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

Defending Bankruptcy Preference Claims Brian J. Koenig

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

Successful Succession: Keep Your Best Clients When Boomer Lawyers Leave Roy Ginsburg

The Team Approach to Client Service Kim Yesis


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The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • October 2011 • Vol. 14 No. 9

Features

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Departments 15 Practice Tip The Team Approach to Client Service

President’s Message Meet Me in Lincoln .................................................... Robert

F. Bartle

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Defending Bankruptcy Preference Claims: A Primer ...................................................... Brian

J. Koenig

by Sharon D. Nelson & John W. Simek

19 Copy Professional Responsibility Summer Readings

Successful Succession: Keep Your Best Clients When Boomer Lawyers Leave ...........................................................Roy

by Kim Yesis

17 Law & Technology Stupid Mistakes that Lawyers Make with Technology

Robert F. Bartle

by Dennis G. Carlson

21 Ethics “ Desiderata”

Ginsburg

by Travis Pickens

22 NSBA Calendar 23 Court News 27 Legal Community News 29 NCLE Calendar 30 Transitions 33 In Memoriam 35 Classified Ads 36 Legal Marketplace About the Cover Michael Wear, V.P. of Access Bank, took the cover photograph near Glenvil, Nebraska. You can find more of his pictures at www.mikewearphotos.shutterfly.com.

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

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

EXECUTIVE COUNCIL

issue editors

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

ABA State Delegate: ABA Association Delegate:

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

Bar Foundation President: NLTAF: Supreme Court Liaison:

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

Young Lawyers Section Chair: NCLE Section Chair:

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

Executive Director:

Jane L. Schoenike, Lincoln

Tom Ackley is a shareholder with the law firm of Koley Jessen P.C., L.L.O. in Omaha. He received a B.S. degree from St. Cloud State University in 1988 and earned a M.A. from the University of South Dakota in 1993. Tom graduated from Creighton University School of Law in 1999 and, prior to attending law school, Tom served as an officer in the U.S. Air Force for six years. His practice areas include real estate, business law, banking and finance.

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

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

James C. Bocott

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

THE NEBRASKA LAWYER

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

Meet Me in Lincoln

Robert F. Bartle

Roscoe Pound observed that three ideas defined a profession: organization, learning, and a spirit of public service. All three are soon on display in Lincoln. If you have not registered for the annual meeting of the NSBA, it is not too late to do so. We are hoping to break last year’s attendance records when Nebraska lawyers gather at the Cornhusker Hotel on October 19 - 21. Over 1,400 members were part of last year’s event in LaVista. Let’s set a new record this year. Thanks largely to the planning efforts of Associate Executive Director, Sam Clinch, and the co-chairs of this year’s annual meeting, Corey and Jeanette Stull, I am confident that all of you will enjoy the reunions, meals and meetings, as well as the celebrity entertainment associated with this year’s event. Our featured speakers include the director of the Innocence Project, Barry Scheck. Mr. Scheck is a professor at the Benjamin Cardozo School of Law in New York City, but even more significantly, he co-founded a project which assists police, prosecutors and defense attorneys throughout the nation in understanding critical evidentiary issues, including the limitation of eye witness identification, as well as the value of appropriate DNA testing. As a consequence, in 19 years of existence, the Innocence Project has cleared 271 individuals, exonerated of crimes throughout the United States, by way of post-conviction DNA testing. Along with Professor Scheck, you will be entertained by the distinct presentation style of Mike Rubin of Baton Rouge, Louisiana. Rubin is a practicing lawyer, who also teaches legal ethics at Louisiana law schools. He has presented hundreds of lectures and papers throughout the United States, Canada and THE NEBRASKA LAWYER

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England. His use of the audio-visual, coupled with his musical talent, makes his presentations unique and quite memorable. And if those offerings are not enough to entice you to attend, take a look at three complete days of CLE seminars by way of the good work of our Director of Continuing Education, Kathryn Bellman, and the talented staff of the Nebraska Supreme Court Administrator’s Office. You will receive CLE credit in almost every area of practice, including Casemaker and e-filing, as well as becoming a better volunteer lawyer through the VLP seminar, coordinated by our Director of Legal Services, Jean McNeil. At a time of decreasing budgets resulting from the low-interest limitations of IOLTA, and the political pressures on funding legal services at the national and state levels, there is no better time to encourage all lawyers to serve the working poor with effective legal representation. If you are a member of our House of Delegates, plan to review the report of the Governance Task Force created to examine the governing structure of our bar association. Past President Michael Kinney chaired that Task Force, and we owe a special debt of gratitude to Mike and the members of the Task Force. The report includes recommendations to both streamline the governance of our association, and to improve communications with our membership. Those recommendations will be part of the agenda of the House meeting on October 20. I must also acknowledge the hard work of staff liaison Liz Neeley in polling the membership, and assembling the final report of the Task Force. All of you are invited to join me at the President’s

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president’s page Reception on Thursday evening, October 20. This allows me to thank each and every one of you for the opportunity given to me this past year. I will be introducing you to Warren Whitted of Omaha, my successor as NSBA President. A preeminent lawyer and partner in one of Omaha’s leading firms, Warren has forgotten more about the administration of our bar association than I have learned or remembered in the first instance. Consequently, I assure you that our association continues in very able hands with Mr. Whitted. I suspect every president serving our association the last 15 years will join me in noting that a challenging job would become almost impossible without the assistance of our NSBA staff. Which leads me to my final and most significant “thank you”. The staff directors referenced above have a leader who allows them to shine in their own right by delegating and coordinating the assignments I referenced. That leader is our Executive Director Jane Schoenike. We are well served in

Lincoln and throughout this state by the skill and commitment of Jane, one I now regard as a lifelong friend. My last letter as President concludes my term, but will not end my service as a Nebraska lawyer. With Pound’s admonition in mind, I look forward to the companionship, the learning and the sense of public service enhanced by and through your Nebraska State Bar Association.

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

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

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feature article

Defending Bankruptcy Preference Claims: A Primer by Brian J. Koenig 1

As a product of the numerous bankruptcy filings that have occurred over the past few years, creditors have been increasingly faced with demands for the return of pre-bankruptcy payments made by bankrupt debtors on the theory that such payments are “preferences” under the Bankruptcy Code. To many creditors, the demands come as a surprise, and a credi-

Brian J. Koenig Brian J. Koenig is an attorney at Koley Jessen P.C., L.L.O., practicing in the areas of banking and finance, bankruptcy and creditors’ rights, and litigation. In his bankruptcy practice, he counsels a variety of clients, including creditors, debtors, bankruptcy trustees, creditor committees, and post-bankruptcy investors. His experience includes: identifying, negotiating, and implementing strategies for distressed companies both in and out of bankruptcy; counseling lenders and investors in commercial transactions, including foreclosure proceedings and disputes under the Bankruptcy Code; litigating contested matters on behalf of debtors and creditors in state and federal courts; and formulating strategies to assist companies dealing with troubled and bankrupt customers. In his general litigation practice, which is concentrated in commercial and business litigation, Brian represents clients in a variety of litigation matters as well as arbitrations and mediations. Brian practices in both the federal and state courts in Nebraska and Iowa. Prior to joining Koley Jessen, he served as a judicial law clerk to the Honorable John F. Wright with the Nebraska Supreme Court and was Editor-in-Chief of the Creighton Law Review. THE NEBRASKA LAWYER

tor not familiar with the bankruptcy process may even regard such demand as a cruel “joke.” Unfortunately, the demand is certainly not a joke but is merely the start of what could be another unfortunate consequence of the debtor’s bankruptcy: the defense of a preference claim. The typical creditor’s experience goes something like this: After initially receiving notice of the debtor’s bankruptcy, the creditor files a proof of claim, takes action to recover on its collateral, if any, by filing a motion for relief from stay, writes off the remaining unpaid debt, and goes about its business. Sometime later, usually right before the statute of limitations is about to expire (which can be up to two years or more after the debtor’s bankruptcy filing), the creditor receives a letter from the trustee of the debtor’s estate, the debtor-in-possession, the creditors’ committee, or some other party holding the right to the debtor’s preference claims (hereinafter, collectively, the “trustee”), demanding that the creditor return certain payments or transfers that the creditor received during the 90 days prior to the debtor’s bankruptcy filing. Confused and usually angry, the creditor turns to counsel for help in evaluating the creditor’s exposure and implementing a strategy to successfully resolve the trustee’s demand. To help the creditor evaluate the legitimacy of the demand and determine what strategy to implement, creditor’s counsel must first determine whether the elements of a preference claim have been met and then evaluate whether any potential defenses are available. This Article is intended to provide practitioners unfamiliar with preference claims a step-by-step guide to determine whether the elements of a preference claim have been met and what potential defenses are available. But, before exploring the elements and defenses to a preference claim, this Article briefly

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defending bankruptcy preference claims explores the underlying policy reasons behind preference claims to provide some context.

Why Do Preference Claims Exist? Preference claims exist to ensure that all creditors are treated equally and receive an equal percentage of their claims and to prevent the debtor from preferring one creditor over another by making payments to certain creditors on the eve of bankruptcy. To illustrate this policy, bankruptcy practitioners often ask the creditor a variation of the following question: Would it be fair if you and one of your friends each loaned a debtor $60,000 and the debtor agreed to pay each of you $1,000 per month for five years and did in fact pay each of you $1,000 per month for a year, but during the 90 days prior to the debtor filing for bankruptcy, the debtor failed to pay you anything and paid all the remaining money he owed to your friend because he liked her more than you? Answering “no,” the creditor ordinarily then recognizes why, in certain circumstances, the trustee is authorized to bring a preference claim to recover, and 2 then redistribute, payments considered “preference payments.”

The Elements of a Preference Claim A “preference” is defined by Section 547 of Title 11 of the United States Code (the “Bankruptcy Code”), and the following explanatory elements are derived from Wells Fargo Home Mortgage, Inc. v. Lindquist, 592 F.3d 838 (8th Cir. 2010) (citing Buckley v. Jeld-Wen, Inc. (In re Interior Wood Prods. Co.), 986 F.2d 228, 230 (8th Cir. 1993)): 1. A “transfer” of an interest of the debtor in property; a. Transfer means “each mode, direct or indirect, absolute or conditional, voluntary of involuntary, of disposing of or parting with -- (i) property; or (ii) an interest in property.” 11 U.S.C. § 101(54).

a. Creditor means “an entity that has a claim against the debtor that arose at the time or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10). b. Guarantors or sureties are creditors because they may be called upon to pay the debtor’s obligations. If they do, they will be subrogated to the obligee, and thus they have a contingent claim against the debtor. In re Wesley Indus., Inc., 30 F.3d 1438 (11th Cir. 1994). c. Any party with a contingent right of recourse against the debtor--including co-obligors, endorsers, or co-makers--may be deemed a creditor. In re M2Direct, Inc., 282 B.R. 60 (Bankr. N.D. Ga. 2003).

4. Made while the debtor was “insolvent”; a. Insolvency means for entities other than partnerships a “financial condition such that the sum of such entity’s debts is greater than all such entity’s property, at fair valuation. . . .” 11 U.S.C. § 101(32). b. A presumption of insolvency exists during the ninety days prior to the bankruptcy filing. 11 U.S.C. § 547(f). c. The determination of the value of the debtor’s assets and liabilities at the time of the transfer is highly fact-specific, and expert testimony is frequently required. In re Prime Realty, Inc., 376 B.R. 274 (Bankr. D. Neb. 2007). d. Typically the debtor’s assets should be given their going concern value, and liquidation value should be used only if the debtor was financially moribund at the time of the transfer. Jones Truck Lines, Inc. v. Full Serv. Leasing Corp., 83 F.3d 253 (8th Cir. 1996).

