The Nebraska Lawyer Magazine; JulyAugust 2019 by Elisa Oria

As Technology Evolves, So Does the Practice of Law, and So Must Attorneys Thomas J. Freeman and Prof. Aaron McKain Technology and the Changing Practice of Law A Primer Rebecca A. Bortolotti Defining Nebraska’s State Breach Notification Statutes’ Encryption Safe Harbor Robert L. Kardell The Admissibility and Ethics of Social Media Evidence Prof. R. Collin Mangrum

Nebraska State Bar Association 635 South 14th Street #200 Lincoln, NE 68508

PRSRT STD US POSTAGE PAID OMAHA NE PERMIT NO 2270

The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • July/August 2019 • Vol. 22 No. 4

Features

A Lawyer's Role in the Education of the Public

Paul

37 Plain Language Good Facts, Good Law, and Good Writing All Persuade by Kenneth Oettle

Help Me, Help You! Why You Should Update Your NSBA Member Profile

7 9

.................................................................. J. Scott

Executive Director's Page:

Elizabeth M. Neeley

33 For the Good of the Profession Going for the Good Life: Why It's Hard. Steps to Get You There. by Susan Ann Koenig

President’s Page:

J. Scott Paul

Departments

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

M. Neeley

39 Tech Corner The Top 7 Legal Trends for This Year and Beyond by Joshua Lenon and Teresa Matich

Message From the Chair:

NSBA Health Consortium Update

Melanie Whittamore-Mantzios

42 Wellness Brief Want to Improve Lawyer Well-Being? Change the Way We Teach Our Next General of Lawyers by Chris Aupperle

.............. Melanie Whittamore-Mantzios

As Technology Evolves, So Does the Practice of Law, and So Must Attorneys

Court News

J. Freeman and Prof. Aaron McKain

Legal Community News

Technology and the Changing Practice of Law - A Primer

Letter to the Editor

NLF News

NSBA News

Leadership Academy Spotlights

............................................. Thomas

.......................................... Rebecca

A. Bortolotti

Defining Nebraska's State Breach Notification Statutes' Encryption Safe Harbor .................................................. Robert

23 31

59 Volunteer Lawyers Project The Times They Are Changing: Pro Bono on the Go by Laurie Heer Dale

L. Kardell

The Admissibility and Ethics of Social Media Evidence .............................Prof. R. Collin

47 Correction

Mangrum

Counting on a Client-Supported Legal Experience ................................................. Patrick

www.nebar.com

M. Patino

NSBA Section Connection

Manual Maven

Upcoming CLE Programs

CLE Faculty Recognition

Transitions

In Memoriam

Legal Marketplace

Classifieds

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

JULY/AUGUST 2019

Nebraska State Bar Association 635 S 14th St. #200, Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL President: J. Scott Paul, Omaha President-Elect: Steven F. Mattoon, Sidney President-Elect Designate: Jill Robb Ackerman, Omaha House of Delegates Chair: Michael J. McCarthy, North Platte House of Delegates Chair-Elect: Hon. Patricia A. Freeman, Papillion House of Delegates Susan K. Sapp, Lincoln Chair-Elect Designate: Past President: Timothy R. Engler, Lincoln Past House of Delegates Chair: Jane Langan Mach, Lincoln First District Rep.: Jane Langan Mach, Lincoln Second District Rep.: Kenneth W. Hartman, Omaha Third District Rep.: Jason S. Doele, Norfolk Fourth District Rep.: Hon. Stefanie Martinez, Papillion Fifth District Rep.: Julie E. Bear, Plattsmouth Sixth District Rep.: Jon S. Schroeder, Curtis ABA State Delegate: Warren R. Whitted, Jr., Omaha Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln Young Lawyers Section Chair: Leslie A. Shaver, Scottsbluff Executive Director: Liz Neeley, Lincoln

issue editors

Thomas J. Freeman

Destynie J.L. Sewell is an Assistant Professor of Business Law and Ethics at the University of Nebraska Omaha, where her research focuses on law and ethics in emerging technologies. Destynie earned her undergraduate degrees and MBA from UNO, and her law degree from Creighton University. Destynie is an active faculty advisor for the Goodrich Student Organization Pre-law Program and for Delta Sigma Pi, a coeducational business fraternity.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Melodie Turner Bellamy, Minden Sheila A. Bentzen, Lincoln Elizabeth Stuht Borchers, Omaha Edward E. Brink, Omaha Daniel E. Cummings, Omaha Elizabeth Eynon-Kokrda, Omaha Thomas J. Freeman, Lincoln Andrea V. Gosnold-Parker, Papillion Brandy R. Johnson, Lincoln

Luke H. Paladino, Omaha David J. Partsch, Nebraska City Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L. Schatz, Omaha Ronald J. Sedlacek, Lincoln Carol A. Svolos, Omaha Colleen E. Timm, Omaha Emily J. Wischnowski, Omaha

Destynie J.L. Sewell

Executive Council Liaison: Kenneth W. Hartman, Omaha Executive Editor: Elizabeth Neeley, eneeley@nebar.com Layout and Design: Sarah Ludvik, sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X, Online version ISSN 1541-3934

Aimee Lowe

ADVERTISING SALES: Sam Clinch, (402) 475-7091, ext. 125, sclinch@nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik, (402) 475-7091, ext. 138, sludvik@nebar.com

THE NEBRASKA LAWYER

Aimee Lowe is a business attorney with Goosmann Law Firm. Aimee provides legal counsel and on mergers & acquisitions, buy-sell agreements, entity formations and filings, shareholder agreements, and commercial real estate transactions. She also represents C-Level executives, physicians, and other professionals in complex compensation package negotiations, employment agreements, and disputes. day-to-day operations, complex contract and commercial negotiations, finance and internal operations, intellectual property filings and disputes, employment law, and audits. Previously, Aimee was a partner with an Iowa-based law firm and served as in-house counsel for a title company.

publications chair

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.

Thomas J. Freeman (JD, MS, MBA, Creighton University) works as an attorney for Governmental Law, LLC, where he provides legal guidance to county governments. He is also an Adjunct Professor at both Creighton University School of Law and Heider College of Business. His research is focused on fiduciary duties, business ethics, behavioral economics, and the legal and ethical issues posed by big data, predictive analytics, artificial intelligence, fintech, and other emerging technologies. Tom is a former Assistant Attorney General for the State of Nebraska.

P. Brian Bartels 2

P. Brian Bartels is a partner in the Omaha office of Kutak Rock LLP. Brian’s practice includes advising governmental, tax-exempt, and for-profit employers on health and welfare benefit plans, the Patient Protection and Affordable Care Act, and HIPAA compliance. He also advises clients on employee benefit issues in the context of mergers, acquisitions, and divestitures. Brian graduated summa cum laude from Creighton University School of Law. He earned a Master of Arts degree in Political Science from Indiana University and a Bachelor of Arts degree, summa cum laude, from Creighton University. JULY/AUGUST 2019

president’s page

A Lawyer’s Role in the Education of the Public J. Scott Paul These days it seems as if the public is in need of a constitutional law course to enable it to understand what is going on in Washington. Recent developments have tested the public’s ability to understand what is happening with our governmental institutions. In the current political climate, one almost has to be a lawyer to understand the issues discussed in the media. For example, news accounts routinely discuss impeachment procedures, enforcement of subpoenas, executive privilege, the separation of powers doctrine and the legitimacy of congressional oversight. The result is that the public is often left to speculate about the facts and the conclusions to be drawn from the reporting on these issues due to its lack of familiarity with these topics. In its editorial dated February 13, 2019, the Omaha World Herald touched on this dilemma, stating: Our country is stronger and healthier when its citizens, across lines of party and ideology, have a basic knowledge of our government and civic principles fundamental to a free society. Although Americans shouldn’t be expected to be experts in such matters, surveys unfortunately indicate that a considerable portion of the population falls well short in understanding the fundamentals. All of this prompts me to ask: As “public citizens” what role, if any, do lawyers have in the education of the public on matters of civic interest? For guidance my starting point was, of course, the Preamble to the Nebraska Rules of Professional Conduct, which states in part: A lawyer, as a member of the legal profession, is a representative of clients, an officer of THE NEBRASKA LAWYER

the legal system, and a public citizen having special responsibility for the quality of justice. Preamble, Sec. 1. The Preamble explains this special responsibility stating: A lawyer should further the public’s understanding and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. Preamble, Sec. 6. Does our role in defending the judicial system extend to education of the public regarding issues of constitutional law? As lawyers, we understand the doctrine of separation of powers and the constitutional role in which the legislative, executive, and judicial branches of government are intended to function. Therefore, lawyers are qualified to comment on the context in which complicated governmental issues arise in order to assist the public’s understanding. Similarly, lawyers are competent to correct criticism of the judicial system, or government institutions for that matter, when such criticism is not based on fact or contrary to established law. Simply put, in order to maintain public confidence in the institutions of government, lawyers are called upon to educate and inform the public. That is not to say that lawyers are obligated to take sides on political issues since the public is entitled to its opinions and points of view regardless of how partisan they may be. Accordingly, lawyers need not be the arbiters of the debate nor the mediators of disputes about the political issues of the day, but as “public citizens” lawyers should look for opportunities

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PRESIDENT’S PAGE to educate the public in order to elevate the level of public discourse by informing the public of the relevant facts and the law as they relate to our governmental institutions. As noted by the late Daniel Patrick Moynihan, “Everyone is entitled to his own opinion, but not to his own facts.” The NSBA took such an educational step in 2006 when it adopted its Policy for Responding to Unjust Criticism of the Courts. The NSBA policy noted that such a plan was needed because: The effectiveness of the administration of justice depends in large measure on public confidence. The reporting of inaccurate or unjust criticism of judges, courts, or our system of justice erodes public confidence and weakens the administration of justice. It is vital that non-litigants as well as litigants believe that the courts, their procedures and decisions are fair and impartial.

The policy notes that the Bar should not attempt to prevent “just criticism” but that “inaccurate or unjust criticism should be answered and presented through an organized public information program. Such criticism typically results from a lack of understanding of the system the reason for a decision, a sentence or a courtroom action.” Therefore, to facilitate the public’s understanding of all of its governmental institutions, lawyers have a role in the education of the public on civic matters particularly when they involve the Constitution. Thomas Jefferson stated: “Whenever people are wellinformed, they can be trusted with their own government.” These words provide valuable motivation to lawyers on why we should be prepared to educate the public to assist its understanding of today’s complex constitutional issues.

J. Scott Paul, President (402) 341-3070 spaul@mcgrathnorth.com

Giving a Community or School Presentation? NSBA has created a presentation that any lawyer or judge may use when invited to give a presentation to a local civic or school group. The topic is “Fair and Impartial Courts,” including an explanation of how judges are appointed and the role of courts in our society. The presentation, which can be tailored to an audience and time allowed, includes a PowerPoint, a loose script and links to background information. Get more details and the presentation on NSBA’s website at https://www.nebar.com/page/ FairImpartialCourtsPresentation.

THE NEBRASKA LAWYER

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executive director’s page

Help Me, Help You! Why You Should Update Your NSBA Member Profile Help Us Provide You with More Value!

The NSBA is updating its member database. Having current contact information, knowing the size and type of your employer, and having accurate practice area information helps us to provide you with more relevant content (and bother you less with content that may not be applicable).

Help Yourself—Why Providing Your Contact Information is Important!

The Attorney Directory Search on the NSBA’s website (www.nebar.com) receives more than 125,000 searches annually. This profile is a free marketing opportunity for you. It allows you to list your current firm/employer, your areas of practice, where you attended law school, other states that you are licensed in, and allows you to provide any additional information you would like to showcase (e.g., other qualifications, awards, public service). It will list your involvement with NSBA Committees, Sections and Leadership. You can also provide links to your firm website, or other marketing profiles. If you are not fully providing your contact information, you are missing an opportunity to brand yourself and market yourself and your services.

Protect Yourself!

In the September/October 2018 issue of The Nebraska Lawyer, Adam Kauffman shared his “Journey Navigating Professional Identity Theft” when his name and bar number were fraudulently used in a sophisticated scam to sell Mexican timeshares. The scammers targeted Adam because there was little information available about him as a lawyer online. The THE NEBRASKA LAWYER

Elizabeth Neeley

scammers set up a fake law firm in his name. To quote Adam, “Cautious consumers are the best defense against any scam. While we can’t make the general population more conscientious, we can make it easier for consumers to verify attorney identities. Updating your information on the Bar Association’s website is an easy way to do that. It’s likely that if my Bar Association profile showed that I am a judicial clerk for Nebraska’s Court of Appeals, the scam artist would not have chosen my information. Potential victims could have too easily determined that I am not associated with the ‘Law Office of Kauffman.’” Providing a full profile provides you more, rather than less protection by allowing the public to verify your identity.

How to Update Your Profile

Please help us provide more value and protection to you by returning the postcard provided in this issue or by logging into your profile at www.nebar.com and updating your practice areas, contact information and communication preferences. Your login is your bar number. If you need assistance with your password, please call 402-475-7091. As the NSBA works to update its member database and we see we don’t have current information for you, you may receive a courtesy call from our staff this summer to assist you with updating your profile.

Elizabeth Neeley, Executive Director (402) 475-7091 ext. 129 lneeley@nebar.com JULY/AUGUST 2019

2019 NSBA Member Benefits & Programs Please take a moment to make sure you’re taking full advantage of your NSBA member benefits. To learn more about these benefits, visit www.nebar.com.

Core Member Benefits

Support the Public

Casemaker: Unlimited access to a vast online legal research

Volunteer Lawyers Project: Provides pro bono opportu-

engine including legal authorities for all 50 states and the federal government and a mobile application. Casemaker premium services also available for free: Casecheck+, Citecheck+, and Casemaker Digest. Access to Casemaker is valued at $450 per year.

nities to Nebraska lawyers to serve low income Nebraskans through case placement, online legal assistance through Nebraska Free Legal Answers (www.ne.freelegalanswers.org), and Self-Help Desks for self-represented litigants.

Client Assistance Fund: Provides financial assistance to cli-

Free and Reduced-Cost CLE: Receive two free hours of eth-

ents who have suffered financial loss due to dishonest acts by a Nebraska attorney.

ics credit at certain NSBA-produced seminars and webinars (a $130 value) as well as a significant discount on all NSBA-produced CLE seminars and webinars, including our On-Demand webinars at www.nebarondemand.com.

Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities.

NSBA Health Insurance Consortium: The Health Insurance Consortium consists of multiple employers, with NSBA membership, pooling together to obtain affordable health insurance coverage on terms similar to those currently available only to large employers. There are seven Blue Cross Blue Shield of Nebraska plans to choose from. Employers also have the option of selecting “narrow networks” to achieve additional savings. In addition to staff, employers may offer family and dependent coverage to their employees.

Professional Growth & Support Nebraska Lawyers Assistance Program (NLAP): Provides confidential assistance to lawyers, judges, and law students for substance abuse, stress, depression, and other issues negatively impacting their professional and personal lives.

The Nebraska Lawyer Magazine: Published bi-monthly, the magazine provides information on legal topics, practice tips, and ethics, as well as information and news from the NSBA, the courts, and your colleagues.

Child Support Calculator: Unlimited free access to the Ne-

braska Child Support Calculator, a state-of-the-art platform for calculating child support in all Nebraska courts, valued at $109 per year.

Leadership Academy: Nurtures effective leadership with

respect to ethical, professional, and community service issues; builds relationships among legal leaders across the state and disciplines; raises awareness regarding issues facing the profession; and enhances the diversity of leaders within the profession.

NSBA Library: Access past NSBA seminar materials, manuals,

forms, and videos, all categorized by practice area.

Sections: Connect with other attorneys in your areas of practice

through Section events, seminars and listservs. Access resources developed specifically for your area of practice.

SOLACE: A mechanism to request support for anyone within the legal community who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury through the help of a statewide volunteer attorney group.

NebDocs: NebDocs is a document assembly system on a Hot-

Docs platform that covers most practice areas. NebDocs templates automatically create customized documents based on the answers given—saving members time, effort, and money in the production of documents and forms (available for an additional fee).

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

Find-A-Lawyer: Let the NSBA help connect you with potential

clients through its new Lawyer Referral Program (available at a discount).

Legislative Program: The NSBA supports the court system

and represents the professional interests of attorneys before the Nebraska Legislature through the introduction of legislation and the review of bills introduced each session.

NetWORKS!: Join the NSBA’s Professional Networking Group

to be matched with six lawyers for coffee or lunch at your mutual convenience throughout the year. Join groups in Omaha or Lincoln.

Self Help Centers: Provides assistance to Courts across the

state as they face an increasing number of self-represented litigants.

Insurance: Through its partnership with Mercer, the NSBA of-

fers a full range of insurance options, including life, disability, and employment practice liability. Our most popular option is our professional liability coverage. Mercer is the exclusive provider of professional liability insurance to members of the NSBA. For additional information on insurance products, call 1-866236-6582 or visit www.nebarinsurance.com. For professional liability inquires, contact John Collentine at (800) 328-4671. THE NEBRASKA LAWYER

JULY/AUGUST 2019

message from the chair

NSBA Health Insurance Consortium Update In January of 2019, the NSBA Health Insurance Consortium officially launched. The Consortium consists of multiple employers, with NSBA membership, pooling together to obtain affordable health insurance coverage on terms similar to those currently available only to large employers. Now that the Consortium is officially up and running, our Board would like to provide NSBA members with an update. As of the date I am writing, there are currently 53 law firms participating in the Consortium, representing just under 1,000 lives. The participating firms and organizations range in size from solo practitioners with a part-time staff person1 to firms with 95 employees. Our firms represent not only Omaha and Lincoln but many rural areas of the state, including Scottsbluff, Holdrege, Norfolk, Columbus, Sidney, Broken Bow, just to name a few. Although it is still early, our claims history has been favorable and we are optimistic about our renewals for 2020. Claims have been paid on time and without issue. We want you to know that you don’t have to wait until your annual renewal. You can join at any time! We can assist firms with exiting their current plan and enrolling them in the Consortium without penalty and assuring the firm never goes without coverage and doesn’t pay for double coverage. If your firm joins the NSBA Health Insurance Consortium in a month other than January, any deductible and out-of-pocket expenses your firm has met from January (of the current year) through the date you join, will be credited by BCBSNE. In short, if we can save your firm money, there is no reason to wait until next year to start saving. 1

Melanie Whittamore-Mantzios

Chair, NSBA Health Insurance Consortium

Here are a few more highlights: AFFORDABLE COVERAGE: By pooling together, employers are better positioned to obtain more affordable health insurance coverage due to economies of scale, managing savings, and spreading risk. What are the savings? Admittedly, the Consortium has not been advantageous for all firms. However, many firms have obtained substantial savings. For example, we have saved a solo with one staff person more than $7,000 a year. We have saved a medium sized law firm more than $45,000 a year. Jason Lammli of Brogan Gray, PC, LLO of Norfolk reports, “We are extremely satisfied with the Consortium. It has saved us almost 50% in premium.” Some firms are paying approximately the same rates but have drastically improved their coverage and reduced their deductible and out-of-pocket expenses. What can we do for you? You can’t find out until you get a quote. Getting a quote does not obligate you to join. FLEXIBILITY: There are seven benefit packages to choose from through Blue Cross Blue Shield of Nebraska (3 PPO and 4 HSA options). Each employer in the Consortium has the option of selecting the type of health plan or plans and networks that work best for their employees. A STABLE COMMUNITY: The Consortium’s goal is to create and to encourage a stable community of employers participating in the Consortium. When a group has a stable environment, annual rate fluctuations are less likely and less dramatic from year to year. Additionally, the Consortium is

If you are a sole proprietor and have an employee working 17.5 or more hours per week, you are considered a two person group and are eligible for coverage.

THE NEBRASKA LAWYER

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JULY/AUGUST 2019

MESSAGE FROM THE CHAIR structured to incentivize health and insulate you from large rate increases. AVAILABLE TO FAMILY MEMBERS: In addition to staff, employers participating in the Consortium may offer family and dependent coverage to their employees. NO RISK: The NSBA Health Insurance Consortium is a fully-insured product. There is no financial risk to the NSBA or participating employer groups. It is guaranteed issue and guaranteed renewable which means you cannot be denied coverage or have your coverage discontinued because of preexisting health conditions. In closing we hope you will get rated and receive a quote. Please contact Jerome Rewolinski at: jerome.rewolinski@aon. com or Jody Gilcrist at: Jody.Gilcrist@aon.com and they will send you a link to complete. There is no obligation to join after you apply for coverage.

Meet the Board The Consortium is a Nebraska nonprofit mutual benefit corporation and is represented by firms in the Consortium plan. The current board includes: • Chair, MELANIE WHITTAMORE-MANTZIOS, Wolfe Snowden Hurd Ahl Sitzmann Tannehill & Hahn, LLP • Vice Chair, ABBIE WIDGER, Johnson Flodman Guenzel & Widger • DAN WINTZ, Badura and Wintz Law • ADAM COCKERILL, Koley Jessen P.C., L.L.O. • ROBERT GOODWIN, Sonntag, Goodwin & Leef, P.C.

Participating Law Firms and Organizations Badura & Wintz Law LLC

Kissel, Kohout, ES Associates LLC

Boucher Law Firm

Koukol & Johnson, LLC

Koley Jessen P.C., LLO

Baylor Evnen, LLP

Kyker Law Offices

Brogan Gray, PC LLO

Law Firm of Thomas D Wulff, PC

Bromm, Lindahl, Freeman-Caddy & Lausterer

Law Office of Janelle M. Foltz, LLC

Campagna Law, PC, LLO

Law Office of Lee S. Loudon

Car & Reinbrecht, PC, LLO

Lefler Kuehl & Burns

Cavanaugh Law Firm, PC LLO

Leslie Christensen Attorney at Law

Crawford Law Office, PC

Locher Pavelka Dostal Braddy & Hammes, LLC

Dier, Osborn & Cox, PC, LLO

McGrath North Mullin & Kratz, PC LLO

Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl & Snyder, PC

Michael G. Goodman, PC

Dutton & Associates, PC

Monahan & Monahan

Ellison, Kovarik & Turman Law Firm, PC

Mueller Robak, LLC

Erftmier Law, LLC

Nebraska State Bar Association

Erickson Law Office

Omaha Bar Association

Fitzgerald, Vetter, Temple & Bartell

Perry Guthery Haase & Gessford, PC LLO

Fowles Law Office, P.C., LLO

Peterson & Foster Law, LLC

Gross & Welch, PC LLO

Powers Law

Gallant Law Office

Prairie Family Counseling & Consulting

Halbert, Dunn & Halbert, LLC

Sonntag, Goodwin & Leef, PC

Hanson, Hroch & Kuntz

Stewart Law

Houghton Bradford Whitted, PC, LLO

Stratton, DeLay, Doele, Carlson, Buettner & Stover, PC, LLO

Hubka & Hubka

Theis Law Offices, LLC

Hurley Law Offices

Voelker Law Office

Johnson Floodman Guenzel & Widger

Wolfe Snowden Hurd Ahl Sitzmann Tannehill & Hahn, LLP

Kinney Mason, PC, LLO

THE NEBRASKA LAWYER

JULY/AUGUST 2019

feature article

As Technology Evolves, So Does the Practice of Law, and So Must Attorneys by Thomas J. Freeman and Prof. Aaron McKain

In 2019, there is no shortage of media attention focused on the legal and ethical complications of our post-digital world: From the daily deluge of hacks and data-leaks to the increasing use of (often biased) algorithmic predictions in consumer and criminal contexts. But for far too long, the legal profession, as a whole, has sat on the sidelines, waiting for legislative solutions to magically solve our emerging crisis of privacy while failing to adequately update “standard” attorney-client procedures and litigation strategies to meet the demands, and opportunities, of our new technological environments.

—fundamentally change the practice of law as encryption, automation, and artificial intelligence become the new normal in our courthouses and client consultations. Whether our goal is to thrive as practicing attorneys or meet our professional civic obligations to ensure that due process and privacy rights are preserved for all citizens, lawyers must work to become familiar with and conversant about technology.1

In short, emerging technology will present a number of challenges for attorneys in Nebraska and nation-wide. Increasingly, our clients—even when dealing with seemingly routine civil and criminal issues—will have tech-related challenges requiring assistance and legal expertise. Technology will also—as it has in virtually every other sector of our economy

Rapid advances in technology are changing the world in ways that will affect every type of legal practice. A family law firm may be confronted with a messy divorce that requires the division of marital assets which include bitcoin. A criminal attorney may have to defend a client who was arrested based on being identified by facial recognition technology. The sheer breadth of the

Thomas J. Freeman

Prof. Aaron McKain

Emerging Technology: Understanding the Terms

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Prof. Aaron McKain (Ph.D., M.S.L., Ohio State University) is the Director of English, Digital Media, and Communication Arts at North Central University in Minneapolis. For fifteen years, his research on digital ethics, law, and politics has been featured in academic journals, local news broadcasts, a college textbook, and, most recently, the Czong Center for Contemporary Art in Korea. He is a native Nebraskan and a proud former member of the Nebraska Appleseed Center for Law in the Public Interest. 9

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AS TECHNOLOGY EVOLVES, SO DOES THE PRACTICE OF LAW, AND SO MUST ATTORNEYS changes in store for the practice of law is encapsulated by the very definition of “cyberlaw,” which has already grown to include the law of the Internet, computer law, e-commerce law, copyrights, trademarks, domain disputes, contracts, patents, defamation, and data retention, to name just a few pertinent topics.2 All attorneys, regardless of their practice areas, will need to become more educated about how technology is affecting the areas they practice in. As the pace of technological progress continues to accelerate, it can be difficult to keep track of the different advancements we should be aware of. What follows is a non-comprehensive list of some of the technologies to be aware of – for novices – as well as a brief guide to the ethical and legal complications that have already begun to arise from them. Above all, this article is to serve as a quick primer – and gentle call to arms – for those members of the Nebraska Bar who have yet to take the leap into this new (and potentially lucrative) digital frontier of law.

Artificial Intelligence, Machine Learning, and Algorithmic Discrimination Artificial intelligence (also “AI”) is the study of programmable agents that perceive the world around them, form plans, and make decisions to achieve their goals.3 The goal of AI is to create machines to perform human-like tasks.4 Its foundations include mathematics, logic, philosophy, probability, linguistics, neuroscience, and decision theory.

Machine learning is a subfield of artificial intelligence. Its goal is to enable computers to learn on their own.5 A machine’s learning algorithm enables it to identify patterns in observed data, build models that explain the world, and predict things without having explicit pre-programmed rules and models. It is the process by which a machine can be trained to learn, with the ultimate goal of thinking like a human. The reality is that in some respects, AI has proven to be similar to human thinking, for good and bad. The pace of developments in artificial intelligence is staggering. AI programs have proven the ability to easily defeat the very best human opponents at games as complex as chess and Go.6 In the last month, researchers taught an AI program how to beat a combination of human and computer players in a multiplayer game.7 Each of these feats was once thought impossible for a computer program. But programmers can design a system with the ability to learn and then provide it with hundreds of thousands or even millions of repetitions to learn from. The programs can – allegedly – be designed to be free from human experiences and biases, which allows them to develop new strategies for gameplay that humans have never considered or employed. That said, emerging research in the fields of digital humanities and digital ethics have begun to reveal, unsurprisingly, that human and statistical biases are often programmed into everyday AI: From predictive analytics in policing to new forms of digital “redlining” which actively discriminate based on race, class, and gender categories. Not only does this digital discrimination (and “micro-targeting”) often occur beneath the notice of the disadvantaged users, algorithmic statistical prejudices are sometimes even beyond the awareness of the programmers. And as humans and robotics become more and more intertwined, legal questions of human agency and liability will become necessarily more complex and thorny as robotic systems (from automated cars to the “internet of things”) begin to collaborate with humans to perform daily activities.

