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Visa Options for International Athletes and Group Entertainers Mark J. Curley

Counseling the Employer on the New Export Control Certification Requirement Dustin J. Kessler

Defending Identity Theft in the “ICE� Age Bassel El-Kasaby


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The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • April 2011 • Vol. 14 No. 4

Features

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Departments

President’s Message A Day In May ..................................................... Robert

F. Bartle

Robert F. Bartle

5

Visa Options for International Athletes and Group Entertainers ....................................................... Mark

7

Law Practice Today Lessons Learned in the Legal Sector: Why Successful Firms Focus on Process Improvement

by David Niles

19 Special Feature Practicing Law in Iraq

J. Curley

Copy by Major Christopher M. Ferdico

24 Nebraska Ethics Advisory Opinion No. 11-02

Counseling the Employer on the New Export Control Certification Requirement for Non-Immigrant Worker Petitions ................................................... Dustin

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25 NSBA Calendar 27 Legal Community News

J. Kessler

28 NCLE Calendar

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Defending Identity Theft in the “ICE” Age: A Tale of Two Cities ................................................. Bassel

29 MCLE News 29 Court News

El-Kasaby

31 Transitions

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E-Verify: The Good, The Bad and The Unresolved ......................................................................Amy

33 In Memoriam

Peck

34 Classified Ads 35 Legal Marketplace

Find the

Nebraska Lawyers Foundation 2010 Annual Report

37 2011 Public Service Awards Nomination Form

following page 20

www.nebar.com The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law. THE NEBRASKA LAWYER

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april 2011


Nebraska State Bar Association 635 South 14th St., Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL

issue editors

President: Robert F. Bartle, Lincoln President-Elect: Warren R. Whitted Jr., Omaha President-Elect Designate: Marsha E. Fangmeyer, Kearney House of Delegates Chair: G. Michael Fenner, Omaha House of Delegates Chair-Elect: James E. Gordon, Lincoln Past President: Michael F. Kinney, Omaha First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: Nancy A. Svoboda, Omaha Third District Rep.: Thomas M. Maul, Columbus Fourth District Rep.: Jill Robb Ackerman, Omaha Fifth District Rep.: Robert M. Schafer, Beatrice Sixth District Rep.: R. Kevin O’Donnell, Ogallala

ABA State Delegate: ABA Association Delegate:

Amie C. Martinez, Lincoln Daniel E. Fullner, Madison

Bar Foundation President: NLTAF: Supreme Court Liaison:

Kile W. Johnson, Lincoln Jerald L. Ostdiek, Scottsbluff Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: NCLE Section Chair:

Jarrod P. Crouse, Lincoln Susan J. Spahn, Omaha

Executive Director:

Jane L. Schoenike, Lincoln

Dustin J. Kessler

Gregory B. Minter has been practicing law with Fitzgerald, Schorr, Barmettler and Brennan for 41 years. He holds degrees from the University of Omaha and Creighton University. Minter taught Federal and State Securities Regulation at Creighton University School of Law and taught securities regulation at the University of Nebraska College of Law. He has been Secretary and a member of the Executive Board of the Iowa-Nebraska chapter of the American Immigration Lawyers Association.

EDITORIAL BOARD Chair: James C. Bocott, North Platte Thomas F. Ackley, Omaha Jeanelle R. Lust, Lincoln Kelly L. Anders, Omaha Sandra L. Maass, Omaha P. Brian Bartels, Omaha Amie C. Martinez, Lincoln M. Therese Bollerup, Omaha Michael W. Meister, Scottsbluff Elizabeth S. Borchers, Omaha Gregory B. Minter, Omaha Thalia L. Downing Carroll, Omaha Luke H. Paladino, Omaha Kent E. Endacott, Lincoln David J. Partsch, Nebraska City Christopher M. Ferdico, Lincoln Edward F. Pohren, Omaha Vanessa J. Gorden, Lincoln Kathleen Koenig Rockey, Norfolk Joseph W. Grant, Omaha Monte L Schatz, Omaha Carla Heathershaw Risko, Omaha Ronald J. Sedlacek, Lincoln Andrea M. Jahn, Omaha Colleen E. Timm, Omaha Brandy R. Johnson, Lincoln Joseph C. Vitek, Chicago, IL

Gregory B. Minter James C. Bocott is a graduate of the University of Nebraska College of Law and is a principal of the Law Office of James C. Bocott, PC LLO. James practices in the areas of: Debtor/Creditor Bankruptcy; Civil Litigation; Personal Injury; Workers Compensation; and Domestic Relations matters. James is a member of the Nebraska Association of Trial Attorneys and the National Association of Consumer Bankruptcy Attorneys.

Executive Council Liaison: Warren R. Whitted Jr., Omaha Executive Editor: Kathryn A. Bellman kbellman@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S. 14th Street Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 Email: sclinch@nebar.com www.nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 • sludvik@nebar.com

THE NEBRASKA LAWYER

Dustin J. Kessler joined the Omaha Law Firm of Fitzgerald, Schorr, Barmettler & Brennan, PC, LLO, after graduating with distinction from the University of Nebraska College of Law. Dustin currently serves as the Chair of the Immigration Law Committee of the Nebraska State Bar Association. Dustin is also a member of the American Immigration Lawyers Association and is a past officer of the Iowa/Nebraska Chapter of the Association. Dustin’s Immigration Law practice focuses primarily on all aspects of employment and family based nonimmigrant and immigrant visa processing and naturalization.

James C. Bocott The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine. 2

april 2011


president’s page

A Day In May Robert F. Bartle In Rome, it was called Floralia; the Celts named it Beltane, but since medieval times, we’ve known it as May Day, a celebration of the coming of summer complete with Maypoles; or in the case of your children, occasioned by May baskets. In England, it became a bank holiday in 1978 to coincide with International Workers Day, but in the United States, we mark the event as Law Day. First established in 1958 by President Eisenhower, Congress issued a joint resolution designating May 1st as the official date for celebrating Law Day in 1961. The golden anniversary occurs this year. The 2011 Law Day theme, “The Legacy of John Adams: From Boston to Guantanamo” gives us an opportunity to consider the role of lawyers in defending the rights of the accused, and to renew our understanding and appreciation of the fundamental American principle of the rule of law. Adams was a perfect choice. John Adams became our first lawyer-president in 1797. Wedged between two more popular two-term Virginians, Washington and Jefferson, this Boston lawyer served only a single term in the White House. However, his legacy as a lawyer was well established before he became President. On June 7, 1776, Adams seconded the resolution of independence introduced in the Continental Congress by Richard Henry Lee, providing that the colonies ought to be free and independent states. Adams was appointed to a committee including Thomas Jefferson, Benjamin Franklin, Robert Livingston, and Roger Sherman to draft a declaration of independence. Although that document was written primarily by Jefferson, Adams occupied the foremost place in the debate on its adoption. THE NEBRASKA LAWYER

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Adams published a pamphlet, “Thoughts on Government”, in 1776, noting that the most valuable part of the British Constitution was the provision insuring a republic as “an empire of laws and not of men.” That notion, that we are a government of laws, not men, was famously quoted in the landmark decision of the Supreme Court in Marbury v. Madison in 1803. However, Law Day focuses on the legacy of John Adams with respect to an event occurring even earlier, in the spring of 1770. On the evening of March 5, 1770, British soldiers fired into a crowd of protestors who had gathered near the Custom House in Boston. The soldiers were under the command of Captain Thomas Preston. Five colonists died, including Crispus Attucks, a man of both Native American and African descent. The term massacre quickly became associated with the event, while others characterized the event as a riot, all depending upon one’s point of view of what happened and why. Some accused the soldiers of firing randomly; others argued the soldiers were provoked with insults, snowballs, and other objects thrown by the crowd of American protestors. The British soldiers involved were arrested on criminal charges. Not surprisingly, these soldiers had trouble finding legal counsel to represent them. Adams was asked to defend, and he accepted. Adams agreed to take on the cases because he firmly believed Captain Preston and the British soldiers deserved an effective legal defense. Preston’s trial began in October, 1770. Ably defended by Adams, the jury acquitted the British captain. The trial of the eight soldiers under Preston’s command began in December. Adams argued that the soldiers fired in self-defense, and that the protestors con-

april 2011


PRESIDENT’S MESSAGE stituted an unruly mob. The jury acquitted six of the soldiers and found the other two, who were proven to have fired their weapons, guilty of only manslaughter. An amazing result under the circumstances of place and time. What is significant about John Adams is not that he proved to be a brilliant trial lawyer. What is significant, in the context of today’s politics, is to recognize that Adams was elected to the First and Second Continental Congress by his fellow citizens of Massachusetts in 1774 and again in 1775, notwithstanding his role in defending the British soldiers. While in preparation for trial, John Adams was elected to the Massachusetts General Court (the Colonial legislature) in June, 1770. Clearly, fellow Bostonians recognized that his principled defense of an unpopular client did not disqualify John Adams from public service. I would like to believe that the voting public would be just as discerning today. I would like to believe that a fellow lawyer who successfully defended a Guantanamo prisoner could thereafter run for public office without being branded as disloyal or un-American. I do believe that a fully-informed public appreciates that our civil rights and individual freedoms are only as safe as they are assured to the least among us. But there’s the rub. It is a matter of fully and fairly educating the public of our constitutional protections, such as the right of an accused to have effective counsel at trial. That is the message we must promote as we celebrate May Day.

ings made possible effective legal representation of those held in Guantanamo. While initially, lawyers were unable to visit or talk to the detainees, presently hundreds of lawyers have committed their time, principally on a pro bono basis, to the detainees’ legal defense. I suggest we honor their service on this May Day in the spirit of John Adams. suggest that such service, especially on a voluntary basis, is every bit as honorable as those who wear the American uniform in military engagements overseas. Both armies, military and civilian, promote the precept of America’s commitment to the rule of law. Events honoring the rule of law begin later this month with ABA day activities in Washington, D.C. on April 12th to April 14th. Bar leaders from throughout the nation converge on the Capitol to educate our elected officials about the role of lawyers in a free society. We will lobby our Congressional delegation on the issues impacting our system of justice. If there is a message you wish conveyed to your Representatives and Senators in Washington, D.C., do not hesitate to contact me. Consider supporting a Law Day event in your community. And when May 1st arrives, pause for a moment to celebrate the legacy of John Adams, not as a politician; not even as President, but simply as a lawyer who recognized his duty and did it very ably, very well.

In March of last year, nineteen prominent lawyers signed an open letter supporting the role of American lawyers in defending Guantanamo detainees by declaring “the American tradition of zealous representation of unpopular clients is at least as old as John Adams’ representation of the British soldiers charged in the Boston Massacre.” Supreme Court rul-

Robert F. Bartle, President Telephone: (402) 476-2847 Fax: (402) 476-2853 E-Mail: rfbartle@bartlegeierlaw.com

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april 2011


feature article

Visa Options for International Athletes and Group Entertainers by Mark J. Curley

What do Dirk Nowitzki (Dallas Mavericks), Johan Santana (New York Mets), Alex Ovechkin (Washington Capitals), Vijay Singh (golf) and Roger Federer (tennis) all have in common? They are all foreign-born professional athletes who have played their respective sports in the U.S. for many years. And they have been paid handsomely for their performances. According to Sports Illustrated, in 2008, the 20 highestpaid foreign athletes were paid a combined $581 million with David Beckham (Los Angeles Galaxy) at the top of the list with $48.2 million. The list included nine soccer players, three baseball players, three Formula-1 racers, and two tennis players. Not bad work if you can find it! So, as foreign-born people who are earning a living in the U.S., are they considered “foreign workers?” These are not the people who generally come to mind when we hear about foreign workers, but they also need visas to enter and work in the U.S. just as other foreign-born workers in other occupations. The only difference is the type of visa issued to them.

Mark J. Curley Mark J. Curley is the founder of Curley Immigration Law Office located in South Omaha. His practice is devoted exclusively to immigration-related issues for employers, families, and refugees. Mark is currently the Chair of the Iowa/ Nebraska Chapter of the American Immigration Lawyers Association and an adjunct faculty member in the Paralegal Studies Program at the College of St. Mary. THE NEBRASKA LAWYER

The Immigration and Nationality Act of 1952, (INA) as amended, authorizes temporary visas to enter the U.S. for many different activities. Each visa is generally referenced by the section of the INA which authorizes it. For example, §101(a)(15)(B) of the INA authorizes B visas for visitors and §101(a)(15)(F) authorizes F visas for foreign students. Not surprisingly, P visas for athletes and group entertainers are authorized by §101(a)(15)(P) of the INA. Petitions for visas are filed with U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security, or at a U.S. consulate abroad. Visas for foreign athletes and entertainment groups are reserved for the best in their field. P-1A visas are available for 1) persons who perform as athletes, individually or as part of a group or team, at “an internationally recognized level of performance”; 2) athletes or coaches who are part of an amateur team or franchise located in the U.S. as long as the team is part of an international league with 15 or more amateur teams and participating would make the athlete ineligible for U.S. scholarships under NCAA rules; and 3) a professional or amateur ice skater performing alone or as part of a group theatrical production. INA §214(c)(4)(A)(i) Individual entertainers are not eligible for P visas, but could qualify for an O visa. “Internationally recognized” is defined in the federal regulations as “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” 8 CFR §214.2(p)(3) So, this visa is not for bench warmers. To establish international recognition, an athlete or team must have a contract with a major U.S. sports team or league and provide two of the following:

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Visa options USCIS issued a new policy memo which clarified that foreign athletes are not subject to a lifetime limit of ten years as long as they leave after ten years to get a new visa in their home countries. Since many foreign athletes return to their home countries in the off-season, this policy change effectively means that there is no limit for professional athletes.

