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

Farm Producers Must Make Critical Decisions Under the 2014 Farm Bill

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

James Nygren

How Portability Can (Literally) Save the Family Farm Andrew M. Loudon & Brett E. Ebert

Strategies for Assisting Farm & Ranch Clients Jason Bottlinger & Angie Miller


The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • May/June 2014 • Vol. 17 No. 3

Features

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Supreme Court Mandates Transparency When Appointing Counsel .............................................. Hon. John

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President’s Page The 35-40 Foot Fall G. Michael Fenner

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................................................ G. Michael

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........................................... Elizabeth

..................................................... Deborah

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39 Upcoming CLE Programs

Nygren

41 NLF News 2014 Barristers’ Ball

How Portability Can (Literally) Save the Family Farm

42 March 2014 VLP Pro Bono Volunteers

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M. Loudon & Brett E. Ebert

43 NSBA News Volunteer Lawyers Project Same Mission, New Approach

Strategies for Assisting Farm and Ranch Clients ........... Jason

R. Gilg

Departments

Farm Producers Must Make Critical Decisions Under the 2014 Farm Bill

............................................ Andrew

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M. Neeley

............................................................ James

Fenner

Juror Stress in High Profile or Violent Crime Trials

Executive Director’s Report

Elizabeth M. Neeley

F. Irwin

Bottlinger & Angie Miller

47 Court News Unlocking the Value of Ag Land with Charitable Remainder Trusts ........................................................... Jim

49 Transitions 51 Legal Marketplace

Gustafson

52 2014 Public Service Awards Nomination Form 54 Classified Ads

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: G. Michael Fenner, Omaha President-Elect: Amie C. Martinez, Lincoln President-Elect Designate: Robert F. Rossiter Jr., Omaha House of Delegates Chair: Joel M. Carney, Omaha House of Delegates Chair-Elect: Timothy R. Engler, Lincoln House of Delegates Chair-Elect Designate: Robert J. Parker Jr., Hastings Past President: Marsha E. Fangmeyer, Kearney Past House of Delegates Chair: Steven F. Mattoon, Sidney First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Hon. John F. Irwin, Omaha Fifth District Rep.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Supreme Court Liaison:

Robert M. Hillis, Fremont Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Executive Director:

Luke M. Simpson, Kearney Liz Neeley, Lincoln

publications chair

P. Brian Bartels

P. Brian Bartels is an associate attorney in the Employee Benefits & ERISA Practice Group at Fraser Stryker PC LLO. Brian’s practice includes advising governmental, taxexempt, and for-profit employers on qualified and nonqualified plans, executive compensation, welfare benefit plans, and health care reform. Brian graduated summa cum laude from Creighton University School of Law. He earned a master of arts degree in political science from Indiana University and graduated summa cum laude from Creighton University.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Kelly L. Anders, Omaha Melodie Turner Bellamy, Minden Christopher P. Bellmore, Omaha James C. Bocott, North Platte M. Therese Bollerup, Omaha Elizabeth S. Borchers, Omaha Joel M. Carney, Omaha Thalia L. Downing Carroll, Omaha Kent E. Endacott, Lincoln Elizabeth Eynon-Kokrda Christopher M. Ferdico, Lincoln Brandie M. Fowler, Omaha Joseph W. Grant, Omaha Carla Heathershaw Risko, Omaha Justin W. High, Omaha Tracy Hightower-Henne, Omaha

Andrea M. Jahn, Omaha Brandy R. Johnson, Lincoln Justin J. Knight, Lincoln John A. Lentz, Lincoln Jeanelle R. Lust, 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: Robert F. Rossiter Jr., Omaha Executive Editor: Kathryn A. Bellman kbellman@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S. 14th Street Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 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

The 35-40 Foot Fall

G. Michael Fenner

When he was sixteen, our son Ben fell off of a cliff. Ben, my brother, and I arrived in Moab, Utah, leaving the next day to whitewater-raft the Colorado River. We went to see Arches National Park and walked up to what seemed like a good, high vantage point. Ben was first to the top and, as any of the three of us would have done, walked to the edge to look over. Unbeknownst to us, and different from any terrain we’d ever encountered, wind and sand had gently rounded and grooved the edge. The groves were full of ball bearings—well, okay, sand, but it acted just like ball bearings, and, as though he’d stepped on ice, Ben started to slide towards the edge. Hoping friction would stop his slide, he fell straight back. All he got was a badly skinned back, a 35-40 foot fall, and a trip to the Moab doctor’s home. With the luck of one who at the age of three fell into a swollen Colorado mountain stream (see 17 The Nebraska Lawyer, No. 2, at 3 (2014)) and at the age of 21 was chased by a rhinoceros in a jungle in Nepal (see 16 The Nebraska Lawyer, No. 6, at 3 (2013)), he fell into a bed of very soft sand. And once again lived to tell the tale. As lawyers, we face the edge of a professional cliff every time we prepare a case, write a brief, or walk to the lectern for an oral argument. Have I gotten it right? Do I have the latest cases? Have I cited cases that have been amended, overruled, or reversed? Have I stretched the fall-from-the-cliff metaphor too far? Well, for each of these questions but the last, there is a simple solution. And it is brought to you free of extra charge THE NEBRASKA LAWYER

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if you are an active dues-paying member of the Nebraska State Bar Association. The solution is

Casemaker is, of course, a computerized legal research tool. As of this writing, here are some of the sources you get with Casemaker—the short list, for the long list is 14 pages of columns. And, for comparison with FastCase, I will italicize the sources that, of the two, are available only on Casemaker. NEBRASKA: Constitution; Statutes; case law; Nebraska Jury Instructions, 2d.; State Court Rules; Attorney General Opinions; Administrative Rules; Session Laws (from 2009); Advisory Ethics Opinions; Appellate Brief Bank; Lawyer’s Desk Book; Title Standards; Creighton and Nebraska Law Reviews (from 1999). IOWA: Constitution; Iowa Code; Session Laws (from 2011); case law; Iowa Court Rules. OTHER STATES: Similar to Nebraska and Iowa. FEDERAL LAWS AND REGULATIONS: United States Constitution; United States Code Public Laws; Federal Register (from 2005); Code of Federal Regulations; Internal Revenue Service Filings (both services from 1954)

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president’s page FEDERAL COURT OPINIONS: United States Supreme Court; Circuit Courts of Appeals (Casemaker from 1879, FastCase from 1924); District Courts (both services from 1932); Federal Rules Decisions (from 1940); Bankruptcy Courts (both services from 1979); Tax Court; Board of Immigration Appeals (Casemaker from 1955, FastCase from 1979); Court of Appeals—Armed Forces; Court of Appeals—Veterans Claims. FEDERAL RULES: Appellate Procedure; Bankruptcy Procedure; Civil Procedure; Criminal Procedure; Evidence; selected United States Bankruptcy Courts; United States District Courts; United States Courts of Appeals; and the Supreme Court of the United States. Casemaker is of obvious and superior value to practitioners of all stripes and sizes—large and medium-size firms, solo practitioners, government attorneys, corporate counsel, and any other kind of practice I may have left out. Consider this from a conversation I had with a partner in a large firm: ‘We use Casemaker. We have

Westlaw and Lexis, but Casemaker is so inexpensive—[$237 in] bar dues—that we just use the other two to fill in. Casemaker saves our clients a lot of money.’

In addition to its superior coverage of statutory, case, and administrative law, Casemaker’s search options are different from other similar computer legal-research services. With Casemaker, you have eleven search options: 1. Keyword, a.k.a. Boolean (e.g., “freedom of speech” w/42 gaming w/20 casino w/20 Detroit); 2. Citation (e.g., 276 F.3d 876); 3. Party (e.g., Lac Vieux Desert Band of Lake Superior Chippewa Indians); 4. Section (whatever that means); 5. Docket No. (e.g., No. 00-1879); 6. Case Name (e.g., Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board); 7. Court (e.g., Sixth Circuit); 8. Attorney (e.g., G. Michael Fenner); 9. Judge (Boyce F. Martin, Jr.);

1. Keyword; 2. Natural Language; and 3. Citation Lookup. If you want to be up-to-date . . ., if you want to be sure you have the latest law, Casemaker is the place to turn. And add these related points to the scope of coverage. Casemaker also has hot links within cases that link out to the cases cited, and, while FastCase has hotlinks as well, some don’t work. Casemaker has an editorial staff that oversees daily legislative and case updates for all 50 states and the federal government, while FastCase has no editorial staff. Casemaker’s Citator (similar to Shepard’s) shows any negative treatment of items recovered, while FastCase only provides algorithmic citation information. With Casemaker, but not with FastCase, you can create client and matter folders, and you can make notes in documents. With Casemaker you can create and name both highlevel folders and subfolders, and the folders and subfolders are easy to move or rename. With FastCase you can only deposit individual documents or search queries into one long list. Consider this from an email I received from a medium size firm: “We have made a decision, as a firm, to use Casemaker

as our research tool of choice because it provides us with everything we need that is currently provided by our current research tool. In addition, it offers us additional features such as cite checking, for no added cost, that we would otherwise be unable to afford from the current provider. It meets and exceeds our expectations for a quality research database.”

The Casemaker benefit that first comes to most attorneys’ minds is the cost. NSBA dues are $237. Casemaker is free to dues-paying members of the NSBA. The cost of Westlaw and Lexis is difficult to measure because some offices are able to negotiate rates. But, here is a comparison that is the best I can come up with: Westlaw and Lexis cost anywhere from $350 to $800 per month, depending on the level of service and the number or users. That’s $4,200 to $9,600 per year versus NSBA dues. Consider this from an email I received from a small firm:

10. Panel (e.g., Martin, Moore, O’Malley); and

“Casemaker is our firms most valued and most used benefit of membership in the Nebraska State Bar Association. For a fraction of the cost of other legal research services we receive this service plus all the other [NSBA] membership benefits. . . . I just completed writing a brief to the

11. Date Decided (e.g., January 11, 2002).

THE NEBRASKA LAWYER

FastCase has three:

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president’s page

court of appeals and was able to check each cite for both page numbers in N.W.2d and Neb. on their electronic version as well as see at a glance if there was any negative treatment of the case. I have the Casemaker app on my cell phone so I am never without a means of checking a statute or case if out of the office. This is a great legal tool and one our office would not want to be without.”

THE NEBRASKA LAWYER

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With Casemaker and the Nebraska State Bar Association, you and your practice are on solid ground, well away from the danger of a fall. And Casemaker is only one of the benefits offered by your NSBA. For more, see the President’s Page in the March/April issue—the immediately previous issue—of The Nebraska Lawyer and Liz Neeley’s Executive Director’s Report in this issue, and stay tuned for future President’s Pages.

G. Michael Fenner, President Phone: (402) 280-3090 E-Mail: fenner@creighton.edu

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2014 NSBA Benefits & Member Services NSBA Core Benefits

Additional Member Benefits

federal government and has a companion mobile app. Casemaker also offers a number of additional premium services, free to NSBA members (an additional value of $450 per year). To learn more, visit www.nebar.com or call Casemaker at (877) 659-0801.

through the ABA Bookstore. www.ababooks.org. Use promo code: NEBAR

Casemaker: Includes legal authorities for all 50 states plus the ABA Bookstore: Receive a 15% discount on all books ordered ABA Retirement Program: Call (866) 812-3580 or visit www.abaretirement.com for more information and a prospectus.

Free and Reduced Cost CLE: Receive a 25% discount on Conference Calling Services: Through your NSBA membership, NSBA CLE seminars and two (2) free hours of NSBA live ethics CLE. If you receive all ten of your mandatory hours of CLE through the NSBA, this benefit saves you more than the cost of NSBA dues ($240 in CLE discounts vs. $237 for regular active dues).

you have access to InterCall, at only 4 cents a minute. For further information call Emilee Fries at (402) 934-9706

Section Membership: NSBA members can connect with other attorneys in their area of practice through NSBA Section events, seminars and listservs and gain access to resources developed specifically by Sections.

Hotel Discounts: • Cornhusker Marriott (Lincoln) - (866) 706-7706, Corporate Code: ABA. • Lincoln Embassy Suites - http://www.embassysuites.com, Corporate Code: 0560039593. • Omaha Hilton - (800) HILTONS or (402) 998-3400, NSBA Corporate Number: 2624356

Credit Card Processing: Process credit cards the right way with LawPay. To learn more call (866) 376-0950

NebDocs: Research indicates that creating documents from within a document assembly system is 50% to 80% quicker than standard creation. In 2014, the NSBA will be working to strengthen NebDocs, an online document assembly system. NebDocs templates ask questions and automatically create customized documents based on the answers given - saving members time, effort and money in the production of repetitive documents and forms.

Office Supplies: Office Depot is proud to partner with the NSBA. For further information about Office Depot and the NSBA supply program, call Scott Davis at (888) 438-2822 ext. 205 Payroll Processing: Paychex provides a 15% NSBA member discount, one month free service and no set up fees! Take advantage by calling Paychex at (402) 331- 6600 or visit www.paychecx.com

Legislative Update: As lawyers, it is imperative that we are

up-to-date on changes to the law. The NSBA Legal Counsel reviews hundreds of bills each session. During the session, the NSBA Legislative Update is sent out weekly to update members on the status of bills impacting their areas of practice.

Software Discounts: Save up to 10%! Tabs3 and PracticeMaster make up a reliable, easy-to-use, seamlessly integrated suite of software products ranging from billing to practice management, check writing to general ledger and trust accounting. Visit the website at http://www.tabs3.com/offers/nebraskabar.html for more information or a free trial of software.

The Nebraska Lawyer Magazine: Published six times a

year, The Nebraska Lawyer offers articles on a variety of substantive legal topics, practice tips, ethics articles, as well as news from the bar, the court, and their colleagues.

TechnoLawyer: TechnoLawyer is an award-winning network of email newsletters for lawyers and law office administrators. The newsletters cover law office management, law firm marketing, legal technology, and litigation practice. For more information, visit http://technolawyer.com/affinity/nsba.asp

Insurance: Through its partnership with Mercer, the NSBA offers a full range of insurance options, including health, life, disability, and employment practice liability. Our most popular option is our Professional liability coverage, available only to NSBA members through our endorsed provider. For additional information on Mercer Consumer’s insurance products, call (866) 236-6582 or visit online at www.nebarinsurance.com.

Wardrobe: • The Men’s Wearhouse Perfect Fit - NSBA members receive a $50 merchandise reward certificate for every $500 they spend. • JoS. A. Bank Clothiers Corporate Card Program - NSBA members receive a lifetime benefit of 20% off all regular prices. For more information about the Corporate Program, call (800) 827-3921

Coming in 2014

NSBA Lawyer Referral Program: An opportunity to link NSBA members with new clients. More information to come.

THE NEBRASKA LAWYER

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NSBA Programs Support the Profession

Strengthen the Courts

Nebraska Lawyers Assistance Program (NLAP):

Judicial Resources Committee: The NSBA proposes, considers and comments on the creation, reduction and relocation of judicial vacancies in the state courts.

Offers help to lawyers, judges and law students troubled by substance abuse, stress, depression and other types of disorders that may have a negative impact on their practice of law as well as their personal lives.

Minority Justice Committee: A Joint Committee of the NSC and NSBA established to examine and address issues of racial and ethnic fairness in the courts. Responding to Unjust Criticism of Judges: Upon request, the NSBA has adopted guidelines for responding when judges are subject to unfair criticism and educates the public on the importance of a fair and impartial judiciary.

SOLACE: Provides assistance to anyone within the Nebraska legal community who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury through a statewide network of attorneys willing to get involved. SOLACE does not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions.

Self Help Desks: The Self-Help desks offered through the Fee Arbitration: Provides for expeditious resolution through Volunteer Lawyers Project assists the courts with the increasing

voluntary arbitration of disputes involving fees charged by attorneys. It is available to both attorneys and their clients and also provides a forum for voluntary arbitration of fee disputes between attorneys and physicians, stenographers, consultants and expert witnesses.

number of pro se litigants (currently offered in Buffalo, Douglas, Hall, Lancaster, and Madison).

Legislative Program: The NSBA Legislative Program supports

the Court systems. For example, NSBA lobbying protects the Court’s budgets and advocates for judicial salary increases, works to create new judgeships, helped to establish the Court of Nebraska Court of Appeals and the merit selection and retention system for judges, etc.