Blockchain, Encryption, and Privacy Law

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

Blockchain is a system of data recording, where each block is the digital record of a transaction. The block contains the date, time, amount, and information about the participants in the transaction. The technology itself makes it difficult to hack. Each block has a unique code, which is incorporated into subsequent blocks in the chain. A hacker would have to change the code of innumerable blocks in order to mask his activities. That would be very difficult and require an immense amount of computing power.8 Bitcoin is probably the most recognized application of blockchain technology, but the technology could be used in virtually any field. Matthew McKeever’s recent article in the November/December 2018 issue of The Nebraska Lawyer provides a deeper look into bitcoin currency and blockchain technology generally.9 JULY/AUGUST 2019

AS TECHNOLOGY EVOLVES, SO DOES THE PRACTICE OF LAW, AND SO MUST ATTORNEYS The chief motivations of blockchainand all encryption innovations- are, of course, privacy and security. Currently the central battle in our post-digital legal world, privacy law deals with how information or data about individuals or entities can be collected, stored, transferred, sold, or monetized. In 2019, it is almost not hyperbole to say that every company is collecting (or attempting to collect) data about consumers, which it then stores, processes, uses, and monetizes. The amount of data gathered can be very extensive. Google, for example, collects: your bookmarks; your contacts; your Google Drive files; your YouTube videos; the photos you’ve taken on your phone; the businesses you’ve bought from; the products you’ve bought through Google; data from your calendar; your Google hangout sessions; your location history; the music you listen to; the Google books you’ve purchased; the Google groups you’re in; the websites you’ve created; the phones you’ve owned; the pages you’ve shared; how many steps you walk in a day; every email you have ever sent or received, including those that were deleted or categorized as spam; every Google Ad you have ever viewed or clicked on; every app you ever launched or used and when you did it; and every website you have ever visited and what time you did it at; and every app you have ever installed or searched for.10 In the United States, HIPAA is probably the best-known example of a privacy law. In Europe, the recently passed General Data Protection Regulation (GDPR) covers data privacy regulation. There is currently no similar law in the United States with respect to data privacy. Some states have attempted to fill this void with state laws to protect individual privacy – such as the California Consumer Privacy Act (CCPA) and Minnesota’s recently failed attempts to regulate 3rd party data sales by internet service providers – but the current legal landscape is a patchwork that often fails to protect our most vulnerable post-digital citizens. (For instance, the THE NEBRASKA LAWYER

turn toward “affirmative disclosure” in privacy regulation, which requires the companies that are collecting, storing, and processing data to also be responsible for “educating” the public about their rights re: privacy.) Whether your goal as an

 JULY/AUGUST 2019

AS TECHNOLOGY EVOLVES, SO DOES THE PRACTICE OF LAW, AND SO MUST ATTORNEYS attorney is to help companies comply with existing regulations – case in point, Facebook’s recent settlement with the FCC on discriminatory housing and employment advertising – or to advocate for privacy as a “new” digital civil right, it is essential that the legal profession emerges as the “expert in the room” on these new ethical challenges brought by technology.

There Are A Variety of Ways Attorneys Can Become More Knowledgeable About and Familiar with Emerging Technology It is obviously challenging for busy professionals to stay up to date on technology. There are often no clear delineations between these technologies, which tend to overlap. For example, artificial intelligence is the technology that allows robots to function, while data privacy is fundamental to both privacy law and cyberlaw. That said, there are a variety of ways attorneys can do so. The University of Nebraska College of Law offers courses and degrees in space, cyber, and telecommunications law.11 The University of Nebraska also has offerings related to business analytics.12 Creighton University offers courses and degrees in the areas on business intelligence, analytics, and data science.13, 14 There are also less formal alternatives for online or distance learning available from a variety of colleges and businesses. Harvard University has a whole host of courses on data science that are available for free.15 LinkedIn has a variety of free learning modules on everything from blockchain to data science.16, 17 The practice of law requires a mindset of continuous learning. It will be increasingly important for attorneys to bring that same philosophy to changes and advances in technology. The legal profession has a unique opportunity to not repeat the mistakes of our recent digital past. While business and government have been, in hindsight, much too quick to rely on the “promise” of Big Data (and Silicon Valley’s assurances of privacy), scholars and researchers in the digital humanities have spent the last decade developing alternative ethical models for digital commerce and prescient (yet under-heeded) warnings about the impact of technology on our lives as citizens, employees, and consumers. (For instance, the Anti-Defamation League’s recent efforts to install algorithmic ethics in high school civics curricula, the ACLU’s privacy and technology initiatives, and our own recent pilot – with North Central University in Minneapolis – to bring digital ethics education to underserved minority communities via the student-led “Institute For Digital Humanity.”)

Technology Will Continue to Change the Way Attorneys Practice Law Attorneys and law firms will need to adapt to and utilize new technology in order to practice effectively. The nature of how we communicate with clients, courts, and other attorneys THE NEBRASKA LAWYER

Could you fax that over to me? No, I can't fax because of where I live. Where do you live? The 21st century. continues to change. E-filing is quickly moving from being an option to becoming a requirement. The technologies some of us rely on are increasingly obsolete. For example, the use of a fax machine is quickly becoming as outdated as using an abacus to calculate a contingency fee. Artificial intelligence and machine learning are changing the way lawyers conduct discovery. In many cases, a computer can more quickly and accurately perform an even complex review of documents than attorneys can. The computer program will still need to be programmed and trained by lawyers or those with legal training, but the bulk of the work can now be done by a computer program. New technologies present a host of new challenges to adoption. Attorneys regularly send and receive text messages and emails, but more never pause to think about whether those texts or emails should be encrypted or what level of encryption should be required. Likewise, almost all attorneys store confidential client information on their computer systems, but never consider what measures they should take to protect that data. The American Bar Association has provided some guidance, but no hard and fast rules. “From the ethics perspective, four rules generally govern the lawyer’s obligation to secure client data: ‘ABA Model Rule 1.1, which deals with competence; Rule 1.4, which involves communications; Rule 1.6, which covers the duty of confidentiality; and rules 5.1 through 5.3, which focus on lawyer and nonlawyer associations.’”18 The scope of ABA Model Rule 1.1 was “clarified in 2012 when the ABA recognized the increasing impact of technology on the practice of law and the duty of lawyers to develop an understanding of that technology.”19 The ABA Commission on Ethics 20/20 has explained that: “Model Rule 1.1 requires a lawyer to provide competent representation, and Comment [6] [renumbered as Comment [8]] specifies that, to remain competent, lawyers need to “keep abreast of changes in the law and its practice.” The Commission concluded that, in order to keep abreast of changes in law practice JULY/AUGUST 2019

AS TECHNOLOGY EVOLVES, SO DOES THE PRACTICE OF LAW, AND SO MUST ATTORNEYS 7. Conduct Due Diligence on Vendors Providing Communication Technology

in a digital age, lawyers necessarily need to understand basic features of relevant technology and that this aspect of competence should be expressed in the Comment. For example, a lawyer would have difficulty providing competent legal services in today’s environment without knowing how to use email or create an electronic document.”20 The ABA rules related to data security largely use a ‘reasonable efforts’ standard and decline to impose specific requirements. Attorneys should employ a fact-based analysis and employ reasonable security to fit the particular situation created by the client, case, and circumstances.21 In general terms, attorneys are required to:22 1. Understand the Nature of the Threat 2. Understand How Client Confidential Information is Transmitted and Where It Is Stored 3. Understand and Use Reasonable Electronic Security Measures

The basic level of encryption that most popular email providers support is HTTPS encryption.23 While HTTPS will prevent others in the network from reading a message, the email provider will still have an unencrypted copy of the communication.24 Governments and law enforcement agencies may be able to access that data with a warrant.25 A higher level of encryption, such as PGP, may be a good option for making communications more secure.26 Even PGP has come under fire however, with some opining that secure online portals are more secure options.27 Just as technology makes it easier for attorneys to communicate with our clients, it makes keeping those communications confidential more challenging. Attorneys will have to be tech-savvy enough to assess what level of security is appropriate under different sets of circumstances for their communications.

Conclusion Society is changing rapidly, powered by incredible technological advancements. These changes will affect every attorney’s clients, regardless of his practice area. The tools that attorneys will use to communicate with clients, draft and file pleadings, and function as attorneys are changing as well. If attorneys are to competently represent clients, they must work to educate them-

4. Determine How Electronic Communications About Client Matters Should Be Protected 5. Label Client Confidential Information 6. Train Lawyers and Nonlawyer Assistants in Technology and Information Security

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THE NEBRASKA LAWYER

JULY/AUGUST 2019

AS TECHNOLOGY EVOLVES, SO DOES THE PRACTICE OF LAW, AND SO MUST ATTORNEYS selves about emerging technology. And in these unprecedented technological times, it is incumbent upon us, as the guardians of the law, to help our clients and fellow citizens advocate, and litigate, for a just and equitable post-digital world.

10 Dylan

Additional Resources

12 University

A practical guide about common types of encryption:

13 Creighton

14 Creighton

University, Ricketts Center in Analytics and Data Science https://business.creighton.edu/graduate/student-organizations/ricketts-center-analytics-and-data-science

15 Harvard

https://ssd.eff.org/en/module/communicating-others A look at alternatives to email that provide for more secure communications: h ttp://www.abajournal.com/magazine/article/ alternatives_email_secure_communication

Urban, “Common Types of Encryption: What Lawyers Need to Know,” Law Technology Today, July 18, 2018 https:// www.lawtechnologytoday.org/2018/07/common-types-ofencryption/

19 American

Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 477R, Revised May 22, 2017 http://www.americanbar.org/content/dam/aba/ administrative/professional_responsibility/aba_formal_opinion_477.authcheckdam.pdf

Jeffrey Catanzaro, “Why lawyers of the future will need tech savviness as well as legal know-how,” LegalWeek, October 9, 2018 https://www.law.com/legal-week/2018/10/09/why-lawyers-ofthe-future-will-need-tech-savviness-as-well-as-legal-knowhow/

20 Id.,

citing ABA COMMISSION ON ETHICS 20/20 REPORT 105A (Aug. 2012), http://www.americanbar.org/ content/dam/aba/administrative/ethics_2020/20120808_ revised_resolution_105a_as_amended.authcheckdam.pdf. The 20/20 Commission also noted that modification of Comment [6] did not change the lawyer’s substantive duty of competence: “Comment [6] already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that making this explicit, by addition of the phrase ‘including the benefits and risks associated with relevant technology,’ would offer greater clarity in this area and emphasize the importance of technology to modern law practice. The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”

2 Carlos

Leyva,“What is cyberlaw?” Digital Business Group https://www.digitalbusinesslawgroup.com/what-is-cyberlaw. html

Vichal Maini, “Machine Learning for Humans: Simple, plainEnglish explanations accompanied by math, code, and realworld examples,” Medium, August 19, 2017 https://medium. com/machine-learning-for-humans/why-machine-learningmatters-6164faf1df12 Robotics Courses, edX https://www.edx.org/learn/robotics

21 Id.

Joon Ian Wong & Nikhil Sonnad, “Google’s AI won the game Go by defying millennia of basic human instinct,” Quartz, March 25, 2016 https://qz.com/639952/googles-ai-won-thegame-go-by-defying-millennia-of-basic-human-instinct/

22 Id.

23 Nicole

Black, “New ABA Email Guidelines: How Can Lawyers Comply?” Above the Law, June 1, 2017 https://abovethelaw. com/2017/06/new-aba-email-guidelines-how-can-lawyerscomply/

Edd Gent, “Artificial intelligence learns teamwork in a deadly game of capture the flag,” Science May 30, 2019 https://www. sciencemag.org/news/2019/05/artificial-intelligence-learnsteamwork-deadly-game-capture-flag

24 Id. 25 Id. 26 Id.

“Blockchain, Explained,” reviewed by Luke Fortney, updated May 21, 2019 https://www.investopedia.com/terms/b/blockchain.asp

27 Sean

La Roque-Doherty, “Alternatives to email give law clients secure communication options,” ABA Journal, October 1, 2018 http://www.abajournal.com/magazine/article/alternatives_email_secure_communication

Matthew S. McKeever, “Bitcoin and Blockchain Technology: What You Need to Know,” Nebraska Lawyer, Nov/Dec 2018 https://cdn.ymaws.com/www.nebar.com/resource/resmgr/ nebraskalawyer_2017plus/2018/novemberdecember/TNL1118d.pdf

THE NEBRASKA LAWYER

inLearning, Blockchain: Beyond the Basics https:// www.linkedin.com/learning/blockchain-beyond-the-basics/welcome

18 Holly

Endnotes

16 LinkedIn:

inLearning, Data Science https://www.linkedin.com/ learning/topics/data-science

https://abovethelaw.com/2017/06/new-aba-emailguidelines-how-can-lawyers-comply/

University Online Data Science Courses https://onlinelearning.harvard.edu/subject/data-science

17 LinkedIn:

A guide for compliance with new ABA Guidelines:

College of Law, Space and Cyber Law https://law.unl. edu/spacecyberlaw/ University, M.S. in Business Analytics https://business.creighton.edu/program/business-intelligence-and-analytics-msbia

More information about end-to-end encryption:

11 Nebraska

of Nebraska-Lincoln, M.S. in Business Analytics https://business.unl.edu/online/ms-business-analytics/

h ttps://www.lawtechnologytoday.org/2018/07/ common-types-of-encryption/

Curran, “Are you ready? Here is all the data Facebook and Google have on you,” The Guardian, March 30, 2018 https://www.theguardian.com/commentisfree/2018/mar/28/allthe-data-facebook-google-has-on-you-privacy

JULY/AUGUST 2019

feature article

Technology and the Changing Practice of Law – A Primer by Rebecca A. Bortolotti

Every minute, new reports of emerging technologies and their adoption are reported across various industries. Organizations that choose not to embrace, adopt, and lead the way will be left behind. This is not a doomsday scenario. Technology will not completely replace the human element. However, the face of today’s workforce, and the role that humans play, is absolutely changing. The practice of law is not immune.

A View from the Past During law school in the 1990s, students learned to find cases in books and cross check those citations in other books. While Westlaw and LexisNexis were coming into play, the case citations from these sources were not entirely accurate. Legal practitioners

Contrast this with today’s electronic filing completed literally at the eleventh hour. For years, the flip phone reigned supreme. No text messages or email; a human had to call with urgency. Then, the BlackBerry took the business world by storm. Suddenly, the connectivity to the practice became 24/7. For years, many resisted the BlackBerry, until the demands required it. There was a certain freedom – no longer being tied to the office or home office when a storm was brewing. Discovery practice was another story. Documents were predominately paper. In complex litigation, boxes would be delivered – just waiting for the teams of people to go through them page by page, looking for the silver bullet. I recall fond memories of our litigation team bonding over the boxes in an unheated warehouse on a particularly cold winter in Minneapolis. While these memories are from twenty years ago, the rapid pace of technological change makes predicting the future nearly impossible. However, competent representation requires understanding emerging technologies, supporting adoption of those technologies, and considering the practice of law in an entirely new light – shedding historical frameworks of the billable hour and how client value is measured.

Rebecca A. Bortolotti Rebecca A. Bortolotti is a partner at Advent, LLP, a law firm focused on Intellectual Property, Innovation and Technology Law. Prior to joining Advent, Rebecca was Chief Technology Counsel at ConAgra Brands, Inc. Rebecca is registered with the United States Patent and Trademark Office (2002) and the State of Nebraska Bar (1999). Rebecca received her J.D. (magna cum laude) in 1999 from Creighton University Law School. In 2012, Rebecca received the Northwestern Kellogg School of Management Certificate in Finance. Rebecca’s practice focuses on intellectual property procurement and counseling as well as supporting client implementation of emerging technologies. THE NEBRASKA LAWYER

that grew up in a paper environment demanded photocopies of cases from the reporters. The lack of technology during this time led to obvious inefficiencies, such as spending hours at a copy machine. However, there was also simplicity in the practice. For example, briefs filed in federal court were hand delivered to the clerk of the court prior to closing for the day at 5 pm.

Key Emerging Technologies A brief explanation of key emerging technologies is instructive before turning to the impact of these technologies to the

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JULY/AUGUST 2019

TECHNOLOGY AND THE CHANGING PRACTICE OF LAW legal practice. In an article published in Forbes magazine, Bernard Marr, a leading author and strategist on AI and Big Data, explains artificial intelligence and machine learning, including the difference between the concepts that are often used interchangeably. Marr explains: “Artificial Intelligence is the broader concept of machines being able to carry out tasks in a way that we would consider ‘smart.’ And, machine learning is a current application of AI based around the idea that we should really just be able to give machines access to data and let them learn for themselves.”1 The surge in applications for AI and machine learning is due to the mass computing power now available. In addition, AI relies upon neutral networks – computer systems that classify information in ways similar to the human brain. Greater volumes of data provide greater predictability to the probability-based system. As more businesses utilize AI-based systems, the legal profession will be impacted.

1) AI and Innovation – the USPTO Symposium In January of this year, the United States Patent and Trademark Office (“USPTO”) held a symposium of top thought-leaders and organizations to discuss the implications of AI on intellectual property protections and systems.2 The U.S. Patent law system is grounded in the intellectual property clause of the U.S. Constitution. “The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”3 The core of inventorship is conception, as is more fully described in the U.S. Patent Laws and through case law.4 The key principle, however, is mental dominion over the invention. In other words, an “inventor” is one who controls the intellectual pursuit of an idea and contributes the ingenuity to bring a concept to fruition.5 With this framework, how do patent practitioners begin to unwind AI-enabled inventions? The discussion lead by the USPTO elevates the conversation, and their recent guidance on directed patentability of software inventions related to AI is instructive.6 Example 39 describes the patentability of an invention directed to training a neural network for facial recognition.7 The invention in Example 39 focuses on a process of providing more enhanced human facial recognition, but the example falls short of addressing any issues related to inventorship. In the end, the AI-enabled inventions may be found patentable from a subject-matter perspective, but patent practitioners may still grapple with correctly identifying inventorship. In the end, patents are only awarded to human inventors.

2) AI and Human Resources Recent uses of AI in the human resources realm raise important new employment law considerations. Organizations are starting to use AI as a method of screening applicants for open positions. About four years ago, HireVue began integratTHE NEBRASKA LAWYER

ing AI into its candidate interview platform. HireVue uses proprietary voice recognition software and facial recognition software in combination with a ranking algorithm to identify candidates that most resemble a predetermined ideal candidate. The ideal candidate is a composite of traits triggered by body language, tone, and key words gathered from analyses of the existing best members of a particular role.8 Companies looking to reduce time to hire and eliminate bias may view these AI-powered systems as a key driver. However, the systems are still prone to bias. Amazon recently announced the elimination of its AI-based interviewing process, finding the system discriminated against women.9 In addition, a number of states are exploring laws that would restrict AI-based systems for applicant screening.10 Federally, Congress is currently debating the Algorithmic Accountability Act of 2019 directing the Federal Trade Commission “to require entities that use, store, or share personal information to conduct automated decision system impact assessments and data protections impact assessments.”11 This legislation, if enacted, would require employers to test their algorithms and remedy any inaccurate, unfair, biased or discriminatory results. While this is a snapshot of the activities in the United States, international activity is likely to have U.S. impact given the global nature of today’s economy.12

3) AI and Cybersecurity The growing reliance on massive amounts of data and the analysis of that data creates a unique challenge for cybersecurity. Cybersecurity organizations that boast a 100% safe environment are creating a false sense of security for implementers. Recent commentary acts as a warning to companies that are heavily reliant on AI for cybersecurity, suggesting “. . . for general AI, failures [in security] have a fundamentally different impact. A single failure of a superintelligence system may cause a catastrophic event without a chance for recovery. . . Every security system will eventually fail; there is no such thing as a 100% secure system.”13 Today, apart from prevention, cybersecurity experts are designing systems for early detection of a breach and response plans that enable speedy recovery from the breach.14 One challenge associated with current cybersecurity systems is that they are trained based upon past breach activity. However, nearly 10 million new malware are created every month. It is virtually impossible to stay ahead of the malware advancements with a historical approach. Instead, by utilizing AI in combination with historical information, new cybersecurity programs can provide predictive analytics to help identify new malware that would otherwise go undetected. The legal framework related to cybersecurity is becoming increasingly complex. Significant coverage of the European Union’s “General Data Protection Regulation”15 has many JULY/AUGUST 2019

TECHNOLOGY AND THE CHANGING PRACTICE OF LAW multinational organizations scrambling for compliance. A year after its adoption, enforcement has been spotty, at best, questioning the true impact of the regulatory scheme.16 U.S.-based regulation is coming. California’s IoT Security Bill SB-327 goes into effect on January 1, 2020.17 The bill sets forth specific security protocol for internet-connected devices sold in California. The devices must have unique passwords or require users to create unique complex passwords. While the scope of the SB-327 is state-specific, many companies will be forced to make all devices compliant with California’s new law. The areas listed above - innovation, human resources, and cybersecurity – are just examples of the potentially vast application of AI into business. The legal framework related to these applications continues to be reactive versus proactive. Legal practitioners, regardless of practice setting, must understand where AI is being implemented and what the legal impact of that implementation may be – even without clear precedent or guidance. In a comment to the Nebraska Rules of Professional Responsibility, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits as risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”18

Technology in Law Practice Apart from the impact of client use of emerging technologies such as AI, the legal profession must also grapple with technological implementation in the practice of law itself. More and more on-line and self-help tools are available for potential clients. In addition, in-house legal departments are leading the way toward greater efficiency by automating routine and repeatable tasks such as bill processing and contract generation. These efficiencies are a necessity for in-house departments constrained by human and financial resources. These efficiencies will also have the effect of creating greater demands on outside counsel to deliver greater efficiencies for client benefit. The antiquated model of the billable hour will continue to come under attack as more technology tools are available to automate certain legal services. Most practitioners are familiar with the current self-help legal resources. LegalZoom and Rocket Lawyer are two such resources with template driven platforms for activities such as estate planning, business formation, and contract generation. Both sites provide for connectivity to “vetted” legal counsel admitted to practice in the relevant jurisdiction.19 Perhaps out of fear or preservation of the traditional legal practice, state bar associations are instituting challenges against such on-line platforms utilizing the unauthorized practice of law rules to shut down such platforms.

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TECHNOLOGY AND THE CHANGING PRACTICE OF LAW Under the Nebraska Rules of Professional Conduct, “(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. . . (b) A lawyer who is not admitted to practice in this jurisdiction shall not. . .(2) hold out to the public or otherwise represent that the lawyer is admitted to practice in this jurisdiction.”20 Utilizing this framework, the Nebraska Supreme Court halted the operation of a website selling eviction law presentations.21 This approach to shutting down on-line resources has some commentators calling on other ethical considerations for a change in the admission to practice framework. In an article published by Forbes in May of 2018, the author proffers that the state bar’s limitation of legal tech services has the effect of limiting the public’s access to affordable legal services.22 While this tension may stall the proliferation and effectiveness of on-line self help legal tools, the tension should not limit the legal professions adoption of technologies that will provide greater efficiency and drive value for those consuming legal services.

Endnotes

Legal analytics is and will continue to be a growing part of legal advice and counsel. Both LexisNexis and Thomson Reuters have implemented data driven analytics to provide smart research for legal practitioners. These smart analytics can provide powerful information to help shape and guide legal strategies to answer the historically unanswerable question – “What is the client’s likelihood of success in a particular matter?”

10 See,

As more routine and labor-intensive tasks are automated, such as discovery and routine document generation, the traditional law firm model will be challenged. First, the demand for efficient and cost-effective delivery of legal services will require a reevaluation of the traditional billable hour model of measuring value. Technology and data analytics will be key drivers in understanding the value of certain legal services to clients. Second, law schools do not traditionally teach students how to practice law. Curriculum is knowledge based and provides a framework on how to think like a lawyer. As entry level tasks are automated, the legal practice must find new ways to mentor and educate newer lawyers how to practice law and be a strategic and trusted advisor to those seeking legal advice. In sum, lawyers are ethically bound to stay up to date on the advancements of technology and their application to clients and the practice of law. The tension between the automation of routine tasks and the billable hour model will continue to challenge the lawyer’s and the entire practice of law’s view of the scope of practice and the value delivered to those seeking legal services. Coordination among law schools, legal practitioners, the state bar, and law makers must be anticipatory, rather than reactive, to keep the law profession relevant.

THE NEBRASKA LAWYER

1 2

3 4

6 7

Bernard Marr, What is the Difference Between AI and Machine Learning, Forbes Magazine (Dec. 6, 2016).

The agenda for the conference call be found at https://www.uspto. gov/sites/default/files/documents/AIconference-agenda_012919. pdf; For USPTO Director Iancu opening remarks visit https:// www.uspto.gov/about-us/news-updates/remarks-director-iancuartificial-intelligence-intellectual-property. U.S. Constitution, art. I, § 8, cl. 8.

See., e.g. MPEP 2137.01(II) (stating “[t]he threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor.”) See e.g. Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed. Cir. 1986) (stating “conception is the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.” ) 84 Fed. Reg. 4 (Jan. 7, 2019).

January 7, 2019, UPSTO Guidance on Subject Matter Eligibility at Example 39. For more information, visit www.hirevue.com.

Jeffrey Dustin, Amazon Scraps Secret AI Recruiting Tool That Showed Bias Against Women, Reuters (October 9, 2018). e.g. Illinois Bill HR 3415 (restricting use of zip codes and race in applicant screening); Washington Bill HB 1655 20192020; Massachusetts Bill H.2701.

11 Algorithmic

Accountability Act of 2019, S._________, 116th Congress, 1st Session (2019).

12 See,

e.g. the European Industrial Policy on Artificial Intelligence, approved in January of 2019, found at http://www.europarl. europa.eu/doceo/document/A-8-2019-0019_EN.html (directing EU member states to prevent or minimize algorithmic discrimination).

13 Roman

A. Yampolskiy, Artificial Intelligence Safety and Cybersecurity: A Timeline of AI Failures (Oct. 26, 2016) found at https://arxiv.org/abs/1610.07997

14 See,

e.g., Naveen Joshi, Can AI Become Our New Cybersecurity Sheriff?, Forbes Magazine (Feb 4, 2019).

15 Regulation 16 Cf.

(EU) 2016/679 (May 25, 2018).

The Focal Point blog Enforcement and Penalties Around the Globe (April 11, 2019) (discussing recent enforcement of the GDPR).

17 California

Bill SB-327. A corresponding data privacy bill is also set to go into effect on January 1, 2020 and will have nationwide implications for business doing business in California and elsewhere.

18 Nebraska

Rules of Professional Responsibility § 3-501.1 Cmt 6 (amended June 28, 2017).

19 www.legalzoom.com; 20 Nebraska

(2).

www.rocketlawyer.com

Rules of Professional Responsibility § 3-505.5 (a), (b)

21 State

ex.rel. Comm’n of Unauthorized Practice of Law v. Hansen, 834 N.W.2d 793,798-99 (Neb. 2013).

22 Mary

Juetten, Unauthorized Practice of Law Claims Threaten Access to Justice, Forbes Magazine (May 8, 2018).

JULY/AUGUST 2019

feature article

Defining Nebraska’s State Breach Notification Statutes’ Encryption Safe Harbor by Robert L. Kardell,

Since South Dakota passed its data breach notification law last year through South Dakota S.B. 62, all 50 states now have enacted legislation regarding data breach notification. Many state statutes have safe-harbors for incidents such as information found in law enforcement databases,1 data covered under other federal statutes,2 data acquired pursuant to a search warrant,3 data downloaded in the normal course of business, and data which is exfiltrated, but was taken in an encrypted form without an encryption key.4 However, few state statutes actually define the safe harbor encryption standards to which companies must adhere to meet the statutory exception. For example, Nebraska’s exception is as follows:5 Encrypted means converted by use of an algo-

Technically, then, one could meet the exception in the statute by substituting one letter for another—similar to a Jumble puzzle in the newspaper. After all, encryption is defined as:6 [a] message, referred to as plaintext, is encrypted using an encryption algorithm – a cipher – generating ciphertext that can be read only if decrypted

A Brief History of Encryption

Robert L. Kardell

There are many types of ciphers, e.g. substitution, rotation, and transposition—just to name a few. As a bit of background, one of the oldest methods of rotation ciphers used to scramble messages was named the “Caesar Cipher” after Julius Caesar. The Caesar Cipher rotates the letters of the message by 3 in the Roman alphabet. Thus, an “a” would become a “d” and an “m” would become a “p”, etc. This became known as a Rot 3 (rotation of the alphabet by 3 places).

