Page 1


Cesar v. Alicia & Its Progeny Philip B. Katz

Recent Supreme Court Arbitration Rulings Affect Employment & Class Action Arbitrations Nebraska State Bar Association 635 South 14th Street P.O. Box 81809 Lincoln, NE 68501-1809

Professor Kristen M. Blankley

Untying the Gordian Knot: Law Firm Compensation Michael Moore

RUNS A LAW FIRM. AND TRIATHLONS. | Barry Brooks Construction & Employment Law Rockwall, Texas

“The fact that you can use WestlawNext® on the iPad® is really what piqued my interest. I do not know how I practiced law without my iPad, and it’s a crazy thing to say because I did it for so long! The searching is easier and I like the way I can organize all of my research and save it under case folders. It saves me time because those folders are available to me anywhere.” Even on the run.

© 2012 Thomson Reuters L-373852/2-12 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.


Nebraska Lawyer Official Publication of the Nebraska State Bar Association • July/August 2012 • Vol. 15 No. 4



Departments 21 Professional Responsibility Inquiring Minds Want to Know

President’s Message We Are Called to the Bar: The Law is a Profession

Warren R. Whitted Jr.

.................................... Warren

5 11

37 Technology Your Questions Answered About Nebraska’s E-Filing Service

Cesar v. Alicia & Its Progeny

Copy by Brent Hoffman & William Miller

B. Katz

41 Technology Ruminations on the Ethics of Law Firm Information Security

Recent Supreme Court Arbitration Rulings Affect Employment and Class Action Arbitrations ............... Professor

24 Ethics Advisory Opinions

R. Whitted Jr.

......................................................... Philip

by Sharon D. Nelson & John W. Simek

43 Practice Tip Pixel Persuasion

Kristen M. Blankley

by Lisa Solomon


Untying the Gordian Knot: Law Firm Compensation


The Lawyer’s Profession is His Life

50 NSBA Calendar

.................................................J. William

51 Court News

....................................................... Michael

47 Coaches’ Corner Celebrating the Seasons of Our Life


by Dennis G. Carlson


by Susan Ann Koenig

52 Legal Community News 56 NCLE Calendar 57 Transitions/Awards & Recognition 59 In Memoriam 61 Classified Ads 62 Legal Marketplace The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A bi-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


j u ly / a u g u st 2 0 1 2

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


issue editors 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.

President: Warren R. Whitted Jr., Omaha President-Elect: Marsha E. Fangmeyer, Kearney President-Elect Designate: G. Michael Fenner, Omaha House of Delegates Chair: James E. Gordon, Lincoln House of Delegates Chair-Elect: Steven F. Mattoon, Sidney Past President: Robert F. Bartle, Lincoln First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk 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: Supreme Court Liaison:

Amie C. Martinez, Lincoln Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Executive Director:

Jarrod P. Crouse, Lincoln Jane L. Schoenike, Lincoln

James C. Bocott

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 Executive Council Liaison: Todd B. Vetter, Norfolk Executive Editor: Kathryn A. Bellman Layout and Design: Sarah Ludvik 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 CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 •


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.


j u ly / a u g u st 2 0 1 2

president’s page

We Are Called to the Bar: The Law is a Profession After the events of the first half of 2012, it might be time to reflect on lessons learned from the reaction of the members of the Association to Senator Scott Lautenbaugh’s petition to deunify the NSBA. As of this writing, the Supreme Court’s comment period is closed. More than 50 separate responses, some speaking for multiple lawyers, were submitted. The public comments were approximately two to one in favor of retaining the unified bar. As this article goes to press, we have not been advised how the Court intends to proceed in its consideration of the petition. Regardless of the action of the Court, the NSBA has heard the comments and is taking steps to respond to the legitimate concerns of the membership. What is most surprising to me as President is the number of members whose comments reflect a lack of familiarity with the purpose of the NSBA and the activities it which it engages. The Executive Council just completed a three-day planning meeting led by President-Elect Marsha Fangmeyer. During this meeting, we took a comprehensive look at the bar structure, its programming, its legislative involvement and its future. We engaged in spirited discussions about the things we do correctly and those upon which we can improve. There was consensus that we fall short in our communication with you. That sounds like a simple matter which can easily be resolved by more information. The answer is not that easy. I do not think that any one of you would say that you receive too few communications from the NSBA. You receive CLE notices, E-Counsel, listserve communications, solicitations for NLF, VLP and meeting notices. The problem is not the number of THE NEBRASKA LAWYER


Warren R. Whitted Jr.

communications, but the quality and content. We have made a great deal of progress this year. We have launched a new and improved website. If you have not been to please try it and provide your comments. It is a work-in-progress and we want to make it every lawyer’s home page. It’s mine. Communication is a two-way street. We want to hear from you about how you think we can improve both our programs and the message. In response to your concerns, The Legislative Policy Review Task Force (announced in the last issue of The Nebraska Lawyer) has been formed and will hold its initial meetings this month. I want all of you to know that as an association we are actively engaged in a thorough and ongoing planning process and are working hard to address your legitimate concerns and to improve the way we serve you. As always, I am available and willing to listen to what you have to say and to attempt to provide answers to your questions. Now to the real thrust of this article. If there is a thread running through the comments made in support of the deunification petition, it is that individual lawyers should not be required to be members of a union to practice law. I spent some time thinking about this. Unions are important in protecting the rights of workers when dealing with their employers, to assure fair compensation and safe and reasonable working conditions. What does it mean to be a professional? What differentiates us as lawyers from a carpenter or a plumber or an electrician?? I admire the work and expertise of people who ply those

j u ly / a u g u st 2 0 1 2

president’s page trades. I seek out their services when my lights flicker or my faucet breaks. They are highly trained and have spent time as apprentices, journeymen and masters of their craft. However, we call the practice of law a profession. How are we different? Black’s Law dictionary defines Profession as “. . . a vocation, calling, occupation or employment involving labor, skill, education, special knowledge and compensation or profit, but the labor is predominantly mental or intellectual rather than physical or manual.” Originally, the professions were theology, law and medicine. Clearly what we do as lawyers fulfills the definition, but this still begs the question. How are we different? Surely there has to be more than that we work with our heads rather than our hands. There is more. We are guided by a code of laws and are charged to apply those laws to assist our clients in resolving disputes and achieving their goals. It requires us to fulfill our responsibilities within the framework of the Rules of Professional Conduct. It requires us to apply our knowledge and expertise to assist those without the means to pay for our services. In the practice of law, we are charged with a duty to serve our clients and to act civilly in our interactions with our peers. We are required to assist the courts in the fulfillment of their duties to dispense justice in a fair and equitable way. We are also charged with an unwritten obligation to serve our communities, and through the application of our knowledge and expertise, to preserve and protect our system of government and laws. We are the guardians of the rule of law, of our legal system. If we become so focused on the next matter, and the next client, and the next fee that we lose sight of attacks on the system, this country will change and our system will weaken. If we allow the strength of our system of laws and the third arm

of our government to be weakened and fall prey to the belief that our courts should bend to the will of the populace, we will have failed each other, we will have failed our neighbors and we will have failed our nation. We value the work of the plumber who repairs our pipes and the electrician who keeps our lights burning, but we carry a greater burden. The practice of law is hard. We spend long hours and are constantly subject to the whim of angry clients seeking redress for their real or imagined wrongs. But in taking our oath and accepting the privilege of practicing our profession, we assumed this responsibiliy. In May I attended a reception at the United State Supreme Court. While it was not my first time there, I still stand at the threshold of the silent Courtroom in awe of the issues that have been heard there, the justices who have carried the weight of those issues and of the system we all have a duty to preserve and protect. As I have traveled the state and listened to lawyers engaged in all types of practices and practice settings, I am impressed and humbled by the quality of the lawyers of Nebraska, not just as lawyers, but as people. We can be justly proud of the members of our Bar who daily prove that LAWYERS MATTER.

Warren R. Whitted Jr., President Telephone: (402) 344-4000 Fax: (402) 930-1099 E-Mail:

If you are aware of anyone within the Nebraska legal community (lawyers, law office personnel, judges, courthouse employees or law students) who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury, the NSBA’s SOLACE Program can likely assist that person in some meaningful way. Contact Mike Kinney at and/or Jane Schoenike at We have a statewide and beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions through the thousands of contacts available to us through the NSBA and its membership. THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

feature article

Cesar v. Alicia & Its Progeny

Major Changes to Nebraska Paternity Law: Consequences: Intended and Otherwise

by Philip B. Katz

“But my name is on the birth certificate -- doesn’t that mean I have rights?” For the first time in Nebraska jurisprudence history, it would seem the answer to this question is yes! The current state of paternity law in Nebraska seems to be in flux. With the Olympics coming up soon, let’s look at a modified metal count [of standards of establishment of paternity].

*Also see Alicia C. v. Jeremy C., 283 Neb. 340 (2012), where a DNA test that excludes a man from being the biological parent may be used to override the Gold Standard of paternity, and effectively disestablish paternity. Copper Standard: A birth certificate naming someone as the legal father.

Platinum Standard: A written, notarized, signed acknowledgment of paternity. (Sometimes called a poor man’s adoption) See Cesar C. v. Alicia L., 281 Neb. 979 (2011).

Enron Stock Certificate Standard: letters, cards, family photographs, Facebook and MySpace postings, or other evidence wherein the man acknowledges that he is the father of the child.

Gold Standard*: A wedding band on the fingers of the mother and the man claiming paternity, together with a marriage license on file in some county clerk’s office. See Neb. Rev Stat. §42-377 (Legitimacy of children).

Bill Mackenzie, Nebraska Family Law Listserv. (May 4, 2012).

The recent rulings of the Supreme Court of Nebraska in the cases of Cesar C. v. Alicia L., 281 Neb. 979 (2011) and Alicia C. v. Jeremy C., 283 Neb. 340 (2012), have changed the face of decades of paternity law in Nebraska. Some of the impacts are clear, while others are not. Moreover, these decisions have produced results that are fundamentally inconsistent--signaling the dire need for further clarity from the Supreme Court and broad statutory reform by the state legislature.

Silver Standard: A DNA test report naming someone as the child’s father. See Neb. Rev. Stat. §43-1415.

Philip B. Katz Philip B. Katz has spent nearly his entire career practicing family law. He is an attorney with Koenig│Dunne Divorce Law, P.C. L.L.O, in downtown Omaha. His family law practice focuses on divorce, paternity, decree modifications, prenuptial agreements, and basic estate planning. Philip is a member of Legislative Subcommittee of the Family Law Section of the Nebraska State Bar Association and the Family Law Section’s Executive Committee. THE NEBRASKA LAWYER

This article will discuss the clear changes to paternity law in Nebraska that have resulted from the above referenced cases and how those changes impact family law practitioners. Perhaps more interestingly, this paper will highlight some of the unintended effects these cases have had, which expose a clear inconsistency in the state’s public policy towards the issues of biological parentage and the common law doctrine of in loco parentis. Finally, I will offer some solutions, perhaps short-term, to the problems created by the recent changes in paternity law, and a few useful forms to help some of you who might find yourselves in these new uncharted paternity waters.


j u ly / a u g u st 2 0 1 2

cesar v. alicia & Its progeny

The Cases I. Cesar C. v. Alicia L., 283 Neb. 340 (2012). Facts: Cesar and Alicia lived together from 2004 to 2006 in Lexington, Nebraska carrying on an intimate relationship. Alicia became pregnant and in 2006 gave birth to Jaime, Cesar’s presumed son. Cesar was present at the hospital at the time of Jaime’s birth, and both parties provided their notarized signature on an “Acknowledgement of Paternity” form provided by Nebraska Department of Health & Human Services. Shortly thereafter, Alicia fled Nebraska trying to elude arrest under an outstanding federal warrant for conspiracy to deliver methamphetamine. She was arrested in Colorado and served two years in a federal facility in Texas. She was released to a halfway house in February of 2009. During Alicia’s incarceration, Cesar, still living in Lexington taking care of Jaime, filed a Complaint to establish paternity, custody, and support in Dawson County District Court. Alicia participated in the action, and filed a request for DNA testing, alleging that Cesar may not be Jaime’s biological father. Upon return of the genetic testing results that excluded Cesar as the child’s biological father, Alicia asked the Court for temporary custody and child support. Cesar amended his complaint alleging he stood in loco parentis to the minor child and that Alicia should be equitably estopped from denying his paternity. At trial, Cesar offered into evidence the notarized acknowledgement. It was received without objection, but the Court did not consider its legal effect. The District Court found that equitable estoppel prevented termination of Cesar’s relationship with the child, but gave physical custody of the child to Alicia applying the parental preference doctrine. Cesar received “extensive and liberal parenting time” from the Court, and was also was ordered to pay child support based on the Court’s finding that he stood in loco parentis to the minor child. Issues: The Court ignored issues raised by parties citing the following issues: 1. What is the legal effect of a signed and notarized acknowledgement of paternity? 2. Does parental preference doctrine give superior right to a biological mother where there is a signed and notarized acknowledgement of paternity? Holding: Reversed. 1. Once a party signs a notarized acknowledgment of paternity and the 60 day period to rescind on that acknowledgment expires, the written acknowledgment is the equivalent of a court order determining paternity, and shall not be disturbed absent proof of fraud, duress, or material mistake of fact, with the burden of proving same being on the challenger. THE NEBRASKA LAWYER


2. No party shall have the right to introduce DNA genetic testing that purports to show non parentage in [acknowledgement] cases as such test results are legally irrelevant. Rationale: The legal finding of paternity that is implicit in the acknowledgment is made explicit by the terms of §§ 43-1402 and 43-1409 read together. With regard to the legal effect of a notarized acknowledgment of paternity, the Court cites Neb.Rev.Stat. § 43-1409 (Reissue 2008), which provides as follows: The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized acknowledgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party. After the rescission period a signed, notarized acknowledgment is considered a legal finding which may be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the challenger, and the legal responsibilities, including the child support obligation, of any signatory arising from the acknowledgment shall not be suspended during the challenge, except for good cause shown. Such a signed and notarized acknowledgment or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish support.

(emphasis supplied). In support of its decision, the Court pointed to Neb.Rev.Stat. § 43-1402 (Reissue 2008), regarding the liability of parents to support a child, which refers to the “father of a child whose paternity is established either by judicial proceeding or by acknowledgment as hereinafter provided.” Citing this language, the Court found that §431402 contemplates that paternity may be established by acknowledgment and that establishment of paternity by acknowledgment is the equivalent of establishment of paternity by a judicial proceeding. Reading the foregoing statutes together, the Court interpreted the provision in § 43-1409 that the acknowledgment is a “legal finding” to mean that it legally establishes paternity in the person named in the acknowledgment as the father. In further support of its decision to treat notarized acknowledgments as the equivalent of a court order, the Court cited Neb.Rev.Stat. § 43-1412.01 (Reissue 2008), which allows individuals to set aside prior legal determinations of paternity, which provides in part as follows: An individual may file a complaint for relief and the court may set aside a final judgment, court order, administrative order, obligation to pay child support, or any other legal determination of paternity if a scientifically reliable genetic test performed j u ly / a u g u st 2 0 1 2

cesar v. alicia & Its progeny in accordance with sections 43-1401 to 43-1418 establishes the exclusion of the individual named as a father in the legal determination.... A court shall not grant relief from determination of paternity if the individual named as father (1) completed a notarized acknowledgment of paternity pursuant to section 43-1408.01, (2) adopted the child, or (3) knew that the child was conceived through artificial insemination.

requirements of the disestablishment of paternity statute. The District Court specifically found the evidence did not support a claim of fraud and that Jeremy’s claim of newly discovered evidence also did not provide relief because he had failed to exercise due diligence in raising the issue of paternity.

The Court felt that exception of “fathers by acknowledgement” to use of the foregoing statute was further proof that the legislature intended to have a notarized acknowledgement legally establish paternity regardless of biological relation.

II. Alicia C. v. Jeremy C., 283 Neb. 340 (2012). (Hereinafter “Jeremy”) Only six months after Cesar, the Supreme Court issued its opinion in Jeremy, which, from a public policy standpoint, would seems to reflect 180 degree departure from the court’s decision in Cesar. Facts: Jeremy and Alicia married in September of 2011 and separated in 2006. During the parties’ separation, they sporadically “reunited” and in 2007 Alicia informed Jeremy that she was pregnant and was positive that the child was his. She offered to cooperate if he wanted to get a paternity testing, but Jeremy lacked the money to pay for the testing. Alicia subsequently gave birth to, Brady C. in November of 2007. After further assurances from Alicia that the child was his, Jeremy, who was present at the birth, signed the birth certificate. Jeremy was not asked to sign a notarized acknowledgment of paternity as set froth in Neb. Rev. State. §43-1408.01. In January of 2009, Alicia filed for divorce. On September 17, 2009, the court entered a consent decree of dissolution, which included a parenting plan giving Jeremy minimal parenting time with Brady, who was almost 2 years old by then. Approximately one month after entry of the Decree, Jeremy’s mother agreed to pay for Jeremy to obtain a paternity test. The test excluded him as the father of Brady C, and 30 days thereafter he filed a Complaint to Set Aside Legal Determination of Paternity, which expressly referenced a Decree of Dissolution as the source of the legal determination of paternity. The Complaint expressly referenced that none of the exceptions to one seeking such relief, set forth in Neb. Rev. Stat. §43-1412.01 applied to Jeremy. The Court denied Jeremy’s Complaint finding that §§431401 to 43-1418 regarding establishment of paternity did not apply, as a matter of law, to child born during the course of marriage. In denying Jeremy’s Complaint, it appears that the District Court applied the requirements of a party seeking to vacate or amend a prior Order of the Court under Neb. Rev. Stat § 25-2001 (Reissue 2008), rather than applying the THE NEBRASKA LAWYER


Issue: Does the disestablishment of paternity provision found at Neb. Rev. Stat § 43-1412.01 apply to married parties as to children born during the course of a marriage? Holding: Yes. Reversed. The Supreme Court found that the District Court erred in finding that §43-1412.01 could not be relied upon, as a matter of law, as to attempts to disestablish paternity for children born during a marriage. The Court also held that under the applicable statute, the Court has discretion to determine whether disestablishment of paternity is appropriate in light of the interests of an adjudicated father and the best interests of a child, but in this case no such evidence was offered as to Jeremy or Brady’s interests. The case was remanded for further proceedings in accordance with the Supreme Court’s opinion. Rationale: In explaining the basis of its decision, the Court first engaged in a discussion regarding the history of the marital presumption, which derives from the English common law and which provided that a child born during the marriage is assumed to be the child of the husband. The presumption historically further prohibited the husband or wife from testifying against each other to overcome the marital presumption. In arriving at its conclusion that the legislature intended for §43-1412.01 to apply to children born in wedlock, the Court noted that the legislative history associated with the law was not helpful. However, the Court determined that §43-1412.01 appears to have been modeled after a similar Virginia statute which had been applied to children born during a marriage in an unreported decision. Furthermore, the Court found that the plain language reading of § 43-1412.01 indicated a broad application to any individual by providing, that “[a]n Individual may file a complaint for relief and the Court may set aside a final judgment, court order, administrative Order, obligation to pay child support, or any other legal determination of paternity. The Court also cites to several other states with disestablishment of paternity statutes that have applied the same to children born in wedlock. The Court noted that normally any decree of dissolution which includes an order of child support is res judicata on the issue of paternity, and that res judicata principles would prevent someone from re-litigating the issue of paternity unless they filed a Motion to Vacate or Modify based on fraud or newly discovered evidence as set forth at Neb. Rev. Stat. §25-2001(4)

j u ly / a u g u st 2 0 1 2

cesar v. alicia & Its progeny (Reissue 2008). However, in support of its holding that the disestablishment of paternity statute applies to children born during a marriage, the Court notes that the legislature’s passing of the disestablishment paternity statute clearly overrides such res judicata principles and allows for disestablishment of paternity in limited circumstances. Finally, in its last justification for its decision, the Court notes that the disestablishment statute is not available to those men who had children out of wedlock and signed a notarized acknowledgement of paternity. In light of this exception and high frequency of paternity be established through acknowledgment and genetic testing, the Court questions in what context §43-1412.01 would ever apply to other than children of a marriage, stating that: Although there are other procedures for establishing paternity of out-ofwedlock children, it is hard to imagine, as a practical matter, a circumstance after 2008 in which an out-of-wedlock child’s paternity would be established by means other than notarized acknowledgment or genetic test¬ing. In fact, procedures for using genetic testing to establish paternity were enacted in 1984, rendering it unlikely that the biological relationship of any child currently the subject of a child support order was not established by those means. Thus, the only people for whom genetic testing would likely disestablish paternity under § 43-1412.01 are those men whose paternity was decreed in a dissolution order based on the pre¬sumption of paternity and without resort to genetic testing. If § 43-1412.01 were read as inapplicable to those presumed fathers, it would be largely meaningless.

Express Propositions of Law created by Cesar and Jeremy


“what if”?

The 10- and 20-year group level term life insurance plans sponsored by NSBA can help protect you and your loved ones. THESE PLANS, SPECIFICALLY DESIGNED FOR NSBA MEMBERS, OFFER: • Life Insurance protection with coverage amounts available up to $1 million for members and $500,000 for spouses.

IT MAY BE TIME TO REEVALUATE YOUR LIFE INSURANCE NEEDS IF . . . You’ve recently experienced major life changes.

• Member support from dedicated customer service professionals.

Your employer offers inadequate life insurance.

• Simplified solutions and hassle-free application process.

Your financial situation has recently changed.

• Portable benefits that enable you to take your coverage with you, regardless of your employment situation. HELP SECURE YOUR FINANCIAL FUTURE AND PROTECT THE ONES YOU LOVE WITH THE NSBA-SPONSORED 10- AND 20-YEAR GROUP LEVEL TERM LIFE INSURANCE PROGRAMS.

You think you may be paying too much. You’re not sure how much coverage you may need. Your spouse needs coverage.

For more information (including costs, exclusions, limitations and terms of coverage), call 1-866-236-6582 or visit

Underwritten by The United States Life Insurance Company in the City of New York Plans may vary or may not be available in all states.

AR Ins. Lic. #245544 CA Ins. Lic. #0633005

d/b/a in CA Seabury & Smith Insurance Program Management 56013 (7/12) ©Seabury & Smith, Inc. 2012




1. Neb.Rev.Stat. § 43-1412.01 2. § 43-1412.01 does apply to children born between two (Reissue 2008), Nebraska’s disestablishment of paternity 56013 NSBA Ad married people during the course of a marriage, after entry of a statuatue overrides res judicata principles applying Trim to Size: both4.875" x 8.5" Bleed: N/A Decree of Dissolution disolving the marriage. when a child is born into a marriage as well as to Folds paternity to: na Perf: na Colors: Black determination when a child is born to unmarried parents. 3. By use of the phrase “may set aside” the disestablishment Stock: 80# Postage: na 8 Misc: na

j u ly / a u g u st 2 0 1 2

cesar v. alicia & Its progeny of paternity statute inherently gives the court discretion under its equity powers to determine to determine whether disestablishment of paternity is appropriate in light ob both the adjudicated father’s interests and the best interests of the minor child. 4. 60 days after the signing of a notarized Acknowledgment of Paternity Form by both parents, the acknowledgment becomes the “equivalent” of a court order adjudicating paternity. 5. 60 days after the signing of a notarized Acknowledgement of Paternity, paternity may only be set aside on the basis of fraud, duress, or material mistake of fact. (See Neb. Rev. Stat. § 43-1409).