Seek Counsel of Professional Expertise (SCOPE):

A lawyer-to-lawyer, case-specific information service that provides the opportunity for an attorney who is unfamiliar with a legal area to talk to an attorney who is more experienced and knowledgeable.

Practice and Procedure Committee: Makes recommendations concerning the betterment of judicial administration in all courts of this State, the improvement of the working conditions and compensation of the members of the judiciary and the evaluation and promotion of an independent and impartial judiciary. The Committee also evaluates the operation of the Nebraska Rules of Evidence (including all proposed changes) in order to determine their adequate operation.

Continuing Legal Education: NSBA provides an annual

curriculum of seminars aimed at improving professional knowledge, skill, and overall competence of the members of the NSBA. Seminars are offered throughout the year in a variety of formats (live, webinars, teleconference, etc.)

Legislative Program: In addition to keeping practitioners up

to date on changes to the law, the NSBA Legislative Program represents attorneys’ professional interests. For example, in 2014, the NSBA was instrumental in the passage of a bill providing student loan forgiveness for attorneys serving in rural communities with limited access to attorneys.

Support the Public

Volunteer Lawyers Project: Provides legal assistance to low income Nebraskans through its self-help desks and direct case placement with pro bono attorneys.

Leadership Academy: The mission of the academy is to: nur-

ture effective leadership with respect to ethical, professional and community service issues; build relationships among legal leaders from across the state and from across disciplines; raise the level of awareness among lawyers regarding issues facing the legal profession; and enhance the diversity of leaders within the legal profession.

Judicial Evaluation Poll: A poll taken in even-numbered

years by the active NSBA membership which reviews the performance of Nebraska judges both state and federal. Results are mailed to the judges and later a summary is released to the press. NSBA also prepares voters’ guides to the help voters understand judicial retention elections.

Client Assistance Fund: Established in 1974, the purpose of the Client Assistance Fund is to reimburse a client who has suffered a financial loss due to dishonest attorneys. Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities. THE NEBRASKA LAWYER

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Wish you could take a recess?

If you are doubting your decision to join the legal profession, Nebraska Lawyers Assistance Program (NLAP) can help. We understand the competition, constant stress, and high expectations you face as a lawyer. Dealing with these demands and other issues can be overwhelming. NLAP offers free and confidential support because sometimes the most difficult trials happen outside the court. Nebraska Lawyers Assistance Program

Helping you win life’s trials. 24 hours • 7days (888) 584-NLAP (6527)

THE NEBRASKA LAWYER

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executive director’s report

Membership Report: Help Us Strengthen Your NSBA Benefits and Programs On Friday, December 6, 2013 the Nebraska Supreme Court issued its opinion in In Re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska. The opinion has fundamentally altered the role and the future of the Nebraska State Bar Association. We are now a hybrid mandatory/voluntary bar association. That is, while all attorneys licensed to practice in Nebraska are required to be members of the NSBA, dues to the association are now voluntary. With the first dues cycle nearly complete, we are able to report on the percentage of dues-paying members, which is 75%. A breakdown of retention rates by membership category is presented below. Not reflected in this chart, are the 100+ new law student members that were welcomed by the NSBA this spring. Membership Category

Percentage Paying Dues

Regular Active 77% Junior Active 70% Senior Active 88% Judicial Active 66% Regular Inactive 68% Overall 75% Attorneys have different motivations for supporting a bar association. For some, supporting our bar association is a way to “give back to” or invest in the future of the profession. The law is not simply an occupation - it is a profession. As a profession, lawyers are held to a higher standard of responsibility and accountability. They possess specialized knowledge and THE NEBRASKA LAWYER

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Elizabeth Neeley

are bound by the Rules of Professional Conduct. Just as the bar exam serves to maintain a standard of competency for the legal profession, the bar association helps to sustain the ongoing level of professionalism and competence among the profession. Many are motivated by the benefits that associations provide that support their practice. Benefits such as Casemaker, CLE discounts, access to Sections, legislative updates related to their area of practice, access to products like NebDocs,1 insurance discounts, or the networking and professional development opportunities that bar associations can provide. In the coming year the NSBA will be working hard to continue to improve its direct benefits to members. We have inventoried the benefits and services provided by other state bar associations and compiled a list of potential new member benefits. Things like: child support calculators; a lawyer referral program to connect attorneys with potential clients;2 discounts on law practice management systems or programs that conduct conflict checks; searchable databases of expert witnesses, consultants and other qualified experts; free access to past CLE seminar materials and practice manuals; access to an on-call certified language interpreter, online classifieds, etc. Now we need your help. Tell us how you think member benefits can be strengthened. In May of 2014, we will be disseminating an electronic survey to all active attorneys. The purpose of the survey is to obtain feedback to guide decisions about the benefits and services to be provided by the NSBA in the future. Your participation is important and appreciated.

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executive director’s report Others are motivated, not by membership benefits, but by the programs and services bar associations offer to support the profession, the courts and the public. Programs include the Nebraska Lawyers Assistance Program, the Volunteer Lawyers Project, the Client Assistance Fund, SOLACE, the Nebraska Lawyers Foundation, the Minority Justice Committee, the Rural Practice Initiative, the Judicial Evaluation Poll, the Leadership Academy, etc. Just as we are doing with member benefits, the NSBA will also be assessing the value of all programs to determine how best we can strengthen their impact. Whatever your motivation has been, thank you for your support of the Nebraska State Bar Association in 2014.

Endnotes 1

Research indicates that creating documents from within a document assembly system is 50% to 80% quicker than standard creation. In 2014, the NSBA will be working with NSBA Sections to strengthen NebDocs, an online document assembly system. NebDocs templates ask questions and automatically creates customized documents based on the answers given, saving time and effort in the production of repetitive documents and forms in a number of areas from real estate, family law, business law, probate, etc.

2

On April 5, 2014, the NSBA House of Delegates did vote to reestablish the NSBA Lawyer Referral Program in collaboration with a software company called Legal Interactive. We look forward to explaining in future issues, how this service can be used to link members with new clients. We anticipate the program to be operational by the end of 2014.

Elizabeth Neeley, Executive Director Phone: (402) 475-7091 • Fax: (402) 475-7098 E-Mail: lneeley@nebar.com

Watch for registration information in early August 2014.

THE NEBRASKA LAWYER

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feature article

Farm Producers Must Make Critical Decisions Under the 2014 Farm Bill by James Nygren

The 2014 Farm Bill (P.L. 113-79) includes substantial reforms to commodity programs and spending. Direct payments (approximately $4.5 billion per year) to agricultural producers have been eliminated, with the savings intended to enhance the federal crop insurance program and adding permanent disaster assistance. The continuation of the direct payment program had substantial political resistance in recent years due to the strength in farm income and because the recipients did not need to suffer production losses in orders to receive payments. The new legislation requires producers to make an important decision that law firms throughout Nebraska ought to familiarize themselves with: whether to sign up for one of two versions of the Agriculture Risk Coverage (ARC) program or the Price Loss Coverage (PLC) program. This is a one-time decision to be made by a deadline which will be established by USDA’s Farm Service Agency (FSA) – expected to be sometime this summer. During the five-year life of the farm bill, producers cannot change any of the remaining options.

• Price Loss Coverage The Price Loss Coverage (PLC) program is quite similar to the counter-cyclical price program it replaces. For the 2014 through 2018 crop years, a farm will be covered once all operators and landlords agree to elect PLC for any covered commodity. It is important that your clients understand that if no choice is made, this program is the default program beginning in the 2015 crop year and any potential 2014 payments will be forfeited. Farms enrolled in PLC will receive payments when the “effective price” of a covered commodity drops below its “reference price.” The effective price is the higher of the national average market price or the national average loan rate for the covered crop in effect for that marketing year. The reference price for corn is $3.70 per bushel. For soybeans, it is $8.40 per bushel. Wheat is $5.50 per bushel. Summary of PLC (Replaces “Counter-Cyclical Payment” Program)

James Nygren James Nygren is the Legislative Affairs Director for Farm Credit Services of America, based in Omaha. Prior to his position with FCSAmerica, he worked for state and federal elected officials covering Agriculture, Energy, Environment, Immigration and Trade issues. He received his B.S. and J.D. from the University of Nebraska and his M.P.S. at George Washington University. THE NEBRASKA LAWYER

This article describes each of the program options.

Reference price minus national average market price = payment rate per bushel or hundredweight Payment rate times payment yield times 85% times base acres Producers that enroll in the PLC program are also eligible to purchase a new form of crop insurance called “Supplemental Coverage Option” that is designed specifically to supplement PLC payments when losses exceed 14 percent of normal levels.

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2014 Farm Bill

• County Agricultural Risk Coverage1 If producers and landowners unanimously elect ARC with county level coverage (County ARC) for a covered commodity, they will receive County ARC payments whenever the actual county revenue for the crop year is below the County ARC revenue guarantee. The actual county revenue is calculated by multiplying the average county yield for the commodity in the current crop year by the higher of the marketing year average for the commodity or the commodity’s loan rate ($1.95 – corn; $5.00 – soybeans; $2.94 – wheat). For producers choosing county-based ARC, payments are provided to according to the producers’ base acres of covered commodities on a commodity-by-commodity basis when county crop revenue (actual average county yield times national farm price) drops below 86 percent of the county benchmark revenue (5-year Olympic average county yield times 5-year Olympic average of national price or the reference price – whichever is higher for each year), calculated separately for irrigated and nonirrigated crops. For each covered commodity enrolled on the farm, the county ARC payment amount is the difference between the per-acre guarantee (as calculated above) and actual per-acre revenue (but no greater than 10 percent of the commodity’s benchmark revenue), times 85 percent of base acres of the commodity.

Under this election, the actual revenue is calculated as a weighted average of the actual revenues for each covered commodity. Actual revenue for each individual commodity equals the yield for that commodity multiplied by the price (higher of the marketing year average price and the commodity’s loan rate). For the benchmark revenue, the revenue for each commodity for the 5 most recent crop years is calculated by multiplying the yield and national average price for each year. As with County ARC, low yields in individual years are replaced by 70 percent of the T-yield and the reference price will replace any actual prices falling below that level. Once the revenue for each year is calculated, the 5-year Olympic average of that commodity’s revenues is calculated. The Individual ARC benchmark revenue then uses the crop-specific Olympic averages to compute the weighted average whole-farm revenue, where the weights are based on planted acreage for each commodity. The Individual ARC Revenue Guarantee is set at 86 percent of that benchmark revenue. Again, the payment rate is the difference between the revenue guarantee and the actual revenue, but capped at 10 percent of the benchmark revenue resulting in coverage between 86 percent and 76 percent of the benchmark. Summary of ARC - Farm Level • Enrollment is by whole farm, not crop-by-crop • Based on the average of all covered commodities on the farm • Payment rate determined on crops actually planted • Total payment uses 65% of base acres

Summary of ARC - County Option • You make this election crop-by-crop • May choose ARC for some crops and PLC for other crops • Payment acres are 85% of base acres

Multiple farms electing farm option are combined • Payment is based on whole farm revenue shortfall • Payment rate is calculated per planted acre • May not elect PLC for any crops

Benchmark revenue times 86% equals guaranteed revenue - benchmark revenue is the product of the Olympic average of the most recent 5 years’ national average market price and the most recent 5 years’ county yield • Payment rate is guaranteed revenue minus action county revenue up to a maximum of 10% of benchmark revenue • Payment rate times 85% of base acres

There are four major differences between ARC county coverage and ARC individual coverage:

ARC County Coverage

ARC Individual Coverage

• Individual Agricultural Risk Coverage2

County Average Yields

Producer’s Actual Production

The Individual ARC uses an even more complicated formula. In general, under this program the individual farm’s yields are substituted for the county averages. Producers and landowners electing this option must apply this program to all covered commodities on the farm – it cannot be elected on a crop-by-crop basis.

Pays on Per Crop Basis

Pays on a Farm Basis

Pays on 85% of Base Acres

Pays on 65% of Base Acres

Election on a Crop-ByCrop Basis

All Farm Crops Must be Selected

Similar to the County ARC program, payments are made whenever the actual revenue falls below the revenue guarantee. However, payment acres under the individual coverage option are only 65 percent of the farm’s total base acres for all of the covered crops planted on the farm. THE NEBRASKA LAWYER

12

Also, the choice of either ARC option will make the producer ineligible to purchase the supplemental coverage option (SCO) crop insurance program on that farm, which will be made available beginning in the 2015 crop year. Related to this, in addition to price expectations, producers should also consider how the base acreage on their farms compares to what M ay / J u ne 2 0 1 4


2014 Farm Bill they expect to plant over the next five crop years. The PLC and ARC commodity programs tie payments to base acreage while the SCO program covers planted acreage.

• “Significant contribution of active personal management” will be defined through USDA rulemaking for the purpose of defining payment eligibility for farm and ranch producers.

Summary and Considerations for Program Election

• The five-year farm bill retains prior conservation compliance requirements and obliges producers to enter into conservation compliance agreements, as a prerequisite to receiving program payments.

The basic commodity farm programs in the new farm bill will be implemented by USDA for the 2014 crop year, so farm operators will have some big decisions to make in the coming months. Since the farm program decisions are for multiple years, land owners will also be required to sign-off on farm program choices on cash rental farms, and will need to be part of the decision making process. Farm program sign-up will likely not begin until sometime this summer at local Farm Service Agency (FSA) offices, and will probably continue into the fall months. Coverage for farm commodities is likely to produce significantly different payment amounts, depending on a farm’s crop mix and production history and county averages. Each farm in each county should be analyzed to see which works best for crops on those farms. Agriculture producers should be encouraged to find expert advice – tax accountants, commodity brokers, crop insurance companies, etc. – to carefully evaluate all possible price and revenue scenarios.

Other Farm Bill Considerations • There is a single payment limit of $125,000 per person for ARC and PLC program payments, marketing loan gains, and loan deficiency payments – combined.

Confidence.

• Adjusted Gross Income (AGI) rules have been replaced with a new single AGI limit of $900,000 per year on a threeyear average – based on the IRS definition for tax purposes. The new AGI amount, if exceeded, eliminates producers from farm program eligibility. It should be obvious from the foregoing that the elections in the new version of the Farm Bill involve a complex risk-benefit business analysis that is specific to each farm operator and to each farming operation. In other words, there is no “one size fits all” answer for every producer. Attorneys should carefully consider utilizing a team approach, involving accountants and other business advisors, with clients who seek advice from their legal counsel about making elections under the new program.

Endnotes 1

Thiesse, K. (March 11, 2014) Corn and Soybean Digest. New farm bill offers new farm program choices. Retrieved from: http:// cornandsoybeandigest.com/blog/new-farm-bill-offers-newfarm-program-choices?page=3

2

Coppess, J. and Paulson, N., FarmDocDaily. Agriculture Risk Coverage and Price Loss Coverage in the 2014 Farm Bill. Retrieved from http://farmdocdaily.illinois.edu/2014/02/arc-and-plc-in2014-farm-bill.html

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Elderlaw - Planning Ahead Friday, May 23, 2014 • 1:00 pm - 4:30 pm

Metropolitan Community College - Elkhorn Valley Campus, Room 114 Auditorium N 204th Street & W Dodge Road, Elkhorn, Nebraska 68022 *Nebraska MCLE Activity #91744. 3 CLE hours. 1:00

LTC (Long Term Care) Planning: One Size Does Not Fit All

4:15 Q&A 4:30 Adjourn

Cathy Wyatt

Foundational Planning Pieces; including legal documents 2:00

Cathy A. Wyatt, is a member of the Society of Certified Senior Advisors, coordinates the monthly Midlands Eldercare Network meetings, co-facilitates 3 dementia specific support groups, and writes a monthly column for Omaha Lifestyles. She is also the producer/host of “Consider This...”, a weekly, 30-minute, statewide television program produced at UNO.

Medicaid: Take Five!

Dale Percival

What is it? And, what type of an impact does it have on: Individual, Family, DHHS, LTC Insurance, & Senior Living Communities? 3:00 Break Ben Koley & Cathy Wyatt

Dale Percival, Registered Principal, and founder of Financial Visions, LLC.

The importance of income planning prior to legacy planning.

Ben Koley, Registered Representative, and registered investment advisor of Financial Visions, LLC.