5. To a non-insider creditor, within 90 days of the filing of 3 the bankruptcy;

b. Transfer also includes “involuntary” transfers such as a judgment lien (In re XYZ Options, Inc., 154 F.3d 1276 (11th Cir. 1998)), a garnishment, or an attachment lien (In re Morehead, 249 F.3d 445 (6th Cir. 2001)) and the forgiveness or release of a debt owed to the debtor. In re Dehon, Inc., 334 B.R. 71 (Bankr. D. Mass. 2005).

a. 11 U.S.C. § 547(e) establishes when a transfer is deemed to have been made in a preference action. b. A payment by check is considered to have been made when the drawee bank honors the check, not when the payee receives it. Barnhill v. Johnson, 503 U.S. 393 (1991).

c. Transfer does not include set-offs. In re Holyoke Nursing Home, Inc., 273 B.R. 305 (Bankr. D. Mass. 2002).

c. If a case is converted, the look-back period is measured from the date of the original petition rather than from the date of conversion. Vogel v. Russell Transfer, Inc., 852 F.2d 797 (4th Cir. 1988).

d. The Bankruptcy Code does not define what constitutes an “interest of the debtor in property.” Accordingly, courts ordinarily look to state law to determine whether the debtor had an interest in the property.

6. That left the creditor better off than it would have been if the transfer had not been made and the creditor asserted its claim in a Chapter 7 liquidation.

2. On account of an “antecedent” debt; a. An antecedent debt is a debt that arose prior to the transfer by the debtor. Laws v. United Missouri Bank of Kansas City, N.A., 98 F.3d 1047 (8th Cir. 1996), cert. denied, 520 U.S. 1168 (1997). THE NEBRASKA LAWYER

3. To or for the benefit of a “creditor”;

a. In analyzing whether a transfer meets this requirement, the court must compare the amount 6

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defending bankruptcy preference claims

1. Contemporaneous Exchange for New Value

a creditor received as a result of the transfer with the amount the creditor would have received in a Chapter 7 liquidation of the debtor. b. Payments made to a fully-secured creditor cannot be preferential. In re Smith’s Home Furnishings, Inc., 265 F.3d 959 (9th Cir. 2001).

It is important to note the foregoing six elements do not require that the debtor had the intent to prefer one creditor over another. Section 547 also does not consider whether the creditor knew the debtor was insolvent when it received the payment or transfer. The burden of proof for establishing the elements of a preference is on the trustee. Thus, if the trustee fails to prove each of the elements by a preponderance of the evidence, the creditor will be able to defend successfully against the claim without having to prove an affirmative defense. Based on experience, the most common element that a trustee cannot prove is the sixth element: the transfer enables the creditor to receive more on its claim than it would have, had the payment not been made. A good example of this is when a seller of goods provides the debtor goods within the 20 days prior to the debtor filing bankruptcy, making the seller a holder of a 20-day administrative expense claim against the bankruptcy estate.4 Such claims are often paid in full by the bankruptcy estate.5 Therefore, so long as all administrative expense claims in the debtor’s case have been paid in full, if the trustee makes a preference claim for the return of the payments received by the seller for the goods, the trustee will be unable to satisfy the sixth element and meet its burden of proof since the seller would have received payment for the goods under a liquidation analysis by virtue of its 20-day administrative expense claim. Similarly, the trustee likely will not be able to prove the sixth element of a preference claim in situations where the payment was received in consideration for the release of a fully-secured6 security interest or lien (e.g., construction lien, mechanic’s lien, attorney’s lien, etc.), or where the creditor was fully secured at the time it received payment. This is because such claims enjoy a higher priority and are often paid in full in Chapter 7 liquidations.

Defenses to a Preference Claim Even when the trustee is able to prove the elements of the preference claim, the creditor may be able to prove certain defenses to a preference claim. The Bankruptcy Code provides a number of defenses to a preference claim. The three most common defenses are found in Section 547(c) of the Bankruptcy Code and are commonly referred to as: (1) the “contemporaneous exchange for new value” defense; (2) the “subsequent new value” defense; and (3) the “ordinary course of business” defense. All three of these defenses are affirmative defenses, meaning that the creditor has the burden of proof. THE NEBRASKA LAWYER

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The “contemporaneous exchange for new value” defense prevents the trustee from recovering payments that were actually intended to be contemporaneous exchanges for new value and were, in fact, substantially contemporaneous with the exchange of new goods, services, credit, or some other new value. The defense is meant to encourage creditors to continue to deal with financially distressed debtors, if only on a COD basis. In re Jones Truck Lines, Inc., 130 F.3d 323 (8th Cir. 1997); In re Payless Cashways, Inc., 306 B.R. 243 (B.A.P. 8th Cir. 2004), aff’d, 394 F.3d 1082 (8th Cir. 2005). The defense is embodied in section 547(c)(1)(A)-(B), which provides that a trustee cannot avoid a transfer: (1) to the extent that such transfer was -(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange.

The purpose of this defense is to protect transactions that do not diminish the bankruptcy estate. In re Cocolat, Inc., 176 B.R. 540, 548 (Bankr. N.D. Cal. 1995). In this regard, it is the intent of the parties that constitutes the most critical element. See Belfance v. Standard Oil Co. (In re Hersman), 20 B.R. 569, 573 (Bankr. N.D. Ohio 1982). (“The key inquiry, therefore, is whether the parties at the outset intended the exchange to be contemporaneous.”). A check is the perfect example. See Gover v. Ford Motor Credit Co. (In re Davis), 22 B.R. 644 (Bankr. M.D. Ga. 1982) (holding that the only type of credit transaction which would result in a transfer under the contemporaneous exchange for new value exception is a check transaction, which is for all practical intents and purposes really a cash transaction). A transfer involving a check is “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs . . . that will amount to a transfer that is “in fact substantially contemporaneous.” H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 373 (1977), U.S. Code Cong. & Admin. News, p. 5787 (1978). Conversely, a credit card transaction is the perfect bad example. The court in In re Hersman explained: Where goods are paid for by a check, the payor had funds in the banking institution upon which the check is drawn when he makes the check payable to the person furnishing the goods. The payee need only present the check for payment. . . . When using a credit card to pay for goods, a consumer is generally seeking that which its name implies -- the extension and receipt of credit. By using a credit card, the credit card consumer does not intend a contemporaneous exchange for value.

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defending bankruptcy preference claims Instead, what is generally intended is the receipt of goods or services presently and time to pay for the same in the future. . . .

not make an otherwise unavoidable transfer to or for the benefit of such creditor.

In re Hersman, 20 B.R. at 573. In other cases, the intent of the parties can be difficult to prove, especially if you have an uncooperative debtor. Nevertheless, the conduct of the parties and any writings and communications between them can be used to establish intent. A transaction, however, need not only be contemporaneous, but it must create new value as well. While the question of new value is always a question of fact, Creditors’ Committee v. Spada (In re Spada), 903 F.2d 971 (3d Cir. 1990), its form can be virtually anything. New value can include new credit, goods, services or property. 11 U.S.C. § 547(a)(2). However, a creditor’s forbearance from foreclosing or otherwise exercising its rights is not “new value,” even though forbearance would constitute consideration sufficient to support a contract. In re ABC-Naco, Inc., 483 F.3d 470 (7th Cir. 2007). Similarly, the majority of courts hold that the settlement or dismissal of a lawsuit or claim in return for payment does not constitute new value. In re Ramba, Inc., 416 F.3d 394 (5th Cir. 2005); In re Energy Co-op., Inc., 814 F.2d 1226 (7th Cir.), cert. denied, 484 U.S. 928 (1987). To determine whether this defense is met, the court examines whether the exchange was intended to be substantially contemporaneous and whether new value (not the satisfaction of an old value) was given in exchange for the preferential treatment. If both of these elements have been met, then the creditor has proven the affirmative defense of contemporaneous exchange.

2. Subsequent New Value The “subsequent new value” defense prevents a trustee from recovering a transfer as a preference where the creditor had extended new value in the form of credit sales of goods or services following the transfer because the creditor has repaid the estate for the preferential transfer. In re Armstrong, 291 F.3d 517 (8th Cir. 2002). The policy reasons behind this defense are twofold: (1) it encourages creditors to continue extending credit to the debtor, thereby reducing the risk of the debtor’s bankruptcy; and (2) creditors who enhance the debtor’s estate by providing new value after receiving a transfer from the debtor should not be penalized, and should instead receive an offset for new value extended following the transfer. This defense is embodied in section 547(c)(4)(A)-(B), which provides that a trustee cannot avoid a transfer: (4) to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor – (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did THE NEBRASKA LAWYER

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The new value provided can be in the form of goods, services, credit or the release of a lien. Basically, the courts will deduct from the preference amount any subsequent amount of goods and services that were provided to the debtor. In the subsequent new value analysis, it is important to note that (1) the new value is credited against only those transfers (including payments) that occur prior to the new value being given, and (2) in some jurisdictions,7 the new value must remain unpaid at the time the bankruptcy is filed. But see Wahoski v. American & Efrid, Inc. (In re Pillowtex Corp., et al.), 416 B.R. 123 (Bankr. D. Del. 2009) (permiting a defendant to assert as a defense new value, even if paid, so long as the new value was not “otherwise unavoidable”). The following chart illustrates the analysis of this defense: Date

Day

Preference Payment

New Value

Net Preference

03/23/10

Day - 70

$32,000

04/02/10

Day - 60

$15,000

$17,000

04/12/10

Day - 50

$20,000

0

04/22/10

Day - 40

05/02/10

Day - 30

06/01/10

Day - 0

$32,000

$15,000

$15,000 $3,000

(Bankruptcy Filing Date)

$12,000 $12,000

The new value given by the creditor to the debtor on Day 60 and Day 50 (counting backwards from the bankruptcy filing date) is credited against the preference payment that occurred on Day 70. But no credit is carried forward. The preference payment on Day 40 is only offset by the new value given on Day 30. Thus, the creditor’s net preference exposure (without taking into account any other potential defenses) is $12,000 (i.e., the $15,000 preference payment made on Day 40 minus the subsequent new value of $3,000 provided on Day 30). As is evident from the above chart, this defense is a mathematicalcertainty-type defense that can be proven fairly easily, without hiring an expert. Accordingly, it is ordinarily one of the first preference defenses a creditor’s attorney will examine.

3. Ordinary Course of Business The “ordinary course of business” defense prevents the trustee from recovering a payment as a preference when the payment was received by the creditor in the ordinary business terms of either the debtor and creditor or the debtor’s industry and creditor’s industry. The essential purpose of this exception is “to leave undisturbed normal financial relations because O c t o ber 2 0 1 1


defending bankruptcy preference claims it does not detract from the general policy of the section to discourage unusual action by either the debtor or its creditors during the debtor’s slide into bankruptcy.” Morrison v. Champion Credit Corp. (In re Barefoot), 952 F.2d 795, 801 (4th Cir. 1991). See also The Official Plan Committee v. Expeditors Int’l, Inc. (In re Gateway Pacific Corp.), 153 F.3d 915 (8th Cir. 1998). This defense is embodied in section 547(c)(2)(A)-(B), which provides that a trustee cannot avoid a transfer: (2) to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was-(A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or (B) made according to ordinary business terms.

