated in 2004.
At all relevant times, Ellis was engaged in the private practice of law in Omaha under the jurisdiction of the Committee on Inquiry of the Second Disciplinary District, which determined reasonable grounds existed to discipline Ellis. Accordingly, formal charges were filed. Given Ellis' answer, we appointed a referee.
With respect to the current case, the referee found facts substantially as described below. Following our de novo review of the record, we determine there is clear and convincing evidence in the record to support these facts. In 2006, Stephen and Cindy Fuller met with Ellis to talk about collecting damages as a result of personal injuries Stephen Fuller (Fuller) suffered in 2004. Ellis was hired on a one-third contingency fee contract and presented a claim to an insurance company, which denied liability. Before proceeding with the case, Ellis required a $1,000 deposit. Fuller made the deposit, and in May 2007, the funds were placed in Ellis' trust account. In June 2007, Ellis filed suit in the district court for Douglas County, and discovery began.
Around March 10, 2008, the district court sent a notice to Ellis stating that Fuller's suit would be dismissed in 30 days for lack of prosecution. Ellis did not send Fuller a copy of this notice of impending dismissal. The statute of limitations ran on Fuller's claim in February 2008. Fuller's case was dismissed with prejudice on April 10, 2008. Ellis claimed he told the Fullers about the notice of impending dismissal on March 24, 2008, when he met with them to discuss their upcoming depositions. The referee did not find this testimony credible. Ellis also claimed he sent a letter to Fuller on March 28 about the impending dismissal. The referee found that Ellis falsely claimed this letter had been sent and, on the contrary, that the evidence showed the letter “was created by [Ellis] to mislead and deceive [the] Counsel for Discipline in the investigation of this matter.” These findings by the referee are supported by the record.
The March 28, 2008 letter was not sent by certified mail. It included the statement, “If I do not hear back from you, I will assume you agree that your case would not likely be successful and understand that the matter will be dismissed.” The file copy of the March 28 letter resembled “a copy of a copy.” The letter did not discuss the reinstatement of the case or mention the expired statute of limitations. The referee did not find it credible that the March 28 letter would include so little about the consequences of dismissal and the difficulty of reinstatement.
Ellis' firm uses “Worldox,” a document management system which assigns numbers sequentially to documents. The March 28, 2008 letter was allegedly numbered 60119, while a March 26 letter was numbered 60201. Two copies of the letter in two exhibits in the case bore no document number.
In connection with the investigation of Fuller's grievance, the Assistant Counsel for Discipline met Ellis at Ellis' office on May 3, 2010 and asked for the March 28, 2008 letter. The letter was not found in the computer system. A search for the document numbered 60119 retrieved a letter dated March 20, 2008 to a different client. A hard copy of the March 20 letter could not be found. Ellis claimed he gave the March 20 letter directly to the client; the referee determined that it was more likely the letter was used to recreate an obsolete letterhead.
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