“Prepared By” Violation A Question Of First Impression In Nebraska

The Nebraska Supreme Court has imposed a public reprimand of an attorney

This action alleges Hanson violated several provisions of the Nebraska Rules of Professional Conduct and his oath as an attorney by preparing legal documents for his girlfriend without including a “Prepared By” notation as required by Neb. Ct. R. of Prof. Cond. § 3-501.2(c) (rev. 2016). At the time, Hanson was employed as the Valley County Attorney and Hanson’s girlfriend, a former Valley County employee, was involved in a lawsuit as a self-represented litigant regarding the reasons for her termination from the Valley County sheriff’s office. This is the first time Hanson has been the subject of a disciplinary action.

The underlying case

Hanson was admitted to practice law in Nebraska in 2011 and served as the county attorney for Valley County, Nebraska, from January 2015 to January 2019. At all times relevant to this case, Hanson was engaged in the practice of law in Ord, Nebraska, and in a personal relationship with his girlfriend, C.S. C.S. was previously employed by the Valley County sheriff’s office as a jailer/dispatcher, but was involuntarily terminated from her employment in January 2018.

At the time C.S.’ employment was terminated, Hanson was running for reelection as the Valley County Attorney in a contested primary election. Hanson’s opponent, Kayla Clark, established a campaign social media account on which a private individual, G.B., posted a comment stating C.S. had been terminated from her employment with the sheriff’s office because she had been intoxicated at work. G.B. was an active supporter of Clark’s political campaign.

In April 2018, C.S., as a self-represented litigant, filed two lawsuits in the Valley County Court against G.B., both related to the social media comment. The documents filed by C.S. contained indexing notations that were consistent with notations on other legal documents that had been prepared by Hanson. On May 2, C.S., as a self-represented litigant, filed an amended complaint and demand for jury trial with the notation “Prepared By: Brandon B. Hanson, NSBA #24675.”

Clark filed the bar complaint. 

In the C.S. litigation

A subpoena was issued for Hanson’s deposition, individually, in which G.B. requested Hanson produce legal materials that he produced on behalf of C.S. in the matter. On July 23, 2018, Hanson filed a motion to quash the deposition on the grounds of attorney-client privilege. The motion was sustained after the Valley County Court found that Hanson had prepared legal documents for C.S. in the case and, thus, that an attorney-client privilege existed.

In the bar matter

In his response to the formal charges, Hanson admitted that he violated § 3-501.2(c) by assisting C.S. in preparing legal documents without including a “Prepared By” notation. Hanson also admitted that the violation constituted misconduct under § 3-508.4(a). Hanson apologized for the error. He explained that after learning of his mistake, he added the notation in the amended complaint filed May 2, 2018, and stopped providing legal assistance to C.S. in the case. Hanson did not address the allegation that he had violated his oath of office, but denied the remaining allegations.

The referee recommendation

Regarding sanctions, the referee determined that because Hanson was an elected county attorney, “his assistance to [C.S.] was an abuse of his public office” and “the need to deter others is great.” The referee further concluded that self represented individuals, such as G.B., are “especially vulnerable to . . . Hanson’s behind-the-scenes assistance to [C.S.]” The referee recommended Hanson be suspended from the practice of law for a period of 6 months.

The court addresses when the “prepared by” notation on pleadings is required

This court is mindful of the increase in self-represented litigants and the need for limited scope representation. Attorneys who are willing to answer questions, discuss the information required on court forms, and provide advice on how to draft and file legal documents provide an invaluable resource in promoting greater access to justice. We are not suggesting that § 3-501.2(c) requires a “Prepared By” stamp every time a lawyer assists a self-represented litigant in this way. Rather, under § 3-501.2(c), a “Prepared By” notation is required only when an attorney actually prepares for a client a pleading, brief, or other document that is to be filed with the court. Here, however, Hanson’s involvement was not limited in this way. He does not dispute that he actually prepared the documents in question or that an attorney-client privilege relationship existed.

And sustained the concurrent conflicts finding

While Valley County was not a party to the lawsuit, the underlying issues focused on C.S.’ termination from the Valley County sheriff’s office and subsequent statements made regarding her termination. Further, the Valley County sheriff was deposed during the litigation, and outside counsel had been appointed. Based on the evidence presented, along with Hanson’s own admissions, we find there is clear and convincing evidence demonstrating that Hanson’s assistance to C.S. was a concurrent conflict of interest with his representation of Valley County, in violation of § 3-501.7(a) and (b).

Sanction

We have said that it is necessary to consider the discipline that we have imposed in cases presenting similar circumstances.   For cases involving conflicts of interest and no other violations, the relator correctly notes that this court has generally imposed just a public reprimand.  While this case also involves the violation of § 3-501.2(c), we recognize the violation was unintentional, and we have no comparative cases, because the failure to include a “Prepared By” notation is an issue of first impression in Nebraska.

Taking into account all of the mitigating factors, the absence of aggravating factors, the short period of time during which the violations occurred, and the unique nature of this case, we determine that the appropriate sanction is a public reprimand.

The case is STATE EX REL. COUNSEL FOR DIS. v. HANSON (Mike Frisch)