Robert (Bob) L. Kardell, Former FBI, MBA, CPA, CISSP, CFE, CFF, is a former FBI agent, with 22 years’ experience with the FBI. Now in private practice, Kardell provides transactional representation for C-Suite executives and businesses, and also partners with financial institutions and mid to large size business and in-house counsel to defend cyber investigations, proactively approach cybersecurity attacks, protect trade secrets, prepare for cyber policy audits and other applications such as FFIEC audit reviews, review online banking policies, FinCEN reports, and KYC policy reviews, and breach notification policies. THE NEBRASKA LAWYER

rithmic process to transform data into a form in which the data is rendered unreadable or unusable without use of a confidential process or key. Data shall not be considered encrypted if the confidential process or key was or is reasonably believed to have been acquired as a result of the breach of the security of the system;

A substitution cipher is simply the substituting of one letter for another, but not necessary in a set rotation. Take, for instance, the cipher and substitution of the letters in the first row with the letters in the second: abcdefghijklmnopqrstuvwxyz zyxwvutsrqponmlkjihgfedcba

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DEFINING NEBRASKA'S STATE BREACH NOTIFICATION STATUTES' ENCRYPTION SAFE HARBOR in 2017. Not only have computers become faster, but the techniques for breaking encryption keys have become better.

Using the above: You had better leave Becomes: BMG TZW YVHHVI PWZFV A transposition cipher is simply moving the letters in a sentence around to form another sentence: On a long lonesome highway east of Omaha

State Statutes

Can become: Ah a mofo tsaeyawh gihemos enol gn olano (backwards) These types of ciphers are very simplistic by today’s standards. Modern encryption techniques use computers to generate mathematical algorithms to encrypt and obfuscate messages. There are many encryption techniques and software, but the techniques used by computers just a few years ago are now considered obsolete because they can be broken easily with today’s computers. Today’s encryption standards are set by the National Institute of Standards and Technology (NIST). NIST began studying encryption and issuing standards in the 1970s. Throughout the years, NIST has issued encryption standards. One of the first standards was the Data Encryption System (DES). DES was the standard for many years, but when it became apparent in the 1990s that DES could be broken by the rapid advancement of computer power and speed, NIST began looking at other techniques and soliciting input from academia and the private sector. The process culminated when several groups proposed a number of new encryption standards and algorithms. NIST eventually chose two techniques for the new standard. The current approved algorithms are Triple-DES (a technique of running DES over data three times which was not really a new technique so much as a new use of an old technique) and Advanced Encryption Standard (AES). There were a number of techniques offered by academia and the private sector and several are equally difficult to break. Even though someone may not be using a specified standard, the data is not necessarily unprotected. There are also numerous techniques that are easy to break and many that become easier each time an advancement in computers takes place. The strength of any encryption technique is based on two things – the size of the key used to encrypt the data (the longer the better) and the number iterations the data is required to undergo. DES only used a 56-bit encryption key and performed 16 iterations of encryption. DES can now, however, be decrypted using standard computers. For illustration purposes, DES was broken in 56 hours in 1998; 22 hours in 1999, and 25 seconds THE NEBRASKA LAWYER

The current encryption techniques recommended by NIST require a minimum key length of 128-bit. There are even algorithms which use keys up to a key length 1024-bit, but 128-bit key is the recommended minimum. Longer keys increase the complexity of the decryption exponentially.

Several states include encryption as an exception to the notification requirements, such as “if any of the data elements are not encrypted, redacted, or otherwise altered by any method or technology in such a manner that the name or data elements are unreadable”7 or “when the name and data elements are not encrypted.”8 Many more states include encryption in the definition of breach such as, “[b]reach of the security of the system means the unauthorized acquisition of unencrypted computerized data that compromises the security, confidentiality, or integrity of personal information maintained by an individual or a commercial entity.”9 But, only a few states, primarily Massachusetts, Rhode Island and Washington, actually define the encryption standard objectively to provide direction to businesses. Reviewing the state statutes of Massachusetts, Rhode Island, and Washington, two define the encryption key to be used (128-bit, Massachusetts10 and Rhode Island11) and one refers to the standards set by NIST (Washington12). Of the other 48 states, several refer to “transformation of data through the use of an algorithmic process into a form in which there is low probability”13 of reading or decrypting the data, but the vast majority do not even attempt to define what encryption standard to use. For example: Ariz. Rev. Stat. § 18-545 (3) " Encrypted" means use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without use of a confidential process or key;… Haw. Rev. Stat. § 487N-1 “Encryption” or “encrypted” means the use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without the use of a confidential process or key; … However, note that Iowa has recently amended Iowa Code § 715C.1 5 to provide: “Encryption” means the use of an algorithmic process pursuant to accepted industry standards to transform data into a form in which the data is rendered unreadable or unusable without the use of a confidential process or key.” JULY/AUGUST 2019

DEFINING NEBRASKA'S STATE BREACH NOTIFICATION STATUTES' ENCRYPTION SAFE HARBOR Washington, one of the few states to include an objective standard, includes the following language:14 For purposes of this section, "secured" means encrypted in a manner that meets or exceeds the national institute of standards and technology (NIST) standard;

And finally, Massachusetts defines encryption as the following:

Thus, the standard will automatically be revised each time NIST alters or amends the standards. Currently, NIST will formally retire 3DES/Triple DES in 2023. Once 3DES is retired, businesses in the State of Washington will need to ensure their encryption meets or exceeds the AES encryption standard. The benefit of this statute as well is that the state need not alter its defined term “encryption.” By referencing the NIST standards, not only is the length of the encryption key standardized, but the method of encryption, the number of iterations, the process through which the text is encrypted, is all defined and explained by the NIST standard. Rhode Island defines encryption as the following: “Encrypted” means the transformation of data through the use of a one hundred twenty-eight (128) bit or higher algorithmic process into a form in which there is a low probability of assigning meaning without use of a confidential process or key. Data shall not be considered

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to be encrypted if it is acquired in combination with any key, security code, or password that would permit access to the encrypted data.

“Encrypted” transformation of data through the use of a 128 bit or higher algorithmic process into a form in which there is a low probability of assigning meaning without use of a confidential process or key, unless further defined by regulation of the department of consumer affairs and business regulation. Although both define encryption as requiring a 128-bit key, the method, iterations, and many other standards are left undefined and unresolved. Thus, a one-pass encryption algorithm using a 128-bit key would technically suffice to meet the minimum required by the statute, but the encryption may be readily broken or perhaps not obfuscate the data in a manner to ensure its security. Although there remain gaps in the statute, which Massachusetts and Rhode Island most likely did not intend, the objective standard of a 128-bit key is still much more definitive and provides more guidance to business than the subjective standards of the majority of other states.

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DEFINING NEBRASKA'S STATE BREACH NOTIFICATION STATUTES' ENCRYPTION SAFE HARBOR

Reconsideration of the Nebraska Statute If we now revisit the Nebraska Statute regarding the safe harbor for encrypted data: Encrypted means converted by use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without use of a confidential process or key. Data shall not be considered encrypted if the confidential process or key was or is reasonably believed to have been acquired as a result of the breach of the security of the system … In consideration of the discussions above we can now see the limitations in the description. “An algorithmic process” can be virtually any computerized or mathematical process to convert data. The process could be the use of a now retired cipher, the DES standard proven many times to be susceptible to brute force attacks, rainbow table attacks and other attacks. Businesses would be best protected if the business were to use algorithmic processes which meet or exceed NIST standards. Courts may ultimately decide that NIST publications set minimum business standards and reasonable consumer standards. Failing to advise clients to adopt these standard or only adopting minimum statutory standards may leave clients exposed. The phrase “transform data into a form in which the data is rendered unreadable or unusable without use of a confidential process or key” does little to further define the standard to which a business should adhere. Some of the most ancient methods outlined above create unreadable data without a confidential process or key; but, if a business is truly to defend the information it has collected on its clients, the bar should be higher.

hard drive on a laptop, although it can stop a casual thief, it will not stop someone from removing the hard drive and accessing the data through another computer. The password will prevent the access of the hard drive directly on the laptop, but it does not transform the data into a non-readable format. Additionally, once the thief has access to the hard drive, if he or she discovers the credentials of the cloud-based repository, he or she would have access to all of the taxpayer information. Same scenario - but now the CPA is using an older drive encryption software that transforms the data into unreadable format, but uses DES encryption technology. An adept cyber hacker could run either a brute force attack or rainbow tables against the 56-bit key. Assuming even a limited modern computer, the hacker would have access to the hard drive in a short amount of time. Although the DES standard would technically meet the minimum requirements of the statute, the information would still be accessible in due time. Finally, if the CPA encrypted the hard drive with Microsoft’s Bitlocker, which uses the AES encryption technology (or any of the other AES enabled drive protection software programs), the data would meet the requirements of the Nebraska Statute. The data would be rendered unreadable (assuming the password was not on a sticky note on the keyboard), but would also be inaccessible even with a brute force attack as AES is exponentially more secure. Every company needs to review the encryption standard they use to protect their data and the data of their customers to ensure adequate protection. The algorithm used should at least be a 128-bit key and should adhere to the minimum NIST requirements. All encryption is not equal, and courts may not accept your definition of encryption.

Endnotes

A practical example of data protection is the program supplied by Microsoft to protect hard drives—Bitlocker—and compare that to a hard drive protected with a password or DES encryption. To demonstrate the difference, I will offer the following scenario:

Cal Rev. Stat. § 1798.82. (i) (1)

Neb. Rev. Stat. §87-802(1)

A tax accountant carried a laptop home to work on tax returns during tax season. The laptop contained the returns of 1000 clients and saved credentials to access cloud storage where 1000 additional returns were stored. On the way home, the CPA stopped at a convenience store. While inside, the laptop was stolen out of the car.

Mo. Rev. Stat. § 407.1500 (9)

Neb. Rev. Stat. §87-802(1)

4 5

Cal Rev. Stat. § 1798.82. (e) Neb. Rev. Stat. §87-802(1) Neb. Rev. Stat. 87-802(3)

6 https://en.wikipedia.org/wiki/Encryption 8

Neb. Rev. Stat. §87-802 (3)

10 Massachusetts 11 Rhode 12 Was.

If the hard drive on the laptop were protected with a password, the theft of the laptop would not meet the safe harbor provisions of the Nebraska Statute. A password to access a

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Gen Laws Ch. 93H, §1(a)

Island SECTION 11-49.3-3

Rev. Code §19.255.010(7) “encrypted in a manner that meets or exceeds the national institute of standards and technology (NIST) standard or is otherwise modified so that the personal information is rendered unreadable, unusable, or undecipherable by an unauthorized person.”

13 W. 14 (7)

Va. Code §46A-2A-101(3)

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feature article

The Admissibility and Ethics of Social Media Evidence

by Prof. R. Collin Mangrum

The explosion of the sources of electronic social media evidence (“ESM”) presents novel evidentiary and ethical issues for attorneys and courts. ESM evidence commonly refers to internetbased electronic social networking sites that require an individual to join, accept, or reject a connection with another. ESM sites share four common features: (1) they are interactive, internetsourced applications; (2) they include user generated text, digital photos and other forms of data driven online messages; (3) they provide online social networking purposes by connecting the user’s profile with others; and (4) they permit users to select profile pages, levels of privacy, and the type of personal information the user chooses to make available to others. ESM websites include Facebook, YouTube, WhatsApp, Instagram, Twitter, Linkedin, Snapchat, and many other forms of ESM. This note provides brief answers to fourteen questions related to some evidentiary and ethical issues associated with ESM evidence. 1. The first question is whether a judge may privately initiate or view ESM of a party, witness or counsel in a pending matter?

Prof. R. Collin Mangrum Prof. R. Collin Mangrum, Yossem Professor of Law, Creighton University School of Law. Prof. Mangrum received degrees from: B.A. 1972, Harvard University; J.D. 1975, University of Utah School of Law; B.C.L., 1978, Oxford University; S.J.D., 1983, Harvard University School of Law. THE NEBRASKA LAWYER

The ABA Model Code of Judicial Conduct Model Rule 1.2 provides that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and shall avoid impropriety and the appearance of impropriety.” This rule provides a cautionary warning against a judge viewing ESM of the parties, witnesses and counsel involved in a pending case. The ABA Model Code of Judicial Conduct Model Rule 2.9(A) specifically warns: “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter …”1 The ABA Committee on Ethics and Professional Responsibility Formal Opinion 478 opines: Model Code of Judicial Conduct Model Rule 2.9(C) states: A judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Comment 6 of this rule makes it clear that the “prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”2 Opinion 478 further explains: a “judge must avoid … using any ESM site to obtain information regarding a matter before the judge in violation of Rule 2.9(C).” On-line research to gather information about a juror or party in a pending or impending case is independent fact research that is prohibited by Model Rule 2.9(C).”3

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THE ADMISSIBILITY AND ETHICS OF SOCIAL MEDIA EVIDENCE media profile or website of a party or witness, a lawyer is subject to the same standards as when requesting any other information in the hands of a third person.

ABA Formal Opinion 462 provides: A judge who has an [ESM] connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to or at the initial appearance of the person before the court. In this regard, context is significant. Simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.4

5. The fifth question is whether an attorney may examine an unrepresented party or witness’s “restricted” ESM?

2. The second question is whether an attorney may informally seek out, view or offer the ESM of parties, witnesses, jurors or judges? The general rule is that if the ESM is set for “public” or unrestricted viewing, then an attorney may view and preserve for evidentiary purposes the posting whether the author is a party, witness or a judge. The rationale is that the social media service is communicating with the party, witness or juror based on a technical feature of the particular social media, consistent with agreements between the provider and the subscriber. Lawyers should advise parties and witnesses to expect opposing counsel or their agents to view and offer the public portions of their social media profiles. If relevant material has already been posted, then the materials should be preserved by a screen shot or other means to avoid issues of spoliation. 3. The third question is whether there are any limitations on the viewing of publicly available ESM? The Code of Professional Responsibility implicitly limits repetitive viewing of an opposing party or witness’s ESM. Nebraska Rules of Professional Resp. 3-504.4 provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. A lawyer or agent who engages in repetitive viewing of even an individual’s social media profile could potentially violate 3-504.4 if the lawyer knew (1) the other person would receive notice each time the lawyer viewed the profile, (2) the lawyer had no other legitimate purpose for the repetitive viewing, and (3) the repetitive viewing rose to the level of harassment or intimidation. 4. The fourth question is whether an attorney may informally examine a represented party’s “restricted” ESM? Nebraska 3-504.3 prohibits a lawyer acting on behalf of a client from requesting permission to view a restricted portion of a social media profile or website of a person the lawyer knows to be represented by counsel in that same matter, without obtaining consent from opposing counsel, presumably through discovery. When requesting or obtaining information from a third person who has access to restricted portions of a social THE NEBRASKA LAWYER

Nebraska 3-504.3 restricts communications between a lawyer who represents a client and a person who is not represented by counsel. Under Nebraska 3-504.3 lawyers and their agents must provide sufficient disclosure to allow the unrepresented person to make an informed decision. The disclosure should include (1) the name of the lawyer requesting access or for whom the requesting person is acting as an agent, (2) the fact that the lawyer is acting on behalf of a client, and (3) the general nature of the matter in connection with which the lawyer is seeking information. The lawyer also must identify the client if disclosure is necessary to avoid a misunderstanding regarding the lawyer’s role. 6. The sixth question is whether an attorney may view restricted ESM posted by a judge, juror, or prospective juror. Nebraska Rules of Professional Conduct 503.5(a)(1,2) prohibits ex parte communications between a lawyer and a judge, juror, or prospective juror in a pending case. A lawyer may not request permission to view a restricted portion of a social media profile or website of a judge while the judge is presiding over a case in which the lawyer is involved as counsel or as a party. Nor may a lawyer seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge, nor request permission to view a restricted portion of a social media profile or website of a prospective or sitting juror. 7. The seventh question is whether an attorney may use deceptive means to gain access to ESM under any (exigent) circumstances? Nebraska Rules of Professional Conduct 3-504.1 requires counsel to be truthful in statements to others. Subparagraph (a) prohibits an attorney from making “a false statement of material fact or law to a third person.” Nebraska Rules of Professional Conduct 3-508.4(c) separately prohibits an attorney from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” These provisions would prohibit an attorney from engaging in any form of deception to gain access to the restricted portion of a person’s social media profile. This prohibition covers “pretexting” and other forms of trickery through which the person seeking access to a restricted portion of a social media profile pretends to be someone other than himself or herself to “friend” someone on Facebook to gain access to restricted information is prohibited. The Colorado Supreme Court in In Re Pautler,6 made JULY/AUGUST 2019

THE ADMISSIBILITY AND ETHICS OF SOCIAL MEDIA EVIDENCE it clear that even “exigent” circumstances will not provide an excuse for gaining deceitful access to restricted ESM. In Pautler, a deputy district attorney posed as a public defender to convince a murder suspect to turn himself in to law enforcement authorities. The attorney argued that he was protecting the public through his actions because the suspect already had confessed to multiple killings and was still at large. In affirming the discipline imposed on Mr. Pautler for the deceitful action, the court clarified that lawyers “must adhere to the highest moral and ethical standards, even in circumstances in which they believe that lying serves the public interest.”7 In Disciplinary Counsel v. Brockler,8 the prosecutor in a murder trial sought to talk with an alibi witness in his professional capacity, but she would not talk. The prosecutor thereafter created a fictitious ESM account claiming to be the woman rival of the alibi witness. The prosecutor, in his fictitious role, lied about her relationship with the accused to induce a jealous response and weaken her resolve to remain an alibi witness. When the deception became apparent, the state bar conducted a disciplinary action for the ESM deception. The parties stipulated that the prosecutor had violated Professional Rules of Professional Conduct 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The commission refused to carve out an exception for “prosecutorial investigation deception.” The Commission

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suspended the prosecutor’s license for a year because counsel falsified an identity and provided false information that may have induced false testimony. Subordinate lawyers and nonlawyers performing services for the lawyer must be instructed that they are prohibited from using deception to gain access to a restricted portion of a social media profile or website on the same level as the attorney. 8. The eighth question is whether an investigative officer may search a suspect’s smartphone for ESM incident to an arrest? The United States Supreme Court in Riley v. California,9 held that police may not search digital information, such as that contained on a cell phone, without a search warrant because an accused enjoys a reasonable expectation of privacy in the contents of a cell phone.10 9. The ninth question is what ESM is discoverable from opposing party? The short answer is that all nonprivileged relevant ESM is discoverable through traditional discovery proceedings. For example, in Moore v. Miller,11 in a federal case that involved an alleged unlawful arrest, the court held that relevant information pertaining to a party’s claims or defenses that may be contained on social networking sites is formally discoverable through interrogatories, deposition, and request for production of documents.12

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THE ADMISSIBILITY AND ETHICS OF SOCIAL MEDIA EVIDENCE 10. The tenth question is whether ESM is discoverable based upon a broad (fishing expedition) discovery request? Most courts will not approve a request for a “fishing expedition” of all ESM from the parties without any relevancy limitations.13 One court, in denying a broad discovery request, explained: Simply placing their mental and physical conditions at issue is not sufficient to allow [Defendant] to rummage through [Plaintiffs'] social media sites. Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a brightline rule that such conditions allow defendants unfettered access to a plaintiff's social networking sites that he or she has limited from public view.14 The requesting party must demonstrate a good faith basis that a relevant depiction in a social media exists, potentially as determined by earlier discovery such as answers to interrogatories or answers given in a deposition.15 Most courts will not require a party to share his log-in or password information that will enable an opposing party to rummage through the opponent’s Facebook at will.16 The following is an example of a narrower discovery request that was allowed: 1) postings by Farley that refer or relate to the accident in question; 2) postings that refer or relate to emotional distress that Farley alleges he suffered as a result of the accident and any treatment that he received therefor; 3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges here;

The Stored Communications Act (“SCA”), 18 U.S.C. § 2701(a)(1), (b), with certain enumerated exceptions, prohibits an ISP provider from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”18 The courts have generally ruled that ESM materials, including Facebook, MySpace, Twitter, UTube are within the protection of SCA.19 Under the SCA ESM that are configured “private” are not accessible to the general public and are protected. Section 2702(b)(3) provides a “lawful consent” exception permitting disclosure of “publicly” posted materials by an ISP provider. This “lawful consent” exception, permits a provider to disclose a post configured by the user to be “public” or nonrestricted.20 This permission to access “public” postings does not apply simply because the posting was made to a significant number of “friends.”21 Even where an ISP provider may be subpoenaed for “public postings,” a provider may resist “fishing expeditions.” The court in Fawcett v. Altieri,22 explained: In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.23 The SCA does not necessarily preclude a state from enforcing a nongovernmental entity’s civil or criminal subpoena that is lawful under state law.24

4) postings that refer or relate to physical injuries that Farley alleges he sustained as a result of the accident and any treatment that he received therefor;

12. The twelfth question is whether ESM is subject to the original writing rule? ESM qualifies as a “writing” within the meaning of the Federal Rule of Evidence 1001. The original form of the ESM should be preserved, either by preserving the source (such as a cell phone), or a screen shot of the exhibit that would be proffered to avoid an original writing objection. For example, the court in U.S. v. Bennett,25 refused to admit testimony of what a government agent viewed on a GPS mapping of ship’s route because the government had not preserved the “original,” but rather attempted to orally testify about what they saw on the GPS system.

5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by Farley; and 6) postings or photograph that reflect physical capabilities that are inconsistent with the injuries that Farley allegedly suffered as a result of the accident.17

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11. The eleventh question is whether a party may subpoena an ESM third-party internet service provider (ISP”) for ESM materials stored by them?

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THE ADMISSIBILITY AND ETHICS OF SOCIAL MEDIA EVIDENCE 13. The thirteenth question is how are ESM Exhibits Authenticated under Rule 901? The threshold requirement that physical evidence be authentic is satisfied if there is evidence “sufficient to support a finding” that the item is what its proponent claims.26 This “threshold” level of admissibility for ESM, may be established by (1) admission;27 (2) firsthand knowledge;28 (3) contextual distinctiveness;29 or (4) a discovery response.30 14. The fourteenth question is what are the consequence of failing to preserve relevant ESM evidence? Courts will impose sanctions for failing to preserve relevant ESM evidence. For example, in Gatto v. United Air Lines, Inc.,31 a personal injury action, the defendant sought discovery of plaintiff’s social media accounts. Rather than producing the ESM, the plaintiff deactivated the account and destroyed the ESM. The court criticized the spoliation: “Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty.”32 Similarly, the court in Scott v. IBM, Corp.,33 listed the types of sanctions potentially available for spoliation of ESM evidence:

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RLR@mattsonricketts.com 402-873-6664 or 402-475-8433

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Potential sanctions for spoliation: dismissal of a claim or granting judgment in favor of a prejudiced party; suppression of evidence; an adverse inference, referred to as the spoliation inference; fines; and attorneys’ fees and costs.34 Also, in Mosaid Tech. v. Samsung Elect.,35 Samsung failed to preserve and produce e-discovery materials related to highly technical patent litigation, in part, by failing to place a “litigation hold” or “off switch” on document retention policy concerning emails. The court explained: “Unless and until the parties agree not to pursue e-discovery, the parties have an obligation to preserve potentially relevant digital information.”36 The court explained that spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”37 The court approved sanctions and a spoliation instruction.38 In U.S. v. Suarez,39 the Government failed to produce electronic text messages between agents and a cooperating witness who testified. The Defense sought the messages under Rule 16 of the R.Crim.P., but the Government destroyed the evidence. The Government lied about the spoliation, suggesting “unintentional” destruction. The court identified as the factors for determining the appropriate sanctions as follows: (1) The degree of fault; (2) The degree of prejudice suffered; and (3) is a lesser sanction that will avoid substantial unfairness and serve to deter such conduct by others in the future.40 The court gave a spoliation instruction.41 Allied Concrete v. Lester,42 provides a significant warning for attorneys considering destroying relevant ESM. In Allied Concrete the plaintiff filed a wrongful death action for the death of his wife from personal injuries sustained in an automobile accident.43 The defense during discovery asked for screenshots of plaintiff’s Facebook page, specifically a screen shot of a Facebook page following the death of his wife depicting plaintiff holding a beer case while wearing a T-shirt emblazed with “I ♥ hot moms.” Plaintiff’s counsel advised his paralegal to have Lester “cleanup” his Facebook page because “[w]e do not want any blowups of this stuff at trial.”44 The paralegal followed instructions by email and the plaintiff deleted 16 photos from his Facebook page and deactivated the Facebook account. Plaintiff’s counsel denied that any of the requested Facebook pages ever existed and that he had given any instruction to delete the Facebook pages. Defense’s expert, at great cost, was able to recover the deleted Facebook pages and instructions. The trial court sanctioned Plaintiff’s counsel in the amount of $542,000 for misconduct and plaintiff in the amount of $180,000, the cost defense incurred in uncovering the deletions. The trial court also gave a spoliation jury instruction. Despite the sanction and spoliation instruction, the jury

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THE ADMISSIBILITY AND ETHICS OF SOCIAL MEDIA EVIDENCE awarded $6,227,000 in damages for the wrongful death award, apparently, in part, in response to defense’s aggressive tactics “upon Lester's credibility and character.”45 The sanction, spoliation instruction, and jury award were upheld on appeal.46 The prevalence of ESM evidence requires that counsel be aware of the ethical and evidentiary issues surrounding ESM evidence. The above brief answers to common questions hopefully will aid in that effort.

Endnotes 1

ABA Model Code of Judicial Conduct Model Rule 2.9(A).

ABA Comm. On Ethics & Prof’l Responsibility, Formal Op. 478, Analysis of Hypothetical #3, December 2017.

4 5 6 7 8 9

22 Fawcett

v. Altieri, 38 Misc. 3d 1022, 1025–29, 960 N.Y.S.2d 592, 595–98 (Sup. Ct. 2013).

23 Fawcett

v. Altieri, 38 Misc. 3d 1022, 1025–29, 960 N.Y.S.2d 592, 595–98 (Sup. Ct. 2013).

26 Nebraska 27 State 28 U.S.

Rule of Evidence 901.

v. Cisz, 2011 WL 59645618 (Ariz. Ct. App. 2011).

v. Gagliardi, 506 F.3d 140 (2d Cir. 2007)(Testimony from a participant on an on-line chat); Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007)(Authentication provided by one of the participants who printed the screen from her computer).

In Re Pautler,47 P.3d 1175 (Colo. 2002).

Disciplinary Counsel v. Brockler, 145 Ohio St. 3d 270 (2016). Riley v. California, 134 S.Ct. 2473 (2014).

29 Campbell

v. State, 382 S.W.3d 545 (Tex. App. 2012); Tienda v. State, 358 S.W.3d 633 (Texas Crim. App. 2012); U.S. v. Grant, 2011 WL 6015856 (A.F.C.C.A. 2011)(Facebook messages); U.S. v. Simpson, 152 F.3d 1241 (10th Cir. 1988); Dickson v. State, 175 Md. App231, 927 A.2d 32 (2007)(Inside knowledge).

v. California, 134 S.Ct. 2473 (2014).

v. Miller, 2013 WL 2456114 (D. Colo. 2013).

v. Miller, 2013 WL 2456114 (D. Colo. 2013) at *2.

v. Callais & Sons LLC, No. CIV.A. 14-2550, 2015 WL 4730729, at *4 (E.D. La. Aug. 10, 2015), citing Davenport v. State Farm Mut. Auto. Ins. Co., No. 11–CV–0632, 2012 WL 555759 at *1 (M.D.Fla. Feb. 21, 2012)(quoting Fed.R.Civ.P. 26(b)(1)); Ogden v. All–Star Career Sch., No. 13–CV–0406, 2014 WL 1646934 at *1 (W.D. Pa. April 23, 2014)(holding that discovery request seeking complete access to the plaintiff's social networking activity was “far beyond the scope of discovery authorized by Rule 26”); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D.Cal.2012)(same).

30 Romano

v. Steelcase Inc., 30 Misc. 3d 426, 907 N.T.S2d 650 (Sup. 2010)(Discovery response of Facebook and MySpace documents); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp. 1146 (C.D. Cal. 2002)(Affidavit that documents received in response to discovery); Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881 (9th Cir. 1996)(Authentication established by opponent’s response in discovery).

31 Gatto 32 Gatto

14 Johnson

v. PPI Technology Services, L.P, No. 11–CV–2773, 2013 WL 4508128 (E.D.La. Aug. 22, 2013) (Knowles, MJ).

