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Attorney-Client Privilege - Ten Important Cases Handed Down in Roughly the Past YearProfessor G. Michael Fenner

Franchise Law for Nebraska LawyersGary R. Batenhorst

State of the Judiciary AddressChief Justice Michael G. Heavican

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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.

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Features

The

Nebraska LawyerOfficial Publication of the Nebraska State Bar Association • March/April 2012 • Vol. 15 No. 2

President’s Message - Making Sure Our Voice is Heard....................................Warren R. Whitted Jr.

Attorney-Client Privilege - Ten Important Cases Handed Down in Roughly the Past Year................... Professor G. Michael Fenner

Franchise Law for Nebraska Lawyers............................................Gary R. Batenhorst

Land Link Offers Opportunities for Land Transfer...........................................................Amy Radding

Make Your Mark!....................John Gale, Secretary of State

Warren R. Whitted Jr.

3

5

21 Professional Responsibility Representing Criminal Co-Defendants is a Bad Idea by Dennis G. Carlson

23 Technology Tip Managing Legacy Data by Sharon D. Nelson & John W. Simek

26 Ethics Advisory Opinion 11-06

29 Ethics Advisory Opinion 12-01

32 Book Review Advocacy to Zealousness: Learning Lawyering Skills from Classic Films

37 NSBA Calendar

39 State of the Judiciary Address

43 NCLE Calendar

49 Transitions

53 In Memoriam

55 Classified Ads

56 Legal Marketplace

57 2012 Public Service Awards Nomination Form

9

17

19

Watercolor rendering of the Richardson County Courthouse. To order notecards or prints of this Courthouse or other Nebraska County Courthouses, visit www.nebar.com.

About the CoverFind the Nebraska Lawyers Foundation

2011 Annual Report following page 30


issue editorEXECUTIVE COUNCIL

President: Warren R. Whitted Jr., Omaha President-Elect: Marsha E. Fangmeyer, Kearney President-Elect Designate: G. Michael Fenner, Omaha House of Delegates Chair: James E. Gordon, Lincoln House of Delegates Chair-Elect: Steven F. Mattoon, Sidney Past President: Robert F. Bartle, Lincoln First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Jill Robb Ackerman, Omaha Fifth District Rep.: Robert M. Schafer, Beatrice Sixth District Rep.: R. Kevin O’Donnell, Ogallala

ABA State Delegate: Amie C. Martinez, Lincoln Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Jarrod P. Crouse, Lincoln Executive Director: Jane L. Schoenike, Lincoln

EDITORIAL BOARDChair: James C. Bocott, North Platte

Executive Council Liaison: Todd B. Vetter, Norfolk

Executive Editor: Kathryn A. Bellman [email protected]

Layout and Design: Sarah Ludvik

[email protected]

Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934

ADVERTISING SALES: Sam Clinch

NSBA 635 S. 14th Street

Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125

Fax: (402) 475-7098 [email protected]

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CLASSIFIED ADVERTISING: Sarah Ludvik

Nebraska State Bar Association (402) 475-7091, ext. 138 • [email protected]

Nebraska State Bar Association 635 South 14th St., Lincoln, NE 68508(402) 475-7091 • Fax (402) 475-7098

(800) 927-0117 • www.nebar.com

Thomas F. Ackley, OmahaKelly L. Anders, OmahaP. Brian Bartels, OmahaM. Therese Bollerup, OmahaElizabeth S. Borchers, OmahaThalia L. Downing Carroll, OmahaKent E. Endacott, LincolnChristopher M. Ferdico, LincolnVanessa J. Gorden, LincolnJoseph W. Grant, OmahaCarla Heathershaw Risko, OmahaAndrea M. Jahn, OmahaBrandy R. Johnson, Lincoln

Jeanelle R. Lust, LincolnSandra L. Maass, OmahaAmie C. Martinez, LincolnMichael W. Meister, ScottsbluffGregory B. Minter, OmahaLuke H. Paladino, OmahaDavid J. Partsch, Nebraska CityEdward F. Pohren, OmahaKathleen Koenig Rockey, NorfolkMonte L Schatz, OmahaRonald J. Sedlacek, LincolnColleen E. Timm, OmahaJoseph C. Vitek, Chicago, IL

The Nebraska LawyerThe 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.

James C. Bocott

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


We’ve all heard it said: “If you don’t have a seat at the table, you are on the menu.” That statement provides the foundation for the legislative policy and program of the NSBA. Let’s be clear from the start. The NSBA actively lobbies legislation in a manner it has determined to be consistent with its legislative policy and important to its essential purpose, goals and objectives.

Determination of the NSBA positions on legislative bills is a thorough deliberative process. It is initiated by a review of bills introduced by our legislative counsel, the firm of Mueller Robak, LLC. We work primarily with Bill Mueller and Katie Zulkoski. In reviewing legislation, they cast a wide net bringing to the Association any bill they reasonably believe may impact the administration of justice and the other aspects of our legislative policy. This year 118 bills were identified and brought to the Association for consideration. These bills were referred to our Legislation Committee. The Committee has been ably chaired for the last two years by Tom Maul of Columbus. Tom will be followed by Jane Langan of Lincoln as chair in 2013. The Committee is not a typical bar committee. Comprised of about 45 NSBA members, it represents a true cross section of the Association. The Committee includes representatives of the plaintiff’s bar and the defense bar, employment lawyers, the Attorney General’s Office, the County attorneys, the City prosecutors, criminal lawyers, the Commission on Public Advocacy, family lawyers, business and estate planning and probate lawyers and legal aid lawyers, urban and rural lawyers and members from the Court of Appeals, District and County Court benches. In short, the committee represents the diversity of our membership.

Bills are assigned to members of the Committee by subject matter. Those members review the bills and report to the committee so informed decisions can be made. The first meeting of the Committee is held in December to consider carry-over bills and to discuss issues that may arise in the coming session. The Committee then meets twice in January. A vote is taken to support, oppose or take no position on each bill. Once the Committee has finished its review, its recommendations are forwarded to the Executive Council. The Executive Council again reviews the bills and the Committee’s recommendations. The Executive Council either accepts, modifies or reverses the positions recommended by the Committee. The final Executive Council recommendations are reported out to the House of Delegates for a third and final level of review. The House of Delegates acts on the recommendations and establishes the year’s Legislative Program. Once the House of Delegates action is taken, the association actively lobbies our positions. Members of the Bar, the Bar staff and our legislative counsel testify on the bills and work with the senators on final action. This year the Association took positions of support or opposition on 37 bills. A position of no position was taken on the remaining 81 bills that were considered.

The point of all of this is a) we consider participation in the legislative process important and b) we only take positions after careful consideration. As a younger lawyer, back in the early 80s, I served as a member of the Legislation Committee. Young and idealistic, I wanted to take positions on everything. The NSBA had a forum, let’s use it, I thought. Over the years, I’ve come to realize that our role is much more specific,

president’s page

Making Sure Our Voice is Heard

Warren R. Whitted Jr.

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that is to improve the administration of justice. It is to assure that our system functions more effectively, our judges are fairly compensated, our courts are adequately funded, that we have enough judges, that our citizens are well represented, our state laws are current and address the legal needs of our citizens and that the interests of our members are properly served.

We are an integrated or mandatory bar established by order of the Nebraska Supreme Court at the request of the members of the profession. In Re Integration of Nebraska Bar Ass’n, 133 Neb. 283, 275 N.W. 265 (1937). Each of us must be a member of the NSBA to practice law. While a separately constituted corporate entity, the Association operates under the umbrella and regulation of the Nebraska Supreme Court. Dues changes and similar matters only occur with the Court’s consent. It was by petition of the NSBA to the Court that the Commission on the Unauthorized Practice of Law was formed and Mandatory Continuing Legal Education was implemented.

As an integrated bar, we are required to formulate our legislative policy within the limits set by the United States Supreme Court Decision, Keller v. State Bar of California, 496 U.S. 1,110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990) and subsequent decisions. Under Keller, a member of the bar who opposes a legislative position taken by the Association has a First Amendment right not to have his or her dues used to support that position. In 1993, in light of the Keller decision, the NSBA enlisted Ed Perry to review our safeguards. Based on Perry’s analysis, certain changes were made to our policy. First, a member who feels his or her dues are being used improperly may bring that complaint to the Dues Grievance Committee. The Committee will consider and rule on the complaint. In addition each member of the Association who does not want his or her dues used for legislative purposes may “check off” that use. If a member checks off, that money is segregated from other NSBA funds and the amount otherwise payable to our legislative counsel is reduced by that amount. The dues of members checking off are not used for legislative purposes. This satisfies Keller.

One of our members has objected to our legislative policy and has taken the position that NSBA funds should not be used for Legislative purposes. While not a formal grievance, in response to that objection, the Association engaged Mike Fenner, The James L. Koley ’54 Professor of Constitutional Law at Creighton and a member of the Executive Council to review our legislative policy. Fenner issued an opinion that found our policy in compliance with Keller and further found that under Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S. Ct. 876, 175 L. Ed 2d 753 (2010) the entity, the NSBA, has a First Amendment free speech right separate from those of its members. He found that our check-off system adequately protects the first amendment rights of our members and that we are proceeding properly. A copy of the Fenner opinion can be obtained on request from the NSBA office.

What conclusions can be drawn from this? Today, the legislation that is considered by the Unicameral reaches into every corner of our lives. Its impact on the courts, the bar and the people with whom we deal is undeniable. Participation in the process to protect our institutions is an essential function of the NSBA and we take that obligation very seriously. One of the many things I am learning in this position is that our legislators listen when the NSBA speaks. In addition, interaction with our senators opens non legislative opportunities to participate in the making of policy in areas about which we care. Our positions matter.

Our Legislative Program gives us a seat at the table. On my watch, we will continue to be an active participant in legislative matters relating to issues affecting the practice, our clients, the interests of the NSBA and the administration of justice. In these matters, we as lawyers and as the NSBA matter.

PRESIDENT’S PAGE

Warren R. Whitted Jr., PresidentTelephone: (402) 344-4000

Fax: (402) 930-1099E-Mail: [email protected]

If you are aware of anyone within the Nebraska legal community (lawyers, law office personnel, judges, courthouse employees or law students) who suffers a sudden,

catastrophic loss due to an unexpected event, illness or injury, the NSBA’s SOLACE Program can likely assist that person in some meaningful way.

Contact Mike Kinney at [email protected] and/or Jane Schoenike at [email protected].

We have a statewide and beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other

possible solutions through the thousands of contacts available to us through the NSBA and its membership.


In roughly the past year there have been ten important attorney-client privilege cases giving narrow interpretations to the federal privilege, ten cases taking seriously the Supreme Court’s admonition to interpret the evidentiary privileges narrowly,1 ten cases every Nebraska attorney should be aware of. Here they are.

1. Client’s Communications to His Attorney in the Presence of a Camera Crew

In one, a camera crew was filming a documentary movie about the case at hand. For the attorney-client privilege to attach, the client’s communication to the attorney must have been made in confidence. The court held that the presence of

the documentary film’s camera crew at attorney meetings—“‘the presence of strangers’”—means that the client’s statements were not made “in confidence,” and the privilege never attached in the first place.2

This is nothing new. I guess the admonition here is, Don’t let you or your client get carried away by the fact that you may end up in a movie. Your job still and always is to protect the client, even from himself.

