No Less Than Disbarment

The Nebraska Supreme Court declined to impose a sanction less than disbarment in a matter involving entrusted funds

The referee recommended disbarment for violations of Neb. Ct. R. of Prof. Cond. §§ 3-501.15 (safekeeping property) and 3-508.4 (rev. 2016) (misconduct) relating to the attorney’s commingling of earned and unearned client payments and cash withdrawals and checks written from her attorney trust account to pay for business and personal expenses. The trust account also suffered several overdrafts. The respondent argues that suspension rather than disbarment is the appropriate discipline for her actions.

The mitigation

In mitigation, Barfield pled that (1) any economic harm any person may have suffered from her acts was “of very brief duration,” (2) she has been providing services to economically disadvantaged members of the public at lower-than-normal fees throughout her career, (3) she is a minister and religious leader providing “comfort and moral guidance to her small group of followers generally beneficial to the social moral fabric of her community,” and (4) she has no prior serious disciplinary complaints except one related to an unpaid bill from a doctor, for which she was privately reprimanded approximately 20 years before…

Barfield noted that since 2014, she has had several health concerns related to her knees and hips. She had been trying to wind up her practice in Nebraska in order to live permanently in Texas, where the weather was better for her health. But the winding up was taking longer than she thought, and she was traveling back and forth between a daughter’s home in Texas and another daughter’s home in Nebraska. The traveling had put an emotional strain on her, and she suffered from anxiety and migraines. In fact, she had suffered from “anxiety and everything” since she started practicing. Barfield testified that she had taken antidepressants “over the years” and had been prescribed medication for her anxiety.

The court

We have generally imposed the lesser discipline of suspension in cases of commingling or misappropriation only where (1) it involved an isolated incident or a limited number of incidents over a relatively isolated period of time, (2) there were multiple significant mitigating factors, and (3) there were no aggravating factors.

Here the balance of factors resulted in disbarment.

The case is State ex re. Disciplinary Counsel v. Barfield. (Mike Frisch)