3:15

Revising Your Dreams: Legacy Options

REGISTRATION FORM: Elderlaw - Planning Ahead - May 23, 2014 c NSBA Dues Paying Member - $135 c Attorneys who paid only the mandatory assessment - $180 c Law Students - $10

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. If you do not receive an email confirmation, please call 402-475-7091. If you need any special accommodation for attending this event, please contact NSBA.

THE NEBRASKA LAWYER

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feature article

How Portability Can (Literally) Save the Family Farm

by Andrew M. Loudon and Brett E. Ebert

Nebraska farmers and ranchers are sophisticated business people with the need for carefully tailored estate planning. Portability is a relatively new estate planning technique that in some instances will literally save the family farm. Despite the statistic from the Tax Policy Center estimating that in 2013 more than 99.8% of estates did not owe federal estate tax, portability and federal estate tax planning are very relevant to Nebraska ag producers due to the sharp increase in agricultural land values over the last five years. The average Nebraska farm is now 935 acres, and in some parts of our state, irrigated ground can sell for more than $10,000 an acre. Fortunately, portability is a powerful estate administration tool that helps reduce or even eliminate an estate’s federal estate tax burden.

Andrew M. Loudon and Brett E. Ebert

Portability was made permanent with the passage of the American Taxpayer Relief Act of 2012 (the “Act”) on January 2, 2013. The Act cemented the exemption equivalent of the unified credit at $5 million, indexed for inflation. The exemption in 2014 is equivalent to $5,340,000.1 Portability allows for the transfer of the deceased spousal unused exemption (DSUE) amount to a surviving spouse. The surviving spouse’s exemption equivalent is essentially increased by the amount of unused exemption of the decedent spouse.2 At first glance, portability appears to be a wonderful backstop to no or inadequate estate planning for clients with estates over $5.3 million. However, there are two overriding considerations when relying on portability. First for practitioners and clients to understand, portability does not happen automatically – the personal representative must affirmatively act within nine months of the death of the first spouse in order to elect portability.3 Second, in determining how much DSUE a surviving spouse has available, one must look at only the last predeceased spouse of the surviving spouse.

Making the Election Making a portability election is accomplished by timely filing an estate tax return within nine months of the date of death of the deceased spouse.4 Generally, the estate tax return must satisfy the requirements of all estate tax returns.5 So far, the IRS has not indicated that it will create a simplified or “EZ” Form 706. However, if an estate tax return would not otherwise have been required in the estate, the return filed only for the purpose of electing portability may not have to include the value of property that is transferred to either a surviving spouse or a qualified charity.6 (See Temporary Tres. Regs. §20.20102T(a)(7)(i)).

Andrew M. Loudon is a partner and Brett E. Ebert is an associate with Baylor, Evnen, Curtiss, Grimit & Witt, LLP. Mr. Loudon and Ms. Ebert are members of the Baylor Evnen Trusts & Estates practice group, specializing in estate planning and estate administration. THE NEBRASKA LAWYER

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Portability can save the family farm Nine months is not a significant window of time for personal representatives and their attorneys to properly file a Form 706 – especially when it would not otherwise be required. In fact, it’s possible that an attorney is not even consulted prior to the nine month deadline – thus leaving the surviving spouse without the option of electing portability. Fortunately, the IRS has provided a simplified fix to preserve portability in some estates. Revenue Procedure 2014-18 provides a simplified method of preserving portability for certain estates that did not timely file a Form 706 only for the purposes of electing portability. Prior to Rev. Proc. 2014-18, the IRS had made several private letter rulings granting extensions for estates who did not need to file an estate tax return under §6018, where the gross estate does not exceed the exclusion amount, failed to file within nine months of the decedent’s death, but desired to elect portability. Rev. Proc. 2014-18 only applies to the estates of decedents that meet the following criteria: 1) Decedent died between December 31, 2010 and December 31, 2013;

Under Rev. Proc. 2014-18, for estates that meet the above criteria, there is no need to request a private letter ruling for an extension to file the 706 under §301.9100-3. The personal representative need only file a completed 706 prior to December 31, 2014 and state at the top of the form that the return is “FILED PURSUANT TO REV. PROC. 2014-18 TO ELECT PORTABILITY UNDER § 2010(c)(5)(A).”8 Until January 1, 2015, if an estate falls under the applicability of Rev. Proc. 2014-18, the IRS will not issue a private letter ruling for an extension pursuant to §301.9100-3 – the extension method outlined in this revenue procedure must be followed. Ensuring the 706 deadline is met is the most important aspect of preserving portability. A concept that cannot be overlooked is the calculation of the Deceased Spousal Unused Exemption (DSUE) – simply put, practitioners need to know how much exemption is available to the surviving spouse.

Determining the Decease Spousal Unused Exemption (DSUE) In determining the deceased spousal unused exemption amount, the IRS makes it clear that you only look at “the last such deceased spouse.”9 However, if the surviving spouse remarries and then subsequently dies before the new spouse, the surviving spouse’s estate can still use the DSUE that was ported from his or her deceased spouse.10

2) Decedent died with a surviving spouse; 3) Decedent was as a citizen of the United States; and 4) The estate did not need to file an estate tax return under I.R.C. §6018.7

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M ay / J u ne 2 0 1 4 Life- Nebraska Lawyer 2010


Portability can save the family farm

Example 1: H1 dies in October 2011. H1’s unused exemption is $2,000,000 and the personal representative of his estate makes a timely portability election. W marries H2 in December 2012. W dies in March 2013 and H2 is still surviving. W’s total applicable exclusion is $7,250,000: $2,000,000 H1’s DSUE

$2,000,000 H1’s DSUE that was applied to taxable gifts by W _____________________________________________

$5,250,000 W’s Exemption Equivalent (2013 amount adjusted for inflation) _____________________________________________

$4,000,000 DSUE available to W’s estate

$7,250,000 W’s Total Applicable Exclusion If the surviving spouse remarries and then the new spouse predeceases the surviving spouse, the surviving spouse can only use the exemption of the last deceased spouse.11

Example 2: Same facts as above except that H2 predeceases W. H2’s DSUE is $1,000,000. The personal representative of H2’s estate makes a timely portability election. W’s total applicable exclusion is $6,250,000. $1,000,000 H2’s DSUE + $5,250,000 W’s Exemption Equivalent (2013 amount adjusted for inflation) _____________________________________________ $6,250,000 W’s Total Applicable Exclusion If H2’s dies without any DSUE amount, W’s total applicable exclusion is only her $5,250,000. The temporary treasury regulations also address the scenario where a surviving spouse has applied some of the DSUE during the surviving spouse’s lifetime to taxable gifts and has subsequently remarried. In this situation, the DSUE to be applied to the surviving spouse’s estate is determined by using the following formula12 : DSUE of Last Deceased Spouse +

DSUE of Each other Deceased Spouse that was applied to one or taxable gifts of the surviving spouse _____________________________________________ Surviving Spouse’s DSUE

Example 3: H1 dies in July 2012, survived by W. Neither had made taxable gifts during their lifetime. The DSUE of H1 is $5,000,000 and the personal representative of H1’s estate makes a timely portability election. W makes taxable gifts to THE NEBRASKA LAWYER

$2,000,000 H2’s DSUE +

+

her children for $2,000,000. At this point in time, W has an applicable exclusion amount of $8,000,000. (H1’s $5,000,000 + W’s $5,000,000 - $2,000,000 taxable gift). W marries H2 in January 2013. H2 dies in June 2013 and the personal representative elects portability of H2’s $2,000,000 DSUE. W dies in October 2013. The DSUE available to W’s estate is:

17

W’s total applicable exclusion is the available DSUE of $4,000,000 + her $5,250,000 = $9,250,000.

Portability and Estate Administration For purposes of estate administration, portability is a powerful tool for estates of decedents who had no or inadequate planning in place. It also presents a dilemma for attorneys and personal representatives handling estates with a surviving spouse where the combined estate is less than the exemption equivalent. It is challenging to convince a personal representative or surviving spouse the benefit of a Form 706 preparation when the combined estate is less than even one’s spouse’s exemption equivalent. Attorneys should present portability to clients as way to preserve an unused exemption, as well as warn clients that if they remarry, there is the risk that they will lose the DSUE of their first predeceased spouse. Besides the obvious benefit of portability in estates with no or inadequate planning, portability may also be elected as an alternative to funding a credit shelter trust under a typical “AB trust” estate plan. Prior to portability, AB trust planning was the common method for utilizing the exemption of the first spouse to die. There is one important benefit of portability that credit shelter trusts do not provide -- assets in a credit shelter trust do not receive a step up in basis at the death of the surviving spouse because they are generally not included in the estate of the second spouse.13 However, assets that are directly transferred to a surviving spouse would get a basis step up at the death of the second spouse because they are included in the surviving spouse’s estate. Upon the death of the first spouse, when clients have AB trusts in place, it is important for the the surviving spouse to decide whether the survivor should execute a disclaimer and fund the credit shelter trust or whether the spouse should receive everything outright and elect portability. The benefits of a credit shelter trust, including protection from creditors of the surviving spouse, may outweigh the portability option. Nebraska farmers and ranchers often feel they are only wealthy when they die. Fortunately, portability is a helpful method to preserve many family legacies.

M ay / J u ne 2 0 1 4


Portability can save the family farm

Endnotes 1

Rev. Proc. 2013-35.

2

I.R.C. ยง 2010(c)(2)

3

I.R.C. ยง2010(c)(5)(A).

2055(a) (charitable deduction). In addition to information about the ownership of the property, the personal representative needs to provide a good faith determination of the total value of the decedentโ€™s estate. 7

Rev. Proc. 2014-18.

4 Id.

8

Id. at Section 4.

5

Temp. Treas. Reg. ยง 20.2010-2T(a)(7)(i).

9

Temp. Treas. Reg. ยง 20.2010-3T(a)(1)(i).

6

See Temp. Treas. Reg. ยง 20.2010-2T(a)(7)(ii), describing when the personal representative need not list the value of property transferred to either a surviving spouse or qualified charity. The personal representative needs to provide the description of the property, ownership or beneficiary information, and information necessary to establish the right of the estate to the deduction under I.R.C. ยง 2056 or 2056A (marital deduction) or I.R.C. ยง

10 Temp.

Treas. Reg. ยง 20.2010-3T(a)(3).

11 Temp.

Treas. Reg. ยง 20.2010-1T(d)(5).

12 Temp.

Treas. Reg. ยง 20.2010-3T(b).

THE NEBRASKA LAWYER

13 I.R.C.

ยง 2014 (Allowing for an adjustment to fair market value for assets included in an estate).

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NSBA Government Practice Section Seminar Friday, June 13, 2014 • 8:15 am - 12:30 pm University of Nebraska College of Law Auditorium *MCLE Activity #91417. 4 CLE hours 8:15 am Employment and Caselaw Update Stephanie Caldwell, Attorney General’s Office

10:30 am Rule and Regulation Adoption & Amendment Process Panel: George Kilpatrick, Moderator, Nebraska Department of Revenue; Leslie Donley, Attorney General’s Office; Colleen Byelick, Secretary of State’s Office; Lauren Kintner, Governor’s Policy Research Office; others TBD

9:15 am Crime in the Government Workplace Wendy Wussow, Nebraska State Patrol 10:15 am

Break

12:00 pm Katie Zulkoski

Legislative Update

12:30 pm

Adjourn

REGISTRATION FORM: Government Practice Section Seminar - June 13, 2014 c NSBA Dues Paying Member - $135

c Government Practice Section Member - $120

c Attorneys who paid only the mandatory assessment - $160

c Law Students - $10

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. If you do not receive an email confirmation, please call 402-475-7091. If you need any special accommodation for attending this event, please contact NSBA.

THE NEBRASKA LAWYER

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M ay / J u ne 2 0 1 4


feature article

Strategies for Assisting Farm and Ranch Clients by Jason Bottlinger and Angie Miller

According to the United States Department of Agriculture’s 2012 Census of Agriculture, Preliminary Report, the number of beginning farmers1 in Nebraska is increasing.2 In 2012, there were 9,976 beginning farmers in Nebraska,3 an increase of 891 beginning farmers since 2007.4 However, the increasing number of beginning farmers was still eclipsed by the increasing number of established farmers (those with ten years or more on their present farm). From 2007 to 2012, the number of established farmers increased by 1,366 individuals. This data implies (1) more frequent transitions of land and, potentially, operations will occur in the near future, and (2) there are more opportunities to assist beginning farmers today, and these opportunities will continue to increase in the future.

directed at beginning farmers, specialized contract concerns, planning for transitions/succession, and a brief thought on the ethics of representing beginning farmers and established farmers looking to transition the operation to the next generation.

One way both established farmers and beginning farmers can help each other is by renting ground to/from each other. Renting relieves pressure on the beginning farmer to purchase the land (and often to acquire the massive long-term debt) necessary to maintain a profitable operation, and renting can provide big tax benefits to landowners looking to transition their lands to the next generation of farmers and ranchers.

This article introduces several strategies available for lawyers to assist their farm and ranch clients, particularly beginning farmers (though many of these strategies are mutually beneficial) and highlights common issues the authors see in their practices. These include tax incentives and loan programs

The Nebraska Legislature passed the Beginning Farmer Tax Credit Act in 1999. The Act’s purpose is “to encourage persons to seek careers in the farming industry, retain existing and established farm operations, promote the creation and retention of new farm jobs in Nebraska, and attract and retain

Tax Programs for Beginning Farmers

➡ Jason Bottlinger

Angie Miller

Jason Bottlinger, focuses his practice, as Bottlinger Law, LLC, on representing plaintiffs in a wide array of civil disputes. He has argued all over the state of Nebraska, large parts of Iowa, and the Eighth Circuit Court of Appeals in St. Louis. He received his J.D. from Baylor University Law School. THE NEBRASKA LAWYER

Angie Miller is an attorney and project director for Legal Aid of Nebraska’s Beginning Farmer and Rancher Development Program. Angie is a 2008 graduate of the Creighton University School of Law.

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strategies for assisting farm and ranch clients investment capital in rural Nebraska.”5 The programs established by the Act are developed and directed by the Beginning Farm Board. Ultimately, the Board determines each farmer’s and rancher’s eligibility to participate in the Beginning Farm Tax Program.6

Who qualifies? Under the Act, a qualified beginning farmer or rancher is an individual who (1) was domiciled in Nebraska or who maintains a permanent place of abode in Nebraska and spends in the aggregate more than six months of the taxable year in Nebraska7; (2) has entered farming or livestock production or is seeking entry into farming or livestock production; (3) intends to farm or raise crops or livestock on land located within the state borders of Nebraska, and (4) meets all of the following additional requirements8: • Has a net worth of not more than two hundred thousand dollars, including any holdings by a spouse or dependent, based on fair market value; • Provides the majority of the day-to-day physical labor and management of his or her farming or livestock production operations;

• Demonstrates a profit potential by submitting approved projected earnings statements and agrees that farming or livestock production is intended to become his or her principal source of income; • Demonstrates a need for assistance; • Participates in an approved financial management program; • Submits a nutrient management plan and a soil conservation plan on any applicable agricultural assets purchased or rented from an owner of agricultural assets; and • Meets any other qualifications specified by the Beginning Farmer Board.

