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

The Heck Trap

Maren Lynn Chaloupka

Questioning the Victim’s Story

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

Christopher Roth

Cybercrimes: Legislation and Current Trends Raneta Lawson Mack

The Technological Revival of the 4th Amendment John S. Berry and Kaylee M. Rudd


The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • May/June 2015 • Vol. 18 No. 3

Features

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President’s Page: She Asked the Question, But She Already Knew The Answer Amie C. Martinez

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........................................... Justin

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

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19 27

39 Ethics Advisory Opinion 15-02 42 Ethics Advisory Opinion 15-03 51 NSBA News

Questioning the Victim’s Story: Cross-Examination in a Sexual Assault Case

55 February & March 2015 VLP Pro Bono Volunteers

Roth

56 NSBA Member Spotlights 59 NSBA Section Connection

Cybercrimes: Legislation and Current Trends ...................................... Raneta

36 Ethics Advisory Opinion 15-01

Lynn Chaloupka

................................................... Christopher

60 Young Lawyers Section News

Lawson Mack

62 Upcoming CLE Programs

The Technological Revival of the 4th Amendment .........John

R. Herrmann

Departments

M. Neeley

The Heck Trap: Implications of Pleas and Verdicts for Civil Rights Liability .................................Maren

C. Martinez

Executive Director’s Report: The NSBA’s Role in Judicial Resource Allocation Elizabeth M. Neeley

.................................................Amie

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State v. Covey: Nebraska Supreme Court Distinguishes Criminal Impersonation from False Reporting

67 CLE Faculty Recognition 70 Transitions

S. Berry & Kaylee M. Rudd

73 In Memoriam 76 Legal Marketplace 76 Classified Ads

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

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

EXECUTIVE COUNCIL

President: Amie C. Martinez, Lincoln President-Elect: Robert F. Rossiter, Jr., Omaha President-Elect Designate: Thomas M. Maul, Columbus House of Delegates Chair: Timothy R. Engler, Lincoln House of Delegates Chair-Elect: Robert J. Parker, Jr., Hastings House of Delegates Chair-Elect Designate: Melany S. O’Brien, Omaha Past President: G. Michael Fenner, Omaha Past House of Delegates Chair: Joel M. Carney, Omaha First District Rep.: Kim M. Robak, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Hon. John F. Irwin, Omaha Fifth District Rep.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Supreme Court Liaison:

Warren R. Whitted, Jr., Omaha Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Executive Director:

Katie Zulkoski, Lincoln Liz Neeley, Lincoln

publications chair

P. Brian Bartels

P. Brian Bartels is an associate attorney at Kutak Rock LLP. Brian’s practice includes advising governmental, tax-exempt, and for-profit employers on health and welfare benefit plans, health care reform, fringe benefits, and qualified and nonqualified plans. 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.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Melodie Turner Bellamy, Minden Christopher P. Bellmore, Omaha James C. Bocott, North Platte Elizabeth S. Borchers, Omaha Edward E. Brink, Omaha Joel M. Carney, Omaha Thalia L. Downing Carroll, Omaha Kent E. Endacott, Lincoln Elizabeth Eynon-Kokrda Christopher M. Ferdico, Lincoln Joseph W. Grant, Omaha Tracy Hightower-Henne, Omaha Andrea M. Jahn, Omaha

Brandy R. Johnson, Lincoln Justin J. Knight, Lincoln John A. Lentz, Lincoln Jeanelle R. Lust, Lincoln Michael W. Meister, Scottsbluff Luke H. Paladino, Omaha David J. Partsch, Nebraska City Amanda M. Phillips, Omaha Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L. Schatz, Omaha Ronald J. Sedlacek, Lincoln Colleen E. Timm, Omaha

Executive Council Liaison: Robert F. Rossiter, Jr., Omaha Executive Editor: Sara Hughes shughes@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S 14th St. #200 Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 sclinch@nebar.com www.nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 • sludvik@nebar.com

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The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

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president’s page

She Asked the Question, But She Already Knew The Answer “The best way to find yourself is to lose yourself in the service of others.” - Mahatma Gandhi

Since my kids were young, they have been encouraged to perform service for the benefit of others. They began volunteering each summer following their Kindergarten year while they attended daycare—or “school,” as we called it. Their classes took them once a week to a local assisted living home here in Lincoln. There they were matched up with elderly residents. Each week, the students would go to the facility to meet with their “buddies.” They would play cards and board games and talk. The students also put together a talent show to entertain the residents. It was fun and they learned a lot along the way. The girls would come home with terrific stories about their interactions and about the tales the residents shared from their own lives. In elementary school, the girls also worked hard to raise money in their walk-a-thons to help fund the Food Bank Backpack Program. Now that spring has sprung, my two oldest girls have begun lining up their summer service projects, as they had to begin finding their own projects when they became too old to go to daycare. Their task each spring is to research and choose something that sounds interesting to them. For the last couple of summers, they have landed on a volunteer opportunity with Meals on Wheels. Once a week, the girls deliver meals to people who are in need. At each stop, they take a few minutes to interact with each of the recipients. Last night, Averie, my 12-year-old social butterfly, asked if she could please “opt out” of the service work this summer so she could spend more time with friends. Even as she asked, I could tell she already knew the answer. Still, in her best angelic voice, she asked, “Why do I have to do community service?”

Amie C. Martinez

You may have heard me say before that I may be slow, but I am not stupid. Each day I realize more and more that if I ask the right question, I can learn a lot from those around me. So this morning I asked several fellow members of the Nebraska State Bar Association, for whom I have tremendous respect, how they would answer my daughter’s question and why they believe so strongly in public service. Kim Taylor-Riley, who previously served as an Assistant State Attorney General but more recently serves as the Director of the Commission on Human Rights here in Lincoln and as the Lincoln’s Equal Opportunity Officer, told me that she believes strongly in public service because of the example set by her father. “I have enjoyed many blessings in this life, but I have also seen much unmet need. I try to do things to fill gaps—things that matter to me. So I work to support children and families and promote fairness, equity and justice. It’s nothing special, but I enjoy it.” Kim is the Co-Chair of the NSBA’s Minority Justice Committee, is a frequent speaker at CLE Events, volunteers for outreach to law students and serves on numerous other committees. Many of you know the Honorable Stefanie A. Martinez (no relation, though I would be proud to claim her if I could!) who serves her community as a County Court Judge in the Second Judicial District, following her career in private practice and as a County Attorney, an

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president’s page Administrative Hearing Officer for the Department of Motor Vehicles and a Public Defender. Judge Martinez told me that she was “raised to contribute to my family and my community in every way I could.” Like many of us, she recognizes public service as “an opportunity to meet people from different backgrounds and experiences, which helps me to appreciate what I have and create future goals for myself.” Judge Martinez is an NSBA Leadership Academy graduate and a member of the NSBA Legislation Committee and the Minority Justice Committee and is also active in the Hispanic Attorneys Section. Gail Steen, having previously been at Legal Aid of Nebraska and with the Department of Health and Human Services, takes on multiple Volunteer Lawyer Project (VLP) cases each year, volunteers at SelfHelp Desks, serves as a CLE Speaker, reviews forms for our NebDocs Program, and serves on the Juvenile Law Section Legislation Committee as its chair. She told me, “I started my law career with Legal Aid, and you quickly learn that but for a quirk of fate, your life could be your client’s life. What I can give cannot meet the need, so I should give at least something.” Jim Truell, another friend of mine who is known for being especially philanthropic, explained his belief that “within every individual, there is his or her own unique reaction to helping someone else. For some it is a chore, but for others it is as close to a liberating high that one can experience. The look of gratitude, the sigh of relief and the expression of kinship becomes more valuable than the time, the money or the other rewards that a job provides.” Jim spoke about the overarching goodness resulting from service to others. “There is nothing greater than striving to make all people as happy and productive as possible. It is what makes us human. We succeed for the common good, not just that of the individual.” Jim has been involved in dozens of VLP cases as well as volunteering at the Grand Island Self-Help Desk. The incomparable Susan Spahn, who has spent countless hours working with the Supreme Court helping address the guardian/conservator crisis in our state as well as serving our NSBA Legislation Committee, said: “Anytime I have helped someone else,

THE NEBRASKA LAWYER

it always makes me feel good. I may grouse about the time something is going to take beforehand, but not afterwards. The more you give, the more you get back.” The list of remarkable volunteers across Nebraska is endless. I wish I could recognize each of them by name here, but space prevents me from doing so. You know them. And you know they are good people. Another great believer in service – who asked that I not identify him by his name, which you would undoubtedly recognize – told me this: “I give back professionally because I feel fortunate to be in this profession and I would like to see the system of justice improved for everyone. I look back on my career and among the most satisfying items I have handled are those where I felt I really helped someone else.” In the end, that seems to be the real answer. What matters most is helping someone. And that’s how I left it with my daughter. I asked her to answer her own question – something she has grown very accustomed to me doing. (It has proven to be pretty entertaining on occasion!) Averie said she does community service to give back to others in the community – especially to those who are not as fortunate as she is. In the spirit of public service, and to help you get that “feel-good feeling,” I am thrilled to offer you an amazing opportunity to help those you will never know, to feel the sense of accomplishment from giving the gift of time and to have a blast while you are doing it! On Friday, October 9, the final day of the NSBA Annual Meeting at the Embassy Suites in La Vista, we are hosting a Public Service Project onsite at the hotel. There is no training necessary or prep time required. All we need from you is to show up and be ready to work a little, and chat and laugh a lot, while standing shoulder to shoulder with fellow NSBA members. Please mark it on your calendars and plan to attend. I promise you will be glad you did!

Amie C. Martinez, President Phone: (402) 477-8800 Email: acm@acwlaw.com

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executive director’s report

The NSBA’s Role in Judicial Resource Allocation

Elizabeth Neeley

The Judicial Resources Commission In Nebraska, the Legislative Branch controls the allocation and reallocation of trial court judges. For example, legislation must be introduced and passed before the number of judges is increased or decreased, a judge is moved from one judicial district to another judicial district, or the number of judicial districts or judicial district boundaries is changed. Recommendations for such legislative changes are usually made by the Judicial Resources Commission (JRC),1 a statutorily created body whose membership includes four judges appointed by the Supreme Court to represent the courts (District, County, Juvenile, and Supreme); six members of the NSBA appointed by the NSBA’s Executive Council to represent each of the six Supreme Court judicial districts; and seven public members representing the six Supreme Court judicial districts and one at-large public member, all appointed by the Governor. When a vacancy occurs in a judicial district because a judge dies, retires, resigns or is removed, the JRC, after holding a public hearing, determines whether a new judge should be appointed in the same judicial district where the vacancy occurred or whether the judge’s position should be moved and filled in another judicial district. If the JRC determines that the vacancy should be filled in the same judicial district where the vacancy occurred, the JRC notifies the appropriate Judicial Nominating Commission, through the Clerk of the Supreme Court, of its determination. If the JRC determines that the vacancy should be filled in a judicial district other than where it occurred, the JRC reports its determination in the form of a recommendation to the THE NEBRASKA LAWYER

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Legislature. The vacancy will remain unfilled until legislation is passed, statutorily moving the position from one judicial district to the recommended judicial district. Once the legislation goes into effect, the appropriate Judicial Nominating Commission is notified. The JRC is also responsible for making recommendations to the Legislature as to whether there should be an increase or decrease in the number of judgeships or whether the current number of judicial districts or judicial district boundaries should be changed. These recommendations are formulated after holding a public hearing and are based upon an analysis of judicial workload statistics; whether litigants in the judicial district have adequate access to the courts; the population of the judicial district; other judicial duties and travel time involved within the judicial district; and other factors determined by the Supreme Court to be necessary to ensure efficiency and maximum service. Occasionally, the hearings held by the Judicial Resource Commission can be quite controversial, particularly in times where certain communities are perceived to have a surplus of judicial resources while others are perceived to have a deficit. For the time being, the supply and demand of judicial resources appears relatively even across the state and the recent hearings held by the Judicial Resource Commission have not been controversial. They are, however, frequent. In the past 4 years, the state of Nebraska has had 42 judicial vacancies. With many members of the judiciary representing the baby boomer generation, this trend is expected to continue (see chart and graph on Judges’ Ages by Court provided by the Administrative Office of the Courts).

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executive director’s report

Judges’ Ages by Court

County Court  Court of  Appeals  District Court  Juvenile Court  Supreme  Court  Workers'  Compensation  Court 

Number Lowest  Highest  Average  of  Age   Age  Age  Judges  58  40.8  77.3  56  6 

51.6

69.5

60

56

39.3

72.4

59

11

43.4

65.3

59

7

59.5

77.0

69

7

44.4

71.8

58

The NSBA’s Judicial Resource Committee

80 70 60 50 40 30 20 10 0

Years of age

Judge Type 

Providing sufficient judicial resources is important. It impacts citizens’ access to the justice system and impacts the practice of law in local communities. The NSBA advocates for adequate judicial resources and participates in each of the Judicial Resource Commission hearings. This is done through the NSBA’s Judicial Resource’s Committee. Prior to each hearing of the state’s Judicial Resources Commission, the NSBA’s Committee convenes via conference call to review judicial workload statistics and hear directly from local members of the legal profession and/or judiciary on matters pertaining to the creation, elimination or movement of judicial positions across Nebraska’s courts. The Committee establishes the NSBA’s official position on judicial vacancies and conveys that position to the Judicial Resources Commission in writing and through testimony at the Commission’s public hearing. The Committee is also responsible for proposing, considering and commenting upon legislation which creates, abolishes, moves or otherwise changes judicial positions or vacancies.

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Judges' Average Ages by Court 60

59

59

69

58

Members of the NSBA’s Judicial Resources Committee Chair, Timothy R. Engler, Lincoln Julie E. Bear, Plattsmouth Michael S. Borders, Broken Bow Patrick M. Connealy, Chadron Michael R. Dunn, Falls City Marsha E. Fangmeyer, Kearney G. Michael Fenner, Omaha John P. Grant, Omaha Stephen P. Herman, Curtis Robert M. Hillis, Fremont Milissa D. Johnson-Wiles, Lincoln Melany S. O’Brien, Omaha Robert F. Rossiter, Jr., Omaha Ronald E. Temple, Norfolk

Any member of the NSBA should feel welcome to weigh in on issues related to the allocation of judicial resources. If a vacancy is forthcoming in your judicial district, please feel free to contact the NSBA about providing testimony on the need to maintain or move the judgeship.

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

Endnote 1

Neb. Rev. Stat 24-1201, et. seq.

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feature article

The Heck Trap: Implications of Pleas and Verdicts for Civil Rights Liability by Maren Lynn Chaloupka

Introduction After a violent fight with his estranged wife, Tom is booked into the Herbert County Jail on suspicion of domestic assault. Tom carries a diagnosis of bipolar disorder with psychotic features, and when the jail substitutes a cheaper and less effective medication for Tom’s normal regimen, Tom decompensates even further. He requests his normal medications, complains about the noise in his unit and pleas for his public defender to come see him. When he disobeys an officer’s order to stop looking through a window, the officer physically redirects Tom away from the area, writes Tom up for refusal to comply and moves Tom to segregation. Tom’s paranoia intensifies the next day and officers decide to extract him from his cell. The officers do not follow institutional policies regarding cell extractions, nor do they abide by their training in cell extractions. Among the policies they fail to follow is the preservation of video footage of the cell extraction – thus there is no record of what occurs in Tom’s cell. Tom reports that he was attacked and beaten, whereas the officers allege that Tom charged

Maren Lynn Chaloupka

them and forced them to defend themselves. Tom feels strongly that the officers were unjustified in initiating the cell extraction and in their use of force inside his cell, and he is outraged that the officers “lost” the video footage. He tells his criminal defense lawyer that he wants to sue the officers for violating his rights. Based on the officers’ reports, the county attorney charges Tom with assault on an officer, a Class IIIA felony. Six months later, due to inconsistencies in the officers’ accounts of events leading up to the cell extraction and inside Tom’s cell, the county attorney eventually offers Tom the opportunity to plead “guilty” to disturbing the peace, a Class III misdemeanor. Disturbing the peace is defined as “intentionally disturb[ing] the peace and quiet of any person, family, or neighborhood.” By accepting this offer, Tom reduces his jeopardy from five years in prison to three months in the county jail. He pleads “guilty” and sues the correctional officers under 42 U.S.C. § 1983 for using excessive force against him in the course of the cell extraction and for failing to preserve videographic evidence that he could have used in his defense. Counsel for the correctional officers moves to dismiss the case, arguing that Tom’s plea bars his civil rights action. The first morning after learning of the motion to dismiss, Tom is waiting outside of his criminal defense lawyer’s office with questions: “Is this right? You mean that as long as I plead ‘guilty’ to anything, the officers get away with it?”

Maren Lynn Chaloupka is a civil rights, criminal defense and personal injury attorney based out of Scottsbluff, Nebraska. She is a partner in Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama, the firm founded by her beloved father, Bob Chaloupka.

And: “Why didn’t you tell me this before I pled out?” As if a criminal defense attorney needed more serious concerns to address in the high-stakes course of counseling a client on the advisability of accepting a plea offer, this article addresses one more concern: the impact of a “guilty” or “no contest” plea or, for that matter, the impact of a “guilty” verdict, on whether the client may bring a 42 U.S.C. § 1983 action for

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The Heck Trap civil rights violations relating to his or her law enforcement encounter. This scenario arises where, as in Tom’s case, one single incident gives rise to both criminal assault charges and allegations of excessive force by a state actor. This scenario may also arise where a state actor violates a criminal defendant’s rights after he is taken into custody, such as through an illegal search or a Brady violation. Reflexive defenses of “you pled, so you can’t sue” oversimplify a labyrinthine body of decisional authority delineating when a criminal defendant pleads himself out of the opportunity to sue. This article provides an overview of the origin and intent of the limitation on a criminal defendant’s right to bring a § 1983 action. That limitation is far from absolute, however, and I attempt in this article to identify the avenues by which our criminal defense clients may preserve their right to pursue civil rights accountability while accepting plea offers to reduce their criminal jeopardy.

Heck v. Humphrey Rickie Heck’s divorce proceedings from her husband, Roy Heck, Sr., were interrupted when Rickie disappeared from all contact in early January 1986. Rickie’s disappearance followed weeks of household rancor: Roy had beaten Rickie, and he faced trial for that assault in the very week that Rickie disappeared. On the night of her disappearance, some neighbors saw Rickie engaged in a heated argument with a “tall young man” who fit Roy’s description.1 Another neighbor could not see who Rickie was arguing with, but later thought she could identify the sound of that man’s voice. Rickie disappeared, and Roy skipped his assault trial. He told people that Rickie had gone on a trip. He asked his daughter and girlfriend to remove Rickie’s possessions from his home. He also asked them to phone police, pretending to be Rickie, ostensibly to urge police to stop looking for her. Roy also asked the women and a roofer to cover a sinkhole on the couple’s Indiana farm. Ten months after Rickie disappeared, police executed a warrant to search the site of that sinkhole; they found Rickie’s decomposed body, including her broken jaw, in the sinkhole.2 The State of Indiana prosecuted Roy for Rickie’s death, charging voluntary manslaughter because the level of decomposition prevented its pathologist from identifying the cause of Rickie’s death. In his defense, Roy suggested that someone else killed Rickie, perhaps his own daughter. Roy presented evidence that his daughter held a grudge against Rickie because when she told Rickie she had been raped, Rickie had told the daughter that the rape was her own fault.3 Roy fought particularly hard against the admission of testimony from the neighbor who thought she could identify Roy’s voice: he attacked the police for playing one isolated recording of Roy’s voice for the neighbor, rather than a presenting the neighbor with a fair voice identification array or lineup.4 THE NEBRASKA LAWYER

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But the jury convicted Roy, and the court sentenced him to 15 years in prison. Roy sought a writ of habeas corpus in federal court, arguing that the State had neither proven the cause of Rickie’s death nor that he had killed her intentionally.5 He reasserted his argument against the admission of the neighbor’s voice identification testimony, based on the police’s procedure in obtaining the neighbor’s agreement that it was Roy’s voice she heard arguing with Rickie. The federal district court denied Roy’s request for a writ; and while the United States Court of Appeals for the Seventh Circuit questioned the reliability of the voice identification, it concluded that any error in admitting the voice identification testimony was harmless.6 While his direct appeal was still pending in the Indiana state courts, Roy had filed a pro se 42 U.S.C. § 1983 action against two prosecutors and the police investigator. Roy alleged that the police and prosecutors “engineered [his] conviction for murder”7 by destroying exculpatory evidence and engaging in unlawful investigatory practices, to include the manner in which police procured Roy’s neighbor’s identification of Roy’s voice eighteen months after the argument the neighbor overheard. Although the alleged constitutional violations directly implicated the legality of his confinement, Roy did not ask for release or for a reduced sentence; he sought monetary damages only. The district court dismissed Roy’s § 1983 case without prejudice, on a finding that Roy had not exhausted his state remedies. The Seventh Circuit upheld the district court’s decision, writing that if, regardless of the relief sought, a plaintiff [in a federal civil rights action] is challenging the legality of his conviction, so that if he won his case the state would be obliged to release him even if he hadn’t sought that relief, the suit is classified as an application for habeas corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so.8

Roy appealed that decision to the United States Supreme Court. The Supreme Court held that the fact of Roy’s conviction barred his § 1983 claim. In a previous decision9, the Court had held that a habeas corpus proceeding is the exclusive remedy for a state prisoner who seeks to challenge the fact or duration of his confinement and seeks immediate or speedier release. Now presented with Roy’s request for money damages allegedly caused by the flawed voice identification evidence and other alleged misconduct, the Supreme Court stated that when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. If it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.10 M ay / J u ne 2 0 1 5


The Heck Trap obstructing:

The Heck court’s summation was that in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.

Therefore, a person may not use force to resist an arrest made by one he knows ... is performing his duties, regardless of whether the arrest is illegal under the circumstances of the occasion.15

Put otherwise, the plaintiff could have been convicted of resisting and obstructing without having committed an assault, “and even where the officer used excessive force.”16

But, the Court cautioned, “where the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.”11 The result of Heck is to limit or bar civil rights claims in which the a criminal defendant pleads “guilty” or “no contest” to, or is found guilty of, offenses for which he or she is charged arising out of the abusive or wrongful arrest. For example, in Adams v. Dyer12, the United States Court of Appeals for the Tenth Circuit held that Heck barred an excessive force claim brought by a plaintiff who alleged that officers had entered his bedroom and begun assaulting him without first announcing themselves or ordering him to do anything. The plaintiff had presented evidence of that claim in defending against criminal charges of resisting arrest and second-degree assault on two police officers: under the state statutes identifying the elements of those charges, excessive force was an affirmative defense. The jury in the criminal trial had thus considered, and rejected, the plaintiff’s excessive force claim when it found the plaintiff guilty of resisting arrest and assaulting the officers. Thus the plaintiff’s subsequent § 1983 claim “squarely call[ed] into question the legitimacy” of the convictions because the district court would have had to nullify the rejection of the excessive force defense by the jury in the criminal trial. The plaintiff in Rogers v. Detroit Police Dept.13 sued the city and various police officers, alleging excessive force and other claims arising from his arrest. One of the defendant officers had observed the plaintiff surveying a residence and approached him. The plaintiff fled by foot and tried to climb over a fence. The defendant officer shot him in the leg. The plaintiff was convicted, after a bench trial, of “resisting and obstructing an officer causing injury.”14 Based on that conviction, the officer claimed that the plaintiff’s claim was barred by Heck. The officer argued that if he had used excessive force, or if the plaintiff had not assaulted him, then the plaintiff could not have been convicted of “resisting and obstructing an officer causing injury.” But, as the Rogers court observed, “in Michigan, a [criminal] defendant may be convicted of resisting and obstructing without necessarily committing an assault and battery.” The lawfulness of an arrest was not an element of the charge of resisting and THE NEBRASKA LAWYER

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Advising Your Criminal Defense Client Thus the outcome of a criminal proceeding, via plea or via verdict, can impact whether a criminal defendant may seek accountability for the violation of his civil rights. Where a criminal defendant suffered harm from the violation of his civil rights, his or her attorney must analyze whether a plea or verdict will invalidate the client’s ability to bring a civil rights claim arising out of that law enforcement encounter. If “yes,” the criminal defense attorney should include that fact when fully informing his or her client of the consequences of accepting a plea offer or of risking a guilty verdict at trial. While counsel should not urge a criminal defendant to reject a plea offer that protects his interests merely for the chance of collecting damages years later in a civil rights action, counsel should advise the client that pleading “guilty” or “no contest” to assault on a police officer in exchange for a favorable sentencing recommendation (for example) may very well end any plans to sue that officer for excessive force used in the same incident as the alleged assault on the officer. But if the answer is “no” – if a successful outcome in the § 1983 case would not “demonstrate the invalidity of any outstanding criminal judgment against the plaintiff”17 – then the fact of the conviction would not bar the suit under Heck. Many claims that concern how police conduct searches or arrests are “nonetheless compatible with a conviction.”18 A plaintiff bringing a § 1983 claim arising from his or her criminal case need not prove that any conviction arising from a police encounter has been invalidated – only a conviction that could not be reconciled with the claims of his civil action.19 For example, the admission of illegally seized evidence can lead to a conviction without vitiating a § 1983 challenge to its seizure. The exclusionary rule is used in only a subset of all constitutional violations—and excessive force in making an arrest or seizure is not a basis for the exclusion of evidence.20 Just so, if a criminal defendant pleads guilty but his coerced confession plays no part in the criminal proceeding, Heck does not bar a § 1983 claim based on an officer’s acts in obtaining an invalid confession.21 If a plaintiff is unlawfully arrested without probable cause, his § 1983 claim accrues before any conviction.22 And Heck does not in fact automatically bar all excessive force claims where a criminal defendant is ultimately convicted of resisting arrest.23

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The Heck Trap Properly advising and fully informing a criminal defense client requires study and analysis, if not consultation with another attorney specializing in civil rights litigation. Take into account the following considerations:

1) Review the elements of the criminal offenses for which your client may be convicted. Carefully review the statutory elements of the offense for which the criminal defendant will be convicted if he or she pleads “guilty” or “no contest,” or if he or she is convicted after trial. Not every conviction that could result from a law enforcement contact will “imply the invalidity of his conviction or sentence,” which would trigger the Heck bar.24 Heck is inapplicable where the elements a civil rights plaintiff must prove would not negate the elements of the charge for which he was arrested or convicted.25 Morris v. Noe26 was an appeal from an order denying a defendant police officer’s motion for summary judgment based on qualified immunity. The plaintiff’s husband sustained hip injuries when officers tackled him in the course of an arrest. The husband was unarmed at the time of the takedown, never threatened the officers with words or gestures, and never approached within reach of the officers.27 When the officers approached the husband, the husband backed away.