33 Scott 34 Scott

15 Fawcett

v. Altieri, 38 Misc. 3d 1022, 1025–29, 960 N.Y.S.2d 592, 595–98 (Sup. Ct. 2013) (“the motion … to compel the production of social media accounts of … is denied with leave to renew after the completion of depositions”).

v. United Air Lines, Inc., 2013 WL 1285285.

v. United Air Lines, Inc., 2013 WL 1285285 at *3.

v. IBM, Corp., 196 F.R.D. 223, 248 (D.N.J.2000). v. IBM, Corp., 196 F.R.D. 223, 248 (D.N.J.2000).

35 Mosaid 36 Mosaid 37 Mosaid

16 Farley

v. Callais & Sons LLC, No. CIV.A. 14-2550, 2015 WL 4730729, at *4 (E.D. La. Aug. 10, 2015).

38 Mosaid

17 Johnson

v. PPI Technology Services, L.P., No. 11–CV–2773, 2013 WL 4508128 (E.D.La. Aug. 22, 2013); (Knowles, MJ). See also, Farley v. Callais & Sons LLC, No. CIV.A. 14-2550, 2015 WL 4730729, at *4 (E.D. La. Aug. 10, 2015).

Tech. v. Samsung Elect., 348 F. Supp. 2d 332(D.N.J. 04). Tech. v. Samsung Elect., 348 F. Supp. 2d 332(D.N.J. 04). Tech. v. Samsung Elect., 348 F. Supp. 2d 332(D.N.J. 04).

Tech. v. Samsung Elect., 348 F. Supp. 2d 332 (D.N.J. 04).

39 U.S.

v. Suarez, 2010 WL 4226524 (D. N.J.).

41 U.S.

v. Suarez, 2010 WL 4226524 *10 (D.N.J. Oct. 21, 2010).

40 U.S.

v. Suarez, 2010 WL 4226524 (D. N.J.).

42 Allied Concrete Co. v. Lester,

18 The

Stored Communications Act (“SCA”), 18 U.S.C. §§ 2702(a)(1), (b).

43 Lester

285 Va. 295, 736 S.E.2d 699 (2013).

v. Allied Concrete Co., 83 Va. Cir. 308 (2011), aff'd in part, rev'd in part, 285 Va. 295, 736 S.E.2d 699 (2013).

19 Crispin

v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 973– 74 (C.D. Cal. 2010)(Quashing subpoenas for Facebook and MySpace “private” messages). See also Viacom Int'l Inc. v. Youtube Inc., 253 F.R.D. 256, 265 (S.D.N.Y.2008) (holding that SCA prevented Viacom from accessing YouTube “videos that [users] have designated as private and chosen to share only with specified recipients”); Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 667–69 (D.N.J. 2013)(“Accordingly, the Court finds that non-public Facebook wall posts are covered by

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Inc. v. Superior Court, 4 Cal. 5th 1245, 1266–91, 417 P.3d 725, 739–56 (2018).

v. Bennett, 363 F.3d 947 (9th Cir. 2004). See also In U.S. v. Levin, 546 F.2d 658 (1977) (Content of obscene films cannot be explained without accounting for the original); State v. Martin, 198 Neb. 811 (1977)(Oral testimony of the contents of a taped recording not admissible without playing the original).

In Re Pautler,47 P.3d 1175 (Colo. 2002).

13 Farley

21 Facebook,

25 U.S.

Nebraska Rules of Professional Conduct Section 3-504.3.

12 Moore

Inc. v. Superior Court, 4 Cal. 5th 1245, 1266–91, 417 P.3d 725, 739–56 (2018).

ABA Comm. On Ethics & Prof’l Responsibility, Formal Op. 462, February 21, 2013.

11 Moore

20 Facebook,

24 Facebook,

ABA Comm. On Ethics & Prof’l Responsibility, Formal Op. 478, n. 9, December 2017.

10 Riley

the SCA. Because Plaintiff in this case chose privacy settings that limited access to her Facebook wall to only her Facebook friends, the Court finds that Plaintiff's Facebook wall posts are covered by the SCA.”).

44 Allied

Concrete Co. v. Lester, 285 Va. 295, 302, 736 S.E.2d 699, 702 (2013).

45 Allied

Concrete Co. v. Lester, 285 Va. 295, 306, 736 S.E.2d 699, 704 (2013)(“ This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for Lester and anger towards the Defendants.”).

46 Allied

Concrete Co. v. Lester, 285 Va. 295, 302, 736 S.E.2d 699, 702 (2013).

JULY/AUGUST 2019

THE NEBRASKA LAWYER

JULY/AUGUST 2019

THE FUTURE ISN’T ALWAYS BRIGHT:

Failing to Plan is Planning to Fail The only thing that doesn’t change is change.

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feature article

Counting on a Client-Supported Legal Experience by Patrick M. Patino

Trusting a client to help you help them changes the paradigm of legal representation from one where you’re there to save an incapable client to one where you’re there to empower a supported one. In order to achieve such a result, you have to set clear expectations from the onset. You have to inform the client of what you are going to expect from them and what they can expect from you. After all, the best teams function when the team members know what he or she is tasked with. Nothing is worse than two people completing the same task. It is inefficient. In the legal field, inefficiency is costly. Your client does not like seeing the time entry on the bill for two people completing the same task. Likewise, a client should be discouraged to see his or her money going towards tasks that he or she could be completing. It is time that attorneys start utilizing clients more to provide support for their own cases. The stereotype is that clients often do not know what the attorney representing them has

I like to say that the law is the law, but it is how a client feels during representation that can be the true difference between success and failure. The closer a client can be to the nitty gritty of their case, the more likely they are to experience buy-in. If you trust them to drive the case, to a certain extent, then they’ll feel heard and reciprocate that trust. With technology, leveraging clients to provide direct support can be easy, cost-effective, and pretty straightforward. Consumer behavior studies suggest that younger generations prefer self-help tools. At the same time, these consumers desire communicating and building relationships with the businesses and professionals they trust to provide a product or service. Human intuition is one thing that Artificial Intelligence cannot replicate. Technology, in a way, frees people up to interact more. When choosing which technological tools to implement in to your practice, the first question you will want to answer is what problem you are trying to solve. There is a lot of cool technology out there, but a particular technological tool may not be beneficial to your particular practice area, your typical client base, or increase the profitability of your firm.

Patrick M. Patino Patrick Patino is an Associate Attorney at Koenig│Dunne PC LLO in Omaha. He graduated with honors from the University of Illinois College of Law where he was awarded the prestigious CALI Award for Excellence in Bankruptcy and Small Firm Practice. While in law school, he focused primarily on consumer and business bankruptcy, culminating in research analyzing the complex Chapter 11 Bankruptcy system in Nebraska. He is experienced in Chapter 7, 11, 12 and 13 bankruptcy law and debt workouts. THE NEBRASKA LAWYER

done in their case. Often, the client can feel like the situation is happening to them because they are not an active participant.

Here are some simple tech tools that you could implement to empower your client to support you: 1. Web-based Questionnaires. Your client knows his or her date of birth, age of oldest minor child, date of accident, etc. You can setup a questionnaire or series of questionnaires where the client provides relevant dates and information for his or her case. You, in turn, can then use this data to open files, draft letters, prepare pleadings, generate representation agreements, etc. The sky is the limit. No longer do you have to

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COUNTING ON A CLIENT-SUPPORTED LEGAL EXPERIENCE 3. Real Time Collaboration Tools. The traditional oldschool model of legal practice was that you mailed a client a copy of a draft pleading for review. Alternatively, you could meet with the client to review the document. A more updated model is emailing the client a PDF/Word Doc version of the document and request comments. Now, there are tech tools where you can partner with the client to prepare, edit, and finalize documents in real time. You can accomplish this during a phone call, video conference, or chat. You reduce inefficient ping-ponging of work product. Clients feel more invested in their own case because they have been able to actively participate in their case. (Examples of products available: Microsoft Teams - https://products.office.com/en-us/business/teamwork, Dropbox Paper - https://www.dropbox.com/paper, & Google Docs, Sheets & Slides - https://www.google.com/docs/about/).

occupy your legal assistant’s time with manual data entry. You are increasing your labor force without adding to overhead. It builds greater capacity to spend time building relationships with the client instead of managing stacks of paper and onerous processes. (Examples of products available: formstack - https://www.formstack.com/ & Typeform https://www. typeform.com/). 2. Cloud Storage. How many times have you had a client send a barrage of emails with attachments? Spoiler Alert Email was not designed to be a document management system. With a well-designed cloud-based document management system, the client has 24/7 access to the documents and information he or she has provided. Instead of having to organize and manage email attachments (or worse paper documents that you have support staff scan and index), you can create and share folders, showing a client exactly where to upload a document. Most clients are perfectly capable of saving and uploading a PDF to a cloud storage system. If you want tax returns in a specific folder, you can create a taxes folder. Your client will feel a sense of contribution and collaboration by receiving this type of support. You are freed up to return that client phone call instead of trying to find that missing pay stub amongst your emails. (Examples of products available: Google Drive - https://www. google.com/drive/ & DropBox - https://www.dropbox.com).

4. Signing Apps/Software. This changes everything. It is becoming more and more acceptable for a client to sign a document electronically instead of with a wet-ink signature. Documents that used to take clients weeks to have signed can now be signed in minutes. No longer is a client bound by your office hours. No longer does a client have to leave work or trek across town to sign a document. Additionally, most tech signing apps instantaneously provide the signer with a copy once it is fully executed. (Examples of products available: DocHub - https://dochub.com/ & Docusign - https://www. docusign.com/).

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for the good of the profession

Going for the Good Life: Why It’s Hard. Steps to Get You There.

by Susan Ann Koenig

Why is it that lawyers suffer so much unhappiness and not as much of the good life as we’d hoped for? Here we are. We work in comfy offices. We collect respectable paychecks. We rarely have to work the night shift. Yet the high rates of depression, anxiety, and disappointment among lawyers is well known. Some of the reasons have always existed. Others have accelerated in the decades since I was admitted to the bar decades ago. We are intelligent and well-educated, yet many of us still struggle to find meaningful and joyful lives in our chosen career.

The Enduring Challenges

While alternative dispute resolution has expanded, the very nature in which we work means we often work against someone, which is far less fun that working with someone. Even when we are simply advising, we must constantly look at what might go wrong. “I’d hate to have your job,” someone once told me, “You constantly have to think of the worst things that might happen and the worst things that people might do.” I had no rebuttal.

Our Personalities

Our System, Our Role The American system of law was founded on being adver-

Susan Ann Koenig Susan Ann Koenig is of counsel at Koenig|Dunne, a divorce and debt resolution firm. She enjoys an encore career as an executive coach, speaker, and writer. Susan is the co-author with Angela Dunne of the book, Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect and presents annually to the NSBA Leadership Academy and has been coaching lawyers for over 15 years. You can watch her TEDx Talk, The Energy of Eulogy, at www.coachkoenig.com and read her blog NEXT at www. koenigdunne.com. THE NEBRASKA LAWYER

sarial. Plaintiff versus defendant. A verdict for or a verdict against. We go before the trier of fact with thoughts of there being a winner and a loser.

We know that 50 percent of our disposition toward happiness is genetic. Is it possible that those of us who chose law as a career are simply less likely to be happy? We made it into law school, graduated, and passed the bar exam. Each required some combination of being results-oriented, competitive, or goal driven. Maybe we just aren’t as happy as those who place greater attention on enjoyment and relationship. What we do know is that most lawyers are introverts. In The Introverted Lawyer, Heidi K. Brown identifies the challenges for introverts working in a world that often rewards the extrovert. The ability to be a rainmaker through networking or to have on-the-spot rigorous debates can leave the introverted lawyer feeling fatigued and less capable.

High Stakes Matters and Clients in Crisis Some of us get to work with clients in enjoyable situations. Launching a new business or finalizing an adoption is joyful. Beautiful memories for all.

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FOR THE GOOD OF THE PROFESSION But when your client is facing the loss of a home or spending life in prison, cake and balloons are nowhere to be found. A family being torn apart by an immigration determination or a family farm lost to bankruptcy is a heavy weight for lawyers to carry. A client may have a broken back or a broken heart, and working with the deeply suffering can bring down even the most optimistic.

The Billable Hour Business Model I’ve been reading about alternatives to the billable hour business model for over twenty-five years. Yet today the bulk of the business billed and compensation received is based on the billable hour. The expectation of meeting minimum hour requirements too often means long days, shortened weekends, and too few true vacations. The continued emphasis on the billable hour also means that we fail to be valued for our other contributions to the success of the firm or the profession. Time invested in mentoring an associate, improving communications with the paralegals, or listening to a stressed out litigator in the next office all come at a cost.

Laughing Matters For over a century humor has conveyed the contempt the public has for lawyers. Jokes about lack of integrity run the gamut from overcharging and procrastination to deception and thievery.

MEDIATION & ARBITRATION William M. Connolly

Alcohol Abounds In literature, film and television alcohol-imbibing lawyers are everywhere. The same is true in real life. A landmark study by the Hazelden Betty Ford Foundation and the American Bar Association published in 2017 found that one in three practicing attorneys are problem drinkers. Virtually any bar association event held after 5 p.m. includes alcohol. Before there is a dinner, a speaker, or an announcement of awards there is a happy hour. Our millennials aren’t drinking any less than their predecessors, even though their beer is craftier and their locales trendier.

The Increasing Challenges While challenges to lawyer life satisfaction have always existed, much has changed.

Generational Expectations Boomer senior partners and millennial associates can struggle with having their deeply held values honored by the other. Embracing change, leveraging technology, and not keeping a strict schedule of long work days are all crucial conversations to be had. For lawyers who may never have mastered the skills of management and for those who have not learned how to discuss difficult topics with ease, navigating generational differences is tough.

Depressing Debt

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Gone are the days when the typical law student could pay off student loan debts in modest monthly amounts over a ten year period. Today obligations can be as great as a mortgage payment and last as long, too.

The Hon. William M. “Bill” Connolly (Ret.) serves as a neutral party, providing Mediation and Arbitration services at Erickson | Sederstrom. His tenure as a Judge on the Nebraska Supreme Court for 22 years coupled with his 29 years of experience as a trial attorney, representing both plaintiffs and defendants, has uniquely qualified him to work toward themost effective resolution of your case.

In addition to the financial pressure, too often lawyers find themselves staying in jobs that add to their unhappiness, simply out of economic necessity. However, a study of 6,200 lawyers published in The George Washington Law Review in 2015 reported that the happiest lawyers were those in lower paid public service positions. High-income or partner-track positions in large prestigious firms had virtually no correlation to happiness.

More Competition The private practice of law has never demanded greater attention to the reality that we are not only pursuing our profession, we are operating a business. Up until a year before I started law school, the American Bar Association limited advertising to the basics of printed directories, letterhead, and business cards. It was believed that one’s reputation and trust mattered more.

BCONNOLLY@ESLAW.COM WWW.ESLAW.COM

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It’s not easy to have pride in your profession when the public doesn’t.

JULY/AUGUST 2019

FOR THE GOOD OF THE PROFESSION Today competition comes in all directions---Legal Zoom and Rocket Lawyer, the out-of-state firm coming to town, and the solo practitioner who just hung out a shingle. Marketing budgets, brands, online profiles, and social media campaigns all demand attention. For those of us who went to law school with the idealistic ambition of simply advocating for justice, this is especially tough.

Nonstop Incoming There once was a time when lawyers had regular breaks from the demands of each day. There was no checking for texts and email immediately upon awakening. Instead, overnight updates from calls were delivered in a stack of pink notes handed to you from your secretary which you could sort and prioritize for answering. When I was a law clerk, attorneys routinely took a midmorning coffee break---and no one brought a phone along. Instead they shared golf stories and asked for ideas about how to handle their latest legal conundrum. Lunches were phone free, too. Mail arrived once a day. One never had to worry that a client got news of a filing in their case before their lawyer did because there was no such thing as instantaneous online public access to court filings. Client questions, orders from the court, and settlement offers from opposing counsel still arrive in the old-fashioned ways of snail mail and phone calls. But now we add to that 24 hours a day of email and texts delivered via phones that we take to the bathroom and to our beds.

Expectations of Quick and Easy Americans have become an impatient lot. We think two days is an eternity to wait for Amazon to deliver our new waffle maker. How long will a client be willing to wait for an attorney to understand the facts, research the law, and answer a question about an international tech company’s rights to sell its software in Finland? Not that long. We want our movies on demand, our food delivered to our door, and our documents same day. The impatience of those we serve has never been higher.

Impossible Unavailability When every lawyer has a cell phone and every client knows they do, there is the expectation that an attorney can be reached at all times. We can leave the country and still be subject to the demands of an employer or a client. The expectation of reachability is a constant threat to any extended break where we might seek rest, rejuvenation, or relaxation. THE NEBRASKA LAWYER

Good Life Lawyers Group Forming Do you want to be the best you can be, both as a lawyer and in your personal life with family, friends and community? NSBA’s Law Practice Management Section is accepting applications for Good Life Lawyers. The goal is lawyers with greater overall satisfaction with personal and professional lives. Topics to be explored include courageous conversation skills, staying focused and productive each day, finding and staying in alignment with values, capitalizing on strengths, and increasing the flow and enjoyment of each day. The Omaha-based group will run for ten months and offer a monthly group session and ten hours of oneto-one coaching for each member with group facilitator and lawyer/coach Susan Ann Koenig. The group will include no more than 15 members and is open to any lawyer who’s been in practice at least three years. Cost is $295 per month. For full details and application instructions, see https://bit.ly/2R2C5QP or contact Lorrie Benson at NSBA at lbenson@nebar.com or 402-475-7091 ext. 126.

Good Life Lawyers: It’s not for everyone, just those savvy enough to seize the opportunity! Missing Connections Our ever-present technology takes us away from the restorative aspects of our life that help to bring calm and connection. When we are on Twitter following the latest political rant, we are not spending time taking a walk in woods or getting our hands in the dirt planting petunias. Even when we put our email on “Out of Office” auto reply, and no one is calling, our brains remain on high alert. We imagine our phone vibrating in our pocket, check for texts during family dinners, and sleep with our screens inches from our heads. We can and usually do take our phones everywhere, and their constant use can exacerbate the anxiousness that already accompanies many aspects of the legal practice. We read ads selling us the last thing we don’t need, see envy-inspiring images of vacations we’re not taking, and obsessively check the number of likes on our most recent post.

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FOR THE GOOD OF THE PROFESSION Even at the end of a day, looking at screens before bedtime can interfere with our sleep, adding exhaustion to the anxiety.

take an action in any direction. The minute we move we cease to be stuck.

Always Thinking, Never Reflecting

3. Stop Doing. Getting to that yoga class or steaming more broccoli can feel like one more “have to do” in a life that already feels out of control. Instead, take something off your plate before adding the kale.

The speed with which we accomplish much of our work has accelerated dramatically. Research no longer requires a trip to the law library. Editing a document no longer demands it being typed, marked in pen, and retyped. A client signature a continent away can be instantly attained digitally. The time saved in production has not left us with additional time for reflection. Instead we move on to thinking about the next problem presented. Where is the opportunity to ponder a creative solution, reflect on a client conversation, or dream about doing things differently? For those who allow their email to be open on their computer screen all day, the constant distraction of the latest message means constant disruption of our focus. We have to start thinking over and over again – Where was I? What was I thinking? Time escapes as we attempt to recapture our focus and we wonder why we billed only five hours while we worked for 10.

The Possibilities How could we make life easier? We know the advice that’s long been given. Get good sleep. Eat healthy food. Move your body. Unplug. Be grateful. But knowing what to do is different from knowing how to do it, and sustaining most things requires support. The good life in law may not be easy to get, but it’s definitely worth going for. Here are seven steps for starting: 1. See Where You Are. Take even a tiny bit of time to tell the truth. How is my health? How satisfied am I with my closest relationships? How much fun am I having? When we race through life it appears a blur. It’s not clear. Stop just long enough to look, to see, and to be honest. Focus follows clarity. 2. Start Where You Are. If we aren’t happy with where we are, it’s an invitation to move forward. Moving forward means moving. Somewhere. Anywhere. “I’m stuck” is another way of saying “I’m not moving forward.” We find a bit of momentum the moment we begin to

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Is it time to mentor a successor for that board position? Are you still loving your weekly lunches with your third-grade classmates? Can you let your associates make the revisions on the brief you reviewed? A “Stop Doing List” can be transformative. 4. Start Small. If getting to the good life were easy, we wouldn’t see the statistics we do on issues such as depression, substance abuse, and dissatisfaction with the profession. In One Small Step Can Change Your Life, Robert Mauer makes the compelling case that even the smallest change will have impact over time. Choose your focus and start small. 5. Seize What You Have. Our energy comes in many forms – time, money, and creativity among them. If you lack time, are you willing to part with money for a mown lawn? If your email is overwhelming, are you willing to use your creativity to consider a new way of managing it? Are you delegating to your competent paralegal all that you can? 6. Savor a Passion. Many lawyers sacrifice their full satisfaction at the office because they treat supporting their families or reducing their debts as high priorities. We don’t all get to go home at the end of the day feeling our work has a positive impact. It may be a passion outside of work that inspires our life. I’ve seen horse riding, trumpet playing, and salsa dancing transform the lives of those who found their day jobs less than thrilling. 7. Seek Support. Being a driven lot, many attorneys are accustomed to doing things on their own. Being vulnerable and asking for help can conflict with the ego that says, “I can do this!” We can do it until we can’t. Meanwhile, as Dr. Phil would ask, “How’s that working for you?” If you’re making every drive to and from day care, is it time to have a conversation with the other parent? Would you benefit from some mentoring on technology? When was the last time you asked someone to cover a meeting for you? Above all, call forth some self-compassion. You are not alone in the understandable struggles to have the life in our profession that you long for. It takes a boatload of guts and grit to be a lawyer. It takes some kindness to ourselves to have the good life. Trust that the good life as a lawyer is possible for you.

JULY/AUGUST 2019

plain language

Good Facts, Good Law, and Good Writing All Persuade by Kenneth F. Oettle

This is the second of a two-part series on what does and doesn’t persuade. The first column identified tactics that don’t work, such as adverbial intensifying (e.g., clearly, simply, ever) and overquoting from cases and statutes. This column discusses what does persuade. As a reality check, I asked my informal polling group what persuades. The following answers are representative: (1) “use compelling facts, ordered clearly and rationally, that lead the reader to a moral judgment in your favor” (this answer comes very close to home base); (2) “provide good law”; (3) “tell the reader in the first three paragraphs why you should win”; (4) “use nouns and verbs” (as opposed to adverbs and adjectives, which are editorials); (5) “be concise”; (6) “sound authoritative”; and (7) “don’t bad-mouth the adversary.” This last item is more about what not to do, but in this age of incivility, a respectful, low-key brief is like a breath of fresh air and thus is likely to have affirmative persuasive value.

Thematic Tactics Experienced attorneys know that good facts persuade. Facts are “good” if they cause the court to want to rule for you,either (a) to “do the right thing” or (b) to comply with the law. The court will almost always want to comply with the law because that’s its job and because it won’t want to get reversed. It will also want to do the right thing. A court will think that ruling for you is the right thing if the facts show that the other side deserves to lose, usually because it harmed your client (e.g., stole trade secrets) or because it failed to protect itself (e.g.,

Kenneth F. Oettle

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Editors: BRANDY R. JOHNSON, attorney, Governmental Law, LLC, Lincoln P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha

KENNETH F. OETTLE is senior counsel and chair of the writing program at Sills Cummis & Gross PC, in Newark, New Jersey. THE NEBRASKA LAWYER

neglected to safeguard the confidentiality of alleged trade secrets). The story of who did what to whom—the factual narrative—triggers the court’s response. Not surprisingly, when you have good facts, you tend to have good law. If facts cause a judge to feel that the other side deserves to lose, you can probably find a rule of law that favors you—because the law reflects what most people consider fair. We don’t tolerate unfair regulations or unfair laws, and we would not tolerate judges who continually make unfair judgments. Nor would the judges be happy with themselves. After all, who wants to do the wrong thing? The lesson from these observations is twofold. First, before beginning persuasive legal writing, know the facts. If you are charged with finding them, make sure you do a good job. If you are fed only a few facts and asked to summarize the law, get more facts if you can. Otherwise, you are less able to shape a story to accommodate facts that the other side will rely on, and you are likely to overlook cases that could help and to rely on cases that can be compromised by facts you don’t know. Second, work with the facts. Find the legal test and show how your facts satisfy it. Suppose, for example, that a bidder for a public contract proposes different equipment or different materials than the bid specifications require. The proposed deviation might even work better and cost the

If you are interested in submitting an article for the “Plain Language” column, please e-mail Liz Neeley at lneeley@nebar.com. 37

JULY/AUGUST 2019

PLAIN LANGUAGE government less, but it will invalidate the bid if the deviation is “material.”You have two ways to approach this issue: (1) show why the deviating equipment or materials are important to the contract (i.e., “material”); or (2) find cases in which similar deviations or lesser deviations were deemed material. Younger lawyers gravitate toward the latter: “We win because I have a case.” Experienced lawyers tend to work with the facts. They analyze the facts to show why the deviation is significant and thus material. The more closely one examines the facts, the less one needs to analogize with other cases because the fairness of the result becomes manifest.

Nonthematic Tactics Not only the facts and the law but also how you present them bears on persuasiveness. Organization persuades by delivering a clear message and by showing that you are confident and in control. This gives the reader faith in the brief and in you. Conclusion: get organized; use an outline. Brevity persuades because it puts the reader in a good mood (it’s number one on many judges’ wish lists); it makes your point accessible; and it suggests that your point is strong because you evidently have no fear of getting to it. Conclusion:

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Confidence

facts persuade.

. . . [b]efore beginning persuasive legal writing, know the facts. eliminate all bloat, whether weak argument, redundancy, or unnecessary words. Strip away packing that conceals the point and transform the reading experience from a chore to a pleasure. Trim your prose the way a guitarist trims fingernails that would otherwise scar the fingerboard—to the nub. Like other nonthematic elements of good writing, emphasis helps deliver the message. It presses the point through the membrane of resistance. It drives the point home, principally through the repetition of key facts (not conclusions) and by word placement—for instance, putting important words and phrases at the beginnings and ends of sentences and paragraphs. Precision hones the thought. By making sure that every word says exactly what you mean, you avoid ambiguity that can divert the reader from the point. Signposts that guide the reader include headings and subheadings, transitions, internal summaries, introductions to quotations, definitions of terms of art, and background facts that the reader needs for context. Provide these, and the reader will be grateful. Always ask yourself what the reader needs to know and wants to know. Rhythm (e.g., parallel construction) and sound (e.g., alliteration and assonance) enhance the reading experience, making the reader more receptive to your message and to you.

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Cleanliness shows respect for the reader and your argument. It not only avoids a bad impression but makes a good one. Conclusion: eliminate typos and mistakes in grammar, usage, punctuation, and citation form. Create vigor with an authoritative structure—a sequence of irrefutable statements of law and fact that lock the reader into nodding mode and a firm tone that’s neither strident (blatant, outrageous) nor timid (using seems or appears to excess). Forget the faux vigor of editorials (e.g., adverbs and ad hominems), which the reader knows to be biased.

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experienced attorneys know that good

The synergy of all these tactics produces clarity, which gets the point across and gives you credibility. If you are willing to be clear, then you probably aren’t hiding anything. Basically, you earn credibility by telling the truth clearly, crisply, and with conviction. The more credible you are, the more persuasive you are because courts need to rely on your presentation of facts, caselaw, and argument.

JULY/AUGUST 2019

tech corner

This content originally appeared on the Clio blog under the title “7 Legal Tech Trends to Watch in 2019,” by Joshua Lenon and Teresa Matich, on January 3, 2019.

The Top 7 Legal Trends for This Year and Beyond by Joshua Lenon and Teresa Matich

Every year, legal tech changes faster and faster. From new apps and services, to shifting client expectations, new regulations covering tech, and new implications for the practice of law, there’s plenty for lawyers and legal professionals to stay on top of. For the competitive, tech-savvy lawyer, here are seven law firm technology trends to watch—for the rest of this year, and as we look ahead to 2020. 1. The age of the client-centered law firm New technology brings new client expectations for every industry—including law firms. There’s plenty of opportunity here: The 2018 Legal Trends Report found that for most law firms, there’s a gap between what lawyers think clients want and what their clients actually want. For example, 57% of lawyers expect that their clients prefer to pay them in person, yet only 39% of them actually do. In fact 38% of consumers would prefer to make payments electronically through email or an online portal or website. Clients expect the same excellent service that they get from companies like Amazon from any business they interact with, so law firms that can provide instant communication, thoughtful service, and all-around client-centered experiences will stand out from the rest.