2. Client’s Chat-Room Discussion of Confidential Communication With Her Attorney

The second case is nothing new as a matter of law, but rather an application of a long-time rule to a new set of facts. The lawsuit centered on a notice of a copyright violation. That Universal Music Corp. sent to YouTube. Universal “alleg[ed] that a 29-second home video of a toddler dancing to the Prince song ‘Let’s Go Crazy’ infringed Universal’s copyright;” YouTube removed the video; the woman who posted it “sued Universal under . . . the Digital Millennium Copyright Act . . . for knowingly materially misrepresenting in the takedown notice that her video infringed the copyright.”3

During the pendency of the litigation, the plaintiff electronically chatted and blogged about her attorney’s strategy. The court stated that “[b]ecause the attorney-client privilege is in derogation of the search for truth, it is narrowly and strictly construed,”4 and held that the voluntary e-disclosure of the contents of a privileged communication waived the privilege as to those communications and all others on the same subject.5

Once more, the attorney must protect the client from herself. And this becomes particularly important in this digital

feature article

Attorney-Client Privilege - Ten Important Cases Handed Down in Roughly the Past Year

by Professor G. Michael Fenner

Professor G. Michael FennerProfessor G. Michael Fenner is the James L. Koley ’54 Professor of Constitutional Law at Creighton University School of Law. He received his B.A. from the University of Kansas and his J.D., with distinction, from the University of Missouri-Kansas City School of Law. Professor Fenner is the Reporter for civil jury instructions on the Nebraska Supreme Court’s Committee

on Practice & Procedure, and he is the President-Elect Designate of the Nebraska State Bar Association. He is a frequent speaker at continuing legal education programs, and has published numerous articles. Visit his web page at http://www.creighton.edu/law/faculty/fenner/index.php.

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age when many clients are used to sharing even the most trivial and boring parts of their lives—“lunch at Jason’s Deli”; does anyone really care?—and without strong admonition from counsel they surely cannot resist sharing when they have something new and exciting to say.

3. Emails to Client’s Personal Attorney Sent From a Company-Issued Computer

Plaintiff’s employer has a policy against using work computers for personal messages and told its employees that work computers were subject to monitoring. An employee sent email to her personal attorney concerning a possible discrimination suit against her employer. The court held that these communications were not confidential and, therefore, the attorney-client privilege never attached. These communications, said the court, were akin to the employee “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”6

Again, one more way in which the attorney must be prepared to protect the client from her own, perhaps unknowing, mistakes; one more important admonishment to the client.

4. Sending Privileged Material to a Court-Appointed Expert

At least one Circuit Court of Appeals has held that sending material to a court-appointed expert waived both the attorney-client privilege and work product protection as to that material. A consulting firm hired by the plaintiffs sent the material to the court-appointed expert. The court found that the party can expect that the court appointed expert will share the material with the opposing party.

Supporting this conclusion—but not necessarily stating a precondition for the result—the court cited an affidavit by the client’s attorney acknowledging that the information given to the court-appointed expert would be available to the other party to the litigation if, and to the extent that, the expert included it in his report. This, held the court, means that the communication to the court-appointed expert was not intended to be confidential.

In the process, the court noted: “[E]videntiary privileges . . . are effective only if they shield evidence and thus they necessarily obstruct the search for the truth at a trial at which they are recognized . . . Consequently, privileges should be recognized only when necessary to achieve their respective purposes.”7

The “Red Alert” here is this. When you are moving documents around be ever mindful of the attorney-client privilege. Be careful anytime you give or say anything to anyone—even, of course, a court-appointed expert.

5. Erroneous Admission of Privileged Material Relevant to a Count of Which Defendant Was Acquitted and Not Relevant to the Count of Which He Was Convicted

Jewel was charged with mail fraud and aiding and abetting tax evasion. He was acquitted of the former and convicted of the latter. Among other things, Jewell appealed the trial court’s overruling of his attorney-client privilege objection. The Eighth Circuit found that the evidence against which the attorney-client privilege was asserted was relevant to the mail fraud charge (acquitted) and not to the tax evasion charge (convicted). It held that there was no reasonable possibility that any error in admitting the evidence contributed to the conviction on an unrelated issue. It “did not prejudice Jewell’s substantial rights.”8

The takeaway here is one from all ten of these cases: The Supreme Court has admonished that the attorney-client privilege be narrowly construed. (This case surely does that.)

6. The Privilege When an Attorney Represents Two Clients in a Matter of Common Interest

Judge Jackson, from the Eastern District of Missouri, produced a brief and well-written opinion that I cannot improve on. I will simply quote two paragraphs from her opinion.

Fidelity argues that it has an attorney-client relationship with SSB and thus is entitled to invoke the attorney-client privilege to prevent disclosure to Captiva. Captiva argues in response that it has an attorney-client relationship with SSB which entitles it to access to SSB‘s file. In actuality, both Fidelity and Captiva are clients of SSB. See In re Allstate Ins. Co., 722 S.W.2d 947, 952 (Mo. 1987) (finding “no reason why the same lawyer may not represent both” the insurer and the insured); Shapiro v. Allstate Ins. Co., 44 F.R.D. 429, 431 (E.D. Pa. 1968) (counsel represented both insurer and insured and insurer cannot require counsel to withhold information from insured).

Communications between attorney and client are generally protected from third parties. A general exception to the privilege exists, however, when a lawyer represents two clients in a matter of common interest. The privilege cannot be claimed by one client with respect to communications between him and the attorney in a subsequent

action between the two clients.9

7. Corporate Communication to In-House Counsel Who, It Turns Out, Was Not Licensed to Practice Law

Gucci America, Inc. sued Guess?, Inc. for trademark infringement. In response to Guess?’s discovery request, Gucci

ATTORNEY-CLIENT PRIVILEGE



should litigate those claims in state court rather than federal court.” He concluded that “[i]n the absence of any authority that [plaintiff’s] . . . claim comports with Iowa law, or that Iowa courts would adopt it if given the opportunity, I decline to take such a bold departure from established Iowa law and will not adopt [plaintiff’s] theory.”14

9. An Indian Tribe’s Failure to File a Privilege Log Pending Resolution of Its Sovereign-Immunity Claim Did Not Waive the Tribe’s Privilege

Because it may have applications outside of Indian law, because some of you do practice Indian law, and because when Moses returned from the mountain the precedent was established—authoritative lists contain ten entries. Failure to file a privilege log ordinarily waives the privilege. In this case an Indian Tribe did not file a privilege log, but did make a sovereign immunity claim. The court recognized that, if accepted, the sovereign immunity claim could “result in blanket protection for all documents possessed by the Tribe.” “[T]he burden imposed on the Tribe in producing a privilege log in order to avoid a waiver claim may be unduly time consuming and burdensome,” and unjustified while the claim of sovereign immunity is pending. In this circumstance the privilege was not waived by the non-filing of the privilege log.15 The judge went on to deny the claim of sovereign immunity. At that point, presumably, the burden fell on the Tribe to file the privilege log or waive the privilege.

10. Communications Between a Corporation and In-House Counsel in the Courts of the European Union

Because it is so contrary to American law and because it has serious ramifications for American attorneys and judges dealing with litigation involving European Union companies, I include the following. Within the past year or so, the European Court of Justice has held that the attorney-client privilege does not apply to corporate communications to in-house counsel, but only to independent lawyers. The court held that privileged communications “must be exchanged with ‘an independent lawyer, that is to say one who is not bound to his client by a relationship of employment’. …. [A]n in-house lawyer cannot, . . . be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence.”16

This is important for attorneys who practice in the E.U.; those who represent American corporations with offices and

claimed the attorney-client privilege regarding communications between itself and in-house counsel. Guess? took in-house counsel’s deposition and learned that he was not an active member of any bar association, that he did not have a license to practice law. Guess? argued that the privilege did not apply to communications between Gucci and this non-lawyer.

The court found that the privilege does apply. It quite correctly stated this piece of black-letter attorney-client privilege law. “Even if the communications at issue were not made to an attorney, the privilege may be successfully claimed if the client reasonably believed that the person to whom the communications were made was in fact an attorney.”10 Guess? had made two separate, but related, arguments: (1) that Gucci did not evidence a reasonable belief that this man was an attorney; and (2) that Gucci did not take reasonable precautions to determine whether or not he was licensed to practice law.

The magistrate judge agreed with Guess?, but not the Article III judge. The latter held that the corporation had a reasonable belief that it was communicating with an attorney and that there is no “due diligence” requirement. The man in question did have a law degree and the corporation knew that when it hired him. For a number of years he did legal work for the corporation. The company “produced the declarations of six current and former executives and its outside counsel stating that they all considered Moss to be an attorney.” “This,” said the Article III judge, “is more than sufficient evidence” to establish a reasonable belief.11

“Moreover,” said the court,

… any other result would place an unfair and potentially disruptive burden on corporate entities. To require businesses to continually check whether their in-house counsel have maintained active membership in bar associations before confiding in them simply does not make sense. While an attorney has an obligation to ensure that he is properly practicing law . . . the sins of the attorney must not be visited on the client so long as the client has acted reasonably in its belief that its counsel is, in fact, an attorney.12

Reviewing “the entire evidence” the court concluded “that Gucci’s belief . . . was more than reasonable.”13

8. A Common-Law Tort of Invasion of the Attorney-Client Privilege?

Judge Mark Bennett from neighboring Iowa had a case raising an attorney-client privilege claim that was new to me. The plaintiff sued the defendant for, among other things, the tort of invasion of the attorney-client privilege. Judge Bennett recognized that state law supplied the rule of decision, and noted that the plaintiff did not cite, nor could he find, any Iowa law recognizing such a tort. He recognized the general rule that “parties wishing to press innovative interpretations of state law ➡



information from the factfinder, it applies only where necessary to achieve its purpose.”).

2 In re Application of Chevron Corp., 2011 U.S. App. LEXIS 10510 (3d Cir. May 25, 2011).

3 Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 125874, *2 (N.D. Calif. Nov. 17, 2010).

4 Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271, *5 (N.D. Calif. Oct. 22, 2010) (Lenz I) (multiple and internal quotation marks omitted).

5 Lenz I, supra, at *9. As an aside, I am told that divorce lawyers’ best friends are the opposing party’s Facebook pages, and their worst enemies are their own clients’ Facebook pages. I am also told that many divorce lawyers are putting into their client con-tracts a clause to this affect: “During the pendency of this action Client shall not post on any social network sites or it will be grounds for Attorney to withdraw from the case.”

6 Holmes v. Petrovich Development Co., 119 Cal Rptr. 3d 878, 883 (Ct. App. 2011).

7 In re Chevron Corp., 633 F.3d 153, 164-165 (3d Cir. 2011). 8 United States v. Jewell, 614 F.3d 911, 918 (8th Cir. 2010). 9 Fidelity National Title Ins. Co. v. Captiva Lake Investments, LLC,

2011 U.S. Dist. LEXIS 64401 (E.D. Mo. June 17, 2011) (some citations omitted).

10 Gucci Am. Inc. v. Guess? Inc., 2011 U.S. Dist. LEXIS 15 *7 (S.D.N.Y. Jan. 3, 2011) (citing two cases for the quoted proposi-tion, one from the 8th Circuit: In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 923 (8th Cir. 1997)).

11 Id. at *23.12 Id. at *23-24.13 Id. at 24. 14 Luken v. Edwards, 2011 U.S. Dist. LEXIS 47545, at *28-30

(N.D. Iowa May 3, 2011). Accord Teinert v. Rossini, 2011 U.S. Dist. LEXIS 20834, at *5-6 (D. Minn. March 2, 2011).