The beginning farmer or rancher also cannot be related to the landowner (or the landowner’s partner, member, shareholder or trustee) by consanguinity within the third degree (borrowing the definition of “relative” from the Uniform Fraudulent Transfer Act) unless the rental agreement is included in a written succession plan.9

What assistance is available? Landowners are allowed a

• Has adequate farming or livestock production experience or demonstrates knowledge in the type of farming or livestock production for which he or she seeks assistance;

refundable credit against their Nebraska income tax liability for income from agricultural assets (e.g. land or buildings) rented to qualified beginning farmers and ranchers for a period of

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strategies for assisting farm and ranch clients three years.10 The landowner can receive a credit up to (a) ten percent (10%) of the gross rental income stated in a cash rent agreement, or (b) fifteen percent (15%) of the cash equivalent of the gross rental income in a share-rent rental agreement.11 To be eligible the agricultural asset must be rented for a three-year period, and the rental agreement must be in writing.12 Also, to qualify for the higher credit rate for a share-rent arrangement, the agreement must provide for sharing of production expenses or risk of loss, or both, between the landowner and the beginning farmer.13 A rental agreement can be terminated for reasonable cause, but termination could require repayment of prior credits.14 If a rental agreement is terminated without fault on the part of the landowner, the landowner will likely be allowed to keep previous credits.15 But, if the agreement is terminated with fault on the part of the land owner, all prior tax credits claimed by the owner will be disallowed and recaptured and will be immediately due and payable to the treasury.16 There are tax credits and exemptions available to the beginning farmer or rancher, too. For example, equipment and machinery may be exempt from personal property tax,17 and the beginning farmer is eligible for a credit equal to the cost of participation in the required financial management program (up to $500).18

How do you apply? The application process for eligibility under the Act is defined in the Nebraska Administrative Code.19 Both the beginning farmer or rancher and the landowner must complete and submit an approved Nebraska Department of Agriculture Beginning Farmer Application Packet.20 The Beginning Farmer Board evaluates each application and determines eligibility and the amount of the credit or exemption for each beginning farmer or rancher and for each landowner. Any person who wishes to challenge an eligibility decision by the Beginning Farmer Board may appeal the decision.21 Any such appeal must be made in accordance with the Administrative Procedure Act.22

USDA programs are provided through the Farm Service Agency, which offers direct and guaranteed loans to help qualified beginning farmers purchase land (farm ownership loans) and pay operating expenses (operating loans). USDA offers direct loans up to $300,000 and it offers guaranteed loans up to $1,119,000 (adjusted for inflation annually).26 Other USDA loan programs for beginning farmers and ranchers include (1) a down payment program (a 20 year term loan up to 45% of the lesser of (a) the purchase price of the farm or ranch, (b) the appraised value of the farm or ranch, or (c) $500,000)27; and (2) Sale of Inventory Farmland (eligible beginning farmers are given first priority for purchasing these FSA inventory properties).28 Other lesser-known programs are also available, such as Land Contract Guarantee Program, in which FSA provides a guarantee to the owner of a farm who sells to a beginning farmer. Under the Land Contract Guarantee Program, the purchase price cannot exceed the lesser of: (1) $500,000 or (2) the current market value of the property.29

Farm Leases Nebraska farm leases (in the absence of a different agreement) generally begin on March 1 and end on February 28 of the following year.30 Traditionally, rent is due at the expiration of the term, though different payment dates are common (e.g. with half the rent due on March 1 and the other half due on December 1 of the crop year). Nebraska does not have a statutory notice requirement for terminating a year-to-year farm tenancy, but Nebraska courts require six-month notice to terminate such a lease.31 This means – generally – notices to terminate a year-to-year farm lease must be given by September 1 to be timely. This six month notice requirement applies whether the lease is a cash lease or a sharecrop lease.32

Transition Strategies

Loans for Beginning Farmers and Ranchers Loan programs are available for beginning farmers and ranchers from the Nebraska Investment Finance Authority (NIFA)23 and also from the federal government. Eligibility and benefits differ between these programs. NIFA loans are available to individuals (firms, partnerships and corporations do not qualify) (a) who have a net worth less than $500,000, (b) who will materially and substantially participate in the agricultural operation, (c) and who have not had, at any time, any direct or indirect ownership in any parcel of land greater than 30% of the median size of a farm in the county in which the parcel is located.24 The aggregate amount THE NEBRASKA LAWYER

of the loans provided or guaranteed by NIFA cannot exceed $500,000, and the loan proceeds must be used solely to benefit the individual borrower for the purchase of land or depreciable property used for agricultural purposes in Nebraska.25

23

Transition and succession of the farm and ranch operation, including the assets of the operation, means more than just an estate plan. Successful transition of the farm and ranch business from one generation to the next requires analysis and planning for a multitude of variables, including the operation’s financial viability, handoff of day-to-day management, the parties’ understanding of mid- and long-term goals, and transition of the operation’s assets.33 Focusing on asset transition is important, but alone it probably will not lead to successful succession of the farm or ranch business. Assisting with factors beyond asset transition is critical and will foster a smoother and more successful succession to the next generation.

➡ M ay / J u ne 2 0 1 4


strategies for assisting farm and ranch clients Legal strategies abound for transitioning a farm or ranch operation (just like any business): limited liability companies, S-corporations, C-corporations, trusts etc. But when advising farm and ranch families, especially those interested in transitioning the operation to the next generation, the conversation should consider whether the operation will pass as an ongoing business or as a group of assets that may be divided.34 For the latter, a traditional estate plan carving the assets out equally amongst a group of heirs might be appropriate. But the former requires considerations, such as the treatment of “on farm” and “off farm” heirs, and whether “fair” bequests mean “equal” bequests (especially when equal distributions may eviscerate the operation’s financial viability). A successful transition plan will include exploration and definition of methods for achieving and maintaining financial viability, balancing family harmony, understanding goals and expectations of both the next and the current generation, handing off management responsibility, securing retirement for the current generation, and transitioning the assets.35 Financial viability includes not only knowledge and information about the return on investment for assets but also a viable plan to manage and pay debt.36 In other words, before bringing a successor/beginning farmer into the operation, it is vital to understand the cash flow and net worth of the operation to ensure financial viability for both the long-term farmer and beginning farmer. All parties to a successful transition must communicate their goals and expectations to each another. Without regularly communicating goals and expectations, the parties may not be headed in the same direction with the transition and succession. These goals and expectations are the basis for the business succession plan, e.g. for transitioning labor, management, income, and ownership of the operation through predetermined stages.37 Stages of gradual succession might include (1) a testing period when the beginning and established farmer are “testing” the relationship on a trial basis and forming a good working relationship; (2) a commitment period when the successor determines whether he or she is ready to commit to the farm or ranch operation, thereafter taking on more and more responsibility; (3) an established period when the successor is handling most of the day to day operations, though the owner would likely still be involved and available to assist and mentor; and (4) a withdrawal period when the owner withdraws from the operation. These stages could be several years each, or a shorter time, depending on the individuals involved and the needs of the operation. Determining when and what these stages look like for the owner and successor is the succession plan and is based upon each parties goals and expectations for the business. The business succession often includes a plan for the withdrawing owner’s financial and labor and management retirement. THE NEBRASKA LAWYER

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The asset transition plan should be consistent with their goals and objectives and designed to maximize the probability for a successful transition.

Know Who Your Client Is When working with beginning farmers and established farmers, often at the same time, it is important to know who your client is and if there is an actual or potential conflict of interest. Are you representing the beginning farmer? Or are you representing the established farmer? Are you perhaps representing both the beginning farmer and the established farmer? If you are in a situation where there are multiple generations and succession is being discussed, remember the ethical rules for concurrent conflict of interest.38 If representing both the beginning farmer and established farmer, ensure that competent and diligent representation can be made to each affected client, the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal, and each affected client gives informed consent, confirmed in writing.39 Be mindful, too, of limitations on attorney client privilege and confidentiality with commonly represented clients, particularly if litigation were ever to break out between them.40

Closing Thoughts This article scratches the surface of the programs, ideas, and opportunities available. Working with beginning farmers and farm and ranch families is an incredibly rewarding experience. It is an opportunity to help families continue a farming tradition that may span generations and to assist those new to farming. As more beginning farmers and ranchers enter the profession in Nebraska, there will be more opportunities for assistance and legal care laying a foundation for the next generation of Nebraska’s agricultural success.

Endnotes 1 For

purposes of this article, and unless stated otherwise, ‘beginning farmer’ is defined according to the United States Department of Agriculture’s definition for loan purposes. See 7 C.F.R. § 761.2(b). (A “beginning farmer” a person or entity who (1) has not operated a farm for more than 10 years, (2) meets the loan eligibility requirements of the program to which he/she is applying, (3) substantially participates in the operation, and (4) for farm ownership purposes, does not own a farm greater than 30% of the median size farm in the county.) Due to the recent passage of the Farm Bill, the median size farm is being changed to ‘average size farm’ but the C.F.R. does not reflect the change as of this writing. See Agricultural Act of 2014, Pub. L. No. 113-79, http://www.gpo.gov/fdsys/pkg/BILLS-113hr2642enr/ pdf/BILLS-113hr2642enr.pdf

2

2012 Census of Agriculture, Preliminary Report, U.S. and State Data, February 2014, pg. 18 http://www.agcensus.usda.gov/ Publications/2012/Preliminary_Report/Full_Report.pdf (last accessed April 8, 2014) (“Preliminary Report”) M ay / J u ne 2 0 1 4


strategies for assisting farm and ranch clients 3

While the Preliminary Report organizes data by number of years on present farm, the categories used of ’2 years or less’, ‘3 or 4 years’, ‘5 to 9 years’ and ’10 years or more’ are amenable to calculating the number of beginning farmers due the definition of beginning farmer in FN1.

26 7

C.F.R. §761.8(a)(2); see also www.fsa.gov.

27 7

C.F.R. § 764.203(b). Due to the recent passage of the Farm Bill, the $500,000 limitation is raised to $667,000 but the C.F.R. does not reflect the change as of this writing. See Agricultural Act of 2014, Pub. L. No. 113-79, http://www.gpo.gov/fdsys/ pkg/BILLS-113hr2642enr/pdf/BILLS-113hr2642enr.pdf

4

Id.

5

Neb. Rev. Stat. § 77-5202.

28 7

C.F.R. § 767.151.

6

Neb. Rev. Stat. §§ 77-5204 – 77-5208.

29 7

C.F.R. Part 763.

7

Neb. Rev. Stat. § 77-5203; Neb. Rev. Stat. § 77-2714.01(7).

30 Wilson

8

Neb. Rev. Stat. § 77-5209.

9

Neb. Rev. Stat. § 77-5211(5); Neb. Rev. Stat. § 36-702.

10 Neb.

Rev. Stat. § 77-5211(1) & (3).

11 Neb.

Rev. Stat. § 77-5213(1).

12 Neb.

Rev. Stat. § 77-5211(2).

13 Neb.

Rev. Stat. § 77-5213(2).

14 Neb.

Rev. Stat. § 77-5211(2).

15 Neb.

Rev. Stat. § 77-5211(2).

16 Neb.

Rev. Stat. § 77-5211(2).

17 Neb.

Rev. Stat. § 77-5209.02.

18 Neb.

Rev. Stat. § 77-5209.01.

19 91

Neb. Admin. Code § 1-001, et seq.

20 91

Neb. Admin. Code § 1-006.

31 Wilson

v. Fieldgrove, 280 Neb. 548, 553 (2010)(citing Fisher v. Stuckey, 201 Neb. 439 (1978)); Critchfield v. Remaley, 21 Neb. 178 (1887).

32 Id. 33 Goeller,

Dave, Successful Farm/Ranch Transitions, North Central Risk Management Education Center (“Goeller”), see http://www.cfra.org/files/farmtransferintroarticle.pdf. See also, for example, Iowa State University Beginning Farmer Center, http://www.extension.iastate.edu/bfc/; University of Minnesota Ag Transitions; Pennsylvania Farmlink, Planning the Future of Your Farm, July 2013.

34 Goeller,

pg. 6

35 Id. 36 Id., 37 Id.

21 Neb.

Rev. Stat. § 77-5212.

22 Neb.

Rev. Stat. § 77-5212; Neb. Rev. Stat. § 84-901, et seq.

23 Neb.

Rev. Stat. § 58-201, et seq.

24 I.R.C.

v. Fieldgrove, 280 Neb. 548, 555-56 (2010); Critchfield v. Remaley, 21 Neb. 178 (1887).

pg. 7 at pg. 12.

38 Neb.

§ 147.

R. Prof. R. § 3-501.7.

39 Id.

at §3-501.7(b)

40 Id.

at Comments 18, 30 & 31.

25 Id.

2014 School Law Seminar June 5 & 6 2014 | Holiday Inn | Kearney, Nebraska Thursday, June 5 | 5:15 to 7:30 PM Ethics Presentation - Ethics in the Information Age and More Presented by James B. Gessford of the Perry Law Firm $30 for NCOSA Members | $55 for Non-NCOSA Members *2 CLE ethics hours

Friday, June 6, 2014 | 8:00 AM to 4:00 PM School Law Seminar $95 for NCOSA Members | $150 for Non-NCOSA Members * 6 CLE hours

For a complete list of topics and presenters, visit: www.NASBonline.org To register for one, or both please contact Vicki Walter-Winters 402-817-0305 | vwinters@NASBonline.org

Co-Sponsored by the Nebraska Association of School Boards and the Nebraska Council of School Attorneys

THE NEBRASKA LAWYER

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2014 Diversity Awards The Nebraska State Bar Association Diversity Awards were established in 2010 by the Minority Justice Committee to recognize outstanding efforts made by firms, organizations or individual attorneys in promoting diversity in the legal profession in the State of Nebraska. Eligibility • All law related organizations including student organizations, and bar associations are eligible. • All law firms and legal offices are eligible, including private firms, government/public offices, and the corporate sector (activity must be specific to the Nebraska office). • Any attorney, admitted to practice in Nebraska is eligible. The attorney can be active or inactive status and from any practice setting, including academia, the judiciary, corporate, private, nonprofit, governmental sectors, etc. Diversity activities can be performed within the scope of employment or on a voluntary basis. Criteria for Selection • The nominee must demonstrate an exceptional commitment to encouraging, increasing and/or retaining diversity in the legal profession. Examples include programs and projects that:

• address issues of access and bias in the legal profession based on race, ethnicity, gender, sexual orientation, disability or age

• influence individuals who have been historically under-represented in the legal profession to pursue legal education/careers

• increase advancement opportunities for lawyers who have been historically under-represented in a particular job setting or practice area of the legal profession.

Selection Process and Awards Presentation All nominees and nominators will be notified of the receipt of submitted nominations. Representatives from the Nebraska Minority Justice Committee will review nominations and make recommendations to the NSBA House of Delegates Nominating Committee for final approval. The awards will be presented during the Nebraska State Bar Association Annual Meeting at the Embassy Suites in La Vista, which will be held from October 8-10, 2014.

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2014 Diversity Awards Nomination Form ONE COPY OF THE COMPLETED NOMINATION FORM AND SUPPORTING MATERIALS MUST BE RECEIVED BY JULY 9, 2014. Submit to: Nebraska State Bar Association, 635 South 14th St. Ste. 200, Lincoln, NE 68508 SELECT CATEGORY: c Law Related Organization

c

Law Firm

c

Individual Attorney

Name of Nominee:_______________________________________________________________________________________ Organization/Firm:______________________________________________________________________________________ Address:_______________________________________________________________________________________________ City:___________________________________________________ State:______________ Zip Code:___________________ Email:_____________________________________ Phone:_________________________ Fax:_________________________ NOMINATORS: Name:____________________________________________

Name:____________________________________________

Relationship to

Relationship to

Nominee:_________________________________________

Nominee:_________________________________________

Organization/Firm:_________________________________

Organization/Firm:_________________________________

__________________________________________________

__________________________________________________

Address:__________________________________________

Address:__________________________________________

City:____________________ State:____ Zip:____________

City:____________________ State:____ Zip:____________

Phone:____________________________________________

Phone:____________________________________________

Fax:______________________________________________

Fax:______________________________________________

Email:____________________________________________

Email:____________________________________________

In addition to this cover sheet, please provide the following information: a. Provide a brief (1 page) description of the nominee (e.g., a bio, description of the firm or organization) b. Describe the nominee’s exceptional efforts in encouraging, increasing and/or maintaining diversity in the law school pipeline or legal profession, including specific examples (2 pages). c. Describe and provide specific details and documentation on how the diversity efforts of the nominee have resulted in promoting diversity for the organization/or legal profession. (If the nominee is an individual attorney, explain whether the efforts above were made within the scope of employment or on a voluntary basis) (2 pages). d. Include supporting materials. Letters of support are not required but strongly encouraged (limit supporting materials to 10 pages).

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feature article

Unlocking the Value of Ag Land with Charitable Remainder Trusts by Jim Gustafson, Gift Planning Director, Nebraska Community Foundation

According to IRS statistics, 109,691 tax returns were filed for Charitable Remainder Trusts (CRTs) in 2011. For a taxplanning tool with so many attractive benefits, the number of tax returns filed indicates to this writer that the tool is underutilized. This article attempts to further readers’ awareness and understanding of the benefits of CRTs. We’ll start by looking at a case study of how a Nebraska couple with charitable inclinations used a CRT to unlock the appreciated value in their farmland.

