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PRSRT STD US POSTAGE PAID LINCOLN, NE PERMIT NO. 220

An Overview of the Violence Against Women Reauthorization Act As Applied to Indian Country Jill A. Finken

Nebraska State Bar Association 635 South 14th Street P.O. Box 81809 Lincoln, NE 68501-1809

Portability: Prenups, Postnups and Other Planning Considerations Mitchell D. Hiatt & Brandon D. Hamm

The Changing Face of Families Angela Dunne & Angela Terry


The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • July/August 2013 • Vol. 16 No. 4

Features

3 5

...................................... Marsha

11

E. Fangmeyer

34 Ethics Advisory Opinion 13-02 Copy 42 Ethics Advisory Opinion 13-04

A. Finken

44 NSBA Calendar

Portability: Prenups, Postnups and Other Planning Considerations

47 Letter to the Editor 49 NSBA News

...................................................Mitchell

15 19

D. Hiatt & Brandon D. Hamm

50 Legal Community News

The Changing Face of Families: In the Place of Primary Parenthood ............. Angela

51 NCLE Calendar 54 Transitions

Dunne & Angela Terry

57 In Memoriam

Advisory Committee Opinion Clarifies Parenting Act Mediator Requirements

59 Classified Ads

................................................................. Riko

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by Susan Ann Koenig

30 UPL Advisory Opinion An Overview of the Violence Against Women Reauthorization Act As Applied to Indian Country .............................................................. Jill

27 Coaches’ Corner Courageous Conversations

Parenting Act/Joint Custody to be Studied by an Ad Hoc Committee Marsha E. Fangmeyer

Departments

Bishop & Katharine Gatewood

60 Legal Marketplace

Filing Bankruptcy in Nebraska: Thirty Years of the Feminization of Poverty ...................................................... Oliver

B. Pollak

www.nebar.com 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

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

EXECUTIVE COUNCIL

President: Marsha E. Fangmeyer, Kearney President-Elect: G. Michael Fenner, Omaha President-Elect Designate: Amie C. Martinez, Lincoln House of Delegates Chair: Steven F. Mattoon, Sidney House of Delegates Chair-Elect: Joel M. Carney, Omaha House of Delegates Chair-Elect Designate: Timothy R. Engler, Lincoln Past President: Warren R. Whitted Jr., Omaha Past House of Delegates Chair: James E. Gordon, 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.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Supreme Court Liaison:

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

Young Lawyers Section Chair: Executive Director:

Andrea D. Miller, Scottsbluff Jane L. Schoenike, Lincoln

issue editor

Adam Astley

Adam Astley received his B.A. from Creighton University in 2001 and graduated magna cum laude from Creighton University School of Law in 2004. Prior to entering the practice of law, Mr. Astley worked in the field of information technology as a consultant and software developer. As a selfemployed entrepreneur, he marketed software and IT services throughout the Midwestern United States. He is a partner with the Lieben Whitted law firm in Omaha.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Kelly L. Anders, Omaha James C. Bocott, North Platte M. Therese Bollerup, Omaha Elizabeth S. Borchers, Omaha Thalia L. Downing Carroll, Omaha Joel M. Carney, Omaha Kent E. Endacott, Lincoln Christopher M. Ferdico, Lincoln Vanessa J. Gorden, Lincoln Joseph W. Grant, Omaha Carla Heathershaw Risko, Omaha Justin W. High, Omaha Andrea M. Jahn, Omaha Brandy R. Johnson, Lincoln

Jeanelle R. Lust, Lincoln Sandra L. Maass, Omaha Amie C. Martinez, Lincoln Michael W. Meister, Scottsbluff Gregory B. Minter, Omaha Luke H. Paladino, Omaha David J. Partsch, Nebraska City Amanda M. Phillips, Omaha Edward F. Pohren, Omaha Noah M. Priluck, Omaha Kathleen Koenig Rockey, Norfolk Monte L Schatz, Omaha Ronald J. Sedlacek, Lincoln Colleen E. Timm, Omaha Joseph C. Vitek, Houston, TX

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

THE NEBRASKA LAWYER

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.

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president’s page

Parenting Act/Joint Custody to be Studied by an Ad Hoc Committee During the 2013 session of the Nebraska Legislature, the Nebraska State Bar Association took a position opposing a Bill which seemed to require Judges to adopt a Parenting Plan establishing joint physical custody of children in all cases, instead of deciding such issues based upon what is in the best interest of the children, the requirement of current law. The Association received criticism for the position. Some critics alleged that we did not follow proper procedures. We did and I found myself meeting with legislators who were very unhappy about the situation, and I found myself the subject of bloggers and editorials. Let me be clear, while some critics have said that the Nebraska State Bar Association opposes joint custody, the Bar Association does not. What the Bar Association hopes for is a well thought out approach to any changes in the current law. When I met with the legislators, I pledged the NSBA’s help in trying to find that well thought out, well researched approach. Thus, we have formed an Ad Hoc Committee made up of lawyers from across the state, — Lincoln, Omaha, and better Nebraska, all family law practitioners including practitioners who have identified themselves as father’s rights attorneys and who have been critical of the Bar Association’s position. The charge to the committee is to shed light on the discussion surrounding joint custody and the Parenting Act, and to bring clarity to many of the concepts that are being discussed, but are not clearly defined. The committee will research the literature, statutes, and case law on the topic of joint legal custody. We will look for ways to agree upon definitions of certain concepts THE NEBRASKA LAWYER

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Marsha E. Fangmeyer

such as joint legal custody, maximizing parenting time, dividing decision making and the like. The committee will also look at whether the amount of parenting time, and to some extent decision making, has any effect on child support. I have asked practitioners on this committee to do the hard work of looking at the research, the case law, other states’ statutes, whether in existence or proposed; and various websites from all points of view. I further asked two things of the committee: keep an open mind and listen. This Ad Hoc Committee is purposely limited in scope. We want to have a report available for the Nebraska Legislature before it reconvenes. In addition, the Nebraska Supreme Court is undertaking a more comprehensive look at parenting plans which will take much longer to complete. The Court hopes to have a report covering part of their study completed by December 1, 2013. This part of the report will look at statistics regarding the Parenting Act — a sort of “scorecard”, if you will. Compiling this information will be a monumental task, but the hope is that it will help us all sort through the myths and focus on the facts. In addition to the Supreme Court Study, the Supreme Court Committee on Children in the Courts has a subcommittee on the children in the Districts Courts. This sub-committee will also be discussing, in general, the concept of presumed joint custody within the context of the Parenting Act. It is not the intent of the NSBA to duplicate other efforts but we feel strongly that it is important for this Ad Hoc committee to address the issues from the perspective of family lawyers across the State. The Parenting Act was passed in 2007.

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president’s page While some disagree, I believe it has made improvements, though I was skeptical at first. It has given many parents the option of devising their own plan, through mediation, with the assistance of attorneys, or just by themselves. It’s often a joint legal custody plan and sometimes a joint physical custody plan. Improvements can always be made. However, we need to have good reason and specific findings about Nebraska families before we make substantial changes. Divorce is difficult. Family problems are complicated. When parents do not agree upon a Parenting Plan, the decision made must be made by the court based upon the facts of each particular situation, each particular couple and their children to determine what is in the best interest of those children. It is especially these cases which we will be looking at closely – where parents cannot agree.

Book Recommendation It is time to find that “beach” book. I love finding a new mystery author and start with their first book. I often find this, pardon the pun, a novel way of learning. I just finished a series of books by Louise Penny where I learned about Montreal and Quebec, the history and the culture. When I read Steven Saylor, I learned about Rome at the time of Caesar. When I read Zoe Ferraris I learned about life in Saudi Arabia. These are just three examples, but there are not merely dozens but probably hundreds of options. So set aside the Grishams and the Turows for just a bit and move into different cultures and a different times for your reading pleasure, and enjoy.

For those of you who do not know me, I am a practicing attorney in Kearney and I have represented both mothers and fathers in domestic relations matters in the Courts of our State for more than 30 years. I have won custody cases and lost custody cases for both mothers and fathers.

Marsha E. Fangmeyer, President Phone: (308) 236-6441 • Fax: (308) 234-3747 E-Mail: mefangmeyer@frontiernet.net

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THE NEBRASKA LAWYER

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feature article

An Overview of the Violence Against Women Reauthorization Act As Applied to Indian Country by Jill A. Finken

“Indian Country has some of the highest rates of domestic abuse in America. And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts. Well, as soon as I sign this bill that ends. That ends. That ends. Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear. And that is what today is all about.” 1

The Violence against Women Act (VAWA)2, a groundbreaking piece of legislation addressing domestic and sexual violence, was first enacted in 1994 as part of the Violence

Jill A. Finken Jill A. Finken is an Iowa native who studied at the University of Northern Iowa, earned a summa cum laude degree in psychology in 2000, then graduated from Drake University Law School, at the top of her class and with highest honors, in 2004. After law school, she clerked for Iowa Court of Appeals Judge Robert E. Mahan in Des Moines, and for U.S. District Court Judge Mark W. Bennett in Sioux City. She has served in the U.S. Army National Guard since high school, most recently as a judge advocate for a 3,500-member brigade in Afghanistan. As a result of her efforts in Afghanistan, she was awarded the Bronze Star. Wanting to stay close to home, she is now Nebraska’s new tribal special assistant U.S. attorney, charged with pursuing violence against women cases in both tribal and federal courts. THE NEBRASKA LAWYER

3 Crime Control and Law Enforcement Act of 1994. After being passed in 1994, the bill was reauthorized in 2000 and again in 2005.4 It then expired in 2011. On March 7, 2013, President Obama signed a bill reauthorizing the Violence against Women Act for another 5 years (VAWA 2013).5 The amount of time that lapsed from expiration of VAWA in 2011 to VAWA 2013’s passage in 2013 was partially due to the fact VAWA 2013 not only renewed prior provisions of VAWA pertaining to funding, training, resources and responses to domestic violence, it also strengthened and, in some cases, expanded those provisions, particularly with respect to the application of VAWA in Indian Country.6 While other expansions, such as protections to same-sex couples, were also controversial but ultimately included in the final version of the bill, this Article will focus on the changes that specifically affected Indian Country.

A. Overview of VAWA In general, VAWA focuses on nine specific areas of intervention: enhancing judicial and law enforcement tools to combat violence against women (Title I); improving services for victims (Title II); services protection and justice for young victims of violence (Title III); strengthening America’s families by preventing violence (Title IV); strengthening the healthcare system’s response (Title V); housing opportunities and safety for battered women and children (Title VI); providing economic security for victims (Title VII); protection of battered and trafficked immigrants (Title VIII); and safety for Indian women (Title IX). Some of the more well-known and publicly observable impacts of VAWA include the establishment of the National Domestic Violence Hotline, which receives approximately 22,000 calls every month; the provision of funds to train

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violence against women reauthorization act over 500,000 law enforcement officers, prosecutors, judges and other personnel every year; the creation of the federal rape shield law, which, absent specific circumstances, prevents a victim’s past sexual conduct from being used at trial; and the provision of additional tools for protecting victims in Indian Country by creating a new federal habitual offender crime.7 Statistics compiled from the years since the initial passage of VAWA suggest that the legislation has produced positive results. Bureau of Justice Statistics and FBI data show that between 1994 and 2010, the annual incidence of domestic violence dropped by sixty-seven percent.8 While these numbers are promising and appear to suggest VAWA’s impact has been positive, other research suggests these successes have not equally impacted the population. Specifically, the numbers suggest that indigenous peoples in the United States remain vulnerable. For example, rates of domestic violence against Native American victims in Indian country are now among the highest in the entire United States. One report published in 2000 estimated that American Indians are 2.5 times more likely to experience sexual assault crimes compared to all other races.9 Similarly, accordingly to a nationwide survey by the Centers for Disease Control and Prevention, half of all Native women—46 percent—have experienced rape, physical violence or stalking by an intimate partner.10 Many of what ultimately became the

more hotly debated provisions of VAWA 2013 were designed to specifically address the high rates of domestic violence and sexual assault in Indian Country. Although contested, these provisions ultimately were passed in the final version of the bill by Congress. While the impact and effectiveness of these provisions, which will be discussed in detail below, may not be discernible for a number of years, the immediate perception is that VAWA 2013’s passage recognized and reinforced the inherent authority and sovereignty of Indian tribes.

B. VAWA 2013 and Indian Country VAWA 2013 amended three federal statutes that are particularly relevant to prosecution of domestic violence crimes in Indian Country: (1) the federal assault provisions (18 U.S.C. § 113), the Major Crimes Act (18 U.S.C. 1153) and the Indian Civil Rights Act (25 U.S.C. § 1302). These amendments, which will be discussed in more detail, are designed to help federal, tribal, and state criminal justice systems combat domestic violence crimes in Indian Country. Unlike other provisions contained in VAWA 2013, the amendments to the federal assault statute contained in VAWA 2013 become effective immediately and provide new avenues for federal prosecution of crimes involving Native victims of intimate partner violence in Indian Country.

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THE NEBRASKA LAWYER State Bar of NE_Wards 2012.indd 1

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violence against women reauthorization act

1. Amendments to the Major Crimes Act and the Federal Assault Statute Under the Major Crimes Act, which can be found in 18 U.S.C. § 1153, federal jurisdiction in Indian Country (and accordingly, federal prosecution) extends to certain enumerated major crimes committed by Indians in Indian Country regardless of whether the victim is an Indian or non-Indian. Prior to VAWA 2013, federal jurisdiction under the Major Crimes Act extended to the following assault offenses—(1) assault with intent to commit murder, (2) assault with a dangerous weapon, (3) assault resulting in serious bodily injury, and (4) assault against an individual who has not attained the age of 16 years. VAWA 2013 amended the Major Crimes Act, 18 U.S.C. § 1153(a), to capture all felony assaults under § 113. In order to fully understand the import of this change to the Major Crimes Act, it must be considered in conjunction with VAWA 2013’s amendments to the federal assault statute. Specifically, VAWA 2013 amended the federal assault statute to include a new ten-year felony assault provision for committing an “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.”11 Prior to VAWA 2013, strangulation and suffocation cases were most likely prosecuted federally as an assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). The express text of subsection (a)(6) necessitates proof that the victim sustained serious bodily injury. Due to the relative unknown and unseen effects of strangulation and suffocation, and the fact that serious injuries may not be evident until days after the assault, proving serious bodily injury in a strangulation or suffocation case was a significant hurdle to federal prosecution.12 VAWA 2013 makes strangulation and suffocation a felony-level assault, regardless of the nature of the victim’s injuries. Thus, the practical effect of both (1) the amendment to the Major Crimes Act extending federal jurisdiction to all felony-level assaults and (2) the inclusion of a new felony assault provision for crimes involving strangulation and suffocation without reference to the victim’s injuries, is that federal prosecution for strangulation and suffocation offenses that occur in Indian Country can now occur regardless of the level of the victim’s injuries. Somewhat similarly, VAWA 2013 amended § 113(a)(7)— assault resulting in a substantial bodily injury to a person under the age of 16—to include additional classes of victims. Prior to VAWA 2013, § 113(a)(7) was a felony level assault and included in the Major Crimes Act but it could only be applied, by the express statutory text, when the victim was under the age of sixteen. Accordingly, prior to VAWA 2013, many domestic assaults involving a victim over the age of sixteen were not subject to federal jurisdiction unless those assaults involved a dangerous weapon or serious bodily injury to a victim. VAWA 2013 extended application of this subsection to assaults resultTHE NEBRASKA LAWYER

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ing in substantial bodily injury to not only a person under the age of 16, but also to spouses, intimate partners and dating partners. The effect of both the amendment to § 113(a)(7) to include additional classes of victims and the amendment of the Major Crimes Act to extend federal jurisdiction to all felony level assaults is that domestic violence cases involving substantial bodily injury to a victim in Indian Country are now subject to federal jurisdiction.13

2. Additional Changes to the Federal Assault Statute Pertinent to Indian Country One other change to the federal assault statute that is pertinent to Indian Country includes the extension of the maximum penalty of 20 years applicable to assault with intent to commit murder under § 113(a)(1) to certain categories of sexual misconduct. With respect to § 113(a)(1), the Major Crimes Act has, both pre- and post-VAWA 2013, extended federal jurisdiction to Assault with Intent to Commit Murder offenses. VAWA 2013 expanded this subsection to also include assault with intent to commit a violation of § 2241 (aggravated sexual abuse) or § 2242 (sexual abuse). Prior to VAWA 2013, assault with intent to commit aggravated sexual abuse or assault with intent to commit sexual abuse was charged under a more general subsection—Assault with intent to commit any felony, contained in § 113(a)(2). Subsection (a)(2), however, contained a 10-year maximum term of imprisonment in contrast to the 20-year maximum term applicable to subsection (a)(1). Thus, the practical implication of this change is that assault with intent to commit aggravated sexual abuse or assault with intent to commit sexual abuse are now subject to a maximum penalty of 20 years of imprisonment, as opposed to the 10 year maximum term of imprisonment contained in § 113(a)(2).

3. Tribal Jurisdiction Over Crimes of Domestic Violence One of the more controversial amendments contained in VAWA 2013 authorized certain changes to the Indian Civil Rights Act (25 U.S.C. § 1302). Under the ICRA, in general, tribal courts lack jurisdiction over non-Indian offenders even if a non-Indian commits a crime against an Indian in 14 Indian Country. Under VAWA 2013, a tribe’s right to selfgovernance is recognized and now includes the inherent power to exercise “Special Domestic Violence Criminal Jurisdiction” (SDVCJ) over all persons. In effect, SDVCJ grants “participating tribes” jurisdiction over non-Indian perpetrators of domestic and dating violence but only in limited, carefully defined circumstances.15 The effective date of the provisions specifically relating to the Special Domestic Violence Criminal Jurisdiction of a participating tribe will be two years after the enactment date of the VAWA Reauthorization of 2013 – that is, March 7, 2015 – unless a tribe becomes an accelerated participating tribe

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violence against women reauthorization act under a pilot program contemplated within the legislation. In order to fall within a participating tribe’s SDVCJ, the defendant must: (1) reside in the Indian Country of the participating tribe; (2) be employed in the Indian Country of the participating tribe; or (3) be a spouse, intimate partner, or dating partner of a member of the participating tribe or an Indian who resides in the Indian Country of the participating tribe. Further, a defendant meeting these requirements must have engaged in criminal conduct that involves an act of domestic or dating violence that occurs in the Indian Country of the participating tribe or be in violation of a qualifying protection order that occurs in the Indian Country of the participating tribe. Thus, not only is the type of person that may be subject to SDVCJ extremely limited, the types of crimes that SDVCJ can be extended to provides additional restrictions over a tribe’s ability to exercise SDVCJ. Additionally, tribes may not exercise special domestic violence criminal jurisdiction if neither the defendant nor the victim is an Indian and crimes that occur outside of the participating tribe’s Indian Country are also outside the purview of SDVCJ. In short, to determine if SDVCJ exists, four questions must be answered in the affirmative: First, does the defendant have sufficient ties to Indian Country; second, is the alleged crime an act of domestic/dating violence or a violation of a protection order; third, is the victim an Indian; and fourth, did the alleged crime take place in Indian Country. If the answer to any of the four questions is, “no,” SDVCJ does not exist. Even if a set of circumstances falls within the parameters set forth above, tribes must meet certain other requirements with respect to prosecutions involving SDVCJ. Namely, a tribe exercising SDVCJ must ensure the rights of non-Native defendants are protected under the Indian Civil Rights Act of 1968 and the Tribal Law and Order Act of 2010. Accordingly, when exercising SDVCJ, a tribe must provide (1) the right to a jury trial comprised of a fair cross section of the community (i.e. the jury pool must not categorically exclude non-natives); (2) effective assistance of counsel for defendants; (3) free, appointed, licensed attorneys for indigent defendants; (4) law-trained tribal judges who are also licensed to practice law; (5) publicly available tribal criminal laws and rules; and (6) recorded criminal proceedings. Many of these requirements may prove to be insurmountable to some tribes throughout the United States due to lack of infrastructure and funding. In addition, the law itself is silent as to how tribes can meet the standards required to exercise SDVCJ. As an example, it is unclear whether inclusion of non-Native employees who work in Indian Country in the tribal jury pool will be deemed to satisfy the requirement that the jury pool must not categorically exclude non-Natives. Even more importantly, if a non-Native refuses to provide information or appear for jury duty, a tribe’s authority and ability to pursue recourse in the tribal court THE NEBRASKA LAWYER

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system against that non-Native is questionable. Finally, the expectation of where a non-Native convicted by a tribal court will serve his or her sentence remains debatable. For example, in the case of an Indian tribe that traditionally sends its Native inmates to a Bureau of Indian Affairs (BIA) or other tribal facility, it is unclear whether a non-Native can be sent to that same facility. The most logical answer would seem to be that a non-Native should be incarcerated wherever a Native inmate would go for a similar offense. However, it is not entirely clear under what conditions, if any, a BIA incarceration facility would accept non-Native inmates. In light of these limitations, it remains to be seen how many tribes will actively pursue and ultimately obtain SDVCJ.