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Ultimately the husband was charged with public intoxication, and pled guilty to that offense. After the husband died of unrelated causes, the widow, as personal representative of his estate, sued the officers and their agency for excessive force and unlawful arrest under 42 U.S.C. § 1983. The officers moved to dismiss, arguing inter alia that the husband’s guilty plea to public intoxication barred his § 1983 claim: specifically, the officers argued that the husband was only arrested when he was cited for public intoxication, not when the officers tackled him. The plaintiff responded that the arrest took place at the moment of the takedown. The plaintiff further argued that the officers did not actually “arrest” the husband for public intoxication, but rather issued him a citation for that offense.28 The district court held that any finding that the defendants lacked probable cause to arrest the husband for public intoxication would necessarily imply the invalidity of his conviction, making the case eligible for dismissal under Heck. The United States Court of Appeals for the Tenth Circuit disagreed, finding that the estate would not need to negate any element of the offense of which the husband was convicted in order to prove that the officers used excessive force. It held that [t]he lawfulness of the takedown was a question distinct from the lawfulness of the public intoxi-

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The Heck Trap cation citation; and a suspect’s proof that police lacked probable cause to arrest him does not necessarily imply the invalidity or unlawfulness of his conviction for the underlying offense.29

The officer did not arrest the husband for the “underlying offense” of public intoxication – he arrested the husband for a different offense that was never charged. The officer only realized that the husband was intoxicated after tackling and restraining him. That the husband pled guilty to public intoxication did not trigger Heck and did not vitiate the officer’s liability for using excessive force.

2) Review the actions of each person involved in an arrest or investigation. It matters whether the officer who effectuated the arrest is the same officer who allegedly assaulted the criminal defendant. After he was convicted of assault and of resisting arrest, the plaintiff of Adams v. Dyer30 sued his three arresting officers for excessive force. As to two of the officers whom the plaintiff was convicted of assaulting, the United States Court of Appeals for the Tenth Circuit found that the allegation that the officers assaulted the plaintiff without provocation would call into question the plaintiff’s conviction for assaulting them. But the record failed to answer whether the plaintiff’s interaction with the third officer was part of the underlying state charges; thus the Adams court found that Heck did not bar the claim against the third officer, at least for 12(b)(6) purposes.

3) Review the sequence of events. It is also critical to ascertain whether the officer violated a criminal defendant’s civil rights in the same act as the act for which the criminal defendant faces conviction, as opposed to before or after the criminal defendant commits the predicate acts underlying potential conviction. Illustrating this distinction is the case of Smith v. City of Hemet31, which featured evidence that the plaintiff’s conviction arose from unlawful behavior that took place while he stood alone and untouched on his porch, i.e., during the course of officers’ investigation of his wife’s allegations. The fact that the officers used excessive force in the course of the arrest rendered the arrest unlawful, but did not render the officers’ preceding investigation unlawful, nor invalidate a conviction for obstructing the investigation. Because nothing in the record identified the factual basis for the plea, it was entirely possible that the plaintiff pled guilty to obstructing a police officer on the basis of his actions during the time that the officers were conducting their lawful investigation. As a result, his lawsuit did not necessarily imply the invalidity of his conviction and was not barred by Heck. The Smith court separated the officers’ actions into two “phases”: the investigative phase, during which the plaintiff refused to cooperate; and the arrest phase, during which the officers used physical force. During the investigative phase, THE NEBRASKA LAWYER

11

the officers issued only verbal commands, all of which were well within the bounds of their general police powers. It was undisputed that the plaintiff disobeyed those verbal commands. That the officers used excessive force during the subsequent arrest did not render their preceding investigation unlawful; nor did the subsequent use of excessive force invalidate the plaintiff’s conviction for obstructing that investigation.32 The reference to “phases” suggests a measure of formal separation, if narrow, between the investigation and arrest. The Smith court directed courts to examine the officers’ actions rather than the plaintiff’s actions: “As long as the officers were acting lawfully at the time the violation of [the statutory offense committed by the plaintiff] took place, their alleged acts of excessive force, whether they occurred before or after [the plaintiff] committed the acts to which he pled, would not invalidate his conviction.” By this analysis, the key question is whether the moment at which the criminal violation occurred is separate from the moment at which the constitutional violation occurred. If so, the fact of a conviction should not bar a criminal defendant from challenging the violation of his civil rights.

4) Review whether Brady violations forced a worse result in the second trial than your client will obtain on retrial. After the plaintiff of Poventud v. City of New York33 was convicted of attempted murder, he successfully challenged his conviction by showing violations of his rights under Brady v. Maryland – specifically, evidence that the officers had violated department policies by failing to preserve a photo array in which the victim identified a different man as the shooter. After his conviction was vacated, plaintiff pled guilty to a lesser charge of attempted robbery, and was immediately released from prison. Then the plaintiff sued the City of New York and several police officers under § 1983 for the Brady violations identified by the court that vacated his conviction. The defendants moved for summary judgment, asserting the Heck bar. The plaintiff argued that his plea to attempted robbery had nothing to do with his § 1983 claim, which concerned his jury trial conviction that a state court had vacated due to the officers’ Brady violations. The district court reasoned that the undisclosed exculpatory evidence was connected to the plaintiff’s alibi defense in his criminal trial, making the plaintiff’s alibi factually inconsistent with his subsequent guilty plea and thus triggering the Heck bar.34 The United States Court of Appeals for the Second Circuit rejected that reasoning: The district court’s view incorrectly presumes that, on the facts of this case, the State could violate [the plaintiff’s] Brady rights only if [the plaintiff] is an innocent man. This last restriction

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The Heck Trap

Endnotes

has no basis in the Brady case law: materiality does not depend on factual innocence, but rather what would have been proven absent the violation.35

Paraphrasing United States v. Coppa, the Poventud court explained that “the scope of a defendant’s Brady-based constitutional right is ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial.”36 Heck thus does not prevent a plaintiff from arguing to the jury that he would have been acquitted based on reasonable doubt, or convicted on a lesser charge, but for the Brady violation. Heck would, however, be triggered if a plaintiff includes claims relating to whatever conviction follows judicial recognition of Brady violations and concomitant order for retrial. Heck would also be triggered if the plaintiff sought damages for the time he served pursuant to such a second conviction. But the fact of accepting a plea agreement after a successful appeal does not per se prevent a criminal defendant from pursuing a § 1983 action based on Brady violations that led to his first conviction. “Even when a defendant is retried, a § 1983 suit concerning the earlier trial cannot impeach the new trial’s result.”37 When a court vacates a conviction, it invalidates the final judgment from the state criminal trial – and irrespective of the ultimate outcome on retrial, any proceedings that follow cannot repeat the Brady violation at issue. By pleading to a better outcome on retrial, a criminal defendant does not ipso facto plead himself into Heck and out of the opportunity to hold a wrongdoing state actor accountable.

1

Heck v. State, 552 N.E.2d 446 (Ind. 1990).

2

Id. at 449.

3

Id. at 452.

4

Id. at 454.

5

Heck v. Richards, 976 F.2d 735 (7th Cir. 1992) (unpub. op.).

6

Heck v. Richards, 976 F.2d 735, at *2.

7

Heck v. Humphrey, 997 F.2d 355 (7th Cir. 1993).

8

Heck v. Humphrey, 997 F.2d at 357.

9

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

10 Heck 11 Id.

v. Humphrey, 512 U.S. 477, 486-87 (1994).

at 487.

12 Adams

v. Dyer, 223 Fed. Appx. 757 (10th Cir. 2007).

13 Rogers

v. Detroit Police Dept.,595 F. Supp.2d 757 (E.D. Mich.

2009).

14 Id.

at 759.

15 Id.

at 769.

16 Id.

at 769-70. See also Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) (holding that Heck did not bar a § 1983 claim for excessive force because a conclusion that the def’s use of force was objectively unreasonable would not necessarily call into question the plaintiff’s criminal conviction for assault); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006) (if Heck bars excessive force claims whenever a plaintiff is convicted of resisting a lawful arrest, then “police subduing a suspect can use as much force as they wanted and be shielded from accountability under civil law, as long as the prosecutor could get the plaintiff convicted on a charge of resisting”).

17 Heck,

512 U.S. at 487.

18 Evans

v. Poskon, 603 F.3d 362, 363-64 (7th Cir. 2010).

19 Poventud 20 United 21 Taylor

v. City of Chicago, ___ F. Supp.3d ___, 2015 WL 739414 (N.D. Ill. 2015).

Summation: Nothing Is Easy

22 Wallace

Even where the need to pursue civil rights accountability is not at issue, plea negotiations require difficult decisions and painful compromises. The difficulty of the decision enhances when those compromises seem to require allowing a state actor who violated his rights to walk away without accountability. A criminal defendant need not assume that the viability of her civil rights case dies if she accepts a plea; but nor should the potential for a Heck bar be forgotten by the attorney advising her client of the consequences of the plea. Where a criminal defendant has expressed a desire to seek § 1983 liability, consider the implications and elements of the plea offer and, if appropriate, consult a civil rights specialist. Where our clients have suffered serious violations of their civil rights, to unwittingly bargain away their ability to seek accountability for those violations would wreak heartbreak that neither lawyer nor client should experience.

24 This

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23 Van

12

v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014).

States v. Jones, 214 F.3d 836 (7th Cir. 2000).

v. Kato, 549 U.S. 384, 397 (2007).

Gilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006).

includes convictions pursuant to a plea of “no contest”: what matters is the fact of the conviction, not whether the criminal defendant admitted guilt.

25 Jones

op.).

v. Pillow, 2004 WL 2583614 (N.D. Tex. 2004) (unpub.

26 Morris 27 Id.

v. Noe, 672 F.3d 1185 (10th Cir. 2012).

at 1192.

28 Morris, 29 Id.

30 Adams 31 Smith 32 Id.

672 F.3d at 1191.

at 1193 n.2. v. Dyer, 223 Fed. Appx. 757 (10th Cir. 2007).

v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc).

at 698.

33 Poventud

v. City of New York, 750 F.3d 121 (2d Cir. 2014).

34 Poventud, 35 Id.,

750 F.3d at 127.

750 F.3d at 134.

36 Id.

(citing United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001).

37 Smith

v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000).

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feature article

Questioning the Victim’s Story: Cross-Examination in a Sexual Assault Case

by Christopher Roth

In a recent sexual assault case I was trying, I posed this question to jurors during voir dire: “Is it okay to have a conversation about rape?” Most jurors answered in the affirmative, and the overwhelming reason jurors gave was that people need to talk about sexual assault out in the open, instead of hiding it away or pretending sexual assault does not happen. The next question I asked: “Is it okay to question whether a rape actually occurred?” No jurors raised their hands or wanted to answer the question, and the silence was deafening. Of course, I was trying to ask in a roundabout way whether the jurors could do their civic duty and give my client a fair trial. I then shifted the discussion to a fairly recent news story involving an alleged sexual assault on the University of Virginia campus of a young woman named Jackie, and a magazine article by Rolling Stone with the woman’s story.1 The story gave an account that accused members of a fraternity of sexually assaulting Jackie. The initial Rolling Stone article sparked a series of protests on the University of Virginia campus, with many taking up

Christopher Roth Christopher Roth is an associate attorney with Kasaby & Nicholls, LLC, in Omaha. He practices in the fields of criminal and immigration law and routinely represents clients in sexual assault cases.

the rallying cry of Jackie. The President of the University suspended all fraternities on campus. Virginia politicians released statements that they were shocked and troubled by the Rolling Stone report. United States Senator Mark R. Warner stated that he was “deeply troubled” by the Rolling Stone article and that “it’s time that Congress, universities, and law enforcement authorities work together to combat this epidemic.”2 Facts later came out to put the young woman’s story into question, and also put into question whether Rolling Stone completely and accurately presented an objective news story. Later, the Charlottesville, VA, police released a statement finding that no evidence existed to verify the Rolling Stone article. The initial reactions to the Rolling Stone article—specifically the reactions from those who assumed it was 100% true, and then the reactions to the later discoveries that the story was inaccurate—left me wondering how and when we should question whether a sexual assault has actually occurred? I cannot answer this question for the average citizen, but I know that there are at least two people who have a duty to question whether a rape occurred: the judicial factfinder and the criminal defense attorney. As a criminal defense attorney, I know it is my job to fully and accurately investigate allegations of sexual assault against my client and to defend my client against these allegations. But how does a criminal defense attorney conduct a thorough and well-rounded questioning of a sexual assault victim, and what kind of legal limitations will the criminal defense attorney encounter in his or her questioning of a sexual assault case? Obviously, the criminal defense attorney should do everything he or she can do to zealously represent and advocate for his or her client. An accused person has the right, under the Sixth Amendment to the U.S. Constitution, to confront wit-

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13

M ay / J u ne 2 0 1 5


questioning the victim’s story nesses against him. This right includes the opportunity to completely and thoroughly cross-examine witnesses presented by the State, though the right to confrontation may be limited in some instances in a sexual assault case.4

Sexual Assaults Are a Special Class of Cases The criminal defense attorney will discover that sexual assault cases are a special class of cases, and there may be rules in place due to the special circumstances a sexual assault presents.5 The old rule in sexual assault cases in Nebraska was that an alleged victim’s story had to be corroborated. However, under current law, a sexual assault case can be brought in Nebraska on the alleged victim’s story without corroboration.6 Given all these factors, an attorney representing a client accused of a sexual assault has to give more analysis and deeper thought than in any other criminal case when preparing a defense and cross-examination of the alleged victim. The criminal defense attorney may have to strive for sensitivity when questioning the victim due to the victim’s age. Forty-four percent of sexual assault victims in the U.S. are under the age of 18, while 15 percent of victims are under the age of 12.7 Nearly 30 percent of child victims are between the ages of four and seven.8

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14

Given the fact that a sexual assault allegation can be based upon an alleged victim’s story alone, there is also the chance that an allegation may be false—the issue of how much of a chance is the subject of debate. One study and accompanying graphic that was circulated and tweeted following the Rolling Stone story said just two percent of sexual assault reports are false.9 Other research has put the numbers as high as 41 percent.10 Recent studies have found the figure to fluctuate between two and eight percent.11 One thing is for certain: even if there is only a two percent chance my client has been falsely accused of sexual assault, I know I must fight the allegations.

Nebraska’s Rape Shield Law The rule that a defense attorney will often have to deal with in sexual assault cases is Nebraska’s Rape Shield Law. In 2010, the Nebraska Unicameral adopted the full version of the Rape Shield Law modeled after Federal Rule 412.12 Neb. Rev. Stat. § 27-412 tells us that any evidence of the alleged victim’s sexual behavior or sexual predisposition is not relevant, except in certain circumstances, including the following: the sexual history of the victim with the accused to show consent; sexual history of the victim to show an alternative source for physical evidence; or any other evidence which should be admitted to preserve the accused’s constitutional rights.13

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questioning the victim’s story To introduce evidence concerning a victim’s sexual behavior, a proponent of the evidence must first give notice through a written motion to the court at least 15 days prior to trial, unless good cause is shown to excuse the notice requirement. (Such as an accused learning of the facts at issue during trial).14 However, given the fact that the Sixth Amendment Right of Confrontation is at issue, the 15 day deadline may not be an absolute bar to use of the evidence.15 If notice is timely given, the court will hold an in camera hearing to determine the admissibility of the evidence.16 The proponent of the evidence first has to determine whether the proposed evidence falls within the scope of the statute. Nebraska’s Rape Shield Law, much like the federal law it was patterned after, “aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process.”17 The law excludes evidence in the form of sexual behavior and sexual predisposition of the victim, the former referring to specific instances of conduct and the latter referring to general reputation or character evidence about the victim.18 The Nebraska Supreme Court very recently clarified the scope of the evidentiary rule, deciding that evidence of an intimate relationship with someone other than the accused does not fall within the statute, even if the jury may potentially infer that the relationship was of a sexual nature.19 This is noteworthy because evidence of a “committed romantic relationship” between adults may lead a jury to infer there was a sexual component to the relationship, but could still provide motive to lie about the occurrence of a sexual assault.20 Further, the exclusion of evidence regarding the romantic relationship with a third party is not harmless error when the State’s case rests largely upon the testimony of the victim.21 If the proposed evidence falls within the scope of the evidentiary rule, the next step is to determine if an exception applies. The first exception is whether the proposed evidence is “offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.”22 A defendant may have to show a causal connection between the injury or physical evidence and the alleged sexual behavior by the victim which could have been the source of the injury.23 For example, evidence of sexual behavior three or four days prior to a sexual assault being reported would not be admissible if a doctor testifies the injury could have only occurred one day prior to the reporting.24 The second exception to the rule is “evidence of specific instances of sexual behavior of the victim with respect to the accused offered by the accused to prove consent of the victim if it is first established to the court that such behavior is similar to the behavior involved in the case and tends to establish a patTHE NEBRASKA LAWYER

15

tern of behavior of the victim relevant to the issue of consent.”25 The first step in admitting evidence under this exception is the defendant raising the defense of consent.26 A defendant has to then show two separate things: (1) that the prior, consensual, sexual instances are related to the alleged nonconsensual sexual instance; and (2) that the alleged sexual assault was actually consensual.27 In other words, it is not enough to simply show the victim had sex with the defendant on a prior occasion. Rather, the defendant must adduce evidence showing the victim consented to the sexual instance on the date of the alleged sexual assault.28 A defendant may be precluded from presenting consent evidence regarding past sexual behavior of the victim with the defendant if the sexual behavior is too remote in time, if the past sexual behavior is too dissimilar to the alleged sexual assault, or if a certain injury prevents the possibility of consent.29 However, the defendant does not have to show the alleged sexual assault was exactly akin to prior consensual sexual occurrences.30 The evidentiary rule “does not require the defendant to color-match intimate details of those past relations with the act in question in order to show relevancy.”31 The third and final exception to the rule is whether the exclusion of the evidence would “violate the constitutional rights of the accused.”32 The Nebraska Supreme Court has treated this question in the context of whether the prosecution put the sexual behavior or predisposition of the victim at issue, “thus opening the door.” If the prosecution argues that the victim is a lesbian and therefore would not consent to sex with a male, the door has been opened to the defense presenting evidence that the victim has had sexual intercourse with a male before.33 There is no set rule as to when the door has been opened; courts will examine this question on a case-bycase basis.34 Does the Rape Shield Law exclude cross-examination on whether a victim made a prior false accusation of sexual assault? The United States Supreme Court passed the issue back to the states, leaving state supreme courts to interpret their own evidentiary rules on impeachment regarding prior false sexual assault allegations.35 However, the issue may be one for impeachment rules, and may not necessarily fall under the Rape Shield Law. Specifically, if the defense wishes to impeach the credibility of the victim by showing he or she made a prior false accusation, the defense may have to follow the rules on impeaching a witness on a specific instance of conduct for the purpose of attacking credibility.36 If the witness does not remember the false allegation, then the trial court may not allow further questioning on the issue, or the admission into evidence of extrinsic evidence proving the specific instance of conduct.37

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questioning the victim’s story

Discovery in Sexual Assault Case A defense attorney may need extra planning and preparation during the discovery process in a sexual assault place, due to rules and limitations when looking for impeachment material. Some possible impeachment material may have rules in place regarding privacy or privilege restrictions. One place to look for impeachment material is in a person’s medical or mental health records. There may be two separate evidentiary limitations to obtaining and using a witness’ mental health records: whether the records are relevant and whether they are protected by privilege.38 The Nebraska Supreme Court, in State v. Trammell, said that in order to obtain privileged information, such as medical records, a defendant must show that there is a reasonable ground to believe that the failure to produce the information is likely to result in a confrontation clause violation.39 In other words, an accused first has to show why the material is relevant to his or her defense. There has been no definite test laid out to determine relevancy for these specific materials, although the Court has indicated that timing may be a large indicator. Any hospitalization for a mental health issue over ten years before the alleged crime may not be admissible because of its remoteness in time.40 Records of mental health treatment occurring at the time of the alleged crime should be relevant if the defense can also show the treat-

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16

ment or the underlying condition affected the witness’ perception or credibility.41 Another area to inquire into is school records, which may be relevant in a sexual assault or sexual assault on a child case. School records can contain insights from teachers, counselors, or other school officials that observe the witness on a daily basis. School records may also present challenges as to relevancy or may present privacy concerns under federal and state law.42 School records are protected under State law, and kept private unless the parents of the student consent to the release of the records or the release is pursuant to a court order or lawfully issued subpoena (and the parents have been notified of the order or subpoena).43 An alleged victim’s juvenile records may also be relevant, as long as one meets the same steps outlined in Trammell.44 The defense must first bypass the privacy limitations put in place to keep juvenile court records sealed.45 Juvenile court records, including medical, psychological, psychiatric and social welfare reports, cannot be released without court order after a showing of good cause or consent by the subject of the information.46 A showing of good cause can be made by the defendant if specific facts are articulated as to why there is reasonable ground to believe the failure to produce the juvenile court records would impair the defendant’s right to confrontation.47

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questioning the victim’s story These grounds cannot be to show simply the witness is lying because he or she has a juvenile record; such a showing would be barred by Evidentiary Rule 609.48 The defense has to show that the juvenile records will be used for some other specific impeachment purpose, such as showing a motive to lie stemming from a threat by the state to revoke a person’s juvenile probation if the witness does not testify to a certain story.49 Somewhat similar in kind to juvenile records are records held by a protective services agency, which should be made available to a trial court for in camera review if the defendant so requests.50

Conclusion

Endnotes Senator Mark Warner is the United States Senator for Virginia.

3

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) The Confrontation Clause is applicable to the States through the Fourteenth Amendment to the Constitution.

4

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)

5

The Nebraska Legislature specifically intended to preserve the dignity of victims of sexual assaults while at the same time preserving the Constitutional rights of the accused. Neb. Rev. Stat. § 28-318

6

U.S. Bureau of Justice, Sex Offenses and Offenders, 1997.

8

U.S. Department of Health and Human Services, Administration for Children and Families, 1995 Child Maltreatment Survey. 1995.

9

The graphic in question was tweeted and retweeted with the hashtag “IStandWithJackie”, and originally was published by The Enliven Project.

Rev. Stat. §§27-412(2)(a)(i)-(iii)

14 State

v. Johnson, 9 Neb. App. 140, 609 N.W.2d 48, 55 (Neb. App., 2000).

15 Johnson 16 Neb. 17 Fed.

at 55.

Rev. Stat. §27-412(3)(b)

R. Evid. 412, advisory committee notes on 1994 amendment.

18 State

v. Lavalleur, 289 Neb. 102 (Neb., 2014).

19 Lavalleur

at 112.

20 Lavalleur

at 114, citing People v. Golden, 140 P.3d 1, 5 (Colo. App. 2005) at 116.

22 Neb.

Rev. Stat. §27-412(2)(a)(i).

23 State

v. Nelson, 235 Neb. 15, 23, 453 N.W.2d 454, 459 (1990).

24 Id. 25 Neb.

Rev. Stat. §27-412(2)(a)(ii).

26 This

does mean however, that this evidence is inadmissible in crimes where consent is not a defense.

27 State 28 Id.

v. Hopkins, 221 Neb. 367, 377 N.W.2d 110 (Neb., 1985).

at 117.

29 State

v. Sanchez-Lahora, 261 Neb. 192, 622 N.W.2d 612 (Neb., 2001), citing State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983); People v. Schuldt, 217 Ill.App.3d 534, 577 N.E.2d 870, 160 Ill.Dec. 545 (1991); State v. Jones, 716 S.W.2d 799 (Mo. 1986). at 618

32 Neb.

Rev. Stat. §27-412(2)(a)(iii).

33 State

v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (Neb., 1990).

34 Johnson

at 57.

35 Nevada

v. Jackson, 569 U.S. ___ (2013).

36 State

v. Balvin, 18 Neb.App. 690, 791 N.W.2d 352 (Neb.App., 2010).

37 Id.

at 699.

38 State

v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (Neb., 1989).

39 Id.

at 201.

40 Id.

at 200.

41 Id.

at 201

42 Family

Education Rights and Privacy Act, 20 United States Code §1232g; Neb. Rev. Stat. §84-712.05

43 20

U.S.C. §1232g(b)(2); Neb. Rev. Stat. §79-2,104(3)(b).

44 State

v. Cisneros, 248 Neb. 372, 535 N.W.2d 703 (Neb., 1995).

45 Cisneros 46 Neb.

10 This

number came from a 1994 report by Professor Eugene Kanin, and is referred to as “The Kanin study.” The study, however, has come under fire for not using research methods to test the reliability of the findings of the study, and also for using a very small sample size.

48 State

at 711.

Rev. Stat. §43-2108.

47 Cisneros

at 711.

v. Beach, 215 Neb. 213, 337 N.W.2d 772 (Neb., 1983).

49 Davis

v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

11 “False

Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault” By

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13 Neb.

31 Id.

Neb. Rev. Stat. §29-2028; State v. Williamson, 235 Neb. 960, 458 N.W.2d 236 (Neb., 1990).

7

Rev. Stat. §27-412, Laws 2009, LB97, §3. The law was previously contained in the criminal code §28-321 before it was moved into the rules of evidence.

30 Sanchez-Lahora

“A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA” Rolling Stone, Issue 1223, December 4, 2014

2

12 Neb.

21 Lavalleur

Cross-examining the victim in a sexual assault case requires more planning and preparation than any other cross-exam. There are rules in place to limit a cross-examination due to the special nature of these cases, although the rules do not entirely restrict the right to confrontation. If your case is one in which all the State’s evidence rests on the uncorroborated word of one person, then obtaining impeachment material and working within the exceptions of the Rape Shield Law may help you to represent your client.

1

Dr. Kimberly A. Lonsway, Sgt. Joane Archambault (Ret.), Dr. David Lisak. The Voice, Volume 3, Number 1.

50 Pennsylvania

40 (1987).

17

v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d

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Attorneys, Paralegals, and the Unauthorized Practice of Law Wednesday, May 20, 2015 • 2:00 pm - 4:00 pm

Scott Conference Center, 6450 Pine St., Omaha, NE 68106 **Also available for viewing via live webcast.** *Nebraska MCLE Activity #106047. 2 CLE ethics hours. (Regular/Live credit) *Nebraska MCLE Activity #106049. 2 CLE ethics hours. (Distance learning credit)

Presenters: Shela Shanks, Director of the Nebraska Supreme Court’s Attorney Admissions & Counsel for Unauthorized Practice of Law. Laurie Vik, ACP, President-Elect of the Nebraska Paralegal Association. Carla Larson, ACP, Paralegal to plaintiff’s personal injury attorneys. Thomas Tilden, Intellectual Property Paralegal at West Corporation.

Have you ever wondered: • What exactly are paralegals able to do and not do based on the Nebraska Rules of Professional Conduct? What are they, and should they be, trained to do? • What is considered “unauthorized practice of law” for paralegals? • What is the difference between a paralegal and a legal assistant? A “certified” paralegal and a paralegal with a certificate? All these questions, and many more, will be answered! Both attorneys and paralegals are invited to attend.