1. Evidence of participating to a significant degree with a major U.S. sports team in a prior season; 2. Evidence of competing internationally with a national team; 3. Evidence of participating to a significant degree with a U.S. college or university team in intercollegiate competition in a prior season;

In 2010, the Omaha Vipers, a new professional indoor soccer team, was established in Omaha to compete in the Major Indoor Soccer League (MISL), an international league of five teams. Soccer is generally more popular around the world than in the U.S., especially in Latin American countries. The Vipers were fortunate to recruit eight foreign soccer players plus an Argentine coach, all of whom needed P visas to compete. One of the MISL teams, La Raza of Monterrey, Mexico, was inactive during the 2010-11 season due to Hurricane Alex which devastated the city of Monterrey with flood water last summer. Several of the La Raza players were signed with the Omaha Vipers and traveled to Omaha last fall.

4. A written statement from an official of the governing body of the sports which describes how the athlete or team are recognized internationally; 5. A written recommendation from a member of the sports media or an expert in the sport which describes how the athlete or team are recognized internationally; 6. Evidence of an international individual or team ranking; or 7. Evidence of a significant award or honor in the sport.

8 CFR §214.2(p)(4)(ii)(B)(2) In lieu of submitting the evidence listed above, an athlete can simply show that she or he is a “professional” athlete. The difference between pros and amateurs is that pros are good enough to get paid, right? Not so in the world of immigration. Under federal immigration regulations, to be classified as a “professional athlete”, one must be employed by a team which is a member of a governing association of six or more professional teams with combined annual revenue of $10 million or more, or any minor league team affiliated with the association. INA §204(i)(2)(A) If the association only has five teams, but all other criteria are satisfied, then the athlete does not meet the definition of “professional athlete” under the INA and will need to submit two of the seven types of evidence listed above. An additional requirement for P visa petitions is an advisory opinion from a labor organization with expertise in the specific field of athletics or entertainment which describes the nature of the work and the athlete’s qualifications. 8 CFR §214.2(p) (7) Most labor organizations will issue the advisory opinion fairly quickly, but they may also charge a fee for this service. The advisory opinion is not binding on the government, which means that a government employee could supplant the opinion of an expert in the field with his or her own amateur opinion. If a petition is submitted without an advisory opinion, USCIS will send a copy of the petition to an appropriate labor organization and request an opinion. If an opinion is not received within 5 days, or if an appropriate labor organization does not exist, USCIS will adjudicate the petition based on the evidence in the record. This method is not advised if the visa is needed urgently as petitioners have no control over when USCIS sends the request for the advisory opinion. In general, a P visa can be issued for up to 5 years and can be renewed once. In 2009, after pressure from sports leagues, THE NEBRASKA LAWYER

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A foreign-born entertainer can also apply for a P-1B visa to perform in the U.S. if he or she “performs with or is an integral and essential part of the performance of an entertainment group” which has been recognized internationally for a sustained period of time. Seventy-five percent of the entertainers must have been a part of the group for at least one year with the exception of circus personnel. It is unclear why circus personnel are exempt from this rule, but they must have powerful lobbyists! The P-2 visa is for artists or entertainers who are participating in a cultural exchange program and the P-3 visa is for artists or entertainers who are participating in a culturally unique program that would further the understanding of his or her art form. Dependents can travel to the U.S. with P-4 visas and remain in the U.S. for the same period of time as the principal applicant. Not all athletes and entertainers are paid for their services and some are paid by a source outside the U.S. Mexican soccer teams, for example, can travel to the U.S. to complete against U.S. teams with B visitor visas since they are paid from a foreign source. Venezuelan baseball players signed by a U.S. team, however, will need P visas since they will be working and getting paid in the U.S. There are many other types of temporary visas which allow foreign-born people to live and work in the U.S. You may come into contact with these people every day without knowing it. The criteria for nonimmigrant visas are strictly defined by statute and regulation so visitors have to find the right “pigeon hole” to match their purpose for traveling to the U.S. This system makes it difficult for many foreign-born people to visit or work in the U.S. The P visa is only one of many pigeon holes and only athletes and entertainment groups will fit in it. April 2011


feature article

Counseling the Employer on the New Export Control Certification Requirement for Non-Immigrant Worker Petitions by Dustin J. Kessler

Lawyers who represent businesses and other entities such as colleges and universities that employ foreign nationals must be aware of the new certification requirement found in the updated (Revised 01/19/2011) Form I-129 Petition for a Nonimmigrant Worker. The Form I-129 is the petition form used by employers petitioning the United States Citizenship and Immigration Services (“USCIS”) to request a nonimmigrant visa status on behalf of a prospective foreign national employee. The certification is now mandatory for any employers petitioning for H-1B, H-1B1 Chile/Singapore, L-1 and O-1 status for prospective foreign national employees. These visa categories are the most popular visa types for professionals and highly skilled foreign national employees.

Dustin J. Kessler

Beginning on February 20, 2011, the USCIS now requires that all employers who submit a Petition for a Nonimmigrant Worker certify under penalty of perjury their compliance with U.S. export control laws and regulations. Specifically, Part 6 of the new version of Form I-129 states: With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that: □ A license is not required from either the

U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or □ A license is required from the U.S. Department

of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Dustin J. Kessler joined the Omaha Law Firm of Fitzgerald, Schorr, Barmettler & Brennan, PC, LLO, after graduating with distinction from the University of Nebraska College of Law. Dustin currently serves as the Chair of the Immigration Law Committee of the Nebraska State Bar Association. Dustin is also a member of the American Immigration Lawyers Association and is a past officer of the Iowa/Nebraska Chapter of the Association. Dustin’s Immigration Law practice focuses primarily on all aspects of employment and family based nonimmigrant and immigrant visa processing and naturalization. THE NEBRASKA LAWYER

The Certification

The petitioner must check one of the above boxes on the form. As a general rule, a license is required for the release of technology or software to a foreign national if the export or transfer of that technology or software would require a license for export to the foreign person’s country of citizenship. Making an inaccurate certification could expose employers to liability for making false statements to the United States government, along with possible liability for any underlying violations.

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New export control certification requirement

The Applicable Export Control Regulations The Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”) require companies and individuals to seek and receive authorization in the form of a license from the U.S. Government before releasing controlled “technology” or “technical data” to foreign nationals in the United States. “Technology” and “technical data” that are controlled for release to foreign nationals are identified on the EAR’s Commerce Control List (“CCL”) and the ITAR’s U.S. Munitions List (“USML”) respectively. The Department of Commerce Bureau of Industry and Security (“BIS”) administers the EAR and The Department of State Directorate of Defense Trade Controls (“DDTC”) administers the ITAR. Generally the EAR covers all commercial items that have been determined to be “dual-use” items, or items that could potentially be used for both commercial and military or proliferation purposes. The ITAR controls items specifically designed, developed, configured, adapted or modified for a defense, intelligence or military-related purpose. The EAR uses the term “technology” to refer to information for the “development,” “production” or “use” of these dual-use products or software. Examples of technology include, but are not limited to, blueprints, manuals, drawings, instructions, and plans. It also covers information that may be relayed in employee technical meetings, emails, and other common interactions within a U.S. company. The ITAR defines “technical data” to include “Information . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” and includes “information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” It is generally understood that an export occurs when an item or related technology / technical data is physically transferred outside the United States. Less well known is what is referred to as the “deemed export” rule. The EAR’s deemed export rule covers the release of technology or technical data to a foreign national within the United States and considers a release of such information to be an “export” of that technology or technical data to the country of citizenship of the foreign national. Consequently, any such unauthorized release to a foreign national within the United States constitutes an export violation. While the ITAR does not use the phrase “deemed exports,” it does contain a comparable concept that will deem an export to have occurred when “technical data” is disclosed (including oral or visual disclosure) or transferred to a foreign national in the United States. The term “release” is broadly defined and can occur through a variety of means, including visual inspection of a product, instruction in its design, use or maintenance, access to computer networks, and verbal THE NEBRASKA LAWYER

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exchanges. A “foreign national” for these purposes is anyone who is not a U.S. citizen, a permanent resident, or an otherwise protected individual. Anyone holding a temporary visa status is treated as a foreign national for these purposes. Although the EAR and ITAR are not new, this will likely be the first time that an employer who submits a visa petition for a nonimmigrant worker will have to consider the application of these export regulations to the immigration process. The application of these export compliance regulations to the nonimmigrant visa petitioning process is the result of studies conducted by the U.S. Government Accountability Office (“GAO”). The GAO has identified a disparity between the number of export license applications that are being filed and the number of nonimmigrant visa petitions that are being filed. To address the disparity, the GAO recommended the changes to the I-129 petition which will force petitioning companies to think about export control and the information and data being released to foreign national employees.

Determining Whether a License is Required Under the EAR Under the EAR, a relatively small percentage of U.S. exports actually require a license. The company or potential exporter must make a determination whether a particular export requires a license. In making that determination, the exporter will need to consider four questions: What are you exporting? What country are you exporting to? Who will receive the item? What will the item be used for? What are you exporting? This first question involves determining whether the item being exported has a specific Export Control Classification Number (“ECCN”). The ECCN is an alpha-numeric code that describes the item and indicates licensing requirements. All ECCNs are listed in the Commerce Control List (“CCL”) which is found in Supplement No. 1 to Part 774 of the EAR. The CCL is divided into ten broad categories, and each category is further subdivided into five product groups. If up to the task, a company may classify the item on its own, check with the manufacturer, or submit a classification request to the BIS to determine the ECCN for it. What country are you exporting to? Restrictions on exports vary from country to country. Once the item has been classified under the CCL, the next step is to determine whether an export license is needed based on the “reasons for control” and the country of ultimate destination, which is deemed to be the country of citizenship of the particular foreign national in question. At this stage the ECCN is compared to the Commerce Country Chart found April 2011


New export control certification requirement in Supplement No. 1 to Part 738 of the EAR. If the Country Chart indicates a match between the item and the country of destination, a license will be required unless an exception is available. License Exceptions and the conditions on their use are set forth in Part 740 of the EAR. Although a relatively small percentage of all U.S. exports require a license, virtually all exports to embargoed destinations and countries designated as supporting terrorist activities such as Cuba, Iran, North Korea, Nor then Sudan, and Syria require a license. Part 746 of the EAR describes embargoed destinations. Who will receive the item? Certain individuals and organizations are prohibited from receiving U.S. exports and others may only receive goods if they have been licensed, which may include items that do not normally require a license based on the ECCN and Commerce Country Chart. The following lists must be considered: Entity List found in Part 744, Supplement 4, of the EAR, which is a list of parties whose involvement in a transaction may necessitate a license under the EAR; Treasury Department Specially Designated Nationals and Blocked Persons List , which is a list maintained by the Department of Treasury’s Office of Foreign Assets Control which administers and enforces economic and trade sanctions against targeted foreign countries, terrorism sponsoring organizations, and international narcotics traffickers; The Unverified List, which is composed of firms for which BIS was unable to complete an end-use check and would indicate that an exporter has a duty to inquire about before making an export to them; and the Denied Persons List, which is a list of those firms and individuals whose export privileges have been denied by the BIS and that is found on its website. What will the item be used for? Some end-uses are prohibited, while others may require a license. For example, you may not export to certain parties involved in the proliferation of weapons of mass destruction (e.g., nuclear, biological, chemical) and the missiles to deliver them, without specific authorization, no matter what your item is. Information on prohibited end-uses is found in Part 744 of the EAR. If the determination is made that an item requires a license to be exported under the EAR, one must apply to BIS for the export license. The application can be submitted online through the BIS website at www.bis.doc.gov. using the Simplified Network Application Process Redesign (SNAP-R) link. Once the application is received, the BIS will do a complete analysis of the license application along with all documentation submitted in support of the application and will review the item, its destination, its end-use, and consider the reliability of each party to the transaction. If the application is approved, a license number and expiration date will be issued for use on all export documents. A BIS-issued license is usually valid for 24 months. THE NEBRASKA LAWYER

9

Under the ITAR The determination is a bit more straightforward when dealing with items identified in the ITAR. The “technical data” covered under the ITAR is found in the U.S. Munitions List (“USML”) located in Part 121 of the ITAR. Generally, a license must be obtained if the particular item in question is found on the USML. “Technical data” as defined in the ITAR includes “Information . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” and includes “information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” If the item is found on the USML a license must be requested and obtained from the DDTC prior to its release to a foreign national in the U.S. In order to obtain a license, the exporter must register with the DDTC through an online application on its website at www.pmddtc.state.gov. Once an exporter is registered, it may then apply online for the export license through a program called “D-Trade” which is also accessible through the DDTC website.

Where to Get Assistance A good starting point for information on export licensing requirements and the regulations is to take advantage of online training and seminars accessible through the BIS and DDTC websites mentioned above. Further information about the EAR and deemed exports can be found at www.bis.doc.gov/ deemedexports. Further information about the ITAR and how to apply for an export license from DDTC can and pertaining to the release of controlled technical data found at http://www. pmddtc.state.gov/documents/ddtc_getting_started.pdf.

Conclusion The addition of this certification on the revised Form I-129 will make export control a part of the immigration petitioning process for the first time. For employers with well-established export control compliance programs, it is recommended that they review existing procedures to ensure proper coordination with their immigration petitioning process. For other employers, the new certification will require a more significant enhancement to their existing process for export control compliance, or in some instances the implementation of such a program. If it is determined that a license is required and one is not timely obtained, the employer may be forced to delay the start date of the proposed employment, rescind the offer or change the duties of the job, which may require a new visa petition. To protect your clients, and yourself, you should make it standard practice to alert clients to the new certification requirement and relevant instructions on all I-129 petitions you are assisting with. You should take steps to ensure that the

April 2011


New export control certification requirement and return to you for the file. Export classifications and licens-

person who is signing the I-129 for the company has addressed the certification issue prior to signing. If you are preparing the I-129, it is recommended to obtain some form of an attestation or verification from the client that the required determination has been completed. This can be done through the use of a questionnaire or worksheet specifically addressing the certification provided to the client at the outset for them to complete

ing determination can be complex and if your client asks you to assist in making a determination, unless you have reviewed in detail the EAR and ITAR and fully understand these regulations, it is recommended to refer the client to an attorney or other professional who has expertise in export control law.