4. Tribal Protection Orders The final piece of VAWA 2013 that was aimed at combatting domestic violence in Indian Country involved clarifying the jurisdiction of tribal courts over the issuance and enforcement of protection orders against Indians and non-Indians. Specifically, the full civil jurisdiction of tribal courts to issue and enforce civil protective orders over all persons was reinforced. This includes the authority to enforce any orders through civil contempt proceedings, to exclude violators from Indian land and to use other appropriate mechanisms, with respect to matters arising anywhere in Indian Country. The 2000 and 2005 Reauthorizations of VAWA mandated that tribal protective orders be afforded full faith and credit in other jurisdictions. However, despite the federal mandate, some state courts were perceived as exhibiting hostility toward enforcement of protective orders issued by a tribal court. In addition, at least one federal court suggested tribes lack civil jurisdiction to issue and enforce protection orders against non-Indians.16 As a result, a victim residing in Indian Country was often advised to seek multiple protection orders from different jurisdictions in order to fully ensure the victim’s safety. VAWA 2013 attempts to make clear that tribal protective orders can be issued against non-Natives and that all such orders are to be enforced and recognized by other jurisdictions, thus, potentially alleviating the need for a victim to seek more than one protection order.

C. Conclusion Since 1994, each time VAWA has been reauthorized, its provisions have been expanded and improved. While the effects of VAWA 2013 remain to be seen, the reality is that the mission to remain vigilant with respect to reducing the rates of domestic violence will be ever-present. This mission is not important just from a public safety standpoint because the impact of domestic violence on society is exponential. As President Obama recognized, “[w]e’ve made incredible progress since 1994. But we cannot let up — not when domestic J u ly / A u g u st 2 0 1 3


violence against women reauthorization act violence still kills three women a day. Not when one in five women will be a victim of rape in their lifetime. Not when one in three women is abused by a partner.”17 VAWA 2013 cannot be the ending point, it is another building block in the long road to changing a culture of violence that touches and impacts all races, nationalities and communities throughout the United States.18

Full Report of the Prevalence, Incidence and Consequences of Violence Against Women, Patricia Tjaden and Nancy Thoennes, US Department of Justice, 2000.

9

National Center for Injury Prevention and Control, Division of Violence Prevention, National Intimate Partner and Sexual Violence Survey, 2010 Summary Report, available at http:// www.cdph.ca.gov/HealthInfo/injviosaf/Documents/NISVS_ Executive_Summary-a.pdf

10

18 U.S.C. § 113(a)(8).

11

Dean A. Hawley, M.D., Department of Pathology and Laboratory Medicine, Indiana University of Medicine, Forensic Medical Findings in Fatal and Non-fatal Intimate Partner Strangulation Assaults, 2012.

12

Endnotes Remarks by the President and Vice President at Signing Ceremony for the Violence Against Women Reauthorization Act, March 7, 2013.

1

The distinction between serious and substantial bodily injury is not without difference. “Serious bodily injury,” as defined by federal law, is difficult to prove and requires proof of either substantial risk of death, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member or organ or mental faculty. 18 U.S.C. § 1365. In contrast, substantial bodily injury is a slightly lower threshold and requires proof of a temporary but substantial disfigurement; or a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty. 18 U.S.C. § 113(b)(1).

13

The title of the Act, Violence Against Women Act (emphasis added), is a bit of a misnomer. The Act does not protect only women victims of domestic assault. The protections extend to both male and female victims of domestic violence. See Article Sec.(3)(b)(8), Violence Against Women and Department of Justice Reauthorization Act of 2005, Act No. H. R. 3402 of 2005, February 12, 2013.”NONEXCLUSIVITY.—Nothing in this title shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this title.”

2

Jonathan Weisman (February 10, 2013). “Measure to Protect Women Stuck on Tribal Land Issue”. The New York Times. Retrieved February 10, 2013. “If a Native American is raped or assaulted by a non-Indian, she must plead for justice to already overburdened United States attorneys who are often hundreds of miles away.”

14

H.R. 3355 signed as Pub. L. 103-322.

3

“President Signs H.R. 3402, the “Violence Against Women and Department of Justice Reauthorization Act of 2005”” (Press release). George W. Bush White House archives. January 5, 2006.

4

While this legislation expands the jurisdiction of participating tribes, the criminal jurisdiction of the United States and of the States over Indian Country remains the same.

15

Senate votes to reauthorize Violence Against Women Act, USA Today, February 12, 2013; House Reauthorizes Violence Against Women Act, NPR, February 28, 2013.

5

Martinez v. Martinez, 2008 WL 5262793 (W.D. Wash. 2008), held that an Indian tribe lacked authority to enter a protection order for a nonmember Indian against a non-Indian residing on non-Indian fee land within the reservation.

16

Steinhauer, Jennifer (July 31, 2012). “THE CAUCUS; G.O.P. Push on Domestic Violence Act”. New York Times. October 13, 2012.

6

White House Fact Sheet: The Violence Against Women Act, available at http://www.whitehouse.gov/sites/default/files/docs/ vawa_factsheet.pdf.

7

Remarks by the President and Vice President at Signing Ceremony for the Violence Against Women Reauthorization Act, March 7, 2013.

17

Department of Justice, Office of Public Affairs, Federal and Tribal Officials Mark Domestic Violence Awareness Month at Annual Violence Against Women Tribal Consultation in Oklahoma, October 2, 2012.

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THE NEBRASKA LAWYER

For more information regarding VAWA 2013 and Indian Country, please visit www.justice.gov/tribal.

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feature article

Portability: Prenups, Postnups and Other Planning Considerations by Mitchell D. Hiatt and Brandon D. Hamm

This article addresses the relatively new federal estate tax concept commonly referred to as “portability.” While some might argue that portability should be reserved to the world of estate planning attorneys, the authors of this article believe portability has a broader application. The purpose of this article is to highlight various portability-related considerations, some of which apply not only to attorneys who practice in the estate planning arena, but also to those attorneys, including family law and matrimonial law attorneys, who negotiate and draft marital agreements.

A Primer on Portability Under federal estate tax laws, each individual has the ability to transfer a certain amount of assets at death to non-spouse, non-charitable beneficiaries free of federal estate tax.1 This tax-free amount is known as the “applicable exclusion amount” (the “Exclusion Amount”). Because the federal estate and gift tax regimes are “unified,” an individual may also use the Exclusion Amount to make lifetime gifts to non-spouse, non-

Mitchell D. Hiatt

The use of the Exclusion Amount was, historically speaking, a “use it or lose it” proposition. That is, if an individual died without utilizing all of his or her Exclusion Amount to pass assets tax free to non-spouse, non-charitable beneficiaries, the unused portion of the decedent’s Exclusion Amount was forfeited. With the adoption of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “2010 Act”) on December 17, 2010, Congress did away with the “use it or lose it” nature of the Exclusion Amount by introducing the concept now known as “portability,” which allows the unused portion of a married decedent’s Exclusion Amount to be allocated to and later utilized by the surviving spouse to shelter additional assets from the estate tax at the surviving spouse’s subsequent death. However, there was a great deal of uncertainty regarding the long-term viability of portability

Brandon D. Hamm

Mitchell D. Hiatt is an associate with the law firm of Koley Jessen P.C., L.L.O. and is a member of the firm’s estate and business succession planning practice group.

THE NEBRASKA LAWYER

charitable beneficiaries free of federal gift tax. Lifetime usage of the Exclusion Amount results in a dollar-for-dollar reduction of the Exclusion Amount available to transfer assets free of federal estate tax at death.

Brandon D. Hamm is a shareholder with the law firm of Koley Jessen P.C., L.L.O. and is a member of the firm’s estate and business succession planning practice group.

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portability due to a “sunset” provision in the 2010 Act, which called for the expiration of the 2010 Act on December 31, 2012. This uncertainty was resolved with the adoption of the American Taxpayer Relief Act of 2012 on January 2, 2013, which made portability a permanent feature of the laws.

return is filed to port a deceased spouse’s Unused Exclusion to the surviving spouse, the surviving spouse may then utilize the Unused Exclusion to transfer additional assets to non-spouse, non-charitable beneficiaries free of federal gift and estate tax. Simply put, utilization of a deceased spouse’s Unused Exclusion allows a surviving spouse to transfer more assets free of estate and gift tax than the surviving spouse would have been able to without the availability of the Unused Exclusion.

With the introduction of portability, the tax code was revised to define the Exclusion Amount as the sum of the “basic exclusion amount” and the “deceased spousal unused exclusion amount.”2 The “basic exclusion amount” refers to a specified dollar figure, much like that of the pre-portability laws. In 2013, the “basic exclusion amount” is $5,250,000.3 The “deceased spousal unused exclusion amount” refers to the amount of a deceased spouse’s basic exclusion amount that was not used to shelter assets from federal gift or estate tax and was “ported” to the surviving spouse for his or her subsequent use.4 In other words, through the concept of portability, a surviving spouse may now take into account his or her last deceased spouse’s unused basic exclusion amount (“Unused Exclusion”) in determining the value of the surviving spouse’s Exclusion Amount.

In the right circumstances, utilization of a deceased spouse’s Unused Exclusion can represent significant tax savings to the surviving spouse and/or the beneficiaries of the surviving spouse’s estate. In this regard, an individual’s anticipated Unused Exclusion can appropriately be viewed as an asset, which can be left to a surviving spouse for his or her subsequent use. This perspective can be valuable for attorneys who represent clients in negotiating marital agreements where one party is likely to face estate tax issues.

Executors of estates that have a value less than the decedent’s basic exclusion amount are not required to file a federal estate tax return. However, in order to “port” a deceased spouse’s Unused Exclusion, the executor of the deceased spouse’s estate must file an estate tax return within the time prescribed by law (including extensions), even though an estate tax return may not otherwise be required.5 If an estate tax

For example, assume a man and a woman are engaged to be married. Both are in their early-sixties and have adult children from prior marriages. The man has a modest estate and will almost certainly be able to pass his entire estate to his children without incurring any federal estate tax. In contrast, the woman has a significant estate, well beyond her basic exclusion amount, and will likely incur a significant estate tax by passing

Prenups

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portability assets to her children at her death. Although the man and woman are very much in love, their children have strained relationships with their parent’s new partner. The couple would like to enter into a prenuptial agreement and generally agree that each of them should be able to dispose of their own assets to their own children at death. If you represent the woman with regard to the prenuptial agreement, it would be advantageous to her and her children to be able to utilize the man’s Unused Exclusion in the event of his death during the marriage. However, because the man’s estate will likely have a value less than the basic exclusion amount, the executor of his estate will not be required to file an estate tax return. In fact, if the executor files a return to port his Unused Exclusion to the woman, it would have the effect of reducing the inheritance available to his children because of the expense associated with preparing and filing the return. It would also potentially expose the executor to a claim for breach of fiduciary duty. Even if the woman were willing to pay for the preparation of the estate tax return, the man’s children may be opposed to the executor doing so simply out of spite. To ensure the availability of the man’s Unused Exclusion for the woman and to avoid complications between the woman’s and the man’s respective children, it would be advisable to include a provision in the prenuptial agreement requiring the man’s executor to port his Unused Exclusion to the woman in the event of his death during the marriage. In exchange, the woman may be willing to make certain concessions to provide for the man in the event of divorce or the woman’s death during the marriage. On the other hand, if you represent the man, his anticipated Unused Exclusion will represent significant tax savings to the woman and her children. In that regard, it would be advantageous to view the man’s anticipated Unused Exclusion as an asset, to be used as a bargaining chip in negotiating for more favorable terms for him in the prenuptial agreement. Below is a sample provision to consider including in a prenuptial agreement in such circumstances: The parties agree that, in the event of the death of either party during the marriage, the executor of the deceased spouse’s estate shall, to the extent permitted under applicable law at the time of the deceased spouse’s death, and at the request of and the sole expense of the surviving spouse, take such steps as may be necessary to affirmatively elect to allocate to the surviving spouse the “deceased spousal unused exclusion amount” (as such term is defined in Section 2010(c) of the Code) of the deceased spouse, including, but not limited to, the timely filing of a Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, or such other method as may be prescribed under the Code or associated Treasury Regulations.

Postnups and Portability Provisions In Wills Given the sensitive nature of the topic, prenuptial agreements are often not even discussed by couples before marriage. Even when a prenuptial agreement is discussed, it is common that a prenuptial agreement is not implemented before marriage. There is also the possibility that a couple entered into a prenuptial agreement prior to marriage (perhaps even after portability was introduced), but the agreement does not address portability. What options are available in these circumstances when one or both of the spouses later desire to secure the use of the anticipated Unused Exclusion of the other? One solution is for the spouses to simply enter into a postnuptial agreement. The approach to be taken in negotiating the postnuptial agreement is almost identical to that described above for a prenuptial agreement, as are the portability-related provisions that would be included in the postnuptial agreement. Another option is to include portability-related provisions in a will. In other words, a spouse can always specifically direct his/her executor to port their Unused Exclusion to his/her surviving spouse in his/her will. Below is a sample provision to consider including in a will in such a situation: Following my death, if my Spouse survives me and makes a request of my executor within three (3) months of my death, I direct my executor to affirmatively elect to allocate my “deceased spousal unused exclusion amount” (as such term is defined in Section 2010(c) of the Code), if any, to my Spouse with a timely filed Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return (or by such other method as shall be prescribed under the Code or associated Treasury Regulations), to the extent such an election is permitted under applicable law at the time of my death. All expenses associated with such allocation, including reasonable attorneys’ fees, shall be at the sole expense of my Spouse.

There are a number of reasons such a provision should eliminate any concern by either spouse that their own children (or other beneficiaries) would impede the steps required to port the Unused Exclusion to the surviving spouse. First, the provision requires the surviving spouse, who would benefit from the ported Unused Exclusion, to pay for the preparation of the return, thereby eliminating any potential reduction in the inheritance of the children of the deceased spouse. Second, the provision is a clear expression of intent that the executor would presumably be obligated to follow in carrying out its fiduciary duties. Finally, if the Unused Exclusion is viewed as an asset as suggested above, the surviving spouse could argue that they are a beneficiary of the deceased spouse’s estate, strengthening their argument that the executor must take the appropriate actions to port the deceased spouse’s Unused Exclusion.

➡ THE NEBRASKA LAWYER

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portability

The Last Deceased Spouse Rule An additional aspect of portability to consider is that a surviving spouse can only utilize the Unused Exclusion of his/ her “last deceased spouse.”6 In other words, an individual cannot collect or “stack” the Unused Exclusions from multiple deceased spouses. To illustrate this limitation, consider a situation in which Husband was previously married to First Wife, who passed away in 2011, survived by Husband and their children. The executor of First Wife’s estate validly ported First Wife’s Unused Exclusion to Husband. Husband has a significant estate and, without the ported Unused Exclusion from First Wife, would be facing an estate tax issue. Now, Husband is to be married to Second Wife, but wants to ensure the bulk of his estate passes to his children at his death. If, following their marriage, Second Wife predeceases Husband, the Unused Exclusion ported to Husband from First Wife will be forfeited because Second Wife will then be Husband’s “last deceased spouse.” Thus, if Second Wife will have Unused Exclusion to port to Husband in the event of Second Wife’s death during the marriage, Husband and Second Wife should consider entering into a prenuptial agreement requiring the executor of Second Wife’s estate to port Second Wife’s Unused Exclusion to Husband. Another planning option in this situation is for Husband to make significant gifts to his children prior to or after the marriage, but in any event, before the death of Second Wife. Husband’s gifts will consume the Unused Exclusion ported to Husband from First Wife prior to consuming Husband’s own basic exclusion amount, even if those gifts are made while married to Second Wife.7 If this option may be pursued, then any prenuptial agreement should permit Husband to make such gifts without Second Wife’s consent.

the time prescribed by law (including extensions).8 In most cases, failing to timely file an estate tax return will result in the forfeiture of the opportunity. However, some practitioners have suggested that the IRS may be willing to grant “9100 relief” (i.e., administrative relief available under Treas. Reg. §§ 301.9100-1 through -3 for failure to make a tax election by the due date for such election) for estates that failed to timely file an estate tax return electing in favor of portability. In that regard, James Hogan, from the Branch 4 Office of the Associate Chief Counsel (Passthroughs & Special Industries), recently stated that the IRS “will consider requests for 9100 relief on the portability of the individual exemption for estates under the credit amount.”9 Thus, attorneys should consider whether it is worthwhile to seek 9100 relief in certain circumstances (i.e., where a client’s spouse died after December 31, 2010, and the executor failed to timely file an estate tax return to port the deceased spouse’s Unused Exclusion to the client).

Conclusion Portability provides a tremendous amount of additional estate planning flexibility and is a positive development in federal estate tax laws. However, it has a broader application than just in the estate planning arena. Any attorney that represents clients in marital agreement preparation should have a working knowledge of portability in order to fully represent their clients’ interests.

Endnotes Transfers made to spouses and charities typically pass estate tax free due to the application of the marital deduction and charitable deduction, respectively.

1

I.R.C. § 2010(c)(2).

2

I.R.C. § 2010(c)(3); Rev. Proc. 13-15, 2013-15 I.R.B. 2013-5.

3

See I.R.C. § 2010(c)(4).

4

I.R.C. § 2010(c)(5)(A).

5

I.R.C. § 2010(c)(4).

6

“9100 Relief” For Late Elections

Temp. Treas. Reg. § 25.2505-2T(b) (2012).

7

As mentioned above, in order to port a deceased spouse’s Unused Exclusion to a surviving spouse, the executor of the deceased spouse’s estate must file an estate tax return within

I.R.C. § 2010(c)(5)(A).

8

News, Commentary, and Analysis, Doc. 2013-11615, 2013 TNT 93-9 (May 13, 2013).

9

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 mkinney@ctagd.com and/or Jane Schoenike at jschoenike@ nebar.com. 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

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feature article

The Changing Face of Families: In the Place of Primary Parenthood

by Angela Dunne and Angela Terry

Editorial Note: Angela Dunne served as counsel for the appellant in Russell v. Bridgens and as counsel for the appellee in Latham v. Scwerdtfeger, referenced below. The face of families has been changing in Nebraska and across the country over the last decade. With the United States Supreme Court’s recent focus on DOMA legislation and the rights of same-sex persons to marry, it appears that the legal definitions of families may be changing in the future as well. In Nebraska, same-sex partners may not marry nor may a same-sex partner adopt their partner’s biological child or join in a joint adoption of a child. However, the conversation regarding these types of parenting relationships is taking place in our state, as this year the Nebraska State Legislature considered Legislative Bill 380, which provided for the adoption by two adult persons jointly. Not surprisingly, over the last decade, we have seen a rise in same-sex custody disputes and the Nebraska Supreme Court has looked at these rights in particular. We offer this article as a practical guide to understanding the rights of non-biological,

Establishing Custody In Nebraska, various statutes establish a means for seeking custody and visitation of a minor child. These statutes include dissolution actions pursuant to Neb.Rev.Stat. §§ 42-341-381 (Reissue 2008 & Cum.Supp.2010); paternity actions pursuant to Neb.Rev.Stat. §§43-1401-43-1418 (Reissue 2008); juvenile proceedings pursuant to Neb.Rev.Stat. §§43-245 to 43-2,130 (Reissue 2008 & Sup..2009); guardianship proceedings pursuant to Neb.Rev.Stat. §§30-2601 to 30-2616 (Reissue 2008 & Cum.Supp.2010); adoption proceedings pursuant to Neb.Rev. Stat. §§43-010 to 43-165 (Reissue 2008 & Cum.Supp.2010); and actions under the Uniform Child Custody Jurisdiction and Enforcement Act, Neb.Rev.Stat. §§43-1226 to 43-1266 (Reissue 2008 & Cum.Supp.2010).1 Not surprisingly, our state’s statutory scheme fails to con-

Angela Terry

Angela Dunne Angela Dunne is the managing partner of Koenig | Dunne Divorce Law. She is also a Fellow of the American Academy of Matrimonial Lawyers and is a co-author of the blog, Doing Divorce: A Thoughtful Discussion About Divorce. You can find more information about Angela’s practice, a link to the blog, and contact her at www. nebraskadivorce.com. THE NEBRASKA LAWYER

non-adoptive parents, how to advise non-biological, nonadoptive parents under the law and advice for litigating these same-sex custody cases.