REGISTRATION FORM: Attorneys, Paralegals & the Unauthorized Practice of Law - May 20, 2015 c I will attend the live seminar at the Scott Conference Center in Omaha. c I will attend the seminar via live webcast. c $120 - Regular Registration c FREE - I paid 2015 NSBA dues and would like to claim my 2 free ethics credits c $90 - (25% discounted price for NSBA dues-paying members) (I have already claimed my 2 free ethics credits) c $10 - Law Students

*Free for paralegals; paralegals must register with NePA by emailing info@nebraskaparalegal.org Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or fax to (402) 475-7098.

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA. THE NEBRASKA LAWYER

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feature article

Cybercrimes: Legislation and Current Trends† by Raneta Lawson Mack Professor of Law, Creighton University School of Law

By most estimates, cybercrime in the United States and around the world is on the rise. Potential targets include individuals, businesses and national security infrastructures, with possible threats running the gamut from simple Internet scams to complex cyberattacks aimed at infiltrating critical military weapons systems. Not only is the threat wide-ranging in scope and magnitude, but the nature of cybercrime itself is rapidly evolving, often keeping criminal behavior several steps ahead of detection technologies and the criminal laws designed to deter and punish such conduct. Consequently, developing laws to address the evolving nature of the cybercrime threat is no easy task because the laws must define and confront existing criminal conduct while simultaneously anticipating the scope and direction of new challenges. Cybercrime laws in the United States are contained in a variety of statutes, regulations and ordinances. Since the emergence of the first federal legislation regulating cybercrimes in the late 1970’s, laws in the United States have generally taken a tripartite approach to cybercrime deterrence. Specifically,

Raneta Lawson Mack Raneta Lawson Mack joined the Creighton University School of Law in 1991. She teaches criminal law, criminal procedure, white collar crime, and comparative criminal procedure. She received her Bachelor of Arts degree in Political Science, cum laude, and her Juris Doctor degree, cum laude, from the University of Toledo. THE NEBRASKA LAWYER

some statutes criminalize the theft of computers or computer equipment as the object of the crime. A variety of other statutes outlaw direct attacks against computers, i.e. the computer is the subject or target of the crime. Finally, many statutes are designed to combat criminal conduct that utilizes computers and other technological devices as instruments or tools to carry out criminal activity.1 The next sections will discuss key federal cybercrime legislation as well as several legal challenges that have helped shape the laws to meet constitutional standards.

Major Federal Cybercrime Legislation • Controlling the Assault of Non-Solicited Pornography and Marketing (also known as the “CAN-SPAM Act of 2003”), 15 U.S.C. §§ 7701-7713. This Act makes it unlawful to, among other things, “initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading.” Congress deemed this statute necessary because email is such a vital communication tool and excessive unsolicited email can impose additional costs and inconvenience on recipients in addition to possibly exposing them to unwanted vulgar or pornographic materials. • Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§1201-1205. This Act prohibits the circumvention of any technological device designed to limit access to copyrighted works. It also forbids the “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component” designed for the purpose of circumventing copyright protection. • Computer Fraud and Abuse Act, 18 U.S.C. § 1030. This

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Cybercrimes: Legislation and current trends pioneering and comprehensive cybercrime legislation prohibits a wide range of criminal conduct involving unauthorized access and/or transmission of data designed to cause damage to protected computers. • PROTECT Act of 2003, 18 U.S.C. §§ 2252 & 2252A. This Act forbids the transmission and/or knowing receipt or reproduction of child pornography by computer. A related statute, 18 U.S.C. § 1466A, prohibits obscene visual representations of the sexual abuse of children. • Electronic Communications Privacy Act, 18 U.S.C. § 2510-2522. This Act prohibits the interception and disclosure of wire, oral, or electronic communications. • Communications Decency Act, 47 U.S.C. § 223. The Act forbids, among other things, the transmission of obscene speech or pornography to persons less than 18 years of age by means of a telecommunications device, regardless of whether the person making the communication placed the call or initiated the communication.

Judicial Opinions and Statutory Evolution Judicial decisions interpreting many these statutes have also had a profound impact on development of cybercrime legislation in the United States. In particular, cybercrime laws that touch upon First Amendment values have been especially troublesome for the courts. For example, Congress passed the Child Pornography Prevention Act of 1996 (CPPA), which prohibited the production, transportation or receipt of child pornography. Two sections of the statute specifically prohibited images that “appear” to be or “convey the impression” that minors are engaged in sexually explicit conduct. In other words, the statute prohibited “virtual child pornography.” In Ashcroft v. Free Speech Coalition, the United States Supreme Court determined that those provisions were overbroad, vague and could stifle works that had legitimate value.2 According to the Court, the CPPA “prohibit[ed] speech despite its serious literary, artistic, political, or scientific value. The statute proscrib[ed] the visual depiction of an idea–that of teenagers engaging in sexual activity–that is a fact of modern society and has been a theme in art and literature throughout the ages.”3 As a result, those two sections of the CPPA were struck down as unconstitutional. In the aftermath, to address the Court’s concerns regarding actual minors versus visual depictions of minors, Congress enacted the PROTECT Act of 2003. This Act created 18 U.S.C. § 1466A, which prohibits visual depictions of minors or those that appear to be minors when such depictions are obscene or lack serious literary, artistic, political, or scientific value. The PROTECT Act also amended 18 U.S.C § 2252A of the original CPPA to limit its prohibitions to obscene visual depictions of minors engaging in sexually THE NEBRASKA LAWYER

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explicit conduct or visual depictions of actual minors engaging in sexually explicit conduct. United States Supreme Court opinions in the Fourth Amendment sphere have also helped to define (and in some cases confuse) the standards related to how technology may be used as a tool to aid in the detection of all forms of criminality. Typically, Fourth Amendment challenges are raised when the government searches and/or seizes technology devices (such as computers and cellular telephones) and when computer technology is used as a crime-fighting tool by law enforcement agencies (e.g. intercepting Internet communications or using GPS technology to track movements).4 In United States v. Jones, the Court grappled with the issue of whether attaching a GPS device to a vehicle violated the Fourth Amendment. While the facts in Jones did not involve cybercrime, this case is relevant because the facts provide insight into the technological tools currently available to law enforcement to fight all types of crimes, including cybercrime. While criminals are busy manipulating technology to further unlawful objectives, the law enforcement community is rapidly developing its own technological tools to fight back, thereby creating a new era of “digital cops and robbers.” However, what is perhaps most noteworthy about the Jones decision is the acknowledgement by several members of the Court that the increasingly sophisticated technology at the disposal of law enforcement might need to be met with more comprehensive legislation to protect privacy interests at stake. According to Justice Alito, “[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken…. [But], [i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”5 As these examples illustrate, cybercrime legislation is frequently proposed, enacted and amended as new forms of criminality emerge or when the United States Supreme Court declares certain provisions of existing statutes unconstitutional. Depending upon the nature of the criminal conduct, amendments can be added to current statutes if the new conduct is closely related to conduct that is already outlawed or set forth in entirely new legislation when the conduct has no prior statutory precedent. For example, cyberbullying has emerged as the new frontier of cybercrime regulation. In 2009, the “Megan Meier Cyberbullying Prevention Act” was proposed as an amendment to 18 U.S.C. Chapter 41 (Extortion and Threats).6 The new amendment would have added Section 881, the Cyberbullying Prevention Act. Because 18 U.S.C. Chapter 41 already prohibits a variety of threatening and extorM ay / J u ne 2 0 1 5


Cybercrimes: Legislation and current trends tionate communications, the cyberbullying provision seemed a natural amendment to this existing statute. Section 881 would have criminalized transmitting communications “with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior.”7 Unfortunately, the Cyberbullying Prevention Act amendment was never enacted due to serious concerns about First Amendment rights and a sense that local authorities might be in a better position to address this emerging issue. Not long after, as a result of the intense national debate surrounding the proposed cyberbullying legislation, many states did, in fact, propose measures to legislatively address the topic of cyberbullying. One final example of the “evolution” of a cybercrime statute is the Computer Fraud & Abuse Act, 18 U.S.C. § 1030. Instead of refinement through judicial opinions, this Act evolved mostly through congressional intervention as technology developed over time. According to Professor Ellen Podgor: The Counterfeit Access Device and Computer Fraud and Abuse Act (1984, P.L. 98-473, 98 Stat. 2190) was the first piece of federal legislation to focus directly on computer abuses. Enacted on October 12, 1984, it provides federal prosecutors with a specific crime titled, “Fraud and related activity in connection with computers” to prosecute criminal computer activity. The act, which can be found in title 18, section 1030 of the United States Code, initially focused on improper computer access. Because it was extremely limited in the conduct it made criminal, amendments to the statute were forthcoming, including a significant amendment in 1986 that broadened its scope to include other forms of computer abuses, and a 1990 amendment that allowed civil actions to be brought under the statute. Section 1030 now criminalizes seven different types of computer activity. Although Congress has enacted other criminal statutes related to computers since 1984, section 1030 remains the key basis for prosecuting federal computer crimes.8

Indeed, the legislative history of 18 U.S.C. § 1030 is one in which “Congress has kneaded, reworked, recast, amended and supplemented [the statute] to bolster the uncertain coverage of the more general federal trespassing, threat, malicious mischief, fraud and espionage statutes.”9 While Congress and the courts have endeavored to keep pace with the changing nature of cybercrime, nearly every state has now developed legislation to address a variety of crimes committed with the aid of technology. The next section will briefly discuss several Nebraska legislative tools to deter and prosecute cybercrime.

Nebraska Cybercrime Statutes The Computer Crimes Act was enacted after a legislative THE NEBRASKA LAWYER

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determination that “our society is increasingly dependent on computers, that important personal, financial, medical, and historical data is stored in computers, and that valuable data stored can be lost due to criminal action.”10 The Act prohibits, among other things, unauthorized computer access in a manner that either creates a grave risk of injury, a risk to public safety or compromises the security of data.11 Other specific conduct prohibited under the Act includes using “any computer, computer system, computer software, or computer network without authorization” to unlawfully deprive or obtain property or services from someone, to harm or disrupt computer operations, or to obtain confidential public information.12 The Act also prohibits persons with authorization from knowingly and intentionally exceeding the limits of that lawful authorization.13 Another Nebraska statute that covers cybercrime is the Child Pornography Prevention Act.14 Among other things, the Act makes it unlawful to create, publish or in any way distribute any visual depiction of sexually explicit conduct “which has a child as one of its participants or portrayed observers.”15 The definition of visual depiction includes “data stored on a computer disk or by other electronic means which is capable of conversion into a visual image and also includes any photograph, film, video, picture, digital image, or computerdisplayed image, video, or picture, whether made or produced by electronic, mechanical, computer, digital, or other means.”16 Further, sexually explicit conduct includes real or simulated sexual conduct.17 The intent of the statute is to identify and prosecute sexual predators who are specifically targeting children. Therefore, the law includes an affirmative defense for persons under 18 years of age who send visual depictions of sexual conduct to persons who are at least 15 years of age and whom the sender reasonably believes is a willing recipient.18 Other provisions of Nebraska law also prohibit soliciting or enticing children 16 years of age or younger or peace officers believed to be 16 years of age or younger by means of an electronic communication device for purposes of sexual conduct.19 In 2009, Nebraska attempted to prohibit registered sex offenders from knowingly and intentionally using social networking sites, instant messaging or chat room services when persons less than 18 year of age were also allowed to use such services.20 However, in Doe v. Nebraska, the statute was determined to be too expansive and vague under the First Amendment because it prohibited sex offenders from “using an enormous portion of the Internet to engage in expressive activity.”21 Overall, Nebraska statutes are similar to federal legislation in their coverage of major cybercrime activity. However, as the Doe case illustrates, Nebraska’s attempt to criminalize certain types of conduct can be met with constitutional challenges, much like its federal counterparts. Another area of common-

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Cybercrimes: Legislation and current trends ality on both the federal and state levels is the need to keep current with trends in cybercrime to ensure that legislation adequately addresses this constantly evolving area of criminal law. The next section will explore several cybercrime trends that will likely have an impact on the development of cybercrime legislation.

Current Cybercrime Trends Identity Theft In its simplest form, identity theft occurs when one person appropriates another’s personal information without his or her knowledge or consent as a means to commit theft or fraud in the victim’s name. Identity theft is a very common vehicle for perpetrating fraudulent schemes. Typically, “victims are led to believe they are divulging sensitive personal information to a legitimate business or entity, sometimes as a response to an e-mail solicitation to update billing or membership information, or as an application for a fraudulent Internet job posting.”22 Identity theft continues to be a major cybercrime concern because people often fail to take appropriate steps to educate themselves about the risks. Secure passwords that are not easily susceptible to password hacking tools are a significant deterrent. Yet, most people fail to properly protect their pass-

THE NEBRASKA LAWYER

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words or choose passwords that are easily guessed by anyone who knows a few personal details about them (e.g. birthday, pet’s name, etc). In addition, because medical records are now increasingly being stored in online databases, a new kind of medical identity theft is emerging in which “[a] thief may use your name or health insurance numbers to see a doctor, get prescription drugs, file claims with your insurance provider, or get other care. If the thief’s health information is mixed with yours, your treatment, insurance and payment records, and credit report may be affected.”23 On the black market, the stolen health credentials trade is about 10 to 20 times more lucrative that the market for stolen credit card information.24 A recent study found that “medical identity theft was up 21.7% in 2014, affecting 2.3 million Americans. In the majority of cases (65%), victims had to pay an average of $13,500 to resolve the crime. The total damages added up to $20 billion in 2014 alone.”25 In addition to the financial losses, victims can also suffer a number of collateral consequences from having personal health information stolen. For example, “[i]f a [thief] registers a medical allergy you don’t have…that allergy will go on your medical record. The next time you’re in a hospital, you might be prevented from getting medicine you need.”26 While individuals can certainly be targeted by medical identity thieves, those entities most at risk for this type of cyberattack are hospitals and insurance companies, known “virtual warehouses” of personal

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Cybercrimes: Legislation and current trends medical information.

Social Media

Hacking, Phishing and Spear-Phishing

Social media has been described as the “next big cybercrime vector.”29 That prediction is perhaps not surprising given that social networks have proliferated over the past decade. Not only have people gravitated toward these networks in large numbers, but governments and businesses around the world “now recognize the power and benefits of social networks for mass communications, news distribution, as well as promotion of products and services.”30

The incoming email from an acquaintance seems innocent enough: “Hey there! Great to connect with you again on Facebook! Click this link for information on our upcoming class reunion. Hope to see you there!” http://seeinglybenignlinkfromanacquaintance.com

Upon clicking the link, the recipient becomes the latest victim of a targeted spear-phishing campaign. The perpetrator of this cyberattack may now have access to the victim’s personal information for purposes of identity theft and other types of fraud. Further, if the victim’s computer is connected to a corporate network, the perpetrator could have an inroad into the corporate email system and other confidential resources associated with the corporation. While other types of cyberattacks use sophisticated computer programs to defeat firewalls and other security measures in order to gain access to confidential information, spearphishing is comparatively simple in its approach. It all begins with an innocent email and a tactic known as social engineering. Because spear-phishing is so easy, it has become the favorite tool of cyber criminals worldwide. Unlike the regular type of “phishing,” which takes a scattershot approach by sending emails far and wide to anonymous recipients, (e.g. a wealthy foreigner offers to pay you a large commission for helping him transfer a large sum of money into the country), spear phishers choose their victims in a highly selective and personalized fashion. Because the emails appear to be personal and relevant to the user, the normal caution and resistance to Internet scams can be easily defeated. According to Kapersky, a well-known Internet security website, “spear phishing is a targeted email scam with the sole purpose of obtaining unauthorized access to sensitive data.”27 The Federal Bureau of Investigation (FBI) has identified spear phishing as one of the most significant threats to cybersecurity because “[i]nstead of casting out thousands of e-mails randomly hoping a few victims will bite, spear phishers target select groups of people with something in common—they work at the same company, bank at the same financial institution, attend the same college, order merchandise from the same website, etc. The e-mails are ostensibly sent from organizations or individuals the potential victims would normally get e-mails from, making them even more deceptive.”28 Combatting spearphishing is very difficult because rather than relying upon weaknesses in the computer security infrastructure, the crime relies upon human weakness. Unfortunately, there is no antivirus program for that particular form of vulnerability beyond continual education about the risks. THE NEBRASKA LAWYER

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The methods used to gain access to users’ confidential information on social networks are similar to those used in spear-phishing emails, i.e., creating opportunities that appeal to a user’s naiveté, natural sense of curiosity and/or desire for financial gain. In fact, “fake offers,” which often require users to share confidential information, “accounted for the largest number of social media based attacks in 2013, with 81 percent, compared with 56 percent in 2012.”31 Essentially, the social media landscape is a breeding ground for targeted spearphishing campaigns because people willingly share a plethora of personal details that provide excellent grist for the cyber criminal’s mill.

Conclusion Cybercrimes are an ever present global threat. In the United States, current federal and state legislative efforts aggressively attempt to address many of the most pressing cybercrime concerns while confronting periodic constitutional challenges. As with many areas of criminal law, cybercrime legislation must keep pace with the wide-ranging and constantly evolving nature of the criminal conduct. In addition, because much of the criminal activity targeting computer security systems relies upon human error, continual education regarding the threat of cybercrime must become a necessary part of everyday life in this digital age.

Endnotes †

This article is adapted in part from a Report of the Cybercrime Laws in the United S tates of America for the International Association of Penal Law (AIDP), Preparatory Colloquium Section II that I drafted in December 2012.

1

See Carucci, Overhuls & Soares, Computer Crimes, 48 Am. Crim. L. Rev. 375, 378-81 (Spring 2011).

2

See, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

3

Id. at 246.

4

See, e.g., United States v. Jones, 565 US ___, 132 S.Ct. 945 (2012).

5

Id. Alito, J, concurring in the judgment.

6

For more information about Megan Meier and the cyberbullying initiative, see http://www.meganmeierfoundation.org.

7

Megan Meier Cyberbullying Prevention Act, H.R. 1966, 111th Cong. § 881 (2009).

8

Ellen S. Podgor, Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, in Major Acts of Congress (Brian K. Landsberg ed., Macmillan Reference USA, 2004).

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Cybercrimes: Legislation and current trends 9 Doyle,

Charles, Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, Congressional Research Service 1 (December 27, 2010).

22 https://www.ic3.gov/crimeschemes.aspx 23 h t t p : / / w w w . u s a t o d a y . c o m / s t o r y / m o n e y / p e r s o n a l -

finance/2015/03/28/the-new-kind-of-identity-theft-youhavent-heard-of/25091257/

10 Neb.

Rev. Stat. § 28-1342.

11 Neb.

Rev. Stat. § 28-1343.01.

12 Neb.

Rev. Stat. §§ 28-1344-46.

25 Id.

13 Neb.

Rev. Stat. § 28-1347.

26 Id.

14 Neb.

Rev. Stat. §§ 28-1463.01-1463.05.

27 http://usa.kaspersky.com/internet-security-center/definitions/

15 Neb.

Rev. Stat. § 28-1463.03.

16 Neb.

Rev. Stat. § 28-1463.02.

24 http://www.nbcbayarea.com/investigations/23-Million-Ameri-

cans-Victims-of-Medical-Identity-298070211.html

spear-phishing#.VR68CFyE5Og

28 http://www.fbi.gov/news/stories/2009/april/spearphish-

ing_040109

17 Id. 18 Neb.

Rev. Stat. § 28-163.03.

19 Neb.

Rev. Stat. § 28-320.02.

20 Neb.

Rev. Stat. § 28-322.05.

21 Doe

29 http://www.securityweek.com/next-big-cybercrime-vector-

social-media

30 Id. 31 Id.

v. Nebraska, 898 F.Supp.2d 1086, 1111 (D. Neb. 2012).

The Ultimate Music Law Guide Through the Fab Four:

A Beatles-Themed Introduction to Copyrights Friday, May 22, 2015 • 12:45 pm - 5:00 pm Networking Lunch 11:45 am (Lunch cost not included with registration) Sheraton Omaha, 655 N. 108th Ave., Omaha, NE 68154 **Also available for viewing via live webcast.** *Nebraska MCLE Activity #105979. 4 CLE hours, including 1 hour ethics. (Regular/Live credit)

*Nebraska MCLE Activity #105981. 4 CLE hours, including 1 hour ethics. (Distance learning credit)

I. Intro to Copyright Concepts and the Legal Framework of the Beatles and Their Music Publishing - Origins of Copyright Law - What is a copyright and how to obtain one -O  verview of the six exclusive legal rights you get with your copyright -B  eatles’ songwriting credit/lyrics/works made for hire

III. Ethical Issues Regarding Organizational Representation and Issues Relating to the Beatles - Ethical issues in George Harrison’s “My Sweet Lord” case (the featured case)/breach of fiduciary duty/ conflict of interest - Ethical issues regarding band/organization dissolution - Ethical issues and conflict of interest in representing competing interests in a group

II. Seminal Copyright Cases - Standards in making decisions -D  efenses to copyright infringement: the “Fair Use” Defense - Damages in copyright cases

Jim Jesse has been an attorney for more than 23 years. He is the former General Counsel for Cool Music Network, LLC (THECOOLTV), a 24-houra-day music video television network. His passion is educating attorneys about music and media law through his seminars, and he has founded Rock ‘N Roll Law.

THE NEBRASKA LAWYER

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The Ultimate Music Law Guide Through the Fab Four:

A Beatles-Themed Introduction to Copyrights Friday, May 22, 2015 • 12:45 pm - 5:00 pm Networking Lunch 11:45 am (Lunch cost not included with registration) Sheraton Omaha, 655 N. 108th Ave., Omaha, NE 68154 **Also available for viewing via live webcast.** *Nebraska MCLE Activity #105979. 4 CLE hours, including 1 hour ethics. (Regular/Live credit)

*Nebraska MCLE Activity #105981. 4 CLE hours, including 1 hour ethics. (Distance learning credit)

REGISTRATION FORM: Ultimate Music Guide Through the Fab Four - May 22, 2015 c I will attend the live seminar at the Sheraton Omaha. c I will attend the seminar via live webcast. c $240 - Regular Registration c $180 - (25% discounted price for NSBA dues-paying members c $10 - Law Students c $25 - I am attending the live seminar & want the optional detailed course manual provided by the speaker. - $25

Cost is additional to registration fee. All registrants will receive a basic course outline provided by the speaker. c Check here if you plan on attending the networking lunch from 11:45 am to 12:45 pm

Lunch is not included in registration fee. Lunch attendees will order off the restaurant menu and pay for their own meals. Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or fax to (402) 475-7098.

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.

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To upgrade to Inactive Gold and receive access to Casemaker, you must have an inactive law license in Nebraska. Please complete the form below and return it with payment to the Nebraska State Bar Association, 635 S 14th St. #200, Lincoln, NE 68508, or fax to (402) 475-7098. c $180 - Upgrade my NSBA member benefits to Inactive Gold. c $240 - I would like to pay voluntary dues to the NSBA and upgrade my NSBA member benefits to

Inactive Gold.

Name:__________________________________________________________________________Bar #______________________________ Address:________________________________________________ City:______________________ State:_______ Zip:____________ Telephone:___________________________________ E-Mail:______________________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number:____________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:__________________________________________________________________________________ Credit card billing address (if different from above): ____________________________________________________________________________________________________________________ City:_______________________________________________________ State:__________________ Zip:___________________________ Signature:__________________________________________________________________________________________________________

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feature article

The Technological Revival of the 4th Amendment by John S. Berry and Kaylee M. Rudd

After the passing of the Patriot Act, constitutional scholars bemoaned the demise of the Fourth Amendment.1 The right to privacy gave way to protection against terrorism. Several threeletter agencies probed us and scrutinized our actions. The TSA patted us down then put us through machines that could see through our clothes.2 The NSA listened to our telephone conversations.3 The IRS monitored our banking transactions more closely.4 All of these intrusions have been tolerated on the basis that they keep us safe. New technological advances since the Patriot Act was enacted in 2001 revived Fourth Amendment interests. Thirdparty technology providers improved Global Positioning Systems (GPS) which have the ability to track our every movement. Smart phones can now reveal to police most everything about our interests and interactions with others. The courts voice concern about privacy as we move into an era where private facts of our lives can be gleaned from slivers of data—data which necessarily escapes our personal control.

Recent court decisions showcase the courts’ struggle to apply traditional Fourth Amendment privacy protections to the new means by which people create, utilize, and store their personal information.

Searching Smart Phones The Supreme Court recently decided a handful of cases with Fourth Amendment implications. One of those cases was Riley v. California and United States v. Wurie5, in which the Supreme Court held that law enforcement must obtain a warrant before searching the content of a seized cell phone.6 The Court explained that this type of search did not fall under the “search incident to arrest” exception. It further noted that modern cell phones hold the “privacies of life” for many individuals. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”7 The Court also noted that searching a cell phone

➡ Kaylee Rudd

John S. Berry

John S. Berry is the managing partner of Berry Law Firm, PC, and the current president of the Nebraska Criminal Defense Attorneys Association.

THE NEBRASKA LAWYER

Kaylee Rudd is a law student at the University of Nebraska College of Law.

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technological revival of the 4th amendment could be a more substantial invasion of privacy than a physical search of the arrestee because cell phones store a wide range of information about an individual’s “private interests and activities.”8 Modern cell phones can also access information stored in remote locations—which are, presumably, not incident to the arrest.9 The Court did not rule out the possibility that case-specific exceptions might justify the warrantless search of an individual’s phone but emphasized “[t]he critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”10 Examples of exigent circumstances include addressing a threat of harm to officers or preventing the destruction of evidence. The Supreme Court of Nebraska recently addressed a warrantless search of a cell phone seized incident to arrest in State v. Henderson.11 In Henderson, the defendant fired shots at a house party and was intercepted by officers after a short foot chase. After he was arrested, officers seized the defendant’s cell phone and other personal effects. Before searching the phone, the officers sought a warrant. It was granted, but the judge noted he thought the warrant was unnecessary since the phone was seized incident to arrest. The defendant was subsequently convicted at trial on a number of charges.

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Henderson’s appeal was pending when the Supreme Court released Riley. The Nebraska Supreme Court found that in light of Riley the lower court’s reasoning was incorrect.12 “[A] s a general matter, the warrantless search of a cell phone seized from an arrestee is not justified as a search incident to an arrest.”13 The Court agreed with the defendant that the first warrant, which authorized a search of the cell phone’s call logs, texts, voicemail and “any other information that can be gained from the internal components and/or memory cards” was not particular enough to satisfy the requirements of the Fourth Amendment. But because this error was remedied by a subsequent warrant, the Court ultimately affirmed the defendant’s conviction. While the issue of cell phone search was not dispositive in Henderson, the Court discussed and applied Riley, providing useful insight for how it might handle future cases.