Springtime in Paris

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April 2011


feature article

Defending Identity Theft in the “ICE” Age: A Tale of Two Cities by Bassel El-Kasaby I have often wondered why aboriginal Guatemalans would abandon their picturesque village and make a long arduous trek up North. Why would they abandon their life and family knowing the likelihood of mistreatment, jail, and even deportation? As I ask myself these questions, I know that my clients are looking at me and the entire system with the same sense of wonder. In this process of examining each other, many truths are revealed and myths dispelled. For example, the perception that undocumented immigrants are monolithic is quickly dismissed. There is a plethora of cultures, customs, and languages, even within those who are generally labeled as Hispanic. There is also a multitude of reasons why they come here. Some are fleeing wars and crime, and others are simply seeking a better life. Most are motivated by the desperation they left behind and the hope they bring with them for a new beginning. Few admittedly come with criminal intent. Most of those arrested for identity theft did not plan to

Bassel El-Kasaby

In the end, as we realize that the “huddled masses” are not that identical after all, we can also begin to see that neither are they that different from us. Hispanics, for example, may appear different and monolithic to the casual observer for want of understanding the cultural nuances of their different denominations and origins. Yet in some ways, they are exactly like us. They share our same goals, aspirations, even values. Nevertheless, to the majority of us they are but invisible, disposable, and a convenient scapegoat during hard times. We fail to acknowledge that they are useful, resourceful, and that we benefit from their presence on a daily basis. Against this backdrop, I will attempt to explain the process by which immigrants end up in the cycle of identity theft under the prevailing legal currents.

The Arrest

Bassel El-Kasaby is a partner in Kasaby & Nicholls, LLC. He handles immigration, criminal, and civil rights cases. El-Kasaby graduated with distinction from the University of Iowa in 1999 with a JD and an MS in urban planning. In 2008, he received the Roger Baldwin Libertarian of the year award and the NSBA Charitable Funds Inc. visionary award. El-Kasaby is admitted to practice in the states of Iowa and Nebraska as well as the Nebraska federal district, the 8th circuit and the 10th circuit. THE NEBRASKA LAWYER

break the law. They simply have no choice as they navigate an immigration and criminal system that is not designed to serve its intended purpose: to regulate immigration in a way that benefits this country both economically and socially.

Most immigrants will be arrested for identity theft in one of three scenarios: A raid, a warrant, or a traffic stop. Since the Postville debacle, large raids appear to have been disfavored. ICE apparently learned its lesson from the backlash against large-scale raids that often draw negative media attention. Raids today are of a much smaller scale. Enforcement is usually aimed at companies or plants where multiple identity theft complaints are found. ICE frequently scours the FTC databases for complaints. If a handful or more complaints are found to originate about workers in the same company, a raid is organized by first staging a paperwork inspection followed

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April 2011


defending identity theft in the ICE age by arrests. Some such complaints are stale to the point that the victims cannot be contacted or are reluctant to participate. Nevertheless this still provides a valid pretext to make a smallscale arrest that would not ordinarily draw media attention. Businesses are seldom punished for not keeping their records straight. Immigrants, however, are routinely given the harshest possible legal treatment under federal law, facing stiffer penalties than they would in state courts. In fact, there is a high level of coordination between federal prosecutors and ICE in most cases. They work in lock-step to try to ensure prolonged detention, and steer the conviction machine towards deportation. For example, even though most immigrants arrested in these raids have no criminal history, both federal and ICE prosecutors will always resist release. Meanwhile, many immigrants who are arrested for far more dangerous crimes are routinely released on bond. This reflects, in my opinion, the monolithic view and vindictive nature of the prosecution of identity theft crimes. If not arrested in a raid, immigrants are likely to be found as a result of a direct complaint from a victim. In most instances, the victims are confronted with a debt to the IRS which they do not owe or are denied unemployment because another person is using their social security number. They understandably panic, call the authorities, who will waste no time in identifying where the accused is working. About half such cases are prosecuted in federal court, the rest will end up in state courts and may fare a little better in this process. Experience suggests that state courts are used usually when federal prosecutors reach their capacity or when the crime occurs in areas remote enough from federal courts. In some cases, victims will realize that they are actually benefitting to some degree from such crimes, such as when they are accruing unearned social security credits, or when the earnings of the immigrant are automatically used to pay their debts, such as delinquent child support. It is not uncommon for such victims to refuse to cooperate with the authorities. Finally, a small number of identity theft cases arise from traffic stops. The number and pattern of such stops suggests that police have learned from ICE how to spot such issues and prepare cases for prosecution. For example, police will sometimes search persons or cars to look for paystubs which may bear a different name and start investigating along such a thread, often eliciting un-Mirandized statements and conducting unlawful searches.

The Criminal Process In federal courts, immigrants will be offered a plea agreement that is no more than an adhesion contract. Federal prosecutors claim they have no authority to change such agreements. There is a high degree of uniformity in how such cases THE NEBRASKA LAWYER

12

are treated, even though the nuances of each case are very different. This is yet another reflection of the monolithic view and vindictive nature of such prosecutions. For example, one of the conditions required to enter any agreement with the government is for the immigrant to stipulate his or her removal at the conclusion of the case, even if there are equities in their favor which may allow them to continue to live in the US in spite of their crime. In such cases, it is important to realistically assess the possibility of relief in immigration proceedings. The only alternatives to signing an adhesion plea bargain is to plead without an agreement or take the case to trial. In such cases, one can plead only to those charges where there is no viable defense and go to trial on any other charges. The risks of such an approach are obvious, but it is one way that immigrants can overcome the inflexibility of plea negotiations. In state courts, the outcomes can vary. State prosecutors in general are not concerned about a defendant’s immigration status. They are more concerned with the victim and the nature of the offense. However, some Nebraska counties have developed inflexible plea bargain guidelines similar to those found in federal court and, at times, a bit harsher.

The Immigration Consequences In Immigration Court, the final resolution depends on the outcome of the criminal prosecution as a matter of threshold. If an immigrant is convicted of a “crime involving moral turpitude,” or an “aggravated felony” for example, this will impact most relief options. There is no occasion in this article to explain fully the definition of “moral turpitude” or “aggravated felony.” Suffice it to say at this point that such an analysis is not straightforward and is often counter-intuitive. It is therefore very important to retain immigration counsel in such cases to guide and advise criminal defense attorneys on immigration consequences of different trial and plea scenarios. Sometimes, minor tweaking of the charges or even how the record is made can impact relief in immigration court. Moreover, possibilities for relief in immigration proceedings must be examined at the onset of the case and should inform the handling of the entire case. There is more incentive for immigrants with strong relief potential to fight harder or be more strategic in the criminal cases. If an immigrant ultimately has no relief, the calculus would be very different. The focus then would be to minimize the damage and avoid jail time, especially if the likelihood of conviction is high. Too many immigrants in this process cannot afford to retain an immigration attorney. Unlike criminal cases, they are not entitled to a public defender. This is true even though the consequences involve detention and deportation. This is also true in many cases where relief in immigration court is possible. April 2011


defending identity theft in the ICE age However, immigration law is very complex and even impossible to navigate without an experienced attorney. This is perhaps one of the biggest advantages the government has in such cases.

Final Thoughts Identity theft is not a new phenomenon for immigrants. I suspect it has been practiced since immigrants began flocking to these shores. It is a means of seeking a privilege: to earn a living and to survive in this country. It is borne out of the desperation that brings people here in the first place and the hope of beginning a new life. It is a crime that is usually committed contritely by otherwise hardworking and decent folk. It is not uncommon for example to see such immigrants paying taxes on their earnings, raising families, and living otherwise wholesome lives. The current focus on identity theft reflects poor prioritization of law enforcement and prosecutorial resources. For example, it would be better to focus on cases where victims actually suffered real pecuniary damage. Without minimizing the impact of identity theft on victims, in cases where the identity is only used for work purposes, the consequences for the victim boil down to inconvenience and the understandable

concern to protect their compromised identity. This policy also leaves far more dangerous criminals free to roam our streets. At any rate, the real solution lies in meaningful reform that would remove the incentive to commit such crimes in the first place. Besides, large businesses who are the biggest beneficiaries of identity theft do not face much scrutiny and are essentially safeharbored in exchange for their cooperation in apprehending immigrants. The type of identity theft at issue here usually involves no more than using false documents in order to work. This is usually the extent of any fraudulent intent. This is far different from systematic identity theft schemes where a hacker is deliberately trying to cause financial damage to their victims on a large scale. This distinction bears little importance legally, but is very informative nonetheless. In most cases, an immigrant faces a Hobson’s dilemma between feeding her child and playing by the rules. By the same token, such an immigrant is given no credit for the value of what they contribute in terms of work, taxes, and rearing a family. In that sense, the criminal conduct is akin to stealing bread and should be viewed in that light. After all, how much should one be punished for stealing sixpence?

THE NEBRASKA STATE BAR ASSOCIATION NEBRASKA LAWYERS FOUNDATION (NLF) Presents the

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April 2011


Crimmigration Potential Immigration Consequences for Defendants in State Courts featuring Professor Kevin Ruser How to Analyze a Criminal Case for Immigration Issues (60 minutes)

Overview of Padilla v. Kentucky Decision (30 minutes) Immigration Fundamentals (60 minutes)

• Determining a client’s immigration status • Review of common immigration consequences in criminal cases • Ways to ameliorate immigration consequences when crafting plea agreements • Helpful resources

• Inadmissibility vs. deportability • Definition of “conviction” for immigration purposes • “Inchoate” immigration offenses - Particularly serious crimes - Crimes that preclude showing good moral character • Overview of removal proceedings • Selected types of relief from removal, waivers, and postconviction remedies

Case Studies & Questions (30 minutes)

This free training opportunity was made possible by the Lancaster County Public Defender Office, with assistance from the Nebraska Minority Justice Committee, and with funding from the Nebraska Crime Commission (ARRA Recovery Act Funds). There is no cost to attend but you must register below for the location you plan to attend.

REGISTRATION FORM: Crimmigration Name:______________________________________________________________Bar #_______________________ Address:_______________________________________ City:__________________ State:_____ Zip:_________ Telephone:____________________________________ E-Mail:__________________________________________

c Thursday, April 14, 2011 - Fremont

c Thursday, July 21, 2011 - Grand Island

2:00pm - 5:00pm Fremont Golf Club 2710 N Somers Ave • Fremont, NE 68025 *Nebraska MCLE Activity #58876 - 3.0 CLE hours

1:00pm - 4:00pm Grand Island Saddle Club 1 Kuester Lake • Grand Island, NE 68801 *Nebraska MCLE Activity #58883 - 3.0 CLE hours

c Thursday, August 11, 2011 - Scottsbluff

c Friday, May 20, 2011 - North Platte

2:30pm - 5:30pm Scottsbluff Country Club 5014 Avenue I • Scottsbluff, NE 69363 *Nebraska MCLE Activity #58885 - 3.0 CLE hours

1:00pm - 4:00pm Mid-Plains Community College - South Campus 601 West State Farm Road • North Platte, NE 69101 *Nebraska MCLE Activity #58878 - 3.0 CLE hours

Return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

THE NEBRASKA LAWYER

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April 2011


feature article

E-Verify: The Good, The Bad and The Unresolved

by Amy Peck

The United States Citizenship and Immigration Services (USCIS) has released an independent report of the E-Verify system, highlighting the successes, failures, and remaining challenges that employers face today.

The Good USCIS reduced the Tentative Nonconfirmations (TNCs or mismatches) from 8% between June 2004 and March 2007 to almost 2.6% in fiscal year 2009. TNCs result when the information from an employee’s Form I-9 does not match government records and E-Verify indicates the case may require additional action. Additionally, USCIS data indicates that about 97.4% of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92% during June 2004 through March 2007. Conversely, about 2.6% of newly hired employees, or over 211,000, received either a Social Security Administration or USCIS TNC, including about 0.3% who were determined to be work eligible after they contested a TNC, and about 2.3% who received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved.

Amy Peck

Despite the reduction of TNCs overall, it appears that erroneous information is still a way of life. Employee information, like the E-Verify system itself, is constantly being updated and changed. Also, it is not uncommon to have misspellings or other name variations for first or last names. In these instances, TNCs may result because the employer is uncertain how exactly to enter the name into the system. According to USCIS, of the TNCs resulting from name mismatches in fiscal year 2009, approximately 76% were for citizens and 24% were for noncitizens. USCIS has included information on its website to help employers enter various name combinations to reduce some of these TNCs.

The Unresolved Over the past two years, USCIS has more than doubled the number of monitoring and compliance staff overseeing employers’ use of E-Verify. Apparently, however, the staff still lacks the appropriate technology to discern instances of suspected employer misuse easily. According to senior E-Verify program officials, such capabilities will be addressed by fiscal year 2012, through an estimated $6 million advanced data system. USCIS expects this system, known as the Data Analysis System, to automate about 80% of the Monitoring and Compliance Branch’s workload. It looks like E-Verify will be with us for the foreseeable future. The fiscal year 2010 DHS Appropriations Act reauthorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program operations. Employers must prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC, as well as other challenges, such as identity theft and discrimination.

Amy Peck is a nationally recognized immigration attorney practicing out of the Jackson Lewis LLP Omaha, Nebraska office.

THE NEBRASKA LAWYER

The Bad

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April 2011


NCLE 2nd Annual Mid-May Ethics Seminar

featuring Sean Carter, Esq.

Friday, May 13, 2011 • 8:45 am - 4:15 pm

Scott Conference Center • 6450 Pine Street, Omaha, NE 68106 *Nebraska MCLE Activity #58284 (morning session) - 3.0 professional responsibility hours. *Nebraska MCLE Activity #58285 (afternoon session) - 3.0 professional responsibility hours. Register for morning, afternoon or all day.