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Angela Terry is an associate attorney at Koenig | Dunne Divorce Law. She is a board member of the Nebraska Women’s Bar Association and contributor to the forthcoming Second Edition of Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect. You can find more information about Angela’s practice and contact her at www.nebraskadivorce.com. J u ly / A u g u st 2 0 1 3


the changing face of families template all potential scenarios which may arise in the ever changing and evolving notion of familial relations.2 Thus, various equitable doctrines have been created by courts to address the child’s best interest when a non-biological, non-adoptive parent seeks custody and/or visitation with a minor child.3 In 2011, the Nebraska Supreme Court specifically looked at the issue of a non-biological, non-adoptive person’s standing to seek custody, without an underlying statutory authority. In Latham v. Schwerdtfeger, Schwerdtfeger gave birth to a child in 2001 via in vitro fertilization. Schwerdtfeger and the child lived with Latham, a non-biological, non-adoptive parent, until 2006, when the parties separated. Latham continued some level of visitation with the minor child from 2006 until 2009, after which Latham’s’ visitation was reduced.4 In that case, the Nebraska Supreme Court concluded that Latham may bring an action for custody and visitation of the minor child under the common law doctrine of in loco parentis. An action to establish custody and support was filed in Nebraska in 2009.

The In Loco Parentis Doctrine In Nebraska, the common law doctrine of in loco parentis affords rights of custody and visitation to nonparents when the exercise of such rights is in the best interest of the minor child. The Nebraska Supreme Court has defined the in loco parentis doctrine as, “A person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligation incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.”5 However, the in loco parentis basis for standing recognizes that the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child’s best interest.6 Thus, while it is presumed that a child’s best interest is served by maintaining the family’s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person, who although not a biological parent, has lived with the child, provided care, nurture, and affection, assuming in the child’s eyes a stature like that of a parent.7 The purpose of the doctrine is to ensure that actions are brought only by people with substantial interests. Accordingly, the doctrine must be flexibly applied dependent on the particular facts of each case.8 When a genuine relationship exists, Nebraska courts have granted standing to the in loco parentis parent because the primary consideration when determining the standing of a non-parent seeking custody or visitation with a minor child is the best interests of that child. The analysis the Nebraska Supreme Court focuses on when THE NEBRASKA LAWYER

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making an in loco parentis determination is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship.9 To determine what obligations are incident to a parental relationship, the Nebraska Supreme Court has turned to the Nebraska Parenting Act for guidance and clarity.10 The Parenting Act articulates the rights, duties, and liabilities as a function of the parenting relationship. The Parenting Act defines parenting functions as: (17) Parenting functions means those aspects of the relationship in which a parent or person in the parenting role makes fundamental decisions and performs fundamental functions necessary for the care and development of a child. Parenting functions include, but are not limited to:(a) Maintaining a safe, stable, consistent, and nurturing relationship with the child; (b) Attending to the ongoing developmental needs of the child, including feeding, clothing, physical care and grooming, health and medical needs, emotional stability, supervision, and appropriate conflict resolution skills and engaging in other activities appropriate to the healthy development of the child within the social and economic circumstances of the family; (c) Attending to adequate education for the child, including remedial or other special education essential to the best interests of the child; (d) Assisting the child in maintaining a safe, positive, and appropriate relationship with each parent and other family members, including establishing and maintaining the authority and responsibilities of each party with respect to the child and honoring the parenting plan duties and responsibilities; (e) Minimizing the child’s exposure to harmful parental conflict; (f) Assisting the child in developing skills to maintain safe, positive, and appropriate interpersonal relationships; and (g) Exercising appropriate support for social, academic, athletic, or other special interests and abilities of the child within the social and eco11 nomic circumstances of the family.

In Nebraska, the in loco parentis status has most commonly been applied to allow an ex-stepparent visitation with his or her ex-stepchild. In Hickenbottom v. Hickenbottom, the Nebraska Supreme Court applied the in loco parentis doctrine to determine the visitation rights of a stepparent to a child whom the 12 stepparent had raised since the child was two years old. The court held that rather than decide rights to a child by blood relations, it is often better for the child to be able to continue the relationship with a party when examined in the light of 13 what is best for the child’s continued growth and happiness. The court specifically stated: Visitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least wholesome contribution to the child’s emotional well-being by permitting partial continuation of an earlier established close relationship. Usually such an J u ly / A u g u st 2 0 1 3


the changing face of families Nebraska courts must treat same-sex adoptions in sister states as valid and in the event of a separation between the parents, a custody determination will need to be made.

affiliation is with a natural parent. But it need not be. Those involved with domestic relations problems frequently see situations where one who is not the natural parent is thrust into a parentfigure role, and through superior and faithful performance produces a warm and deeply emotional 14 attachment.

The Court went on to state that when an ex-stepparent establishes that during the marriage, he or she acted as a parent to the stepchild, the doctrine of in loco parentis, although not enumerated in the statutes, is a proper consideration when determining stepparent visitation with due consideration to the best interest of the child.15 As such, the court found that acting pursuant to Neb.Rev.Stat. §42-364 (Reissue 1998), the court has jurisdiction to grant rights of visitation to an ex-stepparent when that ex-stepparent establishes that during the marriage, he or she acted as a parent to the stepchild.16 In Weinand v. Weinand, the wife gave birth to a child, who was not the biological child of her husband, however the husband raised the minor child for two years.17 Upon their separation, the wife lived with the biological father of the minor child, who became a father figure and contributed to the minor child’s support.18 In Weinard, the Supreme Court found that the ex-stepparent did not stand in loco parentis to the child when he had neither the legal means nor the intention of taking the place of the lawful father in carrying out the day-to-day functions of a father as described in the Parenting Act.19 Similarly to ex-stepparents, the in loco parentis status has also been applied to grandparents. In the case of State on behalf of Combs v. O’Neal, the Nebraska Court of Appeals affirmed an Order granting custody of a minor child to the grandmother based on the doctrine of in loco parentis, notwithstanding a claim of parental preference by the biological father.20

In Latham v. Schwerdtfeger, the Court reiterated that a non-biological, non-adoptive person has standing based on the doctrine of in loco parentis which affords the opportunity to fully litigate the issue of custody and visitation.23 The litigation then focuses on whether or not the non-biological, non-adoptive parent has put himself or herself in the situation of a lawful parent by assuming the obligation incident to the parental relationship.

Practical Considerations When meeting with a non-biological, non-adoptive parent who is currently parenting a child either before or after separation from the legal parent, or with a person who intends to be a parent to a child in the non-biological, non-adoptive role, it is crucial to obtain evidence regarding the full scope of how the non-biological, non-adoptive parent has been demonstrating every aspect of parental obligations. Evidence you may want to consider to support the nonbiological, non-adoptive parent’s relationship with the child may include: • evidence of performing the parental functions identified in the Parenting Act; • a parenting agreement between the parties24;

Application of the In Loco Parentis Doctrine in Same-Sex Custody Cases In 2002, in the case of Russell v. Bridgens, the Nebraska Supreme Court looked at the enforceability of a same-sex adoption entered in another state.21 Bridgens adopted the minor child in Pennsylvania in September, 1996 and both Bridgens and Russell adopted the same minor child in a “coparent adoption” in December, 1997. They lived together and raised the child until 1999. At the time of separation, Bridgens was stationed in Germany and Russell returned to the United States with the minor child. An action to establish custody and support was filed in Nebraska in 2000. The Court concluded that a judgment entered in a sister state court which had jurisdiction is to be given full faith and credit and has the same validity and effect in Nebraska as in the state rendering judgment. Therefore, it is established that THE NEBRASKA LAWYER

In a concurring opinion, Justice Gerrard specifically addressed, for the first time in Nebraska, the applicability of the in loco parentis doctrine in a same-sex custody dispute where a valid order granting parental rights does not exist, explaining, “Russell can maintain her petition regardless of whether the Pennsylvania adoption is given full faith and credit, if Russell can demonstrate an in loco parentis relationship with the minor child.”22

17

• estate planning documents naming the non-biological, non-adoptive parent as guardian and conservator of the child25; • the execution of a Power of Attorney for the Minor Child granting the non-biological, non-adoptive parents rights to make decisions for the child26; • the non-biological, non-adoptive parent’s name on the child’s birth certificate; • giving the child the last name of the non-biological, nonadoptive parent; • providing financial support for the child27; • identifying the non-biological, non-adoptive person as a co-parent for purposes of being present for the labor and delivery of the child28; • exercising consistent and frequent parenting time with the

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the changing face of families child upon the separation of the parents; and,

Id. at 130, 802 N.W.2d at 74.

7

Id. (quoting J.A.L. v. E.P.H. 682 A.2d. 1314, 1319-20 (1996).

8

• family portraits.

Id. at 131, 802 N.W.2d at 74.

9

When representing a non-biological, non-adoptive parent, be mindful of the intricacies of the ever evolving laws defining parenthood to ensure the appropriate application of the in loco parentis doctrine and to protect the best interest of the minor child. As we continue to observe Nebraska families changing, it is important that we, the lawyers representing the families, remain flexible and adaptable to the law that changes with them.

Weinand, 260 Neb. at 152-153, 616 N.W.2d at 6.

10

Neb.Rev.Stat. § 43-2922(17).

11

Hickbottom v. Hickbottom, 239 Neb. 579, 477 N.W.2d 8 (1991).

12

Id. at 592-93, 477 N.W.2d at 17.

13

Id. at 587, 477 N.W.2d at 14 (quoting Cooper v. McManus, 581 P.2d 487, 4880489 (Okla.App. 1978)).

14

Id. at 591.477 N.W.2d at 16.

15

Id. at 592.477 N.W.2d at 17.

16

Weinard, 260 Neb. at 148, 616 N.W.2d at 3.

17

Id.

18

Endnotes

Id.

19

Latham v. Schwerdtfeger, 282 Neb.121, 127, 802 N.W.2d 66, 72 (2011).

1

State on Behalf of Combs v. O’Neal, 11 Neb.App. 890, 897, 662 N.W.2d 231, 237 (2003).

20

Id. at 129, 802 N.W.2d at 73 (quoting In re Parentage of L.B. 155 Wash.2d 679, 706-07, 122 P.3d 161, 176 (2005)).

2

Russell v. Bridgens, 264 Neb. 217, 218, 647 N.W.2d 56, 58 (2002).

21

Angela Dunne & Susan Ann Koenig, Advocacy for Nebraska Children with Gay and Lesbian Parents: A Call for the Best Interest of the Child to be Paramount in the Case of Non-Biological, NonAdoptive Parents, 36 Creighton L. Rev. 3, 12 (2002).

3

Id. at 229, 647 N.W.2d at 65 (Gerrard J., concurring).

22

Latham, 282 Neb. at 134, 802 N.W.2d at 76.

23

J.A.L. v. E.P.H., 453 Pa.Super.78, 83, 682 A.2d 1314, 1317 (Pa. Super. 1996).

24

Latham, 282 Neb. at 122, 802 N.W.2d at 69.

4

Id.

25

Weinand v. Weinand, 260 Neb. 146, 152-153, 616 N.W.2d 1, 6 (2000).

5

Id.

26

T.B. v. L.R.M., 567 Pa. 222, 225, 786 A.2d 913, 914 (Pa. 2001).

27

Latham, 282 Neb. at 126, 802 N.W.2d at 71 (quoting J.A.L. v. E.P.H. 682 A.2d. 1314, 1318-19 (1996)).

6

THE NEBRASKA LAWYER

Id. at 225, 786 A.2d at 915.

28

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feature article

Advisory Committee Opinion Clarifies Parenting Act Mediator Requirements

by Riko E. Bishop, Esq., Katharine Gatewood, J.D.

Editorial Note: Advisory Opinion 13-02 appears beginning on page 34. There are a number of mediators in Nebraska who are skilled at bringing opposing parties to the table to resolve conflicts and avoid trial. Under the Uniform Mediation Act, mediators are not required to “have a special qualification by background or profession.”1 However, to mediate cases subject to the Nebraska Parenting Act,2 special qualifications are required. For attorney mediators, compliance with such requirements is necessary to avoid ethical concerns under the Nebraska Rules of Professional Conduct.3

February 2013 Advisory Committee Opinion The question of whether a highly trained and experienced attorney mediator is subject to the basic and family mediation

training and other approval requirements of the Nebraska 4 5 Parenting Act was submitted to the Advisory Committee for consideration. The Advisory Committee concluded that a Nebraska attorney should not mediate cases “involving proceedings or modifications where parenting functions are 6 at issue” unless the mediator has been trained and certified [approved] in accordance with the Parenting Act. Pursuant to the Parenting Act, in order to qualify as a Parenting Act mediator, “a person shall have basic mediation training and family mediation training, approved by the Office of Dispute Resolution, and shall have served as an apprentice to a media7 tor.” The Advisory Committee also references Standard II of the Nebraska Standards of Practice and Ethics for Family Mediators which applies “to all family mediators practicing under the Nebraska Parenting Act.”8 Standard II details the education and training required to serve as a family mediator.

➡ Katharine Gatewood

Riko E. Bishop Riko E. Bishop is a shareholder with Perry Guthery Haase & Gessford, PC LLO. She graduated with distinction from the University of Nebraska College of Law in 1992. Riko’s primary areas of practice include family law, school law, employment law, workers’ compensation, and general civil litigation. She is also an approved Parenting Act Mediator through the Nebraska Supreme Court Office of Dispute Resolution. THE NEBRASKA LAWYER

Katharine L. Gatewood is a recent graduate of the University of Nebraska College of Law. She received her Juris Doctor with concentrations in Alternative Dispute Resolution and Litigation in May 2013. During the spring semester of 2013, Katharine worked as an extern for the Office of Dispute Resolution.

19

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parenting act mediator requirements

Why do Parenting Act mediators need specialized education and training? Specialized education and training equips mediators with the tools to recognize and address delicate child and family issues.9 In fact, recognition of the need for competent family mediators prompted the Nebraska Legislature to require additional education and training for Parenting Act mediators. The Nebraska Parenting Act, enacted in 1994, amended in 2007, and revised in 2008 and 2010, generally pertains to any matters where parental rights or functions are at issue.10 Over forty individuals, including attorneys, judges, social workers, and child and family therapists, developed what is now known as the Policy for Approval of Parenting Act Mediators and the Nebraska Standards and Ethics for Family Mediators11 to serve as a rules supplement12 to the Parenting Act for family mediators. These carefully constructed policies incorporate national model standards of practice established for family mediators by organizations such as the Family Law Section of the American Bar Association, the Association of Family and Conciliation Courts, and the National Council of Dispute Resolution Organizations. Since 2008, mediators facilitating Parenting Act disputes have been subject to these policies and ethical requirements. Since the Parenting Act requires parties to attempt to mediate prior to litigating custody disputes, it was of particular importance that mediators receive training for complex relationship issues unique to domestic cases. For example, according to statute,13 a mediator must conduct a preliminary Individual Personalized Screening (IPS) session with each parent to determine whether a case is appropriate for mediation. If during an IPS, allegations of domestic intimate partner abuse or unresolved parental conflict are raised, the mediator should refer the case to a specialized alternative dispute resolution (SADR) process with specially trained and experienced SADR facilitators. Statistics show that over 1 in 3 women and over 1 in 4 men have experienced domestic intimate partner abuse 14 in their lifetime. These types of conflicts are often seen in Parenting Act cases and should be referred to a SADR-trained mediator. The Act states that it is the duty of the parenting mediator to determine whether to proceed in a joint mediation session or a SADR session or any session at all.15 Without proper screening, an untrained mediator could unknowingly expose the victim to more abuse if the power balance between the parties has not been identified and appropriately equalized.16 Conducting a careful IPS helps avoid exacerbating such conflicts. IPS allows mediators to gauge each matter on a case-by-case basis to determine what mediation option, if any, is appropriate. Because self-determination of the parties is the linchpin to a successful mediation experience, Parenting Act mediators must have the tools to skillfully screen for domestic intimate partner abuse, unresolved parental conflict and child THE NEBRASKA LAWYER

20

abuse and neglect. Family mediation courses and apprenticeships give mediators the requisite tools, training, and experience to make an informed decision as to the best mediation options for the parties.

Counties where ODR-Approved Parenting Act Mediators Reside

Number of ODR-Approved Parenting Act Mediators

Adams

2

Antelope

1

Boone

1

Brown

1

Buffalo

2

Dawson

1

Dodge

7

Douglas

46

Fillmore

1

Gage

2

Hall

1

Hamilton

1

Johnson

1

Kearney

2

Lancaster

20

Lincoln

1

Madison

1

Platte

1

Richardson

1

Saline

1

Sarpy

10

Saunders

2

Scotts Bluff

6

Valley

1

TOTAL

113 J u ly / A u g u st 2 0 1 3


parenting act mediator requirements

Parenting Act mediator training has additional benefits for attorney mediators Family mediation training also prepares attorney mediators to make the adjustment from client advocate to an appropriate family facilitator role. Attorneys are adversaries by nature, focused on securing advantageous positions and on achieving maximum gain for their clients. Attorneys zealously represent one party against the other. They concern themselves with vindicating clients’ rights, while acting as trusted advisors along the way. On the other hand, mediators serve as the neutral third party in the dispute resolution process, and do not, and ethically cannot, represent either party legally, nor advocate for one party over another. They facilitate an interest-based discussion between parties and their attorneys in order to help the parties come to a resolution on their own terms. Because the mediator’s purview is more expansive than the narrow legally formed issue, and his or her technique is generally collaborative, he or she has unique responsibilities to the parties and the process in order for a mediation to function properly. When child welfare concerns and domestic challenges are added to the mix, a highly skilled mediator then becomes essential to maintain the integrity of the mediation. Basic and family mediation training brings these unique legal and non-legal concerns to the forefront to ensure that mediators are equipped with the tools to handle family mediations as a facilitator, rather than as an advocate.