15 Alltel Communs., LLC v. DeJordy, 2011 U.S. Dist. LEXIS 16863, at *14 (D. S.D. Feb. 17, 2011).

16 Case C-550/07 P, Akzo Nobel Chems. Ltd. v. Comm’n, 2010 E.C.R. 791, at I-11 through I-13.

in-house counsel in the E.U.; those who represent American companies who end up in litigation in the court of the E.U. and must deal with communications within the United States, between the U.S. corporation and its in-house counsel; and those attorneys and judges who are in litigation within the U.S. and must deal with arguable privileged communications between an E.U. company and its in-house counsel. Which interpretation of the privilege applies when?

Taking one example, consider communications within the E.U., between an E.U. corporation and its in-house counsel. When the corporation is sued in the U.S., which attorney-client privilege will apply. The answer in this situation seems clear: The attorney-client privilege would not apply. I say this in light of two things in particular: (1) the United States Supreme Court’s admonition that the attorney-client privilege should be interpreted narrowly; and (2) the fact that when the statements were made, the E.U. company and its in-house counsel had no expectation that statements would be private, that is, would be protected by the privilege.

* * *None of these attorney-client privilege rulings should

come as much of a surprise—except perhaps the E.U. ruling on in-house counsel. Each of these rulings addresses issues nearly every Nebraska attorney should be aware of. And now you are.

Endnotes1 Fisher v. United States, 425 U.S. 391, 403 (1976) (“[S]ince the

[attorney-client] privilege has the effect of withholding relevant

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Franchising is a form of business operation in which the franchisor licenses its trademarks and other intellectual property to a franchisee to operate a business using the franchisor’s system or method of operation in return for both initial and continuing franchise fees. Franchised businesses were responsible for an estimated 136,400 jobs in Nebraska in 2007, generating economic output of over $14 billion that year.1 This Article will examine the heavily regulated legal environment in which franchised businesses operate, legal issues in franchise and distribution agreements, and some of the cases comprising the common law of franchising in Nebraska.2

I. Regulation of Franchise Sales

A. The Federal Trade Commission Rule

The regulation of franchise sales is typically the initial legal obstacle for franchisors. A Federal Trade Commission Franchise Trade Regulation Rule entitled “Disclosure Requirements and Prohibitions Concerning Franchising” (the “FTC Rule”)3 requires a franchisor to furnish a prospective franchisee with certain information regarding the franchise. The FTC Rule was designed to provide the prospective franchisee with both (i) the information necessary to make an informed decision on investing in the franchise and (ii) adequate time to review the information. Consequently, the franchisor must disclose the required information at least two weeks before the prospective franchisee signs any binding agreement or pays the franchisor any money.

A business is considered a franchise under the FTC Rule when: (1) the franchised business is substantially associated with the franchisor’s trademark; (2) the franchisor provides significant assistance to or has significant control over the franchisee’s business;4 and (3) the franchisee pays a franchise fee.5 Even if a business satisfies the definition of a franchise, the FTC Rule will not apply if the business fits within one of the exemptions to the FTC Rule, which include: (1) the minimum payment exemption, where the franchisor agrees to accept less than $500 from the franchisee during the first six months of the operation of the franchisee’s business;6 (2) the fractional franchise exemption, where the franchisee has been in the business covered by the franchise for the past two years and the franchisee’s sales under the franchisor’s concept in the first year are reasonably expected to be less than twenty percent of the franchisee’s overall sales;7 and (3) the large franchisee

feature article

Franchise Law for Nebraska Lawyersby Gary R. Batenhorst

Gary R. BatenhorstGary R. Batenhorst is an attorney at Cline Williams Wright Johnson & Oldfather LLP’s Omaha office. Gary has extensive experience in franchising and distribution mat-ters. He was in-house counsel for Godfather’s Pizza, Inc. for over 17 years, serving as Vice President, Secretary and General Counsel from 1988 to 2001. Gary has rep-resented both franchisors and fran-chisees in franchise development

and franchise relationship matters, the establishment of new franchise systems, franchise law compliance and advising new franchisees. He advises manufacturers on issues related to their distribution systems. He also works in the areas of real estate, acquisition and divestitures of businesses, for-mation of new business entities, lender relationships, and general advice to companies on issues including marketing, employment law and contractual matters.

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exemption, where the franchisee has been in any business for at least five years and has a net worth of at least $5,000,000.8

A franchisor provides the information required by the FTC Rule to a prospective franchisee in a Franchise Disclosure Document (“FDD”). Comprised of 22 separate items, the FDD, and its exhibits contain all of the FTC’s required disclosures. These disclosures include an overview of the franchise and the franchisor; biographical information on certain franchisor executives and personnel who have close contact with franchisees; litigation and bankruptcy histories of the franchisor and designated personnel; fees and other amounts payable to the franchisor and its affiliates; an estimate of the investment required to commence operation of the franchised business; information regarding the franchisor’s and franchisee’s obligations under the franchisor agreement, the franchisee’s territory and the franchisor’s trademarks; requirements for the franchisee to participate in the operation of the franchised business; limitations on the products and services the franchisee may sell; and information regarding the number of franchisees in the system for the past three years.9

Franchisors may – but are not required to – provide information on historical or projected estimates of sales and profits by giving franchisees what are known as financial performance representations.10 Providing a financial performance representation is one of the only legally permissible ways in which the franchisor may answer a prospective franchisee’s questions regarding projected sales and profits.11 Consequently, franchisors must exercise caution in preparing financial performance representations and in training their sales staffs not to make projections in any other way.

The FDD includes a number of exhibits that provide valuable information to prospective franchisees including: (1) a copy of the franchise agreement; (2) a list of certain current and former franchisees; and (3) audited financial statements of the franchisor for the past three years.

B. State Franchise Registration Laws

Fourteen states, not including Nebraska, have franchise registration laws.12 In addition to requiring pre-sale disclosures similar to those mandated by the FTC Rule, such states generally require that the FDD and related documents be registered with a state agency before the franchisor sells franchises in the state. Franchise sales are subject to state regulation if the franchisor’s business meets the state’s definition of a franchise and the offer or sale of the franchise is made within the state.

The definition of a franchise under state franchise registration laws is similar to the definition used in the FTC Rule. Most state definitions require that the franchisee operate a business substantially associated with the franchisor’s trademark and that the franchisee must directly or indirectly pay a franchise fee.13 The third element in the state definition generally requires

that the franchisee operates under a marketing plan or system prescribed or suggested in substantial part by the franchisor.14

If the franchisor’s business meets the definition of a franchise, registration is required unless an exemption is available under state law. These exemptions vary by state and can include exemptions for high net worth franchisors15 and franchisees16 as well as a fractional franchise exemption similar to the one available under the FTC Rule.17

Most franchise registration states conduct a review of the FDD before approving the registration, and may require changes to the FDD and the franchise agreement, such as requiring the franchisor to defer receipt of the initial fee until after the franchised location opens and the franchisor has met its pre-opening obligations. States may also require changes in clauses that define governing law and venue as well as those that purport to limit the franchisor’s liability through releases or establish post-termination non-compete covenants.

C. Business Opportunity Laws

Nearly half of the states – including Nebraska – have business opportunity laws, also referred to as seller-assisted marketing plan laws.18 These laws generally are designed to regulate investments in certain types of businesses that require smaller investments than most franchises, such as vending machine routes. A discussion of these laws is beyond the scope of this article, but franchisors should be aware that these laws do impact some franchised businesses.

Most state business opportunity laws exempt franchises from their operation, particularly if the franchisor has a federally registered trademark and provides a disclosure document that complies with the FTC Rule. The Nebraska Seller Assisted Marketing Plan Act, for example, provides for an exemption for franchisors that pay a $100 fee and file a one page form with the Nebraska Department of Banking and Finance.19 This administrative requirement is easy to satisfy but critically important for franchisors to fulfill before beginning to sell franchises in Nebraska.20

II. Franchise Relationship LawsIncluding Nebraska, eighteen states have franchise

relationship laws, which regulate various aspects of the franchisor-franchisee relationship.21 Franchise relationship laws generally require that a franchisor have good cause to terminate or refuse to renew the franchise. These laws often require a minimum notice period following a default by the franchisee and may give the franchisee an opportunity to cure the default before a franchise may be terminated or not renewed.

A. Nebraska Franchise Practices Act

The Nebraska Franchise Practices Act (“NFPA”)22 applies to a franchise: (1) which contemplates or requires the franchisee

FRANCHISE LAW FOR NEBRASkA LAWYERS



A. Parties and Guarantors

Most franchisees form a limited liability entity to hold the franchise. Consequently, most franchisors require the owners of the franchisee to sign a personal guaranty. This raises issues as to whether the guaranty must be signed by all owners of the franchisee or only the majority or other principal owners. The franchisor may also require the spouses of franchise owners to sign the guaranty. Franchisees’ counsel may seek to limit the number of persons who sign the guaranty, negotiate for a waiver of the guaranty for franchise owners with a substantial tangible net worth, or have the guaranty end after a specified period of operation of the franchise without a default.

B. Territory

Some franchise agreements grant the franchisee an exclusive area or protected territory within which the franchisor will not permit the location of another franchised or company-owned unit. If the franchise agreement provides for an exclusive area, a number of issues must be considered. A primary concern is how to define the territory: should it include a specific radius around the franchised location, an area defined by streets and highways, an area that encompasses a minimum population or number of households, or some other method? Another very important issue related to exclusive areas involves what rights the franchisor retains. Problems may arise if the franchisor grants the franchisee the right to operate a physical location within a defined exclusive area, but fails to provide how internet sales to customers within the exclusive area will be addressed.32 Franchisors of food products may grant franchises for retail locations operated under their system while reserving the right to sell their products within the exclusive area in grocery stores and other non-traditional locations such as convenience stores or college foodservice locations.

C. Renewal

Parties to a franchise agreement can follow one of several approaches to renewal of the agreement when its initial term expires. The franchise agreement itself can provide that it is non-renewable.33 This requires the franchisee to sign a new franchise agreement if the relationship is to continue after the initial term. On the other extreme, the franchise agreement can provide that it will be renewed for an unlimited number of additional terms if the franchisee is not in default at the end of each term, unless the franchisee chooses not to renew. In between these two approaches, the franchisee may be required to notify the franchisor of its desire to renew within a specified time before the current term expires. The franchisor then determines whether there are any reasons for it to deny renewal. If the franchisor agrees to renew, the franchisee typically is required to sign the franchisor’s then-current form

to have a place of business in Nebraska;23 (2) that has gross sales of products or services between the franchisor and franchisee exceeding $35,000 in the twelve months before an action is brought under the statute; and (3) in which “more than twenty percent of the franchisee’s gross sales are intended to be or are derived from such franchise.”24

The NFPA imposes requirements for termination or non-renewal of a franchise, including a sixty day notice requirement for termination or non-renewal; that period can be shortened to fifteen days, however, if the termination or non-renewal follows the voluntary abandonment of the franchise relationship by the franchisee. Termination or non-renewal is effective on receipt of notice when based on (a) conviction of the franchisee of certain crimes; (b) bankruptcy or similar insolvency proceedings filed by the franchisee; (c) failure to pay an obligation to the franchisor or to account for the sale of goods by the franchisee; (d) falsification of records or reports required by the franchisor; (e) a matter of “imminent danger to public health and safety”; or (f) the franchisee’s loss of access to the franchised premises.25 Before issuing a notice of termination that is effective upon receipt, a franchisor should ensure that its own franchise agreement does not provide for a longer notice period than required under state law.