This defense may be asserted under either or both prongs of the two-prong test, which contains a subjective prong concerning the consistency of the parties’ course of dealing, and an objective prong concerning the relationship between the parties’ course of dealing and industry norms. The creditor can 8 show either that the practice was ordinary between the parties or that it is ordinary in both of the parties’ industries. So long as one of those requirements is met, the creditor will have established a defense to the preference claim. To establish the objective prong of the “ordinary course of business” defense (section 547(c)(2)(B)), the creditor must prove that the parties have not deviated from the ordinary business terms of their industries. Some courts have held that the focus should be on the creditor’s industry (e.g., Advo-System, Inc. v. Maxway Corp., 37 F.3d 1044 (4th Cir. 1994)), while others have held that it should be the debtor’s industry (e.g., In re Accessair, Inc., 314 B.R. 386 (8th Cir. B.A.P. 2004), aff’d, 163 Fed. Appx. 445 (8th Cir. 2006)). Other courts have held that one must look to both the debtor’s and the creditor’s respective industries (e.g., In re Milwaukee Cheese Wis., Inc., 112 F.3d 845 (7th Cir. 1997)). Irrespective of whether the focus should be on the debtor’s or creditor’s industry, showing that such practice is ordinary in the industry usually requires an expert witness or other evidence. Because this prong of the “ordinary course of business” defense can require an expert witness, it is typically the most expensive and difficult defense to establish, even though it is frequently the only defense a creditor has. This results in the “ordinary course of business” defense being the largest area of litigation concerning preferences. To establish the subjective prong of the “ordinary course of business” defense under section 547(c)(2)(A), the creditor must go back and examine the payment history of the debtor during the entire business relationship it had with the debtor. Many courts have compared the “average” number of days between the invoice date and the date of the debtor’s payment of that THE NEBRASKA LAWYER

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invoice (e.g., In re Waccamaw’s Homeplace, 325 B.R. 536 (Bankr. D. Del. 2005)). These courts compare the “average” number of days between the invoice date and payment in the preference period with such average for payments made prior to the 90-day preference period. This test can result in a narrow construction of the “ordinary course of business” defense. Conversely, some courts compare the payments made during the preference period with the “range” (rather than the “average”) of the payments made during the pre-preference period (e.g., In re Tennessee Valley Steel Corp., 201 B.R. 927 (Bankr. E.D. Tenn. 1996)). These courts compare the “ranges” between the invoice dates and payments in the preference period with the ranges between invoice dates and payments made prior to the 90-day preference period. As one can imagine, a statistical analysis can usually show what you want it to show by lengthening or shortening the sampling period or making other changes. Thus, presentation can be extremely significant. Providing spreadsheets and charts to illustrate the sophistication and thoroughness of the analysis has the potential to substantially improve the negotiation posture. In addition to timing considerations, which are usually addressed first, courts can also consider any number of additional factors, including: (1) whether the amount or manner of payment (e.g., check / wire) differed from past practices; (2) whether the debtor or the creditor engaged in any unusual collection or payment activity; (3) whether the creditor took advantage of the debtor’s deteriorating financial condition; and (4) whether the subject transfer was in an amount more than usually paid. In re Allegheny Health, Education and Research Foundation, 292 B.R. 68 (Bankr. W.D. Pa. 2003); Central Hardware Company v. The Walker-Williams Lumber Co. (In re Spirit Holding), 214 B.R. 891 (E.D. Mo. 1997), aff’d, 153 F.3d 902 (B.A.P. 8th Cir. 1998). The second point considers whether the creditor threatened to cut off services or supply if payment was not made. If the debtor is able to produce these types of communications, the ordinary course of business defense can be even more difficult to prove. The third point usually considers whether the creditor changed any terms to compensate the creditor for the increased payment risk the creditor perceived.

4. Claim Amount Under 28 U.S.C. § 1409(b), if a preference claim (excluding a consumer debt) against a non-insider is for less than $11,725, the action must be brought in the district in which the creditor resides. And, if the claim is for less than $5,850, and the debtor’s debts are not primarily consumer debts, the claim is completely barred under 11 U.S.C. § 547(c)(9).

5. Poverty Though not technically a defense and not described in the Bankruptcy Code or any case law, the “poverty” defense is

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defending bankruptcy preference claims based on practical realities. In some situations, a trustee may agree to settle a preference claim on reduced terms if it receives verifiable evidence that the creditor would be unable to satisfy the judgment.

Code, the look-back period is extended to one year. 11 U.S.C. § 547(b)(4)(B). Whether the creditor to whom or for whose benefit the transfer was made is an insider must be determined as of the date of the transfer. In re American Eagle Coatings, Inc., 353 B.R. 656 (Bankr. W.D. Mo. 2006). See 11 U.S.C. § 503(b)(9) (providing that a creditor who provides the debtor goods 20 days prior to the debtor’s bankruptcy shall be entitled to an administrative expense claim against the bankruptcy estate for the value of the goods received by the debtor).

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6. Additional Defenses A creditor may have additional defenses not described herein. For example, grain sellers and fishermen are afforded special protections, as are commodity brokers, stockbrokers and other participants in certain types of finance-industry transactions. See 11 U.S.C. § 546(d), (e), (f), (g). Additionally, if the creditor was named a critical vendor, the debtor may have waived the preference claim as part of the critical vendor order. Other defenses are beyond the scope of this Article, as it is not meant to be an exhaustive examination of all potential defenses to a preference claim.

See 11 U.S.C. § 507(a)(2) (stating that administrative expense claims are entitled to priority over unsecured claims).

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If the creditor holds a security interest or lien that is undersecured (i.e., partially out of the money), the portion of the preference claim paid from the debtor’s general funds are conclusively presumed to have been applied first to the unsecured debt, thus making the payments preferential to that extent. Drabkin v. A.I. Credit Corp., 800 F.2d 1153 (D.C. Cir. 1986). However, if the undersecured creditor has merely received its own collateral or the proceeds of its collateral, then the creditor has not received more than it would have obtained in a Chapter 7 liquidation and the transfer is not avoidable. In re El Paso Refinery, LP, 171 F.3d 249 (5th Cir. 1999).

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Conclusion Attorneys assisting creditors faced with a preference demand should be mindful of the elements of the claim and the affirmative defenses and should respond in detail to the demand with records to substantiate their client’s position. Attorneys should also advise their creditor clients to take a proactive approach to avoid preference exposure by being diligent in collecting payments in a timely and routine manner, preserving their records, monitoring their customers’ financial status, implementing COD terms when necessary, and applying payments to the most recent invoices. However, if given the choice between accepting a payment that potentially could be considered a preference in the future, creditors generally should accept the payment and take the risk that they might have to defend against a preference claim. If the foregoing elements and affirmative defenses are evaluated properly, attorneys assisting creditors faced with preference demands should be able to effectively evaluate a creditor’s exposure and implement strategies to resolve the preference claim in a manner that will lessen this unfortunate consequence of the debtor’s bankruptcy.

Endnotes The author would like to express his sincere appreciation to Matthew J. Speiker for his comments on previous drafts of this Article.

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It should be noted, however, that, as a practical matter, the administrative costs of bringing the preference claim usually erode the amount of money that is available for redistribution.

2

For an insider, as defined in Section 101(31) of the Bankruptcy

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The Third, Seventh and Eleventh Circuits have held that new value must remain unpaid. This approach is known as the “remains unpaid” approach. On the other hand, the Fourth, Fifth and Ninth Circuits have held that the plain language of the Bankruptcy Code contains no such restriction. This approach is known as the “subsequent advance” approach, because its focus is on the subsequent new value that the defendant provided. The Eighth Circuit has issued somewhat conflicting opinions on the issue. Compare In re Jones Truck Lines, Inc., 130 F.3d 323 (8th Cir. 1997) (applying the “subsequent advance” approach), with In re Kroh Bros. Devel. Co., 930 F.2d 648 (8th Cir. 1991) (suggesting the “remains unpaid” approach is correct).

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Use of the term “between” is not meant to imply that a prior course of dealing is required. In re Peterson Distributing, Inc., 197 B.R. 919, 926 (D. Utah 1996). A one-time transaction may be considered “ordinary” between the parties if it conformed to the payment terms of the underlying agreement. Warsco v. Household Bank F.S.B., 272 B.R. 246, 251 (Bankr. N.D. Ind. 2002). However, conformity to the contract terms is not dispositive, as a payment according to the contract terms may have been outside the normal course of the parties’ dealings if the parties had an established practice of departing from the contract requirements prior to the preference period. In re Hayes Lemmerz Intern., Inc., 337 B.R. 49 (Bankr. D. Del. 2006). Further, it has been argued the drafters of BAPCPA meant for Section 547(c)(2)(A) (payment made in the ordinary course of the parties’ affairs) to be the norm in most instances and for Section 547(c)(2)(B) (payment made according to ordinary business terms) to be used chiefly, if not exclusively, when there is no baseline or track record of earlier dealings between the parties. Nonetheless, the statute does not, by its terms, limit Section 547(c)(2)(B) to such situations.

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feature article

Successful Succession: Keep Your Best Clients When Boomer Lawyers Leave

by Roy Ginsburg

Reprinted by permission from Bench & Bar of Minnesota, the magazine of the Minnesota State Bar Association. The demographic phenomenon known as the baby boom has been shaping all aspects of American life since its advent in 1946—from an unprecedented number of students when the boomers were young, to an unprecedented number of workers during their adult years, to an unprecedented number of retirees in the years ahead. There is no escaping the impact of this generation. For the next 19 years, about 10,000 people a day will turn 65—including many of the nation’s most experienced and respected attorneys. The American Bar Association estimates that there are 400,000 baby boomer lawyers—approximately one-third of the nation’s current total. Before long, golf courses may be as crowded as highways. Take a careful look at your law firm’s most-influential leaders and biggest rainmakers. Chances are good that these

Roy S. Ginsburg Roy S. Ginsburg is an attorney coach who has helped numerous lawyers nationwide achieve practice development goals and career satisfaction. While maintaining his private practice of law on behalf of a select group of clients, Roy has coached a variety of lawyers on how to best plan for their retirement and is a frequent CLE speaker. www.royginsburg.com THE NEBRASKA LAWYER

individuals will be retiring over the next two decades. Is your law firm prepared for the impact of this seismic generational transition? The impact will be felt well-beyond the law firm itself. Clients who have been well-served for years will find themselves bereft of the lawyer with whom they have built and maintained a personal and professional relationship over the years. Who at your law firm is prepared to step to the plate and keep these clients equally satisfied? The future health of your law firm depends upon how today’s leadership plans for the firm’s post-boomer viability. This important effort is called succession planning.

Obstacles to Planning Afraid to Plan. In order to plan for the future of your law firm, you need to know the retirement plans of the firm’s senior lawyers. Obtaining this knowledge is easier said than done. It can be problematic to simply start a conversation about the subject. Many senior lawyers avoid raising the issue on their own due to a variety of real or perceived fears, including potential reduction of compensation or loss of clout among partners. Others resist any conversation that involves thinking about the end of their professional career—with its hints of their eventual mortality. Junior lawyers whose future is at stake have their own fears about starting the conversation. If handled incorrectly, broaching the topic of succession could in some firms be political suicide. Younger lawyers fear being perceived by their elders as putting their self-interest ahead of the firm’s. Too Busy to Plan. Lawyers are notorious for contemplating every possible way in which a client deal or transaction can go wrong—even if it would not occur for years. Paradoxically,

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successful succession when it comes to the future of the law firm, thinking ahead is hardly a blip on their radar screens. Each lawyer’s focus is on day-to-day issues such as handling client crises, billing and collection matters, or dividing up firm profits. They cannot see the forest for the trees. Too Selfish to Plan. There are also some partners who, quite frankly, care about themselves more than they care about the firm. If they have a big book of business, they are usually tolerated. These lawyers will disrupt the law firm by leaving under their own terms, planning only for themselves and not their colleagues.

Starting the Discussion In theory, any discussion about succession planning should be started by the firm’s managing partner or management committee. Alternatively, influential and well-respected partners can raise the issue. In reality, many of these individuals suffer from the fears mentioned above. In that case, one effective tactic is to camouflage the firm’s succession planning within its strategic planning process. This can be particularly effective when the strategic planning process is facilitated by an outside consultant. Unlike the lawyers in the firm, outside consultants have no vested interest in the outcomes of succession planning. The best way to engage selfish partners in the process is to focus on the client side of succession planning. Even partners who do not particularly care about their colleagues typically care very much about their clients. When the emphasis is placed on meeting client needs, and not on the firm, the chances of getting their attention substantially improves.