Parenting Act mediator education and training requirements According to the Office of Dispute Resolution (ODR), Nebraska currently has 113 approved Parenting Act mediators, 77 of whom have been trained in the SADR process. In addition to the 30-hour basic mediation training course, family mediators are required to take an additional 30-hour (ODRapproved) family mediator training course. Courses span over a period of four days and focus on how to competently screen and conduct family mediations. Basic and family mediator courses are currently offered through the Nebraska Mediation Association (NMA) and discounts are available for NMA members. Individuals who take basic and/or family mediation training courses in other jurisdictions can request reciprocity from the ODR. After successfully completing the basic and family mediator training courses, mediators desiring Parenting Act mediator approval must complete an apprenticeship.17 The apprenticeship involves co-mediating with at least two different approved supervisory family mediators, and must involve at least three parenting plan mediations, one of which is led by the prospective Parenting Act mediator. One of the supervised mediations must include an Individual Personalized Screening (IPS) to THE NEBRASKA LAWYER

21

evaluate at least one party’s ability to negotiate and to screen for domestic intimate partner abuse. Receiving written and oral feedback from the supervisory mediator, drafting a Parenting Plan, and self-reflection exercises are also part of the process. Although the apprenticeship step may be adjusted or waived if, for example, the prospective family mediator has conducted parenting mediations in a significant number of cases, the applicant must provide documentation that clearly demonstrates that he or she has the skills to serve as an approved Parenting Act mediator. Once the family mediator training and apprenticeship requirements are satisfied, mediators must submit an application to the Office of Dispute Resolution for approval.18 ODR staff is available to personally assist any and all applicants.19 The names of approved family mediators are published on the Nebraska Supreme Court website on the “List of Approved 20 Parenting Act Mediators”. Pursuant to the Policy for Approval of Parenting Act Mediators,21 approved Parenting Act mediators can maintain approval by submitting a biennial report demonstrating that they have met eight-hours of Continuing Mediator Education, are actively mediating, and have complied with the Nebraska Standards of Practice and Ethics for Family Mediators.22 In summary, attorneys who have handled Parenting Act cases know that power dynamics and familial relationships are multifaceted and manifest themselves in many ways in such cases, and often obstruct reasonable thinking and resolution by agreement. This is in part why even the most seasoned family law attorney would benefit from basic and family mediation training. That training includes extensive theory, skill, and practice in strategies not only to create a clear and productive parenting plan, but to actively work with both parents to address communication dynamics, conflict resolution, complex relational factors, and joint planning for the future of their child(ren). The Advisory Committee Opinion has made it clear that attorney mediators must comply with the Parenting Act mediator training and approval process. Attorneys should view the education and training not only as a path to becoming a Parenting Act mediator, but should also welcome the strategies and skills acquired which will enhance their work as a trial attorney as well.

Endnotes Neb. Rev. Stat. § 25-2938(f).

1

Neb. Rev. Stat. §§ 43-2920 et seq.

2

Neb. Rules of Prof’l. Cond. §§ 3-501, et seq.

3

Neb. Lawyers’ Advisory Comm., Op. No. 13-02 (2013), available at http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/ethics/lawyers/13-02.pdf.

4

Neb. Rules of Prof’l. Cond. § 3-305 (comprised of attorneys appointed by the Nebraska Supreme Court to interpret the Nebraska Rules of Professional Conduct and issue advisory

5

➡ J u ly / A u g u st 2 0 1 3


parenting act mediator requirements opinions) The term “certified” in the Opinion is a misnomer; Nebraska law and policy uses the term “approved.”

6

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“what if”?

Neb. Rev. Stat. § 43-2938.

7

Neb. Standards of Practice and Ethics for Fam. Mediators § II(A) (2008), available at http://supremecourt. ne.gov/sites/supremecourt.ne.gov/files/ mediation/Statutes,%20Rules,%20 Policies/Standards_and_Ethics_ Revised_10-31-08.pdf.

8

Brownyard, Debora, Lori Burkey and Kathleen Severens, Family Mediation Manual, Neb. Office of Disp. Resol., (Oct. 2012 revision).

9

Neb. Rev. Stat. §§ 43-2920, et. seq.

10

Neb. Office of Disp. Resol., Press Release: New Approval Process to Become a Court-Listed Parenting Act Mediator, (April 1, 2009).

11

Neb. Rev. Stat. § 43-2940 (states “Mediation of cases under the Parenting Act shall be governed by uniform standards of practice adopted by the State Court Administrator.”).

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12

Neb. Rev. Stat. § 43-2939(1).

13

Black, M.C., Basile, K.C., Breiding, M.J., Smith, S.G., Walters, M.L., Merrick, M.T., Chen, J., & Stevens, M.R., The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report, Nat’l Ctr. for Injury Prevention and Control, Centers for Disease Control and Prevention (2011) available at http:// www.cdc.gov/violenceprevention/pdf/ nisvs_executive_summary-a.pdf.

14

Neb. Rev. Stat. § 43-2939(1).

15

Murphy, Jane C. and Robert Rubinson, Domestic Violence and Mediation: Responding to the Challenges of Crafting Effective Screens, 39 Fam. L.Q. 53, 53-85 (2005-2006).

16

Neb. Admin. Office of the Ct., Policy for Approval of Parenting Act Mediators (Oct. 2008), available at http://nlcs1.nlc. state.ne.us/epubs/S3300/H004-2008.pdf.

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See, e.g., Parenting Act Mediator Approval and Reporting Portal, https://www. nebraska.gov/courts/mediator/index.cgi.

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feature article

Filing Bankruptcy in Nebraska: Thirty Years of the Feminization of Poverty by Oliver B. Pollak

During the last 30 years the Chapter 7 filing fee has risen from $60 to $306. About 38 million Americans filed chapter 7 and 13. In the daily drama of individual and family financial jeopardy, the bankruptcy code and court balance the contending interests of needy Americans and their creditors. A 1997 empirical study identified that starting in the early 1990s more women than men filed bankruptcy.1 The feminization of poverty has accelerated as the proportion of women seeking initial and repeat bankruptcy relief has increased. The 13.3 million Bankruptcies filed from 1992 to 2002 included 2.1 million, 15.7%, who had filed more than once. Nebraska had 71,881 bankruptcy filings of which 9.0%, 6,483, were repeat filings.2 In 2007 about 25.6% of the 4955 bankruptcies were repeat filers. During the first five months of 2013, Nebraskans filed 2,151 chapter 7 and 13 bankruptcies, of which 771 filers, 35.8% had filed at least one time previously. Women filed 292 cases, men 175, and 304 were joint filings.3

Oliver B. Pollak Oliver B. Pollak earned his B.A. degree from the California State University at Los Angeles; his M.A. and Ph.D. (history) from UCLA, and his Law Degree (J.D.) from Creighton University in 1982. He practices extensively in bankruptcy law and is a member of the Nebraska State and Iowa State Bar Associations. Oliver is the author of several books and numerous articles. THE NEBRASKA LAWYER

Nebraska Bankruptcy Filings by Gender4 Cases 1967

Males

Females

Joint Cases

1,211

66.8%

14.6%

18.6%

1977

1,937

33.9%

11.1%

55.0%

1987

3,779

27.8%

22.2%

50.0%

1996-97

5,441

27.0%

32.4%

40.8%

2007

4,955

24.9%

36.1%

39.0%

1-5/2013

2,151

26.2%

44.9%

31.9%

5

Nebraska Repeat Filings Cases Filed

Repeat Filers

Percent Male

Female Joint

19926 2002

71,811

6,483

 9.0%

N/A

N/A

N/A

2007

 4,955

1,268

25.6%

20.1%

35.0% 45.0%

1-5/2013

 2,151

       771

35.8%

20.9%

37.5% 41.7%

Women file and repeat file more frequently than men. The feminization of poverty has public policy implications. Women, an increasingly large portion of the work force, are undercompensated compared to male counterparts. Equal pay for equal work may result in declining wages for both. Banking, credit card, and student loan lobbies, Congress and case law eroded several 1978 Code fresh start benefits by increasing the number of nondischargeable debts. BAPCA, the Bankruptcy law since October 17, 2005, almost 8 years old, lengthened the period that debtors can obtain relief.7 Bankruptcy is still a powerful device for debtors to get a fresh start and reintegrate as economically productive members of society. Relieved of stress and anxiety they no longer fear answering the phone, opening their mail, wage garnishment

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filing bankruptcy in nebraska and checking account attachments. Under BAPCA the U.S. Trustee in Nebraska issues “Clerk’s Evidence of Repeat Filing.” Lightning and tornados can strike the same person twice, three or four times. What follows addresses the question, “Why do people file bankruptcy more than once?” Various catastrophes and tragedies can result in a negative cash flow. The recessions of 1990, 2000, and the 2007 Great Recession took their toll. Perhaps as many as a third of repeat filers had filed during the 1990 and 2000 recessions. The litany of woes include: unemployment, underemployment, decline in income, an exhausting heroic routine of holding two and three jobs to try to make ends meet. The unemployment rate in Nebraska declined from 3.8% in January 2013 to 3.7% in April; nationwide the rate dipped from 8.1% to 7.6% in May. Divorce creates two households, the loss of financial efficiency, and chronic child support and alimony issues. Deteriorating health, with no or inadequate health insurance, creates insuperable problems. Mental illness, eroding coping skills, and disabled children are economic and human tragedies. The death of a spouse reduces income but not liabilities and exacerbates the disparity between fixed income and rising expenses. The problems may be cured or rehabilitated, or go into remission, but insofar as they are chronic, systemic, ingrained and perhaps pathological, they recur. Foreclosure turns the American home ownership dream into a nightmare, as declining income unravels adjustable rate mortgages and overleveraging. Failure to make car payments, and looming repossessions raises the plaintive dilemma, how do I look for work, get to work, get my kids around, get to the doctor. Owning a business is the second American dream. The self employed may be good craftsmen but poor businesspeople, and undercapitalized. They may fail to distinguish between business and personal expenses and create a false profit margin from “the lender of last resort,” ignoring obligation to file or pay taxes. They may tap into their IRA or 401K to solve THE NEBRASKA LAWYER

24

financial problems like foreclosure and then face income taxes because of early withdrawal. Entrepreneurs in transport, construction, food industry, hospitality, medical, legal and pastoral professions, a wide variety of main street retailers, are no more immune than individuals. Certainly there is some improvidence, living beyond ones means, using credit instead of cash, using payday loans, poor decision making, and splurge or binge purchasing. Alcohol and gambling addiction inhibits financial responsibility. Very few game the system knowing they can shirk their responsibilities and walk away again, again and again. Abusive filers are “debtors who take advantage of the bankruptcy system to avoid paying their debts.”8 Incarceration wreaks havoc on the innocent spouse, mortgage and credit card obligations. The vast and overwhelming majority are “honest debtors” envisioned by the 1934 Supreme Court decision Local Loan Co. v. Hunt (292 US 234). People file second and subsequent bankruptcies regardless of lessons learned the first time. Debtors tend to have less than a college education and those with higher education may have exorbitantly high student loans. The tides of misfortune cannot always be averted by behavior modification. Education does not ensure a skill set immune from market place obsolescence, disability, body burnout, and outsourcing. Saving money for a rainy day is difficult in a hand to mouth, paycheck to paycheck environment. Economic contraction could lead to food stamps, food banks, and other public and private assistance, eviction from one’s home, loss of transportation, and loss of self esteem. Adult children moving in with parents, and parents moving in with children, has become common. Scrimping and skimping has its limits and can be counterproductive, for example forgoing prescription medication; deferring health can be costly. Declining economic fortunes is a depressive spiral. It is difficult to rebuild human capital.9 John F. Kennedy enjoyed the phrase, “A rising tide lifts all boats.” Modifications arose, “A rising tide lifts all yachts.” Clinton and Obama economic adviser, Gene Sperling, stated, “the rising tide will lift some boats, but others will run J u ly / A u g u st 2 0 1 3


filing bankruptcy in nebraska aground.”10 Employees and employers with systemic vulnerability to economic downturns may swim or sink. Women continue to be the most financially at risk. Our economic safety net: workers compensation, unemployment compensation, Social Security disability, SSI, old age and survivor benefits, SNAP, insurance, and access to bankruptcy are vital. The face of poverty and financial distress may discriminate as to age, gender, national origin, race, and education. These markers, not specifically recorded in the filing process, tell tales of the disparate incidence of bankruptcy.11 It is challenging to live within ones means in a credit based economy. High school financial responsibility education will enhance economic discipline. Bankruptcy, poor peoples’ health insurance, is an entitlement funded by the private sector. Fifty years after The Equal Pay Act of 1963 women constitute the majority of people filing and repeat filing bankruptcy. Economic cycles and the vicissitudes of women’s financial status reveal a continuing feminization of poverty. The 2010 Patient Protection and Affordable Care Act, Obamacare, may mitigate or exacerbate recourse to bankruptcy. In October 2013, the first BAPCA debtors may get fresh Chapter 7 relief, rather than file Chapter 13.

Endnotes Oliver B. Pollak, “Gender and Bankruptcy: An Empirical Analysis of Evolving Trends in Chapter 7 and Chapter 13 Bankruptcy Filings, 1967-1997,” Commercial Law Journal, 102 (Fall 1997), 333-37. See also Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook, As We Forgive Our Debtors (Oxford, 1989), Karen Gross, Failure and Forgiveness (Yale, 1997).

1

John Golmant and Tom Ulrich, “Bankruptcy Repeat Filings,” ABI Law Review 14:169 (2006) 181.

2

Diane Zech, Bankruptcy Clerk of Court, provided the repeat filing statistics.

3

The 1967 through 1996-97 statistics are based on my 1997 article. The 2007 statistics are based on 1,188 cases filed in January, July and December. The 2013 statistics are based on all cases filed.

4

The Bankruptcy Reform Act of 1978 replaced the Bankruptcy Act of 1938 in 1979.

5

Golmant and Ulrich, 181-82.

6

The Bible in Leviticus and Deuteronomy sets a seven year debt forgiveness cycle. The 1978 code set it at six years and in 2005 BAPCA extended subsequent chapter 7 filing to 8 years.

7

Golmant and Ulrich, 169.

8

Jay L. Zagorsky and Lois R. Lupica, “A Study of Consumers’ Post-Discharge Finances: Struggles, Stasis, or Fresh-Start?,” American Bankruptcy Institute Law Review vol. 16 Spring 2008, 283-319.

9

Gene Sperling, “How to Refloat These Boats,” Washington Post, September 18, 2005, online.

10

Lance Miller and Michelle M. Miller, “Repeat Filers under BAPCPA: A Legal and Economic Analysis,” Norton Annual Survey of Bankruptcy Law, 2008, 529, online.

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J u ly / A u g u st 2 0 1 3


NCLE & the NSBA Family Law Section present the

2013 Annual Family Law Update

Friday, July 19, 2013 • 8:15 am - 4:45 pm Embassy Suites - La Vista • 12520 Westport Parkway, La Vista, NE 68128-2198 LIVE CREDIT *Nebraska MCLE Activity #79609. 6.75 CLE hours including 2.0 ethics. 12:00 pm Lunch (included with your registration)

8:15 am Introductions & Welcome Adam E. Astley, Esq., Planning Chair

1:00 pm Daubert Challenges to Custody Evaluations Chris Johnson

8:30 am Representing Non-Citizens in Domestic Matters Carol Cleaver

1:35 pm Case Law Update Steve Flodman

9:30 am Thinking Outside The Box: Ideas for Dealing with Problem Cases John Ballew

2:50 pm

Break

10:20 am Break

3:05 pm Legislative Update Jane Langan

10:35 am Social Security Elections: What Divorce Practitioners Need to Know Joe Elsasser, CFP

3:45 pm John Steele

Ethics

4:45 pm Reception Sponsored by Adam Astley’s Nebraska Child Support Calculator www.nebraskachildsupportcalculator.com

11:25 am “Drive-by Child Support” William P. MacKenzie

LIVE SEMINAR REGISTRATION FORM: Family Law Update - July 19,2013 Materials will NOT be printed for registrants unless requested and paid the additional fee below. ALL registrants will receive a link to download and print the materials ahead of time as well as a CD of the materials the day of the seminar.

c Registration - $235

c Family Law Section Members - $195

c Not a Member of the Section? Join now, pay $15 dues plus Section price for a total of $210 c I am attending the Family Law seminar & want printed materials - $45 (cost is additional to registration fee)

I am unable to attend, please send me: c Printed Manual - $95 c CD Only - $55 Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

You will receive an email from the NSBA confirming your registration for the live seminar. If you do not receive an email confirmation, please call 402-475-7091.

Want to watch the webcast?

Returning this form does not register you for the available webcast. You must register with our 3rd party provider. http://nebar.bizvision.com/product/2013annualfamilylawupdate%289502%29 *Distance Learning Credit - Nebraska MCLE Accreditation pending. Estimated 6.75 CLE hours including 2.0 ethics. **Only 5 distance learning CLE hours may be claimed per year for Nebraska.** THE NEBRASKA LAWYER

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J u ly / A u g u st 2 0 1 3


coaches’ corner

Courageous Conversations: How to say everything you wish you didn’t have to Part 2 of a 3 part series: Practice, Preparing with Intention, Partnering Language, and Pausing

by Susan Ann Koenig In this series we explore why even lawyers sometimes have difficulty saying what needs to be said in a way that others can hear. In Part 1 we covered the basics of identifying the conversation you’ve been postponing, what that’s costing you, and how to see clearly what’s at stake. We looked at the importance of taking the time to ensure the “who, what, when, where, and why” of the conversation were each in keeping with our intentions. In Part 2, we get to the heart of what needs to be said. We’ll look at why the words you use may not be the most important part of the conversation. We’ll look at the qualities that you want to demonstrate during your conversation and the intentions for the conversation.

The Words We Dread Saying

“You have no legal basis for a claim.” “They have ended negotiations and filed suit.” “For these types of matters, the firm requires a $10,000 retainer.” “I predict that if this matter proceeds to trial that we will lose.” “It will cost more to litigate this case that the amount in dispute.” “The verdict was not in our favor.”

Whether it is about fees, the state of the law, the position being taking by opposing party, or an unfavorable court ruling, lawyers are often called upon to have courageous conversations with clients.

The practice of law is a profession which demands that we have uncomfortable conversations. We are routinely messengers of news clients don’t want to hear.

Then there are the conversations with opposing counsel. These can be as straightforward as turning down a settlement offer or as delicate as inviting a member of the bar to reflect on the ethics of their behavior in the courtroom.

Susan Ann Koenig

Apart from clients and lawyers outside of our office, there are those conversations that need to take place just down the hall. Many a lawyer has put off talking to an associate about ignoring client development or speaking to a partner about coming to the office hung over from drinking.

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 co-author 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. nebraskadivorce.com. THE NEBRASKA LAWYER

My most dreaded dialogues arose during my days of practicing juvenile law. “You will not be able to see your children.” “Your parental rights were terminated.” “Our appeal was denied.”

I discovered that no matter how difficult the topic, the worst of it usually boiled down to a handful of words.

➡ 27

J u ly / A u g u st 2 0 1 3


coaches’ corner When I realized that I was capable of getting the toughest sentence out my mouth, I knew that I could figure out the rest. Today I recognize the value in getting clear about what I am most afraid of saying. When I see it is often just a few words, it doesn’t seem quite as scary. For lawyers who (dare I say?) can be at risk for large egos, being vulnerable and making apologies may be the last type of conversation they want to have. These, in fact, are often the simplest: I was wrong. I’m sorry. What can I do? Still dreading saying those few words? Try writing them down and saying them out loud. “I’d like to revisit how my compensation is determined.” “I’m withdrawing from your case.” “Your performance is not meeting expectations.”

The words that we have never spoken before are likely to be the ones that make us most anxious. If you are a seasoned litigator, certain client conversations are old hat. If you are new to managing or supervising others, personnel talks can be tough. Have compassion for yourself if you notice that conversations which are easy for others are a challenge for you. It’s often simply a matter of practice.

Avoiding “I’m Right/You’re Wrong” Conversation When you prepare to have a conversation that really matters, consider your intentions. Lawyers very naturally go the place they know best: Being an advocate for their position. If your intention is to be a zealous advocate, you’ll want to study up on negotiation and litigation tactics. However, if want you seek is a meaningful dialogue, keep reading. Like any other lawyer, I like to be right. Even better, I like other people to agree that I’m right. Being lawyers, we can always build an impressive case for why we are right. (Just ask your friends.) What I have learned, however, is that in that the harder I try to convince someone else that I’m right, the less they are listening and the more they are defending. Instead of being my client’s ally or my paralegal’s supportive boss, suddenly I become the enemy. To have an authentic conversation, it is necessary to remove your lawyer hat of “I’m right/You’re wrong.” The minute you launch in that familiar direction of arguing your point you have ceased to have a conversation and have begun your oral argument. Save your brilliant advocacy for the courtroom. The minute you begin making the other person wrong you have put them on the defensive. You are no longer on the same team. You are the offense. They are the defense. You keep attacking, they get protective and defend. It becomes a battle, THE NEBRASKA LAWYER

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not a conversation. We all know that the “I’m right/You’re wrong” conversations can go on for an eternity. Most of us have heard ourselves say, “I’ve had this conversation with them a thousand times!” Get clear on your intention for the conversation, and make it something other than proving that you are right and the other person is wrong.