Morning Session 8:45 am Thou Shalt Not Lie, Cheat & Steal: The 10 Commandments of Legal Ethics

Afternoon Session 1:00 pm The Passion of the Barrister How to Rekindle the Passion for the Practice of Law by Focusing on the Self

Sean Carter sets out to prove that legal ethics isn’t an oxymoron by delivering an off-beat “sermon” on the Ten Commandments of Avoiding Ethical Problems as a Lawyer. After covering such commandments as “Thou Shalt Know Thy Stuff” and “Thou Shalt Calleth Thy Client Back,” he will have you shouting “Hallelujah,” yelling “Amen” and hopefully, passing around a collection plate.

• • • •

2:30 pm

10:15 am

Break

10:30 am

Sue Unto Others As You Would Have Them Sue Unto You

Break

2:45 pm The Passion of the Barrister - Continued

Increasingly, lawyer civility and collegiality is becoming a thing of the past. Yet it doesn’t have to be that way. In this humorous presentation, veteran attorney and legal humorist Sean Carter will remind you that zealous advocacy does not require you to be a zealot.

12:00 pm

Selfless Service to the Client and the Public at Large Excellence in Skill and Character Loyalty to the Best Interests of the Client Fidelity to the Law and the Profession

4:15 pm

Adjourn

Sean Carter is a Harvard law graduate who practiced law for a decade at major law firms on both coasts and in-house at a publicly-traded financial institution. His often “lawpsided” approach to the everyday dilemmas faced by lawyers has made him a favorite at legal conferences. Each year, he presents more than 100 programs on such topics as legal ethics, professionalism, stress management, diversity, substance abuse, legal marketing, presentation skills. While each program is different, they all have one thing in common -- principled discussion and humor.

Lunch (included with your registration)

REGISTRATION FORM: Ethics Seminar Featuring Sean Carter - May 13, 2011 c Morning Session Only - $120

c Afternoon Session Only - $120

c All Day - $230

Name:______________________________________________________________Bar #_______________________ Address:_______________________________________ City:__________________ State:_____ Zip:_________ Telephone:____________________________________ E-Mail:__________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $______________ Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:__________________________________________________________________ Credit card billing address (if different from above):__________________________________________________ City:__________________________________________________ State:______________ Zip:_______________ Signature:_____________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098 THE NEBRASKA LAWYER

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April 2011


law practice today

Lessons Learned in the Legal Sector: Why Successful Firms Focus on Process Improvement by David Niles

Every firm needs process, but because of cultural constraints and a long history of generally doing without, many law firms find embracing process improvement a bitter pill to swallow. But firms that are beginning to integrate process improvement methods and techniques into their work find that their efforts are being celebrated by grateful clients. Moreover,lawyers themselves have discovered that it is not so counterintuitive to the practice of law after all. In fact, process improvement brings the lawyerly role closer to its roots as “trusted advisor” – and then some. With continuous process improvement in place, law firms form stronger, broader relationships with clients. This is particularly true for companies with mature process improvement (PI) programs in place, who have wondered why it has taken their firms so long to come around to doing business with optimal efficiency, as they themselves have long practiced. In

David Niles David Niles is the President of SSA & Company. He previously was a partner at Castling Group and manager of GESD/Castling Investors, a $30 million venture fund. Formerly, he was a management consultant with Booz, Allen & Hamilton and head of business development for BMG Direct Marketing, a $1 billion division of Bertelsmann AG. He holds an MBA with distinction from Columbia Business School and a bachelor’s degree from the University of Virginia. Mr. Niles currently sits on the board of Columbia Business School’s Deming Center. THE NEBRASKA LAWYER

addition, because many corporations today are reducing the number of law firms they keep on retainer, and often submitting work to a panel every time a new project comes up, it increasingly will be crucial for firms to differentiate. Law firms that incorporate PI into their practices will continuously attract companies and GCs that care about efficiency and want their law firm to pro-actively seek ways to add value. Process efficiency is not about law firms caving in to pricing pressure from clients – in fact, practicing PI may be the best way to avoid that dynamic. It is all about shared benefits. For example, increased efficiency reduces time per case, meaning fewer billed hours for that case and more time freed up for additional work – at the same hourly rate. Firms practicing PI are moving toward alternative fee arrangements with an eye to improving predictability of overall cost per service. This is not an arbitrarily imposed cap on hours or billables, but a way to improve communications with the client at each step, helping to explain what has happened and what is coming, based on applying process (and historical knowledge) up-front to understand the expected outcome most closely. To date, we have not seen firms reducing hourly rates under PI guidelines, but continued pressure in the industry will require ever-more vigilant adherence to process and proven value creation. In general the maintenance of the hourly rate/ fewer hours per case represents a lower per-case cost for the client but higher revenues (due to volume) for the firms – and the future of workable AFAs. With process improvement in place we also find improved transparency and a higher level of trust both within the firm – whether in client/project progress, billing consistency and accuracy, fee estimation or write-downs – and externally, with fee

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April 2011


law practice today 3. Avoid the most common mistakes.

arrangements, service process, client requirements, over-runs, results and satisfaction.

PI programs will NOT succeed without adequate buy-in from the partnership. Successful engagements typically have a single senior partner who aligns with the initiative and drives the pilot projects. We have seen projects without the proper oversight stall and eventually fail.

So how can a firm start to use process improvement to help its bottom line? 1. Start slowly. The majority of PI programs in law firms start with smaller pilot programs to post wins, get buy-in gradually and ensure success. Firms believe it is important to eliminate the natural “not invented here” mentality by showing strong initial successes. The pilot projects typically include outside support to ensure efficient and effective completion of projects with a transition to internal training to further develop skills across the firm.

Like any other change initiative, a key driver of success is to aggressively and effectively communicate to the areas involved. When communication is lacking, associates and partners believe the effort “doesn’t pertain to me” and fail to provide the adequate support needed for success. For overall success, momentum must be built based on the early wins, which everyone must hear about.

2. Focus on the most-promising areas.

Finally, lawyers need to be involved and project leads must speak in terms and language to which lawyers can relate. Examples, templates, training materials, etc., must be tailored to the legal audience and its best-understood contexts.

We have seen successful projects across the board, including in both the “administration” areas and practice areas. It is helpful to identify more than one project within the pilot program to demonstrate both areas of applicability. Some consistent early success areas include:

By building on early wins, achieving buy-in from senior leaders and consistently communicating both inside the firm and with clients, process improvement can transform a law firm and position it for greater success. While integrating process improvement can be a challenge due to a law firm’s culture and the commitment needed to successfully carry it out, the upside is considerable: happy clients, increased revenues, improved profitability, and a strengthened role as “trusted advisor.”

• Administration, with a focus on time keeping, accounts receivable, document management, and the firm’s intellectual property; • Client-facing and practice areas, with a focus on AFA and fixed fee services, due diligence, and litigation.

Mark Your Calendar NSBA Second Annual Community Service Day June 3, 2011

nual

CE DAY

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More information in the May issue.

on Form 

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April 2011


special feature Practicing Law in Iraq, I

Lawyers, Guns and Not Enough Money

by Major Christopher M. Ferdico

The scene was reminiscent of those that occur in law offices all over the United States. A lawyer and a paralegal meet with a client to discuss the particulars of an investigation. They discuss the evidence and are working through scores of documents. They are educating the client on the nuances of the evidence before them. They are practicing law in a completely familiar way. It is what happens next, however, that defines how their law practice is different. The first explosion happens without warning and catches the three off guard. “Incoming!” “Get down!” is shouted reflexively as the second, and even closer, explosive concussion can be felt. At least one more rocket explodes in quick succession as the three find themselves sprawled on the floor covering their heads. In the lifetime that passes over the next few seconds, a break in the action is their signal to scramble into their helmets and body armor before resuming their place on the floor. After a several minutes of deafening silence, the attorney quickly heads across the breezeway into the company headquarters office to let them know the three of them are accounted for. The “All Clear” has not yet been given, so the attorney heads back to the office, assumes a covered position under a desk and makes sure everyone stays down.

From L-R: Captain William Harris, Sergeant Jennifer Nelson, Major Christopher M. Ferdico Major Christopher M. Ferdico is a litigation partner in the Lincoln, Nebraska, law firm of Baylor, Evnen, Curtiss, Grimit & Witt. His civilian practice involves both civil and criminal litigation in federal and state courts. He is currently serving near An Nasiriyah, Iraq, as the Brigade Judge Advocate with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade in Iraq. This is MAJ Ferdico’s second combat tour in Iraq as he previously served with the 101st Airborne Division during the 2003 invasion. He also served a tour of duty in Kosovo in 2001.

Because rocket attacks often occur without warning, and can occur in different waves, it is not safe to be upright until the “All Clear” is given. A few months earlier, a soldier was killed as she ran into a bunker. The shrapnel ripped through her hip and gut – the typical trajectory of the shards of metal that result from a rocket exploding in soft earth. That is why when you get down, you stay down. You want to stay lower than the shrapnel. Unfortunately, waiting for the “All Clear” can take hours, so it is human nature to get bored and complacent even in the midst of life and death excitement. Fortunately, on this day the “All Clear” was given within 30 minutes, so the practice of law resumed unscathed but shaken.

Captain William Harris is a solo practitioner in Omaha, Nebraska. His law practice focuses on criminal law, bankruptcy and juvenile law in federal and state courts. He is currently serving near An Nasiriyah, Iraq, as the Assistant Operational Law Attorney with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade. This is CPT Harris’ first combat tour of duty. Sergeant Jennifer Nelson is a paralegal from Gothenburg, Nebraska. She is currently serving near An Nasiriyah, Iraq, as the Non-Commissioned Officer in Charge (NCOIC) of paralegal operations with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade. This is SGT Nelson’s first combat tour of duty. THE NEBRASKA LAWYER

Welcome to Contingency Operating Base (COB) Adder,

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April 2011


special feature home of the 67th Battlefield Surveillance Brigade – the “Pike” Brigade – of the Nebraska Army National Guard. The Pike Brigade is a 1400+ Soldier intelligence and surveillance brigade that is responsible for a significant portion of intelligence collection in the Iraq Joint Operations Area. Like all Army Brigades, the 67th has a legal section staffed with attorneys and paralegals that are responsible for minimizing the impact of legal issues on military operations. I am Major Christopher Ferdico, the Brigade Judge Advocate. Welcome to my law office. As the Brigade Judge Advocate, I have several responsibilities and two major clients. My first and primary client is the Army itself. I am responsible for ensuring that the Institution of the United States Army is not disgraced by the actions of leaders within our command. My official job description states that I: Provide operational law guidance to the Brigade Commander and all subordinate commanders. Train and monitor compliance regarding the Law of Armed Conflict. Provide training and ensure statutory and regulatory compliance for all major functional areas including intelligence operations, security, personnel, fiscal operations and supply. Coordinate legal support for military, civilian DOD, and supported contractor personnel throughout the brigade. Provide for the swift, just and proper application of military justice throughout the Brigade.

Like many attorneys, I am required to be both a specialist and a generalist. As a specialist, I advise the Brigade Commander, as well as his subordinate commanders, on the Law of International Armed Conflict and the operational law policies of the United States. Where appropriate, I must also advise him on how our policies and the United States’ official interpretation of the Law of War differ from those of our international partners. Additionally, because of our Brigade mission, I advise the command regarding all aspects of intelligence law including means and methods of intelligence collection, interrogation, dissemination, funding, and source operations, among other topics. As a generalist, I must advise the commander on the thousands of pages of law and military regulations that dictate how our Army is supposed to operate on a day-to-day basis. I serve as his primary counselor regarding his authority as a senior commander in a theater of war. Like any good lawyer, I must help him walk the fine line between what he can do versus what he should do. In order to do my job I work closely with every member of the staff and am responsible for reviewing all operational plans. I also oversee and coordinate all investigations that occur in order to ensure they are complete and conducted in accordance with law and regulation. Captain William Harris is the other attorney for the Brigade. His official title is Assistant Operations Attorney. Although he serves as my assistant and as the Brigade Judge THE NEBRASKA LAWYER

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Advocate in my absence, his primary role is to be the command’s military justice expert. He is responsible for ensuring that all potential criminal conduct is dealt with appropriately and thoroughly. He is, for lack of a better term, our Brigade prosecutor. He represents the Government during Courts Martial proceedings. Military Justice is similar to criminal law with many of the same crimes and procedures as those found in civilian courts. It is also a minefield of uniquely military procedure, lexicon and crimes. Terms such as “Good Order and Discipline,” “Disrespect,” “Conduct Unbecoming” and “Absent Without Leave” are as legally common as “assault,” “theft,” or “arson.” The brigade also has four paralegals located throughout Iraq. There is one with each of our three primary Battalions. Our chief paralegal is Sergeant Jennifer Nelson and she is located with us at COB Adder. She is a military trained paralegal from Gothenburg, Nebraska. Other than being versed in the unique lexicon of military parlance and procedure, she acts as most paralegals do. She serves as our primary administrative assistant. She works with investigators, clients and the accused to ensure the appropriate processes are used. She helps coordinate our legal activities, conducts legal research and she prepares “pleadings” and other legal documents. She assists soldiers with powers of attorney and notary services. Sometimes, however, she does these things under fire. Because of our role in providing advice to the command, we do not provide trial defense services or most legal assistance to individual soldiers. Trial Defense Services (TDS) is very similar to a public defender’s office and they are spread throughout the Iraqi theater to provide defense for individual soldiers, and DOD civilians, for Federal and military crimes. Likewise, most individual legal services such as tax advice, wills, powers of attorney, passport assistance and other matters are handled by legal assistance attorneys throughout the theater. While we can provide those services when they are otherwise unavailable, we are lucky to have a legal assistance office here on COB Adder. As such, we are able to refer these matters out of the Brigade. With only two lawyers and paralegal, there would not be enough hours in the day if we didn’t get help in these areas. Another critical responsibility is our duty to report investigations and certain suspected violations of law, regulation or policy to our higher headquarters. As such, we work closely with the small army of attorneys that advise the command at United States Forces, Iraq (USF-I). As a major command, USF-I has more than 50 military and civilian attorneys that are “stove piped” by specialty. The legal sections include Operational Law, Intelligence Law, Administrative Law, Contract and Fiscal Law, Detainee Operations and others. As much of what we do will end up on the desk of a General Officer, Member of Congress, or even the Secretary of the Army, we work closely with our counterparts at our higher April 2011


special feature headquarters. In reality, our relationship with USF-I defines our success. As such, our liaison functions are as critical as anything we do. On the day initially described, SGT Nelson and I were meeting with an officer who was assigned as the lead investigator for an Equal Opportunity complaint. He was investigating whether a soldier was discriminated against based upon her gender. The investigation took forty five days of full time work

for the investigator (as is the case in all military investigations, the person assigned as the investigating officer is removed from normal operational and combat duties). That day, SGT Nelson and I worked on this Equal Opportunity claim. We also had to deal with issues of military justice, intelligence law, and numerous legal questions for various commanders and staff members … not to mention those pesky rockets. Welcome to a typical legal office in Iraq.

special feature Practicing Law in Iraq, II

The Rule of Law in Iraq Iraq has been called the cradle of civilization. The cradle of civilization is the term used to define the location in history when human civilization became complex in the terms of its use of technology, science, politics, and the division of labor. (www.h-net.org/~museum). This is also the time period when some of the earliest laws in history were recorded. The rule of law in Iraq predates the United States by thousands of years. As a result, the rule of law in Iraq has had thousands of years to evolve. Unfortunately, this also means that it has had an equal amount of time to devolve.