Nuts and Bolts The objective of creating and executing a succession plan is to ensure continuity in firm management and client relationships. Management. Responsibility for transitioning firm leadership falls to the managing partner or management committee and, at larger firms, the practice group heads. Firms led by managing partners should elect or select a successor to be “assistant managing partner” to work with the incumbent managing partner for months, or even years. This allows time for the new leader to be mentored and gradually assume management responsibilities. Firms led by committee should adopt a rotation process that maintains continuity while providing a steady infusion of fresh blood and future leaders. Client Relationships. Transitioning the clients of a senior attorney to the next generation is the most challenging component of any succession-planning equation. Client input is essential. Success requires managing and finessing human relationships, a task that—even with the best of intentions—is never easy. It can take years to successfully transition a client THE NEBRASKA LAWYER

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relationship. The successor lawyer needs time to obtain the necessary expertise and client/industry knowledge. More importantly, it takes time for clients to feel the requisite “comfort and chemistry” that is so crucial for a successful lawyer-client relationship. Finally, time should be set aside to accommodate any adjustments to the plan. There will be inevitable bumps in the road that will require some time to absorb shocks and make any necessary repairs. Furthermore, a comprehensive client-transition succession plan is actually multiple plans. Each senior lawyer needs a plan and, within that plan, there must be a plan for each significant client. Remember, however, that all clients are not created equal. Allocate the bulk of your time and efforts to the clients that are most crucial to the firm’s bottom line. In order to put together a client transition plan, ask the following questions: • Which firm clients are being served by senior lawyers? • How long do these senior lawyers intend to work? • Are any junior lawyers serving those clients? If not, who can be introduced to the relationship? • What types of training and mentoring do these junior lawyers need? How long will that take? • What are the clients’ concerns about the potential loss of the firm’s senior lawyers? Do they have successor preferences? • Are any of your key clients going through their own transition process? Do you have a relationship with the client’s post-boomer generation? • How will successor lawyers be introduced to clients—both socially and in a working relationship? The answers to these questions will help your firm develop a plan to transition clients. Will your plan work? Only if your firm has asked and answered one additional crucial question: What will motivate the senior attorney to begin to let go? More often than not, the answer is money. Without the proper financial incentives, the client-transition plan is destined to fail. In most law firms, the firm’s compensation policy must be adjusted for those impacted by the plan. If the firm’s policy is heavily weighted towards billable hours, senior lawyers are unlikely to delegate to junior lawyers. If the firm wants senior lawyers to delegate work, the senior lawyer needs to be rewarded for taking that action. Additional adjustments will most likely be necessary in compensating for origination and nonbillable time (e.g., mentoring). For any client-succession plan to work, the senior lawyer must be provided with some level of income protection that rewards the lawyer for furthering the goals of the plan. Flexibility, communication, and accountability are also O c t o ber 2 0 1 1


successful succession

50914 NSBA AP Ad 5/27/11 9:22 AM Page 1

critical to the success of any succession plan. Since each lawyer may want or need a different time-frame for transitions—to address personal as well as client needs—plans must be flexible. Firm management, senior lawyers, junior lawyers, and clients must communicate regularly to ensure that the expectations of each party are being satisfied. If not, individuals must be held accountable to get them back on track. Finally, any succession plan should take into account the role of a retiring lawyer after the client transition has been completed. Can the lawyer add mentoring or marketing value to the firm in an “of counsel” role? If the cord is to be cut completely, has the firm provided resources to ease the individual’s change to a retirement lifestyle?

Never Too Late With one-third of the nation’s lawyers contemplating retirement, it is time to start or ramp-up your firm’s discussion of succession planning. It is never too late. Even a few months or a year of planning is preferable to a crisis situation generated by the precipitous retirement of a critical partner who rides off into the sunset never to be heard from again. I can guarantee that this unhappy scenario occurs more often than you would expect! If your law firm wants its best clients to stay when your baby boomer lawyers leave, succession planning is the most effective insurance policy to accomplish that goal.

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In today’s fast-paced legal world, careers change. New opportunities develop. There’s no guarantee the firm you work for today will be the same firm you’re with 10 years from now. That’s why it’s important to set up your family’s financial safety net outside of your employer benefits. But who wants to waste valuable free time talking to an insurance agent? NSBA offers you a time-saving solution.

First-Class Coverage Negotiated Exclusively For NSBA Members Whether you need term life coverage to help protect the financial future of a growing family … a solid disability program to help protect the income you’ve worked so hard to build … or long-term care coverage to help protect you, your spouse or your parents, NSBA-Sponsored Insurance Protection Plans are a smart financial safety net—that’s NOT tied to any firm or employee benefit program. Plus, NSBA Insurance Protection Plans give you the added advantages of economical group rates and superior coverage from some of the nation’s leading insurance companies. Best of all, you can set up a strong financial safety net through NSBA Insurance Protection Plans and then practically forget about it—no matter what turns your career takes.

Give Your Loved Ones Insurance Protection They Can Trust—No Matter Where Your Career Takes You Call toll-free 1-866-236-6582 for your free, no-obligation information packet—including costs, exclusions, limitations and terms of coverage. No insurance agent will call. Or visit www.nebarinsurance.com for more information. AR Ins. Lic. #245544 CA Ins. Lic. #0633005

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50914, NSBA Ad, (10/11) Full Size: 4.875 x 8.5" Colors: 1c: Black Stock: weight & color Postage: N/A Misc: N/A O c t o ber 2 0 1 1


E Credits L C r u o Y Get ALL total Up to 23.0 11.5 ethics up to includinNgebraska Activity #61156 MCLE

Wednesday, October 19 nsba association lunch

Join NSBA members at this celebration lunch, from Noon to 1:30 pm, where we recognize public service award winners and pass the gavel to the incoming President. Mike Rubin will entertain with a light-hearted look at lawyers and judges - Nebraska lawyers and judges share a common interest in the fair administration of justice, but what about the humorous side of the legal profession in Nebraska and around the country? You won’t need caffeine to stay awake for Mike Rubin’s presentation. judges’ reception: in honor of your honors

Join us from 5:00 - 7:00 pm at this special reception honoring Nebraska judges.

Thursday, October 20

president’s reception

Celebrate 2011 with outgoing President Robert F. Bartle and incoming President Warren R. Whitted. The reception will be from 5:00 - 7:30 pm. Attendees will receive two free drink tickets. late night reception

Join the NSBA Young Lawyers Section starting at 8:00 pm. All lawyers, spouses and guests are invited to attend this fun and spirited event at red9.

Friday, October 21 nsba legacy lunch

Join fellow bar members on Friday to honor 25 and 50-year members from Noon - 1:30 pm. nsba has gone green

You may download seminar materials from the NSBA website and print them off before the conference. You will also receive a CD of materials in your registration packet. A link to download materials will be included in your confirmation email and will be available two weeks after the meeting as well. social media

New thi s year

To better serve our members, the NSBA has created a mobile app called eventmobi. Once you’re registered, a link will be sent to you where you can view the Annual Meeting agenda, exhibitors and floorplans from your cell phone or iPad. The link is: http://www.eventmobi.com/nsbaam2011 THE NEBRASKA LAWYER

2011 NSBA Annual Meeting Wanted - Justice for All October 19 - 21, 2011 Cornhusker Hotel • Lincoln, NE Featured Speakers Thursday, October 20 - 3:00 pm - 5:00 pm Barry C. Scheck, is a Professor of Law at the Benjamin N. Car-

dozo School of Law in New York City. Mr. Scheck and his colleague Peter Neufeld, Co-Founded and Co-Direct the Innocence Project, an independent nonprofit organization closely affiliated with Cardozo Law School, which uses DNA evidence to exonerate the wrongly convicted. In its nineteen years of existence, 271 individuals have been exonerated in the United States through post-conviction DNA testing. Mr. Scheck has done extensive trial and appellate litigation in significant civil rights and criminal defense cases. He has published extensively in these areas, including a book with Jim Dwyer and Peter Neufeld entitled, Actual Innocence: When Justice Goes Wrong And How To Make It Right.

Wednesday, October 19 - 9:00 am - 11:00 am Mike Rubin, from Baton Rouge, Louisiana, heads the Appellate

Practice Team of the multi-state law firm of McGlinchey Stafford PLLC. In addition to the full-time practice of law, for more than three decades he also has served as an Adjunct Professor teaching finance, real estate and advanced legal ethics at the law schools at Louisiana State University, Tulane, and Southern University. Mike has presented hundreds of major lectures and papers throughout the U.S., Canada, and England and is an author or co-author and contributing writer of twelve books and over thirty articles. His publications are regularly cited as authoritative by state and federal courts, including state supreme courts and federal appellate courts. With the increase in annual meeting attendance, it is recommended that you register early. Space is limited and when capacity for each seminar has been reached, the seminar will be closed to walk-in registrants. A ticket will be required at the door for each seminar you registered for and attend. Tickets will be in your packet you pick up at the NSBA registration desk. You MUST register even if you only attend the complimentary events. Tickets will be required for entrance to all CLE seminars. You can register online at: https://m360.nebar.com/event. aspx?eventID=29311&instance=0 or go to www.nebar.com and click on “Calendar” at the top of the page.

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practice tip

The Team Approach to Client Service by Kim Yesis

If you attended the NSBA’s recent seminar on Benchmarks for Effective Client Service delivered by Ed Poll, you learned that clients prefer a legal team to a lone attorney to handle their cases. The preference for group over individual support makes common sense. Most of us derive greater security and appreciate the increased accessibility when we have an organization serving our needs. Law firm clients are no different. They want their calls and emails answered quickly and don’t mind hearing from supporting personnel as long as they get a response. The payback to lawyers for having a good team is manifold: • Client satisfaction rises. Clients get answers more quickly and are reassured by accessibility and the sense that the law firm is devoting resources to better serve them. • Client expectations are better managed. Improvements in communication made possible by a team approach can lead to clearer expectations as matters develop. Clear expectations can prevent collection issues down the road.

Kim Yesis Kim Yesis is the current President of the Association of Legal AdministratorsNebraska Chapter. She is the Firm Administrator at McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O. in Omaha and has over 18 years’ experience in legal management.

• Lawyers become more efficient. Ed Poll stated that 80% of all client calls are “process” calls. If a lawyer reduces return phone calls by 80% by delegating them to competent staff or associates, that much more time can be devoted to the core legal issues or to other clients. • Lawyers develop in-house resources. As lawyers involve supporting personnel, these employees become better trained, more competent and more engaged. • Employee job satisfaction and retention are improved. Developing attorneys want and need client exposure for their professional growth. Supporting staff derive job satisfaction when they are given increased opportunity for client involvement. • Trained, satisfied employees produce higher quality work and client service. An involved, engaged assistant contributes to everything from quality control to client retention. So, if clients want a team and employees want to be part of a team, why do so many lawyers resist the team approach? Lawyers may be reluctant to delegate work or authority for fear of losing control, diminishing quality or undermining their lead position. They may feel guilty about delegating their work to others or may not be particularly talented at organizing work so it can be more easily delegated. They may have a full schedule and shift team-building and training to a lower priority level. There is an abundance of educational and coaching resources available to assist lawyers to clear barriers and to learn the skills required for delegation, organization, time management and team-building. Setting time aside may be difficult in the short-term, but once the team is functioning, the benefits are long-term. One important presupposition for team-building is that a lawyer has motivated, high-performing employees on hand. If a

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practice tip lawyer cannot readily identify reliable employees for the team, it may be time to re-evaluate hiring and retention practices based upon the qualities required in a team player. As team members are hired, proper resources and a systematic training program should be in place. Incentives can be developed to reward training milestones and good team work. Lawyers should always keep in mind that their own communication style, personal accountability and ability to work with a group will have a trickle-down affect on the performance of team members. Time invested in team-building and training will ultimately save time and enhance both quality and service, but there has

to be a plan. The team’s success will depend upon the right people, but also upon the clarity of objectives and assignments, meaningful participation within team members’ expertise, a climate of openness to others’ ideas and a measured response to mistakes. Regular communication and appropriate checks and balances are a must. The team plan should include an allowance for exceptional situations or client expectations that do not fall within the team’s scope. With careful effort and planning, lawyers who make the personal adjustments and set aside the time to build effective teams can free themselves from routine to focus on the essentials of law, strengthen their practices and in so doing, improve client relations.