What Matters More Than Words All of us can remember the words of some painful conversation from our past. There were those cruel words spoken to us as a child, and those thoughtless angry words that escaped our lips only to be regretted the moment they were uttered. While the words we speak in a high stakes conversation are important, the reality is that how we are being is more important than the words themselves. Before launching into an important talk, reflect on the qualities you are willing to demonstrate in order for you to be your best. Are you willing to be respectful, regardless of the behavior of the other person? Are you willing to be courageous, even if the conversation makes you anxious? Are you willing to be compassionate, notwithstanding your judgments? If you stay true to your intentions, you will speak with integrity no matter what happens on the other side of the conversation. The more you stay true to your best values and highest intentions, the greater the prospects that the other person will, too.

Partnering Language So by now you have decided to have the conversation. You have decided the “Who, What, When, Where, and Why.” You have practiced the dreaded words at the heart of the conversation. You have set your intention and chosen the qualities you are willing to demonstrate. Still not sure how to begin? Knowing how to start these conversations is a hurdle that can easily be overcome with the use of partnering language. Inviting the other person to partner with you in the conversation allows you to start slowly. Imagine how it feels to hear someone say, “We need to talk.” Don’t you immediately feel like you are in trouble of some sort? Compare this to, “Would you have time to help me look at something that’s been on my mind?” Notice that the latter invites the person to talk with you, rather than suggesting that you are going to talk at them. Rather than putting the other person on the defensive from the start, you send a message that you are open to listening to what they have to say. J u ly / A u g u st 2 0 1 3


coaches’ corner Other partnering phrases can sound like this:

Pause to observe yourself and the sensations in your body. Is your voice getting loud? Is your speech getting rapid? Have you folded your arms across your chest? Is your heart beating fast?

“Could we put our heads together and explore ways to make this easier?” “Would you be willing to sit down with me and visit about our marketing?” “Can we to look together at how the Miller case is going?”

Remember, the other person is likely to be as anxious about the conversation as you. Starting with partnering language will make it easier for you both.

Pause Don’t rush important conversations. Be spacious. You may have been thinking about this conversation for a long time. However, the other person may be surprised and need space to take in what you are inviting them to look at. Pause to allow moments of silence. It is tempting to judge a statement made by the other person and to respond with disagreement or advice.

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Take a few deep breaths. Resist the urge to make the other person wrong. Revisit your intention for the conversation and the qualities you promised yourself you were willing to demonstrate. Most importantly, pause to listen. As Stephen R. Covey said, seek first to understand, then to be understood. We constantly urge our witnesses to listen to the question before responding. These conversations are a great opportunity for us to practice what we preach about the power and importance of listening first. If you feel ready to have that conversation you’ve been putting off, I hope you do. If you’d like to learn more, stay tuned for Part 3. We’ll look at more tools and techniques for ensuring the conversation goes well once it is underway. Until then, do try this at home!

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Unauthorized Practice of Law Advisory Opinion

(6) The documents referred to in §3-1004 (A)(3), (4) and (5) to be prepared by nonlawyers shall be on standardized forms which may contain various blanks to be filled in, the completion or selection of which does not require the knowledge, judgment, or skill of one trained as a lawyer.

The Commission on Unauthorized Practice of Law (UPL Commission) received a request for an advisory opinion from an attorney on behalf of a Nebraska title company. This opinion is issued pursuant to Neb. Ct. R. 3-1012(D).

(7) No counsel or advice shall be given with respect to the meaning, validity, or legal effect of the document or regarding the rights and obligations of the parties.

Does the preparation of the following forms constitute the unauthorized practice of law (UPL)?

The process for obtaining the release of a child support judgment lien and for subordination of a child support judgment lien is governed by Neb. Rev. Stat. 42-371 which provides in part:

1- Release of Child Support Judgment 2- Subordination of Child Support Judgment

Under the Uniform Interstate Family support Act and sections 41-347 to 42-381, 43-290, 43-512 to 43-512.10, 43-1401 to 43-1418:

The sample documents provided for analysis with this opinion are almost identical, with differences in language that distinguish the purpose as a “release” or “subordination”. They are formatted for filing with a heading, caption, and designated space for notarization. There is a blank space for the description of the property. Additionally, there is text regarding the payment status of the lien and a disclaimer regarding the judgment lien holder’s rights “under Nebraska Law regarding the terms and conditions of the Decree other than as provided therein”. There is a statement at the bottom of the form regarding the inability of the title company to “legally” give advice “regarding the signing of this document”. (See Exhibits A & B)

(1) All judgments and orders for payment of money shall be liens, as in other actions, upon real property and any personal property registered with any county office and may be enforced or collected by execution and the means authorized for collection of money judgments; (2) The judgment creditor may execute a partial or total release of the judgment or a document subordinating the lien of the judgment to any other lien, generally or on specific real or personal property.

Yes, the completion of the “Release of Child Support Judgment” and “Subordination of Child Support Judgment” constitute UPL. Neb. Ct. R. 3-1004(A) provides exceptions and exclusions to activities by title companies and other nonlawyers that are not prohibited under certain conditions. This opinion will explain why the conditions are not met here.

Release of a judgment for child support or spousal support or subordination of a lien of a judgment for child support or spousal support may, if all such payments are current and not delinquent or in arrears, be released or subordinated by a release or subordination document executed by the judgment creditor, and such document shall be sufficient to remove or subordinate the lien. A properly executed, notarized release or subordination document explicitly reciting that all child support payments or spousal support payments are current is prima facie evidence that such payments are in fact current.

§ 3-1004. Exceptions and exclusions. Whether or not they constitute the practice of law, the following are not prohibited: (A) Title insurance companies authorized to do business in the State of Nebraska and their licensed agents, real estate rental agencies, licensed real estate brokers and their affiliated licensees, and employees of such entities, preparing certain documents that would normally involve the practice of law subject to the following:

(3) If a judgment creditor refuses to execute a release of the judgment or subordination of a lien as provided in subdivision (2) of this section or the support payments are not current, the person desiring such release or subordination may file an application for the relief desired in the court which rendered the original judgment. A copy of the application and a notice of hearing shall be served on the judgment creditor either personally or by registered or certified mail no later than ten days before the date of payment and that the release or subordination will not unduly reduce the security, the court may issue an order releasing real or personal property from the judgment lien or issue an order subordinating the judgment lien . . . [F]or purposes of this section, a current certified copy of support order payment history from the title IV-D Division of the Department of Health and Human Services setting forth evidence that all support payments are current is prima facie evidence that such payments are in fact current and is valid for thirty days after the date of certification.

(1) The transaction involved is merely incidental to their lawful business as a title insurance company or licensed agent thereof, rental agency, real estate broker, or affiliated licensees of a real estate broker. (2) The transaction arises in the usual course of business for the title insurance company issuing title insurance, the rental agency as agent for the lessor or the lessee, the broker who is the listing or selling broker, or the real estate licensee affiliated with the broker. (5) In closing a real estate sale, licensed real estate brokers and title insurance companies and their licensed agents may prepare deeds, releases which do not affect judgment liens, deeds of reconveyance, title affidavits, closing statements, and related documents. THE NEBRASKA LAWYER

Under R. 3-1004 (A) (5) title companies may not prepare documents effectuating releases or subordination of child support liens. The release or subordination of a child support judgment 30

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payments. Neb. Rev. Stat. 42-371(2).

lien does “affect the judgment lien”. The word ‘affect’ is “(n)ot a legal term of art, but a word of ordinary English.” Nebraska Power Co. v. Omaha Ice & Cold Storage, Inc., 147 Neb. 324 (Neb. 1946). “’Affect’ means to ‘act upon; influence; change… often used in the sense of acting injuriously upon persons and things’.” 147 Neb. 324,328, citing Black’s Law Dictionary, 3d Ed., p. 72. A judgment lien attaches to real property “within the county where the judgment was rendered “ , “from the day on which such judgments are rendered”. Neb. Rev. Stat. § 25-1504. A child support judgment provides future protection for the judgment lien holder as “a lien not only for past due installments but also as security for installments to fall due in the future.” McCook Nat. Bank v. Myers, 243 Neb. 853 at 868 (1983) Citing Action Realty Co., Inc. v. Miller, 191 Neb. 381, 385-86. The release of a child support judgment lien extinguishes that lien, thereby disabling the judgment lien holder from using the property to enforce the judgment for any future

Subordination is “The act or process by which a person’s rights are ranked below the rights of others”. Black’s Law Dictionary, 5th Ed., p. 1279. Therefore, the subordination of a child support lien reduces its impact by placing the judgment lien holder’s rights in an inferior position to that of another. The effect on the judgment lien caused by either a release or subordination is potentially injurious to the lien holder if the judgment debtor ceases payments in the future. For R.3-1004(A)(5) to apply as an exception, releases prepared by title companies (and other specified nonlawyers) must not affect judgment liens. Therefore, the preparation of a release or subordination of a child support judgment lien by title companies is UPL. For the foregoing reasons, the preparation of documents for the release or subordination of child support judgment liens constitutes the unauthorized practice of law by title companies.

You Have Done Everything Your Client Expected.

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the client. At Minnesota Lawyers Mutual we don’t just sell you a policy. We work hard to give you the tools and knowledge necessary to reduce your risk of a malpractice claim. We invite you to give us a call at 800-422-1370 or go online at www.mlmins.com and find out for yourself what we mean when we say, “Protecting your practice is our policy.”

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Client- Nebraska Lawyer 2010


EXHIBIT A

IN THE DISTRICT COURT OF _______________ COUNTY, NEBRASKA __________, __________ -vs__________, __________

) ) ) ) ) ) )

RELEASE OF CHILD SUPPORT JUDGMENT

__________, the __________, hereby: 1. States and affirms that all payments for Child Support due from the Respondent pursuant to the terms of the Decree entered herein are current. 2. Releases the lien for Child Support judgment on the following described property:

__________ shall not be deemed to have waived any rights available to __________ under Nebraska Law regarding the terms and conditions of the Decree other than as provided herein. Dated this ___________ day of _____________, 20___. By:__________________________ __________ , State of

____________________

County of ____________________

ยง

Subscribed and sworn to before me, a Notary Public by __________ on this ____ day of ______________________, 20___. By:__________________________ Notary Public

The attached document is acceptable to Nebraska Title Company and will satisfy requirement No. ____ on Schedule B-I of Commitment No. ________________. The staff of Nebraska Title Company cannot legally give you advice regarding the signing of this document. If you have any questions, please consult your attorney before signing and returning this document to us.

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EXHIBIT B

IN THE DISTRICT COURT OF __________________ COUNTY, NEBRASKA __________, __________ -vs__________, __________

) ) ) ) ) ) )

SUBORDINATION OF CHILD SUPPORT JUDGMENT

__________, the __________, hereby: 3. States and affirms that all payments for child support due from the Respondent pursuant to the terms of the Decree entered herein are current. 4. Subordinates the lien for child support judgment on the following described property: To the Deed of Trust executed on the _____________ day of ________________, ________, in the stated amount of $__________, in favor of ____________________, recorded ________________ as Inst. No. ____-_______; records of _____________ County, Nebraska. __________ shall not be deemed to have waived any rights available to __________ under Nebraska Law regarding the terms and conditions of the Decree other than as provided herein. Dated this ___________ day of _____________, 20___. By:__________________________ __________ , State of

____________________

County of ____________________

ยง

Subscribed and sworn to before me, a Notary Public by __________ on this ____ day of ______________________, 20___. By:__________________________ Notary Public The attached document is acceptable to Nebraska Title Company and will satisfy requirement No. ___ on Schedule B-I of Commitment No. _________. The staff of Nebraska Title Company cannot legally give you advice regarding the signing of this document. If you have any questions, please consult your attorney before signing and returning this document to us.

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Nebraska Ethics Advisory Opinion for Lawyers

ity. Rule 1.1. COMPETENCE: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonable necessary for the representation.

No. 13-02 a nebraska lawyer who is not licensed as a mediator under the nebraska parenting act (nebraska revised statutes

§ 43-2921),

The Comment to the aforementioned Rule includes the following: “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.... A lawyer can provide adequate representation in a wholly novel field through necessary study.”

should not mediate in cases

involving proceedings or modifications where parenting functions are at issue (nebraska revised stat-

42 - husband and 1418 - infants and juveniles). utes chapter

wife, and

§§ 43-1401-

Question Presented

Rule 2.3. LAWYER SERVING AS THIRD-PARTY NEUTRAL

Whether a Nebraska Lawyer who is otherwise highly trained and experienced in mediating in Nebraska and elsewhere is subject to the requirements of the Nebraska Parenting Act which would require that attorney to comply with the Parenting Act and receive additional training and certification.

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

Facts A Nebraska Lawyer serves as a professional mediator in various civil and commercial matters. He has mediated hundreds of cases and is considered one of the most popular and experienced mediators in the state, if not the Midwestern Region. He has also mediated several Domestic matters in which child custody and visitation are at issue although he is not certified as a mediator under the Nebraska Parenting Act (Nebraska Revised Statutes §43-2921). While no one has challenged his experience or abilities as a mediator, an issue has arisen as to whether he may ethically mediate Parenting Act cases. Therefore, and Advisory Opinion has been requested.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a thirdparty neutral and a lawyer’s role as one who represents a client. Uniform Mediation Act, Neb. Rev. Stat. 25-2930, et seq. The following provisions of the Uniform Mediation Act are relevant to the issue presented.

Relevant Authorities

25-2931. Terms, defined. For purposes of the Uniform Mediation Act:

The following authorities are relevant to the issue presented.

(I) Mediation means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

Nebraska Rules of Professional Conduct. First, the Nebraska Rules of Professional Conduct provides in relevant part as follows:

(2) Mediation communication means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

Preamble, §5: A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

(3) Mediator means an individual who conducts a mediation. *

*

25-2932. Scope. (a) Except as otherwise provided in subsection (b) or (c) of this section, the Uniform Mediation Act applies to a mediation in which: (I) the mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator;

Preamble, § 6: In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authorTHE NEBRASKA LAWYER

*

(2) the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation com34

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munications will be privileged against disclosure; or

available;

(3) the mediation parties use as a mediator an individual who holds himself or herself out as a mediator, or the mediation is provided by a person that holds itself out as providing mediation.

(3) Council shall mean the Advisory Council on Dispute Resolution;

*

*

(4) Director shall mean the Director of the Office of Dispute Resolution;

*

25-2938. Mediatorâ&#x20AC;&#x2122;s disclosure of conflicts of interest; background.

(5) Dispute resolution process shall mean a process by which the parties involved in a dispute voluntarily agree to enter into informal discussion and negotiation with the assistance of a mediator;

(a) Before accepting a mediation, an individual who is requested to serve as a mediator shall:

(6) Mediation shall mean the intervention into a dispute by a third party who has no decision making authority and is impartial to the issues being discussed;

(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and

(7) Mediator shall mean a person trained in the process of mediation who assists parties in dispute to reach a mutually acceptable resolution of their conflict; and

(2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation.

(8) Office shall mean the Office of Dispute Resolution. 25-2908. Director; duties. Consistent with the purposes and objectives of the Dispute Resolution Act and in consultation with the council, the director shall:

(b) If a mediator learns any fact described in subdivision (a)(l) of this section after accepting a mediation, the mediator shall disclose it as soon as is practicable.

(1) Make information on the formation of center available statewide and encourage the formation of centers;

(c) An individual who is requested to serve as a mediator shall disclose the mediatorâ&#x20AC;&#x2122;s qualifications to mediate a dispute.

(2) Approve centers which meet requirements for approval;

(d) A person that violates subsection (a), (b), or (g) of this section is precluded by the violation from asserting a privilege under section 25-2933.

(3) Develop a uniform system of reporting and collecting statistical data from approved centers; (4) Develop a uniform system of evaluating approved centers;

(e) subsections (a), (b), (c), and (g) do not apply to an individual acting as a judge.

(5) Prepare a yearly budget for the implementation of the act and distribute funds to approved centers;

(f) The Uniform Mediation Act does not require that a mediator have a special qualification by background or profession. (Emphasis added)

(6) Develop guidelines for a sliding scale of fees to be charged by approved centers;

(g) A mediator must be impartial, unless after disclosure of the facts required in subsections (a) and (b) of this section to be disclosed, the parties agree otherwise. *

*

(7) Develop curricula and initiate training sessions (8) Establish volunteer training programs; (9) Promote public awareness of the dispute resolution process;

*

(10) Apply for and receive funds from public and private sources for carrying out the purposes and obligations of the act; and

25-2941. Uniformity of application and construction. In applying and construing the Uniform Mediation Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(11) Develop a uniform system to create and maintain a roster of mediators for juvenile offender and victim mediation, as provided in section 43-245, and centers approved under section 25-2909. The roster shall be made available to courts and county attorneys.

Nebraska Dispute Resolution Act, Neb. Rev. Stat. 25-2901.

25-2913. Mediators; qualifications; compensation; powers and duties. (1) Mediators of approved centers shall have completed at least thirty hours of training in conflict resolution techniques, neutrality, agreement writing, and ethics. For disputes involving marital dissolution, mediators of approved centers shall have an additional thirty hours in family mediation. An initial apprenticeship with an experienced mediator shall be required for at least three sessions for all mediators without prior mediation experience.

The following provisions of the Nebraska Dispute Resolution Act are relevant to the issue presented: 25-2903. Terms, defined. For purposes of the Dispute Resolution Act: (1) Approved center shall mean a center that has applied for and received approval from the director under section 25-2909; (2) Center shall mean a nonprofit organization or a courtestablished program which makes dispute resolution procedures THE NEBRASKA LAWYER

â&#x17E;Ą

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25-2919. Application of act. The Dispute Resolution Act shall apply only to approved centers and mediators of such centers.

relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child.

Nebraska Parenting Act, Neb. Rev. Stat. 43-2920, et seq.

Given the potential profound effects on children from witnessing child abuse or neglect or domestic intimate partner abuse, as well as being directly abused, the courts shall recognize the duty and responsibility to keep the child or children safe when presented with a preponderance of the evidence of child abuse or neglect or domestic intimate partner abuse, including evidence of a child being used by the abuser to establish or maintain power and control over the victim. In domestic intimate partner abuse cases, the best interests of each child are often served by keeping the child and the victimized partner safe and not allowing the abuser to continue the abuse. When child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict prevents the best interests of the child from being served in the parenting arrangement, then the safety and welfare of the child is paramount in the resolution of those conflicts.

The following provisions of the Nebraska Parenting Act may be relevant to the issue presented: 43-2921. Legislative findings. The Legislature finds that it is in the best interests of a child that a parenting plan be developed in any proceeding under Chapter 42 involving custody, parenting time, visitation, or other access with a child and that the parenting plan establish specific individual responsibility for performing such parenting functions as are necessary and appropriate for the care and healthy development of each child affected by the parenting plan. The Legislature further finds that it is in the best interests of a child to have a safe, stable, and nurturing environment. The best interests of each child shall be paramount and consideration shall be given to the desires and wishes of the child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning.

43-2922. Terms, defined. For purposes of the Parenting Act:

In any proceeding involving a child, the best interests of the child shall be the standard by which the court adjudicates and establishes the individual responsibilities, including consideration in any custody, parenting time, visitation, or other access determinations as well as resolution of conflicts affecting each child. The state presumes the critical importance of the parent-child relationship in the welfare and development of the child and that the

* * * (14) Mediation means a method of nonjudicial intervention in which a trained, neutral third-party mediator, who has no decision making authority, provides a structured process in which individuals and families in conflict work through parenting and other related family issues with the goal of achieving a voluntary, mutually agreeable parenting plan or related resolution;

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ciliation program counselor, a court conciliation program mediator, an approved mediation center affiliated mediator, or a mediator in private practice.

(15) Mediator means a mediator meeting the qualifications of section 43-2938 and acting in accordance with the Parenting Act; * * * 43-2927. Training; screening guidelines and safety procedures; State Court Administrator’s office; duties.