Rule of Law and Military Operations The “rule of law” is a term of art. It is used to describe the ideals of justice and fairness within an established legal system. It is a powerful term as it can describe the success or failure of a nation state. It is a term President Obama used when he said, “I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law.” (President Barrack Obama, Address at Central Intelligence Agency Headquarters https://www.cia.gov/news-information/speeches-testimony/ president-obama-at-cia.html). In the United States military, “rule of law” has also become a doctrinal term. The Army defines it as “a principle of governance in which all persons, institutions, and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards.” (United States Department of Army, Field Manual 3-07, Stability Operations 1-9 Oct. 2008). Historically, however, the military has not viewed rule of law as a separate component of military action. THE NEBRASKA LAWYER

21

That was always a political province to be developed by the Department of State. By doctrinalizing the concept of the rule of law the military has recognized it as a critical component of stability operations. The importance of the rule of law in military operations has become increasingly evident during post Gulf War military operations. Whether Panama, Bosnia, Kosovo, Iraq, or Afghanistan, the establishment of a fair and just government is the key to victory. The United States military is not designed to serve as a long term governing body. Absent a civilian structure to address the basic collective needs of the citizenry, chaos will rule the streets. This creates a security environment that necessarily detracts and diverts resources from the main military objective.

Rule of Law in Iraq During the reign of Saddam Hussein and his Ba’athist Party, the laws in Iraq were not applied equally between ordinary citizens and the Ba’athist elites. Although some may argue legal inequality plagues all nations, including our own, no one can deny that the law was intentionally unequal in Iraq. As such, one of the earliest goals of the overall Iraq strategy was to establish a commitment by the Iraqi Government to the rule of law. The security situation, however, made it necessary for the U.S. military to take a major role in rule of law operations in lieu of the Department of State. As a result, military lawyers, known as Judge Advocates, have been instructed to help the Iraqis establish their rule of law. Today Judge Advocates meet daily with Iraqi lawyers, judges, and security forces to help implement the rule of law objectives. Obviously, to help Iraq implement its law one must know

April 2011


special feature the law and the structure of its court system. The Iraqi Criminal Court System is comprised of a Supreme Court, Appellate Courts, and Lower Court. Similar to the United States, the Appellate Courts will review opinions of Lower Courts in its jurisdiction and the Supreme Court is the ultimate appellate authority. Unlike the United States’ common law system, Iraq has a civil law system. Civil law is “The most widespread type of legal system in the world, applied in various forms in approximately 150 countries.” (Source: CIA Website). The major feature of civil law systems is that the laws are organized into extensive and systematic written codes. Id. In a civil law system, the primary source of law is legislation. Courts will only review custom or common law secondarily and only if necessary. In Iraq, criminal law has two phases, the investigation phase and the trial phase. Iraq uses Investigative Courts to collect and review evidence and ultimately decide if the case should be transferred for trial. At the investigative stage the defendant has a right to present evidence to the judge. The Iraqi judicial system is not designed to be adversarial. At the investigative stage the judge often meets with law enforcement ex parte as the investigative judge has a prosecutorial function. The investigative judge is also, however, supposed to objectively view the evidence from defense perspective before authorizing a defendant to be detained or bound over for trial. If the case is transferred to the trial court, the trial judge will do most of the questioning. The role of the prosecutor and defense counsel is limited--both generally are present only to make opening statements and neither is allowed to question the witnesses. In order to obtain a conviction, a court must have evidence from two sources. (Para 213B Law on Criminal Proceedings No. 23 of 1971). In Iraq, the vast majority of the courts interpret this requirement to mean that there be some type of eyewitness testimony to convict someone of a crime. Absent eyewitness testimony the defendant generally cannot be found guilty of a crime. For Judge Advocates and those in the military who are responsible for assisting in the prosecution of those who are waging the ongoing campaign of violence in Iraq, this part of Iraqi law is frustrating. These “eyewitness” courts will not give any weight to forensic, biometric or circumstantial evidence – assuming it is even held admissible. Because of this, a primary rule of law focus has been to educate Iraqi judges on the reliability of forensic evidence, biometric evidence and the usefulness of circumstantial evidence. Similarly, there has been an increased focus on providing law enforcement both the technology and training necessary to develop scientific evidence. The United States has been instrumental in helping the Iraqi Government establish regional

THE NEBRASKA LAWYER

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crime labs to process this evidence. Until judges adopt the trend, however, the Iraqi judicial system will continue to seem rudimentary (at best) to American lawyers. One area of success in Iraq, and an area critical to the ultimate success of any nation, is the establishment of an independent judiciary. For the most part, Iraqi judges have shown a fierce willingness to decide cases on their interpretation of the law without interference from other branches of government. Chief Judge Medhat al-Mahmound, President of Iraq’s Federal Supreme Court and a respected jurist, is a staunch proponent of the independence of the judiciary. He has shown a willingness to relocate or remove lower court judges who violate this principal. During the first meeting of the Federal Supreme Court in 2011, one of the topics Judge Medhat stressed was the importance of the rule of law.

The Way Forward Iraqis, like all of us, are a proud people. To be successful in helping Iraq develop the rule of law, it is important for us not to tell them what their law is—or what it should be. They seem most receptive, and most appreciative, of helping them find increasingly just and efficient ways to enforce and apply their laws. Therefore, in order to be successful, we must empower the rule of law without imposing our will or our values on the Iraqi Judicial System. As we often say, we must help Iraq develop Iraqi solutions for Iraqi problems. By the time the United States military finishes its scheduled departure from Iraq in December, 2011, the Department of State will resume its role as the sole U.S. agency consulting the Iraqi Government in rule of law. They will undoubtedly continue the projects the military has initiated, ranging from funding major buildings (i.e., Building of Courthouses) to the more mundane (i.e., buying law books). They will also continue to train, mentor, and assist Iraqi judges and lawyers. The Department of State is the agency that has always had the most experience, resources, and expertise in helping to develop rule of law with international partners. In Iraq, the way forward ultimately lies with getting the Iraqi people to believe the legal system is a fair and just way to settle disputes. To do this we must demonstrate our own respect for Iraqi law and the Iraqi legal system. This will further the overall strategic goal of creating a stable Iraq and creating a long term partnership with the United States. Hopefully, it will also help spread stability to the Middle East as a whole. As history has taught us, the rule of law is critical if the Government of Iraq is to be regarded as a legitimate nation state. If Iraq fails in this regard, the cradle of civilization will continue to regress back to its infancy.

April 2011


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Phone: (877) 947-2272 • Web: www.abaretirement.com • email: contactus@abaretirement.com The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nebraska State Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.

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THE NEBRASKA LAWYER

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April 2011


Nebraska Ethics Advisory Opinion for Lawyers No. 11-02

68-3 and other previous informal opinions. Once a prospective insurance customer becomes a client, however, the lawyer may disclose the fact that he has a law degree and may provide legal advice in some situations.

a lawyer who is a full-time insurance agent may also practice law provided that the lawyer complies with

The questions presented in this matter differ from those previously answered in Nebraska in that the lawyer wishes to work primarily as an insurance agent while simultaneously providing legal services in limited situations. In addressing the issues, it is our opinion that Ethics Opinion 306 from the District of Columbia correctly states the duties of an insurance agent who is also a practicing lawyer. That Opinion states:

the rules of professional conduct, that the lawyer does not actively solicit legal business from his insurance clients, that the lawyer does not advertise that he is a lawyer, and that the lawyer does not give

legal advice to his life insurance customers without written informed consent from the clients.

Facts

A lawyer who is also an insurance broker may sell insurance products to the general public provided the lawyer complies with the ethics rules. When selling insurance to nonclients, the lawyer must ensure that the prospective purchaser understands that the lawyer is acting exclusively as an insurance broker and not as a lawyer in the transaction, and she must ensure that a lawyer-client relationship is not inadvertently created. When selling insurance products to clients, the lawyer must ensure that the transaction will not adversely affect the lawyer’s professional judgment on behalf of the client; the terms of the transaction are fair, reasonable, and fully disclosed in writing to the client; the client is advised and given the opportunity to seek independent counsel regarding the transaction; the client is advised of the lawyer’s interest in the transaction and of possible conflict of interest and attendant adverse consequences; and the client consents in writing to the transaction.

A lawyer who serves as in-house counsel for an insurance company would like to become a full-time captive insurance agent. While working for the insurance company, the lawyer wishes to provide legal advice to insurance customers and public persons who are not his insurance customers. The lawyer would like to advertise the fact that he has a law degree but would not represent that he is an insurance lawyer or actively seek to take cases from his insurance customers.

Discussion

While the Model Rules of Professional Conduct do not specifically address permissible business practices in which active bar members may participate, there are several rules that are applicable to attorneys who wish to pursue other business opportunities while continuing to practice law. While a lawyer must take care to abide by all of the Rules of Professional Conduct, Rules 1.2, lA, 1.7, 1.8,5.7,7.1, and 7.2 are informative when determining which outside business practices mayor may not be permissible.

It should be noted that the District of Columbia currently allows multidisciplinary practices while such practices have not been formally approved in Nebraska. While authority to change acceptable practice in Nebraska ultimately rests with the Nebraska Supreme Court, this committee feels that Opinion 306 of the District of Columbia is informative and applicable to the facts at hand.

The Advisory Committee has previously addressed several issues relating to the sale of insurance by lawyers. In Opinion No. 68-3, the Committee came to the conclusion that a lawyer could sell insurance other than life insurance as long as the lawyer avoided any suggestion that the insurance company served as indirect solicitation for his law business. In the same Opinion, the Committee referenced a ruling in Informal Opinion No. 775 which remains useful. Informal Opinion 775 held that a lawyer may engage in an independent business “(1) if the separate business is clearly not necessarily the practice of law when conducted by a lawyer, (2) if it can be conducted in accordance with and so as not to violate the Canon, (3) if it is not used or engaged in such a manner as to directly or indirectly advertise or solicit legal matters for the lawyer as a lawyer, (4) if it will not ‘inevitably serve’ as a feeder to his law practice ... “

In selling insurance to customers with whom the lawyer ultimately develops a lawyer-client relationship, the lawyer must take measures to ensure that the client understands the lawyer’s dual role as insurance salesman and counselor. These measures include written notice of the lawyer’s interest in any insurance transactions. In representing persons who are not insurance customers, the lawyer must ensure that he does not represent any clients with actual, implied, or apparent conflict with his insurance carrier employer.

Under the instant set of facts, the sale of insurance would not be the practice of law when conducted by a lawyer, if the lawyer conducted himself in accordance with the current Rules of Professional Conduct, and the insurance sales did nor serve as a feeder to the lawyer’s law practice.

Conclusion

In accordance with the previous Opinions of this Advisory Committee and Ethics Opinion 306 from the District of Columbia, we find under the facts and circumstances of this case that a lawyer may be employed as a full-time insurance agent and provide legal advice to insurance customers and others so long as the lawyer does not violate the applicable Rules of Professional Conduct and gets informed consent in writing from the client which acknowledges the lawyer’s interests in all transactions between the two parties.