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

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law & technology

Stupid Mistakes that Lawyers Make with Technology by Sharon D. Nelson, Esq. & John W. Simek

Wow. This could be an epic novel. No worries, we will restrain ourselves. Here are the things we see most often in our clients’ law offices that make us crazy. 1. There is no screen saver password and the computer is left on at night for remote access. This is fine if you’d like to invite the janitorial staff to load your network with pornography or otherwise browse your files. 2. They never turn their machine off. Computers, you have noticed, are imperfect. Processes don’t terminate the way they should, applications get tangled, and your own tendency to have 15 programs running at once tends to create collisions. As John puts it, “lots of stuff hangs around impeding the performance of your machine.” The fix is easy – either turn the machine off every night – or if you need it for remote access, turn it off when you go to lunch. Once a day is the rule. No exceptions. 3. Passwords need to be twelve characters long – there is no exception to this anymore either. Anyone with any IT sophistication can crack your eight character password, no matter what it is, in less than two hours. With twelve characters, it takes 17 years. Most bad guys can’t wait that long. Make it easy on yourself and create a passphrase: GoingonanAlaskancruisein2011! is perfect –and easy to remember. 4. Passwords are meant to be remembered but we are obvi-

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

ously pathetic when it comes to remembering. We find passwords on monitors, under keyboards, and in the top right hand drawer of the desk. That’s our field research. We would guess that the bad guys can figure those places out too. 5. Being penny wise and pound foolish is common – the installation of illegal software in law offices is horrifying. The Business Software Alliance is not amused by illegal software – and at $150,000 per copyright violation, you are unlikely to be amused if discovered. By the way, most of the BSA’s tips come from employees. Do all of your employees adore you? 6. Back-up media goes bad. Inevitably. No matter what kind of back-up you use (and shame on you if you’re not backing up), you must – absolutely must – do test restores of the data to ensure that all is well. That is true even if you are using an online back-up provider. We once saw a major online backup provider lose five years of law firm data – they had never done a test restore. 7. Autocomplete is your enemy. This is the Outlook function that helpfully suggests an e-mail address when you begin to type. In the last week, we have received three e-mails meant for other people. John turns his off. Sharon likes autocomplete, but she has a firm rule. When the e-mail is finished, her hands come off the keyboard until she has verified that the addresses on the e-mail are what she intended. Without this rule, she acknowledges she too would be among the hordes of lawyers who have, at the very least, embarrassed themselves. One lawyer meant to send a very important e-mail to co-counsel and ended up sending it to a New York Times reporter instead. Take your hands off the keyboard. 8. There is no PIN on your smartphone. Remember that rule about keeping client data confidential? How lazy can you get? If you don’t have a PIN on your smartphone, run, do not walk, and get one installed. We once found a SAIC phone lost at an airport. No PIN. The owner was lucky that we were honest folks and turned it over to security. Funny how easy it was to come up with these eight. Maybe we’ll do a Part II.

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professional responsibility

STORY

Summer Readings by Dennis G. Carlson

undercover law enforcement officer) accepted checks. Attorney Walker, perhaps concerned about the ethical implications of issuing a bad check to a “hit man”, post-dated his check because he did not have sufficient funds in the account to cover it. The end result was that Walker was sentenced to prison and also disbarred.

“The covers of this book are too far   apart.” —Ambrose Bierce

My readings this past summer included tales involving murder for hire, sex, and of course, attorneys. No, I wasn’t reading trashy novels—just catching up on recent attorney disciplinary cases. In the Matter of Walker, ___ S.E. 2d ____ , 2011 WL 2682192 (S.C.7-11-11) concerned an attorney admitted to the practice of law in 1976 who was charged with a host of disciplinary violations. The most interesting allegation pertained to Walker’s felony conviction for attempting to hire a “hit man” to murder a fellow member of the South Carolina Bar. The Walker case is notable because of the underlying criminal offense and also because the “hit man” (in reality an

Dennis G. Carlson

In a disturbing case from Michigan, Grievance Administrator v. Mikat, 09-56-GA (Attorney Disc. Bd., 2010), an attorney allowed his personal interests to trump his ethical obligations to a client. Mr. Mikat was retained by the husband in a domestic relations case and was paid $1500. The husband suspected that his wife was having an affair and took his concerns to his attorney for advice. After consulting with Attorney Mikat about the affair, the husband became aware of inappropriate communication between Mikat and his wife and decided to use another attorney. In the subsequent attorney disciplinary proceeding, the husband testified about going to Mikat regarding his suspicions about his wife: A. . . .And when I do contact him I go in there the Monday, and I honestly thought it was – ‘cause she cleaned for the city of Fenton, I thought it was a fireman at the fire hall. And I’m sitting with him for an hour explaining to him how I can’t believe she’s having an affair and that I think it’s the fireman, and he’s looking me right in the face, I’m in tears crying to him, you know, ‘cause I never thought that she would have an affair on me, and here he’s right in front of me, he’s the guy that’s having an affair with my wife.

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

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professional responsibility Q. What’s he saying to you?

tional ethical violations.

A. Nothing. He didn’t say nothing. He didn’t seem to even care I was there.

A conflict with a different twist was discussed in a case entitled In re Strouse, ____A. 3rd _____, 2011 WL 2732683 (Vt. 7-15-11). In November, 2007, the law firm where Attorney Strouse was employed was retained to represent a client in a divorce case. Three months later, Attorney Strouse, who was unaware of the representation, met and started to date the client’s husband. Attorney Strouse soon discovered that her firm represented the wife and notified the firm’s senior attorney that she was romantically involved with the husband.

The client also testified that he thought the respondent contributed to his eventual divorce: Because we were trying to work things out. I mean we were tryin to work things out, and from -again, I guess I can’t repeat what my ex-wife said because its hearsay, but I just feel that he - he was a predator, that’s the easiest way I can put it. He was going against - you know, she was going through a divorce and he took advantage of the situation, and that’s just how I feel what he did, and fed her whatever he fed her to push her further away from me and have the affair.

Attorney Mikat admitted that he commenced a relationship with his client’s spouse during the period of representation and testified about his client coming to him when he suspected that his wife was having an affair: A. I don’t remember exactly what I said. I remember feeling very awkward about it. In hindsight maybe I - well, I guess not maybe. In hindsight I should have revealed the relationship sooner and withdrawn from the case. From the very beginning when it became apparent that [she] and I had some interest in each other I recall thinking that this is just not realistic, and I did say to her on several occasions, you know, I’m going to have to bow out of this case.

The respondent suggested to the senior attorney that the firm create a “conflict wall”. Instead, the senior attorney told Attorney Strouse that she would be terminated if she did not end her relationship with the husband. The respondent agreed to end the relationship. Relying on the representation of Attorney Strouse that the relationship was over, the senior attorney informed the client of the relationship. After consulting with independent counsel, the client decided to continue to use the law firm for the divorce. The respondent attorney and the husband, however, continued to have contact, including an overnight stay. When this was brought to the attention of the senior attorney, he confronted Attorney Strouse, and she admitted that the relationship had resumed. She was then immediately terminated from her employment. The Supreme Court of Vermont analyzed the case under Rules of Professional Conduct 1.7(a)(2) and 8.4(c) and said:

Q. Well, why didn’t you? A. Well, to be honest, it was very awkward, and it’s one of those things I just wasn’t sure how to bring it up or when to bring it up. Things had gone quiet in the case. . .

The Michigan Attorney Discipline Board found that the client suffered serious psychological and financial injury as a result of Mikat’s misbehavior and noted that the client was “emotionally devastated” when he learned that his attorney was having a relationship with his wife. The client testified:

We conclude that respondent’s failure to inform the senior attorney about her renewed relationship with the husband can be characterized as deceitful; she was aware that her relationship with the husband put the firm into a conflict of interest with its representation of its client. Respondent had a duty to disclose the continuing relationship so that the firm could take the action necessary to cure the potential ethical violation.

I have no trust. I have no trust in the system. You know, I’ve never ever had to deal with anything through the law in my life, and I hired him as my attorney and expected him to represent me and he did everything but.

For her conduct, Attorney Strouse was publicly reprimanded. Two dissenting Justices concluded that her conduct warranted a suspension from the practice of law.

For his misconduct in this case, respondent Mikat was suspended from the practice of law for three years. On January 6, 2011, Mikat was disbarred in Michigan for unrelated addi-

If you have a question about your ethical responsibilities, contact the Office of the Counsel for Discipline of the Nebraska Supreme Court at 402-471-1040 or 877-504-0967.

THE NEBRASKA LAWYER

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Ethics “Desiderata” by Travis A. Pickens

This article first appeared in the August 6, 2011 issue of the Oklahoma Bar Journal. Reprinted with permission. In 1927, American writer Max Ehrmann wrote a prose poem titled “Desiderata.” It was thought that Ehrmann had written it for his children, and the poem was extremely popular in the ‘60s and ‘70s, especially among young adults. “Desiderata” is Latin for “desired things.” The following is an adaptation of the poem. Go ethically amid the noise and haste, and remember what peace there may be in an office practice. As far as possible, without surrender, be on good terms with opposing counsel and your client. Make your argument quietly and clearly; and listen to others, even to the dull and ignorant; they too have practiced law, and are now retired. Tolerate, but do not emulate, rude and vexatious lawyers;

Travis A. Pickens Oklahoma City attorney Travis A. Pickens is the OBA’s new ethics counsel. He is a native of Midland, Texas, and has lived in Oklahoma City since 1963. He received his degrees (undergraduate in language arts with special distinction in 1980 and juris doctor with distinction in 1984) from the University of Oklahoma. Mr. Pickens was admitted to the bar in 1984. He is a member of the OBA Insurance Law Section, former co-chair of the Work/Life Balance Committee that was honored as OBA Outstanding Committee in 2008 and former vice chair of the Lawyers Helping Lawyers Committee. THE NEBRASKA LAWYER

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they depress Lady Justice, but sometimes cannot be avoided. If you compare yourself with others, you may become vain and bitter, for always there will be lawyers more or less super than yourself. Enjoy your successes and find lessons in your defeats. Keep interested in the law, however routine your practice may be; it is a real possession in a down economy. Exercise caution in negotiations, for last-minute bargaining is full of trickery. But let this not blind you to what virtue there is; many lawyers strive for high ideals, and everywhere the law is full of professionalism. Be yourself. Especially do not feign sincerity. Neither be cynical about civility, for in the face of all anger and disenchantment, it is as calming as a stream. Take kindly the counsel of the years, gracefully surrendering the clients of youth. Nurture your investments to shield you in sudden misfortune, but do not distress yourself with imagined missed deadlines. Many fears are born of fatigue and insecurity. Beyond enough billable hours to satisfy your partners, be gentle with yourself. You are a child of the legal world, no less than the jurists and the justices; you have a license to be here. And whether or not it is clear to you, no doubt your career is unfolding as it should. Therefore be at peace with the law, whatever your practice may be. And whatever your losses and victories, in the stressful confusion of this demanding life, keep peace in your soul. With all its dangers, duties and fights, it is still a beautiful career. Realize your good fortune. Resolve to be happy. o c t o ber 2 0 1 1


NSBA calendar

NSBA Events Calendar October 2011

December 2011

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Negotiation with Martin Latz

Scott Conference Center, Omaha

NSBA Annual Meeting Cornhusker Hotel, Lincoln

November 2011 4 9 11

March 2012

NCLE Workers’ Compensation Law Seminar Embassy Suites, La Vista Time Mastery with Frank Sanitate Scott Conference Center, Omaha Guardianship & Conservatorship Update Scott Conference Center, Omaha

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court news

Gage County Courtrooms - Back to the Future Hon. Paul W. Korslund & Hon. Steven B. Timm You will never meet a finer person than Dave Jones, Custodian of the Gage County Courthouse. About seven years ago, we started having frequent chats about restoration of our courtrooms. You have to imagine how the courtrooms looked then to understand why restoration became a passion for Dave and the judges. A fire in 1960 resulted in a restoration with a 1960s look in the District Courtroom – turquoise theatre seats and white formica, followed by paneling in the 1970s. The County Courtroom escaped the retro 1960s look, but lost the view of a magnificent vaulted ceiling, as did the District Courtroom, because of lowered ceilings and the covering of upper windows. We felt like partners in crime as we plotted about how the courtrooms could be restored. The result ended up being beyond our wildest dreams.

years after the fire. The Beatrice Daily Sun published an article about the new look of the District Courtroom. That article prompted Charlie Ellis to stop by and present us with a color photo of his father, District Judge Cloyd Ellis, sitting at the bench in 1951 with a large, beautifully hand-carved oak panel behind him. The Lincoln Journal did a Sunday feature in February 2005 showing that photo and photos of the vaulted ceiling with captions that “the original ceiling was discovered above the suspended ceiling in the Gage County Courtroom during renovation in Beatrice” and “the original fixtures in the Gage County District Courtroom have been rediscovered after more than 40 years.”