Inferential propositions of law created by Cesar and Jeremy 1. After 60 days, a notarized acknowledgment creates a more binding parental relationship than a marriage or of a Decree of Paternity entered without an acknowledgment of paternity. 2. Findings of paternity are legal determinations “at law”, but the order setting aside of the same is equitable in nature due to the stautory language “may set aside” contained in Neb. Rev. Stat. § 43-1412.01. 3. A party is no longer barred by the statute of limitations beyond 4 years if a certified copy of the notarized acknowledgement of paternity is attached to Complaint for Initial Custody Determination or Complaint to Establish Paternity. 4. If a certified copy of an acknowledgment is attached to Complaint for Initial Custody Determination, a court should also now have authority to hear temporary motion on support and temporary custody even if paternity has not been admitted in the pleadings. 5. Neb. Rev. Stat. § 43-1412.01 (Reissue 2008), the de-establishment of paternity statuatue overrides res judicata principles applying to both when a child is born into a marriage as well as to paternity determination when a child is born to unmarried parents (but not if an acknowledgment is signed). 6. The marital presumption codified at Neb. Rev. Stat. 42-357 may now be challenged not only during a divorce proceeding, but after it has concluded. 7. Birth certificates now carry less weight in a marriage towards determination of paternity. 8. Those who establish their paternity by acknolwedgement out of wedlock face a greater evidentiary burden to set aside a finding of paternity than those who have children in a marriage, or those whose paternity was determined in a paternity action, but by some other means than a notarized acknowledgement of paternity. The above propositions of law, express and implicit, drawn THE NEBRASKA LAWYER


from Cesar and Jeremy, expose inconsistent public policy between disestablishment of paternity for children born out of wedlock and during the course of a marriage.

Issues created but yet to be addressed 1. Does signed acknowledgement give rise to a presumption of common law joint custody? Prior to Cesar, an unwed mother was entitled to automatic custody. See Coleman v Kahlers, 17 Neb. App. 518 (2009), and State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 8, 679 N.W.2d 749, 756 (2004). 2. Retroactivity of Child Support – a) If an acknowledgement is the equivalent of a judicial finding of Paternity, should there be retroactivity of support as to both parents as opposed to just father? b) Should there be retroactivity to birth or just for the months in which a parent is not living with child. That is - should there be a presumption of financial support when either party is living with the child?

3. From a public policy standpoint, if the mother or father can file for disestablishment of paternity when a child is any age, should there be a four year statute of limitations on a mother or a putative father from bringing suit for paternity, particularly when the statue can bring suit up until age 18 of a minor child? 4. The Court’s decision in Cesar and Jeremy, magnifies the State’s different treatment of disestablishment of paternity as between those who have children born in and out of wedlock. As such, it is probably only a matter of time before someone challenges the constitutionality of Neb. Rev. Stat. §§ 43-1409 and 43-1412.01 on equal protection grounds. Under such a challenge, the Supreme Court would review these two statutes under a middle tier level of scrutiny as illegitimacy is considered a quasi-suspect classification. This standard or review requires the government to show that the classification serves an important interest and that the classification is at least substantially related to serving that interest. Just reading the language of this standard would suggest that the two statutes discussed herein are at least susceptible to being attacked.

Useful Forms (for the time being) 1. Complaint for Initial Determination of Custody, Parenting Time, & Support. 2. Complaint to Set Aside Legal Determination of Paternity Copies of the above two forms may be obtained by going to website for Koenig│Dunne Divorce law at www., click on the link “In the Media” and then on the “publications” link.

j u ly / a u g u st 2 0 1 2

cesar v. alicia & Its progeny

Ideas for Legislative Reform Question - should an acknowledgment prevent one from challenging paternity in Nebraska when one can challenge paternity in any other situation including: 1. After a marriage; 2. Paternity judicially established but without the presence of a notarized acknowledgment; 3. Paternity judicially established when father admits paternity in the pleadings; and 4. Paternity judicially established through default. To make the statutes regarding the legal effect of acknowledgement and setting aside of paternity fundamentally consistent from a public policy standpoint, the legislature should consider the following reforms: • Delete the language providing the basis for rescinding acknowledgement under §43-1409 after 60 days and add language providing that after 60 days, paternity may be set aside with the results of a reliable genetic test, but also mandating the appointment of an attorney for the minor child in such situations. Also add language providing that the finding of the existence of an in loco parentis relationship shall nullify the legal effect of a genetic test excluding a party as the biological father of a child.

Citing a law review article from the University of Maryland Law School, the Supreme Court, in Jeremy, stated that “[w]ith changing societal values regarding illegitimacy and the advent of genetic testing, the marital presumption has become less important as a tool for ensuring a child’s support by both parents.” 283 Neb. 340, 360-361 (2012). The above suggested legislative reform would accomplish several objectives: A. First, the changes would result in consistency between the divorce and paternity statutes from a public policy standpoint on the issue of when disestablishment of paternity is appropriate; B. The reforms would also result in equal treatment of those who have children in and out of wedlock, and therefore, likely prevent eventual constitutional challenges based on a violation of equal protection; and C. Maybe most importantly, such changes would also strike a balance between the rights of adjudicated fathers who, perhaps, may have been tricked as to their belief of biological paternity and the best interests of children when formal establishment of an in loco parentis relationship is appropriate.

• 60 days after the execution an acknowledgment of paternity an Order should be automatically issued by the Courts establishing paternity (parentage), and sent to both parties informing both of their right to file for an initial custody determination if and when they no longer reside together.

Admittedly, this author’s suggested reform, while providing public policy consistency in a statutory scheme, may not advance the cause of judicial economy. Some may argue that the courts will now become more congested with claims of fathers and mothers attempting to disestablish paternity and the accompanying obligation of support. However, §431412.01 permitting disestablishment of paternity was enacted for over four years, and I have had heard no such complaints. Furthermore, should public policy regarding the rights of individuals and children be sacrificed for the fear of an increase in litigation?

• Delete the language in §43-1412.01 preventing one from de-establishing paternity where there has been a signed acknowledgement; • Add language to §43-1412.01 providing that the Court’s finding of the existence of an in loco parentis relationship shall nullify the legal effect of a genetic test excluding a party as the biological father of a child; and • In light of the Supreme Court’s decision in


Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004), which prevents the admissibility of the testimony and report of most guardian ad litems appointed in custody cases, the language in §43-1412.01 mandating the appointment of a guardian ad litem for the minor child should be replaced with the appointment of an attorney for the minor child in each such case.


j u ly / a u g u st 2 0 1 2

feature article

Recent Supreme Court Arbitration Rulings Affect Employment and Class Action Arbitrations by Professor Kristen M. Blankley 1

The United States Supreme Court remains active in the area of arbitration law, deciding between one and three arbitration cases per term over the course of the last five or so years. Despite their recentness, many of these arbitration decisions are already considered “landmark” cases, drastically affecting the way attorneys, arbitrators, and judges approach arbitration cases. This short article recounts some of the most important arbitration decisions of the last decade, focusing on cases relating to labor and employment issues and class action issues. The first section of this article considers cases dealing with labor and employment issues, as well as statutory issues. This section focuses primarily on the 2009 case of 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456 (2009), which upheld the enforceability of a provision in a collective bargaining agreement (CBA) requiring individual union

Professor Kristen M. Blankley Professor Kristen M. Blankley joined the UNL Law faculty in 2010. She received her B.A. and graduated summa cum laude from Hiram College, and received her J.D. from the Ohio State University Mortiz College of Law. After law school, she clerked for the Honorable Eugene E. Siler on the Sixth Circuit Court of Appeals and the Honorable Kermit E. Bye on the Eighth Circuit Court of Appeals. She then practiced at the Columbus, Ohio office of Squire, Sanders & Dempsey, LLP. Professor Blankley teaches alternative dispute resolution, advocacy in mediation, mediation, and arbitration. THE NEBRASKA LAWYER

members to arbitrate their statutory claims. The second section of this article primarily considers the Stolt-NielsenJackson-Concepcion “trilogy” of cases dealing with class action and arbitrability issues.

Part I – Labor/Employment and Statutory Claims Cases Until the Pyett decision, the realms of labor arbitration and employment arbitration remained relatively separate. In the employment sphere, the Supreme Court has consistently enforced arbitration agreements between employers and individual employees following the 1991 landmark case of Gilmer v. Interstate/Johnson Lane Corp, 500 U.S. 20 (1991).2 The Gilmer Court essentially held that employees can effectively vindicate their statutory rights in the arbitral forum and that the waiver of a jury trial was not a waiver of the protections afforded by the employment statutes, such as the Age Discrimination in Employment Act.3 Unlike the area of employment law, the precedent in the area of labor law was considerably less favorable towards arbitration of statutory claims of individual union members. In 1974, the Supreme Court decided in Alexander v. Gardner-Denver, 415 U.S. 36 (1974), that an employer could not compel a unionrepresented employee to arbitrate statutory claims because of the potential conflict of interest between the union and the employee.4 In Wright v. Universal Maritime Services, Corp., 525 U.S. 70 (1998), the Court further held that a unionized employee could not be required to submit a statutory claim to arbitration unless the CBA “clearly and unmistakably” waived the judicial forum within the CBA. Prior to Pyett, however, many lower courts, as well as many practitioners, read Gardner-


j u ly / a u g u st 2 0 1 2

rulings affect employment and class action arbitrations Denver and Wright to mean that unions could not waiver the judicial forum for the resolution of individual union member’s cases involving statutory rights.

the Pyett decision simply answered the open question in Wright regarding the ability of a union to waive the judicial forum for its members for the resolution of statutory rights.

The Supreme Court in Pyett, however, held exactly the opposite. The Pyett case involves a CBA for a group of employees in the building-services industry, such as cleaners, porters, and doorpersons. The CBA specifically required that claims for discrimination falling under Title VII, the ADA, the ADEA, and other similar laws “be subject to the grievance and arbitration process . . . as the sole remedy for violations.” Pyett, 129 S. Ct. at 1461. The Court flatly rejected the argument that a collective bargaining unit could not waive the judicial forum for the resolution of the employee’s individual statutory rights. Id. at 1464. The Court rejected the employees’ argument that “the arbitration clause here is outside the permissible scope of the collective-bargaining process because it affects the ‘employee’s individual, non-economic statutory rights.” Id. (internal quotation marks omitted). According to the Court, if a union wanted to waive the judicial forum in these cases, such a concession on the part of the union could be made “in return for other concessions from the employer[, and that c]ourts generally may not interfere in this bargained-for exchange.” Id. In other words, the litigation forum can be bargained for in the same manner as wages, hours, and other terms of the agreement.

Although not a labor decision, the 2012 decision in Compucredit Corp. v. Greenwood, No. 10-948, 565 U.S. ___ (2012), further upholds the ruling in Gilmer and continues to support the arbitrability of statutory claims. Compucredit involves a class action claim by consumers under the Credit Repair Organizations Act (CROA) for alleged misrepresentations made to them regarding the available credit limits under certain credit cards and the fees associated with those cards. Id. The CROA requires that creditors give certain notices to cardholders, one of which states that the cardholders have a “right to sue a credit repair organization.” Id. The act also has a non-waiver provision, meaning that any attempt by the credit repair organization to waive the protections of the statute would be void. In Compucredit, the plaintiffs received the requisite disclosure, but the contracts also had arbitration agreements.

With respect to the Denver-Gardner line of cases, the Court read that case (and cases following Gardner-Denver) as one not involving a contract that provided for the arbitration of statutory claims. Id. at 1467 (citing Gardner-Denver, 415 U.S. at 49-50). Instead, the Court read these cases for the question of the procedure involving subsequent litigation in cases in which the CBA covers some grievances (non-statutory) but not others (statutory claims). Id. at 1468-69. The Court also rejected the conflict-of-interest argument, holding that “unions certainly balance the economic interests of some employees against the needs of the larger work force . . . [b] ut this attribute of organized labor does not justify singling out an arbitration provision for disfavored treatment.” Id. at 1472. Given that statutory claims can be arbitrated, the second question for the court was an easy one – does the ADEA permit the arbitration of claims falling under the statute? Clearly the answer to this question is “yes,” and has been “yes,” ever since the Court decided Gilmer in 1991. On this point, the Court stated that the “Gilmer Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.” Pyett, 129 S. Ct. at 1465. The Court reaffirmed its earlier precedent that the “waiver” involved in the case is not the waiver of a statutory right, but only the waiver of a judicial forum. Id. (citing Wright, 525 U.S. at 80). Given that the waiver in this case was clear and unmistakable, THE NEBRASKA LAWYER


The question for the Court was whether the arbitration agreement constituted a waiver of `the “right to sue” provision, thus voiding the contractual requirement to arbitrate. Unsurprisingly, the Court found the claim arbitrable and found that the requirements under the CROA are to provide a Congressionallywritten notice to consumers, and nothing more. Id. Just as in the long line of cases culminating with Gilmer, the Court examined the legislation at issue to determine whether Congress intended to preclude the waiver of the judicial forum in cases falling under the statute. Id. (citing Gilmer, Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (1987) (involving RICO), and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 472 U.S. 614 (1985) (involving the Clayton Act)). The Court found nothing in the text of the CROA that would guarantee a judicial forum but only that the power to impose liability (be it in a specific court or in arbitration) be preserved. Id. If Congress had intended to provide a judicial forum, the Court reasoned that the legislation should have specifically stated that arbitration of such statutory claims not be allowed. Because Congress was not so specific, then the arbitration of such claims is not prohibited. Reading Compucredit and Pyett together, the Court has continued its strong pro-arbitration stance in both the labor context and the statutory context. If Congress does not intend for the arbitration of claims under certain statutes, then the burden is on Congress to put within the text of the legislation (or clearly within the legislative history) language indicating that parties cannot waive their right to a judicial forum for resolution of disputes under the statutes. Simply making a judicial recourse for wronged parties is not enough because the Court has now consistently held that the provision of a judicial forum is not necessarily a barrier to the arbitration of cases under those statutes. On the Congressional side, recent years have shown some signs of increased activism on the part of Congress to j u ly / a u g u st 2 0 1 2

rulings affect employment and class action arbitrations intervene and limit the ability of parties to arbitrate. Over the course of the last five years, Congresspersons have introduced differing versions of the Arbitration Fairness Act (AFA) that would have the effect of nullifying all pre-dispute arbitration agreements in the employment, consumer, and civil rights contexts. Although the passage of such a broad AFA appears unlikely (and likely ill advised) in today’s political climate, recent attempts to limit arbitration in certain contexts has been a more successful solution for anti-arbitration supporters. For instance, Congress passed the Jamie Leigh Jones/Al Franken Amendment, which prohibits the use of pre-dispute arbitration agreements for tort claims (such as battery or sexual assault) in employment agreements with defense contractors. Similarly, Al Franken (and others) introduced the Consumer Mobile Fairness Act (CMFA), which would invalidate pre-dispute arbitration clauses with consumers purchasing wireless services. At this time, it is still unclear how many CBAs will include Pyett-inspired arbitration clauses covering statutory claims, and the commentators have certainly split on whether such clauses are a good idea.5 Given the Supreme Court’s consistent rulings with respect to arbitrability of statutory claims, unless Congress intervenes in a systematic way (such as through a bill like the AFA) or in a piecemeal, industry-specific manner (such as the CMFA), those with contracts to arbitrate statutory claims will likely be unsuccessful in arguing that they cannot vindicate their statutory rights in the arbitral forum.

Part II – Cases Involving Class Actions and Arbitrability The second line of noteworthy cases of the past few years deals with the issues of class actions and arbitrability. Class action arbitration is an important topic in employment law, and these cases are equally applicable to the employment context, although they involved factual situations in the consumer and commercial contexts. The first class-action arbitration case the Supreme Court decided was Green Tree Financial Corp. v. Bazzle, 538 U.S. 444 (2003). The Bazzle case concerned the issue of who decided whether claimants in arbitration could proceed as a class when the arbitration clause at issue does not address the issue (i.e., the clause is “silent”). A plurality of the Supreme Court ruled that the arbitrator – not the court – should have decided whether the class procedure was supported by the arbitration clause. Following Bazzle, the American Arbitration Association (AAA) responded and created Supplemental Rules for Class Arbitrations (Supplemental Rules) and a public Class Arbitration docket.6 Under the Supplemental Rules, arbitrators are tasked with determining whether a silent contract supports a class arbitration. Supplemental R. 3.7 The AAA created a successful class arbitration program, handling hundreds of cases.8 THE NEBRASKA LAWYER


One of the cases to go through the AAA process was StoltNielsen, S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010). Stolt-Nielsen involved a case between business parties in an international shipping contract. The arbitration agreement at issue did was silent on the issue of class arbitration, and the AAA arbitrator ruled that the silent clause could be construed to support class arbitration. Id. at 1765-66. The Stolt-Nielsen court held that a silent arbitration clause cannot be read to permit a class-action procedure, and that the Bazzle case did not support the proposition that a silent clause could be read to permit such a procedure. Id. at 1772. In fact, the Court went so far as to hold that the arbitrators “exceeded their powers” under §10 of the FAA, which is a standard of review considered to be quite limited. The Supreme Court found that a silent clause did not evidence an agreement to participate in class arbitration “because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator.” Id. at 1775. The Court stressed the differences between bilateral arbitration and class arbitration, such as the number of parties, the lack of confidentiality, the involvement of absent parties, and the stakes involved in the case. Id. at 1776. Under these circumstances, the Court ruled that parties could not have a class procedure if the agreement to arbitrate is silent on the issue. The Court’s more recent decision in AT&T Mobility v. Concepcion, No. 09-893 (2010), takes the Stolt-Nielsen decision a step further. While Stolt-Nielsen dealt with a case involving an arbitration clause silent on the issue of class actions, the Concepcion case involved an express ban on the use of classwide arbitration. The plaintiffs in Concepcion filed suit against one of AT&T’s predecessors to recover false advertising damages in the amount of $30.22 per person in fees charged for a “free phone.” The plaintiffs claimed that the class action arbitration ban was unconscionable under California law. At the time, California law included an unconscionability test known as the Discover Bank test that invalidated class action waivers in the consumer context if the plaintiff could prove that the dispute involved predictably small amount of damages, and that the party with the greater bargaining power carried out a scheme to exploit a large amount of people out of a small amount of money each. The lower courts found the class action waiver unconscionable and void under the Discover Bank rule. The Supreme Court reversed the decision, holding that the FAA preempted the Discover Bank rule. The Court held that, although the Discover Bank rule did not single out arbitration in its text, the rule would have “a disproportionate impact on arbitration agreements” and “interferes with arbitration. Id. The Court then reaffirmed its decision in Stolt-Nielsen, again emphasizing the differences between bilateral arbitration and class arbitration. Those differences include the fact that class

j u ly / a u g u st 2 0 1 2

rulings affect employment and class action arbitrations arbitration is “slower, more costly, and more likely to generate procedural morass than final judgment.” Id. The Court was also concerned about the increased required formality of class arbitration and how bilateral arbitration was not intended to have such procedural formality. The Court also expressed skepticism on the part of the arbitrators’ ability to handle class cases. Thus, under Concepcion, class action waivers appear to be enforceable. Reading Stolt-Nielsen and Concepcion together, the only way that consumers (or employees, for that matter) can have a class action procedure in arbitration is if the parties specifically allow for class arbitration, which is highly unlikely. For companies and employers, now, all they need to do is to not say anything at all about class arbitration to prohibit the action, and the waivers are less likely to be found unconscionable following Concepcion. The final case in the recent arbitration “trilogy” is the 2010 case of Rent-a-Center v. Jackson, 130 S.Ct. 2772 (2010). Although Jackson does not deal with class actions, it does deal with the power of arbitrators to determine questions of arbitrability. Jackson involved an employment claim and an arbitration agreement that gave the arbitrator the ability to determine his or her own jurisdiction (the “delegation clause”). Jackson challenged the arbitration agreement as unconscionable, and the question before the Court was who was to decide the question of unconscionability. Applying the “separability” principles of Prima Paint, the Court held that any challenge to an agreement with a delegation clause could only be leveled against the delegation clause. In other words, the unconscoinability challenge could not be made to the arbitration agreement as a whole, but only to the delegation clause. Id. at 2780. The fallout of Jackson is that an increased number of decisions can be delegated to an arbitrator, including decisions regarding the creation of the arbitration agreement. After Jackson, companies would be well advised to include delegation clauses in their contracts in order to insulate the agreement from challenge and to give as many questions as possible to an arbitrator and out of the courts.9 In reading all three of these cases together, the Supreme Court has been extraordinary friendly to business interests. Business can now impose upon consumers and employees arbitration agreements that require individual arbitration and that have the arbitrators, by and large, determining their own jurisdiction and the defenses to nearly all of the possible challenges to the mediation agreement.

dispute arbitration clauses in consumer and employment cases. The Supreme Court has deeply entrenched itself into these positions, and Congressional action appears to be the only way to change the precedent set forth by the Court.

Endnotes Assistant Professor of Law, University of Nebraska College of Law. J.D., Ohio State University Moritz College of Law, 2004.


In 2001, the Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, 352 U.S. 105 (2001), made clear that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., applied to all workers engaged in interstate commerce with the exception of certain interstate transportation workers, such as railroad employees or seamen.


Of course, an employee could challenge an arbitration agreement on other grounds. For instance, in Green Tree Financial Corporation of Alabama v. Randolph, 531 U.S. 79 (2000), the Supreme Court left open the possibility that plaintiffs could prove that the financial burden of arbitration could impede an employee’s ability to vindicate his or her statutory rights. In addition, arbitration agreements can be challenged on the grounds of a contractlaw defense under §2 of the FAA, such as unconscionability or duress. For a classic example of an unconscionable agreement to arbitrate in the employment context, see Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999). The arbitration agreement in the Hooters case included lopsided obligations on the parts of the employer and employee and included a provision that allowed Hooters to control the pool of potential arbitrators.


Labor unions operate to protect the majority, and not necessarily the individual employee. Accordingly, the rights of the majority will prevail over the rights of the individual if the two sets of rights conflict. For example, a union is legitimately permitted to forgo pursing some grievances to the final step (i.e., arbitration) of the dispute resolution procedure if the costs of such a procedure would pose a concern to the financial well-being of the union as a whole. Michael Z. Green, Examining the Current Merger of Labor and Employment Arbitration, 2011 ABA Section of Labor and Employment Law ADR in Labor and Employment Law Committee Mid-Winter Meeting, at 6.


See, e.g., Margaret L. Moses, The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett, 14 LEWIS & CLARK L. REV. 825 (2010); Sarah Rudolph Cole, Let the Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees’ Statutory Discrimination Claims, 14 LEWIS & CLARK L. REV. 861 (2010); David L. Gregory & Edward McNamara, Mandatory Labor Arbitration of Statutory Claims, and the Future of Fair Employment: 14 Penn Plaza v. Pyett, 19 CORNELL J. L & PUB. POLICY 429 (2010); Brendan D. Cummis & Nicole M. Blissenbach, The Law of the Land in Labor Arbitration: The Impact of 14 Penn Plaza LLC v. Pyett, 25 ABA J. OF LAB. & EMP. L. 159 (Winter 2010).


The Supplemental Rules can be found at: sp.asp?id=21936.


The Supplemental Rules provide for a three-step class-arbitration process. In the first step, the arbitrator examines the contract to determine whether a class procedure can even occur. If the case passes the first step, then the second step involves the arbitrator determining whether to certify a class, using a standard similar to the standards set forth in the civil rules (Civil Rule 23). Finally, the arbitrator decides the case on the merits. The Supplemental Rules also give the participants an opportunity to appeal the decision following the conclusion of each of these stages.


Conclusion The Supreme Court’s interest in arbitration remains strong, and the consistent messages that ring from the Court’s decisions support the arbitration of individual claims and increased power in the hands of the arbitrator. How parties – particularly businesses and employers – react will be something that time will tell, but it might be safe to anticipate increased use of preTHE NEBRASKA LAWYER


The AAA still has more than 300 active cases on its class action docket.


An argument exists that arbitrators would be more likely to rule in a self-serving manner and find that the agreements are not unconscionable so that they can keep working on the case and resolve the merits of the dispute. Any instance in which arbitrators rule on their own jurisdiction poses potential questions of bias and self-serving in the decision-making process.


j u ly / a u g u st 2 0 1 2

feature article

Untying the Gordian Knot: Law Firm Compensation by Michael Moore

Reprinted with permission of the March 2012 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, and the author.