To get started with a client-centered approach in 2019, try thinking of things from your client’s perspective, communicating clearly and often, and using tech to streamline firm processes that affect client experiences. (Bonus: This last step will help make your firm more efficient and profitable as well.) 2. The platform-ization of legal tech With more and more legal apps and services becoming available for lawyers, platforms are becoming more and more important. Platforms provide a central place for the apps and services you use to connect, which means instead of wrestling with a number of different programs and risking error with duplicate data entry, you can use tools as needed and access all of your information from one powerful platform. Behind the scenes, platforms encourage those who develop legal tech tools to work together: By communicating via an Application Programing Interface (API), companies are better positioned to build something that’s greater than the sum of its parts. 3. The need to take care with online communication Lawyers have a duty to comply with professional ethics rules well beyond the office and the courtroom. This includes online life as well, and in 2019, the need for lawyers to be mindful of how they communicate online is more important than ever.



Joshua Lenon

Teresa Matich

Joshua Lenon is Clio’s Lawyer in Residence. An attorney admitted to the New York Bar, Joshua has worked extensively to educate lawyers on how technology can enhance their practices, while also teaching tech companies about the unique needs of legal professionals and organizations.

Teresa Matich is a Content Strategist at Clio, where she’s responsible for educating the legal industry on market trends, best practices, and important issues impacting law firms. In her spare time, she enjoys traveling, snowboarding, and traveling to snowboard.

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TECH CORNER Case in point: One former federal prosecutor in Louisiana was disbarred for inappropriate comments online, even though the comments were made anonymously. The decision read, “Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.” 4. Knowing when to use chatbots (and when not to) The use of both Artificial Intelligence and chatbots is on the rise in law firms, and laws about their use are starting to become more nuanced as well. For example, in California, there’s now a law that bans bots from misleading people into letting them believe the bots are real human beings. This speaks to the importance of knowing when to use a chatbot, and when not to. If you’re using a chatbot to gather information, to help clients (or potential clients) fill out forms, or in other instances where it’s clear to the site visitor that your bot isn’t human, there’s no need to worry about whether your chatbot use is on the right side of the law—and for these transactional interactions, your clients will appreciate the convenience of being guided through tedious processes. Just take care to ensure you’re not using a bot to “incentivize a purchase or sale of goods or services,” and save nuanced, critical conversations for real humans.

5. Stricter privacy laws With the implementation of the EU’s General Data Protection Regulation (GDPR) in 2018 and new privacy rules coming into effect in California in 2020, it’s clear that stricter privacy rules will likely be a growing trend in 2019 and beyond. For lawyers, staying up-to-date on changing laws and understanding what new rules mean for their duties will be key, especially when it comes to client confidentiality. Consider choosing vendors that are GDPR-compliant as a start, but above all else, make sure you’re aware of changing regulations in your jurisdiction, and alter your processes, if needed, to stay compliant. 6. Improving court technology Last year, when we asked lawyers and legal professionals about their predictions for the next 10 years of legal tech, several predicted improvements in court technology such as online filing in all courts, and the allowance of all court appearances by video conference. At least one of those predictions has already started to come true: In 2018, the Los Angeles Superior Court implemented mandatory e-filing, and by 2020, e-filing will be mandatory in all 254 Texas counties. For lawyers, this means an opportunity for easier online referencing. For example, the use of links to online sources. 7. Tech-supported diversity initiatives for law A 2018 study found that female partners still make 24% less than male partners in law firms on average. In other words, while there was plenty of light shone on inequality in 2018, and a number of changes made, there’s still room for improvement in the legal industry.

Experts You Can Trust

Large tech companies continue to support this change. For example, Microsoft continues to incentivize its preferred provider firms to diversify their leadership, and it celebrated the 10th anniversary of its law firm diversity program in 2018. Meanwhile, former ABA president Hilarie Bass announced in September that she would leave her leadership position at Greenberg Traurig to found the Bass Institute on Diversity and Inclusion, with a goal to advance gender diversity across industries.

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wellness brief

Want to Improve Lawyer Well-Being?

Change the Way We Teach Our Next Generation of Lawyers By Chris Aupperle, NLAP Director

Want to make strides in reversing the negative trends of lawyer wellness? Start with changing the way we educate our next generation of lawyers. That is the mission embraced by our two Nebraska law schools. When I graduated from Creighton University School of Law in 1992, the law school had little programing related to wellness and few conversations about lawyers affected by alcohol/drug use disorders, depression, anxiety and chronic stress (at least as best as my memory permits). It also seemed that law schools played a role in perpetuating some of the unhealthy responses to the stress and demands of our profession – not sufficiently empowering law students to acknowledge mental health or substance use struggles and at least passively (if not actively) embracing alcohol centered social events as the primary way to deal with stress. My friends who graduated from other law schools during this era have shared similar experiences with me. To be fair, I was certainly not a voice for change as a law student or young lawyer.

Unhealthy Law Students Become Unhealthy Lawyers A 2016 study of approximately 3,400 law students from 19 law schools revealed that law students are often affected by mental health conditions (primarily anxiety and depression) at rates above the general population.1 It is believed that untreated anxiety and depression contribute to the high rates of law student suicidal thoughts and attempts.2 The study further revealed that a significant number of law students were engaging in alcohol or drug use in an unhealthy manner. This was just not having a few too many drinks after finals, but on a consistent basis with negative impacts on the student’s personal and school lives. The negative impacts included blackouts, driving under the influence, physical injuries, thoughts about suicide while intoxicated and being sexually assaulted. Drug use by law students not only included the use of common street drugs like marijuana (25% of law students reported use in law school), but also the use of prescription drugs without a valid prescription by fourteen

Nebraska Lawyers Assistance Program

“The results of the study indicate that roughly one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/ or reported mental health challenges.” Suffering in Silence: Survey of Law Student Well-Being (2016). percent of law students. In other words, engaging in a felony before even getting through law school.3 Law students also reported a high resistance to getting help. The most common reasons cited for refusing to seek help where concerns that acknowledging their struggles and seeking treatment would affect their ability to get admitted to the practice of law, affecting their ability to get legal employment and the social stigma associated with substance use and mental health treatment.4 Unfortunately for these students, untreated alcohol/drug use disorders and mental health conditions generally get worse not better over time, if left untreated. The study revealed one other important insight into the impact law school was having on law students’ attitudes toward these issues. Students were asked if they were concerned about a fellow student’s mental wellbeing, would they encourage that person to seek professional help. First-year law students were more likely to encourage help-seeking behavior than third-year students.5 Law schools need to examine how the education of law students contributes to this attitude.

A Big Step Forward My interaction with both the University of Nebraska College of Law and Creighton University School of Law over the past two years tells me that our law schools have taken a significant and impactful step forward in the effort to change some of the unhealthy aspects of our profession. Both law schools have specific wellness programing at multiple touch points during a student’s law school career. It starts with

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WELLNESS BRIEF first-year orientation followed by multi-session 1L wellness programs. The professional responsibility classes also discuss the intersection of wellness and ethics. The law schools offer a host of resources including university provided counselors, mental health awareness week, and proactive stress management resources.

The two Nebraska law schools have accepted the challenge to be leaders in promoting law student and lawyer well-being. The law school administrators have specific training and education do identify and better serve students in need. They are not just reacting to students who are struggling but using proactive education and resources to improve a law student’s mental health and foster a help-seeking culture. Administrators from both Nebraska law schools serve on the Nebraska Lawyers Assistance Program (NLAP) Advisory Committee. This effort is not just directed by law school administrators and professors, but also law students. Students want to see law student and lawyer wellness improve and the law schools are identifying ways to empower their students to bring about change. The law schools have also enlisted NLAP’s assistance in this effort. In 2018, NLAP presented to law students on six different occasions. As a result, fifteen law students had interaction with NLAP – ranging from concerns about a present substance use or mental health issue, identifying resources to be proactive about stress management and how to communicate with a fellow student who was struggling.

NLAP Bridging Law School and the Bar NLAP also serves as the bridge for individuals between law school and the legal profession. Law students who have a past or present substance use or mental health disorder which is appropriately managed through treatment often seek guidance on how to best demonstrate their fitness to practice law when applying for admission to the bar. NLAP has also been enlisted by the Nebraska State Bar Commission to work with new admitted lawyers under the conditional admission rules.6 This process gives lawyers at risk for alcohol/drug use or mental health disorders additional guidance and support as they enter the profession. This process is conducted in a way that protects the confidentiality of the lawyers entering the bar through conditional admission. NLAP exists to help lawyers, judges and law students. If you have questions or want to learn more, please contact the Nebraska Lawyers Assistance Program (NLAP) at (402) 9578201 or caupperle@nebar.com.

Endnotes 1

Jerome M. Organ, David B. Jaﬀe & Katherine M. Bender, Ph.D., Suﬀering in Silence: The Survey of Law Student WellBeing and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ., Autumn 2016, at 121.

2 American

3 4 5 6

Association of Suicidology. Retrieved from https://www.suicidology.org/portals/14/docs/resources/ factsheets/2011/depressionsuicide2014.pdf on June 14, 2019. Organ, Jaffe & Bender, Suffering in Silence, p. 129-134, 136138. Id. at 140-141. Id. at 143.

See Nebraska Court Rule § 3-120. Conditional admission.

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

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court news

Lancaster County Hosts Night Court By Meghan Straub, Nebraska News Service

For years, night court has taken place across the country in areas such as New York and California. One local court hosted its first night court last month as a way to provide better access to the court system. The first of two planned night court sessions in Lancaster County Court took place on the evening of May 30 with the second session on June 27. According to the State of Nebraska Judicial Branch, the Lancaster County Court planned these sessions to “provide greater access to the justice system to those individuals that cannot miss work to attend regular court sessions without risking terminations of their employment” and will also provide

another opportunity for “individuals that watch children during regular business hours” to attend court. The cases being handled during night court are misdemeanor non-custody cases, misdemeanor warrants and pleas, felony non-custody docket calls or preliminary hearing waivers in felony cases and felony non-custody matters where the defendants will be pleading to charges that are being reduced to misdemeanor offenses. As people gathered for the first session on May 30, Lancaster County Court Judge Timothy Phillips said that he hopes increased self-promoting during the weeks leading up to the next session will help “bring in more people.” Even with a small crowd on May 30, Lancaster County Public Defender Paul Cooney said that he thinks the evening court session is valuable and would like to see it tried for a few months. “Tonight was not a fair representation of its usefulness,” he said. To help decide if the night court will continue, Lancaster County Attorney Pat Condon said, “We will talk with the court and see what kind of response we receive.”

Lancaster County Court Judge Tim Phillips discusses Night Court with prosecutors and defense attorneys between court client hearings.

For more information about the night court, visit the Supreme Court State of Nebraska website, https://supremecourt. nebraska.gov.

Self-Represented Litigation Committee Launches Nebraska Limited Scope Representation Toolkit Designed by judge and lawyer members of the Self-Represented Litigation Committee, the recently-launched Nebraska Limited Scope Representation Toolkit is intended to assist attorneys who are offering limited scope representation to potential clients. The toolkit is for use in civil matters in Nebraska trial courts and highlights ethics and procedural rules as well as best practices that relate to limited scope representation. It includes an overview of relevant rules, tips in the identification of suitable candidates for Limited Scope Representation, an attorney/client task list, forms, and sample letters. Use of the toolkit is a supplement to, not a substitute for, the attorney’s familiarity with the ethics rules and professional duties, and the attorney’s exercise of judgment in providing representation. This new resource is available on the Judicial Branch Website under the “Attorneys” section or in the Self-Help site under the “Limited Scope Representation” tab. View the Nebraska Limited Scope Representation Toolkit: https://supremecourt. nebraska.gov/sites/default/files/Self-Help/LSR_ToolKit_Final_for_web_6.5.19_1.pdf.

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COURT NEWS

Veteran’s Court Graduates Celebrate at UNL College of Law

Pandemic Preparedness Summit Hosted by Nebraska Judicial Branch

Three veterans of the US Army and one from the US Marine Corps spent Tuesday evening, May 28, 2019, graduating from the Lancaster County Veterans Treatment Court. Veterans were surrounded by family, veteran mentors, members of the legal community, and public officials.

Nebraska hosted a Summit on Pandemic Preparedness in late May, at the University of Nebraska Medical Center, home to the country’s largest biocontainment unit and which treated three Ebola patients in 2014. The Summit brought court leaders, public health officials, legislators, and executive branch officials together to start a collective conversation on how states need to plan and prepare for a pandemic, which often includes quarantines that raise many potential legal issues. Twenty-five states and three territories sent teams.

Graduate Corey Stark, whose family representatives included parents from California and siblings from Colorado and Hawaii remarked, “We have battle buddies here; we don’t have to jump out of the trench by our self.” In addition to his family, Stark’s support section included friends and fellow members of the culinary program where he is currently enrolled.

During the two-day program, small discussion groups worked through tabletop exercises designed to explore the potentially problematic aspects of isolation and quarantine law. The activities followed presentations from the Center for Disease Control, medical researchers, and legal experts. Tours of the Nebraska Biocontainment Unit, National Quarantine Center, iExcel VizHub, and the Chihuly Sanctuary were included. According to Chief Justice Heavican and others, the Summit was long overdue. Quarantine laws and statutes in many states have not been updated or tested since the influenza outbreak of 1918, which killed about 50 million people worldwide, including more than 675,000 Americans.

Volunteer Veteran Mentor Dr. William Jackson of the U.S. Air Force, gives remarks at Veterans Court graduation while Presiding Judge John Colborn looks on. The Court held their inaugural graduation ceremony and celebration at the Nebraska College of Law auditorium. Presiding Veterans Treatment Court Judge John Colborn hosted with guest speakers Chief Justice Mike Heavican, Major General Daryl L. Bohac, Dr. Todd Fleischer, and Veterans Advocate and Vietnam Veteran Jim Cada. The mission of the Lancaster County Veterans Treatment Court is to honor the service of Justice-system involved veterans by providing a rehabilitative program which combines intensive judicial supervision and treatment services to address veterans’ service-related experiences and enhances public safety by returning law-abiding and productive citizens to the community.

Justice Stephanie Stacy tests equipment at the iExcel VizHub during the tour.

Quarantined Ebola doctor Patrick LaRochelle with Justice Jeff Funke. THE NEBRASKA LAWYER

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COURT NEWS

Nebraska Supreme Court Holds Argument Session at Scottsbluff High School The Nebraska Supreme Court dedicated their 2019 Law Day arguments at Scottsbluff High School to late Justice John F. Wright. Wright died March 18, 2018, at the age of 72 before being able to return to his hometown for a high school argument session. According to local attorneys, Wright, who had served on the Scottsbluff School Board, would have greatly appreciated the court session. The arguments were held in the auditorium the morning of April 29, 2019. Arguments began with an introductory program for students where Judge Kris Mickey provided background information on the court systems, and Scottsbluff attorney Steve Olsen presented information on the background and purpose of Law Day.

Scottsbluff Attorney Steve Olsen welcomes the Supreme Court to Scottsbluff and provides students with background on Law Day.

March 18 marked the first time that the Supreme Court has held court arguments in Scottsbluff. This argument session and other high school argument events are part of a continuing effort by the Nebraska Supreme Court and the legal community to raise awareness of court processes and the importance of civics education to American society.

Justice Freudenberg fields question from a student following argument.

Court poses with RLOP students who travelled from Chadron State College to view Court arguments at Scottsbluff High School.

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legal community news Nebraska State Bar Foundation’s Daniel J. Gross Fund Daniel J. Gross was a prominent Omaha trial lawyer. Upon his death in 1958, he established a fund in his will “for the charitable and welfare purpose of active practicing Nebraska lawyers, their wives, widows, and children.” Over the years, the Daniel Gross Fund has assisted active lawyers and their families on numerous occasions. For example, the Fund has worked with the Nebraska Lawyers Assistance Program in providing funds for medical treatment on a confidential basis. Any active lawyer, or his or her family member, in need of assistance may apply to the Daniel Gross Fund. Doris Huffman, Executive Director of the Nebraska State Bar Foundation, is the contact person. She can be reached at the Hruska Law Center, 635 South 14th Street, Suite 120, PO Box 95103, Lincoln, NE 68509-5103, or by telephone at (402) 475-1042. All inquiries are strictly confidential.

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

Nebraska state bar FouNdatioN

correction

Editor's Note: The photo of the felt work-of-art that accompanied Susan Koenigs’s article in the May/June 2019 issue of The Nebraska Lawyer, Bringing Back Creative, was captioned incorrectly. The work pictured was made by Angela Dunne of Koenig Dunne, PC LLO.

Felt work-of-art made by Angela Dunne. THE NEBRASKA LAWYER

JULY/AUGUST 2019

letter to the editor Supplemental Update to "The Ethics of Working as the Sole Professional on a Family Law Matter in Nebraska" by Professor Kristen Blankley with the Passage of LB 595 (2019) Ladies and Gentlemen,

I read with interest Prof. Kristen Blankley’s article in the May-June issue of The Nebraska Lawyer (“The Ethics of Working as the Sole Professional on a Family Law Matter in Nebraska.”). In her article, Prof. Blankley states that a “lawyer/mediator would need to be an approved Parenting Act Mediator” in order to mediate issues regarding parenting time. This statement isn’t entirely accurate.

This issue was addressed in Nebraska Ethics Advisory Opinion for Lawyers No. 17-02, which addressed whether an attorney was “involved in proceedings under the Parenting Act” and therefore required to be an approved Parenting Act Mediator. According to this opinion: Therefore, the issue is whether the Requesting Attorney’s situation is one where he is “involved in proceedings under the Parenting Act.” The Requesting Attorney says he is not because there is no court involvement for his intervention. The Requesting Attorney is right if he acted before a

case was filed. If there already is a case filed, and the parties are trying to comply with the Parenting Act by developing a parenting plan before they are ordered into mediation, it is debatable whether the Requesting Attorney is “involved in proceedings under the Parenting Act.”

More recently, the Legislature just amended the Parenting Act to specifically exempt licensed attorneys from the requirement that they be approved Parenting Act Mediators if the parties agree to use the attorney as a mediator. Here’s the new language: 43-2938 (4). In lieu of qualifying as a mediator under subsection (2) or (3) of this section, an attorney licensed to practice law in the State of Nebraska may serve as a parenting plan mediator if the parties agree to use such attorney as a mediator.

LB595, Section 38 (2019). Very truly yours,

James Bocott Law Office of James C. Bocott, PC, LLO North, Platte, NE

Request for Letter of Interest for CAF Collection Counsel The Client Assistance Fund of The Nebraska State Bar Association (the Fund) was established under the authority of the Nebraska Supreme Court to assist claimants in recovering losses caused by dishonest conduct committed by lawyers while practicing law in Nebraska. If the Fund makes a payment to a client, the Fund may pursue restitution from the attorney through subrogation or assignment of claims. The Nebraska State Bar Association is requesting Letters of Interest from firms/attorneys interested in representing the Fund with the following terms: • Scope of Work: Evaluating the collectability of claims and pursuing collection for restitution. • Legal fees would be paid on a contingency fee basis. Letter of Interest should include the following: • Name of firm/attorney • Brief description of the firm/attorney and its qualifications • Brief description of services to be provided (must include the specifications above) • Proposed contingency fee arrangement All letters should be submitted by August 16, 2019. Submissions and questions should be directed to: Liz Neeley, Executive Director Nebraska State Bar Association 635 S. 14th Street, Ste 200 Lincoln, NE 68508 402-475-7091 Lneeley@nebar.com THE NEBRASKA LAWYER

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nlf news: Helping Lawyers Help People

16th Annual Greater Nebraska Golf Scramble a Success On June 14th, 48 golfers met at Wild Horse Golf Club in Gothenburg, NE, for the 16th Annual Greater Nebraska Golf Scramble. After the golfers ate lunch and warmed up, they hit the course to raise money for the Volunteer Lawyers Project. Approximately 300,000 Nebraskans, or 16% of the state’s population, are income-eligible for services from civil legal aid and legal service providers. In 2018, VLP and its network of volunteer lawyers helped nearly 7,000 persons access justice through direct case placement, limited representation at a Lawyers in the City walk-in clinic, assistance at one of five Self-Help Centers located in county courthouses across the state, and Nebraska Free Legal Answers www.ne.freelegalanswers.org, a virtual legal clinic that allows volunteers to do pro bono online, providing limited representation to low-income residents statewide.

The winners of the Championship flight: Larry Beucke, Elizabeth Lydiatt, Jack Besse and Craig Payne.

After the tournament, the golfers met in the clubhouse to thank the 42 law firms and companies that sponsored the tournament. We’d like to thank all the sponsors and golfers for their generous support!

The winners of the 1st flight: Brian Brislen, Dan Waters, Gage Cobb and Craig Martin.

Co-Sponsors • ABA Retirement Funds Program • Inspro Insurance • Lamson, Dugan & Murray, LLP • McGrath North Mullin & Kratz, PC LLO • Mercer Consumer • Smart Start, Inc. • Welsh & Welsh PC LLO

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• Ellick Jones Buelt Blazek & Longo LLP • Endacott Peetz & Timmer, PC LLO • Fair Law Office, PC LLO-Felicia Fair, Lawyer • Fangmeyer, Aschwege & Besse, PC • Fitzgerald Vetter Temple & Bartell • George G. Vinton, Attorney at Law • Goosmann Law Firm, PLC • Johnson Flodman Guenzel & Widger • Kutak Rock LLP • Lane & Williams, PC • Latimer Reporting • Lindemeier Law Office • McCarthy & Moore, LLP • McQuillan & Wendell, PC, LLO • Mike Kinney - Mediator • Mueller Robak LLC • NAI FMA Realty • Nebraska Court Reporters Association 49

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nsba news

NSBA Seeking Applications and Nominations for the 14th Annual Leadership Academy The Nebraska State Bar Association is pleased to announce the fourteenth annual Leadership Academy, designed to develop and nurture future leaders of the association and profession. Class size is limited to 25 participants in order to ensure a high quality of participation and instruction. The members of the class will participate in a mandatory day-and-a-half retreat on September 19-20, 2019, at the Carol Joy Holling Camp in Ashland as well as a wide range of seminars during the five-month academy starting in November. The Leadership Academy members will work closely with the current leadership of the association, past bar presidents, experienced lawyers and judges to explore relevant topics and to enhance individual leadership skills. Members of the academy will develop a public service project that will be highlighted at the next NSBA Annual Meeting. The academy is open to active, NSBA dues-paying members who will be in their third to fifteenth year of practice. Tuition of $500 covers the cost of all programs, meals, receptions, graduation dinner and printed materials. Many of the sessions receive CLE credit and will likely cover your 10-hour annual requirement. Individual participants are responsible for their own travel and personal expenses. Mileage and hotel reimbursement will be provided if you are required to travel more than 150 miles to attend a program session. Limited scholarships are also available and may be requested on the application form. An application form is on page 53, if you wish to apply to become a member of the Leadership Academy. If you would like to encourage a NSBA dues-paying member to participate in the Academy, you can nominate them. Fill out the nomination form, found on page 52, and a formal application will be sent to the nominee. Please return your completed nomination form by July 31, 2019, or your application form by August 21, 2019, to Sam Clinch, Nebraska State Bar Association, 635 South 14th St. #200, Lincoln, NE 68508 or email to sclinch@nebar.com. I and the Leadership Academy Steering Committee are excited about working with the future leaders of our association and profession and look forward to receiving your application. A decision regarding applicants will be made by August 28, 2019. Sincerely,

Important Leadership Academy Dates to Remember Application Process

• July 31, 2019 - Nomination form due

• August 21, 2019 - Application form due

• August 28, 2019 - Notification to successful applicants sent

• September 9, 2019 - Deadline to pay fee and submit photograph Mandatory Retreat

• September 19-20, 2019 - Get to know fellow Academy members with a day-and-a-half mandatory retreat. Leadership Academy Introduction at Annual Meeting

• October 10, 2019 - Here is a chance to meet NSBA leadership, Academy committee members and Academy alumni. Monthly Workshops • November 15, 2019 Leadership Skills - This program will encourage participants to identify and develop an understanding of the essential elements of leadership for lawyers. • January 10, 2020 Governance/Community Service - During this program, you will gain valuable insight on how to get involved in your community. You will also learn how your Bar Association runs, what its various functions are and how you can participate. • February 7, 2020 Legislative Session - This program will focus on the legislative branch of Nebraska government. • March 13, 2020 Interacting with the Media - As NSBA leaders, it is your responsibility to convey your profession’s message to the public. Learn how to reach out to the community and help develop an understanding of the profession. • April 3, 2020 Issues in the Court - This program will focus on the Nebraska judicial system and current issues facing the judiciary.

Linda R. Crump, Chair, Leadership Academy THE NEBRASKA LAWYER

JULY/AUGUST 2019

Julia K. Palzer

Kellogg & Palzer, PC, Omaha What was the one or two most important thing(s) you learned by participating in the Leadership Academy? How to organize my time and prioritize projects so that I have some peace of mind.

Sallie Dietrich

Nebraska Public Service Commission, Lincoln What was the one or two most important thing(s) you learned by participating in the Leadership Academy? I particularly appreciated having a chance to meet with members of state government and learn more about how each branch operates. Why do you think it is valuable for a lawyer to participate in the Leadership Academy (what would you tell someone who may be considering participating in the Leadership Academy)? As someone who went to law school out of state, the networking opportunity is invaluable. It's really great to spend time with people from other practice areas in a way where you're building real relationships.

Lindsay Belmont Koenig|Dunne, PC, LLO, Omaha

What was the one or two most important thing(s) you learned by participating in the Leadership Academy? There are so many opportunities for Nebraska lawyers to serve not only the legal community, but the community at-large. The Leadership Academy opened my eyes to how we as attorneys can get involved and make an impact. Whether it's getting involved in the NSBA, partnering with a state senator to propose legislation, sitting on a non-profit board, or improving our skills when speaking with the media, the Leadership Academy taught me that the privilege of being a lawyer is so much more than practicing law. Why do you think it is valuable for a lawyer to participate in the Leadership Academy (what would you tell someone who may be considering participating in the Leadership Academy)? I would absolutely encourage anyone interested in the Leadership Academy to apply. You will meet other lawyers throughout the state who are driven and willing to learn how to be effective leaders. The topics are relevant and practical, the people are great, and the information is invaluable. I always looked forward to attending the Leadership Academy sessions!

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Why do you think it is valuable for a lawyer to participate in the Leadership Academy (what would you tell someone who may be considering participating in the Leadership Academy)? Absolutely make the time to do this. You will get excellent attorney coaching and very practical advice on all areas of practice. The way the academy strategically walks you through all areas of the bar and our courts is logical, practical and crucial. You also make solid friendships to build on. Every firm should require their attorneys to apply for this academy and every solo-practitioner cannot afford to let this opportunity go by. It is certainly a fast track!

Michael Milone

Koukol & Johnson, LLC, Omaha What was the one or two most important thing(s) you learned by participating in the Leadership Academy? I learned: (1) how to improve my communication and listening skills with peers; and (2) the importance of courtesy and civility in the legal profession. Why do you think it is valuable for a lawyer to participate in the Leadership Academy (what would you tell someone who may be considering participating in the Leadership Academy)? It helps you grow closer to your colleagues and fellow lawyers from practice areas with which you might not otherwise have interacted.

Jaclyn N. Daake

Duncan, Walker, Schenker, Daake, P.C., L.L.O., Alma What was the one or two most important thing(s) you learned by participating in the Leadership Academy? Resources and reliability of the NSBA, the importance of collegiality. Why do you think it is valuable for a lawyer to participate in the Leadership Academy (what would you tell someone who may be considering participating in the Leadership Academy)? It is a remarkable experience to learn more about practitioners in our state. A chance to better know about our profession and our colleagues should never be passed up! JULY/AUGUST 2019

Leadership Academy

Nebraska State Bar Association Leadership Academy Nomination Form Due July 31, 2019

The following active, NSBA dues-paying attorneys are, in my opinion, current or potential leaders in our profession, the Nebraska State Bar Association and the community, with a demonstrated interest and ability to make additional contributions. (The Academy is open to NSBA dues-paying members who will be in their third to fifteenth year of practice.) (1) Name:__________________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ (2) Name:__________________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ (3) Name:__________________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ We will send your nominee(s) a formal application to apply for the Academy. We appreciate your discretion in keeping the names of those you have nominated confidential. Nominator Name:__________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ Please return this form on or before July 31, 2019 to: Sam Clinch, NSBA, 635 S 14th St. #200, Lincoln, NE 68508 or sclinch@nebar.com.