Using Farmland to Fund a Charitable Remainder Trust In 2012 a married couple in their early 80’s decided it was time to simplify their lives and take advantage of the increased value of the quarter section of farmland they owned and rented out in Clay County, Nebraska. Several years earlier they had purchased the land as an investment for $1,850 an acre. Based upon an appraisal, the land was now worth more than $10,000 an acre. Because

Jim Gustafson

After evaluating the tax, income and charitable benefits, the couple decided to deed an undivided 50 percent interest in the land to a CRT. The couple and the CRT then jointly sold the land. The couple’s charitable contribution deduction for the gift to the CRT offset a substantial portion of the capital gains on the land interest they sold outright. Based upon their income needs, the couple established a two-life Charitable Remainder Unitrust (CRUT) with a 7 percent annual income payout rate. This 2012 CRUT formation resulted in tax and income benefits as follows: Real Estate Value ($10,000/acre)

$800,000

Cost Basis ($1,850/acre)

$148,000

Capital Gains Tax By-Passed

$ 97,800

Charitable Deduction (based on donor’s ages) $394,800

Jim Gustafson is the Gift Planning Director at the Nebraska Community Foundation. He served prior on the planned giving staffs of the University of Nebraska Foundation and The Salvation Army. Jim consults and lectures on various topics related to charitable gift planning and fundraising. Currently, Jim serves as president of the Nebraska Partnership for Philanthropic Planning. THE NEBRASKA LAWYER

they had some interest in charitable giving, their attorney and CPA suggested they consider the benefits of contributing all or part of the land to a CRT. By doing so they could avoid capital gains, increase their income, receive a current charitable income tax deduction and make a future gift to charity.

First-year CRUT Income @ 7%

$ 56,000

This couple decided to designate a portion of the charitable remainder to their local church. The other portion will be used to pass on their values of charitable giving to their family through a donor-advised fund with the Nebraska Community Foundation. They have named their adult children to make the grant recommendations from this fund. The Nebraska Community Foundation staff prepared a donor-advised fund agreement and will help the couple develop grant-making guidelines and principles to share with their children.

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charitable remainder trusts With the value of Nebraska’s ag land at or near record levels and the increase in the capital gains tax rates, now is the time to explore the benefits of a CRT with your charitable-minded clients who may be considering selling ag land, but are hesitant because of capital gains taxes and the need for lifetime income. The following information describes some of the benefits and considerations for determining if a CRT is a good fit for clients who may be considering the sale of ag land.

What is a Charitable Remainder Trust? A CRT is a special tax-exempt, irrevocable trust arrangement written to comply with federal tax laws. The donor can transfer cash or assets (especially appreciated assets) to the trust and receive income for one or more lifetimes; or the donor may choose a term of years (not to exceed 20). For example, the income could be paid over the lifetimes of a husband and wife; then the couple’s children could be paid income for an additional 20-year term. After the income beneficiaries’ interests have ended, the charitable remainder beneficiary or beneficiaries will receive the remaining corpus of the trust. Footnote: IRC Section 664 lists the requirements a trust must meet in order to qualify as a Charitable Remainder Trust.

Overview of the Benefits of a CRT The creation of a CRT typically provides the following benefits for the donor: • Avoids Capital Gains: No capital gains tax is due on the appreciation of the contributed property when the trustee sells and reinvests. The charitable contribution deduction is based on the fair market value of the property, not on the donor’s basis in the property. • Increases Income: The trustee can take appreciated, lowyield property, sell it and invest the proceeds in higher-yielding assets without paying capital gains taxes. • Provides an Immediate Charitable Income Tax Deduction: The deduction is based on the present value of the remainder interest.

Types of CRTs There are two basic types of CRTs: an annuity trust and a unitrust. The major difference between the two is how the payout to the income beneficiaries is determined. The annuity trust payout is a fixed annual dollar amount of not less than 5% of the initial value of the trust assets. The unitrust payout is a fixed percentage of not less than 5% of the beginning of the year value of the trust assets; as a result the unitrust payout will vary from year to year.

Annuity Trust and Unitrust Considerations • The payout rate may not exceed 50% of the initial value (annuity trust) or the annual value (unitrust). Footnote: IRC Section 664(d)(1)(A), 664(d)(2)(A)

• The present value of the charitable remainder must be at least 10% of the net fair market value of the assets transferred to the trust on the date of the gift. • When the donor names anyone other than himself/herself or a spouse as an income beneficiary, he/she is making a gift to that person with gift tax consequences. • The value of a CRT is included in the donor’s estate. If the donor or donor’s spouse are the only income beneficiaries of a CRT, the estate will receive a corresponding charitable estate deduction or marital deduction for the value of the CRT. If there are other successor income beneficiaries there may be a taxable transfer of the present value of the non-charitable beneficiaries’ income interest. • The taxation to the beneficiary of the income payout depends upon the character of the income earned by the CRT. Distributions are taxed based on a “four-tier” system, in the following order: - First, current and accumulated ordinary income, - Second, capital gain (short-term gain is deemed distributed before long-term gain) determined on a cumulative net basis, - Third, tax-exempt income, and - Fourth, trust corpus. • The trustee can be a commercial trustee, a charitable organization, an unrelated third person, or the donor. • A 1977 Revenue Ruling created the Five Percent Probability Test for Annuity Trusts. Under this test, the trust is disqualified as a CRT if the chances are greater than five percent that the income beneficiaries will live long enough to exhaust the trust, leaving nothing for the charitable remainder. Footnote: Revenue Ruling 77-374

• Unitrust options: - Standard – the unitrust payout amount will vary year to year as the value of the trust assets rises or falls. - Net Income – the trust agreement states that payment will be the lesser of the stated payout percentage or the net income earned. Footnote: Treasury Regulation Section 1.664-3(a)(1)(i)(b)

- Net Income with Makeup Provisions – allows the trustee to make up prior years’ deficiencies in payouts to the extent current income of the trust exceeds the specified unitrust amount. Footnote: Treasury Regulation Section 1.664-3(a)(1)(i)(b)

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charitable remainder trusts - Flip – allows a net income trust to flip to a standard trust upon the occurrence of a specific triggering event, which must be outside the control of the trustee or any other person. Examples of triggering events are a beneficiary attaining a specific age, marriage, divorce, death, birth and sale of an unmarketable asset. Footnote: Treasury Regulation Section 1.664-3(a)(1)(i)(c)

• Additional contributions may be made to the same unitrust. However, additional contributions cannot be made to the same annuity trust.

Conclusion In my work with many generous people across Nebraska, I’ve found that in almost every case there is a planned giving tool that fulfills a donor’s charitable intentions while maximizing tax benefits. CRTs are not widely understood by the general public. However, they may be very well-suited to people in Nebraska who hold much of their wealth in the appreciated value of their agricultural land. The people I have assisted in using a CRT held a strong attachment to their land and preferred making a gift to charitable causes close to their heart

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rather than paying significant taxes when it was time to sell. The flexibility of a CRT enables donors to choose from different options for lifetime income payments. For these reasons, I encourage readers to learn more about CRTs and how they may be right for a landowner client. I would be happy to share additional information about this remarkable planned giving tool.

About the Nebraska Community Foundation The Nebraska Community Foundation is a statewide organization using charitable giving to build prosperous communities. NCF works with volunteer leaders serving more than 200 communities by providing training, strategic development, gift planning assistance and financial management for its affiliated funds located throughout the state. In the last five years more than 35,000 contributions have been made to NCF affiliated funds, and $109 million has been reinvested to benefit Nebraska communities. For more information visit www.NebraskaHometown.org. You may contact NCF’s Gift Planning Director Jim Gustafson at (402) 323-7341 or jgustafson@nebcommfound.org.

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Patient Protection and the Affordable Care Act Wednesday, May 28, 2014 • 8:00 am - 12:30 pm Metropolitan Community College - Elkhorn Valley Campus N 204th Street & W Dodge Road • Elkhorn, NE 68022 *Nebraska MCLE Activity #91957. 4.33 CLE hours. 8:00 am Employer Share Responsibility or “Play or Pay” Regulations…Where Are We Now? David Froscheiser, JD, ChFC, CLU, CMS, RPA, Holmes, Murphy & Associates

11:20 am

Break

11:30 am

What Have You Done for Me Lately?

12:00 pm Update on the Latest Legislation from the Affordable Care Act & Review of What the Future May Hold David Froscheiser

Wellness Regulations & The PPACA - 9:30 am Navigating Employer Federal Wellness Regulations to Improve Employee Health and Reduce Costs Craig Johnson, Senior Consultant at Holmes Murphy & Associates

12:30 pm

Adjourn

10:30 am Individual and Government Programs: The Individual Mandate and Major Changes to Medicaid and Medicare under the Affordable Care Act Dave Pantos, JD, Executive Director of Legal Aid of Nebraska

REGISTRATION FORM: Patient Protection & the Affordable Care Act - May 28, 2014 c NSBA Dues Paying Member - $180 c Attorneys who paid only the mandatory assessment - $240 c Law Students - $10

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. If you do not receive an email confirmation, please call 402-475-7091. If you need any special accommodation for attending this event, please contact NSBA.

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feature article

Supreme Court Mandates Transparency When Appointing Counsel Report from Supreme Court/NSBA Joint Ad Hoc Committee Can Help State Trial Judges Comply with New Rules by Hon. John F. Irwin

In 2006, at the request of the Nebraska Supreme Court, the Nebraska Minority Justice Committee1 produced an evidencebased report entitled Indigent Defense Systems and Fee Structures, focusing on issues surrounding Nebraska’s trial courts’ attorney appointment processes. Among other things, the report suggested that Nebraska’s trial courts would benefit from objective standards for court appointments and a transparent appointment process. For example, findings indicated a lack of process and transparency: • Some courts do not maintain lists of attorneys willing to be assigned to indigent defendants.

In the Fall of 2011, the Chief Justice created an ad hoc committee2 to revisit the issue of court appointed counsel and make recommendations to the Court regarding rules containing standards to guide Nebraska’s trial judges when they appoint counsel. With the help of the Nebraska State Bar Association, a committee, composed of court stakeholders, was created and became known as the Joint Ad Hoc Committee on Court Appointed Counsel. The mission of the committee was to develop proposed rules. Throughout 2012, the Joint Ad-Hoc Committee received input from scores of group and individual stakeholders from across the state about what should be contained in the substance of these proposed rules. Stakeholder groups that were consulted included the Nebraska County Court Judges Association, the Nebraska District Court Judges Association, the Nebraska County Attorneys Association, the NSBA’s Executive Council and House of Delegates, the Midlands Bar Association, the Lincoln Bar Association, the Administrative Office of the Courts, the Omaha Bar Association, the Nebraska Criminal Defense Attorneys Association, and the Nebraska Minority Justice Committee.

• Some courts do not have processes for the addition or removal of attorneys for consideration of court appointments. • Many judges and attorneys recommended that a more transparent and systematic process should be adopted.

Hon. John F. Irwin Judge John Irwin was appointed in 2011, by Chief Justice Michael Heavican, to Chair the Joint Ad Hoc Committee on Court Appointed Counsel. Judge Irwin is an original member of the Nebraska Court of Appeals, created in 1991. He served as Chief Judge of the Nebraska Court of Appeals from 1998 to 2004; and, as President of the National Council of Chief Judges in 2004 and 2005. He is active in the areas of court reform and judicial ethics, and is Co-Chair of the Supreme Court/NSBA Nebraska Minority Justice Committee . THE NEBRASKA LAWYER

• Some attorneys perceive that the current appointment process is subjective and not transparent.

In early 2013, the Joint Ad Hoc Committee submitted to the Nebraska Supreme Court, a 13 page proposal for adoption and implementation regarding court appointed counsel. Later that year, the Supreme Court posted the Joint Ad Hoc Committee’s proposal for comment. On February 12, 2014, the Nebraska Supreme Court adopted Neb. Ct. R. § 6-1525 of the Uniform District Court Rules of Practice and Procedure:

➡ 33

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supreme court mandates transparency

§ 6-1525. Appointment of counsel in criminal cases.

Endnotes

(A) Every judicial district shall have a transparent process for appointment of counsel for indigent defendants as provided in Neb. Rev. Stat. §§ 29-3901 to 29-3908. (B) On or before January 1, 2015, the county court and district court judges of each judicial district shall adopt a local rule for the judicial district regarding appointment of counsel in criminal cases. Such local rule shall be made public and shall include, but not be limited to:

1

The Nebraska Minority Justice Committee (MJC) is a Supreme Court committee - with the Nebraska Supreme Court appointing all the committee members. Since its inception in 2003, MJC operates as a joint effort with the Nebraska State Bar Association and the Nebraska Supreme Court.

2

Honorable Susan Bazis, Brenda Council, Honorable James Doyle, IV, Mike Fabian, Michael Fenner, Honorable Karen Flowers, Honorable James T. Gleason, John P. Grant, Sandra Hernandez Frantz, Hon. John Irwin, Dennis R. Keefe, Honorable Curtis Maschman, Clarence Mock, James R. Mowbray, Elizabeth Neeley, Tom Riley, Jane Schoenike, Honorable Robert Steinke, Linda Willard, and Honorable Laurie Yardley.

(1) Provision for maintenance of a list of all licensed attorneys who may be expected to accept appointments in criminal cases in the judicial district, and information on obtaining such list from the court; (2) The judicial district’s process for appointments under Neb. Rev. Stat. §§ 29-3901 to 29-3908; and (3) Information as to how an attorney may be added to or, if permitted, removed from the courtappointed attorney list.

(C) Such local rule shall be governed by § 6-1501. Similar rules were passed for the county and juvenile courts, Neb. Ct. R. § 6-1467 (Uniform County Court Rules of Practice and Procedure) and Neb. Ct. R. 6-1704 (Uniform Separate Juvenile Court Rules of Practice and Procedure). To jumpstart the process of trial judges fashioning these transparent processes Judicial Branch Education (JBE) will be sponsoring a session during the 8th Circuit Court of Appeals Judicial Conference, August 6-8, in which judges will convene to conduct an initial exploration of what these rules should look like in their local courts. This programming will facilitate trial courts complying with these new court rules by the January 1, 2015 deadline. Developing rules establishing a transparent appointment process while allowing judges the discretion necessary to ensure effective assistance of counsel for those unable to afford an attorney, will not only strengthen the trial courts’ appointment process but will likewise strengthen trust and confidence in the judicial system. The 13 page proposal created by the Ad Hoc Committee can be an invaluable tool that all trial courts should consider as they move forward formulating standards determined to be most appropriate for the unique circumstances of their individual districts. The proposal can be found at the NSBA website at http://www.nebar.com/associations/8143/ files/Proposed%20Standards%20as%20Posted%20by%20 NSC%202.pdf, and the Nebraska Supreme Court intranet.

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feature article

Juror Stress in High Profile or Violent Crime Trials by Deborah R.Gilg

• In Scottsbluff, Nebraska, investigators described how Adam, 3 years old, was chopped up by his mother’s boyfriend, and fed to the dog. Parts of the little boy were stored in the basement of the house and the freezer.1 • In Connecticut, two men tormented a family in an upscale neighborhood. The father was brutally beaten, the mother was sexually assaulted and strangled; the 11 year old and 17 year old daughters were strapped to their beds while the 11 year old was sexually assaulted; the children were doused with gasoline and then the house was set on fire and was reduced to ashes.2 • In the District of Columbia and surrounding area, a beltway sniper shot and killed multiple random victims. At trial, the scene of death for one of the female victims was projected on a large screen, depicting the victim sprawled on her back with half of her face blown away. An audio tape of the 911 call by the husband calling police after his wife was shot was played to the jurors. His wailing voice was so tortured and

Deborah R. Gilg Deborah R. Gilg is the United States Attorney for the District of Nebraska. She was appointed by U.S. Attorney General Eric Holder to chair a Federal Task Force on Violence Against Native American Women. She also chairs the Department of Justice U.S. Attorney Working Group on Child Exploitation. She is also a member of the Attorney General’s Native American Issues subcommittee, National Security subcommittee and Civil Rights subcommittee. THE NEBRASKA LAWYER

high-pitched that at first the dispatcher mistook the former Marine for a woman.3 Fifteen percent of the American adult population is summonsed to state or federal courts for jury duty annually.4 The United States Constitution guarantees the right to trial by jury.5 Jury duty, in addition to exercising the right to vote, is one of the most important civic responsibilities of all Americans.