Stymied, Alexander the Great “untied” the impossible Gordian knot by severing it with his sword. Although law firm compensation can be one of the most difficult puzzles in law firm management, solving it need not invite similar rash action. Thoughtful consideration of a firm’s culture and values will yield more effective compensation solutions, like those discussed here. In Greek legend, the Gordian knot was the name given to an intricate knot used by Gordius to secure his oxcart. Gordius, a poor peasant, was made king because an oracle informed the people that their future king would come to them in a wagon. In gratitude, Gordius dedicated his oxcart to Zeus, tying it up with a complicated knot. The oracle also foretold that he who untied the knot would rule all of Asia. In 333 BC, Alexander the Great arrived in Macedonia and confronted the legendary Gordian knot. After much struggling with the knot, Alexander became frustrated and called out, “What does it matter how I loose it?” With that, he drew his sword and in one powerful stroke, cut the knot. For many lawyers and law firms, such a bold decision to cut, rather than untie, their own Gordian knot of compensation issues may be appealing, but it would be short sighted. Effective compensation solutions require a more thoughtful approach.

Michael Moore Michael Moore, Lewis and Clark 1983, is a professional coach for lawyers and the founder of Moore’s Law, Milwaukee. He focuses in marketing, client development, and leadership coaching for attorneys at all levels of experience. He also advises law firms on strategic planning and resource optimization. He has more than 25 years’ experience in private practice, as a general counsel, in law firm management, and in legal recruiting. For more information, visit THE NEBRASKA LAWYER

How Compensation is Handled Affects a Firm’s Culture and Values Compensation often is one of the most controversial topics in law firm management. This article reviews the most common compensation systems, how each of them rewards specific behavior patterns, and why effective compensation systems must be aligned with a law firm’s culture and values. Whether lawyers are forming a new firm or dealing with existing systems, they should be cautious with compensation decisions because simply improving short-term personal rewards may create negative and long-term damage to their law firm’s culture and values.

Understanding Effective Compensation Planning There is no magical compensation system that will satisfy all partners, meet all strategic goals, and last forever. One easy approach is to increase the compensation of the most productive lawyers and decrease it for the least productive. This approach, however, requires agreement on the law firm’s definition of productive. Lawyers must believe they are compensated fairly for their contributions to the firm; however, this requires agreement on the firm’s definition of fairness. Compensation planning also requires that partners develop an understanding of the respective value of rainmakers, client minders, and hourly grinders. The most effective compensation systems reward different contributions to the firm’s overall success.If handled incorrectly, a law firm’s compensation system also can become a strategic liability, because inadequate compensation will have a negative effect on the firm’s ability to recruit and retain successful lawyers. In compensation planning, one size definitely does not fit all.


j u ly / a u g u st 2 0 1 2

untying the gordian knot

The Starting Point When creating an effective compensation system, a firm must make certain basic decisions. Among these are the following: 1. Who, or what body, will make the compensation decisions? 2. Will compensation be set prospectively (that is, determined in advance of the year) or retrospectively (that is, determined when year-end results are known)? 3. If part of compensation is profit distribution, will the profit be what is left after overhead is paid or will the profit be what is left after salaries and draws are paid to partners in addition to their overhead contribution? 4. Will there be a class of nonequity partners that is not entitled to share in the final distribution of profits?

A firm also must measure and track certain data, such as personal productivity (hours billed multiplied by hourly rate), origination (how much business a specific lawyer brings in the door), and client management (the client relationships a lawyer is specifically accountable for). Also consider other intangibles like pro bono hours and involvement in firm management, mentor programs, and committee service.

Different Ways to Split a Dollar Law firm compensation systems generally fall into five basic categories.1 Equal partnership. Smaller firms often use this system. Because all partners basically share in profits equally, the paramount financial concern is firm profitability. Individual performance is much less important than how well the firm does as a whole. This approach allows for individuals to have positive years and down years, as long as overall the firm does well. Usually, performance is averaged over three to five years, as opposed to limiting compensation measurement to a single year’s results. The major problem with equal-partnership systems is a lack of incentives. There is no financial reason or reward for an individual partner to push beyond “normal” partner performance levels. There usually is little individual financial difference between the partner who works 12-hour days and the partner who plays golf twice a week. There is no perceived or real value in working harder. Therefore, partners who are more profitable, put in more hours, bring in more clients, or make valuable nonbillable efforts often leave to join firms that better appreciate and financially reward their efforts. In an equal-partnership firm, eventually only the low-performing partners remain, profitability declines, and the law firm dissolves. Modified Hale and Dorr (incentive system). In the 1940s, the Boston law firm Hale and Dorr created one of the first incentive-based compensation systems. The firm created three THE NEBRASKA LAWYER


categories in which a partner could earn income: “Finder” (originator of the client), “Minder” (responsible for the client), and “Grinder” (the partner actually doing the work). As an example, 10 percent of receipts go to the Finder, 20 percent to the Minders, and 60 percent to the Grinders. The remaining 10 percent of receipts go to a discretionary bonus pool, which is allocated year end to the partners who have shown exceptional performance. The allocation percentages can be adjusted annually to address issues that the firm determines are the most important for the coming year. For example, a firm may choose to lower the Finders’ percentage if plenty of work is coming in, and increase the Minders’ and Grinders’ percentages so people will focus on getting the work done. If the focus needs to shift the following year, the percentages can be adjusted to influence performance in those areas. The fundamental assumption is that if everyone is individually motivated by the compensation system, the firm as a whole will do fine. Partners know exactly what they have to do if they wish to increase their income. Many partners prefer such a system because it allows them to become the masters of their own financial destiny. A problem with this system is that no rewards are built in for nonbillable time. If all the partners would equally share all the nonbillable activities required in a professional service firm, then there would be no problem. However, the reality is that firm management, training or mentoring of newer lawyers, practice-group leadership, and recruiting or committee work are not shared equally. There is little motivation to use time for these important aspects of running a profitable firm. Simple credit/unit system. The simple credit/unit formula rewards all activities (including individual production, client generation, and nonbillable activities) and seniority by using a totally objective calculation. For example, a typical formula might award each partner one credit for each year of service to the firm, one credit for certain levels of individual production (fees billed or fees received), and one credit for each client generated. The total available amount of nonbillable credits is three times the number of partners. The available nonbillable credits are allocated pro rata for nonbillable time recorded. When all credits have been allocated, they are converted to percentages and applied to the firm’s profit for the fiscal year to create each partner’s individual income. Because production is at the heart of this system, partners who may under-produce will have lower rewards. Partners know exactly what they have to do to earn the income that they desire and they know how all factors are weighted. 50/50 subjective-objective. The 50/50 subjective-objective system recognizes that both types of criteria are valuable to the firm as a whole. On the objective side of this system, 40 percent of a partner’s income is based on actual billings and 10 percent is based on client generation. On the subjective side, j u ly / a u g u st 2 0 1 2

untying the gordian knot 10 percent of partner income is based on a partner’s clientdevelopment abilities and 40 percent is based on nonbillable activities (such as firm management, training, mentoring, and firm marketing). The subjective reward is based on the collective perception of all the partners at the firm. Therefore, a low subjective reward can send a message to partners who are not perceived as positive contributors to the firm (even though they may have very good objective numbers) to improve their subjective contribution in order to improve their compensation. Eat what you kill. This system solely rewards individual efforts, with no recognition for anything beyond personal production. This type of system may charge each partner a share of firm overhead, but each partner also will pay the salary of his or her assistant. Marketing, continuing education, personal technology, and membership costs are the financial responsibility of the individual partner. Junior partner and associate time is purchased from the firm at set rates, but charged out to clients at whatever billing rate the partner thinks is appropriate. After having paid all his or her costs, the partner gets to keep 100 percent of the remaining receipts. Every partner has total responsibility for his or her income and clients. Partners know exactly what they must do to achieve the income levels they desire. The system creates an incentive for hiring and retaining only profitable, hard-working junior lawyers. It also creates a strong motivation for partners to collect their receivables, because it is their own money. The firm itself will maintain tight controls on spending, because partners will not tolerate a large overhead allocation. Unfortunately, under this system no one gets recognition for nonbillable time spent, which often creates a void when it comes to firm management, training, marketing, and human resources activities. It also does not foster collegiality or team building – other than as methods to market other partners to work for one’s clients. When uber competitiveness spreads throughout the firm, it creates a very difficult environment for most staff, including newer lawyers and even some partners. In addition, some firms using this system have problems with lawyers hoarding files and clients – sometimes even to the detriment of clients.

Features of Successful Firms’ Compensation Systems The most successful firms’ compensation systems share the following features: • Partners trust both the process and the decision makers within the process. • Effective compensation systems encourage and reward a long view and focus on the firm’s strategic goals. • Successful firms are both explicit and inventive about the methods used to evaluate and reward performance and compensation. THE NEBRASKA LAWYER

The Importance of Alignment Jay Lorsch and Tom Tierney reviewed the compensation systems of professional service firms, including top-performing law firms, in their book “Aligning the Stars.”2 They found that the most significant component of a positive (as compared to negative) compensation system is alignment of rewards with the firm’s goals. In other words, the behaviors and performance that the compensation system encourages, and therefore rewards, should represent the type of behaviors the firm wants. In addition, the dynamics of a competitive marketplace and the firm’s evolving goals will generate new demands and priorities for the compensation system. A law firm’s short-term response to any of these factors can easily throw the compensation system out of alignment with long-term goals and send conflicting messages about what the firm values. Lorsch and Tierney found that effective compensation systems among the most successful firms shared the following common factors: 1. Partners trust both the process and the decision makers within the process. This trust is most often accomplished by having a great deal of transparency to whatever system is used. 2. Effective compensation systems encourage and reward a long view and focus on the firm’s strategic goals. Whether lawyers are partners or equity owners, their shared focus is to maintain the sustainability of the firm. 3. Successful firms are both explicit and inventive about the methods they use to evaluate and reward both performance and compensation. The leadership at these firms understands that measuring only a partner’s economic contribution may not measure a partner’s real value to the firm. Although it is easy to measure objective hard data (such as billable hours and receipts), it is hard to measure subjective soft data (such as client development and firm management). The most effective compensation systems track both.

The Importance of Culture In his landmark work, “Managing the Professional Service Firm,” David Maister outlines the fundamentals of success for successful professional service firms, including law firms. Maister refers to this model of success as being a “onefirm firm.”3 The one-firm firm approach centers around management practices consciously chosen to maximize the trust and loyalty that members of the firm feel both to the firm and to each other. These become a set of reciprocal, valuebased expectations. Everyone knows the values they must live by and the code of behavior they must follow. Compensation systems encourage intra-firm cooperation. The most successful firms set compensation through a


j u ly / a u g u st 2 0 1 2

untying the gordian knot judgmental process, assessing the individual’s total contribution to the firm. The compensation system reflects and supports a culture of shared beliefs about the goals and values that are important to the firm and the behaviors necessary to attain those goals. This is especially important in law firms, because lawyers value personal autonomy and personal discretion. A law firm’s dominant cultural values will have more influence on the behavior of the firm’s partners than any policy or mandate from management. Therefore, the key to the successful functioning of this kind of system is agreement on values. This is because a successful compensation system requires trust: the members must believe that the compensation decisions are made by colleagues who have the firm’s best interest as their only agenda.

generating activities, in terms of dollars and hours produced? That is, are partners paid the fees they generate (“eat what you kill”) and not as part of a firm-wide compensation system? • Are nonfee-generating activities such as firm management, marketing, training and supervision of associates, and development of management or practice areas being considered as well? • Does the law firm have an effective policy to deal with partners whose performance is below par? • Does the compensation system provide adequate incentives and rewards for associates who originate business from existing and new clients? • Does the compensation system reward lawyers who take on managerial duties, participate in executive or administrative committees, or lead a practice team?

The Importance of Values Effective compensation systems will reward behaviors that support the values of the law firm. Every law firm should define the values that illustrate its culture. As a starting point, ask “What does it mean to be a member of our firm?” “What activities demonstrate our values?” One answer might be, “Every lawyer is expected to devote full time to the business of the firm, full time being defined as billing X hours.” Another answer might recognize the value of nonbillable hours: “Activities such as client development, firm management, and training and mentoring will be valued within our compensation system.” Such a statement, however, does not mean every lawyer can do whatever he or she wants. Rewarding public service as a value does not mean the firm can allow lawyers to spend a majority of their time lobbying for a nonprofit public interest group. Rewarding service to the profession does not mean partners spending half their time in bar association committee meetings. Any compensation system that values nonbillable activities will require some level of management approval for these activities. This means that time spent effectively on managerial tasks also must be recognized and rewarded. Understand What is Broken Before Trying to Fix It Lawyers should always be aware of the need to modify compensation systems to reflect changing circumstances within and outside their law firm. Before exploring change, law firms should try to understand what partners do and do not want in a compensation system. • Does the current compensation system address current needs and priorities?

Current economic conditions require adjustments to compensation systems at many law firms. Successful law firms begin the process of updating and modifying their compensation plans by defining their values and creating a strategic plan of the goals each lawyer expects to achieve. While a simple objective compensation system based on a partner’s personal productivity may be easier to manage, it may not necessarily reward the desired behaviors or help the firm achieve its strategic goals. On the other hand, a subjective system requiring personal judgments may be perceived by some as being too unpredictable and even unfair. Often, the compensation planning process begins with an objective foundation but adds subjective factors that measure more intangible activities. The balance between objective and subjective factors depends on the unique culture, values, and behaviors the specific firm wants to reward.

Untie Your Gordian Knot Creating effective compensation systems requires lawyers and law firms to assess many variables and align these with desired values and behavior patterns. When specific circumstances require corrective action to compensation systems, thoughtful analysis and planning is better than bold quick decisions.


• Have partners accepted the firm’s compensation system, and is the system accomplishing its objectives?

Michael J. Anderson, Partner Compensation: Systems Used in Professional Service Firms (Edge International, 2001).


• Has the firm set reasonable objectives, targets, and quotas of acceptable performance for partners? • Are partners being compensated directly for fee-


A Need for Action



Jay W. Lorsch & Thomas J. Tierney, Aligning the Stars: How to Succeed When Professionals Drive Results (Harvard Business School Press, 2002).


David H. Maister, Managing the Professional Service Firm (Free Press Paperbacks, 1993).

j u ly / a u g u st 2 0 1 2

feature article

The Lawyer’s Profession Is His Life by J. William Gallup

Prior to World War ll, few people outside the Army had heard of George S. Patton. During the War, however, Patton’s name became a household word as he wrote his name across the pages of world history.

pride was reflected in the 28 stars, matching pistols, boots and spurs. He wanted the world to know that he was a soldier.

Following the War, Patton returned to America, briefly, for a tour. People who saw him for the first time were amazed at his appearance. They saw a man wearing a gleaming metal helmet with four sparkling stars in the center. He had four glittering stars on each lapel of his shirt, four stars on each shoulder, and four stars embedded in the butts of his matching ivory-handled revolvers. A total of 28 flashing stars. He wore boots and spurs, and carried a riding crop.

Another of America’s great generals and a contemporary of Patton was the equally flamboyant and egotistical Douglas MacArthur. Like Patton, MacArthur’s life was the Army, and, like Patton, he had his own inimitable style. Rather than matching pistols, boots and spurs, MacArthur featured a crushed khaki cap with a visor of scrambled eggs, and a khaki shirt, open at the neck and adorned with five stars arranged in a circular formation. He wore sunglasses, even on cloudy days, and a worn leather jacket. From his mouth protruded a lengthy corn cob pipe, which he carried as a stage prop.

Some say Patton was flamboyant. He was. Some said he was an egotist. He was. Others said he was crazy. He was. A little. Patton was all of those things and more. He was a man who loved the Army. He was proud to be a soldier and that

I have often wanted to walk into the courtroom wearing a pair of matching ivory handled revolvers, sunglasses and a leather jacket. The only reason I have never done so is because I don’t want to be committed. There will never be another Patton or MacArthur. Today they are anachronisms. They saw themselves as gladiators in the arena of battle. In their minds’ eye, they saw themselves as men of destiny. And they were.

J. William Gallup J. William Gallup was born in Three Hills, Alberta, Canada. He graduated from the University of Nebraska with B.S. and M.S. degrees and received a J.D. from Creighton University School of Law in 1964. He is a former Assistant City Prosecutor, Deputy County Attorney and Assistant United States Attorney. He is a Fellow of The American Board of Criminal Lawyers (past President) and Fellow of the American College of Legal Medicine. He served in the U.S. Army and U.S. Marine Corps. THE NEBRASKA LAWYER

The criminal defense lawyer, like the two great generals, sees himself as a gladiator and the courtroom as his arena of battle. Like MacArthur and Patton, he is an ancient knight fighting dragons, although his dragons are the bureaucracy and its constabulary. Throughout our country’s legal history, the criminal defense attorney has occupied a unique role. Winston Churchill might well have been referring to the criminal lawyer when he said: “Never have so few done so much for so many.” The history of our country is one of certain inalienable


j u ly / a u g u st 2 0 1 2

the lawyer’s profession is his life rights, and it is the criminal defense lawyer who has been the one most responsible for defending those rights. Few, however, have much good to say about those who practice in our criminal courts and this includes, I am sorry to say, some even in our profession. Few of those specializing in criminal defense work are concerned about their lack of status or recognition. Most are individuals who would be more comfortable at a convention of iron workers than at a soiree hosted by the American Bar Association. They would certainly be more warmly welcomed by the first group than the latter. There are those, however, particularly young lawyers just embarking on their careers, who feel like outcasts and suffer a lack of self-esteem because of the beating they take from the public and their own clients. It is these lawyers who need the inspiration of a George S. Patton or Douglas MacArthur. These lawyers need to know that they are special people and that they are occupying a special place in the annals of legal history. They must learn to forget that they are walking into a court of law. They must see themselves as gunfighters entering the streets of Dodge City. That isn’t a briefcase they carry. It is a six-gun. And they aren’t there for a scholarly debate. They are there to fight. And the stakes aren’t money. They are fighting for freedom, and sometimes life itself, the greatest commodities known to man. And what sort of lawyers are they who practice in our criminal courts? Are they concerned about liberty and freedom? Are they honest and reliable? I had my own image of the criminal lawyer when I took the oath on the plains of Nebraska 48 years ago. As I stood outside the Capitol, gazing at the building that houses the legislature, Governor’s office and Supreme Court, I didn’t see a beautiful brick building. In my mind’s eye, I saw a stone monastery sitting on a cliff, somewhere in Tibet, shrouded by mist and fog, housing ancient legal priests, bent over musty legal tomes illuminated by flickering candles. Later, sitting in the Nebraska Supreme Court with the other fledgling lawyers, waiting to take the oath, I gazed around at the stark, stone walls, covered with rich tapestries, and the beautiful walnut paneling behind the judges’ bench which bears the carved inscription: The eyes and ears are poor witnesses when the soul is barbarous. As the muted sunlight streamed through the leaded, stained glass windows of that mystical chamber, I was transported back



in time to another age. I was sitting in a vast, cavernous mead hall, waiting to take the oath as one of Beowulf’s warriors. I was jerked out of my reverie by the banging of a gavel and the words: Hear ye, hear ye. All those having business before the Supreme Court draw near. The Court is in session. As I sat, transfixed by what was the most memorable moment of my young life, the wall behind the judges’ bench swung open, and the seven justices of the Nebraska Supreme Court strode into the courtroom in their flowing black robes, followed by their law clerks who trailed like altar boys in the wake of priests. Suddenly, a religious atmosphere permeated the courtroom, and I felt as if I were about to be ordained, except that I was going out to seek Truth and Justice rather than the Holy Grail. Today, 48 years after taking that oath, I still feel the same way about my chosen profession and the criminal defense lawyer. The right to plead not guilty when charged with a crime is the birthright of every American citizen. Yet it is the criminal lawyer who gives meaning to those two hallowed words. He has carved out his own history and written his immortality across the pages of the nation’s trial and appellate courts. And he has done so by following a philosophy that “you can only protect your liberties in this world by protecting the other man’s freedom.” No one has ever erected a monument to the memory of Clarence Darrow or any other defender of our liberties. Courthouse rotundas are devoid of such sentiment. And Justice probably doesn’t need any monuments, as long as we have lawyers who possess the ideals of Darrow and the presence of those great generals. For the young lawyers, particularly the overburdened public defender with a legion of sometimes demanding and hard to satisfy clients, it is important to remember that you are one of a small, unique group with a mission second to none. You are the modern Clarence Darrows, and you are to the law what Generals Patton and MacArthur were to the Army. There may never be any parades for you, and you won’t wear stars or guns; but if you have the attitude it takes to be a truly great defense lawyer, the jurors won’t see a lawyer in a suit and tie or a skirt and blouse. They will see a crushed khaki hat, sunglasses, a leather jacket, and matching ivory-handled pistols.

j u ly / a u g u st 2 0 1 2

professional responsibility


Inquiring Minds Want to Know by Dennis G. Carlson

“Millions saw the apple fall, but Newton was the one who asked why.”

—Bernard Baruch

In addition to investigating grievances and prosecuting violations of the Rules of Professional Conduct, the Counsel for Discipline’s office fields questions from attorneys about ethical issues. Occasionally, however, questions of a different variety are presented. One dissatisfied complaining party asked whether the complained-against attorney was my golfing buddy. (I had a perfect defense since I have never played a round of golf in my life). An alert reader from Dallas asked by e-mail, “How often does the Counsel for Discipline have to update his picture in The Nebraska Lawyer?” (The picture is a true and accurate

Dennis G. Carlson Dennis G. Carlson became the Counsel for Discipline in 1981. Author bio He was a deputy public defender for Lancaster County from 19741981 and is a 1974 graduate of the University of Nebraska College of Law.

depiction. . . of how I looked at one point in my life.) Another recent caller, upset that her grievance was dismissed in 1992, noted that I was the one who handled the grievance and asked if I was now “quite elderly”. (I faxed her my picture.) Other questions to the Counsel for Discipline’s Office have been more serious: (1) I have been asked to donate legal services to a charity auction. May I ethically do so? Yes, if certain safeguards are in place. See Nebraska Ethics Advisory Opinion for Lawyers No. 06-11 at the website of the Nebraska Supreme Court, (2) I practice law in a small community where the pool of qualified candidates for the position of legal secretary is limited. Under what circumstances may I hire a support person now working for another law firm in the community? The ethical concern arises from cases common to the two firms in which the interests of the clients are adverse. In those cases, if the secretary has acquired material confidential information, you will have a conflict of interest unless the client of the former firm gives informed consent, confirmed in writing, or the secretary is screened from personal participation in the matter. See Neb. Ct. Rule of Professional Conduct §3-501.9(d) and (e). (3) I will be holding a large settlement for a client for an extended period of time, and the client would like to receive interest on the money. Is this possible? Yes. Money belonging to a client, of course, must be kept in a trust account. Funds which are nominal in amount or funds expected to be held for only a short time must be maintained (unless an election to decline participation is approved) in



j u ly / a u g u st 2 0 1 2

professional responsibility an account where interest is paid to the Nebraska Lawyers Trust Account Foundation. Other funds may be maintained in a trust account where interest is paid to the client. A trust account affidavit disclosing the account, however, must be filed with the Nebraska State Bar Association. See Neb. Ct. Rules §3-901 to 3-905. (4) A third party is paying my client’s legal fees. The third party is now requesting copies of my detailed billing statements. Should I release the billing statements to her? Not without the informed consent of your client. Neb. Ct. Rule of Professional Conduct §3-501.6 prohibits a lawyer from revealing “information relating to the representation of a client”. A non-client may pay a client’s legal fee if the conditions set out in Neb. Ct. Rule of Professional Conduct §3-501.8(f) are satisfied. (5) I suspect that opposing counsel has committed an ethical violation. Do I have a mandatory duty to report him? There is not a mandatory duty to report all violations of the Rules of Professional Conduct. Only conduct that raises a substantial question about the lawyer’s honesty, trustworthiness or fitness as a lawyer must be reported to the Counsel for Discipline. See Neb. Ct. Rule of Professional Conduct §3-508.3(a). (6) A family member is running for public office and wants to “park” her campaign funds in my trust account. Is this permissible? No. Funds maintained in an attorney trust account must be “in connection with a representation”. See Neb. Ct. Rule of Professional Conduct §3-501.15(a). (7) A person who is represented by an attorney has contacted me and wants a “second opinion” on the merits of her case. Is it ethical for me to meet with her? Yes. The “anti-contact” rule does not prohibit an attorney from giving a “second opinion” to a client already represented by counsel. See Comment (4) to Neb. Ct. Rule of



Professional Conduct §3-504.2: “Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.” (8) My client sent me an e-mail and made threats against the opposing party. What should I do? It depends upon the nature of the threats and whether, in your judgment, the client intends to harm the opposing party. Neb. Ct. Rule of Professional Conduct §3-501.6 states that a lawyer may reveal information, to the extent the lawyer reasonably believes necessary, to prevent a client from committing a crime or to prevent reasonably certain death or substantial bodily harm. (9) I am the guardian ad litem for a child in a divorce case. The mother, who is represented by counsel, keeps sending me e-mails and demands responses in a threatening tone. How should I handle this? You are prohibited from responding to the e-mails pursuant to Neb. Ct. Rule of Professional Conduct §3-504.2. Try contacting the mother’s attorney to explain the situation. (10) A client has a pending case and wants to hire me to handle only one aspect of the case. Is that possible? Yes. Limited representations are permitted by Neb. Ct. Rule of Professional Conduct §3-501.2. Clients must consent to a “limited appearance” in writing. Within 10 days after completion of the limited representation, a “Certificate of Completion of Limited Representation” must be filed with the court. The filing of the certificate serves as the lawyer’s withdrawal of appearance and does not need to be approved by the court. __________________________________________________ If you have a question about your ethical responsibilities, contact the Office of the Counsel for Discipline of the Nebraska Supreme Court at 402-471-1040 or 877-504-0967.

j u ly / a u g u st 2 0 1 2

At the end of the day...

Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you? YES


Does your firm’s 401(k) feature no out-of-pocket fees? Does your firm’s 401(k) include professional investment fiduciary services? Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at or by email to learn how we keep a close watch over your 401(k).

Who’s Watching Your Firm’s 401(k)? 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 (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at 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. C12-0201-010 (2/12)



j u ly / a u g u st 2 0 1 2

Nebraska Ethics Advisory Opinion for Lawyers

Applicable Rules and Comment Neb. Ct. R. of Prof. Cond. § 3-504.2. Communication with person represented by counsel.

No. 12-05

by another lawyer without the consent of the other

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.



Question Presented

[1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation.

in matters where a staff attorney working for a court is not representing a client, the staff attorney may communicate with a person known to be represented

May staff attorneys employed by a court communicate with a person known to be represented by another lawyer in matters the staff attorney is working on? The communications usually relate to providing general information about cases in the court, and a Nebraska statute encourages the court to respond to inquiries about the operations of the court.

* * * * * * * * [3] The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

Facts The request for this opinion comes from a representative of a Nebraska court. That court employs lawyers that are called staff attorneys. The activity of those staff attorneys communicating with represented litigants has been questioned by a Nebraska lawyer. The staff attorneys’ work includes, first, providing information about litigants’ rights and obligations in the court. This information is provided by a frequently asked questions (FAQ) posting on the court’s web site, by phone conversations, e-mails, or other communication. Second, the staff attorneys also request clarification of information in, and answer questions about, documents that ask for court approval of settlements. Third, staff attorneys arrange and conduct mediation sessions to facilitate settlement of pending cases. Last, staff attorneys also research and perform services typical of law clerk work for judges in any court.

[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

In doing this work, staff attorneys communicate with persons that have cases pending in the court, and sometimes they know those persons are represented by another lawyer. Usually, a communication is initiated by the represented person; but sometimes the staff attorney must initiate a communication to gain required information, give notice of action required, schedule proceedings, or the like.

[5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.

A staff attorney’s work in this connection does not include counseling, advising, or advocating for the court, even though the attorney is hired by and is working for the court. The court is a third party neutral in any litigant’s case and is not adverse to a litigant. A staff attorney’s work in this connection also does not include providing legal advice to the person with whom the attorney is communicating. Staff attorneys may refer to statutes, rules, and practices; but, when they communicate, they make a point of clarifying that they are not providing legal advice to the person. They also stress that staff attorneys do not take sides about the matter under communication and that any specific issues or disputes are decided by a judge in the case. THE NEBRASKA LAWYER

* * * * * * * * 24

j u ly / a u g u st 2 0 1 2

a matter that is subject to that lawyer’s representation with “a person the lawyer knows to be represented by another lawyer in the matter.” (emphasis added). Thus, the rule is not violated if the staff attorney is communicating with a person he or she believes to be unrepresented but who actually does have counsel, unbeknownst to the staff attorney. The word “know” is defined as denoting actual knowledge of the fact in question. However, a person’s knowledge may be inferred from circumstances. Neb. Ct. R. of Prof. Cond. § 3-501.0 (f). In all instances where a lawyer is dealing with unrepresented persons on behalf of a client, the lawyer is subject to another rule, Neb. Ct. R. of Prof. Cond. § 3-504.3, Dealing with unrepresented person.

Discussion “No contact” rule—history and purpose: ABA Model Rules of Professional Conduct § 4.2 has become known as the no contact rule. It has a long history beginning with a reference in Hoffman’s Treatise in 1836 stating, “I will never enter into any conversation with my opponent’s client, relative to his claim or defence, except with the consent, and in the presence of his counsel.” Quoted in John Leubsdorf, Communicating with Another Lawyer’s Client: the Lawyer’s Veto and the Client’s Interests, 127 U. Pa. L. Rev. 683, 684 n. 6 (1979). When the ABA began proposing model ethical codes, a predecessor of the rule was Canon 9 of the first ABA Canons of Professional Ethics, adopted in 1908. Later, it was embodied in DR7-104 and EC 7-18 of the ABA Model Code of Professional Conduct before being carried over into its present form. The rule is long-standing and has become well-known in the legal profession.

There does not have to be adversity, and the lawyer need not initiate the communication: The rule is not limited to situations where the communicating lawyer is working adversely to the represented person. It applies to a lawyer for a co-defendant in a criminal case trying to get help or favorable testimony from another defendant on the same side of the same case. 11 ABA/BNA Law. Man. Prof. Conduct 192, cited in ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995). It also applies to a prosecutor communicating with the victim of a crime when the victim has employed another lawyer to represent the victim in civil issues involving the same matter, and having similar interests, as the criminal prosecution. Nebraska Ethics Advisory Opinion for Lawyers No. 09-03.

Since all legal ethics rules are rules of reason, Comment 1 under Rule 4.2 begins by stating reasons for the rule. According to those reasons, the things represented persons are protected from are (a) possible overreaching by other lawyers, (b) interference with the person’s client-lawyer relationship, and (c) uncounseled disclosure of information. ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995) says Rule 4.2 “seeks to maintain a real barrier between the opposing lawyer and the represented person. In civil matters it may be the sole barrier between the client and an overreaching opponent.” The concurrence in that same opinion begins by stating: “There is nothing more central to what it means to be a client in the American system of justice than to know that, having hired a lawyer, the client need not worry about being taken advantage of by lawyers, with special skills and training, who represent others.” Quoted in Parker v Pepsi-Cola, 249 F.Supp.2d 1006, 1007 (N.D.Ill. 2003)

The plain text does not limit the rule to situations where the lawyer initiates the communication; the text simply says the lawyer “shall not communicate.” Comment 3 of the rule expressly states that, as soon as the attorney knows he or she is communicating with a represented person in the same matter, the lawyer must “immediately terminate” the communication. That same comment, added in 2002, states the rule “applies even though the represented person initiates or consents to the communication.” This feature gives the decision to permit or prohibit communication to the lawyer, not the client. The new Comment 3 was added in 2002 to make it clear that the protections given may not be waived by the client. ABA Report to the House of Delegates, No. 401 (February 2002).

At first blush it may seem like the reasons for the rule do not apply to the situation discussed in this opinion. After all, lawyers working for a court are not usually overreaching. Indeed, they are not even in an adversarial position with any motive to brow-beat or intimidate patrons of the court. Also, lawyers working for a court would have no interest in stealing a client away from a general practitioner; would have no reason to drive a wedge between the client and the lawyer; and, therefore, would not interfere with the client-lawyer relationship. However, as described in the facts portion of this opinion, a staff attorney may well gain uncounseled information from a communication with a represented person. All lawyers know that clients might either say too much or say things the wrong way. Therefore, staff attorneys could violate the spirit of and one reason for the rule by gaining uncounseled information while communicating with represented persons whose lawyer does not know about the communication. That being the case, it is necessary to analyze whether the staff attorneys may in fact violate the rule, not just its spirit.

There does not need to be a case or a proceeding: Up until 1995, the rule used the word “parties” instead of “persons.” This led some to believe there had to be a case or some proceeding for the rule to apply. If this belief were accurate, the rule would not apply before a suit, prosecution, claim or the like, was filed. Likewise, it would not apply to two parties that were negotiating a contract—each with his or her own lawyer. However, ABA Formal Op. 95-396 repudiated that notion and noted that even the title of the rule had used the word “person” instead of “party” (although the rule used the word “party”). A comment to the rule when it had that form indicated the prohibition was meant to apply to all represented persons, whether those persons were parties in a proceeding or not.

Staff attorneys must know the person they are communicating with is represented by another lawyer:

Shortly after publication of the 1995 formal opinion, the matter was put to rest when the ABA changed the rule by replacing

The no contact rule prohibits lawyers from communicating on



j u ly / a u g u st 2 0 1 2

Staff attorneys are not “representing a client” when communicating:

the word “party” with the word “person.” Now there is no doubt that the rule applies whether the one communicated with is a party to any proceeding or not. As long as the communication is with a represented person and the topic involves the same matter, the rule applies.

It is the committee’s opinion that the staff attorneys are not “representing a client” in situations described by the facts of this inquiry. Staff attorneys are communicating with persons in situations where the court (the entity employing the staff attorneys) is a third-party neutral. The court is not getting any legal advice, advocacy, or counsel from the staff attorneys during the communications described. The matters subject to the communications involve some matter where the represented person is using the services of the court, either as a litigant, a potential litigant, or an interested citizen.

The “authorized by law” exception does not apply: The facts of this inquiry note that there is a Nebraska statute that encourages the court employing these staff attorneys to respond to inquiries about the operations of the court. That statute authorizes the administrator of the court to staff and maintain a call center that responds to inquiries by persons the court serves about the rights, benefits, and obligations handled by the court.

The no contact rule is one of the rules of legal ethics that does not regulate attorneys in everything they do. The first words of the present rule condition application of the rule by stating, “In representing a client, . . .” When the rule was previously embodied in the Model Code of Professional Conduct (as DR 7-104), the first words were, “During the course of representing a client, . . .” Comment 4 of the present rule (in expressly allowing lawyers to give second opinions to represented persons) states: “Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.” This principle is discussed in ABA Comm. On Ethics and Prof’l Responsibility, ABA Formal Op. 95-396 (1995) in the following words:

The no contact rule has an exception and will allow a communication if it is “allowed by law.” 71 ABA/BNA Lawyers’ Manual on Professional Conduct 306. See, e.g., Smith v. Johnson, 711 N.E.2d 1259 (Ind. 1999) (court rule providing for service of complaint); Lewis v. Bayer AG, 2002 WL 1472339 (Pa. Ct. Com. Pl. 2002) (FDA regulations authorizing drug company’s mailings to putative members of plaintiff class of patients who experienced adverse drug reactions); Arizona Ethics Op. 03-02 (2003) (bankruptcy rules requiring that certain notices be sent directly to parties). Comment 5 of Model Rule 4.2 also expressly says the “authorized by law” exception may include (1) communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government; or (2) investigative activities of lawyers representing government entities before criminal or civil enforcement proceedings are filed.

[I]nvestigators themselves are not directly subject to Rule 4.2, even if they happen to be admitted to the Bar (as many FBI agents are), because they are not, in their investigative activities, acting as lawyers: they are not “representing a client.” (Then continuing in the opinion’s footnote 54) Although there appears to be no decisional authority on the point, it seems clear, and widely understood, that the fact that an investigator is also a member of the bar does not render him, in his activities as an investigator, subject to those ethical rules—the overwhelming majority of the provisions of the Model Rules—that apply only to a lawyer “representing a client.”

The committee believes an argument can be made that the “authorized by law” exception would apply to some of the activities of the staff attorneys. After all, there is a “law” that authorizes the court to answer inquiries, and it is a “law” that empowers the court administrator to staff the call center. However, the committee believes it is an argument with limited strength that should not be relied upon to justify the staff attorneys’ communications. It is the opinion of the committee that staff attorneys are not “authorized by law” to communicate with persons known by the attorney to be represented by another lawyer for the following reasons:

An Ethics Advisory Opinion, 11-04, given by the South Carolina Ethics Advisory Committee also rules that a South Carolina attorney working to conduct administrative investigations of businesses as an investigator for a U. S. federal agency is not “representing a client.” Therefore, the attorney may communicate with operators of those businesses even though the operators have employed counsel to represent them in connection with the investigations. This is true even though the attorney/investigator knows the attorney representing the target of the investigation is being purposely unresponsive and does not want the target to speak to the investigator. Obviously the attorney/investigator is making an end run around a balky lawyer. That opinion states: “Certain rules, however, by their terms apply only when a lawyer is acting in a representative capacity. Rule 4.2 is one such rule; the prohibition against communications with a represented person does not apply to an attorney who is not ‘representing a client.’”

First of all, working in connection with the call center is not the only instance of staff attorneys communicating with persons they know to be represented by another lawyer. There are also instances of communicating in connection with paperwork used to get court approval for settlements. Further, there are instances of staff attorneys communicating with represented persons in connection with a staff attorney handling mediation sessions. Second, the law does not require or expressly authorize the court administrator to have staff attorneys be among the persons communicating in connection with the call/information center. Although it may be good business to have the staff attorneys work in this regard because the statute does state that the court may provide information to users of the court about the users’ rights, benefits, and obligations, the court administrator could have someone other than licensed attorneys respond to those inquiries. THE NEBRASKA LAWYER

Some of the Model Rules of Professional Responsibility apply 26

j u ly / a u g u st 2 0 1 2

to lawyers even when they are not representing a client. One example is Rule 8.4 (b) which makes it unprofessional conduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Another example is rule 3-501.11 (d) (2) (i) which applies to a lawyer’s activities serving as a public official whether the lawyer is also representing the public entity as its lawyer or not. There are other examples of ethics rules applying to lawyers whether they are representing a client or not. According to ABA Formal Op. 95-396, previously cited, the “overwhelming majority” of the Model Rules of Professional Responsibility only apply to a lawyer in connection with work done while being a lawyer for a client. In Nebraska, there is no question that the plain language of the no contact rule restricts its application to situations where the communicating lawyer is communicating about something for which he/she is representing a client.

attorney and a bankruptcy trustee are noted as situations where the communicating lawyer can gain unfair advantage over a represented litigant by making ex parte contacts. However, these two situations are the only exceptions from the general rule that an attorney must be working in representing a client in order to be subject to the no contact rule. In the facts given with this request for an advisory opinion, it is clear that these staff attorneys are not working “in representing a client” when they knowingly communicate with represented persons. Therefore, it is the committee’s advisory opinion that there is no violation of Neb. Ct. R. of Prof. Cond. § 3-504.2 in those circumstances. In situations where a staff attorney is representing the court—in giving an opinion on the legality of an employment practice, helping negotiate and draft a contract the court is to enter into, or advocating for the court in the event of litigation or other proceedings—then the result would be just the opposite.

There are a couple of situations where the rule applies even when the attorney does not have a client. One involves cases where a lawyer appears pro se and thus does not have a separate client. In re Schaefer, 117 Nev. 496, 25 P.3d 191 (2001), documents that there is a split of authority on the point, but most authority holds that the policies served by the rule apply to pro se attorneys even though they are not communicating “in representing a client.” Id. 117 Nev. at 508, 25 P.3d at 199. A similar result is reached where a lawyer is working as a Chapter 7 bankruptcy trustee. See Virginia State Bar Standing Comm. on Legal Ethics, Op. 1861, 2/21/12. Both situations of a pro se

Conclusion In summary, after considering the Nebraska Rules of Professional Responsibility, the committee concludes that, in matters where a staff attorney working for a court is not representing a client, the staff attorney may communicate with a person known to be represented by another lawyer without the consent of the other lawyer. The committee did not consider, nor does it offer any opinion about, responsibilities under the Nebraska Revised Code of Judicial Conduct.


For your pain and relaxation needs. Myotherapy • Swedish Massage • Shiatsu • Seated Massage

Pam O’Connor, LMT, L.L.C.

Specializing in Myotherapy and Massage 4962 Grover St. • Omaha, NE 68106 (402) 305-0910 •



j u ly / a u g u st 2 0 1 2

Nebraska Ethics Advisory Opinion for Lawyers

(b) That a former client whom the attorney had advised must report his ownership of a historical antiquity if he files a Chapter 7 Bankruptcy, failed to report that asset in a Bankruptcy later filed for the former client by another attorney. (Second Fact Situation)

No. 12-06


in the absence of the client’s willingness to do so, a lawyer


This opinion will address two separate fact situations presented by separate attorneys. The opinion is combined because both requests arise out of circumstances involving the bankruptcy court and the obligation of counsel to make certain disclosures to the court or trustee, and whether such disclosures, if advisable, would violate their duty to the client and counsel’s commitment to maintain confidentiality of information received in connection with the representation.

disclose to the bankruptcy court

or trustee that his debtor/client has inherited an estate within a mandatory reporting period of


days form the filing of the petition, even though this information constitutes confidential information,

so long as the lawyer reasonably believes it is necessary to prevent the client from committing a crime or for the lawyer to comply with other law or a court order. see 3-501.6

1. First Fact Situation.

if the disclosure is based on the prevention of a crime,

The firm making the request entered into an attorney/client relationship with Client to represent him in connection with a Chapter 7 Bankruptcy. The firm thereafter filed the Petition in Bankruptcy and at the first meeting of creditors the trustee asked Client whether he received or expected to receive an inheritance within 180 days of the date of filing the Petition. Client responded that he neither received nor expected to receive an inheritance within that time period, and the firm had no reason to believe that its Client was not providing true and accurate information as of that time. Eventually the bankruptcy trustee concluded there were no assets to liquidate and abandoned the bankruptcy estate issuing a discharge to the Client.

such disclosure may not reveal past or completed crimes. where practical, when disclosure is proper, the lawyer should first attempt to persuade the client to take suitable action to avoid counsel’s need to disclose. where client refuses, disclosure adverse to

client’s interest should be no greater than necessary to accomplish the purpose required by law or the professional rules of conduct. if the lawyer knows that his client does not intend to disclose the inheritance to the bankruptcy court or trustee and that such conduct is criminal or

More than 180 days after the filing of the Petition in bankruptcy, and more than a year after the discharge the firm received a telephone call from Client to discuss an aspect of the bankruptcy. During the conversation, the firm learned from the Client that his mother had passed away 166 days after the filing of the Petition in bankruptcy, and on or about the day of the discharge. Under Federal Bankruptcy Rules the estate of a bankrupt includes “[a]ny interest in property . . . that the debtor acquires or becomes entitled to acquire within 180 days after [the filing of the Petition] . . . by bequest, device, or inheritance . . . .” 11 U.S.C. § 541(a)(5). Counsel requesting the opinion also cites § 541(h) which states in part:

fraudulent, he

“shall” take reasonable remedial measures, including, if necessary, disclosure to the tribunal. see 3-503.3(b) however, this obligation continues only “to the conclusion of the proceeding.” 3-503.3(c) if an attorney who previously advised a client about filing for bankruptcy


believes” that

failure by his former client to disclose his ownership of a historical antiquity to the bankruptcy court constitutes a crime which can be prevented by counsel’s disclosure, or counsel is compelled to

disclose by another applicable law or court order,

“If . . . the debtor acquires or becomes entitled to acquire any interest in property, the debtor shall within 14 days after the information comes to the debtor’s knowledge or within such further time the court may allow, file a supplemental schedule in the Chapter 7 Liquidation case . . . . The duty to file a supplemental schedule in accordance with this subdivision continues notwithstanding the closing of the case, . . . .”

than disclosure is permissible under 3-501.6. the duty to disclose to a tribunal under



only applicable to a lawyer who represents a client in the proceeding at issue.

Questions Presented Whether, in a Bankruptcy Court setting, a lawyer may, or has any duty to disclose the following confidential client information to the court or other proper person:

Counsel also cites In Re Scott, 385 B.R. 709, 711 (Bankr. D. Neb. 2008) as authority. There, debtor’s mother died within 180 days of filing bankruptcy and under the above statute the estate included the property debtor became entitled to inherit.

(a) That his client the debtor after filing for Bankruptcy became entitled to an inheritance which client should report to the court, but refuses to do so, which facts the attorney learned from the client after discharge in Bankruptcy had been issued and the file closed; (First Fact Situation), and THE NEBRASKA LAWYER

As part of the firm’s effort to determine its ethical duty it contacted the Nebraska Counsel for Discipline which suggested the attorney advise the Client to disclose the subject of 28

j u ly / a u g u st 2 0 1 2

to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. * * *

inheritance to the Chapter 7 Trustee, and also suggested counsel request an Ethics Advisory Opinion from this Committee as to whether the firm has a duty to disclose the inheritance to the Chapter 7 Trustee if the Client fails or refuses to do so. Thereafter counsel wrote a detailed letter to the Client disclosing what the firm had done, and intended to do, to ascertain its ethical responsibilities and further suggested that the Client “contact the Chapter 7 Trustee and disclose the inheritance.” As of the time this request was submitted, several weeks after sending the letter, the firm had not received any response from the Client.

[10] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(4) permits the lawyer to make such disclosures as are necessary to comply with the law.

2. Second Fact Situation. Counsel with this request states that Jane and John Doe came into their office for a free bankruptcy consultation. They appeared to qualify for a Chapter 7 Bankruptcy. At the consultation John Doe reveals that he owns a historical antiquity that he purchased for $5,000 and after restoration work believes it would now sell for $8,000. Client is advised that the antiquity would not be exempt from the Bankruptcy Estate. Client then states that he will transfer it to a relative so the trustee will not be aware of it. Counsel advises Client this would be a fraudulent transfer and would amount to a crime if they filed their petition in Bankruptcy and did not disclose the antiquity or its transfer.

[12] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

After paying a retainer and providing some initial paperwork the Does emailed the attorney’s office to state that the antiquity was sold to a relative for $700. The Attorney requested that the Does obtain an appraisal of the property to ascertain its true value, or he cannot represent them. They requested a refund of their retainer and stated they would not file Bankruptcy.

[13] Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(4). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the nature of the future crime, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. * * *

Several months later the attorney’s office becomes aware that the Doe’s have filed a Chapter 7 Bankruptcy through the services of another attorney. Upon reviewing the Petition they learn that the antiquity, or its transfer has not been listed with the filing even though the transfer fell within the statutory timeframe to disclose such transfers. Counsel believes such an omission could be considered Bankruptcy fraud.

Applicable Rules and Comment

Rule § 3-503.3 Candor Toward the Tribunal

Rule § 3-501.6 Confidentiality of Information

(a) A lawyer shall not knowingly:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; * * *

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(1) to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily harm; * * *

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(4) to comply with other law or a court order. COMMENT

[3] * * * The confidentiality rule, for example, applies not only THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

* * *



Circumstances often arise where lawyers are confronted with difficult decisions due to the tension that can exist between his or her duty to the client and the broader duty to the system of justice. The preamble to the Nebraska Rules of Professional Conduct, in Comment [9] recognizes this when it states in part:

Preserving Integrity of Adjudicative Process [12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

“. . . Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principals underlying the Rules. . .”

Duration of Obligation

The two fact situations presented in this Opinion illustrate the type of tension which can exist between duty to Client and a broader professional obligation to the public and as officers of the court.

[13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

We should also preface our opinion with a reminder of the limitations that often confront this Committee. We are not finders of fact, but are limited to considering the facts as stated by the attorney requesting the opinion. Moreover, we cannot interpret law beyond the Rules of Professional Conduct or resolve issues of law. That is the province of the lawyer and the courts.