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JULY/AUGUST 2019

Leadership Academy

Nebraska State Bar Association Leadership Academy Application Due August 21, 2019

Name:__________________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ Firm/Employer:___________________________________________________________________________________ Position: _________________________________________________________ Number of Years in Practice:__________ Practice Area(s):___________________________________________________________________________________ _______________________________________________________________________________________________

Optional information to assist in achieving a representative class: Age: ____________ Race/Ethnicity: _______________________

Gender:______

(1) Please attach a written statement (100 words or less) describing why you want to be a member of the Leadership Academy. (2) Participants are expected to attend an overnight mandatory retreat, each of the sessions, and the graduation dinner. Are you willing and able to make this commitment? Yes ______ No ______ (3) (a) If accepted, I will find it necessary to seek scholarship assistance. Yes ______ No ______ (b) If accepted and I do not receive a scholarship, I will still be able to participate. Yes ______ No ______ (4) Please attach your resume for review. (Include any community or Bar Association activities.) List below any additional information you would like the Committee to consider when reviewing your application. _______________________________________________________________________________________________ _______________________________________________________________________________________________ (5) List two personal references, providing full names, addresses and phone numbers: _______________________________________________________________________________________________ _______________________________________________________________________________________________ I have completed this application and understand that in order to graduate from the Leadership Academy, I must attend the mandatory retreat and miss no more than one of the five monthly sessions. Signature:_________________________________________________________________ Date: __________________ APPROVED: Managing Partner or Supervisor:_____________________________________________________________ Please return this form on or before August 21, 2019 to:

Sam Clinch, NSBA, 635 S 14th St. #200, Lincoln, NE 68508 or sclinch@nebar.com. THE NEBRASKA LAWYER

JULY/AUGUST 2019

Leadership Academy

Nebraska State Bar Association Leadership Academy Scholarship Guidelines and Application

In considering the award of scholarship assistance, preference will be given to applicants who are members in good standing and who: (1) Have not previously received scholarship assistance from the Committee; (2) Are financially unable to attend otherwise; (3) By participation would improve the racial/ethnic diversity of the Leadership Academy; and (4) Are likely to continue their participation in the NSBA after the scholarship as been awarded. An applicant need not satisfy all the criteria specified above. The Committee, in making its recommendation, shall attempt to award assistance to individuals who can best demonstrate that success in the application process will further the goals of the NSBA. The Committee maintains the right to recruit applicants, without promise of reward, which may satisfy the criteria listed above. Name:__________________________________________________________________________________________ Address:_________________________________________________________________________________________ Phone: _________________________________________ E-mail:___________________________________________ Nebraska Bar Admit Date: ________________ Have you ever attended the Leadership Academy? Yes ______ No ______ Have you ever received a Leadership Academy Scholarship? Yes ______ No ______ Briefly state your professional goals and how attendance at this Academy will help you reach those goals: _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ I understand that the basis for the scholarship is financial need. I hereby make application to the NSBA Leadership Academy Committee for a scholarship based on the inability of being able to pay the full cost for me to participate in the Academy. Signature:_________________________________________________________________ Date: __________________ Please return this form with your application on or before August 21, 2019 to: Sam Clinch, NSBA, 635 S 14th St. #200, Lincoln, NE 68508 or sclinch@nebar.com.

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JULY/AUGUST 2019

Sponsored by:

$50/person

#_______ of tickets

Name(s): (please print)________________________________________ ___________________________________________________________ Phone:_______________ Email:_________________________________ ___ Check enclosed (payable to Nebraska Lawyer Foundation) OR Charge to: __ Mastercard

__Visa

__Discover

__ AMEX

Amount enclosed or to be charged:______________________________ Card number:________________________________________________ Security Code:__________ Expiration Date:__________ Mo/Yr Name on credit card:__________________________________________ Credit Card Billing Address: ___________________________________________________________ ___________________________________________________________

Senior Lawyers Section Young Lawyers Section

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Signature:___________________________________________________ Return to: Nebraska State Bar Association, Sam Clinch, 635 S 14th St. #200, Lincoln, NE 68508

JULY/AUGUST 2019

NEBRASKA STATE BAR ASSOCIATION AND NEBRASKA LAWYERS FOUNDATION LAWYERS FOUNDATION NEBRASKA STATE BAR ASSOCIATION AND NEBRASKA CONSOLIDATED STATEMENTS OF POSITION CONSOLIDATED STATEMENTS OF FINANCIAL FINANCIAL POSITION DECEMBER 31, 2018 AND 2017

DECEMBER 31, 2018 AND 2017 ASSETS

2018

2017

1,300,519 102,536 86,194 222,000 56,367 530,646 2,298,262

1,427,223 66,679 82,811 230,304 56,877 580,013 2,443,907

LONG-TERM INVESTMENTS, mutual funds

741,653

578,047

PROPERTY AND EQUIPMENT, net

162,385

161,702

3,202,300

3,183,656

61,243 193,932 861,877 1,117,052

99,127 171,769 896,938 1,167,834

CURRENT ASSETS Cash and cash equivalents Accounts receivable Promises to give Grants receivable Prepaid expenses Certificates of deposit Total current assets

TOTAL ASSETS

LIABILITIES AND NET ASSETS CURRENT LIABILITIES Accounts payable Accrued liabilities Deferred revenue Total current liabilities NET ASSETS Net assets without donor restrictions Board-designated - House of Delegates Reserve Undesignated Net assets with donor restrictions Time and purpose restrictions Client Assistance Fund Other time and purpose restrictions Total net assets

756,836 53,440

691,361 75,069

502,152 772,820 2,085,248

532,155 717,237 2,015,822

TOTAL LIABILITIES AND NET ASSETS

3,202,300

3,183,656

See accompanying notes to financial statements.

See complete Consolidated Financial Statements and Independent Auditors' Report at nebar.com/about.

THE NEBRASKA LAWYER

JULY/AUGUST 2019

NEBRASKA STATE BAR ASSOCIATION AND NEBRASKA LAWYERS FOUNDATION CONSOLIDATED STATEMENTS OF ACTIVITIES NEBRASKA STATE BAR ASSOCIATION AND NEBRASKA LAWYERS FOUNDATION DECEMBER 31, 2018 AND 2017

CONSOLIDATED STATEMENTS OF FINANCIAL POSITION DECEMBER 31, 2018 AND 2017

CHANGES IN NET ASSETS WITHOUT DONOR RESTRICTIONS Revenues Membership dues Contributions Special events revenue Direct benefits to donors Net special events revenue Program income Publications and label sales Registration fees Advertising Recovery of costs Grants Investment income Royalties and rebates Other income Net assets released from restrictions Total revenues

2018

2017

1,094,941 7,237 175,573 (66,768) 108,805 76,895 164,509 650,399 61,389 112,000 11,550 26,633 35,464 128 2,349,950 327,361 2,677,311

1,102,830 15,734 178,088 (69,104) 108,984 64,960 119,921 632,208 69,627 114,049 10,770 21,443 33,189 362 2,294,077 334,234 2,628,311

Expenses Program services Administration of Justice 420,187 Professional and practice development 1,225,498 Grants 10,690 Supporting activities Management and general 932,249 Fundraising 44,841 NEBRASKA STATE BAR ASSOCIATION Total expenses 2,633,465 AND NEBRASKA LAWYERS FOUNDATION Change in net CONSOLIDATED assets without donor restrictions 43,846 STATEMENTS OF ACTIVITIES DECEMBER 31, 2018 AND 2017 CHANGES IN NET ASSETS WITH DONOR RESTRICTIONS Revenues Registration fees 22,196 2018 Section dues 72,200 CHANGES NET ASSETS WITH DONOR RESTRICTIONS ClientINAssistance Fund investment income 9,162 (Continued) Promises to give 3,883 VLP Fund contributions 750 4 LSAT Scholarship Fund contributions 529 SOLACE contributions 125 Grants 244,096 Total revenues 352,941 Net assets released from restrictions (327,361) Change in net assets with donor restrictions

347,099 1,173,332 9,525 892,578 46,682 2,469,216 159,095

18,610 2017 68,800 12,009 82,061 2,340 5,967 205 229,232 419,224 (334,234)

25,580

84,990

69,426

244,085

NET ASSETS, beginning of year

2,015,822

1,771,737

NET ASSETS, end of year

2,085,248

2,015,822

CHANGE IN NET ASSETS

See complete Consolidated Financial Statements and Independent Auditors' Report at nebar.com/about.

See accompanying notes to financial statements.

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JULY/AUGUST 2019

Thursday, October 10, 2019 3:00 - 5:30 pm NSBA General Session 2019 Annual Meeting Embassy Suites, La Vista When race, class, religion, and gender collide, a conversation begins. More than 450 performances seen by more than 100,000 people nationwide. Sponsored by

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Don't Miss THE DEFAMATION EXPERIENCE A three-phase interactive diversity event. The Play, The Deliberation, The Discussion. The Play DEFAMATION is an old-fashioned courtroom drama. The premise is a civil suit: Ms. Wade, an African-American business owner, is suing Mr. Golden, a Jewish real estate developer, for defamation. What follows is a 75-minute riveting trial that "holds our prejudices and assumptions under a powerful lens, and does not let go except by way of an unsettling self-examination" The Deliberation After the most dramatic testimony, the judge tells the audience they are going to be the jury. A first poll is taken. The choices are for the plaintiff, the defendant, or undecided. The tally is announced. Then for 15 minutes, the judge leads the deliberation. Jurors stand to explain and advocate their reasons for their vote. When a consensus of views have been heard, the judge polls the audience again with only the option to vote for either the plaintiff or the defendant, and this final vote decides the outcome of the trial. The Post Show Discussion Immediately following the trial, a seasoned facilitator steps forward and invites the audience to stay for a post-show discussion. The purpose is not to re-litigate the case; the post-show is an opportunity for safe, open, honest and meaningful conversations about race, class, religion, gender, and the law.

JULY/AUGUST 2019

Volunteer Lawyers Project The Times, They are Changing: Pro Bono on the Go by Laurie Heer Dale, Volunteer Lawyers Project

The practice of law has been heavily impacted by advances in technology. From the dictaphone and standard typewriter to the computer and mobile phone, online legal research, fillable forms, and e-filing, to the more advanced online dispute resolution and artificial intelligence, this evolution in technology is changing the way law firms and courts do business. It’s also changing the way we do pro bono. If one of your resolutions for 2019 was to do more volunteer work, thanks to emerging technology, you are in luck! Through the American Bar Association’s Free Legal Answers, also known as Nebraska Free Legal Answers (NFLA), attorneys can answer questions submitted online, anytime.

Nebraska Free Legal Answers Nebraska Free Legal Answers is a virtual limited advice clinic that allows volunteers to do pro bono online—anytime and anywhere there is Internet access. Attorneys select the questions to answer. Qualified Nebraska residents can post up to three different civil legal questions each year. This program provides a convenient and rewarding way to do pro bono and greatly benefits all users, especially victims of the recent flooding. Visit www.NE.freelegalanswers.org to register and start doing online pro bono now.

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NFLA Award Presented to Nebraska Attorneys and Organizations The American Bar Association Standing Committee on Pro Bono and Public Service recognizes, annually, individual attorneys, law firms and law departments that have provided extraordinary pro bono services through ABA Free Legal Answers with their Pro Bono Leader award. Attorneys who answer 50 or more questions per year and firms/organizations that answer, collectively, 75 or more questions per year, receive the award. For 2018, this award was presented to four recipients in Nebraska: Answering more than 50 questions RACHAEL SMITH, Smith Law, PC, LLO RYAN SULLIVAN, University of Nebraska College of Law Answering more than 75 questions HUSCH BLACKWELL LLP UNIVERSITY OF NEBRASKA COLLEGE OF LAW Congratulations on your extraordinary efforts! We are incredibly grateful for your commitment to pro bono work for persons of limited means! Consider joining your colleagues in a healthy NFLA contest and be the next to receive the Pro Bono Leader award!

JULY/AUGUST 2019

Volunteer Lawyers Project Pro Bono Current Events

Legal Clinics

March, April and May were very busy months for pro bono events and awards, including the following:

Creighton Will Clinic, Friday, March 29, 2019

Law Student Graduates Honored for Pro Bono Service During May graduation ceremonies, Creighton University School of Law and the University of Nebraska Law College recognized the following students who provided free legal work for low income individuals. Students received certificates of appreciation from the Nebraska Supreme Court Access to Justice Commission and Nebraska State Bar Association. Students were applauded for their commitment to improving access to justice through contributions to law-related pro bono services.

University of Nebraska College of Law Kelsey Arends Dylan Bakken Shannon Bond Andrew Broadfoot Angela Choe Christopher Giitter Megan Heinzinger Damon Hudson Beth Levine Tyler McKeone Adam Onken Shannon Seim Rachel Snyder Amanda Wall Adam Werner

Creighton University School of Law Civil Law Clinic and pro bono students assisted 9 senior citizens to execute simple wills and power of attorney and healthcare power of attorney documents at Nemaha County Hospital in Auburn, Nebraska. This event was conducted in partnership with the Nebraska Department of Health and Human Services.

Creighton University School of Law

Edward Diaz John Farrell Christopher Felts Alexandra Fleming Kenneth Glodo III Francisco Gomez-Mancillas Nathan Kinport Nicholas Le Savannah Robertson Kali Roundy Patrick Wier Nicole Wilson

Creighton Will Clinic Legal Aid of Nebraska Set-Aside and Record Sealing Clinics, Saturday, April 6, 2019 and Saturday, April 13, 2019 The Set-Aside and Record Sealing Clinic is an event where volunteers meet with visitors from the community to provide limited legal representation in setting aside and sealing criminal records. This was a collaborative event with Legal Aid of Nebraska, Creighton University School of Law, University of Nebraska College of Law, Husch Blackwell LLP and Family First Call to Action.

Creighton Will Clinic Set-Aside and Record Sealing Clinic, Omaha THE NEBRASKA LAWYER

JULY/AUGUST 2019

Volunteer Lawyers Project attorneys and law students saw visitors from 9 am – 12 pm and 1 pm – 2:30 pm. During this event, a free one-hour ethics CLE was offered to volunteers. Volunteers included 9 attorneys, 3 law students from Creighton University School of Law, 1 law student from University of Nebraska College of Law, 1 Department of Justice Accredited Representative and 2 paralegals. Twenty-two area residents from 7 rural Nebraska counties attended the event and received legal assistance. Sixty-three persons were directly impacted by the pro bono services received. Visitors appreciated the generosity of lawyers and were very satisfied with the help they received. One visitor commented, “Never have I felt so understood and heard. The attorney was very informative and helpful.”

Set-Aside and Record Sealing Clinic, Lincoln The events were held in Omaha and Lincoln. During the events, more than 30 visitors were provided quality legal representation by volunteer attorneys, law students and paralegals. Since then, more than 80 set aside pleadings have been filed. Attorneys from the Omaha and Lincoln City Prosecutors’ Offices were on site to review requests for setasides and record sealings.

Another event is being planned in 2019. Contact Laurie Heer Dale at volunteerlawyersproject@nevlp.org or (402) 7428133 for more information.

The event will occur again in 2019. For more information, contact Muirne Heaney at mheaney@legalaidofnebraska.org or (402) 348-1069. To learn more about pro bono opportunities with Legal Aid of Nebraska, contact Christine Stolarskyj at cstolarskyj@legalaidofnebraska.org. Lawyers on the Prairie, Saturday, April 27, 2019 The 1st Annual Lawyers on the Prairie event, co-hosted by Legal Aid of Nebraska and the Nebraska State Bar Association Volunteer Lawyers Project, was held on Saturday, April 27, 2019 in Grand Island. This event is a one-day legal clinic where volunteers meet with walk-in visitors to provide brief advice; referrals to a legal aid service provider; and give selfhelp forms, brochures and other helpful resources. Volunteer

Heart Ministry Center Expands Its Services to Offer a Free Legal Clinic Heart Ministry Center, located at 2222 Binney Street, Omaha, provides food, clothing and health care to persons severely affected by poverty in the Omaha area. Through the efforts of volunteer attorneys and law students at Creighton University School of Law, they also offer free legal advice, limited scope legal services and referrals on Wednesdays from 10:00 am – 12:30 pm. Legal services provided are intended to be brief and generally include family, landlord-tenant and consumer law matters. If you are interested in volunteering at the Heart Ministry Center’s legal clinic, contact David Ernst, partner at Pansing Hogan Ernst & Bachman LLP, for more information about the clinic and how to register. You may reach him at dernst@pheblaw.com or (402) 397-5500.

Lawyers on the Prairie, morning session volunteers THE NEBRASKA LAWYER

Lawyers on the Prairie, afternoon session volunteers

JULY/AUGUST 2019

Volunteer Lawyers Project NEW!

VLP Offers “Low Bono” Opportunity to Nebraska Lawyers Through Program Aimed at Assisting Victims of Crime In May, the Nebraska State Bar Association Volunteer Lawyers Project (VLP) was awarded federal Victim of Crime Act (VOCA) funding to implement the EVOLVES (Essential Volunteers Offering Legal Services to Victims Ensuring Safety) project. Through this project, VLP aims to increase legal services to Nebraska rural, minority and elder victims of abuse, domestic violence, sexual assault, stalking and human trafficking by referring cases to volunteer attorneys to represent victims in family law, consumer and immigration matters on a reduced fee basis ($60 per hour). This project is similar to VLP’s former LAPTOP program and begins July 1, 2019.

Nebraska Free Legal Answers www.NE.FreeLegalAnswers.org

Convenient, rewarding, and impactful pro bono All lawyers—All practices* Answer questions posted by lowincome residents

For more information, or if you are interested in providing legal assistance to victims on a reduced fee basis, contact Laurie Heer Dale at (402) 742-8133 or lheerdale@nevlp.org.

• No travel or training to do pro bono • Pick questions you want to answer • Volunteer names are not disclosed • Malpractice insurance coverage • Make justice happen–today

NEW!

University of Nebraska College of Law Pro Bono Research Fellow Program The University of Nebraska College of Law’s Pro Bono Research Fellows Program is a free service to private attorneys in need of research assistance on pro bono legal matters. The program matches interested law students with pro bono attorneys on research projects that range from small assignments taking only a few hours, to larger projects that may last an entire semester. Research fellows will work directly with the pro bono attorney and may assist beyond research in some circumstances. For new assignments, a member of the College of Law Library Faculty will provide one-on-one research guidance at the beginning of the assignment, as well as on-going support, as needed. Attorneys may apply for research assistance by completing an online application located at: https://law.unl. edu/ProBonoResearch/

www.NE.FreeLegalAnswers.org NE Free Legal Answers is a website operated by the ABA and the NSBA Volunteer Lawyers Project 635 South 14th St. #200 Lincoln, NE 68508 (402) 475-7091

For questions about the program, contact Kala Mueller, Director of Public Interest Programs, kalamueller@unl.edu.

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JULY/AUGUST 2019

Volunteer Lawyers Project Pro Bono Partners Volunteers make access to justice a reality for those of limited means. VLP extends it gratitude to the following pro bono partners who have provided pro bono services in 2019.

Nebraska Free Legal Answers Sydney C. Aase, Lincoln Eric J. Adams, Omaha Erin M. Aitcheson, Champaign, Illinois Audrey A. Bellew, Omaha Lindsay R. Belmont, Omaha Larry W. Beucke, Kearney Timothy P. Brouillette, North Platte Angela Burmeister, Omaha Katherine R. Chadek, Lincoln Katelyn Cherney, Omaha Joshua L. Christolear, Syracuse Jaclyn N. Daake, Alma Kelly R. Davis, Omaha Carla J. DeVelder, LaVista Sallie V. Dietrich, Lincoln Quinn R. Eaton, Omaha Whitney A. Estwick, Omaha Ashley L. Faier, Omaha Adam R. Feeney, Omaha Thomas J. Freeman, Lincoln Maureen E. Fulton, Omaha Tana M. Fye, Holdrege John T. Haarala, Omaha Catrina K. Harris, Ashland Kelsey L. Helget, Hastings Miranda Hobelman, Lincoln Ryan C. Holsten, Lincoln Crystal D. Hunt, Kearney Christa B. Israel, Lincoln Jack W. Lafleur, Madison Peng Li, Omaha Christin P. Lovegrove, Geneva

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Self-Help Centers

Catherine M. Mahern, Omaha Hollie M. Mason, Washington D.C. Jessica D. Meyer, Tecumseh Ashley A. Moore, Manning, Iowa Jerad A. Murphy, Kearney Julia K. Palzer, Omaha Zachary D. Petersen, Omaha Sarah E. Preisinger, Papillion Thomas D. Prickett, Plattsmouth Michael A. Ramirez, Omaha Jamie L. Reyes, Lincoln Nathaniel V. Romano, University Heights, Ohio Danielle L. Rowley, Lincoln Kevin L. Ruser, Lincoln Heather L. Sikyta, Ord Blake K. Simpson, Lincoln Peter J. Sitzmann, Lincoln Kenneth M. Smith, Lincoln Rachael A. Smith, Omaha Meagan K. Spomer, Omaha Ryan P. Sullivan, Lincoln Rick W. Tast, Lincoln Anthony D. Todero, Minneapolis, Minnesota James H. Truell, Grand Island Christina L. Usher, Lincoln Kathryn E. Welsh, Omaha Erin E. Wetzel, Omaha Matthew J. Wurstner,Omaha

Buffalo Melodie T. Bellamy, Coordinator Michael W. Baldwin Larry W. Beucke Elizabeth J. Chrisp Brandon J. Dugan Marsha E. Fangmeyer John D. Icenogle Michael J. Synek Thomas W. Tye II Douglas Christina Thornton, Coordinator David A. Blagg Molly M. Blazek James F. Busse Joseph S. Dreesen Richard A. Drews Michael J. Haller, Jr. Karisa D. Johnson Kendall K. Krajicek Stephen J. Lefler Craig F. Martin Tyler A. Masterson Michael P. Moran Melany S. O’Brien Ralph E. Peppard Arturo Perez Kathryn D. Putnam Justin A. Quinn Danielle L. Rowley Michael F. Scahill Alan C. Schroeder Judith A. Schweikart Dave Sommers J.G. “Gerry” Sullivan Kenneth M. Wentz III

Douglas/Creighton Molly M. Blazek Katelyn Cherney Karen Hicks Martha J. Lemar Catherine “Kate” Mahern Christopher A. Mihalo Jennifer N. Rowling Hall Shawn J. Farritor, Coordinator Kevin A. Brostrom Brandon J. Dugan Grady C. Erickson Stacie A. Goding Andrew D. Hanquist Jonathan M. Hendricks Karisa D. Johnson Jennifer Kearney Susan M. Koenig Charles R. Maser John B. McDermott Kane M. Ramsey Audrey A. Rowley Keith Smith Mitchell C. Stehlik James H. Truell Erin M. Urbom Kevin P. Walsh Kimball Stacy C. Bach, Coordinator Madison Ryan J. Stover, Coordinator Joel E. Carlson Jason S. Doele Jack W. LaFleur Scotts Bluff Stacy C. Bach, Coordinator Adam A. Hoesing Maren L. Chaloupka Astrid G. Munn JULY/AUGUST 2019

Volunteer Lawyers Project Pro Bono Partners Pro Bono Cases Rebecca S. Abell-Brown, Fremont Jill M. Abrahamson, Omaha Christina L. Ball, Lincoln Frederick T. Bartell, Norfolk Christopher F. Blomenberg, Lincoln Sara J. Bockstadter, Hastings Nichole S. Bogen, Lincoln D.C.”Woody” Bradford III, Omaha* Lucrece H. Bundy, Omaha Angela J. Burmeister, Omaha Mona “Molly” L. Burton, Lincoln James A. Cada, Lincoln* Brian J. Davis, Cozad Jeffery W. Davis, Beatrice Jason S. Doele, Norfolk Charles E. Dorwart, Omaha Michael R. Dunn, Falls City Audrey M. Elliott, Gering Timothy R. Engler, Lincoln David H. Fisher, Hastings Kyle J. Flentje, Bellevue Ronald E. Frank, Omaha Tana M. Fye, Holdredge William D. Gilner, Omaha Charles L. Grimes, Omaha Mary Kay Hansen, Lincoln Jodie Haferbier McGill, Omaha Emilee Higgins, Columbus Adam A. Hoesing, Scottsbluff Kenneth F. Jacobs, Omaha Mark F. Jacobs, Omaha Dean J. Jungers, Bellevue*

Set-Aside and Record Sealing Clinics Jessica Kallstrom-Schreckengost, Omaha Jennifer D. Kearney, Grand Island Jane F. Langan Mach, Lincoln Dayna L. Langdon, Lincoln Peng Li, Omaha Joseph Lopez-Wilson, Omaha Katy M. Manuel, Lincoln Amie C. Martinez, Lincoln Gretchen L. McGill, Omaha Deziree N. Medina, Lincoln Jerad A. Murphy, Kearney Melissa M. Oestmann, Omaha Daniel C. Pape, Omaha Jeffrey T. Palzer, Omaha Ellen P. Prochaska, Omaha, Law Student James E. Reisinger, Omaha Sean P. Rensch, Omaha* Katherine E. Sharp, Columbus Meagan K. Spomer, Omaha Catherine N. Swiniarski, Omaha Jason R. Thomas, Omaha* Nicolas C. Viavant, Omaha* David R. Webb, Lincoln Elise M. White, Lincoln Abbie J. Widger, Lincoln Megan M. Zobel, Lincoln *assisting disaster victims

Heart Ministry Center

Creighton Will Clinic

David D. Ernst, Coordinator Andrew M. Collins William P. Crawford Richard A. Drews Andrew D. Sibbernsen

Katelyn Cherney Lexie Fleming, Law Student Nathan Kinport, Law Student Nicholas Le, Law Student Christopher A. Mihalo Kali Roundy, Law Student Nicole Wilson, Law Student

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Mae Adkins, Omaha, Paralegal Student Sapphire Andersen, Omaha, Law Student John Bergstresser, Omaha, Law Student Heather Bernt, Lincoln, Paralegal Mark T. Bestul, Lincoln Brigitta Bogue, Lincoln, Law Student Katelyn Cherney, Omaha Annie Christenson, Lincoln, Law Student Montana Crow, Omaha, Law Student Katie Davis, Omaha, Law Student Bridget DeLeo, Omaha, Paralegal Katie Delmonico, Omaha, Law Student Quinn R. Eaton, Omaha Scott M. Eckel, Omaha Jennifer L. Gaughan, Lincoln Jessica Gilgor, Omaha, Law Student Rose Godinez, Lincoln Kamron T. Hasan, Omaha

Patrick Hayford, Lincoln, Law Student Marian G. Heaney, Omaha Laurie Heer Dale, Omaha Talia Hughes, Omaha, Paralegal Marnie A. Jensen, Omaha Tannaz Kouhpainezhad, Omaha Grant D. Leach, Omaha Alix Mahoro, Omaha, Paralegal Brent A. Meyer, Omaha Claire Monroe, Lincoln, Law Student Ellen Prochaska, Omaha, Law Student Noah Rasmussen, Lincoln, Law Student Scout Richters, Lincoln Samantha Robb, Omaha, Law Student Justice Simanek, Omaha, Law Student Sami Schmit, Lincoln, Law Student Ryan P. Sullivan, Lincoln Amy E. Swoboda, Lincoln Kaitlin Logan Wimmer, Omaha, Law Student Lea Wroblewski, Lincoln

Lawyers on the Prairie Vincent L. Dowding Laurie Heer Dale Nathan Kinport, Law Student Susan M. Koenig Daniel McDowell, Law Student Michelle M. Mitchell Jazmin Ross, Paralegal Melissa Robinson, Paralegal

Audrey A. Rowley Emily Santa-Rodriguez Keith Smith Nichole Sklare, Law Student Charity Thomas, Department of Justice Accredited Representative James H. Truell Annie Waxman Lopez Nicole Wilson, Law Student

JULY/AUGUST 2019

2019 Outstanding Young Lawyer Award NOMINATION FORM The Outstanding Young Lawyer Award is presented annually to a young lawyer who has made exemplary contributions to the community and to public service, who has actively participated in state and local bar activities, and who stands out in the areas of professional knowledge, skill, integrity and courtesy. Screening and Selection Criteria • •

A “young lawyer” is any lawyer who has been engaged in the practice of law for five (5) years or fewer or who is under the age of thirty-six (36). The nominated individual will have demonstrated the following qualities: o o o o

Active participation in state and local bar activities; Demonstrates service to the public; Actively seeks to improve and enhance the public’s perception of the legal profession; Stands out in areas of professional knowledge, skill, integrity and courtesy.