Tracking Movements and Medications Today, cell phones have GPS devices which track our movements. But law enforcement can use that same GPS technology to track the movements of suspects – even without accessing their cell phones. In United States v. Jones, for example, the issue was whether a small GPS device attached by police to the defendant’s car for over a month constituted a search within the meaning of the Fourth Amendment.14 The

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technological revival of the 4th amendment police suspected Jones of trafficking drugs and subsequently used the data obtained from the GPS to charge him with multiple drug offenses. The Court resolved the issue on a trespassory, rather than a privacy-based, theory. It found that since the police had physically attached the GPS device to the defendant’s car without obtaining a valid warrant, the search fell within the original meaning of the Fourth Amendment and violated the defendant’s right “to be secure in [his person], houses, papers, and effects, against unreasonable searches and seizures.”15 Prior to Jones, the Supreme Court’s 1967 decision in Katz had expanded the historical focus on property rights in expectation of privacy to include non-trespassory invasions of privacy.16 The historical focus on property rights arose from the wording of the Fourth Amendment which recognizes the right “to be secure in [one’s person], houses, papers, and effects.” In Katz, the Court introduced the reasonable expectation of privacy test and held that a person’s reasonable expectations of privacy may be violated even in the absence of a physical trespass. Justice Scalia, writing for the majority in Jones, made clear Katz augmented, rather than replaced, the common law trespassory test.17 But in resolving Jones on a trespass theory, the majority raised more questions than it answered.18 For one, the rise of GPS capabilities in cars and smartphones means that nontrespassory searches are easier to accomplish. The remarkable efficiency of new technology extends the government’s reach and begs the question of when a search goes too far— and furthermore, whether a search that could have been made through traditional means by expending expensive resources nevertheless crosses a line when conducted with technology that requires only a nominal expenditure of time or effort.19 In addition to ease of access, GPS monitoring produces a “precise and comprehensive” record of public movement that discloses details about familial, political, professional, religious, and sexual associations.20 Justice Sotomayor stated: “I would raise the question whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. . . . The net result is that GPS monitoring--by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track--may “alter the relationship between citizen and government in a way that is inimical to democratic society.”21

Justice Sotomayor further noted that it may be time to reconsider the third party doctrine, under which a person does not have a reasonable expectation of privacy in information she or he voluntarily discloses to third parties. “This approach is ill THE NEBRASKA LAWYER

29

suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”22 Similarly, in his concurring opinion, Justice Alito noted that even the “reasonable expectation of privacy” test expounded in Katz is a fluid, rather than fixed, standard.23 “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”24 While Nebraska has not addressed electronic tracking of movements, it has addressed electronic monitoring of medications.25 In State v. Wiedeman, the defendant had obtained prescriptions for controlled narcotic prescriptions from multiple providers, in excess of the amount she should have been taking. On appeal, she claimed that her prescription records should not have been introduced into evidence because they were seized in a warrantless search.26 Nebraska requires pharmacies to track the prescriptions that people obtain and store those records for 5 years.27 Those records must be kept confidential and only disclosed to persons authorized by statute, including “governmental agencies authorized by law to receive such information.”28 The Court upheld the warrantless investigatory search of these records on two grounds. First, it held the defendant “had no ownership or possessory interest in the pharmacies from where the records were obtained. And, even though they may concern [her], the prescription records are not [her personal] effects or papers.”29 Second, in light of the state’s interest in preventing the misuse of prescription narcotics, the court noted that a person “knows or should know that the State, which outlaws the distribution and use of such drugs without a prescription, will keep careful watch over the flow of such drugs from pharmacies to patients.”30 Thus, because the records are owned by the pharmacy, rather than the patient, and because there is no reasonable expectation that the government will not search those records, the Court held that warrantless investigatory searches of the electronic medication database do not violate a person’s Fourth Amendment rights. This finding has interesting implications given the growing use of cloud data storage, a situation in which consumers necessarily rely on third parties to store their personal information. Justice Sotomayor’s concurring opinion in Jones touches on important privacy challenges arising from consumers’ use of new technologies—concerns that have yet to be decided by the Supreme Court. In the opinion, Justice Sotomayor calls for the court to reconsider the role of the Katz reasonable expectation test and the applicability of the third party doctrine to modern times. The concurrence has been noted by some academics for suggesting a sensible approach to Fourth Amendment rights in

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technological revival of the 4th amendment an increasingly electronic world.31 Given the pervasive and growing use of technology, as well as the depth of personal information people voluntarily disclose in order to access and use that technology, concern about the third party doctrine is not unfounded. The third party doctrine states that a person has no reasonable expectation of privacy in information voluntarily disclosed to a third party.32 In particular, a person has no Fourth Amendment protection from warrantless searches by the government of this type of information, even if it was disclosed for a limited purpose, such as to a bank depositor. Under the third party doctrine the government may use administrative subpoenas to receive an individual’s personal information from a third party.33 The Supreme Court’s decision in Riley in 2014 cites the Sotomayor concurrence, providing an indication the Court is aware of privacy concerns posed by the third party doctrine in light of how people interact with new technologies. This old doctrine provides little protection for emails or for information stored in the Cloud, instances in which users must necessarily entrust their personal information to third party servers and businesses.34 In this modern paradigm, the third party acts as a mere conduit for, rather than true recipient of, the information.35 As a result, the time may be right for the Supreme Court to reconsider the place of the third party doctrine in modern jurisprudence.

the Court is cognizant of these concerns. And rather than allow technological advances to subtly obliterate modern expectations of privacy, the Court has responded by breathing new life into the Fourth Amendment.

Endnotes 1 See,

e.g., Susan N. Herman, The USA Patriot Act and the Submajoritarian Fourth Amendment, 41 Harv. C.R.-C.L. L. Rev. 67, 106 (2006).

2

Daniel S. Harawa, The Post-TSA Airport: A Constitution Free Zone?, 41 Pepp. L. Rev. 1, 20 (2013).

3

Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily. The Guardian. (June 6, 2013) http:// www.theguardian.com/world/2013/jun/06/nsa-phone-recordsverizon-court-order.

4 FinCen,

patriot/.

5

134 S. Ct. 2473 (2014).

6

Id.

7

Id., at 134 S. Ct. 2495.

8

Id. at 1289.

9

Id.

10 Id.

at 2494.

11 289 12 Id.

Neb. 271 (Neb. 2014).

at 285

13 Id. 14 132 15 Id.

S. Ct. 945 (2012).

at 949.

16 Katz

v. United States, 389 U.S. 347, 361 (1967).

17 Jones,

Conclusion

USA Patriot Act http://www.fincen.gov/statutes_regs/

132 S. Ct. at 955.

18 Miriam

Technology allows our government to perform its duties more safely, accurately, and efficiently. But the ease with which technology allows law enforcement to perform extensive searches into the private details of our lives warrants caution. Recent court decisions recognize this tension, as well as the evolution of traditional privacy expectations in modern times. The approach of tying Fourth Amendment protections from search and seizure to an individual’s property rights gave way to the reasonable expectation test in 1967. The Supreme Court’s return to the trespassory approach in Jones (2012) revealed elasticity in the reasonable expectation test. As people become accustomed to sharing their private information as a necessary condition precedent to the use of new technologies, their “reasonable expectations” may change. Thus, even a standard based on reasonable expectation may not be able to provide an “ideal” level of protection, yet what this “ideal” may be is yet to be determined. The Court seems unsure of where or how to find a bright line test to say when search and seizure made with new technologies goes “too far.” It is clear, however, that

H. Baer, Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones, 123 Yale L.J. F. 393, para. 3 (2014).

19 See,

e.g., Jones, 132 S. Ct. at 963-64.

20 Id.

at 955 (Sotomayor, J., concurring).

21 Id.

at 955-56.

22 Id.

at 957.

23 Id.

at 962 (Alito, J., concurring).

24 Id.

(emphasis added).

25 State

v. Wiedeman, 286 Neb. 193, 207-208 (2013).

26 Id.

at 202.

27 Id.

at 206.

28 Id. 29 Id. 30 Id.

at 209.

31 Miriam

H. Baer, Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones, 123 Yale L.J. F. 393.

32 Jones,

132 S. Ct. at 957. See e.g., United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).

33 Christopher

805 (2005).

34

Slobogin, Subpoenas and Privacy, 54 DePaul L. Rev.

Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 YALE L.J. F. 73 (2014).

35 Id.

THE NEBRASKA LAWYER

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feature article

State v. Covey: Nebraska Supreme Court Distinguishes Criminal Impersonation from False Reporting by Justin R. Herrmann

Introduction In State v. Covey, the Nebraska Supreme Court distinguished the criminal offenses of false reporting in violation of Neb. Rev. Stat. § 28-907(1)(a)—a class I misdemeanor— and criminal impersonation in violation of Neb. Rev. Stat. § 28-638(1)(c)—a class IV felony for a first offense, a class III felony for a second offense and a class II felony for any third or subsequent offense—by holding that the crime of criminal impersonation in violation of Neb. Rev. Stat. § 28-638(1)(c) requires a person to knowingly provide false personal identifying information or a false personal identification document to a court or a law enforcement officer with said false personal identifying information or document being capable of identifying

Justin R. Herrmann Justin R. Herrmann is a shareholder with Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O. His practice focuses in the areas of criminal defense, employment law, business, real estate, wills and trusts, estate planning and probate. However, he also has experience representing clients in a wide variety of civil litigation matters, including real estate disputes, contract disputes, probate litigation, employment litigation, personal injury claims, wrongful death claims and more. Mr. Herrmann received his Juris Doctor degree, with distinction, from the University of Nebraska College of Law in 2005, and his B.S. in Business Administration, with highest distinction, from the University of Nebraska-Lincoln, in 2002. THE NEBRASKA LAWYER

a specific and real human being, as opposed to a fictitious person.1 The decision was a 4-3 split, with Justices Connolly, MillerLerman and Wright joining Justice McCormack’s majority opinion, and Justice Stephan and Chief Justice Heavican joining Justice Cassel’s dissenting opinion.

Facts of the Case James R. Covey was approached by a law enforcement officer who was investigating a citizen report of a man possibly selling stolen goods out of the trunk of his vehicle. When the officer asked Covey some general questions, Covey falsely told the officer that his name was “Daniel Jones.” Covey concurrently told the officer his correct birth date. As the officer was running the name and birth date through his computer terminal, Covey fled the scene but was later apprehended and arrested. At the time of booking, Covey truthfully identified himself as “James Covey.” Covey was charged with criminal impersonation in violation of Neb. Rev. Stat. § 28-638(1)(c) and being a habitual criminal. While the evidence at trial demonstrated that Covey provided the officer with a false name at the time of initial questioning, there was no evidence adduced at trial showing that the name “Daniel Jones” corresponded to an actual person. At a hearing on Covey’s plea in abatement and a subsequent motion to dismiss, Covey argued to the trial court that he could only be convicted of criminal impersonation in violation of Neb. Rev. Stat. § 28-638(1)(c) if the false name he provided to law enforcement corresponded to an actual person, as opposed to a fictitious person. The trial court disagreed with Covey and overruled his plea in abatement and motion to dismiss. Ultimately, a jury found Covey guilty of criminal impersonation and he was sentenced to 10 to 14 years of incarceration.

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state v. covey Covey appealed the conviction and argued on appeal that, while the crime of false reporting in violation of Neb. Rev. Stat. § 28-907(1)(a) could apply when a person provides a law enforcement officer with a false name that does not correspond to a real individual, it was error for the trial court to convict him of felony criminal impersonation in violation of Neb. Rev. Stat. § 28-638(1)(c) without any evidence that the false name corresponded to a real individual. The State, on the other hand, argued “that the existence of an actual person who was being impersonated was irrelevant to the charge of criminal impersonation” and asserted “prosecutorial discretion in choosing to charge Covey with felony impersonation rather than misdemeanor false reporting.”2

Statutory Framework Neb. Rev. Stat. § 28-638(1)(c) states that “[a] person commits the crime of criminal impersonation if he or she … [k] nowingly provides false personal identifying information or a false personal identification document to a court or a law enforcement officer[.]” Neb. Rev. Stat. § 28-636(2) defines “[p]ersonal identifying information” as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific person including a person’s … [n]ame”, but the statute does not define “person” or “specific person” (emphasis added). Neb. Rev. Stat. § 28-636(1)

defines “[p]ersonal identifying information document” as “a birth certificate, motor vehicle operator’s license, state identification card, public, government, or private employment identification card, social security card, visa work permit, firearm owner’s identification card, certificate issued under section 69-2404, or passport or any document made or altered in a manner that it purports to have been made on behalf of or issued to another person or by the authority of a person who did not give that authority” (emphasis added). Neb. Rev. Stat. § 28-907(1)(a) states that “[a] person commits the offense of false reporting if he or she … [f]urnishes material information he or she knows to be false to any peace officer or other official with the intent to instigate an investigation of an alleged criminal matter or to impede the investigation of an actual criminal matter[.]”

Analysis of the Covey Majority In the 4-3 decision, the majority opinion ultimately agreed with Covey, emphasizing the above italicized language from Neb. Rev. Stat. §§ 28-636 and 28-638, and concluding that “under the plain language” of those statutes, “a person commits felony impersonation only by giving law enforcement the personal identifying information of a specific and real individual.”3 The majority opinion authored by Justice McCormack went on to elaborate and state that, even if the language of the

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state v. covey relevant statutes was ambiguous, applying the Court’s rules of construction and the rule of lenity, the result remains the same. The majority was persuaded by the fact that while “person” is nowhere defined within chapter 28, article 6, of the Nebraska Revised Statutes, the article that contains the impersonation statutes, Neb. Rev. Stat. § 28-109, states: “[f]or purposes of the Nebraska Criminal Code, unless the context otherwise requires: ... (16) Person shall mean any natural person and where relevant a corporation or an unincorporated association”4 (emphasis added). Noting that “[t]he impersonation statutes … are part of the criminal code” and citing the Black’s Law Dictionary definition of “natural person” as “[a] human being, as distinguished from an artificial person created by law”, the majority concluded that “[t]he definition of ‘person’ found in § 28-109(16) makes clear that the ‘person’/’specific person’ in § 28-636(2) cannot be a fictitious person.”5 Stated otherwise, the majority determined that a “‘natural person’ excludes imaginary, artificial, or fictitious persons.”6 Even if the definition of “person” as a “natural person” pursuant to § 28-109(16) is not decisive, the majority further provided that the dictionary definitions of the terms “person” and “specific” support the conclusion that “person” means a real person for purposes of § 28-636(2). Citing the Concise Oxford American Dictionary 660 (2006), the majority stated that a “person” is defined as “a human being regarded as an individual”, while “specific” is defined as “clearly defined or an individual.”7 The majority believed that these dictionary definitions and the concept that “things capable of being real are not normally understood by default as encompassing the fictitious” further support the majority’s conclusion that “person” means a real person for purposes of § 28-636(2).8 After citing definitional language from various sources to support the determination that “person” means a real person for purposes of § 28-636(2), the majority next cited a number of cases from other jurisdictions to support the conclusion that “‘person’ is plainly limited to real and specifically identifiable human beings.”9 In Flores-Figueroa v. United States, the U.S. Supreme Court construed a federal criminal statute that is identical in relevant part to 18 U.S.C. § 1028(a)(7) (2012), which is similar to Nebraska’s criminal impersonation statutes.10 18 U.S.C. § 1028(a)(7) (2012), provides that “it is a crime to knowingly transfer, possess, or use, without lawful authority, a means of identification ‘of another person.’” Section 1028(d)(7), in turn, defines the term “means of identification” in language “practically identical to § 28–636(2)’s definition of ‘[p]ersonal identifying information.”11 The U.S. Supreme Court in Flores-Figueroa held that the language in the federal statute required “that the government prove the defendant knew that the means of identification at issue corresponded to an actual person.”12 Citing Flores-Figueroa, as well as other federal cases, the majority asserted, in support THE NEBRASKA LAWYER

33

of its construction of § 28–636(2), that “[f]ederal courts have consistently held that the ‘means of identification’ described 18 U.S.C. § 1028(d)(7) must identify an actual person who is not the defendant.”13 Citing U.S. v. Foster14 and U.S. v. Mitchell,15 the majority also noted that federal courts have held that a “non-unique identifier, such as a name, will not alone qualify as a ‘means of identification,’ [for purposes of 18 U.S.C. § 1028(d)(7)] when that identifier points to numerous equally plausible, actual persons, as opposed to one specific, real individual.”16 In particular, the majority cited U.S. v. Mitchell for the proposition that “the definition of ‘means of identification of another person’ as ‘any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual’ was plain and clarified that 18 U.S.C. § 1028(d) (7) requires that the ‘means of identification’ entail a sufficient amount of correct, distinguishing information to identify a specific, real person.”17 Similarly, the majority was persuaded by numerous state court cases related to criminal impersonation statutes from other jurisdictions that concluded that the “‘persons impersonated must be real persons” and that, accordingly, “giving a police officer the wrong name, without proof the name corresponded to a real individual, is insufficient to support a charge of impersonation.”18 19 The majority viewed the analyses of these other state courts as “reasonable” in the event that “‘person’ in the context of §§ 28-638(1)(c) and 28-636(2) were ambiguous,” which the majority stated it would be “hard pressed to conclude.”20 The majority also found it significant that § 28-638 “expressly uses the term ‘impersonation’ as part of the body of the statute” as opposed to the term being “merely a label placed by the Nebraska Revisor of Statutes.”21 Noting that the Court should “give effect to every word, clause, and sentence of a statute, since the Legislature is presumed to have intended every provision of a statute to have meaning,” the majority felt it should give “credence” to the word “impersonation” in the statute, which, according to Black’s Law Dictionary, is defined as “to pretend to be ‘another person.’”22 23 The majority also determined that, even if there was ambiguity in the meaning of the term “person” within the impersonation statutes, the legislative history supports its construction. Citing Branz v. Hutchinson24 for the rule of law that “[w]here an amendment leaves certain portions of the original act unchanged, such provisions are continued in force with the same meaning and effect they had before the amendment,” the majority opinion provided as follows: The definition of “personal identifying information” remained unchanged during the most recent amendment to the impersonation statutes, which

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state v. covey was 2009 Neb. Laws, L.B. 155. The same definition of “personal identifying information” was previously found in Neb.Rev.Stat. § 28–608(4) (b) (Reissue 2008), and that definition tied into § 28–608(1)(d)(i). Section 28–608(1)(d)(i) stated that a person “commits the crime of criminal impersonation” if he or she, “[w]ithout the authorization or permission of another and with the intent to deceive or harm another,” “[o]btains or records personal identification documents or personal identifying information[.]”25

Thus, in the context of the impersonation statutes before the passage of L.B. 155, the “person” identified by the “personal identifying information” was very clearly a real person, as distinguished from a fictitious person. The “personal identifying information” was of “another,” who was capable of giving authorization or permission, and who was capable of being harmed by the unauthorized use of the personal identifying information.26 As a result, the majority concluded that “the unchanged definition of ‘personal identifying information’ is presumed to continue to be understood as the name or number of a real, not a fictitious, specific person.” Next, the majority observed that: (1) there is a separate criminal offense in Nebraska under § 28-907(1)(a) [i.e., false reporting] where it is unlawful for a person to “furnish material information he or she knows to be false to any peace officer or other official with the intent to instigate an investigation of an alleged criminal matter or to impede the investigation of an actual criminal matter”; (2) the Nebraska Supreme Court has previously determined that “the crime of ‘false reporting’ includes giving a false name to avoid an arrest warrant”; and (3) “criminal impersonation via false personal identifying information, both before and after L.B. 155, has always been distinguishable from the separate misdemeanor offense of ‘false reporting’ found in our criminal code.”27 28 As a result of those observations, and noting that it is required “to interpret criminal statutes together so as to maintain a consistent and sensible scheme”, the majority determined that “[i]t would be an odd criminal scheme if giving a false name to a police officer, without any additional intent, could be a felony under § 28–638(1) (c), while the same act with the additional element of intending to impede an investigation is only a misdemeanor.”29 30 Finally, the majority noted that, even if there was ambiguity in the impersonation statutes, the rule of lenity “requires that [it] interpret ‘person,’ as used in §§ 28-638(1)(c) and 28-636(2) to encompass only real, specifically identifiable, human beings,” as the rule requires “ambiguities in a penal statute [to be] resolved in the defendant’s favor” to promote fair notice to those subject to criminal laws, to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and the courts.31 32 THE NEBRASKA LAWYER

34

The State made the argument to the Court that the term “specific person”, as used in § 28-636(2), refers to the defendant and not to another person. However, the majority disagreed with that construction for three reasons. First, “[t] he ‘personal identifying information’ will not be ‘false’ if the ‘specific person’ identified by the name or number is the same ‘person’s’ name or number given to the law enforcement officer, and, therefore, “the State’s argument runs afoul of the rule of construction that the same words used in the same sentence are presumed to have the same meaning.”33 34 Secondly, “if the Legislature had intended the meaning the State champions, there are certainly clearer ways it could have conveyed that meaning” as the term “a specific person” in § 28–636(2) “is an oddly oblique way for the Legislature to have chosen to simply say ‘oneself.’”35 Finally, the Court noted that “the State’s argument as to whom ‘specific person’ refers does not address the meaning of the second instance of ‘person’ in § 28–636(2): ‘including a person’s: (1) Name; (b) date of birth; (c) address; [et cetera].’”36

Dissent Justice Cassel, Chief Justice Heavican and Justice Stephan dissented from the decision, asserting that the relevant statutes are clear and unambiguous and that, pursuant to those statutes, “[t]he elements of the crime do not require identification of a real person” because “other than date of commission and venue, there are only two elements” to the offense of criminal impersonation under § 28-638(1)(c): “(1) that the accused provided false personal identifying information to a law enforcement officer and (2) that he or she did so knowingly.”37 The dissenting opinion further asserts that “the definition of ‘personal identifying information’ [similarly] contains no … requirement” that the false personal identifying information relate to a real person.38 The dissent states that, while “personal identifying information” is defined by § 28-636(2) as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific person,” neither the term “person” nor “specific” is “explicitly limited to real, as opposed to imaginary, ‘human beings.’”39 In other words, the dissent asserted that the majority improperly read the term “real” into § 28-636(2).40 In addition, the dissent focuses on the word “may” in the definition of “personal identifying information” in § 28-636(2). Citing JCB Enters. v. Nebraska Liq. Cont. Comm.,41 and In re Trust Created by Isvik42, the dissent asserts that “when the word “may” is used in a statute, permissive or discretionary action is presumed”; thus, the dissent argues that “the word ‘may’ means the personal identifying information provided is capable of identifying a definite or identifiable individual, not that the information provided must identify a definite or identifiable individual.”43 Ultimately, the dissenting Justices believed that M ay / J u ne 2 0 1 5


state v. covey there was sufficient evidence to support Covey’s conviction of criminal impersonation under § 28-638(1)(c) because, by identifying himself as “Daniel Jones,” he knowingly gave false personal identifying information to a law enforcement officer and, while “[t]here was no proof that Daniel Jones was a real person[, …] the ability of a name to identify a definite or particular individual is not premised upon the existence of an actual person with that name.”44 As such, the dissent found that “both elements of the crime were clearly established.”45

4

Id. at 262.

5

Id.

6

Id.

7

Id.

8

Id. at 262-63.

9

Id. at 263.

In its final argument, the dissent criticizes the majority’s reliance on the name of the offense (i.e., criminal impersonation”) as designated by the Legislature, stating that “[t]he name of the crime does not change or affect its elements” and the “elements control [this Court’s] … review.”46

14 740

F.3d 1202 (8th Cir. 2014)

15 518

F.3d 230 (4th Cir. 2008)

In response to the argument that the word “may” in the definition of “personal identifying information” in § 28-636(2) results in permissive or discretionary action”, the majority asserts that “[t]he dissent’s argument, like the State’s, does not address the second instance of “person” in the statute” but, “[i] n any event, the cases the dissent relies upon are inapplicable.”47 The majority argues that the statutes analyzed in the cases relied upon by the dissent are distinguishable in that they “use ‘may’ to describe an action by an actor” whereas “‘may’ as found in § 28–636(2) is in a passive phrase utilized for an abstract definition.”48 By way of example, the majority notes that it has “held that ‘may’ connotes discretionary action when used in statutes specifying that ‘the court may set aside a final judgment’ or ‘may allow the prevailing party ... a reasonable attorney’s fee’”, but, in § 28–636(2), the term “may” merely “modifies the ‘name or number’ that may be used” and “[a] name or number cannot act or have ‘discretion.’”49 The majority reads “may” in § 28–636(2) as “being capable of”; thus, asserts that the most sensible reading of the statute is that “to be ‘personal identifying information,’ that information must have the ability to identify a ‘specific person.’”50

10 556

U.S. 646, 129 S.Ct. 1886 (2009),

11 Id. 12 Id. 13 Id.

16 Id.

at 263-64.

17 Id.

at 264.

18 Id. 19 See,

State v. Woodfall, 120 Hawaii 387, 206 P.3d 841 (2009); State v. Berry, 129 Wash.App. 59, 117 P.3d 1162 (2005); City of Liberal v. Vargas, 28 Kan.App.2d 867, 24 P.3d 155 (2001); Lee v. Superior Court, 22 Cal.4th 41, 989 P.2d 1277, 91 Cal. Rptr.2d 509 (2000); State v. Jackson, 32 Conn.App. 724, 630 A.2d 164 (1993); Brown v. State, 225 Ga.App. 750, 484 S.E.2d 795 (1997); People v. Gaissert, 75 Misc.2d 478, 348 N.Y.S.2d 82 (1973).

20 Id.

at 265.

21 Id. 22 Id. 23 See

Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).

24 128

Neb. 698, 260 N.W. 198 (1935)

25 Id.

at 266.

26 Id.

at 267.

27 Id.

at 267-68.

28 See 29 Id.

State v. Nissen, 224 Neb. 60, 395 N.W.2d 560 (1986).

at 268.

30 Sack

v. State, 259 Neb. 463, 610 N.W.2d 385 (2000).

31 Id. 32 See,

State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014); State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).

33 Id.

at 268-69.

34 Brown

v. Gardner, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994).

35 Id.

at 269.

36 Id.

Conclusion

37 Id.

The majority opinion concluded that since there “was no evidence the name ‘Daniel Jones’ belonged to a real Daniel Jones, much less to any ‘specific’ Daniel Jones,” there was insufficient evidence to support the crime charged against Covey. The majority noted, however, that “[s]uch a showing would not have been necessary had the State charged Covey with the misdemeanor offense of false reporting under § 28–907(1)(a).”51

at 271.

38 Id. 39 Id.

at 271-72.

40 Id.

at 272.

41 275

Neb. 797, 749 N.W.2d 873 (2008).

42 274

Neb. 525, 741 N.W.2d 638 (2007).

43 Id. 44 Id. 45 Id.

at 273.

46 Id.

Endnotes

47 Id.

at 269.

1

290 Neb. 257, 859 N.W.2d 558 (2015),

48 Id.

at 269-70.

2

State v. Covey, 290 Neb. 257, 259 (2015).

49 Id.

3

Id. at 261.

50 Id.

at 270.

51 Id.

at 270-71.

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Resetting the

BAR

NSBA Pilot: Introducing the NSBA’s Free On-Call Interpreter Pilot Program

In 2014, the NSBA received a grant from Woods Charitable Foundation to pilot an on-call interpreter service for attorneys’ communication with their clients (not for in-court proceedings). If evaluation data indicate that there is sufficient demand for the services of an on-call interpreter program to assist with facilitating communication between clients and attorneys, the NSBA will seek to formally adopt the service and make it self-sustaining. Interpreter services are free during the pilot and open to all active NSBA dues-paying attorneys.