Rule § 3-501.18 Duties to Prospective Client (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

1. The First Fact Situation. Here counsel is confronted with the issue of whether to disclose to the Bankruptcy Court or Trustee that his client, whom had already received a discharge, learned that his mother had passed away within 180 days of filing the bankruptcy petition and failed to disclose that fact to the Court, as apparently required by law. It is important to note that the accuracy of previous filings with the Court, at the time filed, were not affected by this later development.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. * * * Rule § 3-501.9 Duties to Former Clients * * *

A. The Duty to Maintain Confidentiality.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

The first issue is whether this information is confidential and, if so, to what extent it is protected under Section 3-501.6 of the Rules.

* * * (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

What constitutes “confidential” information covered by the Rule is broad in its scope. As stated in Comment [3] to the Rule “[t]he Confidentiality Rule . . . applies not only to matters communicated in confidence to the client but also to all information relating to the representation, whatever its source.” As recognized in one of our Opinions rendered under these Rules, maintaining confidentiality in the attorney-client relationship is of “utmost importance” and has been interpreted “broadly” to even include “publicly accessible information.” Neb. Opinion No. 09-10 (Client’s status as undocumented alien was confidential information entitled to some protection in Worker’s Compensation claim, with due regard, however,

Rule § 3-501.2 Scope of Representation and Allocation of Authority Between Client and Lawyer * * * (f) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. THE NEBRASKA LAWYER

(1) Confidentiality of Information Under Section 3-501.6.


j u ly / a u g u st 2 0 1 2

the Court within 14 days after learning of that information. 11 U.S.C. § 541(a)(5) and 541(h). Determining whether failure to do so would constitute a “crime” which could be prevented by disclosure is not within the province of this Committee to decide. However, if requesting counsel “reasonably believes” such, and the disclosure does not involve a past or completed crime, he may make the necessary disclosure after seeking to persuade his client “to take suitable action to obviate the need for disclosure.” Section 3-501.6, Comment [12]. Counsel appears to have made such effort. Then, it is still discretionary with counsel as to whether any such disclosure should be made. Factors to consider in making a decision to disclose are discussed in Comment [13] to the Rule.

for counsel’s obligation of candor to a Tribunal). The key lynchpin to confidentiality is that the information must be “information relating to the representation of a client . . . .” Section 3-501.6(a). The information that the client’s mother had passed away within the 180 day period certainly has relevance to the bankruptcy handled by counsel requesting our opinion. That fact could potentially lead to an increase in the bankruptcy estate. In that sense it relates to the representation and fits the definition of confidential information. There is a question, however, regarding the timing of receipt of the information. Arguably, the representation had concluded once the discharge in bankruptcy had been received. Assuming that to be the case, is the information still considered confidential? Nebraska Rules §3-501.9(c)(2) states that confidentiality applies to former clients and “information relating to the representation . . . .” There is no qualification expressed as to when the information is received. A recent Ethics Opinion from the State of New York concluded that: “Information acquired after the termination of a representation can constitute confidential information of a former client.” State Ethics Opinion, New York State, Opinion 866 (5/23/11). However, since the information about the mother’s death was received by counsel during a conversation with the client on an apparently unrelated aspect of the bankruptcy, this suggests that the information was revealed during the attorney/client relationship. In either case, the attorney would be obligated to treat the information as “confidential,” and entitled to protection.

It is important to note, however, particularly under the facts of this request that this exception does not apply to allow the disclosure of past or completed crimes. As we stated in a 2009 opinion involving 3-501.6(b): “’To prevent a crime’ indicates disclosure is allowed if the crime is ongoing or will be committed in the future . . . . It is well settled ethically an attorney may not reveal completed crimes. ABA Formal Opinion 287; Nebraska Ethics Advisory Opinion No. 78-2.”

Nebraska Ethics Advisory Opinion No. 09-10. Therefore, in that opinion we decided that “an attorney who has an ethical obligation to protect his client’s status as an undocumented immigrant may not disclose this information under any of the permissive exceptions to confidentiality.” However, this had to be carefully balanced against the attorney’s obligation of candor to a tribunal.

(2) Propriety of Disclosure Under Section 3-501.6.

Confidential information may only be disclosed if the client gives “informed consent”, it is “impliedly authorized in order to carry out the representation”, or the disclosure is authorized by subparagraph (b) of 3-501.6. Under the facts provided by counsel, the client has not given an informed consent to reveal his mother’s death to the Court or Trustee. It would therefore also be difficult to imply any such authority under these facts.

The ABA Model Rules are considerably broader than Nebraska’s Rules in that the exceptions include disclosure to prevent fraud and to “mitigate or rectify” the results of the fraud or crime. Since our Supreme Court chose not to include these exceptions we must be careful to avoid too broad an interpretation of the phrase disclosure “to prevent the client from committing a crime . . . .” 3-501.6(b) See, e.g., Arizona Ethics Opinion 01-14 where it stated regarding its similarly worded rule, in quoting from a previous opinion, that “’a lawyer may not reveal a client’s continuing crime if such a disclosure would also reveal a past crime by the client.’”

Subparagraph (b) allows confidential information to be revealed in specific circumstances, only two of which could apply here. Subsection (1) authorizes disclosure “to prevent the client from committing a crime . . . .”, or, under Subsection (4) “to comply with other law or court order.”

Based on the facts of this case, in view of the passage of time between the death of the client’s Mother, the time required for disclosure, and the lack of any disclosure by the client, counsel must carefully evaluate whether the information he would be disclosing would amount to revealing a past or completed crime.

It is important to emphasize that under this Rule disclosure is permissive and not mandatory, because under Subsection (b) the lawyer “may” reveal the information if one of the conditions is met. Furthermore, the Rule requires that the information can be revealed only “to the extent the lawyer reasonably believes necessary” to prevent a crime or to comply with the law or court order. Under Section 3-501.0 captioned “Terminology”, it states that “’reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.”

(b) To Comply With Other Law or Court Order. Counsel may also reveal confidential information under Subsection (b)(4) if he reasonably believes it is necessary for him to “comply with other law or a court order.” This phrase by its nature leaves much to interpretation. Because it is an exception to the Rule of Confidentiality we believe it should be construed strictly to permit disclosure only if the “other law” expressly, or implicitly through the representation, places a duty on counsel.

(a) To Prevent a Crime.

Counsel cites federal statutes which require a debtor who receives an inheritance within 180 days after filing of the Petition to report that fact in a supplemental schedule filed with THE NEBRASKA LAWYER

➡ 31

j u ly / a u g u st 2 0 1 2

he take “reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Counsel has already properly informed client of his concern in a detailed letter, and warned of the potential consequences of failure to disclose.

Therefore, in this case the question is whether the cited Federal Statutes, or related procedural rules, apply directly to, and place a duty on counsel under these facts to disclose the information regarding the inheritance to the Court. Again, this is an issue of law beyond the purview of this Committee as stated in Comment [10] to the Rule, quoted in full above in the Authorities section. That comment states “[w]hether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules.”1

One final but important consideration is left. The obligation imposed by this Rule is limited in duration. Subsection (c) states that the duties in Paragraph (a) and (b) “continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.” Comment [13] further addresses this “practical time limit on the obligation . . . .” It states:

If counsel “reasonably believes” that the Bankruptcy statutes or procedural rules do place a duty of disclosure upon counsel they thereby supersede Rule 1.6 and counsel “may” make such disclosure.

“The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”

B. The Duty of Candor Toward the Tribunal Under Section 3-503.3. This Rule under Subsection (a)(1) prohibits a lawyer from knowingly making a false statement of fact or law to a Tribunal, or failing to correct a false statement of material fact or law made by the lawyer.

Unfortunately, the facts of this case do not fit neatly within the normal procedural pattern. While a discharge in Bankruptcy was issued, and the Bankruptcy case closed suggesting finality to the proceeding, the Bankruptcy Code states in mandatory terms that any entitlement to property (including an inheritance) arising within 180 days of the Petition date shall give rise to “[t] he duty to file a supplemental schedule . . . notwithstanding the closing of the case . . . .” 11 U.S.C. § 541(a) and (h). This, in the Committee’s judgment, makes that contingency by definition part of the original proceeding. It is “supplemental” thereto in order to insure that the creditors receive the benefit of the entire estate of the debtor. Therefore, as a procedural matter, the proceeding cannot be deemed concluded until the 180 days has expired because additional assets to be administered may become available during that period.

This portion of the Rule does not appear to have application because, under the facts as presented, previous representations to the Court were true and accurate. The client’s mother had not passed away and there was no expectation of an inheritance. Subsection (b) of Section 3-503.3 presents a more difficult issue under these facts. That Rule mandates that “[a] lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the Tribunal.” Obtaining a bankruptcy discharge is certainly an “adjudicative proceeding” and the Bankruptcy Court is a “Tribunal” as defined by the Rules. See, Section 3-501.0(m) defining “Tribunal.” The key issue is, therefore, is counsel’s knowledge that client’s mother passed away within 180 days of filing the Petition, combined with his knowledge that the client apparently does not intend to disclose this to the Court or the Trustee, sufficient to mandate remedial measures and possible disclosure under Subsection (b) of the Rule?

However, in the case before this Committee counsel did not learn about the inheritance until more than a year after the discharge in bankruptcy had been issued and the 180 day statutory period had expired. The facts presented do not indicate that there has been an appeal or that any portion of the bankruptcy case remains open or subject to review as described in Comment 13 to Rule 3-503.3. Under these circumstances the Committee believes that by the time counsel learned of the critical information the proceeding had concluded and any obligation he may have had under § 3-503.3 was terminated under subsection 3(c) and Comment 13 of the Rule.

If client’s conduct is “criminal or fraudulent” it is a wrong of omission rather than affirmative misconduct. This, however, does not excuse the obligation imposed by Subsection (b) which, according to Comment [12] under the Rule (quoted in full above in Authorities section) applies to “failing to disclose information to the Tribunal when required by law to do so.” Moreover, it is clear that client’s conduct is “related to the proceeding” in that any inheritance could potentially increase the size of the bankruptcy estate.

Other Ethics authorities have reached similar results. For example, in a Montana State Ethics Opinion, Opinion 112314 (undated), three scenarios in bankruptcy were considered. In the first of the three scenarios “after the bankruptcy was complete”, the client returned to the same attorney for work on a different matter and then disclosed he had not revealed his valuable baseball card collection as an asset during bankruptcy. The opinion concluded that under these facts the attorney had no obligation to disclose because the bankruptcy was now complete, although the committee said it “believes that best practices dictate that the attorney should explain to the client the repercussions of the client’s fraud and potential for future criminal charges . . . .”

The Committee cannot, however, decide whether the client’s conduct is or could be considered “criminal or fraudulent”. This involves legal issues beyond the scope of our duty as a Committee to interpret the Rules of Professional Conduct. But, if counsel requesting this opinion “knows”2 client’s failure to disclose this information to the Court or Trustee amounts to criminal or fraudulent conduct then Subsection (b) requires that THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

The North Carolina State Bar, in 98 Formal Ethics Opinion 20 (April 23, 1999) reached a similar result. There, a discharge in bankruptcy had been entered and the case closed when the attorney learned from another source (still deemed confidential information) that his bankruptcy client had inherited an estate after discharge. The client had not reported this new asset to the bankruptcy court even though the reporting period had not elapsed and “the trustee has one year to reopen the case and distribute assets.” Even under these circumstances the North Carolina State Bar held that under Rule 3.3 relating to an attorney’s duty of candor to a tribunal the attorney had no duty to report the inheritance because the proceeding had concluded “[n]otwithstanding a trustee’s ability to reopen the case . . . .” The “duty to disclose arises only during the proceedings and not thereafter.”

comply with other law or a court order.” § 3-501.6(b)(1) and (4). As previously discussed, while we cannot opine as to whether a “crime” may result from the Does’ apparent failure to list the historical antiquity or its transfer in the bankruptcy petition or schedules, counsel requesting this opinion states such an omission “constitutes bankruptcy fraud.” If counsel “reasonably believes” this is a crime and a disclosure of confidential information will “prevent” its consummation rather than reveal a past crime then § 3-501.6 permits disclosure but does not mandate it. Similarly, if counsel reasonably believes that another law applicable to him requires disclosure then he “may” disclose that information without violating Rule 3-501.6. Whether the bankruptcy statutes or rules, or other law, indeed create such an obligation is for counsel or the courts to decide.

The North Carolina State Bar did add, however, that disclosure may be made to the appropriate authority under its Rule 1.6 as an exception to the confidentiality rule “when required by law.” Or, as that opinion stated, “[b]ecause property of the estate includes property acquired by the debtor within 180 days of commencement of the case, attorney A may determine that, under 18 U.S.C. § 152, he has a legal duty to reveal information regarding the client’s estate, and that there may be criminal consequences for his failure to do so.” As discussed by us in the previous section of this Opinion, such a conclusion is beyond the scope of this Committee and we express no opinion on whether such a duty is imposed by “other law.” Suffice it to say that if such a duty is imposed, disclosure is permissive under 3-501.6.

In an Ethics Opinion previously discussed, the North Carolina State Bar considered a similar case. North Carolina State Bar, 99 Formal Ethics Opinion 15. There, client sought advice from attorney A on filing bankruptcy. After learning that he would have substantial problems with preferential payments and other obstacles to filing, client left attorney A’s office. Several weeks later at a first meeting of creditors, attorney A learns that his former client has retained attorney B who has filed bankruptcy for him. Attorney A believed that his former client intentionally failed to disclose to attorney B obstacles to filing bankruptcy that had previously been discussed with attorney A. While it is not clear that the language of North Carolina’s Rule 1.6 is the same as Nebraska’s, the opinion did refer to two exceptions similar to the ones at issue here in Nebraska Rule i.e. to prevent a crime or comply with another law. The State Bar ruled that if attorney A “knows” that the bankruptcy petition is fraudulent he may reveal the confidences of the former client to rectify the fraud. The opinion suggested the proper procedure would be to write the client first urging him to rectify the fraud and, if that was unsuccessful to disclose it to client’s current lawyer and if necessary the court.

While this Committee may not be quite so rigid as the North Carolina State Bar in its determination as to when the bankruptcy proceeding concluded, nevertheless, under the facts of the case now before us the proceedings had already been completed by the time counsel learned of the inheritance. He therefore does not have a duty to disclose under Rule 3-503.3. 2. The Second Fact Situation. Under the second fact situation the attorney there is also concerned with his duty, if any, under Nebraska Rules 3-503.3 and 3-501.6. Because of our previous discussion of these Rules regarding the first fact situation, our analysis will be more abbreviated here.

A similar result, but different approach was taken in the Montana State Ethics Opinion, Opinion 112314 (undated) discussed earlier. There, in scenario 3, a potential bankruptcy client was told by counsel his prized baseball card collection would have to be disclosed in bankruptcy. He told counsel he was going to “hold off” on the bankruptcy since he didn’t want to lose the cards. Six months later counsel saw his former potential client at a bankruptcy hearing with another attorney testifying about his assets but not mentioning the baseball cards. Relying on the wording of its Rule 1.6 (Confidential Information) and Rule 3.3 (Candor Toward the Tribunal) this opinion held that “[a]n attorney who witnesses a former potential client lie to the tribunal has an obligation to discuss the matter with the former potential client’s current attorney and, if that fails, with the tribunal.” Contrary to North Carolina’s approach, direct communication with the former client who was now represented was discouraged based on Rule 4.2 (Communications with Person Represented by Counsel). See Nebraska Rule 3-504.2.

A. The Duty to Maintain Confidentiality Under Section 3-501.6. The Does, the client in this fact situation, sought advice from counsel but later terminated the relationship and requested a refund of the retainer they paid. Other counsel was hired later to handle their bankruptcy. The Does are therefore either prospective or former clients. For purposes of this opinion it does not matter since in either case the Rules pertaining to the protection of confidential information still apply. See § 3-501.18(b) and § 3-501.9(c)(2). The information relating to the historical antiquity owned by the Does was confidential since it related to the representation, and could not be disclosed unless permitted by § 3-501.6. As in the first fact situation, the two exceptions which may apply here are “to prevent the client from committing a crime” or “to THE NEBRASKA LAWYER

This Committee is more comfortable with the Montana

➡ 33

j u ly / a u g u st 2 0 1 2

If the lawyer knows that his client does not intend to disclose the inheritance to the Bankruptcy Court or Trustee and that such conduct is criminal or fraudulent, he “shall” take reasonable remedial measures, including, if necessary, disclosure to the Tribunal. These measures, as discussed above, should include reasonable efforts to persuade the client to comply and, in the absence thereof only necessary disclosure. See 3-503.3(b) However, this obligation continues only “to the conclusion of the proceeding.” 3-503.3(c)

approach to avoid direct contact with the former client on this issue. Nebraska’s § 3-504.2 may not literally have application since counsel requesting this opinion is not representing a client in this matter.3 Nevertheless, former counsel should be able to depend on current counsel to fulfill his or her ethical responsibilities to fully explain the circumstances and potential consequences to his current client, the Does. Nor do we believe on these facts that it is necessary for counsel to insist on disclosure to the tribunal by current counsel or, in the absence thereof, he will inform the court. Current counsel is as bound by the Rules of Professional Conduct as the counsel requesting this opinion.4 Moreover, he or she should be in a better position to investigate the facts and take the proper course of action.

In the Committee’s view, under the facts of this case the proceeding had concluded where counsel did not learn about the inheritance until more than a year after the discharge in bankruptcy and the 180 day statutory reporting period had expired and no appeal or review had been undertaken.

Therefore, if counsel reasonably believes that disclosure of confidential information is necessary to prevent a crime or to comply with another law applicable to him as counsel, he may disclose that information along with his concerns to current counsel handling the Does bankruptcy. This, of course, is not to the exclusion of other disclosure requirements that may be imposed by other applicable law outside of the Rules of Professional Conduct.

Second Fact Situation

B. The Duty of Candor Toward the Tribunal Under Rule 3-503.3.

If disclosure is permitted the Committee believes the most appropriate way to do so, under these facts, is to inform the former client’s current counsel and trust him to take the proper course of action.

If counsel in this fact situation “reasonably believes” that failure by his former client to disclose the historical antiquity to the Bankruptcy Court constitutes a crime which can be prevented by counsel’s disclosure, then disclosure is permissible under 3-501.6. Similarly, disclosure is also permissible if counsel is compelled to do so by another applicable law or court order.

With regard to the application of Rule 3-503.3 (Candor Toward the Tribunal), we do not find it applicable to counsel requesting this Opinion on these facts. Subsection 3(b), which is the only one potentially relevant here only applies to “[a] lawyer who represents a client in an adjudicative proceeding . . . .” Counsel does not represent the Does, or presumably anyone else, in the Does’ bankruptcy and did not initiate that proceeding for them. It may, however, have application to current counsel if, and when the information regarding the historical antiquity owned by the Does is disclosed to him.

We do not believe 3-503.3 is applicable because it applies to a lawyer who represents a client in the proceeding at issue. That is not the case here.

Endnotes See, e.g., a North Carolina Ethics Opinion involving a similar issue of whether counsel may disclose confidential information in a Bankruptcy context. The opinion noted: “A number of bankruptcy statutes require disclosure of debtor’s assets and liabilities and other financial information. 18 U.S.C. § 152, a federal criminal statute imposes criminal penalties on ‘a person who knowingly and fraudulently conceals. . . any property belonging to the estate of the debtor . . . .” Rule 1.6(d)(3) [N.C. version of rule] merely determines whether a lawyer is permitted to disclose confidential information, not whether the lawyer is compelled to do so by law. Whether a lawyer has a duty to disclose confidential information under the circumstances described above is a matter to be determined under 18 U.S.C. § 152 and other relevant law. The determination of that legal issue is beyond the scope of this opinion.” The North Carolina State Bar, 99 Formal Ethics Opinion 15.


Conclusion First Fact Situation In the absence of the client’s willingness to do so, a lawyer “may” disclose to the Bankruptcy Court or Trustee that his debtor/ client has inherited an estate within a mandatory reporting period of 180 days from the filing of the petition, even though this information constitutes confidential information, so long as the lawyer reasonably believes it is necessary to prevent the client from committing a crime or for the lawyer to comply with other law or court order. See 3-501.6

Under the Terminology section of the Rules it states: “ ‘Knowingly,’ ‘known’ or ‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.”


If the disclosure is based on the prevention of a crime, such disclosure may not reveal past or completed crimes.

Rule 3-504.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”


Where practical, when disclosure is proper, the lawyer should first attempt to persuade the client to take suitable action to avoid counsel’s need to disclose. Where client refuses, disclosure adverse to client’s interest should be no greater than necessary to accomplish the purpose required by law or the Rules of Professional Conduct. THE NEBRASKA LAWYER

A lawyer may not assist a client in conduct that the lawyer knows is criminal or fraudulent. 3-501.2(f) The Rules of Professional Conduct mandates that counsel who violate these rules are subject to being reported to the “appropriate professional authority.” § 3-508.3.



j u ly / a u g u st 2 0 1 2

Nebraska Ethics Advisory Opinion for Lawyers

Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.

No. 12-07

Discussion Nebraska Ethics Advisory Opinion for Lawyers No. 88-3 provided:

complete records of account funds and other property shall be kept by the lawyer and shall be preserved for a period of five termination of the representation.


years after

it is not possible to state a definite time as to when closed client files may be destroyed. the retention or destruc-

Questions Presented

tion of client files is primarily a matter of good judgment, weighing the cli-

Are the guidelines provided in Nebraska Ethics Advisory Opinion No. 88-3 still applicable?

ents’ interests and expectations in the retention of file materials, the reason-

ably expected future usefulness of the

What guidelines are applicable to files held by a trustee appointed pursuant to Neb. Ct. R. § 3-328?

file contents, the careful preservation of confidentiality, and the availability of storage space.

What reasonable efforts should be made to contact clients whose files do not obtain updated contact information?

Nebraska has since adopted the Rules of Professional Conduct. Therefore, the applicability of the above has been questioned as the prior opinion was decided under the Code of Professional Responsibility. The relevant ethical rule is now as follows: § 3-501.15(a) (O)ther property shall be kept by the lawyer and shall be preserved for a period of five (5) years after termination of the representation.

Facts An attorney was appointed as a trustee pursuant to Neb. Ct. R. § 3-328 for the protection of client interests for a deceased sole practitioner. Many of the files contained original documentation, such as birth certificates. However, many of the files also did not contain updated contact information. Prior Nebraska Ethics Advisory Opinion No. 88-3 provided that a client should be asked if they wanted delivery of such documents prior to disposal with no specific time guideline. However, due to the substantial number of people that lack updated contact information, that the trustee has been unable to contact, he seeks additional guidance regarding reasonable efforts to contact such individuals and for how long that file information should be kept.

While previous there was not a specific time period, the above section now presents one. Also, under 3-501.16(d), (U)pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Applicable Rules of Professional Conduct § 3-501.15 (a) states that a lawyer shall hold property of clients or third person that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office situated. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (Emphasis added).