To nominate a young lawyer for this award, please complete and return this form. You may be contacted, confidentially, for more information on your nominee. Nominations must be received no later than September 10, 2019, by the YLS Executive Committee, c/o Kate Fitzgerald Kucera; Sarpy County Attorney’s Office; 1210 Golden Gate Dr., Papillion, NE 68046. Nominations may also be e-mailed to kkucera@sarpy.com. NOMINEE NAME AND ADDRESS: _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ Please describe how the nominee has demonstrated the above qualities and is deserving of the Outstanding Young Lawyer Award (if additional space is needed, attach a letter to this form.)

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

JULY/AUGUST 2019

nsba section connection

Judge Alan Brodbeck (ret’d), Frosty Peetz, incoming Creighton Law student Hanna Knox and Alissa Baier. Peetz, Knox and Baier all work in the O’Neill area, where Brodbeck was on the bench.

Mary Jewell and Jamie Hermanson. Jewell is current Senior Lawyers Section Chair and Hermanson chairs the Limited Scope Representation Section.

Play Ball! The Senior Lawyers Section and Young Lawyers Section demonstrated once again that they play well together at the fourth annual tailgate and UNLCreighton baseball game in Omaha. Section members—sporting Creighton or UNL togs as appropriate—gathered for a pre-game social and then attended the game together.

Kelley Baker, Bob Bartle, Rob Robinson and Loel Brooks Josh Hermanson, lawyers Jamie Hermanson and Spencer Wilson, Claire Wilson, and lawyers Hannah Archuleta and Bri McLarty.

Incoming Young Lawyers Section Chair Marc Chedel with his future-lawyer son, Ford. THE NEBRASKA LAWYER

Kelley Baker, Bob Bartle, Rob Robinson and Loel Brooks JULY/AUGUST 2019

SECTION CONNECTION

The Corporate Counsel Sectionâ&#x20AC;&#x2122;s latest informal lunches in Omaha and Lincoln were both hosted by McGrath North and featured guest firm expert Stacey Shadden (second from left above) on GDPR and other data privacy provisions. Attending in Omaha (above) were Andy Chapeau, Fay Fisher and Mary Cricenti. Attending in Lincoln (below) were Mike McDannel, Jaydon Pence, Kirsten Hattan and Tad Fraizer.

NSBA Taxation Section members Nick Niemann and Shirley Peng attended the recent informal section lunch in Omaha. Members gather periodically to meet fellow tax colleagues, discuss current issues, and help brainstorm section events. Niemann is vice-chair of the Taxation Section.

If youâ&#x20AC;&#x2122;re interested in any of the NSBA Sections or have questions, please contact NSBA Section Facilitator Lorrie Benson at 402-475-7091 or lbenson@nebar.com.

Labor Relations and Employment Law Section Executive Committee members met prior to their annual seminar. Attending were Chris Schmidt, Ken Wentz, Gigi O'Hara, Kasey Cappellano, Catherine Cano, David Kennison and Jeff Anderson. Other Executive Committee members are Jennifer Huxoll, Kelvin Berens, Nichole Bogen, Pamela Bourne, Ashley (Dugan) Connell, Torrey Gerdes, and Marcia Washkuhn. THE NEBRASKA LAWYER

JULY/AUGUST 2019

manual maven

Manual Maven

features an excerpt from a practice manual currentl y available from the online NSBA Store. See what’s available at nebar.com/store! From Family Law Practice Manual (2019), “Privacy,” by John Kinney: 8.7

Social Media

It is best to assume that anything your client puts online can be found by a spouse, even if the information is protected by a password and not available to the public. Advise your client that when they walk out of your office the first time they need to immediately change passwords for social media, email and bank and financial websites. . . . Security preferences should be re-set to “private” and your client should go through his/her “friends” list and remove everyone who may not necessarily be loyal. . . . Advise your client to “curate” his or her online presence to make it less salacious. Basically, your client needs to make sure his or her online image is cleaned up (if it is not already)…. Make sure your client understands the impact of sharing “an account” (i.e. iCloud sharing) and the dangers of “location services” on a smart phone. (741-742)

NSBA Publications

Family Law Practice Manual (2019)

The new manual covers a wide range of topics, including extensive content on divorce.

See the NSBA Store for more details, tables of contents, or to order online: www.nebar.com/store

Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (print copy)

2016 Appellate Practice Handbook

The Appellate Practice Handbook includes: civil and criminal appeals generally, motion practice in the Nebraska Supreme Court and Court of Appeals, and special appeals topics.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

Nebraska Criminal Offense Penalties List

This list is created by University of Nebraska Law Professor Steven J. Schmidt and includes: felony penalties, sentencing enhancement, and more misdemeanor and infraction penalties.

Voluntary Dues-Paying Member Discounted Price: FREE (electronic) $12 (laminated copy)

2016 Nebraska Civil Practice & Procedure Manual

The Civil Practice and Procedure Manual covers all aspects of civil practice from case analysis through appeals.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

2017 Nebraska Real Estate Practice Manual

The Nebraska Real Estate Practice Manual, commonly called the Red Book, includes detailed discussions on buying, financing, leasing, and selling real estate and primers on many special topics.

Voluntary Dues-Paying Member Discounted Price: $285 (electronic) $345 (print copy)

Nebraska Evidence Handbook

The Nebraska Evidence Handbook includes the Nebraska Evidence Rules with cases that apply and/or interpret the rules. (Cases updated through June 2018)

Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy)

Nebraska Statutes of Limitations Reference (2019)

This reference collects the thousands of limitations in the Nebraska Revised Statutes.

Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy)

2018 Nebraska Probate Manual

This manual covers the probate process from the initial engagement through the final distribution and estate closing.

Planning for Your Unexpected Absence, Disability or Death

Closing A Practice

$25 (electronic)

Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (print copy)

This manual addresses process steps and considerations, including ethical issues, for a lawyer voluntarily closing a practice.

$25 (electronic)

$35 (print copy)

This manual outlines how to protect clients, practice and a lawyer’s family in the event of a lawyer’s unexpected absence, disability or death. Included is a detailed discussion of file closing, retention and destruction.

$35 (print copy)

Understanding Adoption Procedures in Nebraska

This manual includes detailed instructions and forms for every aspect of adoption practice.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy) THE NEBRASKA LAWYER

JULY/AUGUST 2019

The IMPACTS of TRAUMA

THURSDAY

AUGUST 8, 2019

CENTRAL COMMUNITY COLLEGE 1215 30TH AVE

on Children and Adolescents:

KEARNEY, NE

9:00 am - 12:15 pm 1:00 pm - 4:15 pm

How to Support Them The Circle of Security Patenting Class is typically an 8-week class offered to parents in an effort to strengthen their relationship with their child. This CLE, “The Impacts of Trauma on Children and Adolescents: How to Support Them” combines all 8 chapters covered throughout the weeks into a 3-hour crash course to give those who serve as a Guardian ad Litem a better understanding of what children in the juvenile system have experienced as well as what the parents of those juveniles are being taught. GALs will receive information about: attachment theory, what insecure and secure attachment looks like, how parents repeat cyclical patterns of relational trauma, the benefits of secure attachment and the harm of insecure attachment, how to meet children’s emotional needs, co-regulation, and how children develop the ability to self-regulate.

[MORNING SESSION] [AFTERNOON SESSION]

9:00 am - 10:00 am / 1:00 pm - 2:00 pm

What is trauma, what symptoms do children and adolescents present with 10:00 am - 11:00 am / 2:00 pm - 3:00 pm

Trauma that children experience within the juvenile justice system 11:00 am - 11:15 am / 3:00 pm - 3:15 pm

Break 11:15 am - 12:15 am / 3:15 pm - 4:15 pm

Recommendations to support the developing brain, children, and adolescents APPROVED FOR 3.0 HOURS CLE CREDIT & 3.0 HOURS GAL CREDIT REGULAR / LIVE NE MCLE #178149 [AM SESSION] REGULAR / LIVE NE MCLE #178151 [PM SESSION]

SPEAKERS SARA SANSON, LCSW, LMHP Clinical Social Worker Midwest Encouragement and Counseling Center Kearney, NE

JORDAN MCCOY, MS.ED., LMHP Licensed Mental Health Practitioner Midwest Encouragement and Counseling Center Kearney, NE THE NEBRASKA LAWYER

JULY/AUGUST 2019

THE NSBA MILITARY AND VETERANS LAW SECTION, ELDER LAW SECTION, AND THE REAL ESTATE, PROBATE AND TRUST LAW SECTION PRESENT

Veterans, active military members, and the families of both face unique challenges related to estate planning, particularly if theyâ&#x20AC;&#x2122;re subject to deployment. They also have various kinds of financial, programmatic and legal support available because of their status. This presentation will cover the unique needs and resources available to service members and discuss how to tailor estate and related life-planning for them.

THURSDAY

AUGUST 1, 2019

ESTATE AND LIFE COUNSELING FOR 21ST CENTURY

Veterans, Military Service Members and Families

12 PM - 1 PM

ATTEND LIVE OR VIA LIVE WEBCAST Hruska Law Center

635 S. 14th

Lincoln

With over 2 million INDIVIDUALS SERVING IN VARIOUS BRANCHES OF THE MILITARY

and millions more VETERANS AND DEPENDENTS Every attorney will have clients who are impacted by military service. How is estate and related life-planning for veterans and active military members unique, and what resources are available to assist with planning and support? This presentation will help answer some of the more frequently asked questions and provide resources and contacts for the more complex issues.

SPEAKER JOE TWIDWELL Joe Twidwell is the SVP of Security National Bank Wealth Management in Sioux City. Joe graduated from Creighton Law 1975 and is admitted in Nebraska and South Dakota. Joe served 28 years active, Reserve and Guard and retired as a LTC.

ACCREDITATION 1.0 CLE Credit Hours in Nebraska & Iowa LIVE / REGULAR

NE MCLE #178357 IA MCLE #331122

DISTANCE LEARNING

NE MCLE #178356 IA MCLE #331123

THE NEBRASKA LAWYER

JULY/AUGUST 2019

Upcoming CLE Programs July 11-13 2019 Advanced Estate Planning Institute Estes Park, CO NE, IA and WY - 10 CLE hours/2 ethics hours KS - 12 CLE hours/2 ethics hours CO - 12 CLE hours/2.4 ethics hours July 17 The Future Isn't Always Bright: Failing to Plan is Planning to Fail Webinar 2 CLE ethics hours July 18 Health Law Seminar Baird Holm, Omaha 3.25 CLE hours/.75 ethics August 1 Estate and Life Counseling for 21st Century Veterans, Military Service Members and Families Hruska Law Center, Lincoln or Webcast

THE NEBRASKA LAWYER

August 8 The Impacts of Trauma on Children and Adolescents: How to Support Them Central Community College, Kearney 3 CLE hours/3 hours GAL August 12 Recent Developments in Ethics in Nebraska and Iowa Nebraska City Beatrice August 13 Recent Developments in Ethics in Nebraska and Iowa Grand Island Columbus August 23 2019 Business Law Seminar Gallup, Omaha 7 CLE hours/1 ethics hour August 26 Appellate Practice Section Seminar: Opening of the Term Lincoln

August 29 Juvenile Law Section Webinar September 6 2019 Nebraska Diversity Summit Creighton University â&#x20AC;&#x201C; Harper Center, Omaha September 13 2019 Annual Real Estate Institute Embassy Suites, La Vista September 26 Government & Administrative Practice Webinar October 8-11 2019 NSBA Annual Meeting Embassy Suites, La Vista New seminars are added to this list weekly. Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered.

JULY/AUGUST 2019

Adam E. Astley Astley Putnam, PC LLO David J. Bargen Rembolt Ludtke LLP Megan Belcher The Scoular Company Margaret M. Blatchford Lincoln City Attorney's Office Charles W. Campbell Angle Murphy & Campbell, PC LLO Marc H. Chedel Engles Ketcham Olson & Keith, PC Nicci L. Clark Morgan Stanley Wealth Management Ashley Dugan Connell Woods & Aitken LLP Danielle M. Conrad ACLU of Nebraska David E. Copple Copple Rockey McKeever & Schlecht, PC LLO Frank J. Daley Nebraska Accountability & Disclosure Commission

Professor Craig Dallon Creighton Univesity School of Law Andrew Diediker Simple Senior Solutions, LLC Elizabeth D. Elliott Lincoln City Attorney's Office Trevor A. Fitzgerald Nebraska Legislature Gregory S. Frayser Cline Williams Wright Johnson & Oldfather, LLP Richard P. Garden, Jr. Cline Williams Wright Johnson & Oldfather, LLP James B. Gessford Perry Guthery Haase & Gessford, PC LLO Hon. Shon Hastings U.S. Bankruptcy Court, District of North Dakota Luke P. Henderson Fitzgerald Vetter Temple & Bartell Bell Island Island Law Office, PC LLO

Jerry L. Jensen Acting Assistant United States Trustee, United State Bankruptcy Court Milissa D. Johnson-Wiles Nebraska Attorney General's Office Kate E. Jones Kutak Rock LLP Professor Carol C. Knoepfler Creighton Univesity School of Law Brian J. Koenig Koley Jessen, PC LLO Hon. James G. Kube District Court Judge, 7th Judicial District Kathleen A. Laughlin Chapter 13 Bankruptcy Trustee Christin P. Lovegrove Heinisch & Lovegrove Law Office, PC LLO Jeremiah J. Luebbe Steffens Law Office, PC Brianna L. McLarty Dodge County Attorney's Office Scott P. Moore Baird Holm LLP Hon. Charles L. Nail, Jr. U.S. Bankruptcy Court, District of South Dakota Gigi G. O'Hara Kutak Rock LLP

CLE Faculty May - June 2019

!r time U O Y K u AtionNfor volunteerEinpgroygorams. TH 's CL recia

p Our ap ertise to NSBA d n a exp

James A. Overcash Woods & Aitken LLP Patrick M. Patino Koenig|Dunne, PC LLO Gregory H. Perry Perry Guthery Haase & Gessford, PC LLO Bevvan Phillips Key Complete Therapies Kathryn D. Putnam Astley Putnam, PC LLO Allison K. Rockey Copple Rockey McKeever & Schlecht, PC LLO Mindy M. Rush Chipman City of Lincoln

Hon. Thomas L. Saladino U.S. Bankruptcy Court, District of Nebraska Susan K. Sapp Cline Williams Wright Johnson & Oldfather, LLP Matthew D. Schmoldt Steffens Law Office, PC Todd Sexton Identillect Leslie A. Shaver Simmons Olsen Law Firm PC LLO Meagan K. Spomer Nebraska Legal Group, PC Matthew K. Stadler RG & Associates William V. Steffens Steffens Law Office, PC Diane Stewart First National Bank Donald L. Swanson Koley Jessen, PC LLO Catherine N. Swiniarski Elder Law of Omaha, PC LLO David M. Thompson Carlson & Burnett, LLP Brandon R. Tomjack Baird Holm LLP Laura E. Troshynski Pederson & Troshynski Rachel A. Truhlsen Rachel A. Truhlsen Law Office, PC LLO Patrick R. Turner Dvorak Law Group Amy L. Van Horne Kutak Rock LLP Mark A. Weber Counsel for Discipline Michael J. Whaley Cline Williams Wright Johnson & Oldfather, LLP Barry L. Wilkinson Boots and Suits United T. Randall (Randy) Wright Baird Holm LLP Honorable Cheryl R. Zwart U.S. Magistrate Judge-District of Nebraska

transitions

To submit a career change and/or relocation to the Transitions section of The Nebraska Lawyer, email your announcement to Liz Neeley, Editor, lneeley@nebar.com.

Career Changes.......................... ..........................and Relocations OLUSEYI “SEYI” OLOWOLAFE has joined JACKSON LEWIS. P.C. in Omaha office as an Associate. Mr. Olowolafe focuses his practice on representing management in all areas of employment law, with an emphasis on preventive counseling and training. Prior to joining the firm, Mr. Olowolafe gained Oluseyi extensive experience in civil litigation as a Olowolafe Federal Investigator for the United States Department of Labor’s Office of Labor-Management Standards. Subsequently, Mr. Olowolafe served as a mediator throughout Southern California, and as a labor consultant. While attending Creighton University School of Law, Mr. Olowolafe served as the Creighton Chapter President of the Black Law Student Association, and was a recipient of the ALI Continuing Legal education Scholarship and Leadership Award. Mr. Olowolafe earned his B.A. from California State University, Fullerton and his J.D. from Creighton University.

Scott Hahn

KOENIG|DUNNE, PC, LLO is pleased to announce that SCOTT HAHN has joined the team. Scott comes to the firm with 12 years of experience in the area of family law, spending much of his career as an advocate for domestic violence and sexual assault survivors. Koenig|Dunne and clients will benefit from Scott’s experience, talent, and shared values.

SKALKA & BAACK LAW FIRM is pleased to announce that PIERCE D. FIALA has joined the Firm as an Associate Attorney. Pierce assists clients in a wide variety of matters, including estate planning, real estate transactions, entity formation, corporate governance, criminal litigation and juvenile law. Pierce D. Fiala Originally from Grand Island, Nebraska, Pierce received his Bachelor of Science Degree from Wayne State College in May of 2016 and earned his J.D. from Creighton University School of Law in August of 2018. He was admitted to the Nebraska Bar this April.

Jeana Goosmann, CEO & Managing Partner of the GOOSMANN LAW FIRM, is pleased to announce that attorney ANDREW W. SIMPSON has joined the law firm at their Omaha location. Simpson drives deals by guiding developers and business leaders through complex issues in real estate Andrew W. and business transactions, finding the most Simpson efficient path to resolve those problems and get their deal done. Simpson has over 14 years of experience and has been involved in multi-million dollar transactions and developments in the Omaha area. His areas of practice include mergers and acquisitions, real estate development and transactions, land use law, municipal corporations, homeowners associations, residential and commercial construction, commercial litigation, and estate planning. Simpson received his Juris Doctor from Creighton University School of Law, his Master’s in Biology from the University of Nebraska at Kearney, and his Bachelor of Science in Natural Resource Science from the University of Nebraska Lincoln. Prior to practicing law, Simpson was a biologist in Kearney, NE. Simpson is licensed to practice in Nebraska. BAYLOR EVNEN, LLP, is pleased to announce the addition of SUSAN M. FOSTER. Ms. Foster is a member of the firm’s Litigation practice group with a focus on employment law. Ms. Foster has significant experience providing training, advice and counseling on workplace issues, Susan M. Foster including medical and disability leave management, employee selection and performance management, positive workplace culture, employment agreements, and wage and hour requirements. She has successfully defended employment-related claims before local, state and federal agencies, as well as in state and federal court. Ms. Foster also has considerable experience conducting Title IX investigations and trainings. Ms. Foster received her Juris Doctor from the University of Nebraska College of Law in 2009, with an emphasis in labor and employment law. Ms. Foster is licensed to practice in state and federal courts in Nebraska and the United States Court of Appeals for the Eighth Circuit. She is a member of the Nebraska State Bar Association and Lincoln Bar Association.

 THE NEBRASKA LAWYER

JULY/AUGUST 2019

TRANSITIONS CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P. is pleased to announce that TRAVIS W. TETTENBORN and DANIEL OLDENBURG have become partners, and BEAU B. BUMP has joined the firm.

Jeana Goosmann, CEO & Managing Partner of the GOOSMANN LAW FIRM, is pleased to announce that attorneys ANGELA Y. MADATHIL and GENE M. ECKEL have joined the law firm at their Omaha location.

Travis W. Tettenborn is a graduate of the University of Nebraska (B.S., with highest distinction, 2009 and J.D., with high distinction, 2012). Tettenborn conducts a general civil trial practice emphasizing medical malpractice defense, legal malpractice defense, personal injury, and defense of civil rights Travis W. lawsuits. He also handles a variety of comTettenborn mercial litigation matters involving contract and real estate disputes, and represents clients in professional licensing investigations and hearings involving the Nebraska Department of Health and Human Services. He defends health care providers and represents businesses in litigation throughout the State of Nebraska.

Angela Madathil is a business attorney who helps companies by minimizing risk, resolving potential disputes, ensuring ownership of technology and assets while developing their business. Madathil has over 10 years of experience practicing in business, real estate, compliance, M&A, employment law, and Angela Y. cyber compliance. She has drafted and negoMadathil tiated over 30 million dollars in deals. Prior to joining Goosmann, Madathil spent 5 years serving as inhouse counsel at a publicly traded company involved in ethanol manufacturing, commodity trading, and cattle feeding. As a former in-house attorney, Madathil understands how to prioritize, the time sensitive nature of requests, and the budget pressures businesses face. Madathil received her Juris Doctor from Washburn University School of Law, her Masterâ&#x20AC;&#x2122;s in Business Administration from the University of Nebraska Omaha, and her Bachelor of Arts in Political Science and International Studies from the University of Kansas. She is a board member of Together, Inc. and St. Maryâ&#x20AC;&#x2122;s Pastoral Council. Madathil is licensed to practice in Nebraska and Kansas.

Daniel W. Oldenburg joined the firm in 2017. He is a graduate of the University of Dallas (B.A., cum laude, 1999) and Creighton University (J.D., 2002). Oldenburg provides immigration legal services to individuals and employers. He specializes in employment based immigration for university and healthDaniel W. care institutions. He also represents religious Oldenburg institutions seeking to sponsor qualifying religious workers, and regularly assists clients with permanent residency and naturalization. The firm welcomes the addition of Beau B. Bump to the Fort Collins, Colorado office. Bump is a graduate of the University of Nebraska (B.A., 2004) and DePaul University College of Law (J.D., 2008). His practice areas are complex commercial, personal injury, and business disputes before Beau B. Bump state and federal courts. He advises clients on regulatory compliance, including assisting craft breweries, distilleries and wine businesses with federal and state licensure. Bump represents a wide range of industries, including transportation, health care, food and beverage, manufacturing, oil and gas, mining, insurance, banking, investment brokerages, real estate, and construction.

THE NEBRASKA LAWYER

Gene M. Eckel is a real estate attorney who helps landlords and property management companies resolve problems with tenants and advocate on behalf of the apartment industry. Eckel has 18 years of experience as a local Omaha attorney practicing in real estate, landlord and tenant, and fair housing. Gene M. Eckel His background in public policy, litigation and general practice of law provides his clients with answers to unexpected problems and advocate on their behalf, enacting laws to resolve issues that affect them. Throughout his career, Eckel has successfully drafted and passed legislation in Nebraska that protects landlords and tenants. Eckel is on the board of directors for the Apartment Association of Nebraska and Nebraska Association of Commercial Property Owners, and is a member of the Lease Advisory Committee for the National Apartment Association. He received his Juris Doctor from Creighton University School of Law, attended Thomas M. Cooley Law School, and received his Bachelor of Arts Degree in English from the University of Nebraska-Lincoln. Eckel is licensed to practice in Nebraska and Iowa.

JULY/AUGUST 2019

in memoriam WILLIAM (BILL) G. CAMPBELL, IV, 84, died April 13, 2019 at an Ely, Minnesota care center. In 1965, Bill, Robert J. Kutak and Harold L. Rock founded Kutak Rock and Campbell in Omaha, NE. The law firm grew dramatically from the three founding members to become the first national law firm in the United States. William G. Bill was a hard-charging litigator who did not Campbell, IV shy away from complicated cases where he achieved excellent results for his clients, including the then largest jury verdict in Nebraska. Bill was an excellent mentor for many young attorneys. He taught them well and gave them chances to excel. Bill was born on October 16, 1934 in Scottsbluff, NE, and spent his childhood in Gering. He attended the University of Nebraska at Lincoln on a basketball scholarship and graduated with a Bachelor of Science Degree in Business Administration in 1956. He graduated from the George Washington University School of Law in Washington, D.C. in 1959. After graduation from law school, Bill served his country as a Captain in the Air Force Judge Advocate Corps working with such officers as General Curtis LeMay in the Pentagon. After his honorable discharge from the Air Force, Bill joined Bob Kutak working as an Administrative Assistant to United States Senator Roman Hruska. Bill moved to Omaha and together with Bob Kutak and Harold Rock created the vision that became Kutak Rock and Campbell. Bill retired from Kutak Rock in 1992. He joined Rogers & Wells in Washington, D.C. as a senior partner where he worked with former Secretary of State William Rogers and former Secretary of Defense Caspar Weinberger. Several years later, he retired from Rogers & Wells and moved to Ely, MN, where he opened his own law office serving clients in Ely and surrounding areas. From 1991 through 2011, Bill was a member of the Board of Directors of the Companion Life Insurance Company and from 1996 through 2006 served as a member of the Board of Directors of Innowave, both of which are affiliates of Mutual of Omaha. Until his full retirement, Bill worked with various Ely charitable organizations to promote job growth on the Iron Range. Throughout his life, Bill loved to hunt, fly fish and invite others to his home for meals that he enjoyed cooking. He particularly loved to spend time with his family members and his grandchildren. Bill was preceded in death by his father, William G. Campbell, III; his mother, Virginia Campbell (nĂŠe Hill); and his son-in-law, Michael Brady. He is survived by his daughter, Anne Campbell-Taylor and son-in-law Frank Taylor of Minneapolis, MN; daughter, Elizabeth Campbell of Fort Worth, TX; daughter, Amy Campbell-Brady of Washington D.C.; grandchildren, Grace and Joshua Taylor and Matthew and Kate Brady; and his sister, Marcelle Wiggins of Sacramento, CA. Bill is remembered fondly by Jancy Campbell of Boulder, CO; and Angela Campbell of Ely and her two children, Greg and Stephanie. Bill is also survived by his wife, Deb. THE NEBRASKA LAWYER

THE HONORABLE THOMAS HENRY DORWART, 89, passed away on April 28, 2019, in Sidney, NE. Tom, the son of Dr. Thomas Yule and Virginia Florentine (Greene) Dorwart, was born on September 10, 1929, in Lexington, NE. Following the death of his mother, Virginia, his father marHon. Thomas H. ried Ellen (Vaughn) Howell. After graduDorwart ating from Lexington High School, Tom served as a Naval Aviation Cadet in the NAVCAD formal training program of the U.S. Navy before joining the United States Marine Corps where he honorably served. He graduated from Creighton University, B.S., and received his JD from the University of Nebraska College Of Law. On June 8, 1963, he was united in the Sacrament of Holy Matrimony to Patricia Slattery of Weeping Water, Nebraska. Before becoming an attorney, he worked as a telephone lineman. Following legal careers with the Nebraska Department of Roads, the Nebraska Department of Insurance, and private law practice, he was appointed as Cheyenne County Judge where he served for 29 years. During his time on the bench he founded the Cheyenne County Drug Court, served as President of the County Judges Association, was a member of the Nebraska Commission for the Protection of Children and the Nebraska Coalition for Juvenile Justice. He was a member of the Nebraska State Bar Association, the Nebraska State Bar Foundation, the Tenth-Circuit Federal Bar Association, and the United States Supreme Court. Outside the judicial realm, Tom was a devout Catholic, an avid reader, enjoyed telling stories, cooking, antique cars, vintage-tractor pulls, playing cribbage, and was a Master Gardner and Master Beekeeper. He was a proud participant in the American Legion, VFW, Cheyenne County Sweet Corn Club, the Benevolent and Protective Order of the Elks, FMC, American Mensa International, the Honorable Order of Kentucky Colonels, Knights of Columbus, the Maiwand Jezails (a Scion Society of the Baker Street Irregulars), Commissioner of the Nebraska Boy Scouts, and a breakfast club regular. Most of all, Tom cherished his time with family and friends. Survivors include his wife of 57 years, Patricia, son Thomas Yule (Colleen) Dorwart, daughter Virginia Ellen Splichal, daughter Katherine Ann (Mark) Lewallen, sister Suzanne (Dr. Anthony) Wolfe, grandchildren Ashley Ann, J.D., and Elizabeth Dorwart, Sarah-Kate, Burke, and Audrey Splichal, Thomas, Amelia, and James Lewallen, and numerous nieces, nephews, and extended family members. He was preceded in death by his parents, Dr. Thomas and Virginia Dorwart, and Ellen and Lon Howell, and his brother Robert Yule and wife Mary (Lewelling) Dorwart.