The NFPA also has provisions regulating the transfer of a franchise by the franchisee.26 The franchisee must provide the franchisor with certain information regarding the proposed transferee, after which the franchisor has sixty days to either approve the transfer or disapprove it for reasons limited to “character, financial ability, or business experience of the proposed transferee.”27 The transfer is deemed approved if the franchisor does not reply within the sixty day period. The statute also provides that the transferee must agree “to comply with all of the requirements of the franchise then in effect.”28 Interestingly, such statutory language leaves open the question of whether the common practice of requiring the transferee to sign the franchisor’s then-current form of franchise agreement – rather than assuming the original franchise agreement – is permissible.

The NFPA permits a franchisee to bring an action against the franchisor for damages and injunctive relief,29 and entitles the prevailing party to recover attorney’s fees.30 In counseling franchisees under the NFPA, Nebraska lawyers should be aware that franchisors are required to have good cause to take certain actions, but the statute does not require that the franchisee be given an opportunity to cure a default.31

III. The Franchise AgreementThe franchise agreement is the primary document governing

the franchise relationship. Nebraska lawyers face a variety of challenges when drafting a franchise agreement for a franchisor or reviewing a franchise agreement for a prospective franchisee. ➡



broad enough to include certain product or service distribution arrangements that may not be considered franchises by the manufacturer or supplier. This is sometimes referred to as an “accidental franchise,” and can lead to problems when a manufacturer or supplier wants to terminate a distribution agreement but the distributor resists the termination by claiming the parties are in a franchise relationship. An example of an accidental franchise is To-Am Equipment Co. v. Mitsubishi Caterpillar Forklift America, Inc.,41 where the court found that a distributor satisfied the franchise fee element of an Illinois statute by purchasing training manuals for $1,600 over a nine year period. The court upheld a $1.5 million verdict for the distributor based on the manufacturer’s failure to comply with an Illinois franchise statute.

To avoid franchise relationship laws, a manufacturer or supplier should structure its relationship to eliminate one or more elements of the definition of a franchise. The most common way to accomplish this is to charge distributors only a bona fide wholesale price for the goods or services, as sales at a bona fide wholesale price are excluded from the definition of a franchise fee under many state laws.42 A manufacturer or supplier that charges distributors for marketing or training materials or similar items should consider eliminating these charges and offsetting the lost revenue by increasing its wholesale inventory price, if that price remains a bona fide price, when compared to others in the industry.

Many distributors use the manufacturer’s or supplier’s trademark, making it more difficult to eliminate this element of the franchise definition. The prescribed marketing plan or community of interest element relates to the level of assistance the manufacturer or supplier provides to the distributor, or to the level of control the manufacturer or supplier has over the distributor’s business. The attributes of a prescribed marketing plan or community of interest vary from state to state, making it difficult to counsel manufacturers or suppliers on how to avoid this element of the franchise definition.43

The NFPA includes the community of interest element in its definition of a franchise; however, there are no Nebraska cases discussing the community of interest requirements. If Nebraska courts follow cases from some jurisdiction providing a low threshold to establish a community of interest,44 distribution arrangements in Nebraska may be treated as franchises if the franchise fee element is not eliminated. The NFPA requires that a franchisor have good cause and give sixty days notice of termination in many cases, but does not specifically provide that the distributor be given the right to cure the default. Consequently, Nebraska lawyers should consider including a sixty day notice provision in any distribution agreement covered by Nebraska law. Manufacturers should also consider dealing only with distributors who handle multiple product lines, so that the distributor does not have a large percentage

of franchise agreement and pay a renewal or extension fee. Some franchise agreements specify the renewal fee, while others state that the renewal fee will be the then-current initial fee or some percentage of that fee.

D. Non-Compete Provisions

Franchise agreements normally contain both in-term and post-term non-compete provisions, and courts often give franchisors wide discretion in enforcing in-term non-competes to help them preserve trade secrets and other confidential information.34 Post-term non-compete provisions generally are enforced under Nebraska law when they are not injurious to the public interest and are reasonable in both geography and time.35

The Nebraska Supreme Court enforced a post-term non-compete provision in a franchise agreement in H & R Block Tax Services, Inc. v. Circle A Ent., Inc.36 In Block a franchisor sued a former franchisee for violating a covenant that prohibited the franchisee from soliciting for one year any person for whom the franchisee prepared a tax return as a Block franchisee and from competing with Block or any other Block franchisee for one year within 45 miles of the franchised territory. The trial court refused to enforce the covenant but the Supreme Court reversed that decision.

In its decision, the Supreme Court reiterated the rule that Nebraska courts will not reform a non-compete agreement in an attempt to make it enforceable.37 The court stated the covenant must be reasonable in that it: (1) is not injurious to the public; (2) it is no greater than necessary to protect a legitimate business interest; and (3) is not unduly harsh or oppressive against the party against whom it is enforced.38

The Supreme Court’s decision in Block turned heavily on the issue of whether a non-compete covenant in a franchise agreement is more similar to a non-compete in an employment agreement or to a non-compete in connection with the sale of a business. Covenants in employment agreements typically have more requirements that must be satisfied to enforce the covenant. The court concluded that the franchise agreement covenant is more similar to the covenant found in connection with the sale of a business, noting that the main purpose for obtaining a Block franchise is acquiring the ability to trade on Block’s goodwill.39

IV. Accidental FranchisesMost state franchise relationship laws define a franchise

relationship as one in which: (1) the franchisee uses the franchisor’s trademark; (2) the franchisor provides a prescribed marketing plan to the franchisee, or there is a community of interest between the franchisor and franchisee; and (3) the franchisee pays the franchisor a direct or indirect franchise fee.40 While this definition clearly encompasses traditional business format franchises such as fast food restaurants, it is also



C. Applicable Law

The United States District Court for the District of Nebraska applied Nebraska law to a dispute between a Nebraska supplier and its distributor located in other states, including Minnesota, although the distributor sought to apply Minnesota law. The Eighth Circuit Court of Appeals reversed that decision,50 but then met en banc and affirmed the district court decision.51 In upholding the decision to apply Nebraska law, the Eighth Circuit enforced the contractual choice of law provision where: (1) the parties had agreed in advance to the applicable law; (2) the contacts between the two states whose law could be applied were fairly equally divided; (3) the parties did not have unequal bargaining strength; and (4) the application of the law of the chosen state “was not repugnant to the public policy of the plaintiff’s state.”52

Some later cases have criticized the result in Modern Computer and the Minnesota legislature amended the anti-waiver provisions in its franchise statute after this decision to make it less likely that courts will apply the law of another state to disputes involving a Minnesota franchise. However, the case still provides a basis for applying Nebraska law to franchise disputes in factually similar situations.

D. Jurisdiction Over Out-of-State Franchisees

In Castle Rose v. Philadelphia Bar & Grill the Nebraska Supreme Court upheld the application of Nebraska’s long arm statute to assert jurisdiction over an Arizona corporation that operated in Arizona under a franchise agreement issued by a Nebraska franchisor.53 The court relied heavily on Burger King Corp. v. Rudzewicz,54 a decision by the Supreme Court of the United States sanctioning the application of the Florida long arm statute to assert jurisdiction in Florida over a Michigan Burger King franchisee.

E. Forum Selection Clause

Many franchisors require that disputes under a franchise agreement be resolved in a forum near where the franchisor is located. In Thrasher v. Grip-Tite Mfg., Co.,55 the U.S. District Court for the District of Nebraska enforced a forum selection clause in a development agreement for distributorships for construction products. The enforcement of this clause resulted in the transfer of the case to Iowa. The court noted that federal law is used to determine the enforceability of forum selection clauses in most diversity cases and that courts in Nebraska have upheld forum selection clauses after considering their validity under U.S. Supreme Court precedents. In a slightly different context, the Nebraska Supreme Court enforced a Pennsylvania forum selection clause in an equipment lease agreement involving a Nebraska lessee in Polk County Recreation Ass’n. v. Susquehanna Patriot Commercial Leasing Co., Inc.56

of its capital invested in distributing one manufacturer’s or supplier’s products or services. This helps in arguing that there is no community of interest.45

V. Nebraska Case Law on FranchisingNebraska lawyers representing franchise clients should be

aware of certain other cases affecting franchise relationships under Nebraska law. This section is not intended to be a comprehensive review of Nebraska case law dealing with franchised businesses; rather, its purpose is to highlight frequently-encountered issues in the franchise arena.

A. Unauthorized Transfers Resulting in a Lack of Franchise Relationship

In Western Convenience Stores, Inc. v. Burger King Corp.,46 Western sued for injunctive relief and damages after Burger King refused to transfer, renew or grant a franchise to Western to operate a Burger King location in a convenience store in Ogallala. Burger King and Western’s predecessor-in-interest had entered into a ten year franchise agreement on June 21, 1996, which the parties agreed to extend through June 20, 2007. Western owned the franchisee’s interest in the franchise agreement following a series of transfers to which Burger King had not consented. Western brought claims alleging violations of the NFPA, tortious interference, breach of the covenant of good faith and fair dealing and equitable estoppel. The court said there was no proof that Burger King and Western were in a franchise relationship – as the only franchise agreement in the matter was with another party – and Burger King had not consented to an assignment. The court concluded there can be no NFPA claim without a franchise agreement, and further held that any interference by Burger King was not tortious; that Burger King’s conduct did not breach the covenant of good faith and fair dealing; and there was no good faith reliance by Western that could give rise to an equitable estoppel claim.47

B. Disclaimer of Franchise Relationship

A lawyer drafting an agreement for an arrangement that has some, but possibly not all, elements of a franchise should consider specifically disclaiming in the agreement that the relationship is a franchise, if so intended. In Home Pest & Termite Control, Inc. v. Dow Agrosciences, LLC,48 Home sued after Dow terminated an agreement for the sale, installation and servicing of termite elimination systems. Home claimed wrongful termination of a franchise under the NFPA. The agreement included language that stated the agreement was not a franchise. The court found no evidence of a franchise fee and also said the court saw no reason to construe the agreement in a manner contrary to its express terms.49 The court ruled the NFPA did not apply as there was no franchise.

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(2009), (farm equipment); (2) The Motor Vehicle Industry Regulation Act, NEB. REV. STAT. § 60-1401 to § 60-1440 (2010); (3) NEB. REV. STAT. § 87-411 to § 87-414 (2008) (motor fuel franchise agreements); (4) NEB. REV. STAT. § 53-201 to § 53-223 (2010), (beer distributors); and (5) The Nebraska Equipment Business Regulation Act, NEB. REV. STAT. § 87-701 to § 87-711 (2008) (agricultural and industrial equipment dealers).

3 16 C.F.R. § 436.1 (2007).4 16 C.F.R. § 436.1 (h)(2) (2007).5 16 C.F.R. § 436.1(h)(3) (2007).6 16 C.F.R. § 436.8(a)(1) (2007).7 16 C.F.R. § 436.8(a)(2) (2007).8 16 C.F.R. § 436.8(a)(5)(ii) (2007).9 16 C.F.R. § 436.4 (2007).10 16 C.F.R. § 436.1(e) (2007).11 Item 19 also permits a franchisor to provide actual records of

an existing outlet which a prospective franchisee is considering purchasing and to supplement a financial performance representation with information regarding possible performance of a location under specified circumstances. 16 C.F.R. § 436.5(s) (2007). The Franchise Disclosure Document includes a list of the franchisees in a system, and the franchisor may encourage prospective franchisees to contact these existing franchisees to discuss their operations and financial performance.