Also of note is § 3-501.1, which provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.” While not technically a part of the question asked, avoidance of the problem in the first place is most advisable. In “When a Lawyer Dies,” June 2006, BIOFOCAL, Peter Geraghty outlines the relevant ethical opinions and obligations particularly of a sole practitioner. ABA Formal Opinion 92-369 (1992) states, “Although representation should terminate when the lawyer is no longer able to adequately represent the client, the lawyer’s fiduciary obligations of loyalty and confidentiality continue beyond the termination of the agency relationship.” The opinion further notes, “The death of a sole practitioner could have serious effects on the sole practitioner’s clients. Important client matters, such as court dates, statutes of limitations, or document filings, could be neglected until the clients discovery that their lawyer has died. As a precaution to safeguard client interests, the sole practitioner should have a plan in place that will insure insofar as is reasonably practicable that client matters

SECTION 3-501.16 (7)(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. SECTION § 3-501.1

A lawyer shall provide competent representation to a client. THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

will not be neglected in the event of the sole practitioner’s death.” Although sanctions on a deceased lawyer would certainly have no deterrent effect on that lawyer, it seems advisable to remind lawyers that their duty continues on even after death and to have a plan in place to take care of client interests. In this regard, Arizona State Bar Opinion 04-05 (2005) suggested that a lawyer should choose a means that is not only legally effective, but also fair to and expeditious for the clients who are entitled to funds in other matters in case of death or disability. The lawyer is ethically obligated to select someone who the lawyer reasonably believes is competent to discharge those duties upon his disability or death. Similarly, Florida Opinion 81-8M (1981) states that a lawyer anticipating termination of his practice by death should dispose of all files according to his clients’ instructions. The files of those individuals who do not respond should be individually reviewed by the lawyer and destroyed only if no important papers belonging to the client are in the files... Important documents should be indexed and placed in storage or turned over to another lawyer who assumes control of the active files. 801 ABA-BNA Lawyers’ Manual on Professional Conduct 2502. Numerous other ethical opinions stress that any lawyer reviewing client files must take steps to preserve client confidentiality and may not disclose client confidences without the client’s consent. The principles in Nebraska Ethics Advisory Opinions for Lawyers 88-3 still should still be strongly considered as well as those contained in ABA Informal Opinion 1384. Opinion No. 88-3 lists the following factors in the decision for retention or destruction of client files:

considerations to keep in mind when considering whether to keep or discard a client file:

1. The file may include original documents or other property furnished by or on behalf of the client, the return of which might reasonably be expected by the client. Before destroying such documents or property, the client should be asked whether he wants delivery of them. Alternatively, the lawyer may simply deliver such documents to the client with appropriate advice regarding factors which the client should consider in determining which items to preserve. Where unable to contact the client, the lawyer should be guided by the foreseeable need for the documents in determining whether to destroy them.

6. In disposing of a file, a lawyer should protect the confidentiality of the contents.

1. Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records). 2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired. 3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer. 4. In determining the length of time for retention of disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise. 5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.

7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above. 8. A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of. CONTACTING THE CLIENT

2. An attorney must use care not to destroy or discard information that he knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which a statute of limitations has not expired.

If the attorney lacks updated information, it would seem appropriate to do a Google search, a public record search, or a Facebook search. If important or valuable materials are involved, hire a private investigator, and in the case of being unable to contact numerous people, to perhaps publish notice in a legal newspaper for that purpose.

3. An attorney must consider the reasonable expectations of the client for the preservation of files.


4. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their relevance and materiality to matters that can be expected to arise in the future.

Ethics Advisory Opinion No. 88-3 does not still control as the rules have changed, but many of the underlying reasons and conclusions remain sound. Client files may be destroyed after five years, but efforts should be put in place to make reasonable efforts to contact the client should be proportionate with the value or importance of the file materials which remain in the lawyer’s possession after the file is closed.

5. Disposition of client files must be made in such a manner as to protect full the confidentiality of the contents. ABA Informal Opinion 1384 (1977) put forth eight basic



j u ly / a u g u st 2 0 1 2


Your Questions Answered About Nebraska’s E-Filing Service

Respondents: Brent Hoffman – General Manager, William Miller - Deputy State Court Administrator for Information Technology

1. How did Nebraska’s e-filing service come about? Miller: Nebraska’s Administrative Office of the Courts (AOC) wanted to link attorneys to the court system with the country’s best, most complete online suite of services, creating a seamless process for attorneys to get information from and deliver information to any court in the state. To this end, the Nebraska Supreme Court began in January 2006 to develop a network that connects all 189 county and district courts to a central server. This infrastructure is the crucial element in the Nebraska eFiling service. Because a single system can reach all courts across the state, filing electronically can be a simple, consistent process for attorneys. The service launched in February 2007, with pilot projects used in the Lancaster District Court and the Sarpy County Court for civil cases. In August 2007, the eFiling subcommittee looked at options to further improve the application. Ultimately, was asked to build an eFiling system, which launched in April 2008. Hoffman: has been a technological partner to the AOC for many years, providing the front end for services such as online court case searches, hearing calendar searches and citation payments. Because of our familiarity with the AOC’s IT systems and priorities, as well as the constituencies it

William M. Miller & Brent Hoffman William M. Miller is the Deputy State Court Administrator for Information Technology at the State Court Administrator’s Office. Brent Hoffman is the President / General Manager at Nebraska Interactive, LLC., a private company which maintains the State of Nebraska website. THE NEBRASKA LAWYER

serves, we had a great head start on building an electronic court document filing system tailored to fit this specific need. We held several concept meetings to talk about broad requirements before going into the planning phase. We determined that, to be considered a success, the eFiling system had to be economical both for courts and attorneys, simple to navigate and easily expanded and enhanced over time. 2. How long was the e-filing system in development? What challenges did have to address, and how was that done to create a successful model? Miller: The Nebraska eFiling System was planned, prototyped, developed, tested and launched in two pilot courts in less than nine months. The Justice business and technical analysts coordinated with the team to ensure that the new service would protect individuals’ sensitive information, make the system convenient for users and save the court system time and money. After the pilot launch, there was a phased deployment schedule to get the large number of courts in the state online. Over the course of 18 months, a lot of work went into training new courts for online clerk review and setting up the secure processes to transfer filing fees electronically – all while continuing to upgrade and enhance the eFiling system. What has been created is a custom-built, comprehensive court document electronic filing system unlike what exists in any other state. Attorneys in Nebraska can file in all county and district courts through a single process, interactively online or in bulk, in real time. Nebraska’s eFiling system allows new civil case filing, as well as filing on existing civil, criminal, juvenile and probate cases. Hoffman: Because we take advantage of web services to communicate with the JUSTICE database, the eFiling service


j u ly / a u g u st 2 0 1 2

technology can pull up-to-the-minute case information. We, in turn, can insert filing actions in seconds after the clerks accept them. The new actions then are immediately available for viewing on the case by court staff, attorneys and the public. 3. What have been the results of the launch of the e-filing service through Miller: eFiling was “officially” statewide at the beginning of 2010. The only exception was Douglas County District Court, which was not eligible to participate at that point because it utilized an independent case management system. This court was integrated in 2011. Even before all courts could take advantage of eFiling, those that were saw their ability to handle incoming cases increase exponentially. Paperwork in one particularly highvolume court was backlogged nearly two weeks, but within the first month of using eFiling, that court was caught up and has been processing everything submitted to them within 24 hours ever since. In 2011, the first full year that all courts were able to accept electronic filings, we estimate that the system saved nearly 15,000 staff hours. Hoffman: The growth of eFiling has continued to exceed expectations. The first several months of the service in the pilot courts saw the numbers of filings go from around 100 to 1,000 per month. Today, processes 20,000 filings in an average month. Nearly 2,500 attorneys are registered to use

the service, and receives more sign-up requests every day. 4. The system was re-launched in 2011. What changed? Hoffman: As attorney adoption of the system increased over the first couple of years and filing volume started to rise, it became evident that the original eFiling system would need an upgrade. In 2010, and AOC began to plan for eFiling 2.0, a new version that would preserve the proven functionality of the original, operate on a new, more robust platform and incorporate a whole new suite of features that had been requested in filer feedback. The new eFiling system features a ‘dashboard’ with filing history, the ability to create a contact profile, more flexible navigation and faster filing times. 5. Besides saving state administrative costs, how does the system benefit taxpayers? Miller: In the current climate of budget cuts, access to the judicial system in a highly rural state like Nebraska can be put in jeopardy. The funding required to keep courts open and operating in the large, but less-populated, counties of the state is always in question when the entire judiciary is being asked to cut 5 percent to 10 percent of its costs. However, it always has been, and remains, very important to the Administrative Office of the Courts that Nebraskans’ access to the justice system not be compromised. Because of this, the AOC has turned to technology to not only protect access, but also to enhance it.

You don’t take chances with your reputation. Neither do we. Recommending a financial partner to your client is no small responsibility. We understand that bond of trust. The Private Client Group of U.S. Bank works closely with you and your clients to understand needs and goals and create financial strategies that fit. Good for your reputation, and good for ours. Wood Hull, PCG Managing Director / Omaha 402.536.5181 Jake Strasheim, PCG Managing Director / Lincoln 402.434.1584 Deposit products offered by U.S. Bank National Association. Member FDIC. U.S. Bank and its representatives do not provide tax or legal advice. Each individual’s tax and financial situation is unique. Individuals should consult their tax and/or legal advisor for advice and information concerning their particular situation. ©2012 U.S. Bank. All rights reserved. Investment and Insurance products are:



j u ly / a u g u st 2 0 1 2

technology 6. Have there been any challenges with the current system? If so, how have you handled them? Miller: It has been a quite a change to move from completely paper-based court filings to an electronic system. The Supreme Court did a lot of work to interpret and/or re-issue filing rules to accommodate the unique needs of online filing. The Technology and eFiling subcommittees planned and gathered input from the attorney community to be certain that whatever was developed would meet the needs of all parties. They continue to monitor progress and point the way forward. And, of course, a lot of credit goes to court staff themselves and the work that has been put in by court offices across the state. Their willingness to learn and adopt the new system has been crucial. Hoffman: From a technology standpoint, web-based systems can be tricky, in that they need to be compatible with a wide range of browsers in varying versions and innumerable combinations of users’ local operating systems. What has made eFiling successful in Nebraska is the great communication between users, courts and programmers. Anytime an issue is discovered, everyone works together to get it resolved. 7. What feedback have you received from Nebraska trial attorneys who use the electronic legal filing system? Miller: Attorney feedback on the eFiling system has been



very positive. Responses from a short survey that filers can submit are very telling. Seventy percent of respondents rated their overall satisfaction with eFiling as ‘satisfied’ or ‘extremely satisfied.’ Also, when asked to rate the statement, “eFiling has my organization’s best interests in mind,” the average response was ‘agree.’ Further, when asked about the statement, “We will continue to use eFiling going forward,” all responses were ‘strongly agree.’ The complaints we get center on features we haven’t added yet. That speaks volumes that attorneys are anxious to use the system more often and for more purposes. 8. What are your future goals for the eFiling system? Miller: The Nebraska eFiling system will continue to grow and expand. Recently, electronic judge review was added in a few pilot courts, and work is just beginning to allow for county and city attorneys specifically to file new criminal complaints. Other initiatives we expect in 2012 are the expansion of eService and bulk eFiling, which replace traditional methods attorneys use to send hard copies of filed documents to opposing and co-counsel. By the end of 2011, more than 60 percent of new civil cases in the county courts were initiated electronically. As we have already passed the halfway mark in a short amount of time, it is not unreasonable to think that, in the near future, paper filings in court offices will become the exception, not the rule. Ultimately, the strategic plan is to complete the system so that everything can be eFiled.

j u ly / a u g u st 2 0 1 2


16th ANNUAL GOLF SCRAMBLE MONDAY, AUGUST 13, 2012 Quarry Oaks Golf Club

16600 Quarry Oaks Dr. Ashland, NE 68003-3820 402.944.6000 or 888.944.6001

















































j u ly / a u g u st 2 0 1 2


Ruminations on the Ethics of Law Firm Information Security by Sharon D. Nelson, Esq. & John W. Simek © 2011 Sensei Enterprises, Inc.

Lest anyone have forgotten Rule 1.6 of the ABA Model Rules, here it is – and similar rules apply everywhere: Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(4) to secure legal advice about the lawyer’s compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(6) to comply with other law or a court order.

The trick, of course is how to keep client data secure in the digital era. It isn’t easy. Computer security is expensive – and it takes time to understand it – and you will never be done learning because technology morphs constantly.

Sharon D. Nelson & John W. Simek

Are lawyers abiding by their ethical duty to preserve client confidences? Our opinion is that they are not. Here are a few reasons why we have that opinion:

Sharon D. Nelson, Esq. and John W. Simek, are the founders of Sensei Enterprises, Inc., a company providing experienced computer forensics and information technology support to corporations and litigators nationwide. Nelson & Simek are acknowledged experts in the field, and are often on the road educating audiences across the country about technology issues for the legal profession, including the value of computer forensics. They have also written articles about technology and the law for many publications, and even co-authored three books: The Electronic Evidence and Discovery Handbook (ABA, 2006); Information Security for Lawyers and Law Firms (ABA, 2006); and The 2008 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple (ABA, 2008). THE NEBRASKA LAWYER

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

• Security expert Rob Lee, a noted lecturer from the security firm Mandiant has reported to us that Mandiant spent approximately 10% of its time in 2010 investigating data breaches at law firms. • Security expert Matt Kesner, who is in charge of information security at a major law firm, reports that his firm has been breached twice – and that he is aware that other law firms have suffered security breaches – and failed to report them to clients.


j u ly / a u g u st 2 0 1 2

technology • Our own company, Sensei Enterprises, Inc., has never performed a security assessment at a law firm (or for that matter, at any kind of business) without finding severe vulnerabilities that needed to be addressed. Why do otherwise competent lawyers fail so miserably in their ethical duty to maintain the confidentiality of client data? Here are some of the reasons. • Ignorance – they simply need education. • The “it can’t happen here” mentality. This is flatly wrong – even the FBI issued an advisory in 2009 that law firms were specifically being targeted by identity thieves and by those performing business espionage – much of it originating in China and state-sponsored, though of course the Chinese government has vehemently denied involvement in such activities. Matt Kesner, mentioned above as an expert, reports that the Chinese don’t bother using their “A” squad hackers to infiltrate law firms – their security is so bad that the rookie “C” squads are able to penetrate law firms.

• It’s expensive. And it is. Protecting the security of client data can present a big burden for solos and small law firms. This does not take away a lawyer’s ethical duty, however – and it is one reason why the authors lecture so often on computer security. Once a lawyer sees the most common vulnerabilities, he or she can take remedial steps – or engage their IT consultant to do those things that are beyond the skill of the lawyer. • Vigilance never stops. You cannot secure your data once and think you’re done – the rules of information security change on darn near a daily basis – certainly someone in the firm needs to keep up with changes on a regular basis or the firm needs to engage an security consultant to do periodic reviews – the standard advice is that security assessments need to be done twice a year. While that is desirable, it is in our judgment mandatory that assessments be done at least annually. In the paper world, keeping client data confidential was easy and cheap. In the digital era, abiding by this particular ethical rule is hard and expensive – but it must be done.

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778 THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

practice tip

Pixel Persuasion: Legal Writing for the 21st Century

by Lisa Solomon

Two important trends—one on the production side of legal writing, the other on the consumption side—are combining to make law a discipline of pixels instead of paper. On the production side, all federal courts and many state courts now require that documents be electronically filed.1 These documents can be either read on-screen or printed, whereas paper documents cannot be read on-screen. On the consumption side, there are a wide variety of devices available to facilitate on-screen reading any time and anywhere, from laptops to tablet computers to e-book readers. Fortunately, web usability research provides a wealth of data about the habits of screen readers. While there are some differences between what general website users are likely to see

Lisa Solomon

Help readers work less An overarching goal of persuasive legal writing—whether for paper or screen—is to make the judge’s (or clerk’s) job as easy as possible. You don’t want to make the reader use an excessive amount of mental energy to figure out what you’re trying to say; instead, you want the reader to conserve mental energy for deep processing and analysis. One way to help readers work less is to avoid inelegant variation. “Inelegant variation” means referring to the same thing in different ways. It requires the reader to perform the extra step of figuring out whether a word or phrase used in one part of your brief refers to the same thing as a different word or phrase used later in your brief. Be consistent: once you’ve identified Jones as a police officer, refer to him as “Jones” throughout the brief—don’t call him “the officer” in one paragraph and “the policeman” in the next.

Lisa Solomon was one of the first lawyers to recognize and take advantage of the technological advances that make outsourcing legal research and writing services practical and profitable for law firms of all sizes. Through Lisa Solomon, Esq. Legal Research & Writing (www.QuestionOfLaw. net), she assists attorneys with all their legal research and writing needs, including preparing and arguing appeals and drafting substantive motions and trial memoranda. Through Legal Research & Writing Pro (, she shows other lawyers how to start and run successful practices as contract (freelance) attorneys and teaches lawyers in all practice areas how to write more persuasive briefs. THE NEBRASKA LAWYER

on-screen as opposed to what judges and law clerks see when reading a brief on-screen (for example, there is no technologybased limit to how long an HTML website page can be, whereas a page in a pdf document corresponds to an 8.5” x 11” piece of paper) many web usability lessons can be applied to documents that are intended to be read on-screen in pdf format.

Another way to make your writing easy to understand is to use simple sentence structure. Instead of stuffing a sentence with qualifications or digressions set off by commas, communicate the same information in a few shorter sentences. Finally, you can make the reader’s job easier by laying out all of the steps of your reasoning. Make sure that you synthesize the facts of your case with the applicable legal rule before stating your conclusion.


j u ly / a u g u st 2 0 1 2

practice tip it’s reproduced as a table of contents.

Use effective headings

An effective outline has three primary characteristics. First, it follows a conventional outline structure, with the relationships among the points demonstrated textually (though numbering) as well as visually (though the physical structure):

Headings help readers in five ways: • they enable skimming • they help readers structure their mental processing of details

I. This is a main argument

• they provide a pause in the stream of text

• they help readers switch mental gears by signaling a new point

1. Subsidiary point 1 supports subpoint A

• they help readers find specific text

2. Subsidiary point 2 also supports subpoint A

There are two types of headings: informational headings and argumentative headings. Informational headings may be used in the statement of facts, to lead readers through the story of your case. Argument headings summarize the arguments that follow. They should be in the form of complete sentences (but not followed by a period) and should be phrased as positive argument for your position. Finally, don’t try to cover too much ground in a single heading: each argument heading should make only one point.

Use numbered lists and bullet points Lists help the reader process information by providing structure. List numbers or bullets are located down left side of the page, where studies show that screen readers look for structure. A brief introduction to a numbered list explaining how many items the list contains can help ensure that the reader will be on the lookout for each point. Although eye-tracking studies show that it’s easier to for readers to find information listed by numerals, rather than writing out the words for numbers, that approach isn’t common in brief writing. Because numbered lists are relatively uncommon in briefs, when a numbered list is used, it’s sure to draw the reader’s attention. Numbered lists are used when the number or order of the items is important. For example, you would use a numbered list to set forth the four elements of negligence because: (1) all elements must be present to state a prima facie negligence claim; and (2) each element presupposes the existence of the prior element—proximate cause presupposes damages, damages result from a breach, and a breach cannot exist without a duty. Bullet points are used when the number or order of the items isn’t important. You might use bullet points in a brief to provide examples of how a legal doctrine has been applied in different factual circumstances.

Use outlines Outlines make the logic of your argument visible and easier to process. Because an outline gives the reader a quick overview of a document’s contents, it’s particularly useful when THE NEBRASKA LAWYER

A. This is subpoint A


B. This is subpoint B

II. This is another main argument Second, in an effective outline, each supporting level must have at least two points. This is because an outline is a structured list of points, and one point is not a list. Thus, for every “A” there should be (at least) a “B”. Third, in an effective outline, each subsidiary heading should directly support the primary heading under which it falls. A legal reader who sees the conclusion first, then the supporting evidence, can more easily evaluate whether the subsidiary points support the conclusion.

Use effective summaries An effective summary gives readers a general framework within which to process the details that follow, and provides the most persuasive details of your argument. A long document (such as an appellate brief), should include a summary of the whole document, as well a summary of each section. Even paragraphs have summaries: they’re the topic sentences you learned about in school. A topic sentence should be at the beginning of the paragraph, so that the reader will understand the point of the information in the rest of the paragraph.

Omit words There are many ways to tighten up your writing. Two simple ways are to avoid conclusory assertions that sound important but provide little information, and to avoid using adverbs for emphasis. Of course, it’s important not to go overboard in the service of brevity. For example, don’t omit necessary legal or factual support for your argument. Instead, delete unnecessary words and recoil from redundancy. Additionally, although omitting words usually reduces sentence length, sometimes complex concepts require long or complex sentences. To make long sentences easier to understand, use “chunking” to present information in short, easy-to-digest segments. Chunking can be achieved by breaking text into visible parts, such as numbered points or entries in a chart. j u ly / a u g u st 2 0 1 2

practice tip

Apply document design principles Because judges read briefs that are broken down into pages—a traditional unit from the paper world—rather than by scrolling down from beginning to end on one screen, many best practices for designing pdf documents to be read on screen come from the print world. The primary aspects of document design applicable to briefs are font selection, the use of white space and the use of non-text visual elements. Although there are many screen-optimized fonts, the best font for on-screen pdf reading is whichever recommended font you prefer for printed documents. This is because fonts optimized for the screen don’t render particularly well in pdf format (even though they look great in word processing documents). The commonly-available Windows/MS Office fonts that Typography for Lawyers author Matthew Butterick recommends for printing (and thus for pdf documents that will be read on-screen) include Bell MT, Book Antiqua, Californian FB, Calisto MT, Century Schoolbook, Goudy Old Style, and High Tower Text. White space in a document can be created in a number of ways. To increase the proportion of white space on the page as a whole, increase margins from the standard 1” all around to 1.5”-2” on each side (you can also increase the top and bottom margins as well). To increase white space in body of the page, use shorter paragraphs and sentences; frequent headings; lists; and visuals such as charts, diagrams and images. Charts enhance the clear presentation of complex information and variable data. They can even make the



information more interesting to the reader. For example, imagine how tedious it would be to read a description of the steps shown in a flowchart. Diagrams are a good way to present information that can’t be forced into a linear order. A subway system diagram, for example, shows spatial relationships that can’t clearly be presented in text. Images can be included in the text of a brief when the appearance of something (such as a forged document) is critical to the legal issues in the case. Finally, while court rules generally don’t directly address many of the concepts discussed above, many courts—especially at the appellate level—have their own detailed rules governing document design. Where court rules conflict with principles of good document design, always follow the court rules.

Endnote According to the Nebraska Supreme Court Public Information Office, as of December 2011, 2,000 lawyers were registered with the Nebraska Judicial Branch’s eFiling system, which was then processing approximately 20,000 documents per month. http:// (last accessed April 11, 2012).


According to the Eighth Circuit’s website, its judges are “active users of electronic briefs and many of them use an e-reader to read some or all of the briefs in the cases assigned to them.” (last accessed April 11, 2012). However, the Court still requires paper briefs and records on appeal because law clerks and staff attorneys are not provided with e-readers. Id. The website further states that “the kind of detailed reading of the brief and record needed to prepare a thorough opinion in a case is still best done from printed copies,” but does not explain the basis for this statement.

j u ly / a u g u st 2 0 1 2

Recommended by Over 70 Bar Associations s e a r c h

a b o u t

h o m e

c o n t a c t

Accept Visa , MasterCard, Discover, & Amex Save up to 25% off standard fees Control cash flow & increase business Accept credit cards for retainers Avoid commingling client funds

Invoice Information Amount to Pay: Invoice #: Credit Card Information Name:

LawPay’s unique processing program correctly separates earned and unearned transactions keeping your firm compliant. The process is simple. Begin accepting payments today!

Billing Address: City: Continue

Reset Form

Accept payment online through our



j u ly / a u g u st 2 0 1 2

coaches’ corner

Celebrating the Seasons of Our Life: A Lawyer’s Summer Part 2 of a 4 part series on the seasons of our lives as lawyers

by Susan Ann Koenig

There is a measure of relief for the lawyer who finds employment, starts to get the hang of the every day practice, and settles in to a routine of heading to the office. When the spring of our career is behind us, our roots have grown down more deeply. We feel a bit more stable. Our relationships broaden as we have more people we can turn to with questions, and are a somewhat less afraid to ask them. We feel a little less like we are going to get ill when we head into the courtroom or a critical negotiation. Our skills are strengthened and we see that we can serve in the role of lawyer with more ability than ever. At this point in our professional lives, not everything is being done for the very first time, and we begin to develop a confidence that we might just make it in this profession. As we move from the spring to the summer of our careers, we can be grateful to have found a place in law and also curious about

Here are some questions we can ask ourselves during this season of our lives as lawyers.

What Do I Want to Create? “No one ever told me that there was any other way besides taking the job with a good firm and being on the partnership track,” said the mother of three. “It was like you were letting people down if you didn’t do what was expected with the education and opportunities you where given.” The challenge for the lawyer who is past the novice stage, but still relatively early in the practice, is to gain greater clarity on the life they want to create. We might ask: • Where do I see my career as I look to the years ahead? • What type of lifestyle do I want?

Susan Ann Koenig

• What type of law would I like to do more of? Less of?