How to make an Appointment

During the pilot, attorneys will need to schedule their appointments with interpreters through the NSBA by calling 402-475-7091 or sending an email request to interpreters@nebar.com. Interpreters can be used for a variety of activities (e.g., reviewing contracts or court orders, negotiations, mediations, depositions, etc.).

Languages

The NSBA currently has Spanish and Somali interpreters available. If you have a need for another language, please make a request and we will try to accommodate it.

Cost

Grant funds will cover the cost of interpreter services used through this Pilot Program. The interpreters will bill the NSBA directly.

Phone

The NSBA will set up a 1-800 number to facilitate all of your appointments. This also allows us to track usage and facilitates communication in situations where there may need to be more than 2 people on the phone line.

Videoconferencing through GoToMeeting

If it is preferable to use videoconferencing, the NSBA can set up a connection between the interpreter and the attorney using GoToMeeting (this platform uses standards-based cryptography with true end-to-end encryption, making it a secure web-based conference option). This also allows the attorney to share documents and other visuals with the interpreter during the session.

Evaluation and Pilot Participation Agreement

By participating in the pilot, your participation in the evaluation process is expected and appreciated.

THE NEBRASKA LAWYER

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Nebraska Ethics Advisory Opinion for Lawyers

attorney handling the Matter at Firm B does work exclusively for that attorney, and will not do any work for the Transitioning Attorney following his or her transfer. The Transitioning Attorney will have no involvement in the Matter following his or her transfer to Firm B.

No. 15-01

Applicable Law

an attorney who leaves a law firm that is representing a client in a matter is not precluded from joining

With respect to lawyer conflicts and imputed conflicts, Neb. Ct. R. of Prof. Cond. § 3-501.9, provides in pertinent part as follows:

another firm that is representing an adverse client in the same matter provided that the transitioning attorney obtained no confidential knowledge or information concerning the matter or client prior

“(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

to his departure. the transitioning attorney has the burden of proof upon inquiry or complaint as to the lack of knowledge of possession of such confidential information concerning the matter.

Question Presented

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

I. Whether an attorney who transitions from a firm engaged on one side of a litigated matter (in which the attorney had no involvement) to a firm on the other side of the same matter disqualifies the attorney and firm from continuing to represent its client in such matter?

(1) whose interests are materially adverse to that person; and

Facts

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent confirmed in writing.

Firm A and an attorney at Firm B have been engaged on opposite sides of a litigated matter (the “Matter”) that has been ongoing for numerous years. The attorney handling the Matter at Firm B is the only attorney at Firm B in his or her specific practice group, and therefore is the only attorney at Firm B involved in the Matter.

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

An attorney currently employed at Firm A and transitioning to Firm B (the “Transitioning Attorney”) has not had any involvement in the Matter and does not have any confidential knowledge pertaining to the Matter or the client. Access to information, including the Matter, at Firm A is not under lock-and-key. However, legal assistants at Firm A keep and maintain the files and each attorney’s files are segregated from every other attorney’s files. Transitioning Attorney and the attorney handling the Matter at Firm A do not share the same legal assistant. Transitioning Attorney represents that he has had no access to any confidential information related to the Matter including files, electronic documents, and any form of client information other than the name of the parties and attorney involved in the matter together with knowledge that the matter has been involved in litigation for many years.

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.” The reference to Rule 1.6 contained in Rule 3-501.9(b) (1)(2) pertains to confidential information relating to the representation of a client. The Official Comments to Rule 3-501.9 are instructive. Comment 4 to Rule 3-501.9 provides that:

Although Transitioning Attorney has had no involvement and has no confidential knowledge or information relating to the Matter, Firm A is assumed to not be willing to seek a conflict waiver from its client or otherwise waive any potential conflict. Prior to Transitioning Attorney’s transfer from Firm A to Firm B, Firm B will implement safeguards to restrict and/or password protect the electronic Matter files and will keep the physical files in a secure location which can only be accessed by the attorney handling the Matter at Firm B and his or her legal assistant. Note also that the legal assistant for the THE NEBRASKA LAWYER

“[i]f the concept of imputation were applied with unqualified rigor, the result would be a radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.” Neb. Ct. R. of Prof. Cond. § 3-501.9 cmt 4. Comment 5 provides that: “[Rule 3-501.9] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of 37

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information protected by Rules 1.6 and 1.9(c).” Neb. Ct. R. of Prof. Cond. § 3-501.9 cmt 5 (Emphasis added).

be disqualified from further representation. Id. At 993, 458 N.W.2d at 253.

Further Comment 5 states that:

In State ex rel. FirsTier Bank, 244 Neb. 36, 503 N.W.2d 838 (1993), an attorney was employed at a law firm while that firm worked on a case for a defendant. That attorney, and several other attorneys from the firm, formed a new firm with other attorneys. The new firm represented the plaintiffs in an underlying action. The six attorneys from the first firm who were still with the second firm at the time of the proceedings in Buckley testified by affidavit that they received no information on the underlying action. We adopted a bright-line rule:

“[I]f a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.” Finally, Comment 6 to Rule 3-501.9 states as follows: “Application of paragraph (b) depends on a situation’s particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.”

[A]n attorney must avoid the present representation of a cause against a client of a law firm with which he or she was formerly associated, and which cause involves a subject matter which is the same as or substantially related to **727 that handled by the former firm while the present attorney associated with that firm. Id. at 45, 503 N.W.2d at 844. The year after Buckley, this court applied the bright-line rule to a law firm in State ex rel. Creighton Univ. v. Hickman, 245 Neb. 247, 512 N.W.2d 374 (1994). We held that opposing counsel had to be disqualified after hiring a clerical worker that, unbeknownst to the firm, had worked on the same case as an attorney for an adverse party. We concluded that the hardship worked by this result was outweighed by the need to maintain the confidentiality of communications and avoid the appearance of impropriety.

Neb. Ct. R. of Prof. Cond. § 3-501.9 cmt 6. The history of Rule 3-501.9 was reviewed by the Nebraska Supreme Court in Mid America Agri Products/Horizon, LLC v. Rowlands, 286 Neb. 305, 835 NW2d 720 (2013) wherein the Court stated as follows:

Following Hickman, the Lawyers’ Advisory Committee issued Nebraska Ethics Advisory Opinion for Lawyers No. 94-4. The opinion applied the bright-line rule to clerks, paralegals, secretaries, and other ancillary staff members who moved from one law firm to another. The opinion specifically stated that screening was insufficient to avoid disqualification. The opinion had the practical effect of preventing legal offices from hiring administrators, paralegals, laws clerks, secretaries, and other ancillary personnel who had worked for legal offices that had or would represent clients adverse to clients of the hiring office. Due to potential conflicts of interest, several law firms ceased hiring law clerks from Nebraska law schools. In response to opinion No. 94-4, the Nebraska State Bar Association petitioned this court to modify Nebraska’s Code of Professional Responsibility. In September 2005, § 3-501.9 was adopted by the Supreme Court, as more particularly set forth above.

“A brief history of § 3-501.9 sets the background for our resolution of this matter. Section 3-501.9 developed from a response to Nebraska case law regarding conflicts of interest that arise when lawyers move from one firm to another. In State ex. rel. Freezer Servs., Inc. v. Mullen, 235 Neb. 981, 458 N.W.2d 245 (1990), we disqualified a law firm from representing a defendant. The attorneys in a firm that had represented the plaintiff joined the defendant’s firm. We presumed an attorney leaving one firm acquired client confidences while at the firm, regardless of whether the attorney was actually privy to any confidential communications. We also presumed the attorney shared or would share those confidences with members of any firm the lawyer subsequently joined. We held that when an attorney who was intimately involved with the particular litigation, and who has obtained confidential information pertinent to that litigation, terminates the relationship and becomes associated with a firm which is representing an adverse party in the same litigation, there arises an irrebuttable presumption of shared confidences, and the entire firm must THE NEBRASKA LAWYER

Although the court in Mid America dealt with the issue of whether an attorney could be disqualified as a result of retaining an expert who had been previously retained by the opposing party in the same matter, the court nonetheless 38

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involving the transitioning attorney, the attorney handling the Matter at Firm B and Firm B would not be disqualified from continued representation in connection with the matter under the same rationale.

reiterated the overall concept of imputed conflicts by stating “our precedents have applied an irrebuttable presumption only to persons who obtained confidential information while working as lawyers . . .” Mid America Agri Products/Horizon, LLC v. Rowlands, 286 Neb. at 316.

Our conclusion here is consistent with the Committee’s findings as set forth in Advisory Opinion No. 09-06, wherein the Committee opined that a firm was not disqualified from continuing to represent a husband in post-decree divorce proceedings, despite the fact that a former associate of a firm representing the wife had joined the husband’s attorney’s firm. A critical component of the Committee’s conclusion was the fact that the transitioning attorney acquired no actual knowledge of the wife’s case while associated with the former firm.

Analysis In the present case, the transitioning attorney did not obtain or have permissible access to any of Firm A’s files pertaining to the Matter and has not acquired any confidential information concerning the Matter. In the absence of evidence contrary to the same, there is no conflict of interest that exists with respect to the transitioning attorney and, in fact, the transitioning attorney would not be prohibited from working on the Matter at Firm B by virtue of the fact that he obtained no confidential information relating to the Matter or the client of Firm A. Consequently, by virtue of the absence of any conflict of interest

Because we conclude that no conflict of interest exists with respect to the Transitioning Attorney, we similarly conclude that no conflict exists that would disqualify Firm B from continuing its representation in the Matter.

Nebraska Ethics Advisory Opinion for Lawyers

for the county attorney and other members of her firm to be appointed, or to continue their current appointments, as guardian ad litem. The answer is yes, if the appointments are from a juvenile court, or a county court sitting as a juvenile court. If the appointments are in private civil cases in which the State of Nebraska has no interest and is not a party, then the answer is no.

No. 15-02 a nebraska lawyer serving as county attorney may

Applicable Rule and Comment

not accept appointments as guardian ad litem in juvenile court proceeding in any county in nebraska.

Neb. Ct. R. of Prof. Cond. § 3-501.7. Conflict of interest; current clients.

the prohibition also extends to other members of the lawyer’s private law practice.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

however, a nebraska lawyer serving as county attorney may accept appointment as guardian ad litem in private civil cases in which the state of nebraska has no interest and is not a party.

(1) the representation of one client will be directly adverse to another client; or

Questions Presented

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

A Nebraska lawyer requested an opinion from the Nebraska Advisory Committee on two questions. Those questions are: 1. May an attorney who has been elected as county attorney in one county accept appointments as guardian ad litem in another county in Nebraska?

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

2. If not, does the conflict extend to other members of the attorney’s private firm?

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

Facts Members of a small private practice law firm in central Nebraska accepts appointments as guardian ad litem for minors. A member of the firm was elected, and is serving, as county attorney of a county in which the firm members currently have no guardian ad litem appointments. However, the firm currently has appointments in three neighboring counties or counties within 60 miles of where the firm has its practice.

(2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

The firm’s question is whether there is any ethical prohibition THE NEBRASKA LAWYER

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COMMENT

consent must be obtained from both the juvenile and the state. The committee parenthetically notes that juvenile court actions are captioned “State of Nebraska in the interest of [child’s name].” Thus, to the extent Formal Opinion 06-1 indicates otherwise, it is disapproved and amended. Because the county attorney represents the State of Nebraska, this prohibition extends to appointments in other counties as well. If the appointment as guardian ad litem occurs in a divorce, custody, probate, paternity, or adoption case in which neither the county nor the state is a party, there is no conflict of interest for the private attorney associated with the county attorney.

* * * * * * * * * [6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

The potential conflict between Formal Opinion No. 06-01 and Formal Opinion No. 08-01 was noted in Nebraska Ethics Advisory Opinion for Lawyers No. 09-08. This same committee was asked in Formal Opinion No. 09-08 to answer a question whether a city attorney had a conflict in instances similar to the request that is made in this case. The committee noted that Formal Opinion No. 08-01 disapproved of Formal Opinion 06-01 insofar as 06-01 implicitly approved guardian ad litem appointments for county attorneys in juvenile courts of counties other than the county the county attorney served in. However, since Formal Opinion 09-08 involved city attorneys instead of county attorneys, and since city attorneys do not have the State of Nebraska as a client; Formal Opinion 09-08 counselled that there is no per se prohibition to city attorneys accepting appointments in juvenile court cases. Therefore, Formal Opinion No. 08-01 was distinguished on the basis that city attorneys and county attorneys are treated differently in this concurrent conflict of interest analysis.

Neb. Ct. R. of Prof. Cond. § 3-501.10. Imputation of conflicts of interest; general rule. (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.

Therefore, this county attorney that requested the opinion in this case is the attorney for the State of Nebraska in juvenile court cases within the county where the county attorney serves. The State of Nebraska is also a party to all juvenile cases in any county in the state, and that is the same entity that the county attorney represents. Even though the cases in different counties involve unrelated matters, the county attorney still has the State as a client, and has a concurrent conflict in other counties as well. Comment (6) under § 3-501.7 explains that duties of loyalty to one client, and expectations of complete devotion by another client establish the concurrent conflict of interest.

Discussion Nebraska Ethics Advisory Opinion for Lawyers No. 06-1 involved a deputy county attorney rather than the county attorney. However, the reasoning would apply here. That opinion concluded that it was possible for the deputy county attorney to accept appointments as guardian ad litem in nearby counties, depending on a specific assessment in each case for actual or potential conflicts. However, Advisory Opinion No. 06-01 was disapproved and amended in Nebraska Ethics Advisory Opinion for Lawyers No. 08-01 with the following language:

In her role as a guardian ad litem for a minor, the county attorney is appointed to “stand in lieu of a parent” and defend the legal and social interests of the juvenile. Neb. Rev. Stat. § 43-272.01. Also, under the best practices found in the Nebraska Supreme Court’s Guidelines for Guardians ad Litem for Juveniles in Juvenile Court Proceedings, a guardian ad litem has both the role as an advocate for the juvenile and acts as legal counsel for the juvenile. Thus a guardian ad litem has the traditional role as a lawyer for the minor (plus has the power to stand in lieu of a parent) in these cases. Since that very same lawyer is a lawyer for the adverse party in the juvenile court proceeding (albeit in unrelated cases); then the expectations of loyalty, feelings of betrayal, and fear of devotion limited by deference to the other client establish the concurrent conflict of interest. This principle is explained in Comment [6] to Neb.

Guardian ad litem appointments arise in a variety of different circumstances including juvenile proceedings, adoption proceedings, guardianship proceedings, and divorce and custody proceedings. To the extent the appointment as guardian ad litem occurs in a juvenile case in the county in which the county attorney is bringing the juvenile action, Rule 1.7 prohibits any attorney in the firm from representing a client due to a concurrent conflict of interest. As indicated earlier in this opinion, Rule 1.7(b) allows a client to waive a concurrent conflict of interest. However, it is not likely that a juvenile client can waive such conflict. Further, the Rule requires that informed consent be obtained by “each affected client.” In this situation, that means informed THE NEBRASKA LAWYER

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Ct. R. of Prof. Cond. § 3-501.7, quoted above in this opinion.

the committee believes that prior advisory opinion No. 08-01 applies to this request, and therefore the committee counsels that an attorney who is a county attorney in one county of Nebraska cannot accept appointments as guardian ad litem from a juvenile court of any other county in Nebraska. Also, the prohibition extends to other members of the county attorney’s law firm as well.

In a purely private case such as a guardianship, custody, adoption, paternity, or other civil case [that does not include the State as a party]; the county attorney would probably not have an adverse party as a client in any unrelated matter. Thus, the conflict would not be inferred as it is in a juvenile court case where the guardian ad litem is the lawyer for the same party that is an adverse party to the juvenile. In this regard, the committee is aware that juvenile court proceedings are not meant to have the same features of adversity that typical litigation has. However, the fact remains that there is a degree of adverse interests involved between the action of the state and members of the family that are made parties to juvenile court proceedings.

However, that same advisory opinion (No. 08-01) counsels that there is no conflict of interest if the appointment as guardian ad litem comes from a case in which the State of Nebraska is not a party, so long as the guardian ad litem does not happen to represent another party in the case that appoints the guardian ad litem in an unrelated case. That is because the county attorney would not be an attorney for any party in the non-juvenile court case, and would have no duties of loyalty or devotion of effort to any party other than the minor.

Pursuant to Neb. Ct. R. of Prof. Cond. § 3-501.7 (b), the conflict can be waived with written informed consent [as defined by Neb. Ct. R. of Prof. Cond. § 3-501.0]. However the concurrent conflict must be so waived by both parties. The county attorney cannot logically get a waiver from a minor because the county attorney is the person advocating for and acting on behalf of the minor in her role as guardian ad litem. That would have the county attorney give herself a waiver so that she could continue to take guardian ad litem appointments in neighboring counties. Also, the State of Nebraska is the other client, and the committee knows of no realistic way for the State—or the juvenile court that makes the appointment— to waive the conflict for the other party.

Conclusion The committee concludes that a Nebraska lawyer serving as county attorney may not accept appointments as guardian ad litem in a juvenile court proceeding in any county in Nebraska. The prohibition also extends to other members of the lawyer’s private law practice. The reason for the prohibition is a concurrent conflict of interest as defined by Neb. Ct. R. of Prof. Cond. § 3-501.7 (1). The reason the prohibition extends to other members of the county attorney’s separate law practice is the plain language of Neb. Ct. R. of Prof. Conduct § 3-501.10.

The rule for imputation of conflicts of interest, Neb. Ct. R. of Prof. Cond. § 3-501.10, clearly imputes the county attorney’s concurrent conflict to all other members of her firm. Therefore,

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

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Nebraska Ethics Advisory Opinion for Lawyers

the provisions of this rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

No. 15-03 Statement of Facts A lawyer employed as a Deputy County Attorney elected to run for the position of Public Defender of the same county. The lawyer’s duties with the County Attorney’s office included representing the State in the prosecution of misdemeanor and felony offenses, performing coroner duties, and being on call to assist local law enforcement agencies with questions relating to warrants and probable cause, handling mental health commitment hearings, and representing the State of Nebraska in juvenile matters. As the Public Defender, the lawyer would be responsible for representing clients charged with misdemeanors and felonies, handling mental health commitment hearings and potentially representing juveniles and the parents of juveniles. The office of the Public Defender consists of the Public Defender, a deputy, and a legal secretary.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not:

Questions Presented

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or

I. Whether a County Attorney may accept employment in the office of the Public Defender of the same county and, if so, what safeguards must be in place to avoid a conflict of interest in the representation of clients. II. Whether a lawyer, as Public Defender, represent clients in new cases that the lawyer has prosecuted in cases prior to leaving the County Attorney’s office.

Applicable Comments

Case

Law,

Rules,

(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

and

Section 3-501.11 of the Nebraska Rules of Professional Conduct states:

(e) As used in this Rule, the term “matter” includes:

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(2) any other matter covered by the conflict of interest rules of the appropriate government agency. Comment 4 to §3-501.11 provides: This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer’s professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with THE NEBRASKA LAWYER

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government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.” Section 3-501.9 of the Nebraska Rules of Professional Conduct states: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

Comment 5 to §3-501.11 provides: When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment [6].

(1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

Section 3-501.10 of the Nebraska Rules of Professional Conduct states: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. (d) A lawyer shall not knowingly allow a support person to participate or assist in the representation of a current client in the same or a substantially related matter in which another lawyer or firm with which the support person formerly was associated had previously represented a client:

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) whose interests are materially adverse to the current client; and

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) about whom the support person has acquired confidential information that is material to the matter, unless the former client gives informed consent, confirmed in writing

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(e) If a support person, who has worked on a matter, is personally prohibited from working on a particular matter under Rule 1.9(d), the lawyer or firm with which that person is presently associated will not be prohibited from representing the current client in that matter if:

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

(1) the former client gives informed consent, confirmed in writing, or

Comment 7 to §3-501.10 provides, in part “[u]nder Rule 1.11(d), where a lawyer represents the government after having THE NEBRASKA LAWYER

(2) the support person is screened from any personal 43

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participation in the matter to avoid communication to others in the firm of confidential information that both the support person and the firm have a legal duty to protect.

affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(f) For purposes of Rules 1.9(d) and (e), a support person shall mean any person, other than a lawyer, who is associated with a lawyer or a law firm and shall include but is not necessarily limited to the following: law clerks, paralegals, legal assistants, secretaries, messengers and other support personnel employed by the law firm. Whether one is a support person is to be determined by the status of the person at the time of the participation in the representation of the client.

(4) each affected client gives informed consent, confirmed in writing. Section 3-501.6 of the Nebraska Rules of Professional Conduct states:

Comment 2 to §3-501.9 provides, in part, “a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules;

Comment 3 to §3-501.9 provides, in part, that “[m]atters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

Comment 7 to §3-501.9 provides “[i]ndependent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and paragraph (c).”

(4) to comply with other law or a court order. (c) The relationship between a member of the Nebraska State Bar Association Committee on the Nebraska Lawyers Assistance Program or an employee of the Nebraska Lawyers Assistance Program and a lawyer who seeks or receives assistance through that committee or that program shall be the same as that of lawyer and client for the purposes of the application of Rule 1.6.

Section 3-501.7 of the Nebraska Rules of Professional Conduct states: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

In State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008), defendant appealed the district court’s decision denying his motion for appointment of a special prosecutor based on an alleged conflict of interest. Kinkennon claimed the conflict arose when another attorney left the firm where his court-appointed defense counsel worked and then began employment with the county attorney’s office as a deputy county attorney. Kinkennon claimed that to avoid the “appearance of impropriety” the conflict of interest should be imputed to the other prosecutors in the office, thus disqualifying the entire county attorney’s office for that county.

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each

The Nebraska Supreme Court acknowledged that most courts have adopted a less stringent rule, and “[u]nder this approach,

(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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courts consider, among other things, whether the attorney divulged any confidential information to other prosecutors or participated in some way in the prosecution of the defendant. The prosecuting office need not be disqualified from prosecuting the defendant if the attorney who had a prior relationship with the defendant is effectively isolated from any participation or discussion of matters concerning which the attorney is disqualified. If impropriety is found, however, the court will require recusal of the entire office.” Id. The Court did not adopt the per se rule of disqualification. The Court recognized that they endorsed a more flexible rule by adopting Nebraska Rules of Professional Conduct, Rule 1.11(d). The Court went further to say that “[t]his rule recognizes the distinction between lawyers engaged in the private practice of law, who have common financial interests, and lawyers in a prosecutor’s office, who have a public duty to see justice, not profits.” Id. “The per se rule would result in the unnecessary disqualification of prosecutors where the risk of a breach of confidentiality is slight, thus needlessly interfering with the prosecutor’s performance of his or her constitutional and statutory duties. Furthermore, a per se rule would unnecessarily limit mobility in the legal profession and inhibit the ability of prosecuting attorney’s offices to hire the best possible employees because of the potential for absolute disqualification in certain instances.” Id.

denial of access by the screened lawyer to files or other materials relating to the matter, and periodic reminders of the screen to the screened lawyer and the other government personnel.” Id. In State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013), defendant’s trial counsel sought to withdraw from his case because he accepted a position with the county attorney’s office in the felony division. Defendant’s newly appointed counsel believed that he should file a motion to disqualify the county attorney’s office in light of the prior defense counsel’s new employment with that office. However, defendant advised the court that he waived his opportunity or right to pursue that conflict issue. On appeal, defendant assigned as err the district court’s allowance of his prior defense counsel to withdraw and allowing him to waive the conflict of interest. The court acknowledged that his defense counsel’s new employment at the county attorney’s office did create a conflict of interest, and the attorney was incompetent to represent defendant due to his new employment. As a result, the trial court did not abuse its discretion in allowing him to withdraw as defendant’s trial counsel. In regard to the waiver of the conflict of interest, the court reiterated that in State v. Kinkennon, the Court had rejected a per se rule requiring disqualification of a prosecuting office when a conflict of interest with the defendant arises. “We held that the ultimate goal of maintaining both public and individual confidence in the integrity of our judicial system can be served without resorting to such a broad and inflexible rule. A per se rule would unnecessarily limit mobility in the legal profession and inhibit the ability of prosecuting attorney’s offices to hire the best possible employees because of the potential for absolute disqualification in certain instances.” Id. Furthermore, “[b]ecause recusal is not a per se rule in this instance, [the Supreme Court held] that a defendant can waive a conflict of interest that would disqualify the prosecuting office.” Id.

“When the disqualified attorney is effectively screened from any participation in the prosecution of the defendant, the prosecutor’s office may, in general, proceed with the prosecution.” Id. “Whether the apparent conflict of interest justifies the disqualification of other members of the office is a matter committed to the discretion of the trial court. In exercising that discretion, the court should consider all of the facts and circumstances and determine whether the prosecutorial function could be carried out impartially and without breaching any of the privileged communications. A flexible, fact-specific analysis will enable a trial court to protect a criminal defendant from the due process concerns at issue, while at the same time avoiding unnecessary disqualifications of government attorneys. Whether the State has established an effective screening procedure will obviously be part of that analysis.”

Discussion I. In reviewing applicable caselaw, Rules of Professional Conduct and Comments, there does not appear to be any restriction preventing a Deputy County Attorney from accepting employment as the Public Defender in the same county. In fact, the Nebraska Rules of Professional Conduct in regard to special conflicts of interest for former and current government officers and employees, §3-501.11, Comment 4 provides that “[t]he rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially.”

“At a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. Similarly, the other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer. Depending on the circumstances, additional screening procedures may be appropriate. These procedures may include a written undertaking by the screened lawyer to avoid any communication with other lawyers in the office and contact with files or other materials relating to the matter, notice and instructions to all relevant governmental office personnel forbidding any communication with the screened lawyer relating to the matter, THE NEBRASKA LAWYER

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In the event of a lawyer transferring employment from the County Attorney’s office to the Public Defender’s office, or vice versa, that attorney would have a conflict and would be prohibited from participating in any matters in which the attorney participated personally and substantially in their former employment, unless the government agency and the former client would provide written consent. It appears unlikely that such consent would be provided by the parties. However, although the attorney transferring employment would not be able to participate in the defense of the client that the attorney previously participated personally and substantially in prosecuting, there is no per se rule requiring the disqualification of the entire Public Defender’s office. Nebraska Rules of Professional Conduct §3-501.10, Comment 7 states “[u]nder Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.” Similarly, Comment 2 of §3-501.11 of the Nebraska Rules of Professional Conduct states “[b]ecause of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.”

other government attorneys in the office. The isolation of the conflicted attorney from any participation in or discussion of the matters for which the attorney is disqualified can prevent the entire office from being disqualified. If impropriety is found, however, recusal of the entire office would be required. To the extent that Opinion 94-4 creates a per se rule of disqualification of the government office the attorney transfers to, it would be contrary to the current Rules of Professional Conduct and Comments and recent Nebraska caselaw. Therefore, those provisions of Opinion 94-4 are hereby rescinded. II. In regard to new cases in the future and the attorney’s ability to represent clients as the Public Defender that the attorney previously prosecuted, it must be determined if the new matter is the same or substantially related to the matter the lawyer formerly represented the client on. The attorney has a continuing obligation to not “use information relating to the representation to the disadvantage of the former client except as [the Rules of Professional Conduct] would permit or require with respect to a client, or when the information has become generally known; or reveal information relating to the representation except as these Rules would permit or require with respect to a client.” Nebraska Rules of Professional Conduct §3-501.9(c)(1) and (2). The lawyer further has the obligation to maintain the confidentiality of information pursuant to Nebraska Rules of Professional Conduct §3-501.6.