An interesting historical footnote from Judge Rist, who provided a wealth of information, was that he and Phil Everson were trying a The first step in the plot jury case before Judge Ellis was to obtain permission from when people in the audithe Buildings and Grounds Newly restored Gage County District Courtroom. ence and jury began pointing Committee of the Gage Photo courtesy of Earl Bennett. toward the bench. Judge Ellis County Board of Supervisors had slumped over, dead from a heart attack. Always “jealous of to look behind the paneling in the District Courtroom to see the record,” Judge Rist and Everson decided to have the Clerk what condition the plaster walls were in. It was feared that of the District Court dismiss the jury on the record and had the after the fire there may have been some significant damage court reporter take down a stipulation of what happened. The concealed by the paneling. As it turned out, the walls were case was later retried. in remarkably good shape. With the help of a prisoner in the Gage County Jail with a great talent for plaster work, the panNow back to our story. We asked the Gage County Board eling was removed and the walls restored. to consider a renovation of the courtrooms, and the Board, Then one day, Clerk of the District Court, Diane Wells, asked if we had ever seen what was above the dropped ceiling, with the added remark that she was afraid of what might happen if we did. Dave set a ladder outside the district judge’s office and up we went with a large trouble light, which illuminated a magnificent oak vaulted ceiling painted white. District Judge William B. Rist, the only person living who had practiced in the District Courtroom before the 1960 fire and the installation of the dropped ceiling, was consulted. He explained that the ceiling had been painted to seal in the smoke smell and that on hot days smoke could still be smelled for 20 THE NEBRASKA LAWYER

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to its credit, followed the suggestion of then Chairman of its Building and Grounds Committee, Mark Hyberger, to pursue a long-range plan for renovation of the entire courthouse. The firm was Berggren Architects was hired, plans were drawn, and in 2008 the voters of Gage County passed a $2.8 million bond issue for the renovation. This vote followed a historical trend of Gage County citizens supporting preservation of their courthouse. In 1890 the voters approved a bond issue of $100,000 to build the courthouse, and in 1960 the voters adopted a bond issue and rejected

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court news a proposal to tear down the magnificent building. Building and Grounds Chairman, Ron Fleece, was indefatigable in his campaigning for the 2008 vote, as was former state senator and attorney, Fred Carstens, in leading the charge for saving the courthouse in 1960.

County Courthouse, led by Janet Byars.

One of the most challenging and fascinating aspects of this project for us as judges, was planning and designing the new courtrooms. The original design of the 1890 courtrooms, which had been hidden from view for decades, was a “law courtroom” The completion of the and an “equity courtrenovation was a long and room” separated by difficult process. More the office of the Clerk asbestos was discovered than of the District Court. originally anticipated. While The equity courtinstalling a slate roof to conroom had become the form to the original buildCounty Court office. ing, a worker leaned against We decided that the a chimney and it moved! original arrangement Change orders for these would work nicely with and other unexpected events modern court proceresulted in some cost overdures and technology. runs, but when all was said Accordingly, the equity and done, they amounted to courtroom, not having less than 10% of the project. a jury box, fit nicely into our plan. County Beginning in November Members of the Bench and Bar, including Chief Justice Michael G. 2009, District Court proceed- Heavican, Hon. Paul W. Korslund and NSBA President Robert F. Bartle. Court jury trials would be conducted in the ings were conducted in the Photo courtesy of Earl Bennett. District Courtroom, School Board/City Council giving the County Courtroom more room for its frequent meeting room until court could be held again in the District larger numbers of people, and saving the costs of another jury Courtroom in February 2011. Cooperation from attorneys facility. We switch courtrooms when the County Court needs and the public was wonderful. Jury trials were held in the the District Courtroom for a jury trial. meeting room, and although that room did not convey the dignity of the courtroom, the people conducted themselves well and apparently respected the ongoing effort to renovate the courtrooms. The Gage County Court stayed in the building, but court was held in the meeting room of the Gage County Board of Supervisors. The Clerk of the County Court temporarily relocated to the Emergency Management Room. Ironically, that office was moved to a surplus “Katrina” trailer parked on the courthouse lawn.

One of the most significant changes in the layout of the District Courtroom is that the witness box is across from the jury box, as is the case in the Lancaster County District Courtrooms. The District Courtroom had enough space to make the change, and moving the witness box made it possible to create a box for the bailiff next to her office. To accomplish this change, however, it was necessary to have a very good sound system.

The woodworking firm of Ratigan Schottler Manufacturing, based in Beatrice, was hired to restore the original woodwork in the courtrooms and to design and make the bench and furnishings. The bench, jury box and counsel tables were designed to match a table that was saved from the original courtroom and is now used as the Clerk’s table. Restoration of Gage County District All of the furnishings were paid for by Court ceiling. Photo courtesy of Bernadette donations through Friends of the Gage Korslund. THE NEBRASKA LAWYER

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That sound system was devised by Tom Russell, who spent countless hours creating and fine tuning not only a sound system but a video system similar to Lancaster County’s, with a camera presenter. Tom placed small speakers in the backs of the benches in the public seating and in the jury box, which makes for very clear hearing in any part of the courtroom. After a number of jury and bench trials, our audio-visual systems combined with the restoration of the ceilings and O c t o ber 2 0 1 1


court news the installation of the new oak furniture are making for a wonderful blend of the old and the new. The “jewel in the crown” of the District Courtroom is the hand carved solid oak panel behind the judge’s bench, which is a recreation of the old panel which had disappeared. That recreation was made possible by the 1951 photo of Judge Ellis. Another unique feature is Jerry Ratigan’s design of a logo which is carved into the public seating and consists of the scales of justice with a plow and a log cabin, emphasizing Gage County as the site of the Homestead National Monument of America. Pat Ratigan, ever a stickler for detail, noticed that a couple of corbels, which were replaced Design on benches in the Gage County District by his comCourt. Photo courtesy of Bernadette Korslund. pany, were not stained to his liking. Pat had his workers reinstall scaffolding, take the corbels down, take them back to the shop, re-stain them and re-install them. Although the County Courtroom does not have a back panel, the 120-year-old judge’s bench, including a carved gar-

NSBA President Robert F. Bartle outside the newly renovated Gage County Courthouse. goyle, was beautifully restored and matching oak sidebars were added to expand the judge’s work area. The next time your law practice brings you to Beatrice, if you haven’t already done so, be sure to visit both the County and District Courtrooms, and if you see Dave Jones, tell him you appreciate his contribution to our noble profession, as we are sure he had no idea what he was getting himself into when we took that first peek behind the old paneling. But Dave never quits. He recently found the old Register of Deeds oak counter for sale on E-Bay for $85.00. Dave got permission from the County Board, bought it and hauled it back to Beatrice from Gretna, where he will use his woodworking skills to spruce it up and make it into a display case.

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Support

The Nebraska Lawyers Foundation Have you thought of leaving the Nebraska Lawyers Foundation in your estate plans? Please consider this... The Nebraska Lawyers Foundation funds these programs: Volunteer Lawyers Project -

The Volunteer Lawyers Project (VLP) is a statewide “When I left the abusive household, I was very frightened . . . Thank you again - deeply - for what you did. volunteer legal assistance project and referral netWords alone can not describe the gratitude I feel.” work. It was created to provide legal assistance to - a recipient of VLP services low-income persons who cannot hire lawyers and who cannot receive assistance through the federally-funded legal services programs operating in the state. VLP is a program of last resort.

Minority Justice Committee -

The Minority Justice Committee was established to examine and address issues of racial and ethnic fairness in the courts and legal profession. The Committee implements programs designed to: 1) promote diversity in the legal profession and court workforce; 2) ensure equal access to the justice system; 3) address racial disparities in the criminal justice system. “I was honored to be asked, and excitedly joined, the Minority Justice Committee simply because this committee is the beating heart of fairness in, and access to, the courts in Nebraska.” - Dave Pantos, Legal Aid of Nebraska

Nebraska Lawyers Assistance Program -

The Nebraska Lawyers Assistance Program (NLAP) is designed specifically for those in the legal profession who are chemically dependent, have mental health issues, a gambling problem or a physical illness which impairs their ability to perform in a competent and professional manner. This program includes referral to treatment resources and education for law students, lawyers and judges. “The Nebraska Lawyers Assistance Program saved my life.” - from a Nebraska lawyer

There are those that need your help. Your legacy could make a substantial impact. If not you, then who? For more information, contact Greg Fox, Development Director, (402) 475-7091, gfox@nebar.com.

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legal community news

2011 Legal Diversity Summit The Nebraska Legal Diversity Summit is a regional event held in Omaha, Nebraska each fall. The Summit brings together pre-law students, law students of color from the region (Nebraska, Iowa, Kansas, Missouri and North Dakota) with Nebraska’s legal community for a unique day of education, networking and professional development.

CLE

Summit attendees also participated in two sessions provided by the Institute for Inclusion in the Legal Profession (IILP), “The State of Diversity and Inclusion in the Legal Profession” offered an interactive discussion regarding inclusion research and programs. The second program, “The Business Case for Diversity: Reality or Wishful Thinking?” discussed the Keynote Address business case for diversity – where corporate clients apply the The keynote speaker for the 2011 Summit was Professor “carrot” of continued or increased business and the “stick” of Steve Willborn from the University of an implied decrease, withdrawal or even loss of Nebraska College of Law. In his curbusiness to encourage law firms to become more rent position as chair of the Law School diverse, or use their economic power to support Admissions Council (LSAC), Professor the economic success and financial independence Willborn discussed the LSAT exam and its of diverse lawyers through the growth of minorability to predict first year law school grades ity and women owned law firms. Finally, as a as well as recent vote by the ABA permitfollow up to the presentation by the Institute ting law schools not to use the LSAT exam for Inclusion in the Legal Profession, a panel in admissions, and how this decision will of Nebraska attorneys discussed the extent to which the “business case for diversity” is reality likely impact employers and law schools, Professor Steve Willborn was the as well as potential law students. Professor keynote speaker at the 2011 Legal or wishful thinking in Nebraska, highlighting current efforts and next steps for Nebraska from Willborn provided a longitudinal compari- Diversity Summit. the perspective of corporations, law firms, small son of the “worth of a legal education” in and solo practitioners and well as the public sector. today’s economy and shed light on the often controversial U.S. News and World Report Law School Rankings by discussing Pre-Law and Law Students what factors are used to rank law schools, how much stock legal employers should put into basing hiring decisions on law The Summit also offers programming for pre-law students, school rankings, and how law students can use this information on how to prepare and apply for law school, how to write a in making a choice of law school or positioning themselves as personal statement, and a sample LSAT exam provided by future hires. Kaplan. While this year’s economy did not allow for law stu-

Thank you to the sponsors of the 7th Annual Legal Diversity Summit • Baird Holm, LLP (Coffee Break Sponsor) • Baylor Evnen (Law Student Travel Sponsor) • Cline Williams Wright Johnson & Oldfather, LLP (Luncheon Sponsor) • ConAgra Foods Inc. (Pre-Law Session Sponsor) • Creighton University School of Law (Networking Reception Sponsor) • Fraser Stryker, PC LLO (CLE Session Sponsor) • Stinson Morrison Hecker, LLP (Seminar Sponsor) THE NEBRASKA LAWYER

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legal community news dent employment interviews, the Summit did allow for resume circulation and networking opportunities.