Susan Ann Koenig, JD, is an executive coach and speaker who inspires and empowers successful people to make their greatest contribution. She is the author of Divorce in Nebraska and coauthor of Success Simplified---Simple Solutions, Measurable Results with Stephen R. Covey. Susan is of counsel with Koenig Dunne Divorce Law in Omaha where she contributes to the blog, Doing Divorce: A Thoughtful Discussion on Divorce at www. THE NEBRASKA LAWYER

what our future career path will look like. And while certain challenges subside, a new crop of them emerges.

• What contributions do I see I can make to my profession, my family, my community?

The more we take the time to ask these questions, the clearer the vision for our future becomes. Our focus increases when we have a better picture of what we want. Setting goals gets easier because we know the direction in which we are headed. If you feel very unsure about your future, take some time out for reflection. Unplug and spend some time in nature or just take a walk to ponder the questions. Journal. Talk to people who listen well. Consider hiring a coach. Most of all, be curious.


j u ly / a u g u st 2 0 1 2

coaches’ corner Allow yourself the time to write a vision for the life you want to create. Where would you be living? What sort of office (if any) would you be working in? What type of people would be around you? Use your imagination to describe the sights, sounds, smells, and feelings of the life as a lawyer you would love to have. This exercise can help you both explore possibilities and spot future opportunities when they arise. Step out of your analytical attorney mind and let yourself imagine.

What am I Willing to Do to Create the Life I Want?

and questions. We are used to being the smart ones with the answers. Being willing to be vulnerable and asking others for their support will be necessary if you want to build the career and life that is authentic for you. The sooner you learn the skill of letting in support, the sooner life will get easier. Here are some ways you might find support during this time of your life: • If you have not already found a mentor, now is the time.

During this stage of our life, we may know what we want to create but be unsure just how to get there. Having a plan and identifying the actions you are willing to take are essential. To help you get there, keep asking questions like these: • Am I doing work that is preparing me for where I want to go?

• Enlist the support of others in your office for shifting your workload to doing more of what you love or do best. • Remember that your family members are more likely to help if you stop doing everything for them and ask for what you need. • Consider whether it is time to expand your support at work, either through improved delegation or expanding your staff.

• Have I identified specific short term goals which will move me closer to where I want to be?

• Ask yourself whether it is time to enlist in the help of a professional in any area of your life where an expert would make your life easier.

• What skills do I need to improve in order to get to there? How can I develop them? • What obstacles will I face on this journey?

• Identify the people who are your cheerleaders, and keep sharing your vision with them.

• Am I developing habits which will serve me well into my future? • What scares me most about taking the necessary action?

Our development as lawyers begins to shift from learning the basics to gaining increasing levels of mastery. We might find this in our ability to be a rainmaker, a litigator, or a leader within the firm. In short, it is a time of tremendous growth.

Support is essential at every stage of our lives, and this one is no exception. Your mind will be tempted to say “They are too busy. Only I can do it right. They’ll think I’m weak.” You let those thoughts stop you, or you can begin to practice a vital skill for creating the life you want.

Seeking the Ever-Elusive Balance

When you see the skills you need, set upon a plan for developing them. Reading, taking classes, being mentored, and above all practicing the skills you want to master should all be a part of your plan. As discomfort or fear arise, simply recognize these as signs that learning is occurring.

Our legal career is never the sole focus of our lives as lawyers. We have our health, our families, our communities, and other passions unique to us. As our reputation grows, we get invited to be more involved in everything from our synagogue to the soccer field.

Whether you want to reduce your work hours, get elected to the House of Delegates, or hang out your own shingle, having a plan of action will move you in the direction of the life you see you long to live.

We are likely to continue to take on more responsibilities during this season of our life, rarely pausing to ask whether anything should come off of our plate. Now is a good time to ask: • How much time am I willing to give to my work each week?

Who is in My Circle of Support? Knowing where you want to go and how you plan to get there is fundamental. If getting there sounds really big to you--which undoubtedly it does---remember you don’t have to do it alone. No one ever gets to their destination in life without the support of others. The challenge for attorneys is that many of us are not accustomed to letting others help us. We are used to being the ones that others come to with their problems, fears, THE NEBRASKA LAWYER


• How important is it to me to earn certain levels of income? • Is there something I need to say “no” to? • What used to give me tremendous joy which I no longer take time for?

The temptation during this time is to think that we can or we must “do it all.” Remembering that there are seasons of our life, we can make the sometimes difficult decision to say, j u ly / a u g u st 2 0 1 2

coaches’ corner “This is not the season for this,” and to focus on what is most important right now.

challenge arises, the more clear you are about where you are headed, the easier it will be to find the path back to it, and to step onto it at any time.

Our capacity to be flexible and resilient impacts the quality of our lives. Despite our plans, events will occur which we never envisioned. The shake-up at the office, the health crisis, the loss of a big client, a tornado. No matter what unexpected

The summer is a season of growth but also a season of fun. Whatever you do, be sure to take some time out to enjoy a bit of rest and relaxation while the sun is shining.

3rd Annual Quashing Hunger Food Drive August 13 - 31, 2012

Thank You to the Sponsors of the

9th Annual Greater Nebraska Golf Scramble! June 22, 2012 • Wild Horse Golf Club • Gothenburg, NE (as of press time)

CO-Sponsors •M  cGrath North Mullin & Kratz, PC LLO

Hole Sponsors • • • • • • • • •

Bacon & Vinton Barney Abstract & Title Co. Berreckman & Davis, PC Brouillette, Dugan, Wilbourn & Troshynski, PC, LLO Crites Shaffer Connealy Watson & Harford Felicia and Randy Fair, Attorneys Fitzgerald Vetter and Temple George V. Vinton, Attorney at Law Inspro, Inc.


•K  napp, Fangmeyer, Aschwege, Besse & Marsh, PC • Kutak Rock LLP • Lane & Williams, PC • Latimer Reporting • Lindemeier, Gillett, Dawson and Troshynski • Marsh • McCarthy & Moore • McGinley O’Donnell Reynolds & Korth, PC LLO • McQuillan Law Office, PC, LLO • Mueller Robak LLC • NAI FMA Realty • Norman, Paloucek & Herman • Parker, Grossart, Bahensky, Beucke & Bowman, LLP 49

• Peterson Law Office • Rehm Bennett & Moore, PC, LLO • Sennett Duncan & Jenkins, PC, LLO • Tye & Rademacher PC, LLO • Welsh & Welsh PC LLO • Zeilinger Law Office

Raffle Prizes

• One Round of Golf for Four with Cart - Donated by Wild horse Golf Club • Hole In One Contest Sponsored by Marsh Affinity Services $25 gift card to Austads & Cleveland golf bag – Donated by Austads

j u ly / a u g u st 2 0 1 2

NSBA calendar

NSBA Events Calendar

July 2012

November 2012


NCLE Family Law Update Embassy Suites, La Vista


NCLE Labor & Employment Law Seminar Embassy Suites, La Vista


Real Estate Probate & Trust Section Legislation Meeting, Embassy Suites, La Vista


How to Be Seriously Ethical & an Effective Lawyer featuring Professor Arthur Gross-Schaefer Scott Conference Center, Omaha

20 Intellectual Property Law for Business & Corporate Lawyers 9 Quarry Oaks, Ashland

August 2012 8

Crimmigration featuring Kevin Ruser

New World Inn, Columbus


NLF Charity Golf Tournament Quarry Oaks, Ashland

NCLE Workers’ Compensation Seminar Scott Conference Center, Omaha


Getting & Keeping Great Clients: Ethics & Client Service featuring Roy Ginsburg Scott Conference Center, Omaha


Internet for Lawyers Google Powered Law Office, Omaha

December 2012

13 - 31 Quashing Hunger Food Drive


Interpreting Financial Statements Location TBA, Omaha


Advanced Negotiation Techniques featuring Martin Latz Location TBA, Omaha


Special Litigation Series Part 1: Revisiting Younger’s 10 Commandments featuring Dean Stephen Easton Embassy Suites, La Vista

October 2012


Special Litigation Series Part 2: Powerful Witness Preparation featuring David Small Embassy Suites, La Vista



NCLE Roundup Hillcrest Country Club, Lincoln


Ethics for Government Attorneys Hruska Law Center, Lincoln


Central Nebraska Estate Planning & Probate Seminar Riverside Country Club, Grand Island

September 2012 14

NCLE Annual Real Estate Institute Embassy Suites, La Vista


Limited Scope Representation Hruska Law Center, Lincoln

Time Management featuring Irwin Karp Scott Conference Center, Omaha

24 - 26 2012 NSBA Annual Meeting Embassy Suites, La Vista

WE’RE GOING GREEN If you wish to no longer receive a print copy of the Nebraska Lawyer, please send an email including your name and bar number to with the subject “Nebraska Lawyer Going Green” and your name will be removed from the Nebraska Lawyer mailing list. Every issue of the magazine (and archived issues back to 1998) can be found on the NSBA website ( When a new issue is released we will send you an email reminder with a link to the online issue. If you prefer your print copy of the Nebraska Lawyer, there is no need to take action. Your name will remain on the mailing list and you will receive each issue in the mail. THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

court news

Court of Appeals Judge Becomes Newest Justice of the Nebraska Supreme Court The swearing-in ceremony of William B. Cassel as a Justice of the Nebraska Supreme Court representing the 3rd Judicial District took place on Monday, June 4, 2012, in the Warner Legislative Chambers in the Capitol. Judge Cassel stated, “I am deeply honored by the trust and confidence expressed by this appointment, and I will endeavor to serve the citizens of Nebraska on Nebraska’s highest court to the best of my ability.” Prior to his appointment as Judge for the Nebraska Court of Appeals in December 2003, Judge Cassel spent twelve years as Judge for the District Court, Eighth District. Before becoming a judge, Cassel served as a partner and sole practitioner in Ainsworth from 1979 to 1992.

Prior to his appointment to the Supreme Court, Judge Cassel served as the Judge of Nebraska Court of Appeals, Third District. He participated in approximately 5,000 total appeals, including approximately 650 authored opinions and 1,300 authored reports in criminal, civil, domestic, juvenile, workers’ compensation, administrative, and other appeals from Nebraska trial courts, specialized courts, and administrative tribunals. He is a co-recipient, 2011 Nebraska Supreme Court award for “Distinguished Judge for Improvement of the Judiciary,” and has been elected as a fellow of both the Nebraska State Bar Foundation and the American Bar Foundation.

In addition to his legal career, The vacancy was created Judge Cassel has assisted the Justice Cassel makes remarks to the audience during his by the resignation of Judge University of Nebraska College of swearing-in ceremony. John M. Gerrard to accept Law with new student orientation appointment as a judge of on ethics and professionalism. He the U.S. District Court for the District of Nebraska. has been a guest speaker for “Trial Advocacy” and “Appellate The Third Judicial District of the Nebraska Supreme Court Advocacy” classes, and he has served as a trial judge for the includes several counties in northeast Nebraska (Antelope, class’s final trial before a mock jury. He has served as a “master Boone, Boyd, Burt, Cedar, Cuming, Dakota, Dixon, Dodge, of the bench” for the Robert Van Pelt American Inn of Holt, Knox, Madison, Pierce, Platte, Stanton, Thurston, Court, an educational organization focused on developing high Washington, Wayne, and Wheeler Counties, in addition to standards of ethics and professionalism for law students and portions of Douglas and Sarpy Counties). lawyers, over a period of five years.

Thank you to the Sponsors of the 16th Annual NSBA Golf Tournament! August 13, 2012 • Quarry Oaks • Ashland (As of press time)


Hole Sponsors

• McGrath North Mullin & Kratz, PC LLO

• Elllick, Jones, Buelt, Blazek & Longo • Kutak Rock LLP •Woods & Aitken LLP



j u ly / a u g u st 2 0 1 2

legal community news

2012 Job Shadowing Program

The Job Shadowing Program provides high school students with information about different careers in the law and the steps to take to become an attorney. Participating firms are provided with a power point presentation entitled “How to Become a Lawyer”. The experience provides an inside look at the work of attorneys in firms and organizations—firms often give tours of their facilities or local courthouse and have lunch with the students. In 2010, the Job Shadowing Program was recognized by the American Bar Association with a Diversity Partnership Award. Since established in 2009, more than 300 students have participated in the program with the support and participation of a number of attorneys, law firms and judges.

Ken Wentz speaks to students at Northwest High School on March 28, 2012.

Several Omaha Public High Schools have been involved with learning more about the law through Creighton’s Street Law Program. Street Law is an initiative in which law students go out to local schools, usually high schools, and teach students law basics— practical, participatory education about law, democracy, and human rights. Street Law uses techniques that promote cooperative learning, critical thinking, and the ability to participate in a democratic society. Creighton’s program focuses on communitybased topics of timely and particular interest to the student communities. The NSBA is proud to offer the Job Shadowing Program in conjunction with the Creighton Street Law Program.

“As a legal practitioner, it is always a great experience to reach out to students interested in a career in law. I had an amazing time speaking to Northwest High School students about how to become a lawyer. The students were engaged and asked excellent questions. The model courtroom and technology the students are being exposed to is top quality. It is inspiring to help formulate the interests of the next generation of lawyers through NSBA efforts at expanding the pipeline.” -Shawntal Smith, Incontro Law ____________________________________________________ “I just wanted to say thanks for making the arrangements that led to a great experience for our students at Northwest. The attorneys were professional, interesting, and related well to the student body. I believe this is a program that should continue in the future as the students enjoyed the presentations and sharing provided by the “real life” attorneys. THANKS so much for all your efforts to pull this off and I look forward to future programs of this nature.” -Bill Kingston, Omaha Northwest ____________________________________________________ “The Job Shadowing Program provides an excellent opportunity for attorneys and law firms to create a positive impression of attorneys and to introduce students to various careers in the legal profession. In a short period of time, I helped students gain real insight into law school preparations. Most were surprised to learn they can choose a college major based on their personal desire and interest. By sharing my professional experiences, I helped students understand that most legal work occurs outside a courtroom. Nebraska needs more diversity in its law schools and law-related careers. I challenge all attorneys and law firms to share the Minority Justice Committee’s goal to diversify the legal profession, and to participate in the Job Shadowing Program in the future.” -Carol Cleaver, Cleaver Law Offices ____________________________________________________ “When we created the Job Shadowing program in 2008, our goal was to provide high school students interested in a career in law with greater access to those in the profession. Four years later, I can say confidently that we have gone above and beyond this objective! The student participants continue to be engaged, and the attorney presenters clearly enjoy sharing their experiences. I look forward to making sure that this program continues to inspire and educate students and legal professionals for years to come.” -Sherman Willis, State Farm


j u ly / a u g u st 2 0 1 2

Sherman Willis speaks to students at Northwest High School on March 28, 2012. 2012 presenters included: Carol Cleaver of Cleaver Law Offices; Hon. Vernon Daniels, Douglas County Juvenile Court; Kate McCoy-Jones and Michael Mollner of Kutak Rock, LLP, Shawntal Smith of Incontro Law; Ken Wentz of Jackson Lewis, LLP; and Sherman Willis of State Farm. The participating high schools were Benson and Northwest representing American Government, Intro to the Law, and Trial Court and Advocacy classes.

Creighton Street Law Program


legal community news

Andrew Evans’ Legacy: “Don’t Give Up” by Roger Holthaus It was my good fortune to be a friend of Andrew Evans and his family since before the traffic accident on Christmas morning 1996, when Andrew’s neck was broken by an air bag while Andrew and his grandmother, Sue Burgess, were on their way to a Christmas morning church service. Andrew’s aunt, Laurie Burgess, presently a Deputy Sarpy County Attorney, had clerked for me her senior year at Creighton Law School and came to my office the morning after the accident. Andrew’s own father was killed in a car accident before Andrew was born and his mother, Jeannie, later remarried and relocated with her serviceman husband. Consequently, Andrew’s grandmother became his primary caregiver. Sue has mentioned that it was her privilege to see Andrew’s smile and happy demeanor up to the day he died, April 11. 2012. In previous articles, I have written about how Andrew inspired others: his school mates, teachers, medical personnel, Teresa Scanlan (Miss America 2011) and even Superman. I have a picture in my office of Andrew and actor Christopher Reeve sitting together in their life support machines. In 1997, while Andrew was at the Scottish Rite Children’s Medical Center in Atlanta, Georgia, he received visits from



Atlanta Braves baseball players and Norman Fletcher, Chief Justice of the Georgia State Supreme Court, who spoke of Andrew during the commencement address he delivered to the University of Georgia later that month. I will never forget May 30, 2009, when I was sitting in the Omaha Civic Auditorium with Andrew’s family for Andrew’s graduation from Millard South High School. Andrew, still on life support, was graduating with his class, on time, and with honors. As Andrew’s name was called and he, with his nurse at his side, propelled his mobile life support system (by blowing into or sucking on a tube) up the ramp and across the stage, the whole auditorium erupted with a standing ovation. I don’t think there was a dry eye in the auditorium. Douglas County Juvenile Court Judges have had Andrew come to speak with children who needed positive motivation. School children called Andrew “their hero”. Andrew’s life on earth may have ended, but his spirit lives on among us. So, before we ever give up, or even start to get discouraged, remember, always remember Andrew Evans. Roger Holthaus is a sole practitioner in Omaha, and has been in practice since 1972. He is a graduate of Creighton University School of Law

j u ly / a u g u st 2 0 1 2

Information Alert - Effective June 1, 2012 all Income Withholding Orders requiring an employer to withhold payments, including those issued by court and private attorneys, must direct payments to the State Disbursement Unit.

What is an IWO?

Is use of the OMB-approved IWO Required?

Commonly known as an income withholding order, the Income Withholding for Support (IWO) is the Office of Management and Budget-approved standard form that must be used by all entities to direct employers to withhold income for child support payments.

The IWO form has been required since August 22, 1996 for orders issued or modified on or after January 1, 1994. After May 31, 2012, IWOs not on the OMB-approved form will be returned to the sender by employers. All IWOs that order an employer to withhold payments, including those issued by court and private attorneys, must direct payments to the SDU. Effective June 1, 2012, employers/ income withholders will return the IWO to the sender if payment is not directed to the SDU.

What is the SDU? The State Disbursement Unit (SDU) is a centralized collection and disbursement unit for child support payments from employers, income withholders, and others. An SDU is responsible for:

All entities or individuals authorized under state law to issue income withholding orders to employers must use the OMBapproved IWO form and direct payments to the SDU.

• Receiving and distributing all payments • Accurately identifying payments

The revised IWO form with accompanying instructions and a revised process flow was published on May 16, 2011. (See Action Transmittal 11-05.) A fillable version of the form is available at pdf.

• Promptly disbursing payments to custodial parents • Furnishing payment records to any parent or to the court

Why were standard forms and payment directions developed?

National Center for State Courts (NCSC)

Under provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress required the use of a standard withholding process to increase child support collections for all families, promote self-sufficiency for lowincome families, and reduce the burden on employers. States were also required to establish and maintain SDUs to receive child support payments from employers and other sources for all IV-D cases and for all non-IV-D cases with support orders initially issued on or after January 1, 1994 payable through income withholding.

The NCSC has recognized the issue and considers it to be a high priority. It is proactively communicating with chief justices, court administrators, and other leadership it serves to bring focus to the issue and to the actions that need to be taken to prevent problems that may occur after May 31, 2012. For more information, contact Kay Farley at

Additional resources • Section 466 of the Social Security Act - http://

Are there exceptions to income withholding?

• Action Transmittal 11-05 (AT-11-05) - http:// at-11-05.htm

Yes, § 466(a)(8)(B)(i) of the Social Security Act allows two exceptions as stated below: “The income of a noncustodial parent shall be subject to withholding, regardless of whether support payments by such parent are in arrears, on the effective date of the order; except that such income shall not be subject to withholding under this clause in any case where (I) one of the parties demonstrates, and the court (or administrative process) finds, that there is good cause not to require immediate income withholding, or (II) a written agreement is reached between both parties which provides for an alternative arrangement.”

• 45 CFR 303.100 - CFR-2010-title45-vol2/pdf/CFR-2010-title45vol2-sec303-100.pdf - Procedures for income withholding • Intergovernmental Referral Guide (IRG) - State’s IWO procedures • State Contact and Program Information - http:// contacts/contact_map.htm - State-specific information and contacts for questions

How is income withholding ordered?

• Employer Services - - Private sector and federal agency employer processes for the IWO notice, withholding calculations and examples.

When entering a child support order, judicial and administrative officials must enter an IWO. Some states use the following language in the child support order: “reference is hereby made to a separate income withholding order, the entry of which is required of this (Court) (Agency) by law and specifically incorporated herein as part of this (Court’s) (Agency’s) order in this case.” THE NEBRASKA LAWYER

Contributed by: Cynthia Holdren (ACF) (CTR), Employer Services Team, Federal Office of Child Support Enforcement 54

j u ly / a u g u st 2 0 1 2

Nebraska Lawyers Foundation

Your Nebraska Lawyers Foundation at Work The Nebraska Lawyers Foundation supports, through donor dollars, three programs: the Nebraska Lawyers Assistance Program, the Minority Justice Committee and the Volunteer Lawyers Project. The three short articles below show the Nebraska Lawyers Foundation in action.

The Nebraska Lawyers Assistance Program Rick Allan, Director of the Nebraska Lawyers Assistance Program, recently received a call in the middle of the night. The issue: an alcoholic attorney, who had already lost his family due to his drinking, had begun drinking again. He had nowhere to turn and called Rick, who then drove the attorney to the hospital for treatment – all in a day’s (night’s) work for Rick.

The Minority Justice Committee The Minority Justice Committee recently coordinated a national event in Omaha, the National Consortium on Racial and Ethnic Fairness in the Courts. This 24th annual meeting attracted over 360 people from 37 states, the District of Columbia and the Virgin Islands, and was the first time the Midwest hosted the meeting. It was an honor for the Minority Justice Committee and the Nebraska Lawyers Foundation/Nebraska State Bar Association to host the event, which provided significant momentum to Nebraska and other states to ensure a fair and accessible justice system. The conference was funded by registration fees and by NLF donations specifically earmarked for the conference.