In order to insure that the lawyer’s sale of insurance does not serve as a feeder to his law practice, the Committee would deem improper any attempt to advertise the fact that he is a lawyer when soliciting business in his capacity as an insurance agent. Such a representation would constitute the indirect solicitation for his law practice which was deemed improper in Opinion THE NEBRASKA LAWYER

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April 2011


NSBA calendar

NSBA Events Calendar April 2011

June 2011

9 14 22

3 3 17

7th Annual NSBA-NLF Barristers’ Ball Embassy Suites, La Vista “Crimmigration” featuring Professor Kevin Ruser Fremont Golf Club, Fremont Leadership Academy, TBA

May 2011 3 6 12-13 13 19 20 20

Law Day 2011 Luncheon Holiday Inn Central, 3321 South 72nd Street, Omaha NCLE Immigration Seminar Embassy Suites, La Vista UNL Estate & Business Planning, University of Nebraska College of Law, Lincoln NCLE Ethics Seminar featuring Sean Carter, Esq. Scott Conference Center, Omaha Evidence with Colin Mangrum Creighton Law School, Omaha Tax Developments 2011 featuring Alan B. Kerkhove Mid-Plains Community College - South Campus, North Platte “Crimmigration” featuring Professor Kevin Ruser Mid-Plains Community College - South Campus, North Platte

July 2011 15 21 21-22

NCLE Family Law Section Seminar Champtions Run, Omaha “Crimmigration” featuring Professor Kevin Ruser Grand Island Saddle Club, Grand Island Iowa/Nebraska Solo Small Firm Conference TBA, Council Bluffs, IA

August 2011 21 22

“Crimmigration” featuring Professor Kevin Ruser Scottsbluff Country Club, Scottsbluff 15th Annual NSBA Golf Tournament Country Club of Lincoln, Lincoln

September 2011 30

NCLE Labor & Employment Law Annual Seminar Embassy Suites, La Vista

October 2011 18-21

Midwest Special Needs Trust

2nd Annual NSBA Community Service Day Anatomy for Lawyers featuring Professor Samuel D. Hodge Scott Conference Center, Omaha 8th Annual Greater Nebraska Golf Tournament Prairie Club, Valentine

NSBA Annual Meeting Cornhusker Hotel, Lincoln

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For consultation or to request trust documents call toll free: 1-888-671-1069 Or visit us on the web: www.midwestspecialneedstrust.org THE NEBRASKA LAWYER

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april 2011


Tax Developments 2011 featuring Alan B. Kerkhove

Friday, May 20, 2011 • 8:30 am - 12:00 pm

Mid-Plains Community College - South Campus 601 West State Farm Road • North Platte, NE 69101 *Nebraska MCLE Activity #58899 - 3.0 CLE hours.

8:30 am

Registration/Pick-Up Materials

8:45 am

The Two Hottest Tax Topics in Estate Planning

9:45 am

COD - It’s Not a Fish

10:15 am

Break

10:30 am

Bankruptcy Tax: The Essential Issues of 2011

11:15 am

After the Bill: Dealing with the I.R.S. and Nebraska Department of Revenue on Collection Issues

12:00 pm

Lunch (included with your registration)

States Tax Court and the United States Bankruptcy Court for the District of Nebraska. He served as a Special Assistant United States Attorney in the District of Nebraska (Bankruptcy Court) from 1989 through 2007. Since becoming an attorney with Chief Counsel, Mr. Kerkhove represented the Commissioner of Internal Revenue in over 50 cases resulting in published opinions. His most recent T.C. regular case is Speltz v. Commissioner, 124 T.e. 165 (2005).

Albert B. Kerkhove held positions as the Managing Counsel and Associate Area Counsel Small Business/Self Employed of the Office of Chief Counsel, Internal Revenue Service in Omaha, Nebraska. Mr. Kerkhove’s practice, either personally or in his supervisory capacity, focused on taxation of individuals, corporations, limited liability companies, trusts and estates in the United

Mr. Kerkhove served as a counselor at law to revenue officers, revenue agents, tax compliance officers, the Local Taxpayer Advocate and Appeals Officers, and their managers. He has extensive experience in litigation and advice matters including compensation, business expenses, collection due process, and estate and gift tax matters. He lectured on bankruptcy tax issues at the Bankruptcy Seminar presented by the Federal Bar Association of Iowa and the Nebraska Continuing Legal Education bankruptcy seminar. Mr. Kerkhove now practices in the areas of tax controversies (audit and collection), estate and gift taxation, estate planning, and related matters. He is a member of the American Bar Association and its Section of Taxation and the Nebraska Bar Association. He is admitted to practice in the United States District Court for Nebraska and the United States Tax Court. His office is at 11605 Arbor Street, Suite 107, Omaha, Nebraska 68144. He can be reached at Al@ Kerkhovelaw.com or 334-0900.

REGISTRATION FORM: Tax Developments 2011 - May 20, 2011 c Registration - $120

Name:______________________________________________________________Bar #_______________________ Address:_______________________________________ City:__________________ State:_____ Zip:_________ Telephone:____________________________________ E-Mail:__________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $______________ Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:__________________________________________________________________ Credit card billing address (if different from above):__________________________________________________ City:__________________________________________________ State:______________ Zip:_______________ Signature:_____________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098 THE NEBRASKA LAWYER

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April 2011


legal community news

Omaha Bar Association Memorial Program The Omaha Bar Association Memorial Program has been scheduled for Wednesday, May 11, 2011, at 11:30 a.m. in the Legislative Chambers of the Omaha-Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska. The program is held each year to honor those members of the bar association who have died within the year. We sincerely hope you will attend this special Memorial Service to honor our departed attorneys.

Schroeder Retiring from Law

practice of law, he later focused on estate planning, probate and real estate law. Later he shared office space with Doug Murray and Melissa Wentling. In an interview for the Wayne Herald Duane noted that law practice has changed over the years. “When I first started practicing, things were much more laid back. People would show up at court just to see other people. They don’t do that any more.” Schroeder’s family include his wife, Betty, a retired teacher, daughter and son in law, Erin and Travis and their family, who live in Kansas, and son and daughter in law Travis and Kirsta, who live in Dublin, Ireland.

Kate M. Jorgensen, who has been sharing office space Duane Schroeder of Wayne, Nebraska, is retiring with Schroeder, will take over the practice. She received her from the practice of law. He and his wife plan to travel, includbachelor’s and master’s degrees from Wayne State College ing a planned motorcycle and her J.D. from Creighton trip to the Grand Canyon University, cum laude, in 2004. and other travel plans. He She began her legal career in is also active in Pheasants private practice, later becomForever and in the commuing a Deputy Public Defender nity generally. Originally for Madison County, and then from Bloomfield, Schroeder returning to private practice earned his bachelor’s in Wayne. She is a memdegree from Wayne State ber of the Nebraska State College and taught history Bar Association, Madison and German for a time in County 7th Judicial District the area. He also served Bar Association, and Nebraska in the Nebraska National Duane Schroeder talking with Kate Jorgensen. Photo by Clara Osten. Criminal Defense Attorneys Guard, and later entered Association. Her practice areas law school at the University include estate planning and of Nebraska, receiving his J.D. in 1975. probate, criminal defense, family law, real estate, and business. He first worked with Charles and Evelyn McDermott in their Second Street office in Wayne. Beginning with a general

THE NEBRASKA LAWYER

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She has purchased the building and resides in Wayne with her three children.

April 2011


NCLE calendar

NCLE Calendar April 2011

June 2011

13 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors? Nebraska Activity #55909 (3.0 hours of CLE credit)

1 Webcast: Impeach Justice Douglas! Nebraska Activity #55916 (3.0 hours professional responsibility or

14 “Crimmigration” featuring Kevin Ruser Fremont Golf Club, Fremont Nebraska Activity #58876 (3.0 hours of CLE credit)

3 Anatomy for Lawyers featuring Professor Samuel D. Hodge Scott Conference Center, Omaha Nebraska Activity #58689 (6.0 hours of CLE credit)

May 2011

8 Webcast: Lincoln on Professionalism Nebraska Activity #55919 (1.0 hours professional responsibility or

6

general CLE credit)

NCLE Immigration Seminar Embassy Suites, La Vista

general CLE credit)

15 Webcast: Thurgood Marshall’s Coming! Nebraska: Activity #55921 (3.0 hours professional responsibility

11 Webcast: Maxims, Monarchy, and Sir Thomas More Nebraska Activity #55915 (3.0 hours professional responsibility or

or general CLE credit)

22 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors? Nebraska Activity #55929 (3.0 hours of CLE credit)

general CLE credit)

12-13 UNL Estate & Business Planning University of Nebraska College of Law, Lincoln

29 Webcast: Clarence Darrow: Crimes, Causes and the Courtroom Nebraska Activity #55930 (3.0 hours professional responsibility or

13 NCLE Ethics Seminar featuring Sean Carter, Esq. Scott Conference Center, Omaha Nebraska Activity #58284 (morning session) (3.0 hours pro-

general CLE credit)

fessional responsibility or general CLE credit)

July 2011

Nebraska Activity #58285 (afternoon session) (3.0 hours pro-

15

fessional responsibility or general CLE credit)

19

Evidence with Colin Mangrum Creighton Law School, Omaha

NCLE Family Law Section Seminar Champions Run, Omaha

21 “Crimmigration” featuring Kevin Ruser Grand Island Saddle Club, Grand Island Nebraska Activity #58883 (3.0 hours of CLE credit)

20 Tax Developments 2011 featuring Alan B. Kerkhove Mid-Plains Community College - South Campus, North Platte Nebraska Activity #58899 (3.0 hours of CLE credit)

21-22 Iowa/Nebraska Solo Small Firm Conference Location TBA, Council Bluffs, IA Nebraska Activity #58883 (3.0 hours of CLE credit)

20 “Crimmigration” featuring Kevin Ruser Mid-Plains Community College - South Campus, North Platte Nebraska Activity #58878 (3.0 hours of CLE credit)

August 2011 21 “Crimmigration” featuring Kevin Ruser Scottsbluff Country Club, Scottsbluff Nebraska Activity #58885 (3.0 hours of CLE credit) September 2011 30

Labor & Employment Law Annual Seminar Embassy Suites, La Vista

October 2011 19-21 NSBA Annual Meeting Cornhusker Hotel, Lincoln

THE NEBRASKA LAWYER

28

april 2011


MCLE news

News From the MCLE Commission Carole McMahon-Boies MCLE Commission

Now that the dust has settled from the end of our first reporting period for MCLE compliance, please note an important change in the MCLE rules. The Supreme Court has amended §3-401.5 to provide an exemption for attorneys over 70. Beginning in 2011, attorneys no longer have to report MCLE credits once they reach the year in which their 70th birthday occurs. The rule amendment did not alter the obligation to earn 10 credits in 2010. We owe a great deal of thanks to the dedicated and hard working staff of the MCLE Commission. During December staff fielded over 2500 calls from attorneys seeking assistance in filing their annual CLE reports. We wanted to make sure no one missed a deadline because we were slow in processing a request for approval, accordingly we were able to process courses on the day they were submitted ensuring that no attorney waited more than 8 hours to have a course approved. At the end of the day on December 31 there were no requests waiting to be processed. That sometimes meant working 15-hour days and holidays. Without the hard work and gracious assistance that our help desk provided to Nebraska attorneys we would

not have been able to keep up with the workload occasioned by year end reporting. We also owe a great deal of thanks to the attorneys who showed patience and perseverance in this first year of a new program. Of the approximately 6200 active attorneys on NSBA rolls, there are now only 6% who have not filed an annual report for 2010, a relatively low percentage of noncompliance for a first year CLE program. While learning a new computerized system is always a challenge, we received many positive statements from attorneys who were able to master the program. The compliance process involves the issuance of certified letters to all those who did not file a report. The letter will require the non compliant attorney file an affidavit indicating the reason for the noncompliance. The attorney has 45 days from the date the letter is served to comply with the education requirement. A recommendation of suspension is then made to the court if the attorney does not comply within the 45 days. The help desk remains available to assist with any questions. The help desk can be reached by calling 402-471-3137.

court news

Geoffrey C. Hall was recently appointed by Governor Heinemann to serve as District Judge of the Sixth Judicial District in Dodge County, Fremont, Nebraska. As a result, Mr. Hall has closed his law practice known as Hall Law Offices, PC. Hall is a graduate of Kearney State College and Creighton School of Law. Upon his graduation from Creighton, Hall practiced with the law firm of Shughart, Thomson & Kilroy in Kansas City, Missouri from 1988 to 1990. In 1990, Hall returned to Nebraka and joined the Nebraska Bar Association practicing with the firm of Kelley & Lehan, PC, which later became Kelley, Lehan & Hall, PC. In 2000, Mr. Hall opened his own law practice, Hall Law Offices, PC, with offices in Blair and Tekamah, until he was tapped by the Governor to serve on the District Court bench. Judge Hall’s office information is: Dodge County District Court, 428 North Broad St., Fremont, NE 68025, 402-727-2780.

THE NEBRASKA LAWYER

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1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778 www.landexresearch.com April 2011


Anatomy for Lawyers

featuring Professor Samuel D. Hodge Friday, June 3, 2011 • 8:45 am - 4:15 pm

Scott Conference Center • 6450 Pine Street, Omaha, NE 68106 *Nebraska MCLE Activity #58689 - 6.0 CLE hours.

Program Highlights

• How to understand and interpret medical jargon. • The difference between soft tissues: muscles, ligaments and tendons. • The mechanism of trauma to the neck, back, knee and upper extremity. • The difference and limitations of today’s common diagnostic tests 8:45 am

10:30 am

The Back - continued

1:00 pm

The Upper Extremity

2:30 pm

Break

2:45 pm

The Knee & Hip

4:15 pm

Adjourn

• • • • • •

• Key terms for understanding medical reports • Difference between ligaments, tendons and muscles; other key body parts - joints, and the central and peripheral nervous systems. The Back • Parts of the spine • Why the spine has four curves • Different parts of the vertebrae, discs and spinal cord • Which parts are more prone to injury

Break

Lunch (included with your registration)

• The Shoulder • Elbow problems • Hand problems

Overview of Human Anatomy

10:15 am

12:00 pm

What bones and soft tissues make up the lower extremity Differences between the ligaments Types of knee and hip surgery, repair & replacement How trauma happens Diagnostic tests Capitalizing on diagnostic images

Professor Samuel D. Hodge brings boundless enthusiasm to the topic of anatomy. He is a skilled litigator who has taught medical topics for more than 25 years. In plain English, and with a sharp focus on the challenges you face in your law practice, Sam covers handling back, shoulder, hand and knee injury cases. He makes practical, case-clarifying sense of complicated medical injuries, terms and conditions. He provides the essential tools that you need to properly evaluate and articulate your case to make it persuasive to 1) your client, 2) opposing counsel 3) the judge and, if need be, 4) the jury.