In State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008), the Nebraska Supreme Court, in determining whether a conflict of interest justifies the disqualification of other members of the government office, provided that the facts and circumstances should be considered to determine whether the prosecutorial function could be carried out impartially and without breaching any of the privileged communications. It should also be determined whether an effective screening procedure had been established. The Court provided that “[a]t a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. Similarly, the other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer. Depending on the circumstances, additional screening procedures may be appropriate. These procedures may include a written undertaking by the screened lawyer to avoid any communication with other lawyers in the office and contact with files or other materials relating to the matter, notice and instructions to all relevant governmental office personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to files or other materials relating to the matter, and periodic reminders of the screen to the screened lawyer and the other government personnel.” Id.

Comment 3 to §3-501.9 provides that “[m]atters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” “[K]nowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.” Comment 2 to §3-501.9 of the Nebraska Rules of Professional Conduct provides that “[t]he scope of a “matter” for purposes of this Rule depends on the facts of a particular situation or transaction.” “[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” (Emphasis added). If the matters are not related, the attorney must determine, in accordance with §3-501.7, whether there is a significant risk that the representation of the client the public defender previously prosecuted will be materially limited by a personal interest of the lawyer (i.e. dislike of the client due to prior prosecution, etc.). If it is determined that the representation is materially limited by a personal interest of the lawyer, the

Based upon the Nebraska Rules of Professional Conduct and the aforestated caselaw, it is the opinion of the committee that there is no restriction preventing a Deputy County Attorney from accepting employment as the County Public Defender in the same county, and any conflict that may arise for the attorney transferring employment is not automatically imputed to THE NEBRASKA LAWYER

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se conflict of interest in representing clients as the Public Defender that the lawyer formerly prosecuted in the prior employment as deputy county attorney. Consideration must be given to whether the new matter is substantially related to the prior matter and whether the attorney would have knowledge of facts gained in the prior employment that are relevant to the matter in question to preclude such representation. It must also be determined if the attorney’s representation of the client would be materially limited by the personal interest of the attorney when the matters are not related. As previously discussed, if a conflict does exist, it could be waived by written consent of the government agency and/or the former client, and the remainder of the office may not be disqualified as a result of the conflict the one attorney has with the representation.

lawyer must determine that he/she reasonably believes he/ she can provide competent and diligent representation to the affected client and that the representation is not prohibited by law. The lawyer must discuss the situation with the client and obtain the client’s consent to the representation, confirmed in writing. If the client declines to sign the waiver or the attorney determines she cannot provide competent and diligent representation to the client, then the attorney must be screened from the case and have another attorney in the office handle the case or have an attorney outside the Public Defendant’s office appointed to represent the client.

Conclusion It is the opinion of the committee that there is not a per

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AGREEMENT WITH NSBA I understand that NEBDOCS is an electronic data base for legal forms made available by The Nebraska State Bar Association ("NSBA") as a service to its members. I further understand that NEBDOCS and the legal forms contained therein may be updated by NSBA and such updates will be provided to me while the subscription is in force. I, as a member of NSBA on behalf of my law firm, agree to the following: (1) Any machine-readable disks necessary to install and use NEBDOCS shall be delivered to me at the location noted on the page opposite this Agreement. Immediately upon termination of my subscription for any reason, I agree to return to NSBA all machine-readable copies of NEBDOCS, including any original or updated installation disks provided by NSBA, and to delete any installed versions of NEBDOCS, and upon request of NSBA, to provide written confirmation that I have done so. 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nsba news

NSBA Officers Voice Their Concerns To Congress ABA Day, the American Bar Association’s annual event to connect members of Congress and their staffs with their constituents in the legal profession, once again drew participants from across the country to Capitol Hill in Washington, D.C. On April 14th through 16th, 2015, more than 400 bar association leaders – from local, territorial, state and specialty bar associations, as well as from the ABA – participated in the event. In a concentrated, coordinated effort over two days on Capitol Hill, bar association representatives made their voices, and the concerns of the legal community, heard by Congress. This year’s ABA Day focused on funding for the Legal Services Corporation, over-incarceration and juvenile justice reform, among a handful of other priority concerns. Nebraska State Bar Association President Amie Martinez, President-Elect Bob Rossiter, Executive Director Liz Neeley and Legislative Counsel Bill Mueller attended the weekly Nebraska Breakfast sponsored by the Nebraska Congressional delegation and met with all five of Nebraska’s Senators and Representatives and their staffs to discuss issues of critical importance to the legal profession and the public.

Bob Rossiter, Amie Martinez and Bill Mueller speak with Congressman Adrian Smith. Congress funds the program at $452 million – about $77 million more than the funding level in fiscal year 2015, as requested by the President – Nebraska will receive an additional $341,628 in legal aid funds in the next fiscal year, bringing the state’s total to $1,942,031. Legal Aid of Nebraska continues to prioritize client cases that address immediate security issues, such as those regarding safety, housing and food. Due to the demand for assistance and decreases in staffing, the program has had to close nearly 90 percent of its cases by providing only advice or brief services rather than full representation.

The Legal Services Corporation (LSC) is the singlelargest provider of civil legal aid in the nation. It distributes more than 90 percent of its federal appropriation to 134 legal aid programs in more than 800 offices. LSCfunded programs helped more than 1.8 million people in 2013, but the The ABA also demand for these lobbied for the services far outreauthorization of paces the resources. the Juvenile Justice This “justice gap” From L-R: Bob Rossiter, Bill Mueller, Liz Neeley, Senator Brad Ashford, Amie Martinez and Delinquency will only get worse Prevention Act. This unless more funding is provided to LSC. Act supports a state and community-based comprehensive Forty-nine states have a higher population living in poverty approach to juvenile crime prevention, prioritizing preventhan they did in 2000. Legal aid offices already turn away 50 tion and early intervention. Nebraska received approximately percent or more of those seeking help, and the demand for $330,000 in federal grant funds under the program in 2014. assistance is growing. The U.S. Census Bureau’s 2012 statistics These funds are disbursed to counties through a competitive on poverty show that 63.6 million Americans qualified for grant process and are primarily being used to develop alternacivil legal assistance funded by LSC. Legal Aid of Nebraska tives to detention for Nebraska youth. currently receives $1,600,403 in federal funding from LSC. If

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NSBA NEWS

NSBA’s Oldest Member, Paul Deck, Still Practicing at 100 By Erin Grace, Omaha World Herald Reprinted with permission from the Omaha World Herald, Sunday, March 29, 2015

Today Paul Deck will attend church at First United Methodist as he and wife Marie do every Sunday. Then a little grocery shopping. Then lunch. Then a walk, if the weather is nice. Then TV and probable calls from clients. Then pedaling for 20 minutes on that stationary bike in the spare bedroom. Today will be like any other Sunday for the oldest practicing lawyer in Nebraska and Iowa, even though today Paul Deck turns 100 years old. You can try wishing him a happy birthday, although his family already did that with a big bash last weekend. Frankly, he hopes you will do nothing. “I don’t want any more of this!” he said of all the fuss.

Marie and Paul Deck

“We’re very low-key about it,” said Marie, his wife of 73 years. Paul hopes that this milestone passes as routinely as his other birthdays have because he is a man who lives by routine. He still works in the law practice he founded more than a half century ago in downtown Sioux City. Still has clients and cases, mostly divorce and custody ones. Still picks up his lawyer son, Paul Jr., every morning, still drops Paul Jr. at their building, still parks about a half mile away and still walks from his car to his sixth-floor office. He still lives in the brick ranch home he and Marie built more than 50 years ago. Still uses his home office there. Still listens to records, still roots for the Huskers, still enjoys a good fire in one of the home’s four fireplaces. Still gazes adoringly at Marie, who has a birthday coming up. She turns 97 on Wednesday. Living to 100, while still rare, especially for men, isn’t as unusual anymore as it was in 1915, when Paul was born. The 2010 Census counted 53,364 centenarians in the United States, including 846 in Iowa and 501 in Nebraska. What is rare is the quality of those 100 years. Paul Deck’s health is fairly good. He works nearly full time. He and Marie remain active. The two aren’t just living long — they’re living well. What makes Paul unique as a centenarian is that except for a few minor health complaints and a slightly dialed-down speed, life is as routine as it has always been. Paul rises every weekday at 6 a.m. and has oatmeal with raisins. He dresses sharply in a suit and tie, matching his belt to his shoes. He gets to his desk by 8:30 a.m. and returns home about 4 p.m., or sometimes later. At 5 p.m. he’s on the exercise bike. Then dinTHE NEBRASKA LAWYER

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ner, which Marie makes. By 8:30 p.m. he’s in bed — a couple of hours before his wife. His mind is sharp. It is no trouble for him to rattle off his biography: Born on a ranch in Ewing, Nebraska. Graduated from Norfolk High School. Moved to Lincoln when his mother got a job as a hotel chef. Attended the University of Nebraska. Went straight into law school because since age 5 he knew he would be a lawyer. Met Marie as a first-year law student outside his fraternity house, Phi Gamma Delta. “I said to myself, ‘I wonder who that is!’” said Paul, pausing in his summary to reflect on that day in 1938 when lightning struck. “She stood out to be a very attractive girl. She was something very special — as she’s always been!” “Enough,” tenderly scolded a very pleased Marie. They courted for three years. They sat through a lot of Husker football games, dressing up to go. Then came 1941, which Paul said was the best year of his life. He graduated from law school, hitchhiked to Omaha and got hired in Mutual of Omaha’s legal department. And he married Marie. It had been a quickie wedding with no time to shop. Paul, a member of the Army ROTC, had told Marie he’d gotten orders to report immediately to a training camp in Louisiana. They rushed to the Madison County Courthouse at closing time and begged to get a license. Marie called a minister and got flowers for an Oct. 1 ceremony. She wore a navy blue rayon-crepe dress that hung right below the knee. The next day they drove south, to a place called Camp Claiborne. After Pearl Harbor, they knew their time together was short. Paul shipped to Europe on Jan. 1, 1942. Marie drove their M ay / J u ne 2 0 1 5


NSBA NEWS car with a trailer back home. They had gotten exactly three months together. They didn’t see each other for three years and eight months. As Paul went from Ireland to North Africa to Europe, Marie took a job teaching high school English and Latin in Pierce, Nebraska. Paul wrote her letters almost daily. The letters arrived in Nebraska, punched with holes by censors. Marie hung onto any news report about the war. When it was over, she went to the Omaha airport to greet her husband, and she knew him immediately. They embraced the minute they saw each other. “It was like we had never been apart,” Marie said. Paul looked for jobs in smaller Nebraska communities and finally took one with a general practice firm in Sioux City that did a lot of workers’ comp cases. He loved that area of the law and in 1950 opened his own firm. Marie, meanwhile, was busy at home raising sons. They had five boys in a 10-year span. Paul put in long hours. He worked six days a week and after dinner until midnight. But he managed to find time to coach baseball, help the boys become Eagle Scouts and remain active in church. Marie went back for her master’s degree in American literature and taught for 18 years at East High School. She retired at 66. Three of the boys became lawyers: Paul Jr., Bill and Bob. Paul Jr. also served as a U.S. federal magistrate for about 20 years. He and Bill are in the Deck law practice with their dad. Bob has his own Deck law practice in Sioux City. Jim is a security guard in Sioux City, and John is a doctor in Lincoln. Paul and Marie have 22 grandchildren. There are 17 greatgrandchildren. On March 21, the whole clan — about 70 people — gathered in Sioux City to celebrate Paul’s 100th and Marie’s upcoming 97th. One of the couple’s proudest achievements is world travel. They’ve visited all the continents except Antarctica. They have

been to all countries in South America and Europe. They’ve been to Africa three times, Russia three times and Germany twice — before and after the fall of the Berlin Wall. They have toured all the islands in the Mediterranean, climbed the Great Wall in China and fished for piranhas in the Amazon. They spent three weeks in Egypt and Israel, a month in India and took Caribbean and Alaskan cruises. Their latest adventures have been bus trips to Branson, Missouri. As they have aged, Paul and Marie have had to slow down. They cut back on travel. They gave their 50-yard-line Husker football tickets to relatives. Marie gave up her car keys. Her eyes are failing. His hearing is going. Both walk gingerly. Once, about three years ago, as Paul was walking to his car, he sat down to rest and could not get back up. He asked a passer-by to help and the woman called 911. He was dehydrated but adamant about not going to a hospital. Paul Sr. lost that argument and spent five days being tested and observed. The verdict? Drink more water. “I’m very careful,” he said. Marie tried to get Paul’s doctor to back her up on her wish for Paul to retire. But the doctor turned to Paul and said something like: Keep doing what you’re doing. It’s clearly working. Sons Paul Jr. and Bill say it’s also working for them. Paul Sr. is still sharp, still likes the work and is still a resource for them. Bill said he can get quicker answers about certain kinds of case law by going to his father — who has already done the research on a subject like loss of consortium, which is the right a spouse has when the other spouse is injured. “I’m 60 and he’s 100,” Bill said, “and he’s still practicing law and he’s still showing me the ropes.” The American Bar Association says it doesn’t have comprehensive records on the age of members. But the bar association says Deck isn’t the oldest in the country. James Cosgrove, a retired Sioux City attorney who still keeps his office down the hall from the Decks, called Paul Sr. “a character (who) did a good job for his clients.” “You have to admire him,” said Cosgrove, 86. The Deck family certainly does. “You love the law,” Bill said to his dad. “All the time,” Paul Sr. answered. “Every minute. You can help a lot of people.” Work seems to have been good for Paul Sr.’s health. But the secret to his longevity remains that: a secret. Oh, everyone speculates. He smoked briefly during war service but quit when he got home. He eats right and exercises.

Paul Deck in his office in Sioux City, Iowa. THE NEBRASKA LAWYER

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NSBA NEWS He appears to have close and happy relationships and seems just as in love with Marie now as he was in 1939. Her wedding picture sits on his desk at home. Having a positive attitude has helped, Bill said. Genes could be at work, too, said Marie, who attributes her own longevity to blood. Her mother lived to be almost 94. Her grandmother lived to age 84. Her great-grandmother made it to 97. A spokesman for the National Center for Health Statistics agreed with Marie. “You can only eat so healthy and exercise so much,” said Jeff Lancashire, who added that his Ohio grandmother died last year at the ripe old age of 104. Paul Jr. said his father had no heart disease, no cancer and made healthy choices — but “99 percent of living this long would be luck.”

“God’s will, I guess,” he says. “What else can you say?” Paul and Marie say they are lucky to have gotten this much time — this much good time. And they are aware that someday it will come to an end. In their basement, Marie has five boxes, one for each son. Into each box goes a trinket, letters, awards, drawings, something she plans to leave each boy. She talks about how parents are supposed to clean out their junk before they die and how her boys will have a lot to sift through someday. One son has claimed the Great Books collection. Another son is getting the grandfather clock. No one has laid claim to a framed quote that hangs in Paul Jr.’s old bedroom. It’s by the English poet Robert Browning. “Grow old along with me,” the verse reads. “The best is yet to be.”

The NSBA is proud to welcome Carol Cleaver to the NSBA staff as a Volunteer Lawyers Project Attorney. A South Omaha native, Carol is a graduate of the University of Nebraska at Omaha and Creighton University School of Law. She started her legal career as a business litigation attorney in a mid-sized business law firm in Kansas City, Missouri. Admitted in Nebraska, Missouri and Kansas, Carol has practice experience in business and employment litigation, family, juvenile, immigration, and mediation. In addition to her law practice, Carol has taught courses at Creighton Law School, College of Saint Mary, Metropolitan Community College and several colleges in Kansas City. She frequently presents law topic seminars to community groups and non-profit organizations. Carol has served as director and officer of several nonprofit boards and professional organizations in Kansas City and Omaha and presently, she is a director of several Omaha area nonprofit organizations. Carol has served the NSBA in various roles, including as an ad hoc member of the Nebraska Supreme Court Minority Justice Committee and NSBA GAP committee member and she has presented various continuing legal education seminars on domestic, juvenile, ethics, and technology topics. Carol was recently appointed by the Nebraska Supreme Court to serve a three-year term on the Minority Justice Committee. A Mexican-American, Carol is actively engaged in the South Omaha and Latino communities. She provides pro bono and limited scope legal services to persons who cannot afford an attorney and she provides general counsel support to volunteer staffed nonprofit organizations.

2015 NSBA Election Notices Nominations for NSBA President-Elect Designate The Executive Council met on April 17, 2015 to nominate one individual for the position of President-Elect Designate. The Executive Council selected Senior District Judge Joseph Bataillon of the U.S. District Court, District of Nebraska as its nominee. Notifications and petitions will be sent to Douglas and Sarpy counties on April 30, 2015. Any member from the designated counties (Douglas and Sarpy) may submit a petition (signed by 25 active bar members) to run against the nominee of the Executive Council. If no petition is filed within 30 days of the announcement of the nominee, he or she is declared as President-Elect Designate for 2017-2018. The President-Elect Designate automatically succeeds to the position of President-Elect, and then President.

NSBA Executive Council- 2nd and 3rd District Notifications and petitions will be sent to the 2nd and 3rd Supreme Court Districts on April 30, 2015 for the Executive Council vacancies. The deadline for returning a petition will be May 30, 2015. Executive Council terms are four years.

NSBA House of Delegates- Districts 1, 3, 5, 7, 9, and 11 Notifications and petitions will be sent to the oddnumbered Supreme Court Districts on April 30, 2015 for House of Delegates vacancies. The deadline for returning a petition will be May 30, 2015. House of Delegates terms are four years. THE NEBRASKA LAWYER

Paul Sr., however, gave credit to a higher power.

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2015

VLP Pro Bono Volunteers The Volunteer Lawyers Project would like to thank the following attorneys who accepted one or more VLP cases in February and March 2015. The program would not exist without our volunteers. Thank you! (*Denotes volunteers who accepted more than one case) Claire Bazata David Buelt Woody Bradford Joseph Byam Hunter Campbell* Nicole Cavanaugh Kelsey Dawson

Charles Dorwart Thomas Fitchett Leta Fornoff Daniel Fullner Lisa Gonzalez* Adam Hoesing David Lepant

JoAnn Maurer* Dennis Mullin Damilola Oluyole Kevin Ruser Henry Schenker Leslie Shaver Andrew Snyder

Jerod Trouba Jim Truell Mara Wilde Thomas Zimmerman

Thank you to the attorneys who staffed the VLP Self Help Desks at the Courthouses in February and March. VLP appreciates the time each attorney dedicates to the program. Mike Baldwin Melodie Bellamy Jack Besse Dave Blagg David Broderick Jim Busse Hunter Campbell Maren Chaloupka Joe Dressen Rick Drews Brandon Dugan Audrey Elliott Tim Engler Shawn Farritor

Jessica Feinstein Ed Hoffman Jon Hunzeker Matt Jenkins Karisa Johnson Jennifer Kearney Susan M. Koenig Tim Loudon Jeanelle Lust Molly Mazour John McDermott Amanda McMahon Mike Moran Will Minich

Maureen O’Connor Jason Ossian Jerry Ostdiek Jeff Patterson J. Scott Paul Mark Porto Eileen Reilly Buzzello Michael Rickert Audrey Rowley Michael Scahill Al Schroeder Judy Schweikart Leslie Shaver Gail Steen

Galen Stehlik Mitch Stehlik Hon. Stephen Swartz Michael Synek Ronald Temple James Truell Erin Urbom Amy Van Horne Todd Vetter Ken Wentz Lori Wilson Margaret Zarbano James Zimmerman

The Self Help Desks are located in Lancaster, Douglas, Hall, Buffalo, Madison and Scotts Bluff counties. Pay it forward… If you are an attorney licensed in Nebraska, please consider volunteering at our Self-Help Desks. Call (402) 475-7091 or visit www.nebar.com for more information. “Because of the lawyers that volunteer here at the Self Help Desk, I was able to get the help I needed to be able to reunite and see my daughter and that makes me very grateful. Thank you all so much.” – from a Self Help Desk client THE NEBRASKA LAWYER

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Take our online survey at: https://www.surveymonkey.com/s/spotlightinterview

NSBA Member

SPOTLIGHTS Jessica P. Douglas Partner at Schaefer Shapiro, LLP

David Partsch Otoe County Attorney & Nebraska City Attorney What is the best career advice you ever received? Work hard and do your best and the results will take care of themselves.

What is the best career advice you have ever received? Always be ten minutes early and bring an extra copy of any caselaw you’re planning on citing in court.

What kind of legal matter do you find most rewarding or personally satisfying and why? As a criminal prosecutor, I find joy in working with great law enforcement officers that have the safety and well-being of the community in their hearts.

What kind of legal matter do you find most rewarding/personally satisfying? Trial work because it’s an excellent challenge of how quickly you can think on your feet and express your client’s position in a way that can be easily understood by a judge or jury.

If you weren’t a lawyer, what would you be and why? I always wanted to be a truck driver. I love road trips and listening to talk radio. I just wouldn’t like to be away from my family so much. I really can’t imagine not practicing law.

What is one thing you know now that you wish you would have known in your first year of practice? Other lawyers in your practice area are willing to provide you with help when you’re inexperienced. Don’t be afraid to ask other lawyers to explain how to do something. Lawyers appreciate an opportunity to educate others.

What do you like best about your practice area and why? As a public servant for a city and a county, I feel like I am making a difference in the community and helping generally improve the quality of life in the area.

What do you like best about your practice area and why? I like that not only is criminal defense about defending individual liberties, it is about helping people improve themselves and address the underlying issue that brought them into the justice system to begin with.

Who is your hero and why? My wife is my hero because she is so talented in so many different ways - she sings, plays piano, teaches art, organizes our family budget, does housework, volunteers in various organizations and always destroys me at Trivia Crack.

What is your proudest moment? Arguing in front of the 8th Circuit Court of Appeals and winning the appeal.

What is the most rewarding moment of your practice? Following a jury’s guilty verdict at a murder trial, the victim’s family sent me a “thank you” with a small statue of an angel. I keep it in my office as a reminder of why I serve.

What is the most rewarding moment of your practice? My first not guilty jury verdict. What advice would you give a brand new lawyer? Ask for help and don’t pretend to know exactly what to do on a particular case just because you have a law license.

What is your proudest moment? My son, when he was 7, wrote at school, “My hero is my dad. He is a lawer. He talks to the juje, and goses to cort. He also plays with me whene he comes home. Clearly I love my dad.”

What is your favorite NSBA member benefit or program and why? Casemaker. It’s an easy and quick way to do legal research.

What advice would you give a brand new lawyer? Treat everyone with respect and people will respect you back. Be confident - you can do this!

THE NEBRASKA LAWYER

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Kelsey L. Dawson Associate Attorney at Kinsey, Rowe, Becker & Kistler

Bob Lindemeier Partner at Lindemeier, Gillett and Dawson

What is the best career advice you have ever received? Return all client communications within 48 hours. Even if you are just saying, “nothing new has happened in your case.”

What is the best career advice you have ever received? I have received so much good advice from so many fine attorneys. I would say someone told me early on to watch how the really good attorneys operate and later in my career I was told to take time for myself to release stress.

What kind of legal matter do you find most rewarding or personally satisfying and why? When I can help someone who cannot help themselves. The majority of my caseload right now is helping individuals with developmental disabilities and their families appeal HHS decisions so they can receive the amount of services they need to live with dignity.

What kind of legal matter do you find most rewarding or personally satisfying and why? The most rewarding matter is when you work and prepare a case helping provide a voice to someone then having that work pay off in a courtroom with ruling in your client’s favor. Knowing that the client was powerless in the face of the state and you gave them your best effort.

What do you do for fun? I like to hang out with friends - performing karaoke, playing table top games, watching movies, or going out on the town. I also enjoy knitting and playing with my puppy, Scruffy.

What do you do for fun? I listen to music of all kinds, do some hunting, golfing, camping and smoke some fine cigars. I also love to tease and joke with my fellow office employees.

If you weren’t a lawyer, what would you be and why? Actor. Theater has always been a passion of mine. What is your favorite law school memory? Mel Shinn Day. Getting to play a game of putt putt golf in the Nebraska Law Library is something everyone should experience at least once.

If you weren’t a lawyer, what would you be and why? I’d love to be playing guitar in a band, but I’m not good enough so I probably would be a teacher and a coach. I have done a lot of volunteer coaching for both my kids’ teams as they have grown up. I love watching kids improve and grow.

What do you like best about your practice area and why? Well, right now I am dipping my toes in a few different practice areas since I am a new associate. I love learning so many different things. Every day is a new experience.

What do you like best about your practice area and why? Criminal cases have a beginning and an end. You can finish a case relatively quickly compared to other practice areas. It is constantly challenging and never a dull moment.

What is your proudest moment? Down in San Antonio, Texas, last year I visited the Guinness World Record Museum while I was in town for March Madness. I attempted, and succeeded, breaking a world record in making an interlocking brick border in the fastest time.

What is the most rewarding moment of your practice? When a case is done and a client thanks me. There have been hugs, tears, handshakes and cards. None of them get old. What is your proudest moment? Representing a 15-year-old girl on two counts of first degree murder and walking out of the courtroom with two not guilty verdicts.

What advice would you give a brand new lawyer? Go sit in court when you have free time. Ask experienced attorneys questions. Join listservs and committees. Get involved. Never stop learning.

What advice would you give a brand new lawyer? Watch what the successful attorneys do, don’t think you know it all and have some fun with yourself and the system along the way.

What is your favorite NSBA member benefit or program and why? Free and reduced cost CLE. It is great way for solo and small firm attorneys to meet their required hours without breaking the bank.