The Volunteer Lawyers Project Recently a Volunteer Lawyers Project client told us her story. She was raised in a small town in Nebraska, graduated from the University of Nebraska, established a career and then moved from Nebraska. Her boyfriend became extremely abusive, injured her severely and she had to escape to a hospital with life-threatening injuries. She ultimately returned to Nebraska with her children, seeking legal assistance. Her ex-boyfriend is currently in jail while a VLP pro bono attorney advocates for her and her children in the court system. When speaking of her VLP experience, she said, “I thought, I’ve got this guy [her attorney] on my side. I felt relieved. It’s nice to know that lawyers take the time to help the people that really need it.” Your Nebraska Lawyers Foundation at work! THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

NCLE calendar

NCLE Calendar July 2012

November 2012


NCLE Family Law Update Embassy Suites, La Vista


NCLE Labor & Employment Law Seminar Embassy Suites, La Vista


Real Estate Probate & Trust Section Legislation Meeting Embassy Suites, La Vista


Intellectual Property Law for Business & Corporate Lawyers Quarry Oaks, Ashland


How to Be Seriously Ethical & an Effective Lawyer featuring Professor Arthur Gross-Schaefer Scott Conference Center, Omaha


NCLE Workers’ Compensation Seminar Scott Conference Center, Omaha


Getting & Keeping Great Clients - Ethics & Client Service featuring Roy Ginsburg Scott Conference Center, Omaha


Internet for Lawyers Google Powered Law Office, Omaha

August 2012 8

Crimmigration featuring Kevin Ruser New World Inn, Columbus


Ethics for Government Attorneys Hruska Law Center, Lincoln


Central Nebraska Estate Planning & Probate December 2012 6 Interpreting Financial Statements Seminar Location TBA, Omaha Riverside Country Club, Grand Island

September 2012 14

NCLE Annual Real Estate Institute Embassy Suites, La Vista


Limited Scope Representation Hruska Law Center, Lincoln

October 2012 9

Time Management featuring Irwin Karp Scott Conference Center, Omaha

24-26 2012 NSBA Annual Meeting Embassy Suites, La Vista


Advanced Negotiation Techniques featuring Martin Latz Location TBA, Omaha


Special Litigation Series, Part 1 Revisiting Younger’s 10 Commandments featuring Dean Stephen Easton Embassy Suites, La Vista


Special Litigation Series, Part 2 Powerful Witness Preparation featuring David Small Embassy Suites, La Vista

27-28 NCLE Roundup Hillcrest Country Club, Lincoln

Nebraska Continuing Legal Education Supported by:


The Winthrop & Frances Lane Foundation


j u ly / a u g u st 2 0 1 2


Career Changes.......................... ..........................and Relocations The Omaha law firm of Gross & Welch is pleased to announce Jaimee D. Johanning has joined the firm as Of Counsel and will be practicing in the areas of family law and mediation. Ms. Johanning earned her law degree from the University of California in 2006. She received her Jaimee D. undergraduate degree from the University of Johanning Kansas, where she graduated with honors. She is a Nebraska Approved Parenting Act Mediator and was named as a Super Lawyers Rising Star in Southern California in 2009. Ms. Johanning is a member of the Nebraska State Bar Association, Omaha Bar Association, Nebraska Academy of Collaborative Professionals, Nebraska Mediation Association and the California State Bar Association. She is licensed to practice in Nebraska and California. Indiana University has awarded tenure and promotion to the rank of Professor of Law to Michael Pitts. Professor Pitts joined the Indiana University Robert H. McKinney School of Law faculty in the fall of 2006 after serving for one year as a visiting assistant professor at the University of Nebraska College Michael Pitts of Law. He is a graduate of Georgetown University Law Center. Following law school, he clerked for the Honorable C. Arlen Beam, United States Court of Appeals for the Eighth Circuit. Professor Pitts’ scholarly work focuses on the law of democracy, particularly voting rights and election administration, and his work has been published in a variety of law reviews and journals. He frequently provides commentary about election law issues to the media and has been quoted by The Associated Press and The New York Times, and has appeared on CNN. He also is a two-time winner of the Red Cane Award for Best New Professor, a winner of the Black Cane Award for Best Professor, and a recipient of a Trustee’s Teaching Award. Mary C. Gaines has joined Dignity Health System as the Regional Director of Labor & Employee Relations for the San Francisco Bay Area. Mary oversees all aspects of Labor & Employees Relations for four hospitals in the system located in San Francisco, Redwood City and Santa Cruz, CA. Mary received her JD in 1993 from the University of Nebraska College of Law prior to relocating to California in 2006 she was a partner at Ballew & Covalt Law Firm. THE NEBRASKA LAWYER


Amy K. Bagge has passed the Nebraska Bar and will join the Scheldrup Blades Omaha Office. Ms. Bagge received her B.B.A degree from the University of Northern Iowa in 2008, where she was a NCAA Scholarship Athlete as a member of the Women’s Track and Field Team. Ms. Bagge obtained her Juris Doctor Amy K. Bagge from the University of Iowa in 2011, where she graduated with highest honors of the Boyd Service award. Derek A. Aldridge has become a shareholder in the Lincoln law firm of Perry, Guthery, Haase & Gessford, P.C., L.L.O. Aldridge attended the University of NebraskaLincoln, where he received a Bachelor of Science degree in Mechanical Engineering in 1991 and a Master of Science degree Derek A. in Mechanical Engineering in 1993. He Aldridge received his law degree from the University of Nebraska-Lincoln College of Law in 2006, with high distinction. Aldridge clerked for the firm beginning in 2004 and joined the firm as an attorney in August 2007. Prior to joining the firm, Aldridge served as a judicial law clerk for the Honorable Kenneth C. Stephan of the Nebraska Supreme Court. Aldridge is admitted to practice in Nebraska and Kansas. His primary areas of practice are school law, banking law, corporate law, real estate, commercial transactions and civil litigation. Union Bank & Trust recently welcomed Susan Rosburg as Vice President & Senior Trust Officer in Personal Trust & Wealth Management at its Omaha office located at 177th & West Center. Rosburg has over 25 years of industry experience, most recently as Vice President & Trust Susan Rosburg Officer at U.S. Bank in the Omaha market. She serves as a relationship manager assisting clients with all aspects of trust and estate administration. Rosburg graduated from Morningside College and Creighton University School of Law, with distinction. She is a member and former President of the Omaha Estate Planning Council. She is also a member of the Nebraska State Bar Association, Nebraska State Bar Foundation, Omaha Bar Association, Omaha Area Attorney Networking Group and Nebraska Women’s Bar Association.

j u ly / a u g u st 2 0 1 2

transitions National workplace law firm Jackson Lewis is pleased to welcome Associate Melina Villalobos to the firm’s Immigration Practice Group in the Omaha, NE office. Prior to joining Jackson Lewis, Ms. Villalobos worked for the Executive Office for Immigration Review as an Attorney Melina Adviser and as a judicial law clerk to the Villalobos Honorable Frank Sullivan Jr. of the Indiana Supreme Court. Ms. Villalobos, who is a fluent speaker of Spanish, is a member of the Indiana Bar Association and the American Immigration Lawyers Association. She is admitted to practice in Indiana and her admission is pending in the state of Nebraska. Ms. Villalobos received her B.A. in History, magna cum laude, from Bethel College and her J.D., magna cum laude, from Valparaiso University School of Law. While in law school, Ms. Villalobos served as the Editor of Publications for the Valparaiso University Law Review. Arch Insurance Group is pleased to announce that Richard Dunn has been hired as Assistant Vice President – Casualty Claims. He oversees the Omaha Claims Office. Dunn obtained his Bachelor of Arts from UNL in 1991 and his Juris Doctor from the Creighton University School of Law in 2000.

Hightower Reff Law, LLC is proud to announce the mediation certification of Kristin Contryman. Ms. Contryman is an associate with Hightower Reff Law and focuses her practice in the family law area. Kristin completed her graduate degree, M.S. in Negotiation and Dispute Resolution from Kristin Creighton in May 2011. During graduate Contryman school, she worked at the Douglas County District Court Conciliation and Mediation Services reviewing Parenting Plans. Kristin will offer mediation services for all areas of civil litigation and is excited to be a part of the mediation community. Hightower Reff Law offices are located at 1625 Farnam Street, Suite 830 in Omaha, NE 68102 and all of the attorneys can be reached at (402) 932-9550. Hightower Reff Law, LLC is proud to announce the addition of Theresa M. Dowling as of counsel. Theresa has over 25 years of experience in civil litigation, specifically in real estate and construction litigation. Theresa is a graduate of UNL College of Law and she is licensed in both Nebraska and Nevada. Hightower Reff Law offices are located at 1625 Farnam Street, Suite 830 in Omaha, NE 68102 and all of the attorneys can be reached at (402) 932-9550.

Accounting Expert Witness Accounting Litigation Support

Cody F. Carse, CPA Certified Fraud Examiner Certified in Financial Forensics 35 Years of Public & Private Accounting Experience 1304 N 56th STREET OMAHA, NEBRASKA 68132


I do not charge for initial consultations. I review complex financial data and present the results in a manner that can be understood by lawyers, judges, and juries. Contact me and see if you agree. THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

in memoriam Long time Omaha attorney and bar leader and past president of the Omaha and Nebraska Bar Associations, Thomas R. Burke, 86, died Thursday June 14th, 2012. “His priorities were his family, his professional accomplishments in the legal field and his commitment to Catholic education in the Omaha Archdiocese,” his son, Daniel Burke, said. Burke served on the Archbishop’s Committee on Educational Development for many years. He and his first wife, the late Donna Gross Burke, were recipients of the National Catholic Education Association’s presidential award. A graduate of the Creighton University School of Law, Burke most recently had been associated with Erftmier Law, LLC, but he previously practiced with Kennedy, Holland, DeLacy & Svoboda and with Lamson, Dugan and Murray, LLP. He served on the boards of numerous organizations, including the Omaha Community Foundation and the Archbishop Bergan Mercy Foundation. He had been a chairman of the United Way campaign and United Way named him its citizen of the year in 1992. Among Burke’s other honors were the Salvation Army’s Others Award for community service, the National Conference for Community and Justice Humanitarian Award, Creighton’s Alumni Merit Award, the Gerald T. Bergan Spirit of Mercy Award and the Nebraska State Bar Association’s George Turner Award. He also was inducted into the Knights of Ak-Sar-Ben Court of Honor. Burke and his grandson Robert Thomas Marcell published his memoir, “A Life Lived for Others.” When not practicing law or volunteering, Thomas Burke enjoyed spending time at Lake Okoboji, playing golf and attending family gatherings. He spent winters on Marco Island in Florida. In addition to his son and grandson, Burke’s survivors include wife Barbara Burke; children Thomas R. Burke Jr., Melanie Ann Ziegler, Lisa Marie Burke, Laura Marie Marcell, Robyn Freeman, Stephen Allen Roberts, Holly Anne Wichert and Jamie Lee Volkens; 19 grandchildren and three great-grandchildren; and sisters Patricia Gross and Shirley Hennebry. David James Cullan, 72, died June 10, 2012. His 72nd birthday came two days before his death. David and his wife, Vickie, were married 43 years. David Cullan grew up in Hemingford, Neb., the second of 12 children of the late Lorene and Harry Cullan, who had a family farm and ranch. Most of the children became doctors or lawyers, and some held both degrees. He received his bachelor’s degree from Regis College in Denver and his law degree from Creighton University. He worked in the Douglas County Public Defender’s Office from 1969 to 1974 and the Sarpy County Attorney’s Office from 1974 to 1975. Cullan opened his own office, Cullan & Cullan, in 1976 with his brother, Dan, also a lawyer and doctor. David Cullan was a THE NEBRASKA LAWYER


personal injury trial lawyer. The firm became David J. Cullan & Associates in 1990. David Cullan gave up practicing law after a debilitating stroke in 2010, his wife said, and his business closed. As part of his legal career, Cullan was a judge three times on the Nebraska Commission of Industrial Relations, and he worked for the Nebraska Railway Commission and the Appeals Tribunal Office of the Nebraska Labor Department. He was chairman of the Douglas County Democratic Party in 1980 and 1981, and he was a delegate to the Democratic National Convention in 1968, 1976 and 1996. “He did a lot of pro bono work for people,” said Vickie Cullan, including doing the groundwork for the Omaha Food Bank, now the Food Bank for the Heartland. “He gave a lot of himself to people,” she said. He also served in the Army National Guard from 1965 to 1975 in the Judge Advocate General’s Office. He was president of the Nebraska Association of Trial Attorneys and a member of the Nebraska and Omaha Bar Associations, the American Society of Law and Medicine, and the Association of Trial Lawyers of America. Son David James Cullan Jr. preceded his father in death. Survivors of the elder David Cullan, besides his wife, include daughters Tracey Cullan of Omaha and Michaela Altenhofen of College Station, Texas, and one grandson. Betty Jeanne Holcomb-Keller, 85, passed away on June 1, 2012. Born August 28, 1926 in Windom, Texas, she was a graduate of Kearney High School in 1943. Betty Jeanne earned a bachelor’s degree at UNL, a master’s degree at Northwestern University, and a law degree at UNL College of Law. She was a Mortar Board and member of Chi Omega. During WWII, she worked in Washington, D.C. at the FBI Classification Division. She also worked for the Department of Defense at the EUCOM U.S. Army Headquarters in Heidelberg, Germany, after the war. Later, she was on the staff of Nebraska Educational Television as a publicist for the local PBS station and an on-air personality during annual pledge breaks and auction fundraisers. Betty Jeanne was in private law practice in Lincoln for over 30 years specializing in elder care. A former Lancaster County Election Commissioner, BeeJay, as she was known, was appointed to the Governor’s Commission on the Status of Women, served on the Salvation Army Board of Directors, was a member of the Heritage Club, and a longtime member of St Paul’s United Methodist Church. She is survived by her sister Marthella Gitlin of Castro Valley, CA; nieces Laurie and Linda Gitlin, nephews Richard and Terry Gitlin; grand niece and nephews; and two step-daughters Karen and Denise Keller. Memorial gifts may be made directly to the American Cancer Society or your charity of choice.

➡ j u ly / a u g u st 2 0 1 2

in memoriam James Clyde Paine, 64, died February 14, 2012 in Helena, Montana. He was born June 11, 1947, at Oakland, Nebraska, to Morris C. Paine and Anna B. (Sears) Paine and was raised in Lyons, Nebraska. After graduation from Lyons High School he attended North Dakota State University at Fargo, North, Dakota. He then transferred to the University of Nebraska in Lincoln where he earned a Juris Doctorate degree. Jim practiced utility law his entire career, working for the State of Nebraska, the State of Montana, and the Stole Rives law firm in Portland, Oregon. He was the Montana Consumer counsel from 1981-1987. At the time of his death, he was a senior attorney for the Montanan Public Service Commission. Jim first fell in love with Montana with as a youth when he worked on a ranch in the Boulder Valley. In 1977 he moved to Helena, and began working for the PSC. After moving to Oregon and spending many years he returned to his beloved Montana and the place he called home. Jim was preceded in death by his parents and two brothers. He is survived by his sister Mary Fran (Randy) Bacon of Lyons, Nebraska, sister-inlaw Kay Paine of League City, Texas, cousins who were raised in the family home, Zelta (Randall) Preston of Apple Valley, Minnesota, Vendla (Robert) Block of Fergus Fall, Minnesota, Dick (Mary) Hillstrom of Whitefish, Montana, four nieces, one nephew, four great nieces and four great nephews. In addition Jim left many devoted and heartbroken friends and relatives from coast to coast. Larry D. Sather died on June 4, 2012 at the age of 61. He was born Oct. 13, 1950, in Huron, South Dakota. He grew up in Loup City, Nebraska, graduating from high school in 1968 as president of his class. He went on to graduate from the University of Nebraska at Lincoln with degrees in Business Management in 1972 and a J.D. in 1975. After serving as an Adams County Deputy District Attorney in Denver and then for many years in private practice as a trial attorney, he graduated from the Daniels College MBA program at the University of Denver in 2002. Larry was admitted to the bar in Nebraska, Colorado and Texas and joined a variety of professional organizations ranging from the International Bar Association to the National Association of Defense Attorneys and the American Arbitration Association, among others. His legal practice emphasized trial work in insurance, medical, hospital and legal malpractice as well as in other civil and criminal litigation. While living in Denver, He and his first wife, Pam, married and had three children, Lindsey, Kaelin and Ryan. In 2002 he went to Shanghai, PRC, for seven years to teach at Fudan University and several other universities. He also did consulting for a law firm and in the area of strategy and executive development for a management consultant. While in Shanghai he met his wife, Cher (Xv Shuang), whom he married in 2007. Since returning to Nebraska in 2009, he had been teaching business law in the Community College system THE NEBRASKA LAWYER


in Lincoln, among other activities. He is survived by his three children, his wife, his mother, Marion of Nelson, and two brothers, Gary and Cliff, of Bennington. Emily S. (Scherr) Scott, 63, a partner with the law firm Guinan & Scott, died on April 14, 2012. Scott was originally part of the law firm Guinan & Kolenda 32 years ago. “She was smart. She was witty. She loved life, people and to laugh,” said her partner, Bob Guinan. Scott enjoyed probate and guardianship work and would become “personally” involved in her cases. “It was not just a business to her,” Guinan said. “She was respectful of court personnel no matter their position and I got to piggyback on her goodwill. If she gave her word she would stick by it and expected the same from others.” Scott was preceded in death by parents, Arthur A. and Julia (Brick) Scherr; and infant son, John R. Scott. Survived by husband, Rick L. Scott; daughter, Mary Kathleen Scott; step-sons, Dale K. Scott, Clint L. Scott, and Justin Burr Scott; stepgrandchildren, Cole, Cameron, Courtney, Dylan, Caroline, and Ava; siblings, Stephen A. Scherr, Helen M. Thiele, Michael J. Scherr, Mary M. Scherr, Christine R. Scherr, and Bernard J. Scherr; nieces, nephews and cousins; special cousin Martha A. Scherr; and dearest friend, Rose Vatalaro. Memorials are suggested to Sacred Heart Catholic Church or St. John Catholic Church at Creighton University. F. Blaine Sloan, Fort Garland, CO, died on April 12, 2012. Blaine was a navigator on a B-24 bomber in the US Army Air Corps in the Aleutian Islands during World War II. Interested in promoting world peace, after the war he earned an LL.M. in International Law from Columbia University and joined the United Nations legal department shortly after its founding. For the last twelve years of his 30 years of service, he was Director of the General Legal Division. He contributed to the development of outer space, sea bed and international trade law, laying the foundation for cooperation among nations. After his retirement from the United Nations, he was one of the first faculty members to teach international law at Pace University. His wife Patricia predeceased him by just a few months. He is survived by his children, DeAnne, Michael and Charles, by his five grandchildren and six great-grandchildren. Memorials to La Puente, 913 State Avenue, Alamosa, Colo. 81101. 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 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. j u ly / a u g u st 2 0 1 2

classified ads

HELDT & MCKEONE seek to hire an attorney in our office in Lexington, Nebraska. Experience is helpful but not necessary. Salary negotiable. Please forward resume to: Tod A. McKeone, P.O.Box 1050, Lexington, Nebraska 68850 or Employee Benefits Attorney McGrath North seeks an employee benefits attorney having at least 5 years of experience with qualified and nonqualified retirement plans and health and welfare plans (including ERISA/COBRA/ HIPAA). Compensation commensurate with experience, flex schedule available. Please submit a cover letter and resume to Kristopher J. Covi, McGrath North Mullin & Kratz, PC LLO, First National Tower, Suite 3700, Omaha, Nebraska 68102 or Plaintiff Personal Injury Attorney Multi-state law firm seeking an experienced plaintiff personal injury attorney. Duties include: opening Iowa and/ or Nebraska office, hiring and training staff, review and supervision of plaintiff personal injury cases and aggressivecompetent trial work. Our firm focuses on automobile, motorcycle and truck plaintiff personal injury cases and has a sophisticated computerized case processing system, marketing program and multi-state administration. Applicant must be experienced as a plaintiff personal injury or defense attorney and knowledgeable in Iowa personal injury law and procedures. Ideal candidate will be licensed in both Iowa and Nebraska, but not a necessity. We will consider merging, assuming or associating with experienced practitioner who wants to expand his or her practice. Please submit resume, present position, compensation and cover letter to Jennifer Dorff at or fax to 1-866-254-8582. LAW PRACTICE FOR SALE: Only Attorney in town. Attorney provides services in Estate Planning, Wills, Deeds, Trusts, Real Estate, Municipal Law and corporate formations. Other areas of law can be added. The building is included with the sale price. Two hours from Lincoln metro. Current owner will work with Buyer as much and as long as needed to ensure transfer of clients. Current Owner Nets over $135,000 per year. For more information, call Jeff at Sunbelt Business Brokers, 402-578-5800. OFFICE SHARE: Attorney has office share available in 16th and Old Cheney area of Lincoln. Includes/available: office; telephone; receptionist; secretarial; internet; copier; conference room; break room; storage; and restroom. Contact Dale at 402423-4300 or THE NEBRASKA LAWYER


Associate position. Experience in criminal defense/ prosecution required. Send resume to SEEKING TO SELL PRIVATE PRACTICE. Established sole practitioner (1975) seeks to sell Lincoln, NE based law practice and transition toward retirement. This is a general practice that covers a broad array of legal areas but specializes in juvenile and bankruptcy work. The purchase of the practice could include three phases: introduction to and mentoring of current procedure, an intermediate period where purchaser has limited supervision, and finally, full transfer of clients. Interested individuals should inquire to Gene Oglesby at 402476-3434 or via email at Former appellate Appellate Brief-Writing: 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), (0812) Wanted to purchase - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or (UFN) TIRED OF NOT GETTING PAID? COLECTION PROBLEMS? ACCOUNTS RECEIVABLES OVERWHELMING? We Have The Answer. NO CREDIT CHECK FINANCING FOR YOUR CLIENTS. Guaranteed Payment to You. Call: Linda (402) 429-6487. 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 (UFN) 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: (UFN) j u ly / a u g u st 2 0 1 2

legal marketplace

• Forensic Document Examiner • Handwriting Expert • Certified Life Coach • NE Trained Mediator

Sylvia Kessler

402-331-3447 • Court Qualified Experienced - Reliable - Trained - Resouceful Disputed Signatures/Documents Litigation support Member of National Association of Document Examiners

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

Private Classes Available Elizabeth Colaric J.D. Nebraska Bar Member NRA Certified Instructor/Range Safety Officer Nebraska State Patrol CCW Certified Instructor


8712 W Dodge Road, #400 • Omaha


(800) 374-6710


j u ly / a u g u st 2 0 1 2








j u ly / a u g u st 2 0 1 2

2012 NSBA Annual Meeting

LAWYERS MATTER October 24 - 26, 2012

Embassy Suites Omaha - La Vista Hotel & Conference Center

3 FULL DAYS of education and social events!

Watch for your registration brochure in the mail COMING SOON! WEDNESDAY HIGHLIGHTS - NATA Seminar – Medicare Set-Asides - Women and the Law Section Seminar – Law Practice Management Habits That Empower You to Live a Life that Matters, featuring Susan Koenig - Building a Service-Centered Firm, featuring Matt Homann - REPT Section Seminar – A Practical Approach to Drafting Powers of Attorney Under the New Law - Workers Compensation Seminar – Appeals and More - Securities Law Section Seminar – Jumpstart Our Small Business Startups (JOBS) Act and Its Securities Law Implications - Elderlaw Section Seminar – Medicare, Medicaid, and Planning for Long Term Care - Special 3 Hour Law Practice Management Workshop Featuring Matt Homann – Practical Pricing AND Connecting with Clients - Midlands Bar Association Seminar – Juvenile Law Update - NSBA Association Luncheon - President’s Reception - Late Night Reception sponsored by the Young Lawyers Section

- UNL and Creighton Alumni Luncheons - Family Law Section Seminar - Agricultural Law Section Seminar – Helping Nebraska’s Farmers, Ranchers, and Agribusiness Feed the World - NSBA Association Luncheon - Estate Planning Seminar – The Transfer of Wealth: Unprecedented Opportunity for Nebraska, featuring Jeff Yost of Nebraska Community Foundation - General Session: Talmage Boston, author of Raising the Bar: The Crucial Role of the Lawyer in Society - Judges’ Reception: In Honor of Our Honors FRIDAY HIGHLIGHTS - Christian Legal Society Seminar – Supreme Court Review and Ethics Session - Military Law Section Seminar – Helping Our Servicemembers - NCDAA – Nebraska Criminal Defense Attorneys Seminar - Practical Ethics for Practical Attorneys, featuring Dennis Carlson and Friends - NSBA Legacy Luncheon - Natural Resources and Environmental Law Section Seminar – Fracking and Basic Oil and Gas Leasing - Senior Lawyers Section Seminar – Sale of a Law Practice and What Does “Of Counsel” Mean? - “Crimmigration” featuring Prof. Kevin Ruser

THURSDAY HIGHLIGHTS - Casemaker Seminar - Legislative Update Seminar - Government Practice Section Seminar – Adminstrative Remedies – Are We Exhausted Yet? - Probate System V Seminar THE NEBRASKA LAWYER


j u ly / a u g u st 2 0 1 2

Nebraska Title Company Pays Tribute to Patrick M. Lutz June 18, 1963 to June 22, 2012

Patrick Lutz was a devoted husband, father, well respected professional and dear friend to all that knew him. He was a member of the Nebraska Bar, a Registered Abstracter and a Licensed Title Agent with the State of Nebraska. Patrick graduated from Millard South in 1981 and enlisted in the US Air Force where he served for 5 years as a Russian linguist. He graduated from the University of Nebraska Lincoln and went on to receive a law degree from Creighton University. Patrick served as CEO and grew Nebraska Title Company to over 60 employees and seven branches. We are forever grateful for his contribution to the title industry and the community. His witty sense of humor and ability to make others laugh will forever be remembered. Service Beyond Expectation Since 1947

Until we meet again friend...

The Nebraska Laywer July/August 2012  
The Nebraska Laywer July/August 2012  

Volume 15, No. 4