12 California Franchise Investment Law, CAL. CORP. CODE, §§ 31000 et seq.; Hawaii Franchise Investment Law, HAW. REV. STAT., Chapter 482E; Illinois Franchise Disclosure Act, ILL. COMP. STAT., Chapter 815 §§ 705/1-705/44; Indiana Franchises Law, IND. CODE, §§ 23-2-2.5-1 et seq.; Maryland Franchise Registration and Disclosure Law, MD. CODE ANN., §§ 14-201 to 14-233; Michigan Franchise Investment Law, MICH. COMP. LAWS, §§ 445.1501 et seq.;

The reasoning in Thrasher and Susquehanna makes it likely that Nebraska courts will enforce forum selection clauses in franchise agreements where disputes arise under these agreements in Nebraska.

VI. ConclusionNebraska lawyers who represent franchisors and franchisees

should be aware that they are entering a heavily regulated legal environment. This article has examined some of the issues that face franchise clients in the purchase and sale of franchises, the preparation and negotiation of franchise agreements, and in managing various aspects of the franchise relationship. Nebraska lawyers should also be aware of how franchise laws may impact the relationship between manufacturers or suppliers with their distributors, even where the parties did not believe these relationships fell within the ambit of these franchise laws. As more Nebraskans seek to start their own businesses, many of them will find franchising to be a viable option, making it beneficial for Nebraska lawyers to be well-versed in this area of the law.

Endnotes1 The Economic Impact of Franchised Businesses, Volume 3,

FRANCHISING WORLD, May 2011, at 47.2 Nebraska also has a number of industry-specific statutes that

deal with franchise relationship matters. A discussion of these statutes is beyond the scope of this article, but these statutes include: (1) NEB. REV. STAT. § 69-1501 to § 69-1504

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20 The Nebraska Department of Banking and Finance can require rescission of franchise agreements entered into without complying with § 59-1722.

21 Arkansas Franchise Practices Act, ARK. CODE ANN. §§ 4-72-201 et seq.; California Franchise Relations Act, CAL. BUS. & PROF. CODE §§ 20000 et seq.; Connecticut Franchises, CONN. GEN. STAT. §§ 42-133e et seq.; Delaware Franchise Security Law, DEL. CODE ANN. tit. 6, §§ 2551 et seq.; Hawaii Franchise Rights and Prohibitions, HAW. REV. STAT. § 482E-6; Illinois Franchise Disclosure Act of 1987, 815 ILL. COMP. STAT. § 705/19; Indiana Deceptive Franchise Practices, IND. CODE §§ 23-2-2.7-1 et seq.; Iowa Franchises, IOWA CODE §§ 523H.1 to 523H.17 and Iowa Franchise Agreements, IOWA CODE § 537A.10; Maryland Fair Distributorship Act, MD. CODE ANN., COM. LAW §§ 11-1301 et seq.; Michigan Franchise Investment Law, MICH. COMP. LAWS § 445.1527; Minnesota Franchises, MINN. STAT. § 80C.14; Mississippi Franchises, MISS. CODE ANN. §§ 75-24-51 et seq.; Missouri Franchises, MO. REV. STAT. §§ 407.400 to 407.410; 407.413 and 407.420; Nebraska Franchise Practices Act, NEB. REV. STAT. §§ 87-401 et seq.; New Jersey Franchise Practices Act, N.J. STAT. ANN. §§ 56:10-1 et seq.; Virginia Retail Franchising Act, VA. CODE ANN. § 13.1-564; Washington Franchise Investment Protection Act, WASH. REV. CODE §§ 19.100.180 and 19.100.190; Wisconsin Fair Dealership Law, WIS. STAT. §§ 135.01 et seq.; Puerto Rico Dealers’ Contracts, (Law 75) P.R. LAWS tit. 10, §§ 14-278 et seq.; Virgin Islands Franchised Businesses, V.I. CODE ANN. tit. 12A, §§ 130 et seq.

22 NEB. REV. STAT. §§ 87-401 et seq. (2008).23 Id. at § 87-403.24 Id.25 § 87-404.26 § 87-405.27 Id.28 Id.29 § 87-409.30 Id.31 The wording of the comparable section of the New Jersey

Franchise Practices Act, N.J. STAT. ANN. § 56:10-5 is nearly identical to the Nebraska statute, and cases under New Jersey law are split on whether a cure period is required. Compare Dunkin Donuts, Inc. v. All Madina Corp., No. 04-1399, 2006 WL 842403 (D.N.J. Mar. 28, 2006) (cure period required) with Dunkin Donuts Franchised Rests. LLC v. Strategic Venture Group, Inc., No. 07-1923, 2010 WL 4687838 (D.N.J. Nov. 10, 2010) (cure period not required).

32 Compare Emporium Drug Mart, Inc. of Shreveport v. Drug Emporium, Inc., Bus. Franchise Guide (CCH) ¶ 11,996 (AAA 2000) (arbitration panel issued preliminary injunction against franchisor’s internet sales into franchisee’s exclusive area) with In re Hales v. Conroy’s Inc., Bus. Franchise Guide (CCH) ¶ 12,177 (JAMS 2001) (arbitrator ruled that flower sales by franchisor using toll free number and over internet did not encroach on franchisee’s existing territory).

33 Under the NFPA the prohibition against failure to renew except for good cause does not prohibit a franchisor “from providing that the franchise is not renewable or … is only renewable if the franchisor or franchisee meets certain conditions.” NEB. REV. STAT. § 87-404.

34 See Deutchland Enterprises, Ltd. v. Burger King Corp., 957 F. 2d 449 (7th Cir. 1992).

35 Presto-X-Company v. Beller, 253 Neb. 55, 62, 568 N.W. 2d 235, 239 (1997).

36 269 Neb. 411, 693 N.W.2d 548 (2005).37 Id. at 415; 693 N.W.2d at 552.38 Id. at 417; 693 N.W.2d at 553, 554.

Minnesota Franchises Act, MINN. STAT., Chapter 80C; New York Franchises Law, GEN. BUS. LAW, Article 33, §§ 680 et seq. ; North Dakota Franchise Investment Law, N.D. CENT. CODE, §§ 51-19-01 et seq.; Rhode Island Franchise Investment Act, R.I. GEN. LAWS, §§ 19-28.1-1 et seq.; South Dakota Franchise Investment Act, S.D. CODIFIED LAWS, §§ 37-5B-1 et seq.; Virginia Retail Franchising Act, VA. CODE ANN., tit. 13.1; Washington Franchise Investment Protection Act, WASH. REV. CODE, Chapter 19.100; Wisconsin Franchise Investment Law, WIS. STAT., §§ 553.01 et seq.

13 Issues sometimes arise under state franchise laws as to whether amounts paid by putative franchisees constitute indirect franchise fees. Compare Pool Concepts, Inc. v. Watkins, Inc., Bus. Franchise Guide (CCH) ¶ 12,249 (D. Minn. Jan. 29, 2002) (cooperative advertising fees paid by distributor constituted franchise fees) with R&A Small Engine, Inc. v. Midwest Stihl, Inc., 471 F. Supp. 2d 977 (D. Minn. 2006) (payments by distributor into a required advertising fund did not constitute indirect franchise fees).

14 See, e.g., WIS. STAT. § 553.03(4)(a)1.15 See Illinois Franchise Disclosure Act, ILL. COMP. STAT.

§ 705/8(a)(1) (exempting from the franchise registration requirements of the Act franchisors with a consolidated net worth in excess of $15,000,000).

16 See California Franchise Investment Law, CAL. CORP. CODE § 31109, (exempting a sale of a franchise to an entity with total assets exceeding $5,000,000).

17 See MINN. STAT. § 80C.03 (exempting a fractional franchisee from the registration requirement).

18 Alabama Deceptive Trade Practices Act, ALA. CODE, § 8-19-5; Alaska Sale of Business Opportunities Law, ALASKA STATUTES, §§ 45.66.010 et seq.; California Contracts for Seller Assisted Marketing Plans Law, CAL. CIV. CODE §§ 1812.200 et seq.; Connecticut Business Opportunity Investment Act, CONN. GEN. STAT. §§ 36b-60 et seq.; District of Columbia Consumer Protection Procedures Law, D.C. CODE §§ 28-3901 et seq.; Florida Sale of Business Opportunities Act, FLA. STAT. §§ 559.80 et seq.; Georgia Business Opportunity Sales Law, GA. CODE ANN. §§ 10-1-410 et seq.; Illinois Business Opportunity Sales Law of 1995, 815 ILL. COMP. STAT. §§ 602/5- et seq.; Indiana Business Opportunity Transactions Law, IND. CODE §§ 24-5-8-1 to 24-5-8-21; Iowa Business Opportunity Promotions Law, IOWA CODE §§ 551A.1 et seq.; Kentucky Sale of Business Opportunities Law, KY. REV. STAT. §§ 367.801 to 367.819 and 367.990; Louisiana Business Opportunity Sellers and Agents Law, LA. REV. STAT. §§ 51:1821 et seq.; Maine Regulation of the Sale of Business Opportunities Law, ME. REV. STAT. ANN. tit. 32, §§ 4691 to 4700-B; Maryland Business Opportunity Sales Act, MD. CODE ANN., BUS. REG. §§ 14-101 et seq.; Michigan Consumer Protection Act, MICH. COMP. LAWS §§ 445.902 and 445.903b; Minnesota Franchise Act, MINN. STAT. § 80C.01 Subd. 4(a)(iii); Nebraska Seller-Assisted Marketing Plan Act, NEB. REV. STAT. §§ 59-1701 et seq.; New Hampshire Distributorship Disclosure Act, N.H. REV. STAT. ANN. §§ 358-E:1 et seq.; North Carolina Business Opportunity Sales Law, N.C. GEN. STAT. §§ 66-94 et seq.; Ohio Business Opportunity Purchasers Protection Act, OHIO REV. CODE ANN. 1334.01 to 1334.15 and 1334.99; Oklahoma Business Opportunity Sales Act, OKLA. STAT. tit. 71, §§ 4-801 to 4-829; Oregon Unlawful Trade Practices Act, OR. REV. STAT. §§ 646.605 et seq. (revisions effective Jan. 2, 2012); South Carolina Business Opportunity Sales Act, S.C. CODE ANN. §§ 39-57-10 et seq.; South Dakota Business Opportunities Act, S.D. CODIFIED LAWS §§ 37-25A-1 et seq.; Tennessee Consumer Protection Act of 1977, TENN. CODE ANN. §§ 47-18-101 to 47-18-117; Utah Business Opportunity Disclosure Act, UTAH CODE ANN. §§ 13-15-1 et seq.; Virginia Business Opportunity Sales Act, VA. CODE ANN. §§ 59.1-262 et seq.; Washington Business Opportunity Fraud Act, WASH. REV. CODE §§ 19.110.010 et seq.

19 NEB. REV. STAT. § 59-1722. ➡



39 Id. at 421, 693 N.W.2d at 556.40 NEB. REV. STAT. § 87-402(1).41 152 F.3d 658 (7th Cir. 1998)42 The FTC recently revised its Business

Opportunity Rule. The original proposed revision would have eliminated the exclusion of bona fide wholesale prices for inventory from the definition of a required payment. This could have brought many traditional product distribution arrangements within the coverage of the rule. Later versions of the proposed rule retained the exclusion for bona fide wholesale prices from the definition of required payments. 16 C.F.R. § 437.1 (2010).