Some Causes of Juror Stress It’s not easy being a juror. It is burdensome and inconvenient. In addition to the disruption to a juror’s work and personal life, there are very long days in court, boredom and relatively little control over the course of a trial. The typical juror is an average citizen with little or no prior exposure or experience with the actual courtroom. The only context many have is from sitting in their living room watching “Law and Order” or “The Good Wife”. Many civil trials involve complex theories of law not to mention listening to conflicting expert witnesses expound on difficult scientific, technical or medical testimony. This can lead to difficulty and frustration in understanding the testimony which may affect the outcome of the trial. The inability of jurors to discuss trial testimony with other jurors, their spouses or significant others during the course of a lengthy trial leads to a sense of emotional isolation by jurors. Sharing an experience with another person is one of the primary methods of relieving stress. The National Center for State Courts produced a 1993 study entitled “Through the Eyes of the Juror: A Manual for Addressing Juror Stress.”6 This study indicated that about one-third of jurors surveyed experienced some stress. More than half of the jurors thought “the other” jurors showed signs of stress.7

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Juror stress

The Trauma of Graphic Evidence In criminal trials, jurors may be exposed to gruesome, graphic crime scene visuals. Emotionally disturbing testimony by victims and witnesses may be heard. In high profile cases, this evidence combined with the intense media scrutiny can produce high levels of stress for jurors. Several judges in the study recommended that jurors be warned early in the proceedings that graphic photos will be shown. These judges felt that warning the jurors once or twice before the graphic evidence is shown or heard by the jurors helps to “desensitize” the jurors to the gruesome nature of the evidence.8 In the study, some judges viewed timing of this type of evidence an important factor in minimizing the juror shock. For example, the judge may call a recess after such evidence is presented or try to avoid having this type of evidence produced directly before or after the lunch break. Of course, in this author’s experience, the prosecutor usually tries to time this type of evidence so that it does leave a lasting impression on the jurors with the hope that such a lasting impression will lead to a guilty verdict. Obviously, there are competing interests at play here which a judge may or may not be able to anticipate and/or control effectively. The infamous 1992 Jeffrey Dahmer trial in Milwaukee (murder of young boys, necrophilia and cannibalism) caused jurors “sleep disturbances, intrusive thoughts, restlessness, agitation and disturbing dreams”.9

A murder trial in Louisville, Kentucky in 1991 involved a defendant, a prominent teacher in the community, who fatally shot his wife and tried to hide the identity of the victim by decapitating her. In a bizarre twist, the defendant buried the head in a garden and tried to burn the rest of the body in a vacant house. In this case, the jurors saw a police videotape of the severed head being dug up from the garden and photos of the charred body remains. In both of these cases, the jurors were debriefed after the trial by psychiatrists. A common thread between the two juries was the stress over viewing the graphic evidence. Jurors felt unprepared for what they saw and heard. Juror frustration and anger was vented towards the attorneys and the expert witnesses. Jurors felt the prosecution introduced too much graphic evidence, the defense attorneys tried to confuse the jurors and the expert psychological testimony from both sides was meaningless due to the excessive jargon. Interestingly, the jurors had strong positive feelings towards the judges in both cases because the judges were sensitive to the juror stress and the jurors felt the judges acknowledged that stress and supported them by having a post-trial debriefing.10

Safety Issues and Shielding Jurors from the Media in the High Profile Trial High profile trials can generate extensive media scrutiny. In

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Juror stress turn, the media attention can make jurors fearful for their safety and that of their family. Average citizens are not accustomed to dealing with violent crime or gang-related crime. Hearing about this type of crime in the jurors’ community can heighten a juror’s sense of anxiety for their own well-being and safety. After all, the juror is already feeling out of their normal sphere of daily living by being thrust into the gladiator arena with assertive prosecutors and defense counsel. Sitting in a courtroom a few feet away from a defendant on trial for a drive-by shooting, sexual assault or some other type of violent crime can cause a juror to fear that he or she may be the subject of retaliation by the defendant or the defendant’s family and friends. Most court facilities are designed to protect jurors from interaction with the public, i.e. jury room with private door to the courthouse exit and private juror bathroom. However, in a rural state like Nebraska, this segregation is not always easily accomplished in the rural areas. The jurors may be taken to a public café for lunch or dinner and the jurors may share courthouse parking with witnesses, defendants and court personnel. Anonymity is difficult, if not impossible in these settings. Some judges refrain from discussing safety measures with jurors in an effort to not prejudice the jury toward the defendant. A few general words by the judge after jury selection which describes general security precautions may reassure nervous jurors. Similarly, many jurors are fearful of media attention. Even the high profile trials with extensive pre-trial coverage rarely generate more than a few media in the courtroom. Nevertheless, relieving jurors stress over media attention can be greatly enhanced by advising the jurors of the rules governing media coverage and that jurors do not have to talk to the media or even the attorneys when the trial is over. The National Center found that “Eighty percent of judges who took steps to shield jurors from the media found the strategy to be moderately to extremely effective for relieving juror stress.”11 ABA Standard 16 (d)(i) and (ii) recommend that judges “release the jurors from their duty of confidentiality” and also “explain their rights regarding inquiries from counsel or the press.”12 Again, providing the jurors with this information can go a long way in relieving juror anxiety.

State Court Approaches to Jury Stress According to the National Center for State Courts, Center for Jury Studies, an estimated 70 percent of all jurors report some stress from jury service but less than 10 percent report high levels of stress.13 As of this writing, there are no available counseling services for Nebraska state court jurors. In the Scottsbluff case mentioned in the beginning of the article, several local therapists in the community volunteered THE NEBRASKA LAWYER

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their services before the conclusion of the trial. Jurors were told of the time, location and availability of the counseling debriefing. Many of the jurors took advantage of the debriefing. This author attended the debriefing and observed that many of the jurors stated that they were shaken by the graphic testimony. One juror stated that the defendant always wore a certain type of popular cologne and that whenever she smelled that cologne, she thought of the defendant and images of the trial. The debriefing session afforded jurors an opportunity to discuss and share their emotional reaction to the trial in a nonjudgmental setting. The therapists used the opportunity to describe symptoms commonly associated with juror stress and give recommendations on stress-management techniques. This ad hoc approach seemed to have helped some of the jurors as a follow-up survey weeks later with the group indicated that jurors felt relieved to know that others felt the same emotions as he/she did. Interestingly enough, the juror with the negative memory associated with the defendant’s cologne still reported that she would forever remember that trial whenever she smelled that particular cologne. In the Connecticut trial, one of the jurors said his experience gave him nightmares of a child tied to a bed while burning up in a house fire. Despite the child’s cries for help, in the juror’s nightmare, the juror is unable to reach the child. The juror indicated he wasn’t prepared mentally for what he saw and heard during the trial. The State of Connecticut offered counseling to the jurors in a post-trial debriefing by a therapist. Nine of the twelve jurors attended the debriefing.14 It should also be noted that some jurors are not going to be interested in attending a debriefing session immediately following a high profile trial. They may be physically exhausted, worried about resuming their work and personal lives and feel a certain emotional numbness from the ordeal. Others are just uncomfortable with the whole idea of group debriefing and for some, the stress of the experience may not affect them until days or weeks later.

Federal Court Approaches to Juror Stress In the federal system, two types of juries are impaneled: grand juries and petit juries. The basic purpose of the federal grand jury is to serve as an essential component of the enforcement of the criminal laws of the United States. The grand jurors determine whether is probable cause to believe that a crime has been committed and whether the individual charged in the indictment committed the crime. Grand jurors are impaneled for a period of eighteen months and meet monthly at the federal courthouse in Omaha. Petit juries are used in civil and criminal jury trials and these juries are impaneled for a few days to several weeks, depending upon the complexity of the trial.

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Juror stress There is a certain amount of stress implicit in any jury setting whether for a few days or several months. The inconvenience of not being at home and traveling from across the state, often during adverse weather conditions, contribute to juror anxiety. Fortunately, the federal system does provide counseling services to grand and petit jurors through the Employee Assistance Program (EAP), a component of the U.S. Public Health Service. The presiding judge can initiate counseling services or, in the case of a grand jury, the U.S. Attorney’s office can make a written request to the chief judge for consideration of counseling services. EAP counseling can be provided as long as grand jurors are serving and are limited to 6 sessions each. The counseling can either be off-site individual counseling or an on-site group debriefing. Unfortunately, once the jurors are excused from service, eligibility for counseling services is no longer available. In actuality, it is unlikely that a federal juror is going to avail him/herself of counseling unless #1) they are made aware of the service and request counseling; or #2) a judge or attorney brings to the court’s attention that a jury member may need counseling. Even then, this author would suggest that most people will not voluntarily or openly seek counseling out of embarrassment or fear of being perceived “weak”. In the high profile trial, a juror-savvy judge may want to incorporate counseling in a mandatory group debriefing before the jurors are excused from service.

Our Duty to Citizen Jurors All of us who participate in the justice system, judges and attorneys alike, have an obligation to be cognizant of the toll stress takes on our citizen jurors. A review of the various studies done on juror stress reveals that there are many causes of juror stress at each stage of the trial. This writer has not included all of the causes of juror stress as reflected in the studies but has chosen to focus on the more obvious causes. It is clear that our citizen jurors have not developed the ability to compartmentalize the harsh realities of life that law enforcement officials, first responders, prosecutors and defense attorneys have developed. Close cooperation is necessary between the judicial system and mental health professionals to assure the mental health wellness of jurors during and after a trial. The proper functioning of our system of justice demands it.

Endnotes 1

State of Nebraska vs. Raymond Mata, 266 Neb. 668 (2003)

2

State of Connecticut vs. Steven Hayes, CR 07241859 (2010)

3

Commonwealth of Virginia vs. John Allen Muhammad, 233 Va. 560 (2002)

4

National Center for State Courts: Jury Management, www.ncsc. org

5

U.S. Constitution Amendments VI and VII

6

“Through the Eyes of the Juror”: A Manual for Addressing Juror Stress, National Center for State Courts, (1998)

7

Id, 4

8

Id, 31

9

“Vicarious Traumatisation as a Consequence of Jury Service”, Robertson, N., Davies, G. and Nettleingham, A., The Howard Journal, Vol. 48, No. 1, page 3, February 2009

10 Juror

Stress: Identification and Intervention, Feldmann, T.B and Bell, R.A., Bulletin of American Academy of Psychiatry Law, Vol. 21, Nov. 4, page 411 (1993)

11 “Through

the Eyes of the Juror”: A Manual for Addressing Juror Stress, National Center for State Courts, page 35 (1998)

12 American

Bar Association Jury Standards

13 “Through

the Eyes of the Juror”: A Manual for Addressing Juror Stress, National Center for State Courts: Jury Management, www.ncsc.org, page 5

14 “Connecticut

Offers Counseling to Traumatized Jurors in Home Invasion Trial” American Bar Association Journal, November, 2010

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Upcoming CLE Programs MAY May 8 May Double Header: Two Ethics Topics - The Work Of The Accountability And Disclosure Commission - The Work of the Minority Justice Committee Live - #91779 (2 CLE ethics hours) 1:00 pm - 3:00 pm Hruska Law Center, Lincoln Funding Unfunded Testamentary Trusts in Estate Planning Telephone - #91381 (1 CLE hour) May 9 Ethics of Beginning and Ending an Attorney-Client Relationship Telephone - #90861 (1 CLE ethics hour) May 12 Recent Developments & Updates in the Practice of Disabilities Law Webcast - #90877 (2.82 CLE hours) May 13 Briefwriting 101 Webcast - #90875 (1.83 CLE hours) May 14 Ethical Issues for Business Attorneys Telephone - #91379 (1 CLE ethics hour) May 16 NSBA Labor & Employment Law Section Seminar Live - #91585 (5.5 CLE hours/1 hour ethics) 8:30 am - 3:45 pm Embassy Suites, La Vista Ethics of Working with Witnesses Telephone - #91317 (1 CLE ethics hour) May 19 Attorney Ethics and Digital Communications Telephone - #91377 (1 CLE ethics hour) May 21 Techniques for Tax Efficiently Withdrawing Capital from a Closely Held Company Telephone - #91387 (1 CLE ethics hour)

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May 22 2014 Ethics Update, Part 1 Telephone - #91371 (1 CLE ethics hour)

June 18 Impeach Justice Douglas! Webcast - #88130 (3 CLE ethics hours)

May 23 Elderlaw - Planning Ahead Live - #91744 (3 CLE hours) 1:00 pm - 4:30 pm Metro Comm College, Elkhorn

An Overview of the Unauthorized Practice of Law and What It Means to You Live - #Pending Hruska Law Center, Lincoln

2014 Ethics Update, Part 2 Telephone - #91373 (1 CLE ethics hour)

June 25 Clarence Darrow - Crimes, Causes, and the Courtroom Webcast - #88118 (3 CLE ethics hours)

May 27 Securities Issues for Closely Held Companies Telephone - #91323 (1 CLE hour) May 28 The Art of Advocacy - What Can Lawyers Learn from Actors? Webcast - #87969 (3 CLE hours) UCC Issues in Real Estate Transactions Telephone - #91319 (1 CLE hour) Patient Protection and the Affordable Care Act Live - #91957(4.33 CLE hours) 8:00 am - 12:30 pm Metro Community College, Elkhorn

June 30 Ben Franklin on Ethics Webcast - #88103 (1 CLE ethics hour) Lincoln on Professionalism Webcast - #88263 (1.25 CLE ethics hours)

JULY July 17 Thomas Manet Trial Evidence Live - #Pending Scott Conference Center, Omaha

May 30 Attorney Ethics and Social Media Telephone - #91321 (1 CLE ethics hour)

July 18 NSBA Family Law Section Annual Update Live - #Pending Embassy Suites, La Vista

JUNE

SEPTEMBER

June 4 Thurgood Marshall’s Coming! Webcast - #88288 (2.5 CLE ethics hours)

September 10 Stephen Easton - Revisiting Irving Younger’s 10 Commandments of Cross Examination Live - #Pending Location TBA

June 10 Preventing and Addressing Domestic Violence Live - #Pending Scott Conference Center, Omaha June 11 Make Your Witness a Star! Webcast - #88273 (2.25 CLE hours) June 13 NSBA Govt Practice Section Seminar Live - #91417 (4 CLE hours) 8:15 am - 12:30 pm UNL College of Law, Lincoln 39

September 19 NSBA Juvenile Law Section Seminar Live - #Pending Location TBA, Omaha New seminars are added to this list weekly. Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered.

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Courthouse Prints & Notecards Enjoy these beautifully rendered watercolors of Nebraska Courthouses in your office. Prints are available in two sizes, 16” x 20” and 20” x 24”, and are printed on highquality art stock and ready to be framed. Notecards are available as a boxed set of 25 blank cards with envelopes included. See individual pictures of the County Courthouses available on the NSBA website www.nebar.com. Courthouse Notecards Order Form

Courthouse Print Order Form

Box of 25 $10

16” x 20” $100 (plus applicable sales tax) 20” x 24” $150 (plus applicable sales tax) Please send me the following print(s):

Please send me the following notecards: County Quantity Total

(Indicate size and quantity)

County Box Butte Colfax Custer Dakota Douglas Frontier Furnas Gage Hall Kearney Madison Nuckolls Otoe Richardson Saunders Scotts Bluff Thayer

Size

Quantity Total

_______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______

(plus applicable sales tax)

Box Butte Colfax Custer Dakota Douglas Frontier Furnas Gage Hall Kearney Madison Nuckolls Otoe Richardson Saunders Scotts Bluff Thayer Mix of all counties

_______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________

Total $________

_______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ _______ $________ Total $________

Name:_________________________________________________ Address:_______________________________________________ City:______________________ State:______ Zip:____________ Phone:_________________ Email:________________________ Amount enclosed or to be charged:_____________________ _____ Check Enclosed or Charge to: ___Mastercard ___Visa ___AMEX ___Discover Card#: __|__|__|__|__|__|__|__|__|__|__|__|__|__|__|__|__| Exp. Date: ______________ Security Code: ______________ Signature: ____________________________________________ Return to NSBA, PO Box 81809, Lincoln, NE 68501 or fax to 402-475-7098. THE NEBRASKA LAWYER

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Nebraska Lawyers Foundation

2014 Barristers’ Ball The 2014 Barristers’ Ball “Carnavale” Traveled to “Rio” to Support the Volunteer Lawyers Project On April 5, 2014 over 400 guests celebrated the evening and helped raise money to support the Volunteer Lawyers Project. Music, live and silent auctions, dining and dancing were all on the agenda for this annual gala. Timothy & Melany O’Brien of Omaha served as co-chairs to the 2014 Barristers’ Ball. Proceeds from the Barristers’ Ball support the VLP’s case placement and support with volunteer lawyers and the court house self-help desks in Grand Island, Kearney, Lincoln, Madison and Omaha, as well as the expansion of the self-help desk to Scotts Bluff County. Individuals recognized for their efforts and support of the VLP were:

James H. Truell receives the Robert M. Spire Award from NSBA President G. Michael Fenner and NLF President Amie C. Martinez.

