Although I live in SEC country, I am a Chelsea FC fan rather than a follower of college football. So this is not a sly college football reference in my title. (I am aware that apparently UT lost its first game of the season but have literally no idea whether the Cornhuskers have even played yet in 2018.) This post title is actually a very short description of the difference in how quickly the Nebraska Supreme Court managed to disbar an attorney who was obviously flouting the rules than did the Tennessee Supreme Court in the last matter about which I wrote. The less patient approach on display in Nebraska was entirely understandable because the underlying rule being flouted was related to trust accounts and not conflicts.
The now-former lawyer in question – John Nimmer – went from one prior instance of having received a public censure to being disbarred for his next offense in 2018 because he repeatedly commingled funds and used money in client trust accounts to pay an array of personal expenses. He also managed to get disbarred because his only defense to the charges – which were first pursued in 2016 but covered his banking for more than a decade – was something of an attempt to plead ignorance. (He also managed a too-cute-by-half variation of something I’ve written about before as apparently having worked for one particular Wisconsin lawyer – failing to also keep records sufficient to fully prove what you did.)
Interestingly, before I tell you all that I will tell you about why the outcome seems so justifiable, it is worth noting that the initial decision against him was not disbarment, it was merely a 1-year suspension followed by 2-years of probation. Nimmer objected to/appealed that proposal and, ultimately, got disbarment. (It likely would come as no surprise to anyone who does disciplinary defense to hear that Nimmer was pro se on appeal.)
Also interestingly, unlike your normal trust account violation disciplinary proceeding, this one began when the SEC (no, not that one I referenced earlier, the Securities and Exchange Commission) made a referral in March 2016 to Nebraska bar regulators after gaining access by subpoena to Nimmer’s trust account records and finding much questionable activity.
The SEC’s “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.”
Nebraska bar counsel first asked Nimmer to explain a number of the checks and he declined to do so. They then issued their own subpoena for his trust account records covering a time period going back more than 10 years to January 1, 2006. Thereafter, they pursued a formal petition for discipline against him alleging 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
As often happens in pro se disciplinary proceedings, Nimmer first challenged (unsuccessfully) the notion that there was any jurisdiction since bar counsel worked for the Supreme Court and also sought out a requirement that bar counsel should have to be disqualified because Nimmer was going to call him as a witness. He ultimately got a special counsel assigned to his case, but the dismissal motions were unsuccessful. Nimmer also tried a number of other procedural “Hail Marys,” including trying to have his trust account records barred from evidence because he was only actually required to keep records going back 5 years.
You can read the 31-page opinion here (N00006179PUB) and the array of transactions that were involved and that Nimmer admitted happened. But, I’ll end with a quick elaboration on that “ignorance of the law” defense, paired as it was with an attempt to argue that he was acting at all times in good faith.
Essentially, the record was undeniably clear that Nimmer used his trust account like a personal checking account — he repeatedly wrote checks to pay the power company, his internet service provider, to pay for his daughter’s camps and health insurance, to pay for his cell phone service, and even one to pay his Nebraska State Bar dues out of his trust account.
Nimmer attempted to argue that “maybe” he was actually using earned fees he had deposited into the trust account to make these payments but he didn’t exactly offer documentation to support the possibility. He also argued that the commingling rules were less than clear so he didn’t understand that he couldn’t, for example: receive a loan from his mother for $10,000, deposit that into his trust account, and then use that $10,000 to pay a whole series of personal debts.
Nebraska grabbed language from our nation’s capital to quickly dispatch of such an argument in this situation:
The District of Columbia Court of Appeals explained it well: “If a failure to understand
the most central Rules of Professional Conduct could be an acceptable defense for a charged violation, even in cases of good faith mistake, the public’s confidence in the bar and, more importantly, the public’s protection against lawyer overreaching
would diminish considerably.” In re Smith, 817 A.2d 196, 202 (D.C. 2003).