• Spinal cord and nerve roots • Back injuries • Spinal surgery - laminectomy, discectomy, fusion and foraminotomy Diagnostic Tests for Back Injuries • Why physicians order X-rays, CT scans and MRIs and the differences between the tests

REGISTRATION FORM: Anatomy for Lawyers - June 3, 2011 c Registration - $220

c In Practice 5 Years or Less - $195

Name:______________________________________________________________Bar #_______________________ Address:_______________________________________ City:__________________ State:_____ Zip:_________ Telephone:____________________________________ E-Mail:__________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $______________ Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:__________________________________________________________________ Credit card billing address (if different from above):__________________________________________________ City:__________________________________________________ State:______________ Zip:_______________ Signature:_____________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098 THE NEBRASKA LAWYER

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April 2011


transitions

Career Changes.......................... ..........................and Relocations The Omaha law firm of Gross & Welch is pleased to announce Robert A. Mooney has been elected as a shareholder of the firm. Mooney earned his undergraduate degree from the University of Nebraska in 1994, and his law degree from the University of Nebraska - College of Law in 1997. Mr. Mooney is Robert A. Mooney a trial lawyer, whose practice has focused on insurance defense, medical malpractice defense, personal injury, commercial, and appellate litigation. Mooney is a member of the Nebraska State Bar Association, Defense Research Institute, and serves on the Board of Directors of the Nebraska Defense Counsel Association. In addition, he is also a member of the Omaha Bar Association, where he served on the Courts Committee from 2002-2007. Mooney has been a member of the Omaha Barristers since 1997, and served as President of the Barristers in 2007-08, and is presently the Chair of the Omaha Bar Association’s Memorial Committee. Mooney has served the Nebraska State Bar Association by sitting on the Nebraska Judicial Nominating Committee for the Separate Juvenile Court of Douglas County from 2003 through 2010, and currently serves on the Nebraska Supreme Court’s Disciplinary Review Board. Since 2006, Mooney has served as a board member on the City of Omaha Police and Fire Retirement System. Jeremy Cross has opened Cross Law Firm, PLC, a Sioux City-based firm. Jeremy graduated from Creighton School of Law in 2005. He is licensed in Iowa and Nebraska. His general practice includes but is not limited to personal injury, products liability, litigation, insurance law, real estate, business law, commercial law, collections, debtor and creditor, contracts, and probate law.

Jeremy Cross

Randall R. Ritnour, Paul A. Payne, and Brian A. Coon are pleased to announce the establishment of the law firm Ritnour, Payne, & Coon, L.L.P. Areas of practice for the firm include immigration law, family law, wills and estates, criminal defense, bankruptcy, commercial and residential real estate, civil litigation, social security disability, and personal injury law. The law office of Ritnour, Payne, & Coon, L.L.P. is located at 6500 Holdrege Street, Lincoln, NE, 68505. The firm’s main telephone number is 402-261-3491. THE NEBRASKA LAWYER

31

Abrahams Kaslow & Cassman LLP is pleased to announce Jennifer L. Rattner has joined the firm as an associate. Ms. Rattner received her Bachelor of Science degree in Psychology, cum laude, from Drake University in Des Moines, Iowa in 2003. She received her Juris Doctor, with high honors, Jennifer L. from Drake University Law School in 2008. Rattner In law school, Ms. Rattner was a member of the Drake University Law Review for two years. Ms. Rattner was an associate at another Omaha law firm before joining Abrahams Kaslow & Cassman LLP. She will focus her practice on corporate law, commercial transactions, energy law, intellectual property and securities. Ms. Rattner is admitted to practice in Nebraska and Iowa. Keith Scarborough has been reappointed to a three-year term on the Prince William County Electoral Board by the Circuit Court of Prince William County, Virginia. He was first appointed to the Electoral Board in 2007 and is currently serving as Chairman. A native of Grand Island, Scarborough graduated from the University of Nebraska College of Law in 1978. After practicing law in Lincoln, he moved to the Washington, DC area in 1983 to work for former Senator Jim Exon. Scarborough is currently Senior Vice President for Government Relations for the Association of National Advertisers (ANA) in Washington, DC. Husch Blackwell is pleased to announce that Jonathan R. Breuning has joined the firm’s Omaha, Nebraska, office as a Partner in the area of Labor & Employment law. Breuning has more than 30 years of experience representing public and private companies. He has practiced labor and employment law, healthcare law and technology law as in-house counsel and in private practice. Prior to joining the firm, Breuning served as Executive Vice President of Corporate Development and General Counsel for MSI Systems Integrators, Inc. (20052010), a national privately-held reseller of computer hardware, software and services. He advised the Executive Committee and Board of Directors and led the legal, human resources, facilities and other administrative support departments. While at MSI, Breuning restructured their HR operation and redesigned their benefit programs. Breuning began his legal career at Baird Holm LLP (1979-2005), where he served as Chair

april 2011


awards and recognition of their Labor and Employment law department and was a member of the firm’s Executive and Management Committees. Breuning earned his J.D., with honors, from the University of Michigan Law School (1979). He received his B.S., summa cum laude, from Western Michigan University (1976). Schirber & Wagner, LLP, of 1243 Golden Gate Drive, Papillion, Nebraska, is honored to announce that William H. Marion, a 2010 graduate of Creighton University Law School, has joined the firm as an associate. Abrahams Kaslow & Cassman LLP is pleased to announce Laura K. Woods has joined the firm as an associate. Ms. Woods received her Bachelor of Arts degree in Government and International Affairs from Augustana College in South Dakota in 2005. She received her Juris Doctor, cum laude, Laura K. Woods from Creighton University School of Law in 2009. In law school, Ms. Woods was a law clerk for the Douglas County Public Defenders office. Ms. Woods worked at another Omaha law firm doing civil litigation before joining Abrahams Kaslow & Cassman LLP. She will focus her practice on litigation and is admitted to practice in Nebraska and Iowa. Abrahams Kaslow & Cassman LLP is pleased to announce that Robert M. Schartz has become a partner in the firm. Mr. Schartz will focus his practice on Medical Malpractice Defense, Insurance Defense, Commercial Litigation and Personal Injury. Mr. Schartz obtained his Bachelor of Science in Business Robert M. Administration from the University of Schartz Nebraska at Omaha in 1990 with an emphasis in accounting. After obtaining his Juris Doctor from Creighton University School of Law in 1993, he became an Assistant Douglas County Public Defender where, over the next five years, he gained significant trial experience. In 1998, Mr. Schartz entered private practice where he has continued as a litigator. He is currently a member of the Omaha and

Awards and Recognition Baird Holm LLP is proud to announce Scott P. Moore, a partner with the Firm, has been selected by the Fair Housing Center of Nebraska-Iowa as the recipient of the inaugural “Fair Housing Centers Founders’ Award.” Mr. Moore is being recognized for his service to the Board of Scott P. Moore Family Housing Advisory Services and his history of litigation of important fair housing cases at the trial and appellate levels. “We are honoring Mr. Moore for his on-going advice, counsel and general support of the Center,” said Joe Garcia, Director of the Fair Housing Center. Mr. Moore is widely recognized as a national expert in housing law and litigation. He represents individuals, developers, property management companies, nonprofit associations, real estate agents, architects, and engineers in all fair housing and public accommodation matters. Mr. Moore was the Deputy Chief of the Employment Litigation Section of the Civil Rights Division in Washington, D.C. from 2002 to 2003 and is a former senior trial attorney with the Housing and Civil Enforcement Section of the U. S. Department of Justice. While at the Justice Department, he served as lead counsel on some of the largest pattern or practice cases brought by the United States under the Fair Housing Act. Mr. Moore will be honored at a reception on Friday, April 29, at 6 p.m. at the Fair Housing Center. For more information about attending this event, please contact Joe Garcia at joe@fhasinc.org. Florida. As a result of the response, our legal assistant has found support during her treatment and a trip was arranged for the family to travel to Disney World for a memorable vacation.

Solace Program Has First Request Solace stands for Support of Lawyers/Legal Personnel All Concern Encourage. The purpose of the program was demonstrated by our inaugural request. A request was received from a legal assistant in Southeast Nebraska, recently diagnosed with stage four pancreatic cancer. She is a single mom, with two grade school age children.

Thank you to all who considered this request for assistance. Please consider encouraging others with a need for assistance to utilize this powerful network. All inquiries must be made to Mike Kinney or Jane Schoenike at mkinney@ctagd.com or jschoenike@nebar.com.

The request for assistance went out via our Solace email list. The response was immediate and nearly overwhelming. The offers of assistance came primarily from Nebraska, but included offers from Nebraska licensed members from California to THE NEBRASKA LAWYER

Nebraska State Bar Associations, Iowa State Bar Association, the American Bar Association, the Medical Liability Section of the Defense Research Institute, the Nebraska Defense Counsel Association and the Nebraska Criminal Defense Attorneys Association. Mr. Schartz is admitted to practice in Nebraska and Iowa as well as the U.S. District Court District of Nebraska and the U.S. District Court of the Northern District of Iowa.

Assistance provided to a Solace request may or may not be deductible as a charitable contribution. You may consult your tax professional for further information. 32

April 2011


in memoriam

Robert “Bob” H. Berkshire, 82, died February 9th, 2011 in Omaha. The longtime Omaha lawyer was active in the Nebraska State Bar Association, as well as the Nebraska State Bar Foundation, having just recently completed a two year term as president of the foundation where he also was a fellow. Robert H. He loved to travel and he and his family Berkshire typically took trips once or twice a year. His son, Rick, is also a partner at the Berkshire and Burmeister law firm and said that his father never stopped coming to the office. His daughter, Laurie Meyers, is also a partner at the firm. Bob and his wife Joanne established an endowment fund to support NSBF programs such as the mock trial program and other law-related education programs. He attended the University of Nebraska an participated in track while a student there, later graduating from the University of Nebraska College of Law in 1955 and began private practice in Lincoln. By 1957, Berkshire was a U.S. assistant district attorney in Omaha. He returned to private practice in 1961 in Omaha.. A native of Omaha, he served on the Westside Community Schools’ board from 1972 - 1984, twice as its president. He was a Colonel in

THE NEBRASKA LAWYER

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the United States Marine Corps Reserves, and was a trustee of the University of Nebraska Foundation. In 2010, he was recognized by the Nebraska State Bar Association and was awarded the George H. Turner Award for his “unusal efforts dedicated to furthering public understanding of the legal system, the administration of justice, and confidence in the legal system.” He also was a 50-year member of the Downtown Kiwanis Club. He is survived by his wife of 57 years, Joanne, son Rick Berkshire, daughters Laurie Meyers, Janet Berkshire, Leslie Berkshire, and six grandchildren. Memorials are suggested to the Omaha Community Playhouse, and the University of Nebraska Foundation’s Dave Noble Memorial Scholarship. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation P.O. Box 95103 Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact kbellman@nebar. com. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

April 2011


classified ads

Beach house for rent: Nebraska bar member has southwest Florida beach house and brand new 3BR/2BA luxury beach condos for rent. See englewoodbeachhouse.com. Attorney discounts. Contact Lee Hollis 913-385-5400 or email leehollis@hollislawfirm.com. (1211) ASSOCIATE OR OFFICE SHARE: We are currently looking for attorneys with an established client base to join our Omaha firm. Position is perfect for a solo practitioner that wants to enjoy the support of a firm. We would also consider an office share arrangement. Rent is negotiable and includes internet, reception, conference room and printer/copier. Please email with any questions: ryan@LandPLaw.com. (UFN) Office share arrangement: Available in downtown Omaha for up to two attorneys. Includes considerable common space including two large conference rooms, breakroom, receptionist services, copier, fax and phones. Located next to the Douglas County Courthouse and offering upscale amenities, this office sharing arrangement is ideal for a solo practitioner. Cross referrals available. Please contact Matt Higgins or Tara Clay at 402-933-7600 or higgins@matthigginslaw.com or tara@matthigginslaw.com. (UFN) Office space to share, on the second floor of the Keeline Building (directly across 17th Street from the east side of the Douglas County Court House). Roger R. Holthaus; Holthaus Law Offices; Suite 210; 319 South 17th St.; Omaha, NE 68102; phone (402) 341-5095; Fax (402) 341-5378; rholthaus@holthauslaw.com. (UFN) OFFICE SPACE TO SHARE, available for up to two attorneys. Includes common space, parking, large conference room, break room, furnished secretary area, file storage, receptionist services, copier, fax, phone, and internet. Cross referrals possible. Located at 1517 North Cotner Blvd., Lincoln, NE. Please contact Frank Miner at (402) 423-4417 or franklinminer@yahoo.com. (0411) OFFICE SHARE/ATTORNEY ARRANGEMENTAvailable for up to 4 attorneys. Includes parking, large conference room, break room, secretarial area, storage, phone system, high speed internet and other detailed amenities and arrangements including staff possible. Beautiful new office building located just south of 75th and Pacific Streets. Contact Angela Burmeister or Rick Berkshire, 1301 S. 75th St. Omaha, NE 68124 aburmeister@berkshire-law.com. Purchase of Business: We have an out of state client who is interested in returning to Nebraska and purchasing a small business, preferably one related to agri-business, commercial equipment, wholesale supply or manufacturing. If you THE NEBRASKA LAWYER