Visionary Award Winners Fitzgerald Vetter & Temple, Norfolk Michelle M. Mitchell, Mitchell Law Office, Lincoln Mark Jacobs, Katskee Henatsch & Suing, Omaha Robert M. Spire Pro Bono Award Winner James H. Truell, Truell Murray & Associates, Grand Island This year’s Ball was a success and raised over $66,000 to help the VLP assist those who have nowhere else to go for legal assistance. Mark your calendars for next year’s Ball, which will be held April 11, 2015 at Embassy Suites - La Vista.

Fritz Bartell accepts the 2014 Visionary Award on behalf of Fitzgerald Vetter & Temple in Norfolk.

We would like to thank all the sponsors that made the evening a success! Band Sponsor: Mercer; Dessert Sponsor: Mueller Robak LLC; Dinner Sponsor: ABA Retirement Plan; Beverage Sponsor: Jackson Lewis LLP; Silver Sponsors: Baird Holm L.L.P.; Bartle & Geier Law Firm/Rembolt Ludtke LLP; Bradford & Coenen, LLC; Brodkey, Peebles, Belmont & Line, LLP; Cassem Tierney, Adams, Gotch & Douglas; Cline Williams Wright Johnson & Oldfather, LLP; Creighton University School of Law; Cuddigan Law, PC LLO; Fraser Stryker PC LLO; Harding & Shultz, PC, LLO; Hauptman, O’Brien, Wolf & Lathrop, P.C.; Houghton, Whitted & Weaver, PC, LLO; Kalkwarf & Smith Law Offices, L.L.C.; Kiewit Corporation; Kutak Rock; Lamson Dugan & Murray LLP; Locher Pavelka Dostal Braddy & Hammes, L.L.C.; McGill Gotsdiner Workman & Lepp, PC, LLO; Matzke & Mattoon; Minnesota Lawyers Mutual Insurance Company; NSBA Young Lawyers Section; Paychex; Sarpy County Public Defender’s Office; Schirber & Wagner, L.L.P.; Sibbernsen Strigenz & Sibbernsen, PC; Suiter • Swantz, PC, LLO; The Daily Record; University of Nebraska College of Law; Walentine, O’Toole, McQuillan & Gordon, L.L.P. Cash Contributors: ADR Section; Agricultural Law Section; Business Law Section; Corporate Counsel Section; Elder Law Section; General Practice Section; Husch Blackwell LLP; Labor & Employment Law Section; Securities Law Section; Workers’ Compensation Section THE NEBRASKA LAWYER

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March 2014

VLP Pro Bono Volunteers VLP wants to thank and recognize the following volunteer attorneys for assisting at the Self Help Desk in March 2014. Buffalo County Self-Help Desk Michael Baldwin Michael Synek Grand Island Self-Help Desk Dorothy Benton Matt Boyle Al Corey Dave Houston Shawn Farritor Mitch Stehlik Jim Truell Lori Wilson

Lincoln Self-Help Desk Dan Alberts Troy Bird Tim Engler Vanessa J. Gorden Ed Hoffman Sally Johnson Jeffry D. Patterson Danielle Savington Gail Steen Madison County Self-Help Desk Hon. Pat Rodgers Ron Temple

Omaha Self-Help Desk Kelly Berens Patrick Cohoon Kathryn Cheatle Joe Dreesen Richard Drews Jessica Feinstein Winnie Hawkins Karisa Johnson Timothy Loudon Sarah Millsap Mike Moran Bill O’Neil Justin Quinn Eileen Rielly Buzzelo Susan Schneider Judith Schweikart Hon. Steve Swartz Amy Van Horn Ken Wentz

At Self Help Desks, volunteer attorneys help selfrepresented individuals access the legal system. These desks provide low income Nebraskans information and limited advice on representing themselves in court, provides limited forms and gives the pro se litigant information about the court process. Those helped have commonly been denied services from other legal providers. The Self Help Desks are located in Lancaster, Douglas, Hall, Buffalo and Madison counties.

3,607 people were served at these Self Help Desks January 1, 2012 through December 1, 2012. “Because of the lawyers that volunteer here at the Self Help Desk, I was able to get the help I needed to be able to reunite and see my daughter and that makes me very grateful. Thank you all so much.” – from a Self Help Desk client

Pay it forward… If you are an attorney licensed in Nebraska, please consider volunteering at our self-help desks. Call (402) 475-7091 or visit www.nebar.com for more information.

THE NEBRASKA LAWYER

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NSBA news

Volunteer Lawyers Project

Same Mission, New Approach As a result of the Nebraska Supreme Court’s decision in In Re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska, the Nebraska State Bar Association had to reduce what it expended in 2013 by more than $800,000 in order to present a balanced budget for 2014. While the Volunteer Lawyers Project has largely been funded by other sources (a grant from the Commission on Public Advocacy, donations to the Nebraska Lawyers Foundation, etc.), a substantial amount of mandatory dues also went to support the program. The cuts to the Volunteer Lawyers Program resulted in the loss of two administrative assistants. VLP staff has worked hard over the past few months to re-engineer its processes in order to continue serving low-income Nebraskan’s with civil legal needs. We appreciate the Members’ support and patience during this time. Below is our plan moving forward. 1. Self-Help Centers: VLP will continue to coordinate and staff the Self Help Desks located in Buffalo, Douglas, Hall, Lancaster and Madison Counties. VLP is working to establish a self-help center in Scotts Bluff County and to formalize a partnership with the Phelps County Bar Association, which started a self-help desk in 2013. In years past, the self-help centers have served over 3,500 pro se litigants. With the expansion of self-help centers in 2014, the NSBA hopes to expand its ability to serve low income Nebraskans. 2. Direct Case Placement: The core of the Volunteer Lawyers Project (VLP) has been matching volunteer attorneys with individuals who need legal assistance on a pro bono or reduced fee basis. VLP will continue to offer direct case placement through its network of pro bono attorneys, but the intake process and referral source has changed. VLP no longer has the staff to operate a separate intake hotline/process. Referrals and intakes will now be received in the following ways: a. Referrals from Self Help Centers: Some clients who visit the Self-Help Center have legal issues/situations where staff would advise them to seek legal counsel rather than proceeding as a pro se litigant. In these situations, VLP staff will conduct a client intake, check for conflicts, and work to place the case through VLP’s volunteer network. b. Referrals from Domestic Violence Shelters: VLP has had a long standing commitment to serving victims of domestic THE NEBRASKA LAWYER

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violence. When the need for legal services arises, domestic violence shelters will contact VLP directly to complete the intake process. In these situations, VLP staff will check for conflicts, and work to place the case through VLP’s volunteer network. c. Referrals from Legal Aid of Nebraska: VLP will accept 40 referrals a month from LAN. To be accepted by VLP, the referrals must be sent with a completed LAN intake and fall within the VLP priorities. If it has the capacity to do so, VLP will aspire to expand the number of monthly referrals that it can accommodate. d. Referrals from private attorneys where there is not a selfhelp desk located in their community. In years past, VLP had a placement rate of 38% for clients who finalized the application process (historically, VLP places around 440 cases per year). While under the new model, VLP will receive fewer requests for assistance, we hope to be able to continuing serving the same number of clients and to enjoy a higher placement rate because the cases referred from the selfhelp desks and the domestic violence shelters, will have already been reviewed and vetted by an attorney, as a client with a meritorious claim. 3. Partnership with Nebraska Families Collaborative for Reduced Fee Legal Assistance: The Nebraska Families Collaborative (NFC), which provides child welfare support to families in Douglas and Sarpy Counties, serves many clients who need legal assistance in establishing a District Court Order regarding children subject to Juvenile Court Jurisdiction. VLP will recruit a volunteer panel of attorneys located in Douglas and Sarpy Counties who are willing to assist NFC’s clients in establishing a District Court Order regarding children subject to the Juvenile Court Jurisdiction. Once the conflict check is complete, attorneys will be contacted on a rotating basis for case placement. NFC will pay panel attorneys directly (from their funds) at a rate of $500 per case. VLP thanks you for your willingness to assist our clients. We look forward to working with you in the future to ensure that low income Nebraskans have access to the justice system. Please feel free to contact Jean McNeil at jmcneil@nebar.com or (402) 475-7091 to volunteer to assist our clients or if you have questions. M ay / J u ne 2 0 1 4


The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

11th Annual Greater Nebraska Golf Scramble Friday, June 20, 2014 at The Prairie Club in Valentine, NE 888-402-1101

(The Prairie Club is located 17 miles South of Valentine on HWY 97)

Sponsorship Opportunities Tournament Co-Sponsorship Contribution

I agree to contribute $500 as a “Co-Sponsor” of the NBSA Golf Scramble.

Hole Sponsorship Contribution

I agree to contribute $275 as a “Hole Sponsor” of the NSBA Golf Scramble.

Prize Donation

I agree to contribute a prize to the NSBA Golf Scramble.

Item Descriptions: ________________________________________________________ ______________________________________________________________________ Suggested Value: _________________________________________________________

Contact Information

Contributor Name & Organization: ____________________________________________ Address: _______________________________________________________________ Phone & E-mail: __________________________________________________________ Thank you for your support of this worthwhile event to benefit the Volunteer Lawyers Project For further information, contact Sam Clinch at (402) 475-7091, or at sclinch@nebar.com. Please make your checks payable to NSBA-NLF, Inc. & return this form to: PO Box 81809, Lincoln, NE 68501-1809. *** Gifts to NSBA-NLF, Inc. are deductible charitable donations to the extent allowed by law ***

THE NEBRASKA LAWYER

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The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

11th Annual Greater Nebraska Golf Scramble Friday, June 20, 2014 at The Prairie Club in Valentine, NE 888-402-1101

(The Prairie Club is located 17 miles South of Valentine on HWY 97)

Golf Scramble - Friday, June 20, 2014

Room Reservations & Additional Golf Outings Thursday, June 19, 2014 or Saturday, June 21, 2014

Format: 4-Person Scramble Lunch & Driving Range: 10:30 AM - Noon Shotgun Start: Noon Dinner: 5:00 PM To make room reservations or tee times Entry Fee: $150 per golfer Includes: Lunch, dinner, green fee, cart, range balls & door prize drawings on Thursday, June 19th or Saturday, June 21st, call Janeen Arens at the Prairie Club Players: Pairings will be made for individual and partial team entries (888) 402-1101 , option 0. 1) Name:_______________________________________

3) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Average 18 Hole Score___________________________

2) Name:_______________________________________

4) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Average 18 Hole Score___________________________

Proceeds to benefit the NSBA Volunteer Lawyers Project c I am unable to play the tournament but have enclosed $_________ to support VLP. For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091 or sclinch@nebar.com. Please make your checks payable to NLF and return this form to: PO Box 81809, Lincoln, NE 68501-1809. **Gifts to NLF are deductible as charitable donations to the extent allowed by law** THE NEBRASKA LAWYER

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The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

11th Annual Greater Nebraska Golf Scramble Friday, June 20, 2014 at The Prairie Club in Valentine, NE 888-402-1101

(The Prairie Club is located 17 miles South of Valentine on HWY 97)

Thank you to our Golf Tournament Sponsors (As of press time)

Co-Sponsors ABA Retirement Funds Program Husch Blackwell LLP Inspro Insurance Lamson, Dugan & Murray, LLP McGrath North Mullin & Kratz, PC LLO Minnesota Lawyers Mutual Welsh & Welsh PC LLO

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Latimer Reporting Lincolnland Printing Lindemeier, Gillett and Dawson Mercer Consumer McCarthy & Moore McQuillan Law Office, PC, LLO NAI FMA Realty Norman, Paloucek & Herman Parker, Grossart, Bahensky, Beucke & Bowman, LLP Quigley Dill & Quigley Sennett Duncan Jenkins & Wickham, PC, LLO Tye & Rademacher PC, LLO U.S. Bank Private Client Group George V. Vinton, Attorney at Law Woods & Aitken LLP Zeilinger Law Office

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court news New Supreme Court Rules Define Changes In Annual Membership Payments The Supreme Court recently refined the rules governing the payment of mandatory annual membership assessments. To effectuate the transfer of mandatory assessment payment and other regulatory functions from NSBA to the Supreme Court, the Court has created the Attorney Services Division which will provide administrative support to the Counsel for Discipline, MCLE Commission, State Bar Commission, and Commission on the Unauthorized Practice of Law. This configuration will allow the court to expand its on-line MCLE program to provide a means for the annual collection of mandatory assessments and processing of the required annual trust account and liability insurance reports. The court’s goal is to minimize the potential for error in the licensure renewal process while minimizing the personnel hours spent on the task of tracking licensure status. The Changes the Court has made will have the following implications for licensed attorneys: 1. Beginning April 1, 2014 all licensure tracking functions will be processed by the Attorney Services Division (ASD). Attorneys who have not yet paid their 2014 mandatory assessment should now work with ASD to cure any delinquency and avoid license suspense. Use the contact information below. All further delinquency notices for 2014 nonpayment will be sent by the ASD 2. Attorney status changes will now be made by the ASD. An attorney wanting to activate a license, retire or go inactive should contact the ASD at 402-471-3137 or Nsc.attrservices@ nebraska.gov or Supreme court Attorney Services Division P.O. Box 98910 Lincoln, NE 68509. The Supreme Court website will soon host the necessary forms to effectuate a status change.

3. All mandatory 2015 assessments will be paid through the Court’s online system. The changes in the system will be launched next fall. Beginning December 1, 2014 the attorney will log into their MCLE account and choose the annual licensure function to renew a license to practice. All mandatory assessments will be required to be paid through a credit card transaction using the attorney’s personal portal beginning December 1, 2014. 4. In order to reconcile the due dates for all practice requirements, late fees for nonpayment of dues will not accrue in 2015 and subsequent years until after January 20th, the day MCLE reports are considered due. 5. This will be the last year “bar cards” will be issued to members. Your proof of admission status will be a form that you can print off for verification of membership in Nebraska State Bar Association after payment of the mandatory assessment. It can also be kept as an electronic file and is fully accessible for reprinting at all times. 6. The following link, which can also be reached from the Supreme Court Web site, will be the source for address and status information for practicing attorneys: https://mcle.wcc.ne.gov/ext/SearchLawyer.do 7. Attorneys must notify the ASD of any changes in their contact information, this can be done by logging into the MCLE account and using the maintain personal information function. Notifying NSBA of contact information changes does not serve to update your contact information that is used for official notifications by the Court. NSBA will be updated on any changes you make to the contact information you give the ASD. For full details of the recent changes see Neb.Ct.R. § 3-100; § 3-310; § 3-803; § 3-1010; § 3-905.

2014 Judicial Evaluation Poll The Nebraska State Bar Association’s 2014 Judicial Evaluation Poll was made available as an online survey. The deadline to respond to the survey is May 16, 2014. THE NEBRASKA LAWYER

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2014 Outstanding Young Lawyer Award NOMINATION FORM The Outstanding Young Lawyer Award is presented annually to a young lawyer who has made exemplary contributions to the community and to public service, who has actively participated in State and local bar activities, and who stands out in the areas of professional knowledge, skill, integrity and courtesy. Screening and Selection Criteria • A “young lawyer” is any lawyer who has been engaged in the practice of law for five (5) years or less or who is under the age of thirty-six (36). • The nominated individual will have demonstrated the following qualities: o Active participation in state and local bar activities; o Demonstrated service to the public; o Actively seeks to improve and enhance the public’s perception of the legal profession; o Stands out in areas of professional knowledge, skill, integrity and courtesy. To nominate a young lawyer for this award, please complete and return this form. You may be contacted, confidentially, for more information on your nominee. Nominations must be received no later than September 12, 2014, by the YLS Executive Committee, c/o Katie Zulkoski; Mueller Robak, LLC; 530 S 13th St. #110; Lincoln, NE 68508. Nominations may also be e-mailed to zulkoski@muellerrobak.com. NOMINEE NAME AND ADDRESS: ______________________________________________________________________________________ ______________________________________________________________________________________ In a few paragraphs, please describe the reasons for nominating this person for the Outstanding Young Lawyer Award (if additional space is needed, attach a letter to this form).