LSAT Prep Scholarship Program The Summit also provides an opportunity to recognize the Nebraska State Bar Association’s LSAT Prep Scholarship Recipients. The LSAT Prep Scholarship program (funded through charitable contributions to the Nebraska Lawyers Foundation) provides a scholarship to cover the cost of a LSAT Prep course through Kaplan and the cost for registering for the LSAT exam to students who are historically underrepresented in Nebraska law schools, demonstrate economic need and reside in Nebraska. To date, 34 scholarships have been award- Diversity Committee members, Sherman Willis and Isaiah Wilson, ed, and on overage, students achieve a seven point increase on congratulate the 2011 LSAT Prep Scholarship recipients. their LSAT exam score.

2011 Great Plains Federal Tax Institute The 49th Annual Great Plains Federal Tax Institute will take place at the Embassy Suites Downtown/Old Market, 555 S. 10th Street in Omaha, on Thursday, Dec. 1, and Friday, Dec. 2. The Institute combines the interests of attorneys, accountants, financial planners, life insurance and other tax professionals. Program Committee Chair Kurt Tjaden of Omaha cites an outstanding faculty that includes both national and local experts as a primary feature of the event. Creighton Law Professor Edward A. Morse will present the Current Developments on Income Tax on the first day of the institute, and Timothy L. Moll of Lincoln will deliver the Estate and Gift Taxes update on the second day. Other Dec. 1 presentations include Ethical Issues in Tax Practice, Professor Thomas J. Purcell III, Omaha, and James W. Sansone, Schaumburg, Illinois; and Planning for Retirement Benefits, James G. Blase, St. Louis, Missouri. Thursday afternoon will conclude with three concurrent breakout sessions: 1) A live webinar with Lawrence Brody, St. Louis, Missouri, on the 2010 Tax Act with Planning Opportunities; 2) The “Revocable” Irrevocable Trust, R. Nick Taylor, Omaha; and 3) Coordinating Tax and Farm Entity Planning with Participation in USDA Farm Programs, Todd Jennsion, Garden City, Kansas. Additional presentations scheduled for Friday morning, Dec. 2, include Partnership Transactions, Andrea M. Whiteway, Washington, DC, and Disclaimers, E. Diane Thompson, Virginia Beach, Virginia. Christine M. Jurish

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Furie, Chicago, Illinois, kicks off the Friday afternoon session by presenting Compensation and Benefits Issues in Today’s Transactional Environment. She will be followed by Katherine Breaks, Washington, DC, who will give an update on Legislation. Nicholas K. Niemann of Omaha will conclude the institute with a discussion of Nebraska and Iowa State Tax and Economic Development. Proceeds from the annual institutes have established funds from which scholarships are awarded to students in the University of Nebraska-Lincoln School of Accountancy and the College of Law. Registration fees are $410, but a discounted fee of $360 is given for registrations received by Nov. 9. A special discount rate of $275 is offered to participants who have been in their professional practices for less than five years. Participants are to receive course materials online. Purchasing printed course materials is optional. At the institute they will receive a complimentary flash drive containing the course materials. The course is expected to carry both CLE and CPE credit for Nebraska and Iowa attorneys and CPAs. To register or for more information, contact the program manager at 402/483-4234 or cindylilleoien@aol.com. Online information at http://www.greatplainstax.org. On-site registration for the event gets under way at 7:30 a.m. on Dec. 1. Programming begins that day at 8:30 a.m. and recesses at 4:35 p.m. Instruction begins again the following morning at 8:00 a.m., and the institute concludes at 4:30 p.m. on Dec. 2.

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NCLE calendar

NCLE Calendar 30

October 2011 19

Webcast: Thurgood Marshall’s Coming!

December 2011 2 Negotiation with Martin Latz Scott Conference Center, Omaha 7 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors?

19-21 NSBA Annual Meeting Cornhusker Hotel, Lincoln November 2011 4 NCLE Workers’ Compensation Law Seminar Embassy Suites, La Vista 9

Time Mastery with Frank Sanitate Scott Conference Center, Omaha

11

Guardianship & Conservatorship Update Scott Conference Center, Omaha

16

Webcast: Clarence Darrow: Crimes, Causes and the Courtroom

THE NEBRASKA LAWYER

Webcast: Maxims, Monarchy, and Sir Thomas More

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14

Webcast: Thurgood Marshall’s Coming!

21

Webcast: Lincoln on Professionalism

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Webcast: Clarence Darrow: Crimes, Causes and the Courtroom

March 2012 9 2012 Estate Planning and Probate Institute Cornhusker Hotel, Lincoln

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transitions

Career Changes.......................... ..........................and Relocations Fraser Stryker PC LLO is pleased to announce that Mark R. O’Siochain and Angela J. Miller have joined the firm as Associates. Mark O’Siochain received his Bachelor of Business and Law degree from the University College Dublin, Ireland. His practice focuses on corporate law, mergers and acquisitions, securities and corporate finance. Prior to joining Fraser Stryker, he practiced at Cahill Gordon and Reindel LLP in Mark R. New York. Angela Miller O’Siochain received her Master of Arts from the University of Nebraska, Omaha and her Law degree from the Creighton University School of Law. Her practice focuses on insurance defense and litigation. Prior to joining Fraser Stryker, she worked at Angela J. Miller Lamson Dugan and Murray, LLP. Ryan Sullivan, associate attorney at Kinsey Rowe Becker & Kistler, LLP has recently been published in two nationally recognized law review journals. His first article, published in the Quinnipiac Health Law Journal, December 2010, is titled PreMortem Cryopreservation – Analyzing a Ryan Sullivan Patient’s Right to Die in Order to Live. In this article, Sullivan proposes certain modifications to current state and federal laws which would allow terminally-ill brain cancer patients an opportunity to explore alternative means of surviving their disease. In his second article, The Aftermath of Melendez-Diaz v. Massachusetts—Identifying the Analyst Who Can Satisfy Confrontation, published in the Spring 2011 issue Nebraska Law Review, Sullivan dissects a 2009 Supreme Court decision which furthered the reach of the Confrontation Clause and caused turmoil in many drug offense prosecutions. Sullivan describes how state governments can take legislative action to avoid the pitfalls of the Court’s decision while protecting the constitutional rights of citizens. Sullivan is a graduate of the University of Nebraska College of Law and practices law in the areas of general civil litigation, business law, and real estate. Koenig & Tiritilli, P.C., L.L.O. is now Koenig Dunne Divorce Law, PC, LLO. The firm’s new name reflects the exclusive focus on divorce by attorneys Angela Dunne and THE NEBRASKA LAWYER

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Philip Katz. Susan Ann Koenig, author of “Divorce in Nebraska”, remains of counsel with the firm. Stephanie M. Sharp has accepted a position at UNMC Physicians as Director Regulatory Affairs & Deputy General Counsel. Ms. Sharp is a graduate of the University of Nebraska-Lincoln and the University of Iowa - College of Law. Ms. Sharp gained legal experience at the firms Stephanie M. of Kutak Rock in Kansas City and Fraser Sharp Stryker in Omaha. She is a member of the Nebraska, Iowa and Missouri bar associations. Parsonage Vandenack Williams LLC is proud to announce the addition of M. Thomas Langan II. Tom will serve the firm’s clients in the areas of business, health care, tax and estate planning. Tom received his Bachelor of Science in Business Administration from the University of M. Thomas Nebraska – Lincoln in 2008. He received his Langan II Juris Doctorate, with distinction, from the University of Nebraska College of Law in 2011. Rembolt Ludtke LLP is pleased to announce that Brett C. Stohs has become associated with the firm. Stohs is a graduate of the University of Nebraska - Lincoln (Bachelor of Arts, with honors, 2001) and Duke University (Juris Doctor, cum laude, 2005). Stohs practiced law in Washington, D.C. with a large international law firm for five years before returning to Nebraska. His practice is concentrated in the areas of business and corporate work, including contracts, entities, nonprofit organizations, and mergers and acquisitions. Husch Blackwell is pleased to announce that Kathleen A. Lambert joined the firm’s Omaha, Neb., office as an Associate. She will focus her practice in Intellectual Property law. Prior to joining the firm, Lambert worked in Creighton University’s Department of Intellectual Resource Management, handling invention disclosures from faculty, staff and students. Lambert determined the commercial viability of new products and, when applicable, licensed them to the business community, which included obtaining copyrights, trademark licensing and material transfer agreements. Lambert also facilitated the formation of startups based on new university technologies. O c t o ber 2 0 1 1


transitions/awards and recognition Lambert obtained her B.A. in Political Science, cum laude, from Creighton University (2003), followed by her J.D. from Creighton University School of Law (2006), and B.S. in Physics at the University of Nebraska at Omaha (2009). During law school, she was an editorial staff member of Creighton Law Review, and clerked in the office of the Nebraska Attorney General assisting state attorneys in the Division of Public Protection. Lambert is currently studying to receive her B.A. in French at Creighton University. Upon receiving her J.D., Lambert worked for a small law firm in Omaha. She researched and wrote legal memoranda, briefs and court documents pertaining to Indian law cases throughout the country. She then joined an Omaha-based Intellectual Property firm, where she assisted clients with patent, trademark, copyright and related technical matters. Zachary S. Hindman joined the law firm of Bikakis, Mayne, Arneson, Hindman & Hisey, in Sioux City, Iowa on September 19, 2011. Zachary received his J.D. degree with Highest Honors, Order of the Coif, from Drake University Law School in 2010. He graduated first in his class and was the Zachary S. Editor-in-Chief of the Drake Law Review. Hindman Prior to joining the firm Zachary clerked for the Honorable Steven M. Colloton of the United States Court

of Appeals for the 8th Circuit. He is presently admitted to practice in Iowa and Nebraska.

Awards and Recognition Attorney Josh Dickinson of Spencer Fane Britt & Browne LLP, Omaha, Nebraska, was recently appointed the 20112013 State Compliance Chair for Nebraska, by the Members’ Attorney Program of ACA International, the Association of Credit and Collection Professionals (ACA). As a state compliance chair, Dickinson will serve as a volunteer liaison between the national Members’ Attorney Program and ACA members in the state, by taking calls and serving as a legal resource, speaking at state unit meetings and writing articles for unit publications. With more than 5,000 members in the U.S., Canada and 55 other countries throughout the world, ACA is the knowledge-based resource for success in the credit and collection industry. ACA brings together third-party collection agencies, attorneys, creditors and vendor affiliates, establishes ethical standards, provides a wide variety of products, services and publications, and articulates the value of the industry to businesses, policymakers and consumers. The Members’ Attorney Program is a division of ACA created to enable attorneys practicing in the credit and collection arena to better represent their clients through a number of resources designed to assist them in their practices, including up-to-the-minute information on legisla-

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SCHELDRUP BLADES Scheldrup Blades, P.C. is pleased to announce that Lindsey E. Mills has recently been selected as the 2011-2012 Chair of the Workers’ Compensation and Employers’ Liability Law Committee of the American Bar Association. Her practice is primarily focused in the areas of workers’ compensation and employment law. She is a member of the Nebraska and Missouri Bar.

222 South 15th Street, Suite 220 South Tower Omaha, NE 68102 &$$ #%&Â’eeeaQVSZR`c^ZOeQ][

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awards and recognition tive and case law developments. Through its state compliance chairs, the program provides ACA members with access to an attorney licensed to practice law in their state. Creighton University has appointed James S. Jansen, of Omaha, as the University general counsel. Jansen, who most recently was an attorney at McGrath North Mullin & Kratz, PC LLO, joined that firm in 2003 after nearly 13 years of service as Douglas County Attorney. Jansen’s current practice involves a broad range of commercial and business litigation matters. Elected Douglas County Attorney four consecutive times beginning in 1990, he served as general counsel for Nebraska’s largest county, representing the Board of Commissioners and other elected officials in all legal matters related to the administration of county government. He was instrumental in the founding of the Project Harmony Child Protection Center, which brought together competing agencies focused on child protective services into a cohesive organization that has served as a model for other organizations. Prior to joining the Douglas County Attorney’s office, Jansen was in private practice. He graduated from the Creighton University School of Law in 1973 and received his bachelor’s degree in education from the University of Nebraska-Lincoln in 1970. Throughout his career he has been involved in numerous civic and professional organizations. He is a member of the American Bar Association, the Nebraska Bar Association, the

Omaha Bar Association and a past member of the Nebraska County Attorney Association, where he served as president in 1997-98. He is currently a member of the Archdiocese of Omaha Review Board and Project Harmony Protection Center board of directors, past chair of the Domestic Violence Coordinating Council of Greater Omaha, Omaha Community Partnership, and the board of directors, Project Harmony Child Protection Center. He also served on Creighton University’s Parent Council from 2004 to 2010. Husch Blackwell Associate John A. Menicucci was named to the Omaha Bar Association’s Executive Council. He also serves on the Bar’s Law Day Committee and participates in the Lawyers in the Classroom program. As a council member, Menicucci supports the Bar’s goal to “increase the usefulness, activity, professionalism and influence of the Bar and the legal profession.” Menicucci represents clients in the areas of Securities & Corporate Governance, Investment Management and Mergers & Acquisitions. He assists public companies with corporate transactions including business formation and structuring, reporting and compliance obligations. He also represents issuers in private placements of debt and equity securities, and assists start-ups and publicly held companies in raising capital through the sale of securities in private and public offerings.