34

have a client who might be interested in selling, please contact Don Buresh, at Stalnaker, Becker & Buresh, P.C., 1111 North 102nd Court, Suite 330, Omaha, Nebraska, (402) 393-5421, d.buresh@sbbpc.com. (0411) LAW PRACTICE FOR SALE: Only Attorney in town. Attorney provides services in Estate Planning, Wills, Deeds, Trusts, Real Estate, and corporate formations. Other areas of law can be added. The building is included with the sale price. Two hours from Omaha metro. Current owner will work with Buyer as much and as long as needed to ensure transfer of clients. Current Owner Nets over $250,000 per year. For more information, call Jeff @ 402-827-3190. (0411) Appellate Brief-Writing: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com. (UFN) Wanted to purchase - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or sludvik@nebar.com. (UFN) LINCOLNLAWYER.COM Exclusive, intuitive & descriptive internet domain LincolnLawyer.com (includes website optimized for mobile devices) starting at $189 per month. Contact Brian Leonard (503)504-3878. (0411) Established, AV-rated Lincoln Law Firm with statewide and regional client base seeks associate attorney with experience in litigation and corporate/commercial law. Excellent career opportunity. Must be licensed and admitted in Nebraska state and federal courts. Competitive salary based upon experience. Benefits include health and disability insurance, 401(k) match, professional dues and continuing legal education. References required with cover letter and resume. All inquiries will be held in strict confidence. Send inquiries to: Managing Partner, PO Box 94646, Lincoln, Nebraska 68509 4646. (0411) ATTORNEY - Medium sized AV rated Lincoln, Nebraska law firm seeks attorney with at least 2-5 years’ experience. Some established client base preferred. We are a general practice firm with emphasis in litigation, both civil and criminal. All applications will be treated with strict confidentiality. Send cover letter & resume to: Law Firm, PO Box 82263, Lincoln, NE 68501-2263. (0411) april 2011


classified ads SEEKING AN ASSOCIATE - Huston and Higgins law firm in Grand Island, NE is seeking an associate with 1-3 years experience and interest in future partnership. Please submit resume and letter of interest to David Huston at david@ hustonandhiggins.com. (0411) Seeking an attorney: Prominent mid-sized Omaha law firm is seeking an attorney with 2-5 years experience in litigation. Competitive salary, benefits package. Please submit your resume and references to rtodd@pheblaw.com. Pansing Hogan Ernst & Bachman LLP, 10250 Regency Circle, #300, Omaha, Nebraska 68114, http://www.pheblaw.com. (0411) Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama is seeking an associate attorney to handle general business litigation and domestic relations work. We prefer a candidate with some experience who has ties to western Nebraska and/or a real desire to live in a small community. We are an AV-rated law firm whose partners work hard for an exceptional base of long-time and new clients. Our lawyers have been partners and close friends for many years. We are committed to providing a hospitable environ-

ment for lawyers who wish to raise families in, and be part of the growth of, in a thriving small community. We offer a competitive salary, excellent benefits and excellent staff support. Western Nebraska is a great location for hunting, fishing, hiking, motorcycles, and golfing as well as theater and the arts; the western Nebraska legal community is busy, friendly and an integral part of the business community. Please send resume to Post Office Box 2424, Scottsbluff, NE 69363-2424, attn: Hiring Partner. Established, AV-rated Lincoln Law Firm seeks attorney with estate planning, probate, real estate and commercial practice to enhance existing practice areas. The Firm maintains a statewide practice and technology that would complement the lateral transfer of any successful metropolitan or rural practitioner. Excellent career opportunity. Must be licensed and admitted in Nebraska state and federal courts. Competitive salary based upon experience. Benefits include health and disability insurance, 401(k) match, professional dues and continuing legal education. All inquiries will be held in strict confidence. Send inquiries to: Managing Partner, PO Box 94646, Lincoln, Nebraska 68509-4646. (0411)

legal marketplace

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MEDIATION & ARBITRATION SERVICES

jeffrey A. boehlert Personal Injury, Malpractice, Construction, Business Litigation & Employment Law Matters

Patterson Law Firm, LLP 505 5th St. • 7th Floor Des Moines, IA 50309

Finally, help with healthcare issues Free Consultation + Gift

Tel: 515-242-7158 Fax: 515-283-1002 jab@pattersonfirm.com

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Special Savings for NSBA Members

Just call 866.939.3435

Gail E. Boliver j.d. m.b.a. Malpractice of Stockbrokers & Financial Consultants Licensed in Nebraska & Iowa

• Arbitration • Suitability • Churning • Stocks • Bonds • Concentration • Pension Investments - ERISA • Annuities • Insurance Products & Others

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402-392-0107

8712 W Dodge Road, #400 • Omaha THE NEBRASKA LAWYER

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(800) 374-6710 April 2011


THE NEBRASKA STATE BAR ASSOCIATION NEBRASKA LAWYERS FOUNDATION (NLF) Presents the

8TH ANNUAL GREATER NEBRASKA GOLF SCRAMBLE FRIDAY, JUNE 17, 2011 The PRAIRIE CLUB Valentine, NE 69201 888-402-1101

Golf Scramble

Room Reservations and Additional Golf Outings!

Friday, June 17th

Format: 4-Person Scramble Lunch & Driving Range: 10:30 AM - Noon Shotgun Start: Noon Dinner: 5:00 PM Entry Fee: $150 per golfer Includes: Lunch, dinner, green fee, cart, range balls, and door prize drawings! Players: Pairings will be made for individual and partial team entries.

1) _______________________________________

Directions: The Prairie Club is located 17 miles South of Valentine on HWY 97

Thursday, June 16th or Saturday, June 18th

To make room reservations or tee times on Thursday, June 16th or Saturday, June 18th please call the Prairie Club at 888-402-1101.

2) _______________________________________

Name

Name

_______________________________________

_______________________________________

Address

Address

_______________________________________

_______________________________________

__________________________________________

_______________________________________

Phone

Phone

_______________________________________ U.S.G.A. Handicap Index

_______________________________________

Average 18 Hole Score

3) _______________________________________

U.S.G.A. Handicap Index

Average 18 Hole Score

4) _______________________________________

Name

Name

_______________________________________

_______________________________________

Address

Address

_______________________________________

_______________________________________

_______________________________________

_______________________________________

Phone

Phone

_______________________________________ U.S.G.A. Handicap Index

_______________________________________

Average 18 Hole Score

U.S.G.A. Handicap Index

Average 18 Hole Score

Proceeds to Benefit The NSBA Volunteer Lawyers Project

I am unable to play in the tournament, but have enclosed $________ to support VLP.

For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091, or at sclinch@nebar.com. Please make your checks payable to NLF & return this form to: PO Box 81809, Lincoln, NE 68501-1809. ***Gifts to NLF are deductible as charitable donations to the extent allowed by law.***

THE NEBRASKA LAWYER

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april 2011


2011 Public Service Awards The Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2011 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 23, 2011.

George H. Turner Award

The George H. Turner award originated in 1964 and was established to recognize a member of the bar demonstrating unusual effort in furthering public understanding of the legal system, the administration of justice, and confidence in the legal profession.

Award of Appreciation

The Award of Appreciation is awarded to an individual or organization in recognition of outstanding public service creating a better public understanding of the legal profession and the administration of justice.

Award of Special Merit

The Award of Special Merit originated in 1973 and was established to recognize an individual or organization for services advancing the legal profession, the administration of justice and the public interest.

A listing of past award winners in each of these categories is included in this section. THE NEBRASKA LAWYER

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April 2011


Public Service Awards History

George H. Turner Award

Award of Special Merit

Year Recipient

2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1975 1974 1972 1971 1970 1969 1968 1966 1965 1964

Year Recipient

Robert H. Berkshire Douglas J. Stratton Gerald L. Soucie John V. Hendry D. Milo Mumgaard Honorable Lyle E. Strom James Hewitt Honorable Thomas M. Shanahan Kevin L. Ruser Honorable Robert O. Hippe Roberta S. Stick Honorable James M. Murphy James E. Gordon Kim M. Robak Robert W. Mullin Michael D. Gooch Albert T. Reddish Indigent Defense Task Force Howard P. Olsen Jr. James M. Bausch Honorable William C. Hastings Honorable Gerald E. Rouse Ronald Volkmer Harvey S. Perlman Honorable Norman M. Krivosha Bennett G. Hornstein Thomas J. Walsh Honorable Lyle C. Winkle Robert M. Spire John M. Gradwohl Honorable Herbert A. Ronin Thomas R. Burke Daniel D. Jewell Thomas W. Tye David Dow Bert L. Overcash Jack W. Marer Seymour L. Smith Herman Ginsburg Honorable Paul J. Hickman Senator Roman L. Hruska Honorable Edward F. Carter George B. Hastings Clarence A. Davis Raymond G. Young

THE NEBRASKA LAWYER

2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1994 1993 1992 1991 1990 1989 1988 1987 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 38

Secretary of State John Gale Attorney General Jon Bruning Dean Patrick J. Borchers Dean Steven L. Willborn John P. Lenich Robert Bartle Roger W. Kirst Honorable Alan L. Brodbeck David S. Houghton John B. Milligan Douglas A. Kristensen Jay J. Sullivan Omaha Law League Dennis R. Keefe Mid-American Council Juvenile Diversion Program Nebraska Court Appointed Special Advocate (CASA) Association Richard C. Witt Honorable Richard D. Sievers John R. Doyle Charles W. Baskins Kathleen M. Severens Robert G, Scoville Honorable Janice L. Gradwohl Honorable Robert Van Pelt Honorable W.W. Nuernberger Legal Services of S.E. Nebraska, Inc. Omaha Legal Aid Society, Inc. Western Nebraska Legal Services Inc. Honorable Robert C. McGowan Richard M. Van Steenberg Robert J. Kutak Richard D. Shugrue James W. Hewitt Vard R. Johnson Rodney Shkolnick John Strong Joe R. Seacrest Robert D. Mullin Robert M. Spire Leo F. Clinch Alfred G. Ellick William J. Baird Laurens Williams Jack W. Marer Honorable Robert R. Moran Murl M. Maupin Lester A. Danielson April 2011


Award of Appreciation

1973 1972 1971 1970 1969 1968 1966 1965 1964

Year Recipient 2010 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1975 1974

Daphne Hyun-Jin Aronson Kenneth M. Wentz III Sherman P. Willis Deanna Lubken The Woods Charitable Fund Riko E. Bishop & Mark J. Young First National Bank Lawrence Raful Ronald R. Volkmer John M. Gradwohl Lane Foundation Nebraska Mock Trial Project Lancaster County Juvenile Court Judges Alan H. Frank Linda L. Willard Eileen Reilly–Buzzello James E. Reisinger The Omaha World Herald Jung Nguyen Nebraska Bankers Association Dave Thompson,(posthumously) Omaha World Herald Nebraska Association of Trial Attorneys Nebraska Highway Safety Program Reta Johnson, Nebraska State Library Ted Larson, Lincoln Southeast High School National Bicentennial Competition Eleanor Propp Nebraska Commission for the Hearing Impaired Kathryn E. Haugstatter, Lincoln Star Scottsbluff Star Herald Thomas R. Walsh, Nebraska Department of Education KFAB Radio, Tom Johnson Volunteers Intervening for Equity KETV Television, Gary Nielson Kearney State College, Brendan McDonald Gary Kerr, WOWT Television Nebraska Educational Television, John M. Lewis Nebraska Commission on Aging, David M. Howard Ceilia McNamara, Omaha Bar Association Lincoln Journal, Bill Kreifel Omaha World Herald, John Taylor

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Junior League of Omaha, Omaha Law Wives Donna Belle Weyers, Secretary of State’s Office KETV Television, Kenneth James Maurice H. Sigler, Nebraska Dept. of Corrections Benjamin Goble, Lincoln Police Department Nebraska Association of Broadcasters, Paul Jensen Junior League of Omaha, Mrs. Tyler Gaines KMTV Television, Owen Saddler Lincoln Journal News Staff, Gil Savery

Robert M. Spire Pro Bono Award Year Recipient 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985

39

Ann S. Moshman (Awarded at 2011 Barristers’ Ball) Susan M. Koenig (Awarded at 2010 Barristers’ Ball) Alan D. Martin (Awarded at 2009 Barristers’ Ball) Diane B. Metz Paul M. Conley Charles R. Maser Catherine Mahern Ralph E. Peppard John V. Morgan D. C. “Woody” Bradford, III Charles A. Nye Stephen A. Scherr Mary L. Wilson Mark R. Widell Martin J. Kushner (posthumously) Gail S. Perry Connie Kearney Robert F. Martin Paul W. Rea The Marks & Clare Firm Michael D. Matejka J. Marvin Weems Earl D. Ahlschwede Clark J. Grant James W. Crampton James R. Nisley Paul W. Korslund David Perlman John W. Ballew Jr.

April 2011


2011 Public Service Awards Nomination Form

Please check the award for which you are providing a nomination.

Award of Appreciation Award of Special Merit George H. Turner Award

Name of Nominee(s): Address:

Please briefly describe the activities and contributions which qualify this candidate as a nominee for the Award.

Please include any other information you believe would be helpful to the committee.

Your name and address

Please return this form by May 23, 2011 to: NSBA House of Delegates Nominating Committee PO Box 81809 Lincoln, NE 68501-1809 Fax (402) 475-7098

THE NEBRASKA LAWYER

40

April 2011


GARLAND LAW, P.C. “Protecting the High Standards of Health Care for Patients”

MEDICAL MALPRACTICE Who are you going to call? Sooner or later someone is going to call you about a medical negligence case… Medical negligence litigation is not for the faint of heart or the inexperienced. Medical negligence investigations are difficult, complicated, risky, and expensive. Costs often run into the tens-of-thousands of dollars.

Gregory Garland

www.garlandlawpc.com

Call us and let us help you help your clients!

Garland Law, P. C.

17002 Marcy Street, Suite 130 One Pacific Springs Omaha, NE 68118

402-330-7000

AV® RATED Martindale-Hubbell recognizes Gregory Garland as an AV® rated attorney, the highest such rating available to any individual lawyer.

LIFE MEMBER Million Dollar Advocates Forum Multi-Million Dollar Advocates Forum The Top Trial Lawyers in America™

Nebraska Lawyer April 2011  

Volume 14, No. 4

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