The Nebraska Supreme Court has ordered a 90 day suspension and probation of an attorney
This is an attorney discipline case in which the only question before this court is the appropriate discipline. The Counsel for Discipline of the Nebraska Supreme Court, the relator, brought formal charges against Amy A. Miller, the respondent, in which it alleged that Miller abused the attorney-client privilege as it pertains to protected communications between a lawyer and an inmate at a state prison. Miller unconditionally admitted all factual allegations and legal assertions contained in the formal charges.
Respondent
Miller was employed as an attorney with the American Civil Liberties Union (ACLU) of Nebraska until November 8, 2019, when she submitted her resignation. In February 2020, Miller joined Disability Rights Nebraska as a staff attorney, where she currently practices.
The ACLU was handling a class action on behalf of inmates at the Nebraska State Pentitentiary; D.L. was a putitive class member
In the fall of 2018, Miller began a romantic relationship with D.L. They communicated by mail and telephone while D.L. was incarcerated, under the guise of attorneyclient communications, in order to further the personal romantic relationship.
Contrary to the rules and regulations of the Nebraska Department of Correctional Services (NDCS), Miller sent to, and received from D.L., personal correspondence in envelopes marked as “legal mail” or “attorney mail.” Miller engaged in such written communications with D.L. until November 4, 2019, when prison officials intercepted Miller’s personal correspondence in the middle of a packet marked “attorney” or “legal” mail.
Contrary to the rules and regulations of NDCS, Miller received personal telephone calls from D.L. which were designated as attorney/client communications and thus not to be intercepted, listened to, or recorded by prison officials.
Respondent self-reported the misconduct
During the hearing, Miller testified that other than a handshake, she had no physical contact whatsoever with D.L. The evidence shows their romantic relationship was limited to letters and phone calls. The relator offered no evidence to the contrary.
Later
Miller later paid for filing fees and publication costs for D.L. in his legal action to legally change his name to “D.F.” in his case in the district court for Johnson County, case No. CI 20-06. D.L., now known as D.F., was paroled from Tecumseh on May 18, 2020. He was released to Miller’s home in Lincoln. Miller has no previous disciplinary violations. The record does not include evidence of whether Miller’s conduct caused further repercussions for D.F.
Sanction
Miller argues that the recommended 30-day suspension of the referee is excessive in light of the mitigating circumstances in her case and asks that we impose a public reprimand and probationary period, without a suspension. The relator is amenable to a range of disciplines.
There are numerous letters of support in the record from Miller’s counselors and members of the community. There is no question that Miller’s career has been dedicated to protecting the rights of Nebraskans for over 25 years. She has cooperated with the relator, is remorseful, and accepts responsibility for her conduct. These facts serve to mitigate the misconduct found in this case.
The substantial evidence of Miller’s depression is also a mitigating circumstance.
Nonetheless
However, Miller’s misconduct was significant, especially considering the crucial relationship between prison officials and the legal profession. Miller’s violation of that relationship is prejudicial to the administration of justice. See § 3-508.4(d). Her abuse of the attorney-client privilege involved a large number of phone calls and attorney envelopes marked privileged, yet containing personal correspondence of a romantic nature. These acts took place over a period of a year, and Miller did not self-report until the correspondence was discovered. We find that Miller’s conduct was not a momentary lapse of judgment.
In light of the particular facts and circumstances in this case, we suspend Miller from the practice of law for 90 days, followed by a probationary period of 9 months upon reinstatement to ensure she remains compliant with her medical care. and mental health counseling and medication, to be monitored by the Director of the Nebraska Lawyers Assistance Program or another individual approved by this court.
The case is STATE EX REL. COUNSEL FOR DIS. V. MILLER. 316 Neb. 899 (Mike Frisch)