THE NEBRASKA LAWYER

What is your favorite NSBA member benefit or program and why? I like the Annual Meeting. Seeing some old friends that I haven’t seen in a while and catching up with them. Seeing the look on their faces when they see how old I look. 57

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Thank you to the following for their support of the 2015 Barristers’ Ball: Band Sponsor • Mercer Consumer

• General Practice Section • Hauptman O’Brien Wolf & Lathrop PC • Houghton Vandenack Williams Whitted Weaver Parsonage LLC • Kiewit Corporation • Kutak Rock LLP • Labor & Employment Law Section • Lamson Dugan & Murray, LLP • Locher Pavelka Dostal Braddy & Hammes, L.L.C. • Minnesota Lawyers Mutual Insurance Company • Natural Resources & Environmental Law Section • Paychex • Sarpy County Public Defender’s Office • Schirber & Wagner, L.L.P. • Securities Law Section • Senior Lawyers Section • Sibbernsen Strigenz & Sibbernsen, PC • Slowiaczek, Albers & Astley, PC LLO • Suiter • Swantz, PC, LLO • University of Nebraska College of Law • Walentine, O’Toole, McQuillan & Gordon, L.L.P • Women and the Law Section • Workers’ Compensation Section • Young Lawyers Section

Dessert Sponsor • Mueller Robak LLC Dinner Sponsor • ABA Retirement Funds Beverage Sponsor • Jackson Lewis LLP Gold Sponsor • Fraser Stryker Silver Sponsors

• Agricultural Law Section • ADR Section • Bank Attorneys Section • Bankruptcy Section • Baylor, Evnen, Curtiss, Grimit & Witt, LLP • Business Law Section • Cassem Tierney Adams Gotch & Douglas • Cline Williams Wright Johnson & Oldfather, LLP • Corporate Counsel Section • Creighton University School of Law • The Daily Record • Elder Law Section • Family Law Section THE NEBRASKA LAWYER

Table Sponsor

• Cuddigan Law, PC LLO • Husch Blackwell LLP

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nsba section connection Senior Lawyers Section Working on Practice Manual Like many professions, Nebraska’s legal community is graying and many lawyers are thinking about retiring. There are also lawyers who move or switch careers or accept judicial appointments. How do you close a practice in a way that best protects your clients and meets your needs, particularly if you’re in a solo or small firm practice? The Senior Lawyers Section is creating a step-by-step practice manual, including checklists and forms, to guide lawyers through the process. The section, chaired by the Hon. Alan Brodbeck, will devote its two-hour NSBA annual meeting seminar to closing a practice. Seminar attendees will receive a copy of the practice manual.

Creation of Appellate Law and Health Law Sections NSBA members are exploring creation of two new sections. One will focus on appellate law and the other on health law. Considering the enthusiasm of the lawyers and judges interested in the sections, it’s likely both sections will be approved by the House of Delegates in October. Regardless of whether the sections form, presentations on both appellate and health law are scheduled for NSBA’s Annual Meeting. Section meetings for the new sections are also tentatively on the schedule.

Creation of Taxation Section For many years, the Taxation Section existed solely to serve as a liaison between the NSBA and the annual Great Plains Tax Institute. It had no members—only a nominal “chair” connected with the institute. Thanks to nearly 40 lawyers interested in tax law, and a handful of hardy volunteers, a viable Taxation Section is being created. The organizers are planning a seminar at the NSBA annual meeting, along with a section meeting.

Pamela Epp Olsen with Cline, Williams, Wright, Johnson & Oldfather, L.L.P. speaks to 160 attendees about Medicaid and other long term care issues at the 2015 Annual Estate Planning & Probate Institute on March 13, 2015. THE NEBRASKA LAWYER

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The 2015 Young Lawyers Best Practices Seminar was held March 27, 2015. 88 people attended. Pictured here are Geoffrey Thomas, the seminar organizer, and Joan Cannon with McGrath North Mullin and Kratz, PC LLO, who presented on health care reform.

Real Estate, Probate & Trust Section Reviews Legislation Many NSBA members devote time to reviewing proposed legislation. The Real Estate, Probate and Trust Section is one of the sections that also spends time drafting proposed legislation. The section begins with a legislative session during the summer to discuss possible proposals, most dealing with amendments to improve processes. For example, the section proposed allowing a mechanism to recreate a lapsed corporation for purposes such as clearing property titles. Any section can propose legislation, and summer is the time to do so. NSBA’s legislative counsel are available to provide guidance.

Section-Sponsored CLE Seminars Many sections are planning half to full-day seminars for late spring and early summer. Check out the NSBA CLE calendar online for reasonably-priced CLEs focused on your practice area.

If you’re interested in any of the above and have questions, please contact NSBA Section Facilitator Lorrie Benson at (402) 475-7091 or lbenson@nebar.com.

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young lawyers section page

Welcome to the May/June Edition of the Young Lawyers’ Section Page. I’m your Editor, Patrick McNamara. It is beautiful outside, and it can be tough to stay cooped up in your offices all day. One way I try to get some fresh air is to make a few of my phone calls each day while taking a walk. It’s a great way to break up the day and clear your mind. We always welcome contributions from young lawyers in the community. Please feel free to contact me at PMcNamara@ OmahaLawGroup.com if you are interested in contributing.

Do Prospective Clients Consider You an Expert? by Christopher Peterson Peterson Law Firm, PC, LLO As attorneys, and certainly as younger attorneys seeking to build a book of business, we need to ask ourselves this all-too-important question: Do prospective clients consider us an expert in our practice area(s)? We all know the answer to the similarlyphrased question of whether we believe ourselves to be experts. But the former question centers on our clients’ perception of us and our ability to handle their vitally important, and often complicated, legal matters. What information are we providing our clients with which to calm their fears, demonstrate our expertise and justify our fees? There are several steps we can take to provide the right information to our clients, helping them perceive us as experts in our chosen area of practice: 1. Get involved in professional groups and organizations related to your practice area. For example, the National Association of Trial Attorneys, the National Association of Criminal Defense Lawyers, or a section of the bar association related to your practice area. Use these groups to your advantage and emphasize your involvement in them with clients and on social media. 2. Try to get published. Books and law review articles are great, but if you’re not ready to go that route, try blogging about your practice area to demonstrate expertise or contact the NSBA about submitting an article to The Nebraska Lawyer. 3. Give speeches/presentations on your practice area and highlight those experiences in your attorney bio. 4. Revise your client intake process. The initial consultation is often your first interaction with clients. Try memorizing your pitch to clients, thus avoiding the “ums” and awkward silences as you decide what to say. The goal of this consultation is to exude confidence and passion about your practice area. 5. Create a professional presence for your practice. Make sure you have a professional website, active social media profiles, professional business cards, and an email address tied to your website domain name (ditch your “@gmail.com” account). THE NEBRASKA LAWYER

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As younger lawyers, we don’t have the benefit of 40 years of experience to prove to our clients our expertise in our practice area. Fortunately, we can demonstrate our expertise in many other ways, putting our clients at ease and allowing them to trust us with some of their most important matters. Christopher Peterson received his JD/MBA from the University of Nebraska and is the owner of Peterson Law Firm P.C., L.L.O. He focuses his practice on business, estate planning, litigation, and bankruptcy.

Advocacy for the Young Lawyer by Angela Lennon Koenig|Dunne Divorce Law, PC, LLO We all know how important pro bono work is in our profession. As our Rules of Professional Conduct tell us, every lawyer should aspire to render legal services to those who, because of their financial position, are unable to secure access to the justice system. As an associate at Koenig|Dunne Divorce Law, divorce is all I do. However, I was recently given a unique opportunity to witness true advocacy that went above and beyond the “aspiration to perform pro bono work” when my firm partnered with the ACLU to file the marriage equality action and represent the plaintiffs in federal court. Witnessing this level of advocacy, I was inspired to consider how my colleagues can be of service to our community in a meaningful way if they are employed at firms that do not necessarily support traditional pro bono work, or for those attorneys who are not litigators. First, I would encourage you to find your passion. What inspired you to go to law school in the first place? Is there a certain aspect of justice that tugs at your heartstrings? If you start with the intention to serve your passion, your advocacy will be much more meaningful than simply performing a pro bono task to clear your guilty conscience. As attorneys, we are uniquely positioned for advocacy. Even if your partners discourage you from taking pro bono cases at this point in your career, or if you feel like you are still getting M ay / J u ne 2 0 1 5


young lawyers section page your feet wet in this profession, there are many ways to be an advocate beyond the traditional pro bono case.

suspect there are not many readers of this magazine who would disagree with me.

• Lobby: Call, email or visit your legislator

Possibly the greatest attribute of the legal pad over modern technology is that you’re free to write anywhere on the page. I’ll come right out and say it - I <3 the left margin of the legal pad. I love that there’s a set space on the side of the page where you can add notes to your notes. And if I want to draw an arrow from one spot on the page to another, who’s going to stop me? Try doing that while taking notes in Microsoft Word. Each morning I write a “to do” list on a legal pad. Being able to physically cross off completed tasks throughout the day is a great feeling.

• Act as a policy advisor to a non-profit organization • Speak at a public hearing, whether before the judiciary committee or the city council • Serve on a board of an organization • Participate in a leadership role within a state or local bar organization You don’t need permission to perform these acts and this type of advocacy doesn’t cost you anything. As a young lawyer, I encourage you to leverage the power of your J.D. and use your position in our community to make an impact (and satisfy those pro bono expectations while you’re at it). Angela Lennon is an associate attorney at Koenig|Dunne Divorce Law. She is a member of the Nebraska Academy of Collaborative Professionals, regularly contributing to their blog. Angela is also a board member of the Nebraska Women’s Bar Association, formerly serving as president. She was a contributor to Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect, published in 2013. You can find more information about Angela’s practice and contact her at www.nebraskadivorce.com.

Ode to the Legal Pad by Patrick McNamara McNamara Law Firm, PC, LLO Thank you to whoever invented the legal pad. While I love my Retina iPad, iPhone with super-fast LTE connectivity, and 5mm thin 27” iMac, arguably none of them have had such an impact on my productivity as the lowly legal pad. I

Confidence.

Legal pads are cheap too! A twelve pack of legal pads is cheaper than a twelve pack of cheap beer. I keep a pad in each of my clients’ files which I use anytime I meet the client in person or speak with them or opposing counsel on the phone. One setting in particular where a legal pad excels over advanced technology is the client meeting. Taking notes on a legal pad is infinitely more personal than typing away on a laptop. The laptop creates both a physical and psychological barrier between you and the client. Without being able to see what you’re typing, the client may be less willing to divulge important details that could help in your representation. Contrast that with the legal pad, where a client may notice you writing down important details, giving him or her confidence that you are paying attention to and care about his or her issues. The beautiful simplicity of the legal pad makes it a tool that every attorney should take advantage of. I’ll leave the question of the best color legal pad for another day (hint: the answer is white). Patrick McNamara is the Principal Attorney at McNamara Law Firm, PC, LLO. Patrick’s practice centers on representation of individuals and small businesses in the areas of business formation, litigation and wills, trusts and estates.

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FARM & RANCH MANAGEMENT | REAL ESTATE SALES & AUCTIONS | RURAL APPRAISALS | ASSET INVENTORY | RECEIVERSHIPS THE NEBRASKA LAWYER

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Upcoming CLE Programs MAY May 14 The Effective and Ethical Usage of Interpreters in Client Communications* Live - #107510 (1.5 CLE hours, including .25 ethics hours) Hruska Law Center, Lincoln Webcast - #107508 (1.5 CLE hours, including .25 ethics hours) May 15 Ethics for Estate Planners Telephone - #Pending (1 CLE ethics hour) May 18 Ethics of Maintaining Client Confidences in a Digital World Telephone - #Pending (1 CLE ethics hour) May 19 Drafting Confidentiality & Nondisclosure Agreements Telephone - #Pending (1 CLE hour) May 20 Attorneys, Paralegals and the Unauthorized Practice of Law Live - #106047 (2 CLE ethics hours) Scott Conference Center, Omaha Webcast - #106049 (2 CLE ethics hours)

May 26 Ethics and Client Money: Trust Funds, Expenses, Setoffs & More Telephone - #Pending (1 CLE ethics hour) May 27 Ethics, NebDocs, and Casemaker Refresher In person - #106030 (1 CLE ethics hour live) & #106032 (2 CLE hours - distance learning) Chadron State College Student Center Ballroom Webast - #106034 (3 CLE hours, including 1 hour ethics) “Earnouts” in Business Transactions Telephone - #Pending (1 CLE hour) May 28 General Practice Section Seminar Live - #Pending Younes Conference Center, Kearney 2015 Ethics Update, Part 1 Telephone - #Pending (1 CLE ethics hour) May 29 2015 Ethics Update, Part 2 Telephone - #Pending (1 CLE ethics hour)

JUNE June 1 Ethics and Dishonest Clients Telephone - #Pending (1 CLE ethics hour) June 2 Options in Real Estate Transactions Buying Time to Decide & Wait and See Telephone - #Pending (1 CLE hour) June 3 Buying & Selling Partnership/LLC Interests - Economic, Management & Tax Issues Telephone - #Pending (1 CLE hour) June 4 “Ethical Wills:” Drafting Wills to Reflect Client Values Telephone - #Pending (1 CLE ethics hour) June 5 Crimmigration Law for Nebraska Practitioners Live - #107633 (3 CLE hours, including 1 hour ethics) Creighton University Harper Center Webcast - #107631 (3 CLE hours, including 1 hour ethics)

Fiduciary Duties and Liability of Nonprofit/Exempt Organization Directors Telephone - #Pending (1 CLE hour) May 21 Attorney Ethics in Transactional & Litigation Negotiations Telephone - #Pending (1 CLE ethics hour) May 22 The Ultimate Music Law Guide Through the Fab Four: A Beatles-Themed Introduction to Copyrights Live - #105979 (4 CLE hours, including 1 hour ethics) Sheraton Omaha Webcast - #105981 (4 CLE hours, including 1 hour ethics) Attorney Ethics When Supervising Other Attorneys Telephone - #Pending (1 CLE ethics hour)

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Upcoming CLE Programs June 5 Attorney Ethics and the Use of Email in Law Practice Telephone - #Pending (1 CLE ethics hour

June 16 Drafting LLC/Partnership Operating Agreements, Part 1 Telephone - #Pending (1 CLE hour)

June 8 Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers Telephone - #Pending (1 CLE hour)

June 17 Impeach Justice Douglas! Webcast - #Pending (3 CLE ethics hours)

June 9 How to Ethically, Professionally and Reliably Grow Your Small Law Firm Live - #105499 (6 CLE hours, including 3 hours ethics) Scott Conference Center, Omaha Webcast - #105501 (6 CLE hours, including 3 hours ethics) 2015 Ethics in Litigation Update, Part 1 Telephone - #Pending (1 CLE ethics hour) June 10 How to Ethically, Professionally and Reliably Grow Your Small Law Firm Live - #105490 (6 CLE hours, including 3 hours ethics) Younes Conference Center, Kearney Art of Advocacy Webcast - #Pending (3 CLE hours) 2015 Ethics in Litigation Update, Part 2 Telephone - #Pending (1 CLE ethics hour) June 11 2015 Estate Planning Update Telephone - #Pending (1 CLE hour) June 12 2015 NSBA Labor & Employment Law Section Seminar Live - #Pending (6 CLE hours, including 1 hour ethics) Embassy Suites, La Vista Webcast - #Pending (6 CLE hours, including 1 hour ethics) Like-Kind Exchanges of Business Interests Telephone - #Pending (1 CLE hour) June 15 Estate Planning for Digital Assets Telephone - #Pending (1 CLE hour)

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Drafting LLC/Partnership Operating Agreements, Part 2 Telephone - #Pending (1 CLE hour) June 18 Will Contests: Common Grounds for Challenges & How to Defeat or Avoid Them Telephone - #Pending (1 CLE hour) June 19 Ethics and Joint Representations Telephone - #Pending (1 CLE ethics hour) June 22 Ethics and Confidentiality: What Is, What Isnâ&#x20AC;&#x2122;t, and What Can Be Shared? Telephone - #Pending (1 CLE ethics hour) June 23 Estate Planning for the Elderly, Part 1 Telephone - #Pending (1 CLE hour) June 24 Clarence Darrow: Crimes, Causes and the Courtroom Webcast - #Pending (3 CLE ethics hours) Estate Planning for the Elderly, Part 2 Telephone - #Pending (1 CLE hour) June 27 Business Torts, Part 1 Telephone - #Pending (1 CLE hour) June 28 Business Torts, Part 2 Telephone - #Pending (1 CLE hour)

June 30 Ben Franklin on Ethics Webcast - #Pending (1 CLE ethics hour) Lincoln on Professionalism Webcast - #Pending (1.25 CLE ethics hours) Attorney Ethics & the Use of Credit Cards in Law Firms Telephone - #Pending (1 CLE ethics hour)

JULY July 1 Outsourcing Agreements Telephone - #Pending (1 CLE hour) July 2 Planning with Life Insurance Trusts Telephone - #Pending (1 CLE hour) July 3 Homeowner Agreements for Developers & Project Owners Telephone - #Pending (1 CLE hour) July 7 Business Planning with Series LLCs Telephone - #Pending (1 CLE hour) July 8 Ethical Issues When Representing the Elderly Telephone - #Pending (1 CLE ethics hour) July 9 Settlement Agreements in Litigation Telephone - #Pending (1 CLE hour July 10 The Ethics of Billing & Collecting Attorneysâ&#x20AC;&#x2122; Fees Telephone - #Pending (1 CLE ethics hour) July 14 Tax Planning for Real Estate, Part 1 Telephone - #Pending (1 CLE hour)

* = seminar is free for NSBA dues-paying June 29 members Trustees: Counseling Clients About Individual and Institutional Alternatives New seminars are added to this list weekly. Telephone - #Pending (1 CLE hour) Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered. 63

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How to Ethically, Professionally and Reliably Grow Your Small Law Firm Tuesday, June 9, 2015 • 9:00 am - 5:00 pm

Scott Conference Center, 6450 Pine St., Omaha, NE 68106 **Also available for viewing via live webcast.** *Nebraska MCLE Activity #105499. 6 CLE hours, including 3 hours ethics. (Regular/Live credit) *Nebraska MCLE Activity #105501. 6 CLE hours, including 3 hours ethics. (Distance learning credit) 1:30 pm Session 3 - Professional Production of Work Product • Professional Production of Work Product (Part A) – This eye-opening session explores how effective and ethical client and case management affects an attorney’s ability to deliver high-quality legal services and protects the integrity and competence of the lawyer and their firm so that legal services are delivered with the highest degree of professional conduct and efficiency.

8:30 am Registration 9:00 am Session 1 - Legal Professional Responsibility and the Small Law Firm • Legal Professional Responsibility: A highly interactive discussion dealing with practical challenges for maintaining competence of the law firm and its attorneys to deliver high quality client service and professionalism. • Legal & Business Ethics: Defining your own personal moral and business management code requires a clear definition of what a “successful” law firm means to you.

• Professional Production of Work Product (Part B) – Part B of this critical session introduces participants to practical aspects of developing a legal team to support the attorney client relationship with efficient and reliable information and communication management.

• Professional Financial Management for Lawyers: This portion of the program helps lawyers recognize the connection between how they manage their own business affairs and their ethical and professional responsibilities to clients.

• Professional Production of Work Product (Part C) – Part C of this practical hands-on session includes real word lessons, discussions and examples of how and why the training of a lawyer’s team, foundation of attorney/client relationships, information, document and financial management in a law practice has a direct impact on bar grievances and instances of legal malpractice.

10:30 am Break 10:50 am Session 2 - The Ethical Importance of Financial, Supervisory & Quality Controls • Ethics Of Being In Control Of Your Firm’s Finances: This session connects the dots between financial mismanagement of a law firm and bar grievances.

3:00 pm Break

• Ethics of Working with Legal Staff: In order to live up to our ethical and professional aspirations attorneys must have help from qualified support staff who are properly trained, managed and supervised.

3:20 pm Session 4 - Ethical and Professional Responsibilities in Advertising & Offering Legal Services • Ethical Rules of Advertising: This session asks the question “Do we have an ethical obligation as attorneys to actively market our law firms?” Attendees might be surprised by how the ethical and professional evidence stacks-up.

• The “Stuff” of Professionalism: This section explores the foundation of a professional practice including, and especially, how the attorney’s attention to certain key policies and procedures relates to instances of client satisfaction, bar grievances and even claims of legal malpractice.

• Professional Responsibilities & Offering: This provocative session introduces lawyers to an approach to “selling” legal services that actually feels good for lawyer and client alike.

12:20 pm Lunch (included with your registration)

• Ethical & Professional Review: This final session includes a discussion about how these new concepts of ethics and professionalism will impact the way you practice law, manage your law practice, and interact with clients and staff. 5:00 pm Adjourn

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How to Ethically, Professionally and Reliably Grow Your Small Law Firm Tuesday, June 9, 2015 â&#x20AC;˘ 9:00 am - 5:00 pm

Scott Conference Center, 6450 Pine St., Omaha, NE 68106 **Also available for viewing via live webcast.** *Nebraska MCLE Activity #105499. 6 CLE hours, including 3 hours ethics. (Regular/Live credit) *Nebraska MCLE Activity #105501. 6 CLE hours, including 3 hours ethics. (Distance learning credit)

REGISTRATION FORM: Grow Your Small Law Firm (Omaha) - June 9, 2015 ALL registrants will receive a link to download and print any materials ahead of time. c I will attend the live seminar at the Scott Conference Center in Omaha. c I will attend the seminar via live webcast. *Only 5 distance learning CLE hours may be claimed per year for Nebraska.*

c $360 - Regular registration c $270 - NSBA dues-paying member (25% discounted price for NSBA dues-paying members) c $10 - Law students

Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or fax to (402) 475-7098.

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.

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The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

12th Annual Greater Nebraska Golf Scramble Monday, June 22, 2015 at The Prairie Club in Valentine, NE 888-402-1101

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Thank You to the Following NSBA CLE Faculty: January 15 & 16, 2015 Law Literature and Legal Ethics and Professionalism

Judge Timothy J. Baland

Judge Baland has facilitated dozens of “Law & Literature” programs. He has led programs for Judges in three states as well as programs for lawyers, doctors, architects, corrections’ personnel, court administrators and other groups. His programs involve a discussion by participants of professional practice and professional responsibility issues with an emphasis on the moral and ethical choices and difficult decisions which individuals must make in their professional lives. Judge Baland, who recently retired after twenty-two years of service as a District Court Judge in Minnesota, has also served as an International Judge for the United Nations Mission in Kosovo. February 12, 2015 Nebraska Child Support Calculator Seminar

Adam E. Astley

Adam Astley is a partner with the firm of Slowiaczek, Albers & Astley in Omaha. The firm devotes substantially all of its practice to family law. Adam has served as the chair of the NSBA Family Law Section, has conducted original research on the practical effect of Nebraska’s Child Support Guidelines on families of different economic backgrounds, and is a permanent member of the Nebraska Supreme Court’s technology committee. He is a 2011 graduate of the NSBA Leadership Academy. He joined his current partners in 2004 after graduating magna cum laude from Creighton University School of Law.

Seton Hall University in South Orange, New Jersey, and a juris doctor degree from Creighton University in Omaha. He currently serves as Vice President of the Lincoln Bar Association, member of the NSBA’s Government Practice Section Executive Committee, and as an editorial board member for Public Integrity, a Journal of the American Society for Public Administration. February 26, 2015 Legal and Ethical Considerations for the Juvenile Guardian ad Litem

Carol A. Cleaver

Carol Cleaver is an NSBA Volunteer Lawyers Project Attorney. She graduated from the University of Nebraska at Omaha and Creighton University School of Law. Carol has practice experience in business and employment litigation, family, juvenile, immigration and mediation. She frequently presents law topic seminars to community groups and non-profit organizations. Carol was recently appointed by the Nebraska Supreme Court to serve a three-year term on the Minority Justice Committee.

Jennifer A. Thompson

Jennifer A. Thompson is an attorney and mediator. She practices juvenile and family law and serves as Guardian ad Litem, parent’s counsel, special prosecutor, and mediator. She also represents clients in collections, litigation, real estate, and misdemeanor criminal law. Jennifer graduated from Creighton University School of Law in 2006. March 4, 2015 Casemaker Training

Samantha Peacoe

Frank J. Daley, Jr.

Samantha Peacoe is a member of Casemaker’s customer support team and works out of the Charlottesville, VA, office. She has been conducting Casemaker training sessions twice a week for over four years. Samantha has extensive experience in working with customers and helping them find answers to their questions and problems in a quick and efficient manner. Samantha understands the daily

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February 17, 2015 What You Need to Know: The Work of the Accountability and Disclosure Commission Frank Daley is the Executive Director of the Nebraska Accountability and Disclosure Commission. He received a bachelor’s degree in Government from

challenges an attorney faces of time and resources and she takes pride in providing the members the most viable solutions. March 9 & 10, 2015 Introduction to Casemaker

Jim Corbett

Jim Corbett has been in the legal research business for over 30 years. After receiving a Masters in Library and Information Science from SUNY Albany, Jim worked as a law librarian at a Wall Street law firm for several years. He then worked for Lexis for 13 years in Seattle. Mr. Corbett was the Director of Research for an investment banking firm in the Northwest and served as VP of Business Development for VersusLaw. Jim is currently Director of Business Development at Casemaker. Jim attended Seattle University School of Law in the evening program while working for Lexis. March 10, 2015 Introduction to NebDocs

Kirk E. Goettsch

Kirk Goettsch has been practicing law in Nebraska and Iowa for almost 30 years. He has appeared in state and federal courts in both states, including the U.S. Tax Court, and has successfully prosecuted appeals in the appellate courts of Iowa, Nebraska, and the 8th Circuit Federal Court of Appeals. Goettsch is the managing partner of Goettsch Law Firm in Omaha, NE, and serves as the chair of the NSBA Forms Committee. March 10, 2015 Ethics, Credibility and the Courtroom

Robert F. Bartle

Robert Bartle has practiced law in Lincoln since 1976 and is a partner in the law firm of Bartle and Geier. He received his JD from the University of Nebraska College of Law in 1976. Robert is a past President of the NSBA and earlier served as an officer of the NSBA Executive council and the NSBA House of Delegates. He taught trial advocacy at the University of Nebraska Nebraska College of Law from 1990 to 2009. M ay / J u ne 2 0 1 5


Thank You to the Following NSBA CLE Faculty: March 13, 2015 NSBA Annual Estate Planning & Probate Institute: Focus on Agricultural Estate Planning

Christin P. Lovegrove

Planning Co-Chair Christin Lovegrove is a partner with Heinisch and Lovegrove Law Office, PC, LLO, in Geneva, NE. Her practice specializes in the areas of estate planning, family business entities, real estate, probate, and agricultural issues. She graduated from the University of Nebraska College of Law.

Jesse D. Sitz

Planning Co-Chair Jesse Sitz is a partner with Baird Holm, LLP, in Omaha. He represents clients with respect to general corporate matters, estate planning and probate matters, federal and state tax planning issues, and tax exempt matters. He graduated from the University of Minnesota Law School in 2005.

Timothy Moll

Timothy Moll is a partner with Rembolt Ludtke, LLP, in Lincoln and Seward, NE. His practice areas include entity formation and governance, estate planning, taxation, and probate. He is an adjunct professor of tax law at the University of Nebraska College of Law and is an American College of Trust and Estate Counsel (ACTEC) Fellow. He graduated from the University of Nebraska College of Law in 1994.

Frank Heinisch

Frank Heinisch is a partner with Heinisch and Lovegrove Law Office, PC, LLO, in Geneva, NE. He has been a frequent speaker at the NCLE Estate Planning Seminars since 1976. He is an American College of Trust and Estate Counsel (ACTEC) Fellow and past chair of the Real Estate, Probate and Trust Section of the Nebraska State Bar Association. He graduated from Creighton University School of Law in 1968.