43 A number of cases from Wisconsin have considered the community of interest requirement. These cases suggest this requirement is intended to determine whether the manufacturer has a continuing financial interest in the distributor’s business or whether there is interdependence between the manufacturer and the distributor. In Ziegler Co., Inc. v. Rexnord, Inc., 407 N.W. 2d 873 (Wis. 1987) the Wisconsin Supreme Court used a ten part test to determine if the distribution arrangement in the case satisfied the community of interest requirements. These factors include the length of the relationship, the nature and extent of the parties’ obligations and the licensee’s investment in the concept.

44 Cases from other states have established significantly lower thresholds in determining whether the community of interest element is present. See Martin Investors, Inc. v. Vander Bie, 269 N.W.2d 868 (Minn. 1978); Metro All Snax, Inc. v. All Snax, Inc., Bus Franchise Guide (CCH) ¶ 10,885 (D. Minn. 1996); C & J Delivery, Inc. v. Emery Air Freight Corp., 647 F. Supp. 867 (E.D. Mo. 1986).

45 Rochelle B. Spandorf & Mark A. Kirsch, The Accidental Franchise, ABA 24TH ANNUAL FORUM ON FRANCHISING (2001); see also Kenneth R. Costello, Beata Krakus & Kristy L. Zastrow, From License Agreement to Regulated Relationship: the Accidental Franchise, ABA 32ND ANNUAL FORUM ON FRANCHISING (2009).

46 No. 8:07CV270, 2007 WL 2682245 (D. Neb. Sept. 7, 2007).

47 Id. at *8.48 No. 8:02CV406, 2004 WL 240556 (D.

Neb. Feb. 6, 2004)49 Id. at *3.50 Modern Computer Sys. v. Modern

Banking Sys., 858 F.2d 1339 (8th Cir. 1988).

51 871 F.2d 734 (8th Cir. 1989)(en banc).52 Citing Tele-Save Merchandising Co. v.

Consumers Distributing Co., 814 F.2d 1120, 1123 (6th Cir. 1987).

53 254 Neb. 299, 576 N.W. 2d 192 (1988).54 471 U.S. 462 (1985).55 No. 8:07CV400, 2007 WL 4180716 (D. Neb. Nov. 21, 2007).56 273 Neb. 1026, 734 N.W.2d 750 (2007).

ATTN: Firms WiTh 5 Or FeWer ATTOrNeys

*What Percent of the U.S. Population Do Lawyers Comprise?,” Wisegeek, www.wisegeek.com, viewed 11/1/11.Administered by: Marsh U.S. Consumer, a service of Seabury & Smith, Inc.

According to statistics, 78% of attorneys are in a solo practice or a firm with just two to five lawyers.* Yet many malpractice insurance companies and professional liability insurance brokers would rather focus on bigger firms with dozens or hundreds of attorneys.

Where does that leave smaller firms? Too often, firms find themselves with one-size-fits-all plans—paying more than they should or lacking crucial coverage, because they didn’t get expert advice to help them tailor coverage and premiums to the needs of a solo or small-firm practice.

Today you have a better option: Nebraska State Bar-Sponsored Professional Liability Insurance Program administered by Marsh U.S. Consumer, a service of Seabury & Smith, Inc.

Because this plan focuses on attorneys in solo and small firms, you’ll lock in a reliable package of professional liability protection—customized to the real-world risks facing firms of your size.

Put your firm’s priorities first with the professional liability program that specializes in taking care of solo and small-firm attorneys: Nebraska State Bar-Sponsored Professional Liability Insurance Program.

Call 866-236-6582 or visit www.nebarinsurance.com

Do you sometimes feel you’re an afterthought for companies that would rather focus on big law firms?

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America’s farm population is aging, and the future of small family farms hangs on how members of this retiring generation choose to pass on their life’s work.

Many retiring farmers don’t realize that they have more options than simply passing the farm within the family or selling it off. And when many farmers choose to sell their land, farmland continues to concentrate in larger and larger farms. As these big players buy up the available land, farmland becomes increasingly unaffordable for beginners, causing the permanent loss of opportunity for family farms, ranches, and rural communities.

Land linking programs combat this loss of small family farms, ensuring the continued existence and legacy of the small family farms that form the backbone of thriving rural communities. The Center for Rural Affairs’ Land Link program connects established landowners with younger farmers in a wide variety of work-in arrangements, allowing beginning farmers and established landowners to work together to ensure that the American independent farmer is here to stay.

To get involved with Land Link, interested landowners fill out a worksheet describing their operation. Land Link staff then talks with the landowner to review goals, desired linking relationship, and operation details before adding the operation to its landowner listings. Beginning farmers can then search the listings and contact those landowners whose needs, goals, and situations mesh well with their own.

When a landowner and beginner find common ground to work together, Land Link helps both parties acquaint themselves with the legal and financial issues involved in working out a transfer. Land Link’s website and staff inform participants about their options regarding transfer arrangements, tax incentives for partnering landowners, loan options, estate tax planning, and more in order to help them find a profitable and rewarding arrangement.

For established landowners, partnering with a new farmer or rancher through Land Link can take many forms. Every transfer arrangement must be carefully crafted with the unique needs of each partnership in mind. One fairly simple arrangement involved a young ranch couple buying their employer’s ranch through a 30-year mortgage from the landowner and a crop share lease. Payments after the landowner’s death were paid to his estate. Through this arrangement, the landowner secured his retirement income and money for his heirs while helping young farmers get started.

More complex work-in arrangements have included shared ownership, leasing, and more. One landowner worked with a new rancher who brought 30 head of his own cows to the ranch. The two ranchers worked out a 60/40 crop share arrangement that allowed for transition of the existing herd to the new rancher’s ownership and a rental arrangement for

feature article

Land Link Offers Opportunities for Land Transfer

by Amy Radding

Amy Radding

Amy Radding is the Center for Rural Affairs’ Rural Community Foods Intern. She graduated with a BA from Yale University in May 2011. Now, she’s working to connect the people who grow, distribute, and consume our food.

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machinery that included an option for the new rancher to buy the machinery later. The older landowner was able to slowly transition into retirement while working closer with the new rancher who would maintain his legacy.

For older landowners who want to reduce their workload or bring fresh energy without stepping away from farming, Land Link has facilitated partnership arrangements. An landowner who wanted to revitalize his downsized cattle finishing operation brought in a new farmer interested in building equity and gaining experience. The two set up a partnership in which they purchased cattle and borrowed operating costs (including a living allowance for the new farmer) together. Proceeds of the operation were split equally, and as income was received, the younger farmer reimbursed the partnership for his cost of living draws and used the remainder of his share to purchase farm equipment, one item at a time, from the landowner. The partnership resulted in a thriving operation with a bright future while helping both farmers achieve their goals.

Setting up a farm transfer or linking partnership requires good legal support. Land Link helps participants become savvy clients who can make good use of the legal services they need to negotiate work-in arrangements and retirement plans. Land Link is also a useful resource to refer to in helping farmer clients who are looking for advice on considerations of retirement income, long-term care payments, interests of heirs, and tax consequences.

With the help of Land Link’s resources and good legal advice and support, two generations of farmers can work out arrangements that benefit both. Landowners can secure their farms’ operation and legacy, bring fresh energy and strong hands to work the farm, and ease into a financially secure retirement, while beginning farmers can gain access to the land, financing, and experience they need to become successful.

For more information on Land Link’s services, visit http://www.cfra.org/resources/beginning_farmer/land_link or contact Virginia Wolking, [email protected] or 402-687-2103 ext. 1017.

LAND LINk

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173Telephone: 847-519-3600 Fax: 800-946-6990

Toll-Free: 800-844-6778www.landexresearch.com


As an attorney in private practice and public service for 45 years, I have been guided by a passion for the rule of law and our democracy. Serving as Nebraska’s chief election officer, I have had an unparalleled opportunity to focus that passion on fair, reliable and accessible elections.

I am deeply committed to promoting the right to vote and high voter turnout at all elections. If our democracy is going to work well, it requires active civic participation by citizens.

There is a lot of cynicism and discontent about politics in America today. Such dissatisfaction may translate into citizens dropping out as active voters or failing to register at all. We have to counter this by making every effort to get people to vote regularly.

The words “We the People” in the U.S. Constitution mean all of us. We own the federal government, as well as every other level of government, as a people. We are the stockholders who are electing our board of directors. If we elect qualified and dedicated leaders, we will get a high dividend in the form of good government.

I want to commend the Nebraska State Bar Foundation for the impressive work it does regarding law-related education.

I am very pleased that the Foundation has chosen “Democracy and the Duty to Vote” as its 2012 law-related education theme. This is a fitting theme for 2012, a presidential election year. The foundation and my office will cooperate closely to promote this voting theme.

One of my goals as secretary of state has been to promote civics education to Nebraska youth. During my 11-year tenure, we have interacted with several hundred thousand students through the schools. If we are going to preserve our rule of law and democracy, we have to make sure the torch of liberty gets passed to each generation.

This year, Nebraska citizens will be faced with two important statewide elections – the May 15 primary election and the Nov. 6 general election. This raises a key question: What kind of voter turnout will we have?

Nebraskans have demonstrated a strong commitment to voting in presidential elections. For example, Nebraska set a record in terms of the total number of voters – 811,923 (70.2 percent of registered voters) – in the November 2008 presidential election.

However, voter turnout is slipping in midterm general elections. Two of the last three midterm general elections have seen turnouts below 46 percent of registered voters.

Even more alarming is the disappointing turnouts in primary elections. Four of the last five primary elections have seen turnouts below 25 percent of registered voters.

The U.S. system of representative democracy works best when we have high turnout at all elections. Such civic participation fulfills the eloquent words of President Abraham Lincoln that we are a “government of the people, by the people, for the people.”

I need your help to get out the vote. Please encourage your family members, friends and work colleagues to vote in 2012. Make your mark!

feature article

Make Your Mark!by John A. Gale, Nebraska Secretary of State

John A. Gale

John A. Gale is the 26th Nebraska Secretary of State. He was appointed by Gov. Mike Johanns in December 2000, and then elected in 2002, 2006, and 2010. He grew up in Ogallala, received his J.D. from the University of Chicago, and practiced law in North Platte for 29 years.


TRIAL OF A SOFT TISSUE PERSONAL INJURY CASE

8:00 a.m – 4:00 p.m. • Friday, April 20, 2012

NATA is pleased to present a full-day interactive, informative seminar on all aspects of trying apersonal injury case from start to finish. You will take away new insight, techniques and get directanswers to your questions from seasoned trial advocates. During the morning session plaintiffand defense lawyers will present their perspective on voir dire, opening statement, presentationof the case, and closing argument. A presentation on ethical considerations in personal injurylitigation will also be included in the morning session. The afternoon session will be a trial demonstration before a jury panel on a soft tissue personal injury case. While the jury deliberates there will be a question/answer period, and it will be followed by a panel discussion on the jury results.

Our goal is that you will take this information and be more comfortable, confident, and proficient to try a case and get better results for your client.

Contact (402) 435-5526 or go to www.nebraskatrial.com

NEBRASKA ASSOCIATION OF

TRIAL ATTORNEYS

SEMINAR

TRIAL OF A SOFT TISSUEPERSONAL

INJURY CASE

8:00 a.m – 4:00 p.m. Friday, April 20, 2012Scott Conference Center

6450 Pine Street, Omaha, Nebraska

For program details, MCLE credit information,

and registration contact theNATA office at

(402) 435-5526 or go to www.nebraskatrial.com

If you feel there is nowhere to go with your problems, NLAP can help. We understand the competition, constant stress and high expectations you face as a lawyer. Dealing with these demands and other issues can be overwhelming. NLAP offers free, confidential support, because sometimes the most difficult trials lie outside of the court.