Along with your nomination, you may submit a copy of the nominee’s resume and up to five (5) letters of recommendation by those qualified to speak of the nominee’s qualifications for this award. Name of Nominator ________________________________ Phone Number ______________________ THE NEBRASKA LAWYER

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transitions

Career Changes.......................... ..........................and Relocations The law firm of Parsonage Vandenack Williams LLC is proud to announce the addition of Eric W. Tiritilli as an attorney for the firm. Eric focuses his practice in the areas of litigation, employment law, business services, bankruptcy and health care law. He received his Bachelor of Arts Eric W. Tiritilli degree in English at the University of North Texas and his Master of Arts degree in Political Science from the University of Texas at Arlington. Eric received his Juris Doctorate, magna cum laude, from the Creighton University School of Law in 2003. Briggs and Morgan, Professional Association, welcomes Ben Klocke, associate, to the firm. Klocke has joined the firm’s Financial Institutions and Real Estate section, where he is among the section’s 27 attorneys who primarily focus

on transactions in asset-based and commercial lending, mezzanine finance, mortgage warehousing and investment real estate for top companies in Minnesota and across the country. Klocke joins Briggs and Morgan from the Omaha, Neb.-based law firm Baird Holm LLP, where he was an associate in the banking and real estate groups. He represents banks and institutional lenders in all aspects of structuring, negotiating and documenting of real estate and asset-based loan transactions. Klocke also represents clients in the acquisition, sale and leasing of commercial and agricultural property. Admitted to practice in Minnesota, Iowa and Nebraska, Klocke earned his law degree from the University of Iowa College of Law in 2007. He earned his master’s of business administration from the Henry B. Tippie College of Business at the University of Iowa and his bachelor’s degree, with distinction, from Iowa State University.

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transitions The Austin, Texas law firm of Stahl, Bernal, Davies, Sewell & Chavarria is pleased to announce that Gregory S. Friend has been named a partner in the Firm. Greg joined the Firm in 2012 and has significant experience as a transactional and regulatory attorney with a primary focus Gregory S. on renewable energy law. Since joining the Friend Firm, Greg has represented clients throughout the country in multiple aspects of both wind and solar project development, including drafting and negotiating land control agreements, reviewing and curing title and survey issues, and providing support for the financing of such projects. He advises and assists clients with regard to permitting and other environmental law aspects of project development, and provides counsel to clients on water law and Texas tax issues. Greg is licensed to practice law in Texas and Nebraska. For more information, please visit www.sbaustinlaw.com or contact Greg directly at 512-652-2949 or gfriend@sbaustinlaw.com. The Law Offices of Crary, Huff, Ringgenberg, Hartnett & Storm, PC are pleased to announce that Jeremy Saint has been made a principal with the law firm. Jeremy has been with the firm since 2007 and practices primarily in, but is not limited to, the areas of real estate, business and corporate Jeremy Saint law. He is a member of the Iowa State Bar Association and the Woodbury County Bar Association. He is a 2007 graduate of the University of Iowa College of Law, where he graduated with high distinction. Jeremy received his undergraduate degree in 2002 from the University of Alabama in Huntsville, graduating cum laude. Jeremy is originally from Woodville, Alabama, and resides in Sioux City with his wife and child. Carlson Burnett LLP is proud to announce the addition of Douglas R. Lederer to its legal team. Doug brings a broad range of business and legal experience to our growing firm. His primary areas of focus will be Estate Planning and Litigation, Family Law and Juvenile Law. Doug can be contacted directly at doug@carlsonburnett.com.

Atwood, Holsten, Brown & Deaver Law Firm P.C., L.L.O. is pleased to announce that Travis Allan Spier has become a partner of the firm. Since joining the firm in 2005, Travis’ trial practice has focused on litigation, mediation and settlement of workers’ compensation, personal Travis Allan injury, and wrongful death cases. In addiSpier tion to his success at the trial court level, Travis has also furthered his clients’ interests by making new Nebraska law in cases he has argued before the Nebraska Court of Appeals and Nebraska Supreme Court. Travis was born and raised in Pawnee City, Nebraska. He graduated with high distinction from the University of Nebraska-Lincoln in 2004 and thereafter earned a Juris Doctorate degree from the University of Nebraska College of Law. Travis is licensed to practice law before all state and federal courts in Nebraska.

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 Liz Neeley at lneeley@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.

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legal marketplace

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2014 Public Service Awards The Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2014 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 23, 2014.

George H. Turner Award

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

Award of Appreciation

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

Award of Special Merit

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

Nomination Form

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

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

Name of Nominee(s):_________________________________________________________________________ Address:___________________________________________________________________________________ Please briefly describe the activities and contributions which qualify this candidate as a nominee for the Award: _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ Please include any other information you believe would be helpful to the committee: _________________________________________________________________________________________ _________________________________________________________________________________________ Your name and address: _________________________________________________________________________________________ _________________________________________________________________________________________ Please return this form by May 23, 2014 to: NSBA House of Delegates Nominating Committee, PO Box 81809, Lincoln, NE 68501-1809 Fax (402) 475-7098

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Public Service Awards History George H. Turner Award

Award of Special Merit

2013 Honorable William Blue (posthumously) 2011 Hon. Theodore L. Carlson (posthumously) 2010 Robert H. Berkshire 2009 Douglas J. Stratton Gerald L. Soucie 2008 John V. Hendry 2007 D. Milo Mumgaard 2006 Hon. Lyle E. Strom 2005 James Hewitt 2004 Hon.Thomas M. Shanahan 2003 Kevin L. Ruser 2002 Hon. Robert O. Hippe 2001 Roberta S. Stick 2000 Hon. James M. Murphy 1999 James E. Gordon 1998 Kim M. Robak 1997 Robert W. Mullin 1996 Michael D. Gooch 1995 Albert T. Reddish 1994 Indigent Defense Task Force 1993 Howard P. Olsen Jr. 1992 James M. Bausch 1991 Hon. William C. Hastings 1990 Hon. Gerald E. Rouse 1989 Ronald Volkmer 1988 Harvey S. Perlman 1987 Hon. Norman M. Krivosha 1986 Bennett G. Hornstein 1985 Thomas J. Walsh 1984 Hon. Lyle C. Winkle 1983 Robert M. Spire 1982 John M. Gradwohl 1981 Hon. Herbert A. Ronin 1980 Thomas R. Burke 1979 Daniel D. Jewell 1978 Thomas W. Tye 1977 David Dow 1975 Bert L. Overcash 1974 Jack W. Marer 1972 Seymour L. Smith 1971 Herman Ginsburg 1970 Hon. Paul J. Hickman 1969 Senator Roman L. Hruska 1968 Hon. Edward F. Carter 1966 George B. Hastings 1965 Clarence A. Davis 1964 Raymond G. Young

2012 Ron Henningsen (posthumously), Lynda Henningsen The Daily Record 2011 Hon. Karen B. Flowers 2010 Sec. of State John Gale Attorney General Jon Bruning 2009 Dean Patrick J. Borchers Dean Steven L. Willborn 2008 John P. Lenich 2007 Robert Bartle 2006 Roger W. Kirst 2005 Hon. Alan L. Brodbeck 2004 David S. Houghton 2003 John B. Milligan 2002 Douglas A. Kristensen 2001 Jay J. Sullivan 2000 Omaha Law League 1999 Dennis R. Keefe 1998 Mid-American Council Juvenile Diversion Program Nebraska Court Appointed Special Advocate (CASA) Association 1997 Richard C. Witt 1996 Hon. Richard D. Sievers 1994 John R. Doyle 1993 Charles W. Baskins 1992 Kathleen M. Severens 1991 Robert G, Scoville 1990 Hon. Janice L. Gradwohl Hon. Robert Van Pelt 1989 Hon. W.W. Nuernberger 1988 Legal Services of S.E. Nebraska, Inc. Omaha Legal Aid Society Western Nebraska Legal Services Inc. 1987 Hon. Robert C. McGowan 1985 Richard M. Van Steenberg 1984 Robert J. Kutak 1983 Richard D. Shugrue James W. Hewitt 1982 Vard R. Johnson 1981 Rodney Shkolnick John Strong 1980 Joe R. Seacrest Robert D. Mullin 1979 Robert M. Spire 1978 Leo F. Clinch 1977 Alfred G. Ellick 1976 William J. Baird 1975 Laurens Williams Jack W. Marer

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1974 Hon. Robert R. Moran 1973 Murl M. Maupin Lester A. Danielson

Award of Appreciation 2013 Honorable Vernon Daniels Arturo Perez 2012 Hon. Jeffre Cheuvront 2011 Hon. Gerald E. Moran 2010 Daphne Hyun-Jin Aronson Kenneth M. Wentz III Sherman P. Willis 2008 Deanna Lubken 2007 The Woods Charitable Fund 2006 Riko E. Bishop Mark J. Young 2005 First National Bank 2004 Lawrence Raful 2003 Ronald R. Volkmer John M. Gradwohl 2002 Lane Foundation 2001 Nebraska Mock Trial Project 2000 Lancaster County Juvenile Court Judges 1999 Alan H. Frank 1998 Linda L. Willard 1997 Eileen Reilly–Buzzello James E. Reisinger 1996 The Omaha World Herald 1995 Jung Nguyen 1994 Nebraska Bankers Association 1993 Dave Thompson (posthumously) Omaha World Herald 1992 Nebraska Association of Trial Attorneys Nebraska Highway Safety Program 1991 Reta Johnson, Nebraska State Library 1989 Ted Larson, Lincoln Southeast High School National Bicentennial Competition 1988 Eleanor Propp, Nebraska Commission for the Hearing Impaired 1987 Kathryn E. Haugstatter, Lincoln Star 1986 Scottsbluff Star Herald 1985 Thomas R. Walsh, Nebraska Department of Education

1984 KFAB Radio, Tom Johnson 1983 Volunteers Intervening for Equity 1982 KETV Television, Gary Nielson 1981 Kearney State College, Brendan McDonald 1980 Gary Kerr, WOWT Television 1979 Nebraska Educational Television, John M. Lewis 1978 Nebraska Commission on Aging, David M. Howard 1977 Ceilia McNamara, Omaha Bar Association 1975 Lincoln Journal, Bill Kreifel 1974 Omaha World Herald, John Taylor 1973 Junior League of Omaha, Omaha Law Wives 1972 Donna Belle Weyers, Secretary of State’s Office 1971 KETV Television, Kenneth James 1970 Maurice H. Sigler, Nebraska Dept. of Corrections 1969 Benjamin Goble, Lincoln Police Department 1968 Nebraska Association of Broadcasters, Paul Jensen 1966 Junior League of Omaha, Mrs. Tyler Gaines 1965 KMTV Television, Owen Saddler 1964 Lincoln Journal News Staff, Gil Savery

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classified ads Executive Sportsman’s Acreage with fantastic views of branched oak lake Contact via email 57ronj@gmail.com for more information. Website Services: Do you need a website, better website, more clients? Our internet marketing service is by an attorney for attorneys. Complete website packages starting at $350 a month. www.legalmarketingguru.com Call today 1-855-487-8101. 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. Appellate Brief-Writing: Former Illinois Assistant Appellate Defender Michael Wilson available as co-counsel for appeals, criminal and civil. Since joining Omaha firm Schaefer Shapiro LLP in 2009, Mr. Wilson has successfully represented several clients before the Nebraska appellate courts. For more information, contact Mr. Wilson at 402-341-0700 or visit www. michael-wilson-law.com.

ATTORNEY: Medium sized AV rated Lincoln, Nebraska law firm seeks attorney with at least 2-5 years’ experience. Some established client base preferred. We are a general practice firm with emphasis in litigation, both civil and criminal. All applications will be treated with strict confidentiality. Send cover letter & resume to: Law Firm, PO Box 80352, Lincoln, NE 68501. ASSOCIATE POSITION, LATERAL PARTNER HIRE, or OFFICE SHARE - Larson, Kuper, Wenninghoff & Carney PC LLO is looking for an attorney with an established client base and/or a minimum of five years of practice experience to join our West Omaha firm, or a solo practitioner seeking an office share arrangement. Great opportunity for someone looking to join an established firm or someone seeking immediate office space. No required areas of practice necessary, but if there is interest in joining the firm experience and interest in worker’s compensation, litigation and criminal defense would be beneficial. Compensation structure is negotiable. Please email cover letter, resume and references to: Joel Carney at joel@lkwfirm.com. 1-800-I-AM-HURT Vanity Phone Number, Website and E-mail Responses will be licensed to one personal injury attorney in OMAHA, LINCOLN, or State of NEBRASKA or ANY other city or state in US, if available . All calls from injured parties in your area will go directly to you! Please call Alan or Stephanie at (310) 417-0618.

NSBA calendar

NSBA Events Calendar June 2014

October 2014

20

8-10

Greater Nebraska Golf Scramble Prairie Club, Valentine

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2014 NSBA Annual Meeting Embassy Suites, La Vista

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NSBA Labor & Employment Law Section Seminar Friday, May 16, 2014 • 8:30 am - 3:45 pm

Embassy Suites - La Vista • 12520 Westport Parkway, La Vista, NE 68128-2198 *Nebraska MCLE Activity #91585. 5.5 CLE hours including 1 hour ethics.

8:30 am ADR Perspectives Con Keating, Keating, O’Gara, Nedved & Peter, P.C., L.L.O.

12:00 pm Lunch & Keynote A View from the Bench Judge Joseph F. Bataillon, U.S. District Court for the District of Nebraska-Omaha

Ethics 9:15 am Christopher R. Hedican, Baird Holm LLP 10:15 am

1:15 pm Recent Developments at the ICRC Beth Townsend, Executive Director, Iowa Civil Rights Commission

Break

10:30 am Labor Law Update Steve Bogue, McGrath North Mullin & Kratz, PC LLO

2:15 pm Immigration Update Jessica A. Feinstein, Jackson Lewis, PC

11:15 am Unemployment 101 Steven S. Chase, Nebraska Department of Labor

2:45 pm

Break

3:00 pm Wage & Hour Update Kenneth M. Wentz, Jackson Lewis, PC 3:45 pm

Adjourn

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

Nebraska state bar FouNdatioN THE NEBRASKA LAWYER

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NSBA Labor & Employment Law Section Seminar Friday, May 16, 2014 • 8:30 am - 3:45 pm

Embassy Suites - La Vista • 12520 Westport Parkway, La Vista, NE 68128-2198 *Nebraska MCLE Activity #91585. 5.5 CLE hours including 1 hour ethics.

REGISTRATION FORM: Labor & Employment Law Section Seminar - May 16, 2014 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. Materials will NOT be printed for registrants unless requested and paid the additional fee below. ************************** c I am attending the Labor& Employment Seminar & want printed materials - $45 (cost is additional to registration fee)

**************************

Register BEFORE May 1st and save! c NSBA Labor & Employment Law Section Member - $200

c NSBA Dues Paying Member - $225

c Attorneys who paid only the mandatory assessment - $310

c Law Student - $10

Registration options AFTER May 1st c NSBA Labor & Employment Law Section Member - $220

c NSBA Dues Paying Member - $245

c Attorneys who paid only the mandatory assessment - $330

c Law Student - $10

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. If you do not receive an email confirmation, please call 402-475-7091. If you need any special accommodation for attending this event, please contact NSBA.

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/laborandemploymentlawsectionseminar%2811186%29 *Distance Learning Credit - Nebraska MCLE Accreditation pending. Estimated 5.5 CLE hours including 1 hour ethics. **Only 5 distance learning CLE hours may be claimed per year for Nebraska.** THE NEBRASKA LAWYER

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The Nebraska Lawyer Magazine May/June 2014  

Nebraska Lawyer Magazine May/June 2014 Vol. 17, No.3