Gary Peterson

Gary Peterson is a partner with Munson & Peterson in Broken Bow, NE. His practice areas include estate planning, THE NEBRASKA LAWYER

probate, and family law. He has served as a public defender for several Nebraska counties and as an instructor of the University of Nebraska Entrepreneurs Program. He graduated from the University of Nebraska College of Law.

ness owners and their families for more than 20 years, he designs sophisticated tax strategies involving complex charitable and estate-planning structures. He received his J.D. from Western Michigan University Cooley Law School.

Jasen Rudolph

Pamela Olsen

Erin Wetzel

Ronald Jensen

Jasen Rudolph is an associate with Munson & Peterson in Broken Bow, NE. His practice areas include agricultural law, business associations, and estate planning. He graduated from the University of Nebraska College of Law. Erin Wetzel is an associate with Munson & Peterson in Broken Bow, NE. Her practice areas include estate planning, probate, and real estate. She graduated from the Creighton University School of Law.

Andrew Janzen

Andrew Janzen is a shareholder in the Hastings, NE, office of McDermott & Miller. He is a Certified Public Accountant and a Certified Valuation Analyst. He specializes in estate planning, business valuations, and agriculture and construction industries. He graduated from Nebraska Wesleyan University.

Joshua Berns

Joshua Berns is a tax supervising senior in the Hastings, NE, office of McDermott & Miller. He is a Certified Public Accountant and specializes in estate planning, business planning, and income tax planning. He graduated from the University of Nebraska College of Law.

Wayne Myers

Wayne Myers is a principal with K•Coe Isom’s Goodland, Kansas, office. He advises producers on farm-program eligibility requirements that can enhance their farm-business structure and operations. He received his B.S. in agriculture education from Colorado State University.

Doug Mitchell

Doug Mitchell is a principal with K•Coe Isom’s Loveland, Colorado, office. As a tax and estate attorney to successful busi68

Pamela Olsen practices at Cline, Williams, Wright, Johnson & Oldfather, LLP, in Scottsbluff, NE, specializing in estate planning and wills, trusts, and estates litigation. She graduated from the Creighton University School of Law in 1996. Ronald Jensen is a partner with Baird Holm, LLP, in Omaha. His practice areas include estate planning, trust and estate administration, and tax. He graduated from the University of Nebraska College of Law in 1976.

Kristen Blankley

Kristen Blankley is an assistant professor of law at the University of Nebraska College of Law, where she teaches Alternative Dispute Resolution, Advocacy in Mediation, Mediation, and Arbitration. Her research has focused on the crossroads of alternative dispute resolution and legal ethics. She graduated from the Ohio State University College of Law. March 17, 2015 Predictive Coding for Discovery

Bill Ryan

Bill Ryan is a 33-year veteran consultant in document management, database publishing and business process solutions. He works as a technical sales consultant facilitating sales and directing workflow design for large-scale discovery projects. He was a pioneer in electronic transmission of SEC filings and in automating document handling for sophisticated financial transactions. He specializes in providing discovery services such as data collection, processing, hosting and managed document review. Ryan is a graduate of DePaul University and is a Certified E-Discovery Specialist.

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Thank You to the Following NSBA CLE Faculty: March 27, 2015 NSBA Annual Young Lawyers Section Best Practices Seminar

Luke Simpson

Planning Co-Chair Luke M. Simpson is an associate attorney with Ross, Schroder & George, LLC, in Kearney. Mr. Simpson’s practice focuses primarily on estate planning and transactional law. Mr. Simpson received his JD from Creighton University School of Law in 2010 and received a bachelor’s degree in accounting from the University of Nebraska at Kearney in 2007.

Geoffrey Thomas

Planning Co-Chair Attorney Geoffrey S. Thomas leads the way at Thomas & Thomas in Business & Technology Development. A 2011 graduate of Creighton University School of Law, Geoffrey is a Trial Presentation Professional and is certified to assist attorneys at trial in displaying their exhibits and demonstrative evidence.

Mark A. Weber

Mark Weber, as Counsel for Discipline, directs the operations of the regulation and discipline functions of the Nebraska lawyer disciplinary system under the supervision of the Nebraska Supreme Court. Prior to his appointment as Counsel, Weber was in private practice for 20 years. He received his J.D. from Creighton University School of Law.

Amanda M. McMichael

Amanda McMichael is an associate in the Omaha law firm of Pansing, Hogan, Ernst & Bachman, LLP. She earned her undergraduate degree in Finance from the University of Nebraska at Lincoln with Highest Distinction and her law degree from Creighton University, Magna Cum Laude. Amanda practices in the areas of estate planning and taxation, nonprofit and corporate taxation, and business planning and transfer. She is admitted to practice law in Nebraska and Iowa.

Joan Cannon’s employee benefits practice with McGrath North Mullin & Kratz includes representation of employers and fiduciaries in both the private and public sectors in the design, implementation, maintenance and compliance of qualified retirement plans, executive compensation, nonqualified deferred compensation arrangements, stock plans and health and welfare plans.

Daniel J. Waters

Daniel Waters is a partner in Lamson Dugan & Murray’s business law department. His practice focuses in the areas of corporate governance, commercial and real estate transactions, estate planning and business succession planning. He regularly advises closely-held businesses and their owners on complex operational and enterprise ownership matters. He has also been admitted to the U.S. Tax Court.

Matthew G. Miller

Matthew Miller has more than 20 years of legal experience handling personal injury matters. Matthew understands personal injury litigation from both sides of the aisle. For five years, he represented insurance companies as a personal injury defense attorney.

Adam Astley (see page 67)

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Joan M. Cannon

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transitions

Career Changes.......................... ..........................and Relocations Andrew Huettner and Matthew Reilly have been selected for partnership at Erickson | Sederstrom. Huettner, a 2008 graduate of the University of Nebraska College of Law, will continue to practice in Estate, Probate and Trust Law. Reilly, a 2009 graduate of the University of Nebraska College of Law, will continue to practice in litigation, insurance defense, workers’ compensation, and bankruptcy/creditors’ rights. Rembolt Ludtke LLP is pleased to announce that Timothy R. Engler has become associated with the firm. Engler specializes in resolving disputes through negotiation, mediation, arbitration or trial. His practice is concentrated in commercial and business disputes, personal injury, and mediaTimothy R. tion and arbitration services. Before joining Engler Rembolt Ludtke, he practiced in a private firm in Lincoln. Engler is a member of the Nebraska Mediation Association, the National Academy of Distinguished Neutrals, and sits on the Advisory Board for the Nebraska Supreme Court’s Office of Dispute Resolution. He is a Fellow of the Nebraska State Bar Foundation and serves as Chair of the Nebraska State Bar Association House of Delegates in 2015. Woods & Aitken LLP is delighted to announce that Jerry L. Pigsley and Kelly M. Ekeler have recently joined the firm’s labor & employment practice group. Pigsley has over 30 years of experience representing public and private sector employers in labor and employment law, including employment litigation in federal and state courts and litigation matters before federal and state administrative agencies. He also represents management in collective bargaining negotiations. Pigsley is listJerry L. Pigsley ed in Chambers USA for his work in Labor & Employment Law and Best Lawyers in America© 2015 in the field of Labor Law - Management. He was named the Best Lawyers® 2014 and 2015 Labor Law - Management “Lawyer of the Year” in Lincoln. Ekeler represents public entities and private sector businesses in issues ranging from policy review to litigation. She has negotiated labor agreements on behalf of management and has been involved Kelly M. Ekeler THE NEBRASKA LAWYER

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with Commission of Industrial Relations and National Labor Relations Board proceedings. Ekeler has experience advising employers and representing management in litigation concerning discrimination, employee leave, ADA, wage and hour, and employee benefit plans. Pigsley and Ekeler both come to Woods & Aitken from Harding & Shultz P.C., L.L.O. Dornan, Lustgarten & Troia, PC, LLO is pleased to announce these recent changes and additions to the firm. An attorney with the firm since 2011, Sean Conway became a partner with the firm effective January 1, 2015. Sean is a graduate of the University of Nebraska College of Law. He is an active criminal defense attorney, successful personal injury litigator, and ably handles Workers Compensation claims. Sean Sean Conway serves on the Nebraska Accountability and Disclosure Commission, is a Nebraska Bar Foundation Fellow, sits on the UNMC Board of Counselors and is a talented addition to the annual Barristers productions. Kristin Fearnow, new to the firm in December 2014, brings nearly ten years’ experience as a bilingual attorney to the firm’s immigration section. Kristin is the Chair of the Iowa Nebraska Chapter of the American Immigration Lawyers Association, sits on the Kristin Fearnow Board of Directors of National Justice For Our Neighbors and is a member on the American Immigration Lawyers Association’s committee for Violence Against Women, U and T Visas. Kristin is a frequent speaker at the annual AILA conferences and is scheduled to testify before the Nebraska Legislature on issues impacting immigrants. Daniel M. Donnelly has joined the firm as an associate, having recently moved to Nebraska from New York City. He is a graduate of the Hofstra University School of Law and served as an assistant district attorney for the Bronx County District Attorney’s Office in New York City prosecuting violent crimes. Dan will assist the firm in criminal defense Daniel M. and civil litigation. Donnelly

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Transitions/Awards and REcognition Jeff Hansen has been promoted to Senior Vice President at Troon Golf in Scottsdale, Arizona. Hansen is a native of Scottsbluff, Nebraska and received his B.S. in Accounting from UNL in 1986 and his J.D. from UNL in 1990. Hansen practiced with Simmons Olsen Law Firm in Scottsbluff, Nebraska from 1990 to 2008 and has been with Troon Golf since 2008. Hansen provides oversight of the day-to-day functions of the legal department including representing the company’s interests in corporate, employment and facility related matters. Walentine, O’Toole, McQuillan & Gordon, L.L.P. welcomes its newest partner, Matthew J. Bock. Matt joined the firm as a member of the banking, commercial practice and estate planning groups. In both acquisitions and sales of businesses, he leads Matthew J. Bock companies through structuring, negotiation and closings. Matt has significant experience representing closely held businesses in all facets of business transactions, including start-up, operations, restructuring, and succession. Additionally, as a former tax accountant, Matt brings a wealth of experience and knowledge to clients in the areas of tax planning and tax litigation.

Awards and Recognition The law firm of Houghton Vandenack Williams in Omaha, has been selected to receive the James I. Keane Memorial Award for excellence in eLawyering. The award, given by the ABA Law Practice Division eLawyering Task Force, was presented to Mary Vandenack and Mark Williams during the American Bar Association TECHSHOW 2015, April 16-18 in Chicago. E-lawyering refers to all the ways lawyers can practice law online using associated technologies. Vandenack and Williams have developed a wide variety of online legal services for their firm’s clients, including a “client center” login and interactive and automated online forms. Through their efforts, they keep personal service connected with automation. For example, the firm’s website uses videos and automated document systems to reduce the cost and time spent on specific processes, as well as allow competitive flat fees for many services. Dedicated to legal innovation, Vandenack and Williams are taking steps to make the practice of law a more “streamlined, accurate and interactive experience,” including: managing three blogs to provide clients information, providing online access to certain documents, replacing hard copy books with electronic books, working with other vendors to launch innovative flat fee automated services in the health care industry, including a HIPAA audit with Ben Schorr, and collaborating with Barron Henley and Adriana Linares to increase the number of efficient services that can be offered online. The James I. Keane Memorial Award celebrates innovative delivery of personal legal services that serve THE NEBRASKA LAWYER

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both moderate income individuals and the broad middle class. Lawyers, law offices and legal organizations that develop, use and promote digital legal services are all eligible for nomination. Maren Lynn Chaloupka has been appointed to the Board of Directors for Trial Lawyers College. Trial Lawyers College, a national nonprofit organization, founded in 1994 by Wyoming trial lawyer Gerry Spence, Maren Lynn is dedicated to training and educating lawChaloupka yers who are committed to representing and obtaining justice for individuals; the poor; the forgotten; the voiceless; the defenseless and the damned, and to protecting the rights of such people in criminal and civil cases. Trial Lawyers College presents three-week programs at Thunderhead Ranch near Dubois, Wyoming as well as four-day regional programs throughout the United States. It also publishes The Warrior, a quarterly journal of which Chaloupka is the editor-in-chief, and national and local structures for alumni support in service to the clients represented by graduates of Trial Lawyers College programs. Chaloupka, a partner in the Scottsbluff law firm of Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama, attended Trial Lawyers College in 1999. She has served as a member of its teaching faculty since 2000, teaching at over 60 programs and counting. In 2009, she began pre-

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Awards and recognition senting Trial Lawyers College’s weeklong advanced trial skills program each August at Thunderhead Ranch. Aside from her service to Trial Lawyers College, Chaloupka also presents the Bob Chaloupka Trial Skills Seminar in Scottsbluff each November; many of the speakers for that event also serve as faculty at Trial Lawyers College. Koenig|Dunne Divorce Law is proud to announce that Senior Partner and Executive Coach, Susan Koenig, was named one of the Greater Omaha Chamber of Commerce’s “excellence awards” winners. She was selected from a larger group of nominees by a committee of past winners and business Susan Koenig leaders. Angela Dunne has been awarded the prestigious Top Ten Attorney Award for the State of Nebraska from the National Academy of Family Law Attorneys (NAFLA). She was awarded this honor because of her hard work and dedication she has shown in representing family Angela Dunne law clients. The Owners’ Counsel of America (OCA), a nationwide network of leading eminent domain attorneys, recently elected William G. Blake, OCA Nebraska member and a partner with Baylor, Evnen, Curtiss, Grimit & Witt, LLP in

Lincoln, to serve on its Board of Directors. Over more than 35 years of practice, Blake has amassed a wealth of experience in eminent domain, real estate and commercial disputes litigating cases across Nebraska. He is frequently invited to speak, locally and nationally, on issues relating to the condemnation of real property and private property rights and is recognized for his many written works regarding the law of eminent domain. Additionally, he has been sought out by local and national media outlets for his insights regarding eminent domain and has most recently commented on TransCanada’s use of eminent domain to acquire property for the Keystone XL Pipeline through Nebraska. Blake is the Editor of “The Law of Eminent Domain”, First Chair Press, (2012) published for the American Bar Association and is the author of “Just Condemnation in Nebraska: a Manual for Owners.” He has served as website editor and chair for the Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, and continues to serve as the editor of updates to “The Law of Eminent Domain.” He has been recognized by The Best Lawyers in America for his professional accomplishments in eminent domain and condemnation law. Mr. Blake is an active member of his community, serving as Treasurer of the Lincoln West Optimists Foundation and as a member of the Board of Directors and past President of the Lincoln Parks Foundation.

The Nebraska State Bar Association is requesting Letters of Interest from firms/attorneys interested in entering into a Labor and Employment Retainer Agreement with the NSBA with the following terms: • Covered matters to include: All advice on labor and employment matters and in-service training on labor and employment topics. • Non-covered matters to include: Administrative agency investigation and litigation. Labor and Employment counsel would be willing to represent the NSBA in any such matters separate from the retainer and would be given the first opportunity to do so at a mutually agreed-upon rate. Letter of Interest should include the following: • Name of firm/attorney • Brief description of the firm/attorney and qualifications • Brief description of services to be provided (must include the specifications above) • Proposed monthly retainer amount All letters should be submitted by May 29th, 2015. Submissions and questions should be directed to: Liz Neeley, Executive Director Nebraska State Bar Association, 635 S. 14th Street, #200, Lincoln, NE 68508 (402) 475-7091 Lneeley@nebar.com THE NEBRASKA LAWYER

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in memoriam Michael J. Donahue, 83, of Pawnee City, passed away December 7, 2014 at the Pawnee Manor in Pawnee City. He was born on December 29, 1930 in Pawnee City to Michael and Clara (Kamen) Donahue. Mike graduated from Pawnee City High School in 1948. He farmed with his father before attending and graduating Summa Cum Laude from Creighton University with a Juris Doctor Degree. Mike married Delores “Dee” Spomer on June 15, 1957 in Lincoln. After practicing law in Omaha, Mike and Dee moved to Pawnee City where Mike joined Elmer F. Witte Law Firm. It later changed to Witte & Donahue Law Firm. Mike was the Pawnee County Attorney from 1964 to 1976. In 1973, Vic Faesser joined Mike in practicing law. The firm was changed in 1975 to Witte, Donahue, & Faesser PC and then eventually became Donahue & Faesser Law Firm. In 1991, his son Michael J. Donahue III joined the firm. Mike was a long time member and chairman of the Pawnee Housing Authority. He was also a member of the Pawnee City Rotary Club, Pawnee City Cemetery Association, Pawnee City Development Corporation, active member of St. Anthony’s Catholic Church in Steinauer, and the Nebraska State Bar Association, having received his 50 year pin. Mike enjoyed antique cars, hunting, practicing law, traveling overseas, helping his father on the farm and driving Star Mail Routes during High School and College, playing trombone in a band in his younger years, and especially spending time with his granddaughters. Mike is survived by his wife, Dee; 2 sons, Michael J. Donahue, III of Lincoln, Patrick J. Donahue of Lamars, Iowa; 4 granddaughters; 1 great granddaughter; sister, Mary A. Callam and husband Nate of Beatrice; and several nieces and nephews. He was preceded in death by his parents; 2 brothers, Charles and Joseph Donahue; and a sister, Lillian Callam. Timothy Sherwood Dunning passed away January 12, 2015. He is survived and beloved by Nancy and John Webster, Holly Dunning, Mrs. Henry Clay, Jack, Dana and Brooke Webster, Christopher Webster, Lee and Anthony Shaw and family, Leila and Henry Clay and family, Merrilyn and Robert Belliveau and family, Melinda and Bill Burns and family, Deborah and Jeremy Dunning and family, Jennifer Dunning and numerous dear friends. He was predeceased by father John L. Dunning and grandparents, Jacqueline and John Dunning, Henry Clay and Barbara and William Webster. John Lewis Swyers, a kind and gentle man, passed away on December 6, 2014 at age 80. John was born June 16, 1934 in Oil City, Pennsylvania. At an early age, his family moved to Ohio and then at middle school age to Independence Kansas,

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where he graduated from high school in 1952. He received a BA in Economics and his law degree from the University of Kansas in Lawrence. In 1958, he was commissioned in the United States Air Force and served in the Judge Advocate Generals Corp. While in the service, John earned a Masters of Business Administration from St. Louis University. He rose to the rank of Captain and was honorably discharged in 1961. Over the next 45 years, John’s legal career included positions as General Counsel at the Kansas Insurance Department and General Counsel at the Central National Insurance Company of Nebraska. He was a member of the Kansas, Nebraska, Texas and Florida State Bars as well as the American Bar Association. In 1972 he went to work for United Services Automobile Association (USAA) in San Antonio, Texas and rose to the position of General Counsel of USAA Life Insurance Company. He was also instrumental in establishing the USAA corporate office in Tampa, Florida before retiring from the company in 1990. He then served the State of Florida in the Office of Insurance Regulation as an Assistant General Counsel retiring in 2006. During John’s career, he served as a corporate secretary for a number of companies and did extensive lobbying on insurance matters. He served as an officer on many insurance trade associations. John was a voracious reader of books, magazines and other periodicals. He loved being a member of Faith Presbyterian Church and relished studying the Bible. He especially enjoyed his friendships with those in the Men’s Bible Study which he attended faithfully every Monday at noon. His lifetime passion was following baseball. He always looked forward to surf fishing and enjoying the beach when visiting Dog Island. John’s love for wildlife and all God’s creatures was unsurpassed. John is survived by his wife Judy Snooks Swyers of 23 years; three sons, Curtis Swyers and Andrew Swyers of San Antonio Texas, Steven Swyers of Austin Texas as well as six grand children; two brothers, Charles Swyers of Wichita, Kansas and William Swyers of Independence, Kansas; two step-sons, Thomas Atkinson of Merritt Island, Florida and Troy Atkinson of Tallahassee, Florida. John is predeceased by his parents, Bert and Violet Swyers of Independence Kansas. 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 or to the Nebraska State Bar Foundation, PO Box 95103, Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member, please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. Your assistance is appreciated in sharing this important information with your colleagues.

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How to Ethically, Professionally and Reliably Grow Your Small Law Firm Wednesday, June 10, 2015 • 9:00 am - 5:00 pm

Younes Conference Center, 416 Talmadge Rd., Kearney, NE 68845 *Nebraska MCLE Activity #105490. 6 CLE hours, including 3 hours ethics. (Regular/Live credit) 1:30 pm Session 3 - Professional Production of Work Product • Professional Production of Work Product (Part A) – This eye-opening session explores how effective and ethical client and case management affects an attorney’s ability to deliver high-quality legal services and protects the integrity and competence of the lawyer and their firm so that legal services are delivered with the highest degree of professional conduct and efficiency.

8:30 am Registration 9:00 am Session 1 - Legal Professional Responsibility and the Small Law Firm • Legal Professional Responsibility: A highly interactive discussion dealing with practical challenges for maintaining competence of the law firm and its attorneys to deliver high quality client service and professionalism. • Legal & Business Ethics: Defining your own personal moral and business management code requires a clear definition of what a “successful” law firm means to you.

• Professional Production of Work Product (Part B) – Part B of this critical session introduces participants to practical aspects of developing a legal team to support the attorney client relationship with efficient and reliable information and communication management.

• Professional Financial Management for Lawyers: This portion of the program helps lawyers recognize the connection between how they manage their own business affairs and their ethical and professional responsibilities to clients.

• Professional Production of Work Product (Part C) – Part C of this practical hands-on session includes real word lessons, discussions and examples of how and why the training of a lawyer’s team, foundation of attorney/client relationships, information, document and financial management in a law practice has a direct impact on bar grievances and instances of legal malpractice.

10:30 am Break 10:50 am Session 2 - The Ethical Importance of Financial, Supervisory & Quality Controls • Ethics Of Being In Control Of Your Firm’s Finances: This session connects the dots between financial mismanagement of a law firm and bar grievances.

3:00 pm Break

• Ethics of Working with Legal Staff: In order to live up to our ethical and professional aspirations attorneys must have help from qualified support staff who are properly trained, managed and supervised.

3:20 pm Session 4 - Ethical and Professional Responsibilities in Advertising & Offering Legal Services • Ethical Rules of Advertising: This session asks the question “Do we have an ethical obligation as attorneys to actively market our law firms?” Attendees might be surprised by how the ethical and professional evidence stacks-up.

• The “Stuff” of Professionalism: This section explores the foundation of a professional practice including, and especially, how the attorney’s attention to certain key policies and procedures relates to instances of client satisfaction, bar grievances and even claims of legal malpractice.

• Professional Responsibilities & Offering: This provocative session introduces lawyers to an approach to “selling” legal services that actually feels good for lawyer and client alike.

12:20 pm Lunch (included with your registration)

• Ethical & Professional Review: This final session includes a discussion about how these new concepts of ethics and professionalism will impact the way you practice law, manage your law practice, and interact with clients and staff. 5:00 pm Adjourn

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How to Ethically, Professionally and Reliably Grow Your Small Law Firm Wednesday, June 10, 2015 â&#x20AC;˘ 9:00 am - 5:00 pm

Younes Conference Center, 416 Talmadge Rd., Kearney, NE 68845 *Nebraska MCLE Activity #105490. 6 CLE hours, including 3 hours ethics. (Regular/Live credit)

REGISTRATION FORM: Grow Your Small Law Firm (Kearney - June 10, 2015) ALL registrants will receive a link to download and print any materials ahead of time. c $360 - Regular registration c $270 - NSBA dues-paying member (25% discounted price for NSBA dues-paying members) c $10 - Law students

Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________ Make checks payable to NSBA and return to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or fax to (402) 475-7098.

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.

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legal marketplace

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402-331-3447 • sylviakessler@cox.net www.forgerydetectionexperts.com Court Qualified: State and Federal Experienced - Reliable - Trained - Resourceful Disputed Signatures/Documents/Electronically Lifted Signatures Litigation Support/Handwriting/Signature Identification/Cut & Paste VP of IADE, International Association of Document Examiners Creator of Signature ID Test Member: Forensic Expert Witness Association(FEWA)

classified ads OFFICE SHARE: One or two offices available for office share in 16th and Old Cheney area of Lincoln. Includes: office; utilities; internet; printer/copier/scanner/fax; conference room; break room; and free parking. Cost $450/office. Available: telephone system; receptionist; secretarial; and mentoring. Contact Dale at 402-423-4300 or dale@daledahlin.com. WEST OMAHA LAW OFFICE SPACE AVAILABLE. Professional building, established practitioners have space available. Receptionist, legal secretary, fax copier scanner internet and phone. Kitchen/break-room, large conference room. Furniture or bring your own. Open parking at no charge. Reasonable rent; several options available under $500 per month. Stop driving down town everyday if it is not necessary to your practice. Confidential inquiries to james@walzlawpc.com DOWNTOWN OMAHA LAW OFFICE SHARE AVAILABLE- $750/month. Office share located directly across the street from the Douglas County Courthouse. 2 offices available immediately. Each office has large windows with views of the Courthouse or the Omaha Building. Amenities included in the monthly rent: use of 2 conference rooms, receptionist, phones, internet, server, fax, printer, copier, scanner, and full kitchen. Attached, covered garage parking available. All inquiries will be kept confidential. Call 402-932-9550.

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DOWNTOWN OMAHA LAW OFFICES & VIRTUAL SPACE AVAILABLE - One or two offices with windows available at $775/month each in impressive 6-office suite on 3rd floor of Historic Library Plaza at 18th and Harney in Omaha across the street from the Douglas County Courthouse. Suite has high ceilings and skylights. Amenities: furnished or bring your own; receptionist; large conf. room and medium conf. room with conf. phones; full kitchen with break area; private bathroom in suite; storage room; Wi-Fi Internet; shared fax/ copier. Virtual office/conference room arrangements from $50/month. Available: secretarial work station; secretarial/ admn. support; parking; mentoring; referrals. Ideal for satellite office downtown. Confidential inquiries to 402-933-4256 or merrick@merricklawfirm.com. Chief Counsel Position - T h e N e b r a s k a Commission on Public Advocacy is seeking candidates for the position of Chief Counsel beginning 9/1/15. Such candidate must have the following qualifications: Be a practicing attorney in Nebraska for a minimum of 5 years, with knowledge and skills in managing business affairs of a law firm or public legal agency, including preparation of budgets and supervision of attorneys. Must be able to serve as lead counsel in capital and major felony cases and work with the legislature and with community groups and various segments of the justice system. Salary commensurate with experience. Please send resume to rwesely@ncpa.ne.gov no later than 6/5/15. M ay / J u ne 2 0 1 5


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The Nebraska Lawyer Magazine May/June 2015  

The Nebraska Lawyer Magazine May/June 2015 Vol. 18 No. 3

The Nebraska Lawyer Magazine May/June 2015  

The Nebraska Lawyer Magazine May/June 2015 Vol. 18 No. 3

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