Nebraska Lawyers Assistance Program

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

Who counsels the counsel?


STORYSTORY

Illinois, In re Koukios, M.R. 24213 (Jan. 19, 2011).

Attorney Steven Koukios went to a Chicago apartment to meet with a lady named Shannon. Both Koukios and Shannon were subsequently arrested by police at the apartment and, as they were being transported to the Chicago Police Department, Koukios offered to represent Shannon at no charge. Shannon agreed, but Koukios did not disclose to her the potential conflict issues.

A few days after they were arrested, criminal complaints were filed against both Shannon and Koukios. Shannon was charged with prostitution and Koukios was charged with being in a “house of ill-fame or house of assignation”. Attorney Koukios filed an appearance as counsel on behalf of Shannon.

Attorney Koukios negotiated a plea agreement for Shannon and participated in the presentation of the agreement to the court. Shannon received a sentence of six months supervision in accordance with the plea bargain. The criminal case against Attorney Koukios was then called before the same judge. This came as a surprise to the judge because Koukios had not disclosed to the court that he had been arrested at the same time as Shannon.

The judge’s response was to direct that Shannon be brought before him. The court explained to Shannon that Attorney Koukios may have a conflict of interest and offered her the option of withdrawing her plea, but Shannon declined. Criminal charges against Koukios were later dropped.

In the attorney disciplinary prosecution based upon his representation of Shannon, Koukios was found to have violated Rule 1.7(b) of the Illinois Rules of Professional Conduct (representing a client when the representation of that client may be materially limited by his own interests) and Rule 8.4 (conduct that is prejudicial to the administration of justice).

Author bio

As a general rule, attorneys should not represent co-defendants in a criminal proceeding. The reason is that culpability is rarely evenly distributed. At some point in a criminal case, it is likely to be to one co-defendant’s advantage to point a finger at a fellow co-defendant. When this occurs, if the two parties are represented by the same counsel, the attorney is placed in a position of pitting the interests of one client against the interests of the other client.

If an attorney represents a client charged with a crime and the attorney faces a criminal prosecution arising out of the same incident, the conflict of interest becomes overwhelmingly obvious. This unusual scenario is presented in a case from

professional responsibility

“Choices are made in brief seconds and paid for in the time that remains.”

—Paolo Giordano

Representing Criminal Co-Defendants Is a Bad Idea — Especially If You’re One of the Co-Defendants

by Dennis G. Carlson

Dennis Carlson

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

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The Court issued a censure to Koukios and directed him to successfully complete a course on legal ethics.

A more traditional “representation of criminal co-defendants” case is presented by In Re Coleman, 793 N.W. 2d 296 (Minn. 2011).

In Coleman, a car occupied by S.A. and E.M. was stopped by the police. Both S.A. and E.M. were subsequently charged with possession of a controlled substance and illegal possession of a firearm. Both admitted that they possessed a controlled substance, but denied knowing that a firearm was in the car. Attorney Coleman was retained to represent both S.A. and E.M. but failed to disclose the potential conflict of interest to them.

After Attorney Coleman’s motion to suppress was denied, the prosecutor offered a plea bargain to Coleman that would be favorable to E.M. if E.M. would testify at trial against S.A. When the court became aware of this offer, it advised S.A. and E.M. that Coleman may have a conflict and arranged for E.M. to discuss the conflict with a different attorney. Afterwards, S.A. and E.M. consented to Coleman continuing to represent them.

The prosecutor later told Coleman that a new witness had surfaced who would testify that he purchased the firearm in question for S.A. Coleman responded that S.A. would testify that he sold the firearm to E.M. The prosecutor became concerned and notified the court of her belief that Coleman had a conflict of interest that was not waivable. Coleman subsequently confirmed to the court that S.A. would testify that he sold the firearm to E.M. and that E.M. would deny having knowledge of the firearm when he testified. S.A. then requested that Coleman’s representation be terminated and Coleman made a motion to withdraw.

The Supreme Court of Minnesota addressed the conflict as follows:

Coleman’s representation of S.A. would have required him to argue that S.A. sold the firearm to E.M., and would have therefore incriminated E.M. Simultaneously, Coleman’s representation of E.M. would have required him to argue that E.M. had no knowledge of the firearm, and would therefore have contradicted S.A.’s testimony.

Thus, Coleman was required to assert a claim for one client that was directly adverse to the interests of the other client. When Coleman became aware of the expected contradictory testimony of S.A. and E.M. and the resulting conflict of interest, he had a duty to withdraw from the representation unless he satisfied the requirement of Rule 1.7(b).

In consideration of Coleman’s conflict of interest, ethical violations associated with another client matter, and Coleman’s prior disciplinary history, the Court suspended Coleman for a minimum of six months. Upon reinstatement, Coleman will be under supervised probation for two years.

Concurrent conflicts of interest in Nebraska are regulated by Rule of Professional Conduct §3-501.7:

(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:

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

(2) there is a significant risk that the represen-tation 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.

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

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

(2) the representation is not prohibited by law;

(3) the representation does not involve the asser-tion 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.

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

PROFESSIONAL RESPONSIBILITY

JUDICIAL PERFORMANCE EVALUATIONThe Nebraska State Bar Association’s 2012 Judicial Evaluation Poll will be made available as an online survey. Every active lawyer will receive a postcard on March 5, 2012 asking

for an updated email address. On April 2, 2012, eligible members will receive an email link to the survey. If you wish to receive a hard copy of the poll, you may contact the Bar office

at 402-475-7091. Your thoughtful participation is important.


Lawyers and their clients are looking for expert advice on how to manage legacy data. Law firm leaders and managers have a responsibility to their firms, and to their clients, to be informed about how to properly store and steward electronic data. Traditionally, many law firms and their clients have simply “kept everything.” After all, storage is cheap – and many businesses have not wanted to spend adequate time, money and other resources to figure out what to do with all of the old data.

The concerns and responsibilities surrounding historic files and e-mails have expanded beyond e-discovery advice into proactive information governance policies and procedures. Law firms and business organizations alike tend to keep data storage devices such as backup tapes, old CDs, thumb drives, cell phones, and other media etc. well beyond what their compliance requirements or business needs dictate. These so-called “skeletons in the closet” pose a major problem when the organization gets sued or subpoenaed because all that

dusty, forgotten data is suddenly potentially discoverable. If a company has thousands or millions of backup tapes, the problem is greatly magnified. By being advised about, and recommending proactive management of legacy data, law firms will be saving themselves and their clients distress and major expense down the road.

It’s an easy equation – the less data you have to search through, the more money and time you will save when preserving, reviewing and producing data in e-discovery. Law firm leaders have a responsibility to advise their firms, and lawyers have a responsibility to counsel their clients, about the dangers of legacy data and how to minimize them. We suspect that many lawyers and law firms are simply intimidated, feeling themselves unequal to the task because their level of technical knowledge is not very high.

Working in tandem with IT and consultants, lawyers and law firms can initiate responsible handling of legacy data. Even with respect to smaller law firms, and smaller clients, action steps can be taken to proactively address legacy data concerns. Approaches for this include backup tape remediation, secure data destruction (shredding and melting of data media) and archiving. You also may have to deal with legacy data formats where software needs to be retained just to read the data, but that’s a whole different article. This article will share some of the useful tips, resources and strategies available for dealing with legacy data; ones which will help lawyers and law firms of all sizes get their own houses in order as well as aid them in appropriately advising their clients on information governance best practices.

So how do you get your client (or your partners and colleagues) interested in this very important issue? Start by asking them how much they enjoy risk. The answer is usually

technology tip

Managing Legacy Data - The Skeletons in the ESI Closet

by Sharon D. Nelson, Esq. & John W. Simek© 2011 Sensei Enterprises, Inc.

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

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“not much.” This opens the path to a conversation about how much legacy data actually exists in the organization, and how risk can be mitigated by proper management of it, and the potential consequences of a failure to do so. Having this discourse is probably the single most important step; identification of a serious problem and obtaining buy-in to resolve it.

Legacy data can be paper – files, photos, etc. stored locally or at a warehouse (and what is THAT costing?). It can also be old data backup tapes, data on decommissioned servers, piles of hard drives, CDs, flash drives, old cell phones, PDAs, data stored on active systems, all of which may be unused and sitting for years. It also may be data in the possession of third parties (in any of these formats).

Often, the organization does not have a records management/document retention policy (tsk, tsk). If one exists, it is frequently mildewed with age and generally ignored or forgotten. As law firms and their clients upgrade the technology they implement, they often give no thought to the archived data that remains from the previous technology regime. Then, when firms or companies merge or restructure, all of the existing data is thrown together without considering whether to “take out the trash.”

When the risks and potential consequences are explained and understood, you can often get folks to focus. Beyond the possible exorbitant costs incurred by e-discovery when legacy data is rife, there are also unneeded storage costs, the danger that orphaned and unguarded data may be leaked, and the possibility that unorganized and unmanaged data will somehow fall afoul of the very complicated regulations that govern data preservation in the compliance arena.

Is there a cost to suddenly wake up and smell the roses? Sure. If a law firm or one of its clients has mountains of legacy data that has gone unmanaged for years, it will take time and money to sort things out. You’ll have to do an ROI analysis along with the risk analysis to persuade all the stakeholders to sign off on an effort to govern the previously ungoverned data or dispose of it altogether.

Once you’ve gotten a green light, the real work begins as you identify all the reasons that certain data must be kept while the rest can be trashed. That’s a single sentence summarizing a huge effort. You’ve now got policies to write or to update and enforcement mechanisms to put in place. Does the entity have a litigation hold plan? Does it have a team to implement it? For law firms, does the plan comply with every rule or procedure required by any state bar with jurisdiction over the firm?

This whole miserable, time-consuming process is often identified as “legacy data remediation.” For larger organizations, it involves complicated matrixes and sampling techniques beyond the scope of this article. For smaller law firms it might include very time consuming processes and procedures that

significant firm leaders will need to be involved in overseeing for months or years. However, there is help available – such as companies and law firms that advise clients on tape remediation/restoration processes and strategies, including the following to name a few:

- LeClair Ryan - (www.leclairryan.com)

- Redgrave LLP - (http://www.redgravellp.com/)

- Kahn Consulting (http://www.kahnconsultinginc.com/rim-services-hold-everything-legal-hold-backup-tape-remediation.php)

-Index Engines - (http://www.indexengines.com/

- Litigation Logistics - (www.litlogix.com)

-Contoural - (www.contoural.com)

In addition, you can find policy/e-discovery help from the following resources:

-ARMA - (http://www.arma.org/)

-American Bar Association (http://www.americanbar.org/)

-The Sedona Conference (http://www.thesedonaconference.org/)

Back Thru the Future (http://www.backthruthefuture.com/) is one of our favorite companies for the secure destruction of data - once you know what you want to get rid of!

We know the folks at Index Engines, which is a company that has an appliance and process for large-scale tape remediation; a patented technology. To quote from their website, “Index Engines technology scans tapes and then searches and extracts specific files and email without the original backup software. This allows you to only deal with relevant files (less than 1% of the tape content) and not the bulk of useless content. Index Engines intelligent tape discovery solution has made tape remediation an achievable project.”

Jim McGann, the Vice President of Marketing for Index Engines has written several white papers on these topics. The title of one is “Make a Molehill Out of a Mountain” which is precisely the advice we have offered our readers earlier in this article.

