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State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Mills12/5/2003
Brief for respondent at 10. In support of this argument, Mills cites State ex rel. Counsel for Dis. v. Koenig, 264 Neb. 474, 647 N.W.2d 653 (2002), and State ex rel. Counsel for Dis. v. Thompson, 264 Neb. 831, 652 N.W.2d 593 (2002).
Mills first compares his situation to Koenig, stating that " he stressful personal crisis and psychological issues confronting . . . Mills presents a case similar to the court's recognition of such circumstances in [Koenig]." Brief for respondent at 10. However, Koenig is inapplicable, as in that case, this court makes no mention of a "stressful personal crisis and psychological issues."
Thompson, however, does consider "psychological issues." In Thompson, this court gave mitigating weight to Thompson's diagnosed depression. In Mills' case, however, the referee specifically determined:
I am not prepared to give great weight to the personal problems (i.e., loss of a long-time secretary, deterioration in his marriage relationship) which . . . Mills claimed clouded his judgment. It should be noted that during a critical period of time involved here - January 1, 1999 to August 1, 1999 - . . . Mills did not see fit to seek out professional medical treatment.
The type of personal problem being endured by . . . Mills in this case is not, in my view, the kind of matter which this Court has felt worthy of mitigation.
(Citation omitted.)
Our de novo review of the record supports the referee's determination. Unlike Thompson, this record contains no diagnosis of depression. The diagnosis is that of "adjustment disorder of adult life with mixed emotional features." Mills' "treatment" for this specific diagnosis consisted principally of one office "interview" on December 10, 1999, and two telephone "visits" with a clinical psychologist on December 13 and 21. With regard to the December 21 visit, the psychologist's records state that "[Mills] thinks that he can handle the problems with the help of his friends, so he decided to call back if the problems again become overwhelming." There is no evidence of any further treatment or evaluation by this psychologist.
Although we acknowledge Mills' additional testimony that approximately 1 year after this initial treatment, he received "counseling of a similar nature" from another counselor, the medical evidence in this record does not approach that in Thompson, nor does it contain any evidence that Mills' diagnosis was a direct and substantial contributing factor to his misconduct or that treatment will substantially reduce the risk of further misconduct. See Thompson, supra. We determine that based upon this record, Mills' adjustment disorder is not a mitigating factor.
[10-12] In an attorney discipline proceeding, an isolated incident not representing a pattern of conduct is considered as a factor in mitigation. State ex rel. Counsel for Dis. v. Apker, 263 Neb. 741, 642 N.W.2d 162 (2002). An attorney's cooperation during the process is yet another factor to be considered in mitigation. Id. Finally, the attorney's admission of responsibility for his or her actions reflects positively upon his attitude and character and is to be considered in determining the appropriate discipline. Id.
It is clear from the record that Mills' behavior surrounding his handling of the Borgelt estate was an isolated incident in what has otherwise been an exemplary legal career. The record indicates that Mills is involved in his community and has countless letters of support from judges, lawyers, and laypersons. In addition, Mills has never been disciplined in the 30 years he has been authorized to practice law in Nebraska.
Although Mills initially
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