(2) To qualify as a Parenting Act mediator (emphasis added), a person shall have basic mediation training and family mediation training, approved by the Office of Dispute Resolution, and shall have served as an apprentice to a mediator as defined in section 25-2903. The training shall include, but not be limited to:

(1) Mediators involved in proceedings under the Parenting Act shall participate in training approved by the State Court Administrator to recognize child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict and its potential impact upon children and families.

(a) Knowledge of the court system and procedures used in contested family matters; (b) General knowledge of family law, especially regarding custody, parenting time, visitation, and other access, and support, including calculation of child support using the child support guidelines pursuant to section 42-364.16;

(2) Screening guidelines and safety procedures for cases involving conditions identified in subsection (1) of section 43-2939 shall be devised by the State Court Administrator. Such screening shall be conducted by mediators using State Court Administrator-approved screening tools.

(c) Knowledge of other resources in the state to which parties and children can be referred for assistance;

(3) Such screening shall be conducted as a part of the individual initial screening session for each case referred to mediation under the Parenting Act prior to setting the case for mediation to determine whether or not it is appropriate to proceed in mediation or to proceed in a form of specialized alternative dispute resolution.

(d) General knowledge of child development, the potential effects of dissolution or parental separation upon children, parents, and extended families, and the psychology of families; (e) Knowledge of child abuse or neglect and domestic intimate partner abuse and their potential impact upon the safety of family members, including knowledge of provisions for safety, transition plans, domestic intimate partner abuse screening protocols, and mediation safety measures; and

(4) The State Court Administrator’s office, in collaboration with professionals in the fields of domestic abuse services, child and family services, mediation, and law, shall develop and approve curricula for the training required under subsection (1) of this section, as well as develop and approve rules, procedures, and forms for training and screening for child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict.

(f) Knowledge in regard to the potential effects of domestic violence on a child; the nature and extent of domestic intimate partner abuse; the social and family dynamics of domestic intimate partner abuse; techniques for identifying and assisting families affected by domestic intimate partner abuse; interviewing, documentation of, and appropriate recommendations for families affected by domestic intimate partner abuse; and availability of community and legal domestic violence resources.

43-2937. Court referral to mediation or specialized alternative dispute resolution; temporary relief; specialized alternative dispute resolution rule; approval; mandatory court order; when. (1) In addition to those cases that are mandatorily referred to mediation or specialized alternative dispute resolution under subsection (3) of this section, a court may, at any time in the proceedings upon its own motion or upon the motion of either party, refer a case to mediation or specialized alternative dispute resolution in order to attempt resolution of any relevant matter. The court may state a date for the case to return to court, and the court shall not grant an extension of such date except for cause. If the court refers a case to mediation or specialized alternative dispute resolution, the court may, if appropriate, order temporary relief, including necessary support and provision for payment of mediation costs. Court referral shall be to a mediator agreed to by the parties and approved by the court, an approved mediation center, or a court conciliation program. The State Court Administrator’s office shall develop a process to approve mediators under the Parenting Act. (Emphasis added)

(3) To qualify as an approved specialized mediator for parents involved in high conflict and situations in which abuse is present, the mediator shall apply to an approved mediation center or court conciliation program for consideration to be listed as an approved specialized mediator. The approved mediation center or court conciliation program shall submit its list of approved specialized mediators to the Office of Dispute Resolution on an annual basis. Minimum requirements to be listed as an approved specialized mediator include: (a) Affiliation with a court conciliation program or an approved mediation center; (b) Meeting the minimum standards for a Parenting Act mediator under this section; (c) Meeting additional relevant standards and qualifications as determined by the State Court Administrator; and (d) Satisfactorily completing an additional minimum twentyfour-hour specialized alternative dispute resolution domestic mediation training course developed by entities providing domestic abuse services and mediation services for children and

* * * 43-2938. Mediator; qualifications; training; approved; specialized mediator; requirements.

(1) A mediator under the Parenting Act may be a court conTHE NEBRASKA LAWYER

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has been breached. However, violation of the Standards of Practice and Ethics for Family Mediators may result in disqualification from rosters of approved Parenting Act Mediators. (Emphasis added).

families and approved by the State Court Administrator. This course shall include advanced education in regard to the potential effects of domestic violence on the child; the nature and extent of domestic intimate partner abuse; the social and family dynamics of domestic intimate partner abuse; techniques for identifying and assisting families affected by domestic intimate partner abuse; and appropriate and safe mediation strategies to assist parties in developing a parenting plan, provisions for safety, and a transition plan, as necessary and relevant.

II. SCOPE, DEFINITION, MEDIATOR’S ROLE, GENERAL PRINCIPLES, AND EFFECTIVE DATE. A. Scope. The Standards set out in this document shall apply to all family mediators practicing under the Nebraska Parenting Act. The Nebraska Office of Dispute Resolution (ODR) recommends that all family mediators practicing in the State of Nebraska adhere to these standards. (Emphasis added)

43-2940. Mediation; uniform standards of practice; State Court Administrator; duties; mediation conducted in private. (1) Mediation of cases under the Parenting Act shall be governed by uniform standards of practice adopted by the State Court Administrator. In adopting the standards of practice, the State Court Administrator shall consider standards developed by recognized associations of mediators and attorneys and other relevant standards governing mediation and other dispute resolution processes of proceedings for the determination of parenting plans or dissolution of marriage. The standards of practice shall include, but not be limited to, all of the following:

STANDARD II. EDUCATION AND TRAINING A family mediator shall be qualified by education and training to undertake the mediation. STANDARD XIII. MEDIATOR COMPETENCY A family mediator shall acquire and maintain professional competence in mediation.

Analysis The Requesting Attorney is subject to the provisions of the Nebraska Parenting Act if he wants to mediate disputes which touch, in any manner, subjects addressed by Nebraska Revised Statutes Chapter 42 (Husband and Wife), and §§ 43-14011418. Additionally, the Parenting Act MAY apply to proceedings or modifications in which parenting functions for a child are at issue under Chapters 30 and 42. This is the “where and when” the Act is applicable per § 43-2924. The Requesting Attorney has already admitted that he has not completed the training required for by the Act and, because of this he fails Standard II of the Nebraska Standards of Practice and Ethics for Family Mediators. This failure may result in disqualification from rosters of approved Parenting Act Mediators. Here is where The Requesting Attorney runs into the ethical dilemma of knowingly continuing to operate as a family mediator even though he does not have the statutorily required training to do so.

(a) Provision for the best interests of the child and the safeguarding of the rights of the child in regard to each parent, consistent with the act; (b) Facilitation of the transition of the family by detailing factors to be considered in decisions concerning the child’s future; (c) The conducting of negotiations in such a way as to address the relationships between the parties, considering safety and the ability to freely negotiate and make decisions; and (d) Provision for a specialized alternative dispute resolution process in cases where any of the conditions specified in subsection (1) of section 43-2939 exist. (2) Mediation under the Parenting Act shall be conducted in private. Nebraska Standards of Practice and Ethics for Family Mediators.

These standards serve as the foundation for these standards and conduct of mediators practicing Parenting Act and family mediation in the state of Nebraska. They set out standards of behavior and ethical considerations for mediators in relationship to the parties in dispute, fellow mediators, and the citizens of Nebraska.

The key to the Act is not the legal or mediation abilities of the mediators – rather, it is the mediator’s newly created duty to be cognizant of, and responsible for, the reporting of child abuse, child neglect, domestic intimate partner abuse, and/ or unresolved parental conflict. The definition for “mediator” listed under § 43-2922 “means a mediator meeting the qualifications of section 43-2938 and acting in accordance with the Parenting Act.” The imperative requirements (“shall”) listed under § 43-2938 are in place to make sure mediators addressing Act subjects have the proper training to address the aforementioned duties. Further, Standard II of the Nebraska Standards of Practice and Ethics for Family Mediators clearly lays out the training required to handle mediation under the Act. The Requesting Attorney does not have this training and is not interested in doing this training.

Nothing in these standards should be interpreted to establish or augment any substantive legal duty on the part of mediators. Violation of a Standard shall not give rise to a cause of action nor shall it create any presumption that a legal duty

The Requesting Attorney is a very accomplished mediator, but the Act’s applicability under § 43-2924 requires the training listed under § 43-2938 and The Requesting Attorney does not have this. Therefore, per the Act, he is not able to serve as a

The Nebraska Standards of Practice and Ethics for Family Mediators was prepared by the Director/State Court Administrator pursuant to Neb. Rev. Stat. 43-2940(1) above. The following provisions of the Nebraska Standards of Practice and Ethics for Family Mediators may be relevant to the issue presented: I. INTRODUCTION

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developed by recognized associations of mediators and attorneys (listed above). The Requesting Attorney points out that the Introduction to the Nebraska Standards of Practice and Ethics for Family Mediators specifically states:

mediator on matters under the Act. The Nebraska Standards of Practice and Ethics for Family Mediators have three primary goals: (1) to serve as a guide for the conduct and practice of Parenting Act and family mediators; (2) to inform the mediating parties about mediation practice; and (3) to instill public confidence in the mediation process. Neb. Rev. Stat. § 43-2940 (1) (Supp. 2007) states: “Mediation of cases under the Parenting Act shall be governed by uniform standards of practice adopted by the State Court Administrator.” These standards are adapted from existing codes of conduct and standards for mediators, including the Model Standards of Practice for Family and Divorce Mediation, adopted and approved by the Association of Family and Conciliation Courts (AFCC) in 2000 and the American Bar Association House of Delegates in 2001; the AAA/ ABA/ACR Model Standards of Conduct for Mediators (2005); the Nebraska Office of Dispute Resolution (ODR) Manual of Standards and Ethics for Center Mediators (2001); the Nebraska Parenting Act (2008); the Nebraska Dispute Resolution Act (1991); and the Nebraska Uniform Mediation Act (2003). Based on this background and the Act’s clear language, the training is required to serve as a mediator under the Act.

Nothing in these standards should be interpreted to establish or augment any substantive legal duty on the part of mediators. Violation of a Standard shall not give rise to a cause of action nor shall it create any presumption that a legal duty has been breached. However, violation of the Standards of Practice and Ethics for Family Mediators may result in disqualification from rosters of approved Parenting Act Mediators. The Requesting Attorney readily accepts that he would not be included on a list of approved mediators as he is not looking for court-appointed work. And, based on the aforementioned language, if he ignores the training requirements of the Act and serves a mediator anyway, there is no cause of action that can be brought against him, either by the State or a disgruntled party following a mediation outcome grabbing at straws. Where The Requesting Attorney suffers in his argument is his repeated oversight that a “mediator” under the Act is qualified by the training required by the Act. A mediator agreed to by the courts or the parties or whomever under the Act, is still a mediator who has fulfilled the training requirements of the Act. The Requesting Attorney does not have this training. Therefore, per the Act, he is not able to serve as a mediator on matters under the Act.

The Requesting Attorney fails to accept these goals and standards of practice, insisting that his experience in complex commercial mediation qualifies him to address Act subjects. The Requesting Attorney appears to make a sustainable argument with his Proposed Conclusion of Law where he argues that Neb. Rev. Stat. § 43-2940(1) of the Act allows for uniform standards of practice developed by the State Court Administrator as

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In reality, the arguments of both the attorney opposing the Requesting Attorney’s position and The Requesting Attorney are both correct – the Act’s training requirements are not optional, but the punishment under the Act is a non-deterrent. If The Requesting Attorney is interested in exposing himself to liabilities for missing an opportunity to detect and report on child abuse, child neglect, domestic intimate partner abuse, and/or unresolved parental conflict because he does not have the proper training, as defined by the State of Nebraska, then the Act has no deterring effect.

public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” To knowingly ignore the training requirements of the Act and to continue serving as a mediator under the Act does not conform to the requirements of the law or further confidence in the justice system that created those laws. It is for this reason that The Requesting Attorney might open himself up to violations of the Rules and should consider precluding himself from serving as a mediator for matters addressed by the Act. The risk seems to outweigh the reward, especially considering he does mediations under the Act so infrequently.

But, the Nebraska Rules of Professional Conduct do, starting with § 5 of the Preamble: A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

Conclusion In order to maintain standards and ensure confidence in the Nebraska Legal System and otherwise maintain respect for the Nebraska Rules of Professional Conduct, A Nebraska Lawyer who is not licensed as a mediator under the Nebraska Parenting Act (Nebraska Revised Statutes Chapter 42 (Husband and Wife), and §§ 43-1401-1418) should not mediate in cases involving proceedings or modifications where parenting functions are at issue.

Further, § 6 states: “In addition, a lawyer should further the

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Nebraska Ethics Advisory Opinion for Lawyers

[16] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

No. 13-04 after learning that client consultations may have been monitored by government authorities, a lawyer may continue to represent a criminal defendant held in custody if he reasonably concludes that law enforcement authorities are not eavesdrop-

ping on communications with his client, and that the client has given informed consent to the means of future consultations that the lawyer and client together devise.

Question Presented

§ 3-501.4. Communications.

Does a lawyer violate rules of professional conduct if he continue to represent a criminal defendant, including consultations with his client, after learning that law enforcement authorities may have eavesdropped on previous consultations?

(a) A lawyer shall:

Facts

A lawyer who is an officer in the U. S. Marine Corps has been detailed to represent detainees at the Guantanamo Bay facility in Cuba. Lawyers representing detainees are required to consult with their clients in conference rooms located in the facility. Objects resembling listening devices were found in the conference rooms, leading the defense lawyers to conclude that their consultations with their clients were overheard by government personnel. The devices were removed and the government has assured the lawyers that their confidential consultations with their clients are not being overheard. The lawyer now seeks the opinion of this committee whether his continued consultation with his client and representation in the tribunal proceedings is permitted by the Rules of Professional Conduct.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

COMMENT [2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take.… [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved.…

Applicable Rules of Professional Conduct § 3-501.6. Confidentiality of information.

§ 3-501.0. Terminology.

(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).

(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

COMMENT [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. …

Discussion Confidentiality of communications, embodied by Rule 501.6, is fundamental to the relation between lawyer and client. A defendant held in a government detention facility, like any other client, is entitled to expect that his communications with his lawyer will be confidential. This discussion will focus on the lawyer’s obligations under the rules of professional conduct upon learning that lawyer-client communications may have been overheard by

[15] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. THE NEBRASKA LAWYER

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government officials. It should be noted that this discussion will not cover topics related to evidentiary rules regarding privileged communications or issues of constitutional law.

the client’s suspicion that it will continue may not be eliminated by mere assurances from the government. This then puts the lawyer in the position of inviting the client to voluntarily expose his future consultations to disclosure. Here again, the rules demand informed consent by the client before proceeding. Rule 501.6(a) requires the client’s informed consent to any voluntary disclosure of confidential communications. Rule 501.4(a) (1) requires a lawyer to inform his client about a “decision or circumstance with respect to which the client’s informed consent…is required…” The standards for informed consent are spelled out in rule 501.0(e) and comment [6] to that rule. Taken together, these rules require the lawyer to explain the situation to his client in as much detail as necessary to satisfy himself that the client has enough information to make an intelligent decision about whether to proceed with future consultations, and what alternative methods of communication the client may wish to use.

First of all, upon learning there may have been eavesdropping in the past, the lawyer must do what he can to assure that it will not happen any more. Comments [15] and [16] to rule 501.6 draw attention to this obligation. The lawyer must “act competently to safeguard information” and “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” The definitions in rule 501.0 show that the lawyer’s actions will be compared to the objective standard of a reasonably prudent and competent lawyer facing the same circumstances. Given the unusual facts presented in this request, the lawyer acts competently by obtaining assurances from government sources that he reasonably concludes are trustworthy. Second, the rules lead to the conclusion that it is up to the client to decide whether and how to continue future consultations. Comment 16 to rule 501.6 draws attention to this point: “A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.” Rule 501.2(a) requires the lawyer to abide by the client’s decisions concerning the objectives of representation. Securing privacy is essential to the communication between lawyer and client about the “objectives of representation” in any litigated matter, and in the circumstances of this request the client must make the final decision about how to proceed.

Under the circumstances described in this request, there are two steps the lawyer must take: (1) take every reasonable precaution to assure that no future eavesdropping will occur; and (2) fully inform his client and abide by his client’s informed decision about the means of future communications.

Conclusion After learning that client consultations may have been monitored by government authorities, a lawyer may continue to represent a criminal defendant held in custody if he reasonably concludes that law enforcement authorities are not eavesdropping on communications with his client, and that the client has given informed consent to the means of future consultations that the lawyer and client together devise.

Since the question of previous eavesdropping has been raised,

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NSBA calendar

NSBA Events Calendar July 2013

September 2013

11-13

Advanced Estate Planning Estes Park, Colorado

19

Labor & Employment Law Section Seminar Scott Conference Center, Omaha

19

2013 Annual Family Law Update Embassy Suites, La Vista

27

NCLE Annual Real Estate Institute Embassy Suites, La Vista

August 2013

October 2013

12-16

GAP Class UNL College of Law, Lincoln

2-4

12-30

Quashing Hunger Food Drive

19

NLF Charity Golf Tournament Firethorn Golf Club, Lincoln

November 2013 8

NSBA Annual Meeting Embassy Suites, La Vista

NCLE Workers’ Compensation Seminar Location TBA

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Minority Justice Committee Ethics Seminar Series Sponsored by the Lane Foundation Cross Cultural Considerations in Alternative Dispute Resolution

featuring Jacqueline N. Font-Guzmán, M.H.A., J.D., Ph.D., Creighton University School of Law This seminar explores the implications of culture for alternative dispute resolution and provides some suggestions as to how to address these issues: How to increase awareness of the cultural underpinnings of the legal system and its relationship with ADR processes? How cultural values and communication styles embedded within the justice system –

Friday, July 19, 2013 Kearney

e.g., universalism, power distance – impact the perception of justice in ADR processes? How do cultural values influence trust and confidence in the judicial system? Are cross-cultural ethical standards possible in ADR? What can be done to address cross-cultural differences in an effective manner?

Monday, September 9, 2013 Lincoln

Friday, September 13, 2013 Omaha

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2:30pm - 4:30pm Holiday Inn Express 508 2nd Avenue South Kearney, NE 68847 *Nebraska MCLE Activity #77451 2.0 ethics hours

2:30pm - 4:30pm Cornhusker Hotel 333 S 13th St. Lincoln, NE 68508 *Nebraska MCLE Activity #77598 2.0 ethics hours

2:30pm - 4:30pm Creighton University School of Law 2500 California Plaza Omaha, NE 68178 *Nebraska MCLE Activity #77599 2.0 ethics hours

Cross Cultural Considerations in Client Interviewing featuring Liliana Shannon, Legal Aid of Nebraska

context of the client’s culture. Otherwise, vital information could be omitted or distorted, affecting the quality of the representation and advice provided by the lawyer, and impacting significant rights and interests of the client.

