Disbarred In The Heartland

An attorney left no stone unturned in his effort to avoid discipline in a case that began as a referral from the Securities and Exchange Commission and ended in disbarment by the Nebraska Supreme Court.

In a letter dated March 11, 2016, the enforcement division of the U.S. Securities and Exchange Commission (SEC) notified the Counsel for Discipline of “possible professional misconduct” by Nimmer. The SEC had subpoenaed records from Nimmer’s client trust account in connection with an unrelated investigation and reported that its “review of Nimmer’s trust account transactions revealed that he wrote numerous checks for personal expenses, ranging from rent and child support to dog boarding and landscaping fees.” On March 18, the Counsel for Discipline notified Nimmer that he was the subject of an investigation and provided him a copy of the grievance.

Counsel for Discipline subpoenaed the trust account records and filed charges

On February 1, 2017, the Counsel for Discipline filed formal charges against Nimmer. It alleged that between January 2006 and February 2016, Nimmer wrote personal checks on his client trust account to 29 different businesses, individuals, and organizations. Additionally, it alleged that on December 20, 2007, Nimmer deposited a $10,000 check from his mother issued to him with the notation “loan” into his client trust account. The formal charges alleged that by using his client trust account in this fashion, Nimmer commingled his personal funds with client funds and thereby violated his oath of office as an attorney…

The attorney move to dismiss and to recuse the prosecutor but the referee found misconduct

Nimmer’s written exceptions [to the court] challenge nearly every aspect of the referee’s report. Consolidated and summarized, Nimmer takes exception to the referee’s (1) evidentiary rulings, including admitting the subpoenaed records of Nimmer’s client trust account; (2) finding clear and convincing evidence of disciplinary violations; (3) rejecting Nimmer’s affirmative defenses; and (4) recommending a 1-year suspension.

As the court reviews bar discipline de novo, the court did not consider the exceptions and found trust account violations

…we cite a few representative examples.

From 2005 through 2009, Nimmer wrote 19 checks on his client trust account to the Omaha Public Power District. He testified these checks were “more likely than not” his utility payments, but claimed that without his pre-2011 subsidiary trust account records, he could not be certain.

From 2006 through 2009, Nimmer wrote 27 checks on his client trust account to “Cox Communications.” Nimmer testified that Cox Communications was his current Internet service provider and was not a client of his, but he could not remember whether he had the same provider at the time the checks were written and did not want to “venture a guess.”

Nimmer wrote a check to his ex-wife on the client trust account with the notation “Jan./Feb. health ins.” Nimmer testified this check “may have” been a payment to his ex-wife for his daughter’s health insurance, but he did not “remember for sure.” Additionally, Nimmer wrote at least 22 other checks to his ex-wife, many with notations such as “camp,” “daycamp,” “Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted these checks were not related to any client representation, but when asked if the checks represented personal payments on behalf of his daughter, Nimmer replied, “I’m not going to characterize them that way.” Nimmer himself offered several exhibits documenting payments he made from his client trust account in 2011, 2013, 2014, and 2016 for his daughter’s summer camp.

Nimmer wrote approximately 15 checks from his client trust account to “Cricket.” Nimmer testified, “I think Cricket is a cell phone provider,” but he did not recall why he had written the checks.

In 2007, Nimmer wrote a check from his client trust account to the Nebraska State Bar Association in the amount of $320. When asked whether he was paying his bar dues out of his client trust account, Nimmer replied, “There is no notation that allows me to say for sure.”

A host of affirmative defenses fell on deaf ears, e.g.

Simply put, neither good faith nor ignorance of the rules prohibiting commingling client and personal funds provides a defense to a disciplinary charge that an attorney violated the rules against commingling.

On sanction, attitude matters

Nimmer has challenged this court’s authority to discipline him and repeatedly tried to prevent consideration and review of his client trust account records. While lawyers facing disciplinary charges should not be discouraged in any way from mounting a vigorous defense, some of the legal positions advanced by Nimmer in this proceeding border on the frivolous and reflect an attitude which bears negatively on his willingness to conform his conduct to the Nebraska Rules of Professional Conduct…

Absent mitigating circumstances, this court has repeatedly held that disbarment is the appropriate discipline in cases of misappropriation or commingling of client funds. Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where they are extraordinary and substantially outweigh any aggravating circumstances.  In this case, we do not find any such mitigating factors…

Nimmer has been disciplined for misconduct previously, and his prolonged and persistent violation of the rule against commingling reflects a general failure, or unwillingness, to fully comprehend the serious nature of his conduct. After balancing the relevant factors in comparison to other cases, and considering the need to protect the public, the need to deter others, the reputation of the bar as a whole, Nimmer’s fitness to practice law, and the aggravating circumstances, we conclude the only appropriate sanction here is disbarment.

He had previously been publicly reprimanded. 

State ex re l. Counsel for Discipline v. Nimmer can be found at this link. (Mike Frisch)