ď&#x192;&#x2020; JULY/AUGUST 2019

IN MEMORIAM Omaha attorney DAVID HERZOG died April 16, 2019, after a long battle with idiopathic pulmonary fibrosis. He was 81. Mr. Herzog is survived by his beloved wife, Julianne Dunn, his brother, Ian (Buddy) Herzog of Los Angeles, sister Barbara Greenwald of Omaha, children, Michael of New Jersey, Claudia of Colorado, David Herzog Erika of New York, 4 grandchildren and several nieces and nephews. He was predeceased by parents, Irving and Pearl Herzog, brother Michael and sister-in-law Amy Ardell (Ian Herzog) David graduated from the University of Nebraska College of Law in 1962 and practiced actively until the date of his death in 2019. He began his career as a prosecutor with the Douglas County Attorney’s Office and then moved to the firm of Fromkin, Herzog and Becker with whom he practiced for 35 years. Thereafter, he moved to Herzog & Herzog where he practiced for 20 years. He was a civil and criminal litigator who undertook some of the complex, high-profile cases of his day: e.g. State v. Copple, State v. Rice and Poindexter, State v. Ulysees Cribbs, et. al. Martindale Hubbell, the national legal rating group granted him the highest AV rating in skill, knowledge and ethics for over 25 years. He was a founding President of the Nebraska Criminal Defense Lawyers and worked tirelessly to enhance the learning opportunities of lawyers practicing in that part of the bar. His peers demonstrated their approval and trust by repeatedly electing him to bar association committees for selection of judges – from Supreme Court to County Court and Juvenile Court. Additionally, his peers elected and re-elected him to the Nebraska Bar Association House of Delegates, the governing body of the Nebraska Bar Association. The Nebraska Bar Foundation selected him as a Fellow, a rare and coveted honor for lawyers demonstrating ethics, skill, knowledge and leadership in the practice of law. Mr. Herzog was a second generation, life-long member of Beth El synagogue. He taught comparative law to young men and women in the synagogue high school where he was a popular teacher. In addition to an active professional life, David led a robust personal life. He skied in the winter and golfed, ran and swam in the summer. He had a wide circle of friends near and far, and carried on pen pal relationships for years. He sent cards on every occasion. He loved his family and children; he led weekly Saturday services at Blumkin Jewish Home for the last decade of his mother’s life there. He loved his wife’s family; he drove his wife to Minnesota every month for years to see her mother after her move there. He loved his wife, Julianne and cared for her every day of their life together to his last breath. His great heart stopped in the middle of a date at a favorite restaurant. Memorials may be made to Beth El Synagogue, Talmud Torah, or any charity of your choice. Mr. Herzog was buried privately at Beth El Cemetery in accordance with Jewish customs on April 18, 2019. A memorial service was held for friends, colleagues and clients on June 2, 2019 at Beth El Synagogue, in Omaha. THE NEBRASKA LAWYER

THE HONORABLE ROBERT OWEN HIPPE died on April 27, 2019 at the University of Colorado Health Center after a short battle with cancer. Bob was born in Gordon, NE on September 28, 1941 to Paul and Luthera “Thera” (Gardiner) Hippe. His childhood was spent on several ranches in the Sandhills Hon. Robert O. of Cherry County, Nebraska around the Hippe Merriman and Wood Lake areas where his father was foreman. When it came time for him to go to high school, he lived with a family near Merriman who was related to Mari Sandoz. He milked cows for his room and board. He graduated from Merriman High School in 1959 in a class of 3 of which he was first in his class. He graduated from Kearney State College where he received a B.A. in Business Education in 1963. During his time at Kearney State, he was in a rock-nroll band called the Sonics. He loved to tell stories about those days with the band. His first job was in Sargent, NE where he taught typing and shorthand from 1963-65. His first marriage was to Kaye Woodruff and to this union four children were born; Kim. Debbie, Rob and Jenney. After teaching in Sargent for 2 years, he moved to Lincoln where he attended law school at the University of Nebraska. In 1968 he moved to Scottsbluff, NE where he practiced law with Raymond, Lovell & Hippe. In 1975, he ran and was elected County Attorney for Scotts Bluff County. In 1977, he was appointed District Judge for the 12 Judicial District by Gov. Jim Exon a position he held for 30 years. In 1986 he married Anne (Buffington) Thacker and gained two more sons, Eric and Bryce, which he thought of as his own and completed his family. After 1 ½ years of retirement, he went to work for the Pahlke Law Group where he was an associate from 2009-2015; and was Of-Counsel, Pahlke Law Group, 2015 until his death. Bob also received numerous awards while on the bench. These included: George H. Turner Award, NCSEA-Outstanding Commitment to Nebraska Children, and the Nebraska State Bar Foundation Outstanding Education Award. In 2014 he received the UNK Alumni Association’s Distinguished Alumni Award. While he felt honored by the recognition, humility was always his practice. Recognition was something he never sought. Bob also volunteered for the Centennial committee for the Scottsbluff National Monument and was on the board of Mediation West where he served as secretary treasurer. He also believed in every step of his mediation work. Bob was a 50 year member of the Nebraska State Bar Assn., Western Nebraska Bar Assn. (President, 1973-74); Nebraska District Court Judges Assn. (President 1988-89); American Bar Assn. (Trial Practice and Techniques Committee, Law School Curriculum Committee); Founding Member, Nebraska Dispute Resolution Advisory Council (1991-1997); Member, Supreme Court Automation Advisory Committee (1994-2007); Chair, Supreme Court’s Committee on Practice and Procedure (1997-to present); ViceJULY/AUGUST 2019

IN MEMORIAM Chair, Advisory Committee, Nebraska State Bar Association (2011-Present). Bob helped found West Nebraska Legal Services, Scottsbluff Senior Center, Radio Station KCMI, and Mediation West. He was a member of Christ the King Catholic Church in Gering, NE. Bob is survived by his wife of 32 years Anne, children Kim Mendez of Bayard; Debbie Pietro of Murrieta, CA; Rob Hippe of Lincoln; Jenney Hippe of Simi Valley, CA; Eric Thacker (Gail), of Michell, NE; Bryce Thacker (Brandi), of Burlington, CO; sister Paula Briscoe of Seattle, WA.; grandchildren, Amanda, Ernie, Eric, Alex, Adrienne, Jordan, Austin, Baylin, Victoria, Rebecca, Arika, Sarah, Becca, Dennis, Gabe, and 15 great-grandchildren with another great-grandchild to be born in May. He is preceded in death by his parents, grandparents, father & mother-law, granddaughter Caitlin, several aunts, uncles, cousins and brother-in-law Chuck Briscoe. RADY ALAN JOHNSON, 82, died peacefully in Richmond, Virginia surrounded by his five children on March 21, 2019. Rady was preceded in death by his wife of 49 years Mary Alice "Mimi" Johnson (nĂŠe Fitzpatrick) and survived by his five children Rady (Diane) Johnson, Ann (Bradd) Waters, Patrick Rady A. Johnson (Jennifer) Johnson, Frederick Johnson, Mary (Charles) Kemp, in addition to his sister Marcia (Chuck) Solem, 15 grandchildren, as well as nieces, nephews, and extended family. Rady was born July 23, 1936 to Walter and Mary Johnson in Lincoln, Nebraska, where he spent his childhood as the youngest of four children. His family moved east in 1949, and he attended Washington & Lee High School in Arlington, Virginia before returning to his Cornhusker roots to attend college and law school at the University of Nebraska, where he met his wife Mimi. Rady began his career practicing law in North Platte, Nebraska for several years before returning to Washington, DC to pursue public service, first as a congressional aid on Capitol Hill, followed by a civilian post at the Pentagon as the Assistant Secretary of Defense, Legislative Affairs, where he traveled to Vietnam several times to advise Congress on the status of the war. Upon leaving the government, Rady spent 26 years with Standard Oil of Indiana (Amoco) where he became Senior Vice President, Government and Corporate affairs, before retiring in 1995. He was admired for his calm demeanor, subtle wit, and ability to work cooperatively with all members of Congress. Rady enjoyed many hobbies. As an avid golfer, Rady spent time with friends, family, and work colleagues walking fairways, sharing stories, and occasionally making a long putt. He cherished time with his fellow members and the entire staff of Burning Tree Golf Club where he was honored to have served a term as President. He was a particularly devoted Nebraska football and Washington Redskins fan. Rady also enjoyed reading biographies, playTHE NEBRASKA LAWYER

ing cards, and tending to his yard and other household chores (under Mimi's watchful eye). He was a faithful parishioner at St. John's Catholic Church in McLean, Virginia for more than 30 years and more recently at St. Francis de Sales Catholic Church in Kilmarnock, Virginia. Rady's first love was family. Colorado ski trips or beach vacations along the east coast were annual family events, where most evenings ended with long dinners, loud voices, and fits of laughter. In later years, Rady and Mimi hosted gatherings for the expanding Johnson family at their home in Irvington, Virginia, including reunions, weeklong summer camps for the grandchildren, and an occasional wedding. After Mimi's death in 2010, Rady took up residency in Irvington, spending increased time with his grandchildren or traveling to visit friends and family. Although his health declined in recent years, he continued to share his charm, humor, and kind words with the new friends and helpers he met at Fox Hill retirement community in Maryland and the Gables Group at Westminster Canterbury in Richmond. Rady lived and died a happy man. He was always appreciative of the many blessings he enjoyed and showed it in his generosity toward others. FRANCIS PATRICK (FRANK) MATTHEWS died April 12, 2019. Born in Omaha in 1921, Frank attended Cathedral Grade School, graduated from Creighton Prep in 1939, enrolled in Georgetown University and enlisted in the U.S. Army following Pearl Harbor in 1941. Frank married his college sweetheart, Francis P. Helen Spencer, in 1944. Following the war, Matthews they settled in Omaha, where Frank earned his law degree from Creighton Law School in 1948. Frank was a practicing attorney in Omaha for 40 years and continued to be active in pro bono legal matters throughout his retirement. Frank was preceded in death by his beloved wife of 67 years, Helen Spencer Matthews; his son, Francis Patrick Matthews, III; his parents, Claire (Hughes) and Francis P. Matthews, Sr; and his sisters: Mary Claire Dwyer, Kathleen Irvine, Patricia Belvin, Marian Howard, and Marguerite Schneider. He is survived by his children: Anne (Arnold) Weitz, Mary Michaela (Jeffrey) Colquhoun, Joan (Robert) Miller, John (Karen) Matthews, Thomas (Madeleine) Matthews, Eileen Hansen (Jay Graham), and Molly (Fernando) Multedo; 20 grandchildren and their families, including 20 great-grandchildren; many nieces, nephews, extended family, and dear friends.

ď&#x192;&#x2020; JULY/AUGUST 2019

IN MEMORIAM MICHAEL J. MOONEY passed away at home on May 10, 2019 at the age of 82. Mike is survived by his wife of 57 years, Sue; his three children and their spouses, Mike (Samantha) Mooney, Bob (Sarah) Mooney, Greg (Theresa) Mooney, and his grandchildren, Erin, Kailin, Megan, Ryan, Sean, Ainsley, Michael J. Finn and Piper. He is also survived by numerMooney ous in-laws, nieces and nephews. Mike was preceded in death by his son Christopher, and his mother Elizabeth, stepfather Robert Fuller, and father Joseph. Mike was born in Omaha on August 15, 1936. He graduated from Omaha Cathedral High School, then pursued higher education at Creighton University earning a Bachelor of Science Degree, then his Juris Doctorate degree from the Creighton University School of Law, which he received in 1963. Despite failing the course “Marriage and the Family” in school (this really happened) he gave marriage a try—for 57 terrific years. And he raised three surprisingly successful boys, in spite of themselves. They all agree that he was the best possible role model as a dad, one they attempt to emulate with their own children every day. Mike practiced law with several Omaha law firms beginning in 1963 and continuing through his retirement in 2019—a total of 56 years. During a storied legal career, he was invited to a fellowship in the American College of Trial Lawyers. He was Chairman of the House of Delegates for the Nebraska State Bar Association and was a fellow in the Nebraska State Bar Foundation. He served as President of the Nebraska Defense Counsel Association and was its first recipient of its Master Emeritus Award in May of 2011. Mike also served as President of the Nebraska Association of Trial Attorneys. He truly enjoyed the practice of law, was proud of his many successes in the courtroom, and valued the peers he shared in the practice of law. As proud as he was of his career in the law, Mike found immense satisfaction in the legacy of his grandchildren, who brought him great joy and pride. His legacy includes college scholarship winners, valedictorians, sorority officers, student governors, a national competition cheerleader, a varsity soccer player, soccer captains, a national competition hockey team captain, musicians, dancers, and a future ninja. Mike was an avid outdoorsman. He enjoyed duck hunting, pheasant hunting and fishing. He had a golf swing which was the envy of all who saw it. He loved flying planes when he had his pilot’s license. He loved cooking a meal for the family, and even created a cookbook – with mostly self-described “tolerable” recipes. He loved his cabin at Woodcliff lake, and enjoyed his time pulling kids behind the boat, fishing, or merely relaxing on the porch yelling a greeting to a friend – or someone he didn’t know. He loved spending his free time with family and friends. He found joy in watching his grandkids play sports, or try to entertain him with their latest knowledge. Because it was the sport his boys could play in elementary school, he THE NEBRASKA LAWYER

learned to coach soccer when the only thing America knew of soccer was that some guy named “Pele” played it. He relished lunch with the geezers, and always brought back new, hilarious, and inappropriate stories. And he never forgot any of them. People genuinely enjoyed being with Mike and he will be dearly missed by everyone whose life he touched. The list is long. DONALD W. PEDERSON, 90, passed away June 2, 2019 after a diagnosis on May 14, 2019 of pancreatic cancer. He was like good cheddar, sharp and savory until the end. Born in Hastings, NE, December 23, 1928 to B.K. and Pauline Pederson. Attended school in Omaha, graduated from Benson High School, Donald W. 1947. Served as class president. Was an honor Pederson student and is a member of the Benson High School Hall of Fame. Attended UNO and Grinnell College in Iowa. Graduated from Nebraska University College of Law in 1954. He served as Deputy County Attorney in Scotts Bluff County, then joined the law firm Beatty Clarke Murphy and Morgan in North Platte. He then helped create the firm of Murphy, Pederson & Piccolo. His son David, UNL Law, 1980, joined this firm. David later created the Pederson Law Firm and was joined in practice by his daughter Laura Troshynski and son Matthew Pederson where Don served “of Counsel.” Three generations of UNL Law graduates were recognized following these graduations. He was elected to the North Platte school board where he served for nine years including a term as president. Due to the early structure of the junior college system administration, he simultaneously served as president of the North Platte Junior College, and McCook Junior College. Following the term on the North Platte School Board, he was chosen as Chairman of a committee to reconstruct the aging schools of the District. A subsequent bond issue passed by a significant margin. He also helped create the Mid-Nebraska Community Foundation, serving a term as president. In October 1996, Pederson was appointed to the Nebraska Legislature by Governor Ben Nelson to fill a vacancy in the Lincoln County district. He was immediately required to file and run for the remaining two-year vacancy and was successfully elected a month later. He was re-elected in 1998 and 2002, serving 10 years until term-limited in December 2006. During his term in the legislature, he served on the Appropriations Committee and was elected Chair of this budget creating legislative committee. He was directly responsible for passage of the Nebraska College Savings Plan, the Nebraska Cultural Endowment, Constitutional Amendment 1, 2005, which encouraged historical building preservation using a tax deferred benefit. Throughout his legislative service, Pederson was an advocate for the Nebraska Educational Telecommunications system and was responsible for achieving funding for many upgrades in this important statewide service JULY/AUGUST 2019

IN MEMORIAM and notably, the federally mandated, $13M conversion from analog to digital transmission. In 2003, he was presented with NET’s Distinguished Service Award. In 2007 Pederson served as chair of the Nebraska Humanities Council (now Humanities Nebraska.) He received many recognitions, including the Patty Steel Award and recognition from the Susan Komen Foundation for his work passing the Nebraska Every Woman Matters Act, working to detect and prevent breast and cervical cancer for low-income women. In 2010, he was presented with the Nebraska Sower Award from Humanities Nebraska for his service to humanities in Nebraska. He was a member of Rotary for more than 50 years, serving in multiple leadership capacities. His 37-member family joined him in Lincoln in December 2018, to celebrate his 90th birthday with the theme of “Around the World in 90 Years.” Don traveled to 43 different countries during his wonderful life. He will be missed. Preceding him in death were his parents and his first wife Virginia, mother of his four sons. He is survived by his wife June, Lincoln; sons David, North Platte, NE; Steven, Cleveland, OH; Scott and Jeffery, Atlanta, GA; 12 grandchildren and 8 great-grandchildren. RICHARD L. SWENSON, Omaha, passed away April 7, 2019. He was born March 7, 1946. He was preceded in death by his parents, Kenneth and Leora Swenson; sister, Loretta Courter. He is survived by his wife, Norma; children, Kendall Swenson, Chrissy Stewart (Matt); stepchildren, Darren Owen, Dawn Neujahr (Greg); grandchildren: Jackson, Alex, Maddie, Mitch and Connor; sister, Vickey Swenson (Tom Parsons); many other relatives and friends.

LORI L. WILSON, 64, passed away May 12, 2019, at her home in Lincoln. Lori (Smith) Wilson was born June 7, 1954 in Hastings, Nebraska, the daughter of Hal and Margery (Galley) Smith Sr. She graduated from Hastings High School with the class of 1972. Lori received her bachelor’s degree from Lori L. Wilson Nebraska Wesleyan University in 1975 and her Juris Doctorate from the University of Nebraska College of Law in 1979. She served as an attorney for Legal Aid of Nebraska and in private practice through out Nebraska including Grand Island, Lincoln, Crete, and Beatrice. Lori was a member of the Nebraska State Bar Association, Rotary International, American Association of University Women, Saline County Child Abuse/Neglect Network. She served on many boards including; the Lincoln Homeless Coalition, Continuum of Care, Child Guidance Center, Grand Island Task Force on Domestic Violence Coalition, Beatrice YWCA, and Nebraska Tennis Association. Lori received the Ruth Miller Award for Outstanding Advocacy, Who’s Who of American Women, Outstanding Young Woman of America, and Rotary Foundation District Service Award. Lori is survived by her nephews, James Smith of North Platte, NE , Patrick Smith of Grand Island, Nebraska, and Hal (Heidi) Smith, III of Hastings, NE; niece, Leah Smith of Eugene, OR; great nephew and nieces, Brady Smith, Payton Smith, and Mariah Walker; along with sister-in-law, Debbie Smith of Grand Island, NE. She was preceded in death by her parents; brothers, Hal Smith Jr. and Gene Smith. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, 635 S 14th St. #200, Lincoln, NE 68508. 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. Your assistance is appreciated in sharing this important information with your colleagues.

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JULY/AUGUST 2019

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classified ads VA DISABILITY BENEFITS LAWYER - Berry Law Firm seeks a lawyer for its nationwide VA disability benefits practice. Named to the 2018 Inc. 5000 List of America’s fastest growing businesses, Berry Law Firm offers generous benefits, competitive compensation, and a unique culture reflecting the values of the veterans we serve. Leadership and additional practice opportunities available to the right candidate. Military or administrative law experience preferred. Medical knowledge and interest beneficial. Strong research and writing skills, admission to or eligibility for the Nebraska Bar, and an absolute commitment to veterans required. To reply in confidence, please email a recent writing sample, resume, and references to reta@jsberrylaw.com. NORTHERN PLAINS WEATHER SERVICES: Dr. Matthew Bunkers of Northern Plains Weather Services is Searching forforensic a certified consulting meteorologist (CCM) and meteorologist with over 25 years of weather analysis and LEGAL forecasting experience. He can provide reports, depositions, positions and severe and testimony in the areas of weather and forecasting, summer and winter storms, flooding, applied climatology and professionals? meteorology, agriculture meteorology, and statistics. More information is provided at http://npweather.com, and you can contact Matt at nrnplnsweather@gmail.com or 605.390.7243.

ATTORNEY: The Advocates is a personal injury practice that handles a wide range of accident cases. We are in need of an attorney, experience preferred in the areas of negligence and personal injury law. However, we will consider admitted entrylevel candidates as well. Candidates must be licensed to practice in Nebraska. We have two openings, one office in Omaha and another in Lincoln. Please submit your cover letter and resume to dfox@advocates.com. ASSISTANT CITY ATTORNEY: The City of Papillion has a job opening for an Assistant City Attorney. This is a full-time, salaried employment position, focusing on a civil municipal practice. The position requires a license to practice law in the State of Nebraska. Salary range is $70,359 - $92,670, based on experience. Interested applicants may apply online on the City of Papillion Contactwebsite, us todayfound for at the following link: https://www.papillion.org/727/Full-Time-and-Part-Timecustomized job package solutions Job-Opportunitie.

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JULY/AUGUST 2019

THE NSBA HEALTH LAW SECTION PRESENTS:

2019 HEALTH LAW SEMINAR 12:00 pm

12:45 pm

Networking lunch hosted by Baird Holm LLP [must register for in order to attend]

JULY 18, 2019 12:45 PM - 4:30 PM BAIRD HOLM LLP 1700 FARNAM STREET SUITE #1500

OMAHA

2:45 pm

Break

3:00 pm

Disciplinary Actions Against Health Care Licensees

Welcome and Introductions

Erin C. Duggan Pemberton Managing Partner, Wolfe Snowden Hurd Ahl Sitzman Tannehill & Hahn, LLP

Michael W. Chase Partner, Baird Holm LLP

1:00 pm

THURSDAY

The presentation will cover the potential sanctions a licensee may face in the disciplinary process, including providing the foundations for disciplinary actions. This session will also provide an overview of the investigation process.

Health Law Year-in-Review Michael W. Chase Partner, Baird Holm LLP

3:45 pm

Abigail T. Mohs

Jonathan R. Breuning

Associate, Baird Holm LLP

General Counsel, Baird Holm LLP

A fast-paced review of the major health care regulatory updates, case law developments, and other state and federal actions that shape policy and deal-making for health care organizations of all sizes.

2:00 pm

Reviewing several recent cases and ethics opinions, this session will address practical ethics issues likely to be confronted in day-to-day practice by both transactional and litigators, including: The importance of clarity about who you represent and who you do not represent in a corporate setting.

Defining Inappropriate Opioid Prescribing: Current Law and Policy

Fundamentals of the attorney client privilege, and unintended waiver of the privilege through multi-purpose communications, poorly structured investigations, and disclosures to third party consultants.

Kelly K. Dineen, RN, JD, PhD Assistant Professor Director, Health Law Program, Creighton University School of Law

How attorney misconduct can harm the clientâ&#x20AC;&#x2122;s substantive interests.

Over the last decade, myriad opioid prescribing laws and policies were enacted, including enhanced surveillance, investigation, and sanction of prescribers. However, existing state and federal laws offer no definitions of inappropriate prescribing. This presentation will set out a framework for defining and evaluating prescribing behavior as a necessary antecedent for sanctioning it.

A refresher and update on the rule prohibiting attorney communications with a represented party. The unauthorized practice of law and in-house counsel.

Health Law Section Networking Reception

4:30 pm

APPROVED FOR NEBRASKA AND IOWA CLE CREDIT DISTANCE LEARNING: NE MCLE #177087 IA MCLE #329043 THE NEBRASKA LAWYER

Legal Ethics for Health Care Lawyers

3.25 HOURS INCLUDING .75 HOURS OF ETHICS

REGULAR / LIVE: NE MCLE #177086 IA MCLE #329042 JULY/AUGUST 2019

8:00 am

ETHICS Corporate Strategy and Legal Ethics: Purdue Pharma Case Study Joel Pedersen, Baird Holm LLP

9:00 am

INTERNATIONAL Sanctions, Export Controls, CFIUS & FCPA Concerns in Business Operations and Cross Border Transactions Grant Leach, Husch Blackwell LLP

2019 BUSINESS LAW SEMINAR

10:00 am

Break

10:15 am

IMMIGRATION Immigration Considerations for the Business-Minded and Beyond Brian Blackford, Blackford Law LLC Heidi Oligmueller, Oligmueller Law Ryan Sevcik, Koley Jessen PC, LLO

11:15 am

PRESENTED BY THE NSBA BUSINESS LAW SECTION This program, organized by and for lawyers who practice business law,

Patrick Barrett, Fraser Stryker PC, LLO

BANKRUPTCY

12:00 pm

BUSINESS ETHICS IMMIGRATION

will cover current

INTELLECTUAL PROPERTY

HOT TOPICS

INTERNATIONAL LAW

related to:

LABOR AND EMPLOYMENT Business Lawyers – Do No Harm, Or At Least Don’t Make the Situation Worse – Advising Clients with Employees

1:00 pm

1:45 pm

TAXATION

TAX Qualified Opportunity Funds: What Nebraska Attorneys Need to Know Jeffrey R. Schaffart, Koley Jessen PC, LLO

LABOR AND EMPLOYMENT SECURITIES

Lunch provided

SECURITIES An Overview of the Current ESG/SRI Environment Justin M. Yates, First National Bank of Omaha

8:00 am - 4:30 pm FRIDAY AUGUST 23, 2019 GALLUP RIVERFRONT CAMPUS 1001 GALLUP DRIVE OMAHA

2:30 pm

Break

2:45 pm

BANKRUPTCY Helping a Client in Financial Stress Donald L. Swanson, Koley Jessen PC, LLO

3:30 pm

ACCREDITATION for Nebraska & Iowa

7.0 CLE Credit Hours & 1.0 Ethics Credit LIVE / REGULAR DISTANCE LEARNING

NE MCLE #178508 NE MCLE #178509

IA MCLE #331209 IA MCLE #331208

INTELLECTUAL PROPERTY Artificial Intelligence 101: What You Need to Know About AI and Why Rebecca Bortolotti, Advent IP AriAnna Goldstein, Baird Holm LLP James O’Connor, Baird Holm LLP JULY/AUGUST 2019

Rural Practice Initiative Associate and Summer Clerkship Placement Program Co-Sponsored by

In an effort to provide attorneys and law students with an opportunity to experience the practice of law in Greater Nebraska, the Nebraska State Bar Association is conducting its sixth annual Rural Practice Initiative Program. We hope to connect participating law students and attorneys with firms looking to hire associates in Greater Nebraska. Students participating in the program can support your firm while gaining practical experience (e.g., draft pleadings and interrogatories, shadow during court days and client meetings; research; and prepare briefs and memos). In-person interviews for our clerkship program or full-time employment will take place at the Kearney Country Club in Kearney, NE, on Friday, September 20, 2019 from noon to 5:00 pm, with a reception to follow. The goal is to provide 15-20 minutes for each interview. We estimate that each attorney will have the opportunity to interview at least six students in the afternoon. Attorneys and students will have an additional opportunity to meet and converse at a reception following the formal interviewing session. If you are interested in hiring an associate or a law clerk for the summer of 2020, please fill out the form below and return to Sam Clinch, 635 S 14th St. #200, Lincoln, NE 68508. Please respond by September 11, 2019. If you are hiring: I am hiring a full time associate and am interested in being connected with potential applicants for an associate position within my firm. c

I would like to hire a clerk for a: c 5-week clerkship c 10-week clerkship If you would like to be interviewed: I am a practicing attorney and want to interview with potential employers at the Kearney Country Club on September 20th. c

Please list your or the firmâ&#x20AC;&#x2122;s areas of practice: ____________________________________________________________________________________________ ____________________________________________________________________________________________ Name:_____________________________________________________________________________________ Firm:______________________________________________________________________________________ Address:___________________________________________________________________________________ City:_______________________________________ State:_____________ Zip:_________________________ Phone:_________________________ Email:______________________________________________________ If you have questions about the Rural Practice Initiative Associate and Summer Clerkship Placement Program, please contact Sam Clinch at sclinch@nebar.com or call at (402) 475-7091.

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JULY/AUGUST 2019

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