One of the skills lawyers need to have is the ability to appropriately conduct a client interview and to adequately convey that which is required by § 3-501 of the Nebraska Rules of Professional Conduct (scope of representation, communications, fees, confidentiality of information, conflicts of interest, declining representation, duties to the client, etc.) effectively to clients of different racial, ethnic, cultural, or linguistic backgrounds. Awareness of these differences, and skill in managing conversations across these unique cultural aspects, influences the amount, the quality, and the quickness with which the attorney can gain the information from the client that is necessary to be an effective advocate. In order to ensure that the lawyer has all of the information relevant to the case, he or she needs to understand the client in the

Friday, August 2, 2013 Lincoln

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2:30pm - 4:30pm Hruska Law Center 635 S 14th St. Lincoln, NE 68508 *Nebraska MCLE Activity #77452 2.0 ethics hours

Americans with Disability Act: Your Law Firm/Organization as a Place of Public Accommodation featuring Scott P. Moore

Tuesday, August 6, 2013 Columbus

The Americans with Disabilities Act and other federal law require attorneys and the Judiciary to ensure that persons with disabilities have access to legal services and the judiciary system. Access is not limited to physical accessibility, but includes providing effective communication to persons with sensory disabilities and making reasonable accommodations necessary to serve persons with disabilities. This program will describe what steps Nebraska attorneys and the Judiciary must take to meet their obligations under the ADA and to ensure persons with disabilities in Nebraska have equal access to the justice system. THE NEBRASKA LAWYER

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2:30pm - 4:30pm New World Inn 265 33rd Ave Columbus, NE 68601-6403 *Nebraska MCLE Activity #77660 2.0 ethics hours

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Minority Justice Committee Ethics Seminar Series Sponsored by the Lane Foundation The Ethical Implications of Representing Non-Citizens in Domestic Relations Matters featuring Carol Cleaver

This CLE will focus on ethical issues attorneys face representing clients in family matters involving a noncitizen. The CLE will review the Nebraska Rules of Professional Conduct and case law to discuss the attorney’s responsibility to provide competent counsel when family law and immigration law overlap.

international fiancée • Domestic abuse cases involving non-citizens • Divorce, custody, spousal and child support • Adoption of non-citizen children residing in the United States who are nationals from a Hauge Adoption Convention country

Topics covered will include:

• Juveniles eligible for federal Special Immigrant Juvenile Status

• Pre-nuptial considerations for the U.S. Citizen and

Friday, November 1, 2013 Grand Island

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2:30pm - 4:30pm Holiday Inn Grand Island 2503 S Locust St. Grand Island, NE 68801 *Nebraska MCLE Activity #78033 2.0 ethics hours

This session will also be presented at: - 2013 Annual Family Law Update - July 19, 2013 Embassy Suites, La Vista - 2013 NSBA Annual Meeting - Embassy Suites - La Vista See these individual event registrations to sign-up.

Sponsored by the Hispanic Lawyers Section of the NSBA Please check the box for the ethics seminars and dates you would like to attend REGISTRATION FORM: MJC Ethics Seminar Series You will receive an email from the NSBA confirming your registration for this seminar. If you do not receive an email confirmation, please call 402-475-7091. c

Registration - $20

Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

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letter to the editor Nebraska Needs to Base Domestic Violence Policy on Facts by Chris Johnson1 and Amy Sherman2 Nebraska’s domestic violence practices need revision, in large part because they are based on inaccurate information. The journal Partner Abuse last month completed the most comprehensive review yet conducted of existing domestic violence research. Its Partner Abuse State of Knowledge (PASK) study is a three-year research project, conducted by 42 scholars at 20 universities and research centers, and includes information on 17 areas of domestic violence research. Information about the PASK study is available at www.domesticviolenceresearch.org. The PASK study concluded that women and men commit physical and emotional abuse, and engage in control behaviors, at comparable rates. In particular, the study found that 28.3% of women had committed domestic violence compared to 21.6% of men.3 The PASK study also found that men and women are victimized at comparable rates. Overall, 23% of women were assaulted by a partner at least once in their lifetimes compared to 19% of men.4 Across studies, 40% of women and 32% of men reported expressive abuse, while 41% of women and 43% of men reported coercive abuse.5 This study further found that male and female perpetrators engage in domestic violence for similar reasons, domestic violence is correlated with similar risk factors for both men and women, most domestic violence is mutual and women engage in controlling behavior as often as men. These findings are important because the current system largely ignores male victims of domestic violence. Other than physical assault resulting in injury, female perpetrated domestic violence is largely ignored. According to the 2011-2012 Statewide Report of the Nebraska Domestic Violence and Sexual Assault Coalition, for example, the 21 domestic violence and sexual assault programs in Nebraska provided services during fiscal 2012 to 13,264 adult females, 1,560 adult males and 8,790 children/youth-undisclosed.6 This means adult males comprised only 10.5% of the adult population served (and only 6.6% of the total population served) even though the PASK study suggests they comprise half of all adult victims. Disparate impacts like this were the reason the reauthorization of the federal Violence Against Women Act (VAWA) earlier this year contained an inclusion mandate that prohibits discrimination in the provision of domestic violence services. That mandate states: ‘‘(A) NONDISCRIMINATION.—No person in THE NEBRASKA LAWYER

the United States shall, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity …, sexual orientation, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the [VAWA and related statutes.] ‘‘(B) EXCEPTION.—If sex segregation or sexspecific programming is necessary to the essential operation of a program, nothing in this paragraph shall prevent any such program or activity from consideration of an individual’s sex. In such circumstances, grantees may meet the requirements of this paragraph by providing comparable services to individuals who cannot be provided with 7 the sex-segregated or sex-specific programming.”

Following the reauthorization of VAWA, U.S. Attorney General Eric Holder said, “I applaud Congress for passing a bipartisan reauthorization that protects everyone – women and men, gay and straight, children and adults of all races, ethnicities, countries of origin, and tribal affiliations.”8 The misperception that only women are victims of domestic violence prevents many victims from receiving protection and necessary services. Even worse, it enables many perpetrators of domestic violence to use domestic violence protections as a weapon instead of a shield and shelter as was intended. Let’s be clear. Domestic violence does not occur in every case. Not even in a majority of cases, even as that term is now defined in Nebraska under one of the broadest definitions of domestic violence anywhere in the United States. One study of couples involved in custody disputes found domestic violence allegations were made in 55% of cases. Of these allegations, the courts found 59% were not supported by evidence.9 Similarly, an analysis of domestic violence restraining orders issued in 2006 in Campbell County, West Virginia concluded 81% were 10 unnecessary or based on false allegations. This is consistent with expert testimony that “between fifty and eighty percent of abuse allegations cannot be substantiated in child custody cases where a high conflict exists between the parents and there is a young child involved.”11 Fortunately, courts in other states are increasingly punishing false allegations and other abusive litigation tactics. In one such case, the California Court of Appeals upheld an attorney fee award of $552,153 for false allegations of domestic violence and other misconduct. It also awarded $15,000 for filing a frivolous appeal and sanctioned two lawyers $5,000 each for their involvement in the frivolous appeal.12 In a recent New Jersey case, an appeals court upheld an attorney fee award of over $1.5 million and an additional $300,000 in expert wit-

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letter to the editor ness fees for a variety of abusive litigation tactics in a custody dispute, including false allegations.13 False domestic violence allegations are so widespread that lawyers around the country advertise their expertise defending against them.14 In our experience, Nebraska judges rarely sanction even malicious false allegations. Some believe they are unable to do so. The failure to sanction such conduct actually encourages this behavior, which harms the children as well as the falsely accused parent. The mental health community recognizes that false claims of abuse are themselves a form of child abuse when used to interfere with the child’s healthy relationship with the other parent.15 Our society has made real progress in reducing domestic violence. Unfortunately, much more remains to be done, especially to protect male victims of domestic violence and to protect innocent children and parents from false domestic violence allegations. Domestic violence is unacceptable regardless of who is the perpetrator. Our practices need to reflect that. Nebraska needs to approach this problem in a smarter, more even-handed way. Our agencies specifically set up to address domestic violence, need to analyze why they are only reaching half of all victims. Law enforcement needs to realize that a female striking a male or engaging in some other form of abuse is just as much a crime as if the roles were reversed. Unfortunately, that’s not what happens today. It is common knowledge that women can obtain protection orders more easily than men, even on the same facts Those making false allegations should be punished, not shielded from liability. Until that occurs, we will see more false allegations particularly in cases involving custody disputes because they work and have little or no downside risk. The pendulum regarding domestic violence protection orders has swung much too far to one side, to the point that provisions intended to protect victims of domestic violence are now actually used to inflict it. The pendulum needs to move back to approach some sort of equilibrium. There is great danger in classifying all undesirable behavior as domestic violence. By doing so, the cause is trivialized. The most important becomes unimportant. The definition of domestic violence should be reexamined to see if what is in place now is overbroad. If policy makers do not correct these classifications, the backlash that will come will diminish needed protections for those most vulnerable.

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Domestic violence is a serious matter where it exists and real cases must be addressed. But the advocacy and enforcement mechanisms, the efforts to assist the victim and to hold the perpetrator responsible, must be gender neutral in all manners of application. Using preconceived notions about someone’s ethnicity, religious beliefs, and gender to apply the law erodes our confidence in our entire system of justice.

Endnotes Chris Johnson is a family law attorney in Hastings. He is a past chair of the Nebraska State Bar Association Family Law Section and has a state wide practice where he focuses almost exclusively on Domestic Relations.

1

Amy Sherman is a family law attorney in Omaha. She is a past member of the Nebraska State Bar Association House of Delegates and its Legislation Committee.

2

Partner Abuse State of Knowledge Project, Findings At-aGlance at 1. Available at http://www.springerpub.com/content/ journals/FindingsAt-a-Glance.pdf.

3

Id.

4

Id.

5

Nebraska Domestic Violence and Sexual Assault Coalition, 2011-2012 Statewide Report at 5. Available at http://ndvsac. org/wp-content/uploads/NewsLetter/Annual_Rep_2012_ FINAL_4-16-13.pdf.

6

“Violence Against Women Reauthorization Act of 2013,” Pub. L. No. 113-4, §3(b) (4).

7

“Statement by Attorney General Eric Holder on the House Passage of the Reauthorization of the Violence Against Women Act,” (Feb. 28, 2013). Available at http://www.justice.gov/opa/ pr/2013/February/13-ag-253.html.

8

Johnston J et al, “Allegations and substantiations of abuse in custody-disputing families,” 43 Fam Ct Rev 2 (2005).

9

Foster BP, “Analyzing the cost and effectiveness of governmental policies,” 22 Cost Mgmt 3 (2008).

10

Kohlman v. Kohlman, 1993 Ohio App. LEXIS 4481, 16 (Ohio 6th Dist Ct App, Sept. 24, 1993).

11

In re Marriage of Wahl & Perkins, 203 Cal.App.4th 108 (2012).

12

K.M v. S.M.M, NJ Super. Ct App Div, Doc No. A-0135-09T4 (2011).

13

See, e.g., http://www.brooklyndomesticviolenceattorney.com/ falsedomesticviolencecharges.html, http://www.denverdomesticviolencedefense.com/Domestic-Violence/False-Accusations. aspx, http://www.texasdomesticviolencelaw.com/, http://www. srhunterlaw.com/Chicago-Domestic-Violence-Attorney, http:// www.inlandempiredomesticviolence.com/Domestic-Violence/ Falsely-Accused-of-Domestic-Violence.aspx.

14

See, e.g., American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (May 2013) (“Child psychological abuse” is defined as “non-accidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child.” The diagnosis “child affected by parental relationship distress” is used “when the focus of clinical attention is the negative effects of parental relationship discord (e.g., high levels of conflict, distress, or disparagement) on a child in the family, including effects on the child’s mental or other physical disorders.“).

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NSBA news

Leadership Academy Book Drive a Resounding Success Close to 4,000 books collected for children in juvenile courts

Each year since its inception in 2007, the Nebraska State Bar Association’s Leadership Academy class has undertaken a community project. In addition to giving class members an opportunity to put their leadership skills into action, the community project is designed to give back to the community and build public trust and confidence in the profession. This year’s class sponsored a book drive to benefit the Nebraska Supreme Court’s Through the Eyes of the Child Initiative. The class set a goal of collecting 1,000 books to distribute to children and families involved with the Nebraska juvenile court system. We not only met but exceeded this goal thanks to the generosity of lawyers and firms from across the state. We collected close to 4,000 new and gently used books for the Through the Eyes of the Child Initiative! Christine Lovegrove and Michael Walsh unpack some of the 4,000 collected books for children in juvenile courts.

Members of the 2013-2014 Leadership Academy Class:

Jesse Sitz has some help putting labels in books donated as part of the Leadership Academy’s book drive. The Through the Eyes of the Child Initiative is a statewide effort and coordinated initiative of multi-disciplinary, judgeled local teams working to implement best practices into local court systems. The Initiative recently began providing books to judges to disseminate at their discretion to children and families who appear in their courtrooms. The book drive will help boost this effort and get more books in the hands of children.

Mariette Achigbu Andrew Collins Sean Connolly Staci Hartman-Nelson Sarah Helvey Nicole Jilek Nancy Johnson Amanda Karr Christin Lovegrove Sarah Macdissi Laura Maurstad Michael Mollner Brody Ockander

Luke Paladino Jonathan Papik Erin Pemberton Gary Peterson Jesse Sitz Danelle Smith Karine Sokpoh Joy Suder Gregory Walklin Michael Walsh J. Daniel Weidner Joshua Weir

“Having books in the home makes a significant difference for a child’s future,” said Marsha Fangmeyer, President, Nebraska State Bar Association. “It did for me.” A recent study found that having numerous books in the home can be as important as parents’ education level in predicting a child’s educational attainment, and even having as few as 25 books in the home instead of no books can have a meaningful impact.1 Evans, M. D. R., et al. Family scholarly culture and educational success: Books and schooling in 27 nations. Research in Social Stratification and Mobility (2010).

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Amanda Karr labels some of the donated books. J u ly / A u g u st 2 0 1 3


legal community news 2013-2014 Lincoln Bar Association Officers Announced The Lincoln Bar Association announced the 2013-2014 officers and board members: President – Frank Daley Vice President – Elizabeth Elliott Secretary – Milissa Johnson-Wiles Treasurer – Jerrod Jaeger

2013 Diversity Scholarship winters Anthony White and Wenbo Wang with Brian Bartels and Robert Rossiter from Fraser Stryker.

Board Members: Matt Kosmicki, Bob Wagner, Dave Kyker, Stan Beeder, Brittany Behrens, Susan Strong, Andrea Snowden, Sarah Newell, and Jeff Lapin.

Fraser Stryker Awards Annual Diversity Scholarships Fraser Stryker is pleased to announce that Wenbo Wang from Millard West High School and Anthony White from Burke High School are the recipients of this year’s Diversity Scholarships to be used as part of their college funds. Fraser Stryker honored Mr. Wang and Mr. White during a reception and awards presentation on May 9, 2013, in the OPPD Energy Plaza Atrium, downtown Omaha. The event hosted the scholarship recipients, their families, Fraser Stryker employees and other invited guests. Fraser Stryker wants to help talented students from diverse backgrounds who need financial help to fulfill their dream of working in the legal field. This program, started in 2006, provides financial aid for college-bound students and also give Fraser Stryker scholars the opportunity to learn about the practice of law by working in the firm during the summer months. Each scholarship is in the amount of $2,500 per academic year. Wenbo Wang is a member of the Mayor’s Youth Leadership Commission and Executive Board for Key Club. He is the founder and president of Go Club in the Omaha metro and is the co-president of the National Honor Society. Wenbo plans to study Pre-Law at New York University. Anthony White is a member of the Future Business Leaders of America, Spanish National Honors Society, and is a school ambassador and guidance aide at Burke High School. He has received “Highest Honors” Honor Roll since the fall of 2009 and received the African American Achievement Award for academic excellence presented by National Pan-Hellenic. Anthony plans to attend Creighton University to study PreLaw and Business. THE NEBRASKA LAWYER

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1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778 www.landexresearch.com J u ly / A u g u st 2 0 1 3


NCLE calendar Telephone Seminars & Webcasts

July 2013

For a complete listing and to register, go to www.nebar.com July 2013

11-13 Advanced Estate Planning Institute Estes Park, Colorado 19

2013 Annual Family Law Update Embassy Suites, La Vista

19

Cross Cultural Considerations in Alternative Dispute Resolution Holiday Inn Express, Kearney

16

Telephone Seminar: Health Care Issues in Estate Planning

23

Webcast: Representing a Buyer or Seller of an Ongoing Business

25 Open Meetings featuring John Spatz Hruska Law Center, Lincoln August 2013

24

Webcast: The Art of Advocacy What Can Lawyers Learn from Actors?

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Webcast: iPad for Transactional Lawyers

2

Cross Cultural Considerations in Client Interviewing Hruska Law Center, Lincoln

August 2013

6

Americans with Disability Act: Your Law Firm/Organization as a Place of Public Accommodation New World Inn, Columbus

7

Public Records featuring Dale Comer Hruska Law Center, Lincoln

12-16 Gap Class UNL College of Law, Lincoln

1

Telephone Seminar: Like-Kind Exchange Planning in Real Estate, Part 1 (Replay)

2

Telephone Seminar: Like-Kind Exchange Planning in Real Estate, Part 2 (Replay)

8

Telephone Seminar: Estate Planning for Pets (Replay)

28

Webcast: Clarence Darrow - Crimes, Causes, and the Courtroom

September 2013 9

Cross Cultural Considerations in Alternative Dispute Resolution Cornhusker Hotel, Lincoln

13

Cross Cultural Considerations in Alternative Dispute Resolution Creighton University School of Law, Omaha

19

NCLE Labor & Employment Law Seminar Scott Conference Center, Omaha

27

NCLE Annual Real Estate Institute Embassy Suites, La Vista

The Nebraska State Bar Foundation is pleased to support CLE for Bar members.

October 2013 2-4

2013 NSBA Annual Meeting Embassy Suites, La Vista

November 2013 1

The Ethical Implications of Representing Non-Citizens in Domestic Relations Matters Holiday Inn, Grand Island

8

NCLE Workersâ&#x20AC;&#x2122; Compensation Seminar Location TBA

Nebraska state bar FouNdatioN THE NEBRASKA LAWYER

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transitions

Career Changes.......................... ..........................and Relocations Lamson, Dugan and Murray, LLP is pleased to announce a new partner and associate to the firm. John M. Walker has become a partner. Walker is a member of the firm’s Litigation Department. He obtained his J.D., magna cum laude in 2005, from the Creighton University School of Law. While at law school, he was a member of the Creighton Law Review, the International Moot Court Board and Law Ambassadors. He also was a member of the Supreme Court Seminar John M. Walker co-taught by Professor G. Michael Fenner and United States Associate Justice Clarence Thomas. Walker graduated from Creighton University in 2002, magna cum laude with degrees in history and theology. He is admitted to practice in both State and Federal Courts in Nebraska and has also been admitted to practice on a pro hac vice basis in a number of jurisdictions. Walker is a member of the American Bar Association, the Nebraska State Bar Association, the Omaha Bar Association, and the National Association of Railroad Trial Counsel. Walker has served as an associate of the firm since 2005. Currently his practice spans a broad spectrum. He represents corporations, individuals and health care providers in a wide variety of commercial, insurance and professional negligence litigation. Sarah M. Smith received her law degree from Creighton University School of Law, in 2012, magna cum laude, with a Certificate in Litigation. While at law school, she received the Outstanding Oralist award in the final round of Creighton’s Moot Court Competition and participated in the Buffalo Niagara National Trial Competition in Buffalo, New York. Ms. Smith was a member of the Creighton Sarah M. Smith Law Review, President of the Moot Court Board, and a member of the Supreme Court Seminar cotaught by Professor G. Michael Fenner and United States Associate Justice Clarence Thomas. She received the CALI Excellence for the Future Awards in Arbitration, Comparative Constitutional Law, Contracts, Criminal Law, Legal Writing, Scientific Evidence, Trial Practice, and Witness Examination Skills. Ms. Smith received her bachelor’s degree in 2009, summa cum laude in economics and a minor in music from Creighton University. She was a member of Omicron Delta THE NEBRASKA LAWYER