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O c t o ber Client- Nebraska Lawyer 2010

2011


in memoriam

George M. Blauvelt, 62, of Wisconsin Rapids, died Monday, May 2, 2011, at his home. George was born April 4, 1949, in Portsmouth, Va., to George D. and Catherine (Lee) Blauvelt. George was an attorney in Menomonie for the past 20 years. Prior to being an attorney he worked six years in manufacturing and two years teaching in high school. He was a 1982 graduate of the University of Nebraska College of Law. George is survived by his father, George D. Blauvelt, of Wisconsin Rapids. He was predeceased by his mother, Catherine; and brother, Ralph L., who died in Vietnam. Hon. David L. Crawford, 68, a lawyer and former bankruptcy judge, died August 24, 2011. He was born September 29, 1942 and graduated from the University of Nebraska College of Law in 1965. Shortly after graduating, Crawford joined the Lincoln law firm of Stewart, Calkins, Duxbury & Crawford. He was appointed a federal bankruptcy judge in Omaha in 1973 and served on the bench until 1985. He then joined the Omaha firm of Schmid, Mooney & Frederick, practicing mostly commercial law, and later became a researcher for law firms. Preceded in death by his parents, Rex and Leila Crawford of Ainsworth, NE. Survived by three daughters and their families: Deb and Tom Davidson, children Paige, Spencer and Drew; Leslie and Chad Richter, children Levi and Owen; Nicole Crawford and fiancĂŠ, Ben Jordan; their mother, Susan Crawford Brown; Becky Brown and Frank Elder; Kurt and Carrie Brown; as well as many other family members and numerous close friends. Dean Dalke, 77, Beatrice, died Sunday, September 11, 2011. He was born on January 20, 1934 on a farm near Reynolds He graduated from Fairbury High School in 1952 and met his future wife there Ruth Ann Johnson. They were married September 11, 1955. He received his B.S from the University of Nebraska in 1959 and taught for several years before attending the He the University of Nebraska College of Law graduating in 1963. Dean joined the Nebraska Air National Guard in 1953, where continued to serve until 1974 when he retired as a Lieutenant Colonel. In 1963 Dalke joined the law firm of McCown and Baumfalk. Professional memberships included the American Bar Association, Nebraska State Bar Association, and the Gage County Bar association. Community participation included serving as board member of the Beatrice Junior Chamber of Commerce; the Beatrice Chamber of Commerce; past member of the Beatrice Development Corporation; past member and chairman of the Beatrice City Park Board of Directors. He was a member of the Centenary United Methodist Church THE NEBRASKA LAWYER

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and served on the church board of directors. His greatest joy was spending time with his family, especially his grandchildren. Survivors include his wife, Ruth; son, Doug Dalke and wife, Karen, of Lincoln; daughter, Jan Dalke Anderson and husband, John Shaulis, of Evergreen Colorado; grandchildren, and other family and friends. A memorial has been established to the Centenary United Methodist church Building Fund and the Beatrice Community Hospital Foundation. Harry H. Foulks, 91, of Blair, NE was born March 17, 1920 and died April 18, 2011. He was a former longtime Omaha attorney. His undergraduate and law degrees came from Northwestern University and he was admitted to practice in 1949. He is survived by daughter and son-in-law Barbara and Gerald Brody of Meadow Vista, CA; and caring friend Terese McKee of Blair. He was preceded in death by his wife Ferne. Before returning to Nebraska, he practiced in the Sacramento area in California. DeMaris Ann Brosh Johnson, well known to members of the bar, in particular the Nebraska County Attorneys association, passed away on September 1, 2011 at The Journey House in Lincoln. She was born in Tilden, Nebraska on August 13, 1954. She graduated from Wayne State College DeMaris and taught at Norfolk Senior High until Johnson 1987. She held several positions but in 1990 DeMaris took a position with the Governor E. Benjamin Nelson administration. She coordinated gubernatorial appointments to over 300 boards, commissions and task forces; served as travel coordinator for the Governor and Lt. Governor. After leaving the Nelson administration, DeMaris established The Johnson Group, where she served as executive director and lobbyist for groups including the Nebraska County Attorneys Association as well as other organizations. DeMaris served on many community boards and commissions including the Nebraska Club Board of Directors, Nebraska Safety Council Board of Directors, Nebraska Child Guidance Center Board of Directors, Wayne State College Foundation Board of Trustees, Nebraska Hall of Fame Commission just to name a few. DeMaris felt very fortunate to have been able to travel to many destinations both domestic and abroad. She and her daughter Kara visited each of the 50 states, their final stop being a cruise to Alaska in 2010. DeMaris had more than 14 stamps on her passport. Some of her favorite places included Czech Republic, Ireland, and Cuba. DeMaris loved to meet new people, and

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in memoriam one of the most memorable was Margaret Thatcher. She was always up for an adventure and told stories of donning battle gear in Bosnia and Herzegovina, and getting to test out the fueling boom on a KC-135R Stratotanker. DeMaris’s friends and family all enjoyed her hospitality at her lake home in Fremont. DeMaris was preceded in death by her father, Harley Brosh. She is survived by her mother, Nydra Brosh of Lincoln; daughter and son-in-law, Kara (Johnson) and Jason Woods, Lincoln; as well as other relatives and numerous friends. Memorials, in lieu of flowers, to Capital Humane Society or to family to be designated at a later time. Hon. James P. “Jim” Monen Sr., 78, was born May 6, 1933 and passed away August 18, 2011 at his home in Omaha. Jim Monen, an Omaha native, graduated from Creighton Prep, then attended Georgetown University in Washington, D.C., and, in 1957, received his law degree from Creighton University. Before becoming a judge, Monen worked in the Douglas County Prosecutor’s Office and in private practice in Omaha and Norfolk, Neb. He was appointed to the Workers’ Compensation Court in 1977 and retired in 1992. In 1993, then-Governor Ben Nelson appointed Monen to fill a vacancy as the senator for District 4 in the Nebraska Legislature. In the 1994 election, Kermit Brashear defeated Monen for the seat. He is survived by his wife, Maureen O’Donnell Keenan Monen; son, James Philip Monen Jr.; daughters and sonsin-law: Michaela Maureen and Brian Goerke, Kate and Tim Pieper, Sheila and Steve Virgil, and Emily Rose Monen; eleven grandchildren, and sister and brother-in-law, Mary and Gerald Ries of Omaha. Preceded in death by parents, Daniel J.

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and Agnes Monen; daughter, Agnes Clare; brother, Daniel J. Monen, Jr.; sister, Patricia Dearduff. William A. “Bill” Wilson, 72, of Kingwood, passed away on August 13, 2011. Bill was born in Lincoln on May 28, 1939 to Allen and Bunny Wilson. Bill was a graduate of Nebraska’s College of Business Administration and College of Law. For over 40 years, he specialized in life and health insurance law, having served as general counsel for four major companies, VALIC, Bankers Life Nebraska, California Western Life and Midwest Life. Bill was currently the Principal of Wilson Advocacy and Consulting, a Certified Arbitrator for insurance and securities disputes and was a member of the Harris County Appeals Review Board. Bill was preceded in death by his parents, Allen and Bunny Wilson. He is survived by his loving wife of 30 years, Janet Wilson; children, Allen Wilson and wife Jill, Susie Hill and husband Steve, Mike Wilson and wife Katrina Ondracek, Christine Micheletti and husband Morgan; grandchildren, Jack Wilson. Silas Wilson, Owen Hill, Ellie Hill, Henry Hill; sister, Sally Speer. Bill is also survived by his dog Abby and grand-dog Bailey. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation P.O. Box 95103 Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact kbellman@nebar.com. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

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classified ads PROFESSIONAL - Hall County Attorney’s Office is seeking an attorney to fill the full-time position of Deputy County Attorney. Duties will include various levels of criminal prosecution and may include juvenile court and mental health board proceedings. Motivated individuals with a strong interest in criminal litigation are encouraged to apply. Candidates with zero to three years experience and/or newly admitted attorneys with strong credentials will be considered. Admission to Nebraska Bar is required. Send cover letter, references and resume to: Mark Young, Hall County Attorney, PO Box 367, Grand Island, NE 68802-0367, or fax to (308) 385-5111 no later than October 21, 2011, at 5pm. Hall County is an EOE. ASSOCIATE OR OFFICE SHARE: We are currently looking for attorneys with an established client base to join our Omaha firm. Position is perfect for a solo practitioner that wants to enjoy the support of a firm. We would also consider an office share arrangement. Rent is negotiable and includes internet, reception, conference room and printer/copier. Please email with any questions: ryan@LandPLaw.com. (UFN) Appellate Brief-Writing: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com. (UFN) LEGAL WRITING SERVICES - Former Assistant Attorney General and Supreme Court law clerk available to write appellate and trial briefs. Experienced in Nebraska and Federal courts. Contact Douglas D Dexter, Attorney at Law, 18371 N.W. 12th Street, Davey, Nebraska 68336; (402) 785 - 2364; doug_dexter_40@hotmail.com. (1011) FINISHED OFFICE SPACE FOR LEASE. Nebraska bar member has first class office space for lease in College View area of S.E. Lincoln. Total area of space is 1454 sq. ft. and

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was custom finished as a professional office when the building was constructed approx. ten years ago. Space has two principal offices along with a conference space (expandable), space for assistants, and work and storage areas. For more information contact Tom Graf at NAI FMA Realty at (402) 441-5823. Or e-mail at: tgraf@naifmarealty.com. (UFN) Wanted to purchase - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or sludvik@nebar.com. (UFN) Beach house for rent: Nebraska bar member has southwest Florida beach house and brand new 3BR/2BA luxury beach condos for rent. See englewoodbeachhouse.com. Attorney discounts. Contact Lee Hollis 913-385-5400 or email leehollis@hollislawfirm.com. (1211) Office space to share, on the second floor of the Keeline Building (directly across 17th Street from the east side of the Douglas County Court House). Roger R. Holthaus; Holthaus Law Offices; Suite 210; 319 South 17th St.; Omaha, NE 68102; phone (402) 341-5095; Fax (402) 341-5378; rholthaus@holthauslaw.com. (UFN) OFFICE SHARE/ATTORNEY ARRANGEMENTAvailable for up to 4 attorneys. Includes parking, large conference room, break room, secretarial area, storage, phone system, high speed internet and other detailed amenities and arrangements including staff possible. Beautiful new office building located just south of 75th and Pacific Streets. Contact Angela Burmeister or Rick Berkshire, 1301 S. 75th St. Omaha, NE 68124 aburmeister@berkshire-law.com. (UFN) EXPERIENCED LEGAL RESEARCHER AND WRITER seeking research, writing, and consulting opportunities. Law school background and clerking experience with appellate judge and several lawyers. Research capability includes Westlaw. Cost is $25/hr. plus auto expense and copies. Call Barry Summer at (402) 660-2239 (Omaha number) or email BarrySummer_66@hotmail.com. (0112)

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Nebraska Lawyer October 2011