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Epsilon, the International Economics Society, and President of the Pre-Law Society. She is a member of the Maricopa County Bar Association, Arizona State Bar Association, American Bar Association, and Nebraska State Bar Association. She is also a member of the Jesuit Honor Society Alpha Sigma Nu. Smith is admitted to the Arizona Bar and Nebraska State Bar. Her practice emphasis is litigation. Thompson Law Office is pleased to welcome Maurice R. Johnson and Laird T. Moore as new attorneys with the law firm. Maurice Johnson graduated from the Creighton University School of Law in 1990. In 1991, Mr. Johnson joined the Douglas County Public Defender’s Office. Since 1995, Mr. Johnson has had the privilege of practicing Federal Indian law and tribal law for Native American governments and enterprises, both in private pracMaurice R. tice and as in-house counsel for tribes. Mr. Johnson Johnson has developed substantial experience in representing and advising tribal governments in the areas of Indian gaming under the Indian Gaming Regulatory Act, Indian land claims, taxation, off- and on-reservation land acquisition, tribal jurisdiction, complex commercial arbitration, construction arbitration, tribal code drafting and revision, and the Indian Child Welfare Act. Laird Moore graduated from the University of Denver Sturm College of Law and has practiced law in Omaha since 2001, after an outstanding academic career that included internships and an opportunity to study abroad. His background includes both political and legal experience, which enhances his ability to offer his clients practical advice for solving their legal challenges. Laird T. Moore Mr. Moore’s legal experience has included representation and advice to clients in state, federal, and tribal courts on a wide variety of issues including employment disputes, breach of contracts, family law, juvenile proceedings, criminal charges, landlord-tenant law and representation in administrative hearings. Perry, Guthery, Haase & Gessford, PC LLO announces that the Hon. Richard D. Sievers (Ret) has joined the firm as Of Counsel effective with his retirement from the Nebraska Court of Appeals on May 31, 2013. Sievers was among the first six j u ly / a u g u st 2 0 1 3


transitions judges appointed to the then newly created Nebraska Court of Appeals in December of 1991 and took office in January 1992 as the Court’s first Chief Judge and served as such during the Court’s first four years. His leadership during that time was recognized in October of 1996 when he was the recipient of the Nebraska State Bar Association’s Award of Special Merit. During his time on the court he chaired the Supreme Court’s committee charged with providing assistance to pro se litigants in the Nebraska judicial system. In 2005, the Supreme Court acknowledged his work with this committee with its Award for Outstanding Judge for Service to the Community. He has authored approximately 1600 opinions including nearly 400 permanently published opinions. Prior to his judgeship, Sievers practiced law in Lincoln for 19 years doing exclusively civil trial work including personal injury, professional liability, product liability, divorce and worker’s compensation litigation. At the firm, he will focus on mediation and arbitration of all types of civil litigation, and appellate writing. He is also an Office of Dispute Resolution approved parenting plan mediator. TIM J. MCDERMOTT, a 1975 graduate of the University of Nebraska College of Law, who practices civil litigation with the Akerman Senterfitt law firm in Jacksonville, Florida, is pleased to announce that after many years spent representing motor vehicle manufacturers in products liability cases, his legal thriller novel on the subject, “Deadly Propensity,” was recently

published by Telemachus Press. The novel is available in either eBook format or paperback via Amazon.com, Barnesandnoble. com or Smashwords.com. He can be contacted at timothy. mcdermott@akerman.com, and www.akerman.com. Walentine O’Toole McQuillan & Gordon, LLP is proud to announce that effective June 1, 2013, J. Joseph McQuillan, one of its founding members, has become “Of Counsel” to the firm. After 40 years of a distinguished legal career involving more than 150 civil jury trials, Joe has decided to focus his energies on expanding his practice as a mediator. Joe has been trained in both mediation and arbitration, and has successfully represented numerous parties in both processes. Following graduation from Creighton, both undergraduate and law in 1970, Joe started practicing law in 1970 with the United States Army Judge Advocate’s Office in Fort Ord, California. After an esteemed military career consisting of representing military personnel in a multitude of civil matters and as lead defense counsel on numerous court-martials, including general courtmartials, the highest level in the military justice system, Joe returned to his hometown Omaha in 1972 and entered private practice focusing on civil litigation and criminal defense matters. In 1985, Joe, together with Richard Gordon, Richard Walentine and Richard O’Toole, established the present firm of Walentine O’Toole McQuillan & Gordon, LLP. Since its formation, the firm has diversified and grown into a full service

Jackson Lewis, an AmLaw 100 workplace law firm, recognizes

Amy Peck in our Omaha, Nebraska office. Ms. Peck dedicates her practice exclusively to immigration law. Amy Peck is currently handling numerous I-9 Notices of Inspections for clients and is conducting I-9 compliance audits for organizations across the country. The new and expanded I-9 Employment Eligibility Verification Form, issued on March 8, 2013, requires greater diligence from the employer for proper and timely completion and employment verification, and exposes employers to additional substantive and technical violations for non-compliance.

10050 Regency Circle • Suite 400 Omaha, Nebraska 68114 • 402.391.1991 With 750 attorneys practicing in 53 locations nationwide, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law. To learn more about our services, please visit www.jacksonlewis.com.

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transitions firm. Joe’s practice likewise broadened during this period of time though he primarily focused on the defense of civil cases in all courts in the region. Joe is highly regarded in the Omaha area as one of its finest trial lawyers. He is admitted to practice before the United States Supreme Court, the Federal District Court for the District of Nebraska, and the State Courts in Nebraska and Iowa. His extensive and marked trial experience, together with his training, background and countless settlements in and out of the mediation process, provides an exceptional foundation upon which for Joe to expand his mediation practice. Joe is excited to continue his career focusing more intently on mediation which he explains is simply a natural progression of his practice. In addition to being a member of the Nebraska and Iowa State Bar Associations and the Omaha Bar Association, Joe is also well known for his civic duties. Joe has served as a member of the City of Omaha Personnel Board and was its President for two years, a member of the St. Robert Bellarmine Parish Counsel where he served a term as its President and as a member of the St. Robert Bellarmine Soccer Board where he also served a term as President. Joe will begin taking additional mediation assignments commencing August 1, 2013. Please contact Joe at 402-330-6300, or jjmcquillan@ womglaw.com to discuss mediation opportunities. Spencer Fane Britt & Browne LLP is pleased to announce that Shilee Mullin has joined the firm as an of counsel member of the litigation and dispute resolution group. An experienced litigator, Shilee will be concentrating her practice primarily in the areas of creditor’s rights, general litigation, and employ-

ment law. Prior to joining Spencer Fane, Shilee served as counsel to numerous Native American Indian tribes, including the Santee Sioux Nation, Miami Tribe of Oklahoma, and Modoc Tribe of Oklahoma. Shilee has successfully managed a variety of complex litigation matters in federal trial and appellate courts throughout the country. Shilee earned her J.D. degree cum laude from the Creighton University School of Law and her B.S. in Business Administration magna cum laude from the University of Nebraska, Omaha. Prior to commencing private practice, Shilee was a federal law clerk for the Honorable Gary A. Fenner in Kansas City, Missouri. Jeana Goosmann, owner of the Goosmann Law Firm, PLC, announces the hire of an additional attorney, Bruce Smith. Smith is a graduate of the University of Nebraska Law School and received his undergraduate degree from the University of South Florida, Tampa. Smith brings significant experience Bruce Smith in the business manufacturing industry after working as Senior Counsel at IBP and BPI Technology, Inc for nearly two decades. Before that, Smith served as an Assistant United States Attorney. Bruce represents individuals and entities in legal disputes and proceedings, and acts as general counsel to various businesses in the manufacturing concerns in the region., energy and agriculture industry. Bruce’s general practice also includes but is not limited to Business and Corporate Law, Environmental Law and Health and Safety.

5th Annual Quashing Hunger Food Drive August 12 - 30, 2013 Watch your mail for more information.

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in memoriam Daniel Dewey Jewell, 90, died May 24, 2013. Mr. Jewell was born in Spalding, NE on October 20, 1922. He attended the University of Nebraska and was a member of the Alpha Tau Omega fraternity. He joined the Navy in 1942, completing Officer Training in Chicago at Midshipman’s School. He was assigned to the European Theatre and took part in the Invasion of Normandy on D-Day. Upon returning from his service in the Navy, he graduated with his Juris Doctorate degree from University of Nebraska Law School in 1949. He was licensed to practice in all Nebraska Courts; the United States District Court for the District of Nebraska; and the United States Court of Appeals for the 8th Circuit. He was a member of the American Bar Association and the Nebraska State Bar Association, serving as President during the years of 1977 and 1978. Mr. Jewell was a member of the International Association of Insurance Counsel, the Federation of Insurance Counsel, and the International Society of Barristers. He was elected as a Fellow of the American College of Trial Lawyers, a group of national trial lawyers who specialize in trial work. Since 1973, Mr. Jewell had been a member of the Nebraska State Bar Commission, and was involved in writing and administering the bar examination. Mr. Jewell was listed in the Personal Litigation section of the book, “The Best Lawyers in America” from 1987 until 1994. Mr. Jewell practiced in various areas of the law, including wills and estates, general trial practice with an emphasis on personal injury and property damage litigation, business litigation, and worker’s compensation. He was an avid outdoorsman and adventurer. He was never afraid to express his opinion, accompanied by his quick wit and unique sense of humor. He left a lasting impression on all who knew him. Preceded in death by parents, Dewey and Christina Jewell. Survived by wife, Lorene Klug Jewell, Omaha; daughters, Michelle M. Jewell, Omaha, and Danielle D. Jewell, Pittsburgh, PA; son, Richard F. Klug, Fort Lauderdale, FL; grandsons, Dr. Brandon J. Tilts and wife Dr. Dawn M. Tilts, Flagstaff, AZ, and Zachary Daniel Tilts, Houston, TX; and granddaughters, Shelby S. Tilts, and Jacqueline F. Drown and husband Scott, all of Omaha. Mucho Berri Balka, 70, died May 19, 2013. He was born May 20, 1942 to Berri Marvin and Charlotte (Bills) Balka in Oshkosh. He grew up in Garden County on a ranch near Lisco. Mucho graduated from Garden County High School in Oshkosh, receiving a BA with honors from the University of Wyoming and Juris doctorate from the University of Nebraska. Mucho served in the U.S. Army and was awarded the National Defense Service Medal, Parachute Badge, Vietnam Campaign Medal, Vietnam Service Medal, Bronze Star Medal, Meritorious Unit Citation and Aircraft Crewman Badge. Mucho had a life-long love of politics. He served as the state of Nebraska Insurance Director 1976-1978 in the Exon administration, Tax Commissioner THE NEBRASKA LAWYER

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1991-1999 for Gov. E. Benjamin Nelson and was currently serving as Legislative Aide to State Sen. Galen Hadley. Survivors include his wife of 35 years, Judy; daughter, Sara (Ryan) White and grandsons, Hudson and Lucas of Bloomington, Ill.; daughter, Ana (Steven) Ysma of Kiln, Miss., and sister, Sandra (Floyd) Schmitt of North Platte; niece, Michelle Okomoto and family; nephew, Galen Young and family. Richard T. Emery, 79, of Lincoln, died April 22, 2013. Born in Ottumwa, Iowa on April 7, 1934 to Florence (Noble) and Ralph Emery. He served in the United States Army during the Korean conflict and was awarded the Army’s Good Conduct Medal and Marksmanship Badge. He received his bachelor’s degree in business from the University of Iowa and his Juris Doctorate from the University of Iowa College of Law. He had a long career as a trust officer with First National Bank of Lincoln and he was senior vice president and head of the Trust Department at FirsTier Bank. He then worked as trust officer and was head of the Lincoln office at First Bank and subsequently US Bank. After retiring from US Bank, he went to work at First Nebraska Trust Company as a senior vice president and trust officer until he retired in 2012. He was a member of the Lincoln Probate Discussion Group, Nebraska State Bar Association, Lincoln Estate Planning Group, Madonna Foundation Planned Giving, Lincoln Downtown Rotary Club #14, Member of Lincoln Lodge #19 A.F & A.M., and Sesostris Shrine. He enjoyed the outdoors, getting together with friends for coffee, reading, spending time with his family, beating his opponents at cribbage, a glass of Chardonnay in the evening and later in life he discovered that he really enjoyed taking vacation cruises. He is survived by his daughter & son-in-law Sharon & Dan Caswell of Oregon City, Ore.; daughter & son-in-law Sarah & Chris McGowan of Omaha; grandchildren Jackson & Luke McGowan of Omaha; sister Virginia Davenport of Bloomington, Ill.; and nieces and nephews Kim & Drew Prince, Steven Prince, Connie & Steve Broguard, Dana & Phil Davenport, Susie & Gary Eggena; and many lifelong friends. Preceded in death by his parents and wife, LaVonne. George R. Horner, 81, of Vermillion, SD, died April 4th, 2013. George was born December 1, 1931 in Sioux City, the son of Samuel and Ann Marie (Lass) Horner. He grew up in Vermillion, SD and graduated from high school in 1949. He attended The University of South Dakota, majoring in political science, and graduated in June 1953. He entered law school and received his law degree in June 1956. He was admitted to practice in South Dakota and Nebraska. He was recognized for his legal service of 50 years by both states. George married Terri (Terese) Van Overscheld June 27, 1954. After graduation from law school, he and Terri moved to Omaha, where he was employed at USF&G Insurance Company as a claims

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in memoriam attorney. They lived there for 10 years when George was promoted to adjuster in charge at the Grand Island office. In 1968, George became City Prosecutor. In 1969, George joined the faculty at The School of Business, University of South Dakota, and taught business law, risk management and real estate. He retired from the School of Business December 1996. George’s Naval career expanded 38 years (12 years enlisted and 26 years as a commissioned officer in Naval Intelligence). George held “Top Secret” clearance during his entire tenure as a commissioned officer. George loved fishing and he successfully hunted deer, antelope, geese, ducks, quail, pheasants and grouse in South Dakota, Nebraska and Wyoming. He enjoyed photography and took many outstanding pictures during his travels. George is survived by his wife, Terri, of Vermillion, daughter, Catherine Bennett (Bill) of Taos, New Mexico and son, Robert Horner (Audrey Hanken), of Milwaukee, Wisconsin, three grandchildren, Jasmine Cecelic (Zach), Ashley Horner and Alex Horner; five nieces, and one nephew. George was preceded in death by his parents and a sister, Marilyn Heald. Donald Ross Sampson, 80, of Central City, died on May 27, 2013. Don was born in Central City on June 26, 1932, the son of Esther (Ross) and Donald Ferris Sampson. He graduated in 1950 from Central City High School. While in high school, he met and fell in love with Jackie Magnuson. They were married on June 11, 1954. Upon graduation from high school, Don enrolled at the University of Nebraska. Don served as a Lieutenant in the U.S. Army Military Police Corps from 1954 to 1956. Upon his discharge, he returned to the University of Nebraska College of Law, graduating in June of 1958. Upon graduation and being admitted to the Bar, he returned to Central City where he began the practice of law with his father and Leo Armatys in the firm originally founded by his grandfather in 1893. Upon the death of Mr. Armatys and the retirement of his father, Don became associated with Steven Curry, John Hummel and Stephen Twiss. Don retired in 1997, and the firm continues to this day as Sampson Curry & Twiss. As a practicing attorney, Don became very active in the profession, holding numerous state and district offices. Perhaps his greatest professional honor came when he was elected as a Fellow in the American College of Trust and Estate Counsel, the only Merrick County attorney ever so selected to this prestigious organization. Until his health prohibited, Don never missed a Cornhusker home football game, sitting in the 50-yard-line seats which his father had purchased in 1936. He was an avid golfer and voracious reader. Don’s life centered around his family, his beloved wife Jackie; his sons - David and Paulette of Eau Claire, Wisconsin; Robert and Jennifer of Tampa, Florida; Joseph of New Hampton, New Hampshire; and his foster son - Rick and Katie Johnson of Pittsburgh; his four grandchildren - Sarah, Jack, Cormac and Josie. In addition to his wife, children and grandchildren; Don THE NEBRASKA LAWYER

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is survived by his sister - Eugenie Wenke of Newport Beach, California. He was preceded in death by his parents, a granddaughter - Sophia, and by his long-time golf partner and best friend, Dick Anderson. Arthur C. Toogood, 74, of Hastings, died May 24, 2013. Arthur was born on November 2, 1938 to Herbert and Stella (Novak) Toogood, in Friend, Nebraska. He graduated from Crete High School, Crete, Nebraska in 1956. Arthur graduated from Doane College in Crete, Nebraska. After graduating from Doane he then attended the University of Nebraska at Lincoln and received his Juris Doctorate. On August 27, 1971, Arthur married Janet K. Adams at the Presbyterian Church in Seward, Nebraska. Arthur served as the Adams County Attorney and then the Adams County Public Defender. He was a member of the Nebraska State Bar Association and the Masonic Temple Lodge #50 in Hastings, Nebraska. Arthur enjoyed golfing and working on his collection of cars. He is survived by his wife, Janet Toogood, Hastings, Nebraska; brother, Thomas (Michelle) Toogood, Denton, Nebraska; sister-in-law and brother-in-law, Vlasta and Bob Dahms, Seward, Nebraska; nieces, Jan Dahms, New York City, New York, Lisa Stamm, Seward, Nebraska; great niece, Miranda Stamm, Seward, Nebraska; great nephew, Bobbie Hester, Seward, Nebraska; cousin, Judy (Alan) Jones, Danville, California. Arthur was preceded in death by his parents, Herbert and Stella Toogood; aunts and uncles. Eugene P. Welch, 78, died May 22, 2013. He retired from the Omaha law firm of Gross & Welch in 2005, the company that carried his father Harry Welch’s name. Welch grew up in Omaha, graduating from Creighton Prep in 1952, then the University of Nebraska in 1956 and Creighton University School of Law in 1962. Between the two college stints, he served in the Air Force. Eugene joined his father in the firm after graduating from Creighton University School of Law in 1962. Eugene was a fellow in the American College of Trial Lawyers and served as president of the Omaha Bar Association (1979-80), as his father did in 1969-70. He also taught at Creighton’s law school, which he enjoyed very much, especially mock trial courses. Preceded in death by parents, Harry and Jean Welch. Survived by wife, Jean; children and spouses, Michael and Elaine (Eschenbacher) Welch, Christine and Kent Gerwick, Jeff and Renee Welch, and Katie and Doug Henningsen; eight grandchildren; sister, Roberta Brader; brother and sister-in-law, John and Lois Welch. 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, PO Box 95103, Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact kbellman@nebar.com. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues. J u ly / A u g u st 2 0 1 3


classified ads Stowell & Geweke, P.C., L.L.O. is accepting applications and résumés for an associate to join its law firm in Ord, Nebraska. Successful applicant needs good research, writing and communication skills. Firm will provide associate with ample mentoring and excellent client contact. Compensation package commensurate with ability and experience. Desire lawyer interested in being active in community affairs and development. Please submit application and résumé to P.O. Box 40, Ord, NE 68862 or rstowell@ordlawfirm.com. SEEKING PARALEGAL: Peck Law Firm is currently seeking a paralegal to join our team in a full-time role. Bilingual skills required (Spanish and English). As a paralegal you will be required to assist lawyers throughout the firm. Applicants need at least one year of experience, excellent attention to detail, the ability to work under pressure, and great communication and organizational skills. Interested applicants should send a cover letter, resume, and reference list to: Peck Law Firm, PO Box 24841, Omaha, NE 68124. Associate Position: 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. Preferred experience in criminal defense and/or bankruptcy. Salary and bonuses based on experience. Please email with any questions: ryan@LandPLaw.com. Looking for an attorney We are currently looking for an attorney with an established client base to join our Papillion firm. Position is ideal for a solo practitioner that would enjoy the administrative support of a firm. Please submit resume and references to sullivan@adamsandsullivan.com.

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OFFICE SHARE ARRANGEMENT Ideal for solopractitioner. One block east of the courthouse in Lincoln, Nebraska. Access to conference room and high-speed internet. Cross referrals possible. Contact Mark Rappl, Naylor & Rappl Law Office, 1111 Lincoln Mall, Suite 300, Lincoln, Nebraska, 68508. Phone 402-474-5529. Email naylorlaw@hotmail.com. OFFICE SHARING ARRANGEMENT - Office sharing arrangement for up to three attorneys. Well established visible and accessible location in the south central Omaha area. Convenient to Douglas and Sarpy County Courthouses. Private offices, multiple conference rooms, telephone, internet and all other amenities provided. Contact Mark Klinker or Barbara Van Sant, (402) 331-3330 or email mklinker@ralstonlaw.net. OFFICE SHARE/ATTORNEY ARRANGEMENT Available for 2 to 3 attorneys. Includes parking, conference rooms, break room, secretarial area, storage, phone system, high speed internet, and arrangements including staff. Office located in West Omaha and convenient to Interstate and major traffic-ways within Omaha. Contact Sarah (402) 475-7091 or sludvik@nebar.com. Appellate Brief-Writing: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com.

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For more information about any of these trips, visit www.nebar.com ALASKAN ADVENTURES Oceania Cruises - Regatta Seattle to Seattle (7 nights) July 24 – 31, 2014 From $1,999 per person, double occupancy (Airfare included)

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The Nebraska Lawyer Magazine July/August 2013