He opens that white paper with an imaginary (but very close to the mark) conversation with a data storage manager:

Q. “How many backup tapes do you have?”

A. “I have no idea – probably thousands.”

Q. “Do you need to keep them?”

A. “No.”

Q. “Why don’t you recycle them?”

A. “Legal won’t let us.”

That is frighteningly like many conversations we have heard where the last line is always “Legal won’t let us.” In

TECHNOLOGY TIP


TECHNOLOGY TIP

headers can be scanned in minutes, only requiring manpower to load the tapes. Once the scan is complete, analyze the catalog and eliminate incremental backups, as well as backups of non-user data servers and blank tapes. This typically reduces the volume by 80%, turning a 10,000 tape job into a 2,000 tape job.”

You see the point – if you use efficient systems to achieve legacy data remediation, you do have to spend significant funds, but savings and risk mitigation are the huge benefits at the end of the process.

So what should your response be when you hear “Legal won’t let us?” We think maybe it ought to be “We’ll see about that.”

smaller law firms “Legal” might be dinosaur or pack rat partners who are either unwilling to modernize by letting go of the past, hesitant to allow anyone to help either them or the firm get organized, or simply too frightened of the unknown to dispose of anything. There’s no question that “Legal” is the major roadblock here. As Jim points out, typically the amount of data that needs to be retained for current or future litigation purposes is less than 1%.

What about the rest? Well, automated tape processing can help a lot. Jim gives this example “Assume a situation with 10,000 tapes in offsite storage. The first step would be to catalog the tapes to profile the content. Using a tape library, tape

OMAHA BAR ASSOCIATION – CREIGHTON LAW SCHOOL

Sixth Annual Seminar on Ethics & ProfessionalismFriday, April 13, 2012, 2:00 to 5:00 pm • Registration Begins at 1:30 pm

Hixson-Lied Auditorium in the Harper Center • 602 North 20 Street, Omaha

Welcome - OBA President Craig F. Martin & Creighton School of Law Dean Marianne Culhane

Rule 1.4 and a Lawyer’s Duty to Communicate with Clients - Professor Stephen C. Sieberson, Creighton Law School

Remarks from the Chief Justice - Honorable Michael G. Heavican, Chief Justice of the Nebraska Supreme Court

Update on Recent Ethics Decisions in Iowa and Nebraska - J. Scott Paul, Esq., McGrath North Mullin & Kratz

Accreditation for 2.5 Nebraska and 2.5 Iowa CLE ethics credits requested.The Omaha Bar Association is an accredited CLE sponsor in the State of Nebraska.

No charge to OBA Members and Creighton Law School Faculty and Students.

To reserve a seat, OBA MEMBERS and Students should RSVP by THURSDAY, APRIL 5, 2012 by calling or leaving a voice mail at 402-280-3607 or e-mail [email protected].

If you wish to obtain CLE credits, you MUST register in advance; include your bar number; and indicate credits for Nebraska, Iowa, or both.

NON MEMBERS should return this registration form with payment of $75 to Omaha Bar Association, 2133 California Plaza #150, Omaha, NE 68178. (Scholarships are available - see below.)

NAME: _________________________________________________ PHONE: ____________________________________

I would like: __________ Nebraska credits __________ Iowa credits __________ Nebraska Bar # __________ Iowa Bar #

_____ I would like to apply for a scholarship to this seminar. {To qualify, you must: (1) be a 2012 member of the NSBA (Bar # __________; (2) have been an attorney for less than five years (passed first bar in 2007 or after); and (3) have never been a member of the OBA.}

If you receive a scholarship, your $75 registration fee will be reimbursed, AND you are entitled to join the OBA upon submission of a membership application to the OBA. You will be notified prior to the seminar if you are one of the scholarship winners.


Nebraska Ethics Advisory Opinion for Lawyers

No. 11-06Questions Presented1. Can an out of state attorney represent a party in Nebraska arbitration?

2. If Rule § 505.5(c)(3) allows representation in certain instances, is the requisite relationship between the case in Colorado and the Nebraska arbitration present in this instance?

3. If such practice is unauthorized generally or in this instance, may an out of state counsel represent a party at arbitration under the appropriate supervision of a Nebraska attorney and what procedures need to be followed?

The Applicable Rule and Comments Rule § 3-505.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

COMMENT

[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court annexed arbitration or mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally uniform, foreign, or international law. Lawyers desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in which they are not otherwise authorized to practice law, should consult the [Model Court Rule on Provision of Legal Services Following Determination of Major Disaster].


DiscussionAn out of state lawyer admitted in another jurisdiction can participate in an arbitration in Nebraska, if that arbitration reasonably relates to the lawyer’s practice in another jurisdiction. Pro hac vice admission is not necessary unless the arbitration is, “in the case of a court annexed arbitration or mediation or otherwise if court rules or law so require.” (Comment 12 to Rule 3 505.5(c)(3)). While appearance in an arbitration may be the practice of law in Nebraska, I do not believe that it is the unauthorized practice of law for a lawyer admitted in another jurisdiction as set out below. Thus, pro hac vice admission would not be necessary for arbitration matters reasonably related to that lawyers practice in another jurisdiction.

Referring to Model Rule 5.5, the ABA/BNA Lawyers’ Manual on Professional Conduct provides:

Alternative Dispute Resolution

Subsection (c)(3) provides that lawyers may enter other states and provide services there if the services are reasonably related to an alternative dispute resolution matter arising out of the lawyer’s home state practice. See Cal. Code Civ. P. §1282.4 (post Birbrower statute specifying procedure that allows nonresident lawyers licensed elsewhere to appear in California arbitration proceedings); New Jersey UPL Op. 28 (1994) (out of state attorney participating in arbitration proceedings under American Arbitration Association rules not engaged in unauthorized practice of law). (at 21:2110).

‘Reasonably Related’ to Home State Practice

The “safe harbor” that is perhaps of most interest to lawyers comes in subparagraph (c)(4), which allows an out of state lawyer to engage in any nonlitigation practice in another state on a temporary basis when that activity arises out of or is “reasonably related” to the lawyer’s current practice.

The rule does not define “reasonably related” but suggests in the comments that a matter is reasonably related if: (1) there is an ongoing relationship with a client; (2) the client has “substantial contacts” with the jurisdiction where the lawyer is admitted; or (3) the lawyer has developed a recognized expertise in matters involving a particular body of federal, foreign, or otherwise nationally uniform law. See, e.g., Estate of Condon, 76 Cal. Rptr.2d 922, 14 Law. Man. Prof. Conduct 376 (Cal. Ct. App. 1998) (Colorado firm did not run afoul of California’s unauthorized practice statute when it advised Colorado resident on California probate of will it had drafted for client’s mother); Lindsey v. Ogden, 406 N.E.2d 701, 708 (Mass. App. Ct. 1980) (New York lawyer did not engage in unauthorized practice by coming to Massachusetts to oversee execution of will by Massachusetts client whose estate lawyer had planned in his New York office); In re Waring’s Estate, 221 A.2d 193 (N.J. 1966) (New York firm that had long association with now deceased New Jersey resident and his family did not engage in unauthorized practice when performing work for client’s estate in view of long term relationship with client and multistate connections and interests involved); In re Estate of Cooper, 746 N.W.2d 653, 24 Law. Man. Prof. Conduct 180 (Neb. 2008)

(under Rule 5.5(c)(4) exception for temporary activity arising out of lawyer’s home state practice, Tennessee lawyer did not violate Nebraska’s unauthorized practice rules by filing demand for notice in Nebraska probate proceeding on behalf of her Tennessee client). Cf. Ohio Supreme Court Ethics Op. 2002 4, 18 Law. Man. Prof. Conduct 425 (2002) (attorney not licensed in Ohio may enter state to take depositions if they are incidental to litigation occurring elsewhere).

According to the MJP Commission report, Model Rule 5.5(c)(4) is drawn from Section 3(3) of the American Law Institute’s Restatement (Third) of the Law Governing Lawyers (2000), which states that a lawyer may provide legal services within a jurisdiction where the lawyer is not admitted “to the extent that the lawyer’s services arise out of or are otherwise reasonably related to the lawyer’s practice” elsewhere.

Comment e to Section 3 of the Restatement offers further guidance. It lists several factors to consider concerning the propriety of extrajurisdictional law practice, such as “whether either the activities of the client involve multiple jurisdictions or the legal issues involved are primarily either multistate or federal in nature.” It also advises that the “customary practices of lawyers who engage in interstate law practice” are an appropriate measure of the reasonableness of a lawyer’s activities out of state.

In re Estate of Cooper, 275 Neb. 297, 307 09, 746 N.W.2d 653, 661 62 (2008), discussed the extra territorial practice of law as follows:

For its second assignment of error, First Tennessee claims that the county court erred as a matter of law when it concluded *308 that the demand for notice filed on behalf of First Tennessee by one of First Tennessee’s lawyers, who is not admitted in Nebraska, constituted the unauthorized practice of law. First Tennessee argues in effect that the county court misconstrued rule 5.5(c)(4) of the Nebraska Rules of Professional Conduct governing the unauthorized practice of law when the court concluded that Wright’s filing of the demand for notice violated the unauthorized practice of law statute, § 7 101. We agree with First Tennessee that the county court erred.

We note that the conduct complained of involves an attorney and occurred after September 1, 2005, and thus is governed by the Nebraska Rules of Professional Conduct. As noted above, rule 5.5(c) permits a lawyer who is licensed to practice in another state but has not been admitted to practice in Nebraska to nonetheless on a temporary basis perform certain legal actions in this jurisdiction, so long as those actions arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. Rule 5.5(c) describes activities that although performed by a lawyer not licensed to practice in this state, nonetheless do not violate § 7-101.

We have not had occasion to construe rule 5.5(c)(4). However, we find guidance in the comments that follow the rule. Comment [5] states in part:

There are occasions in which a lawyer admitted to practice

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in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts.

Comment [13] states:

Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide **662 certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted.... These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

*309 Finally, comment [14] states as follows:

Paragraph ... (c)(4) require[s] that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction.

We consider the factors listed in the comment quoted immediately above. The record reflects that First Tennessee is a Tennessee banking corporation, with its principal place of business in Memphis, Tennessee, the same city and state where Wright, the Tennessee lawyer who filed the demand for notice, maintains her law practice. First Tennessee is a client of Wright. The request for notice sought to have copies of all filings made in the underlying estate case mailed to Wright in the same state where she offices and First Tennessee has its principal place of business. The risk involved to either the client, the public, or the courts was de minimis. The filing of the request for notice was effectively an administrative matter and did not in and of

itself involve either rendering a legal opinion to First Tennessee or engaging in a legal contest on behalf of First Tennessee in Nebraska. Given these facts, we conclude that the county court erred as a matter of law when it determined that Wright’s filing of the demand for notice constituted the unauthorized practice of law under either rule 5.5(c) or § 7 101 and ordered the demand struck. We reverse such order.

Pro Hac Vice

Rule 3 106 provides for pro hac vice admission for those “having professional business in the courts of this state..”

Comment [12} to Rule 3 505.5 provides:

Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court annexed arbitration or mediation or otherwise if court rules or law so require.

ConclusionAn out of state lawyer admitted in another jurisdiction can participate in an arbitration in Nebraska, if that arbitration reasonably relates to the lawyer’s practice in another jurisdiction. Pro hac vice admission is not necessary to participate in arbitration, unless it is, “in the case of a court annexed arbitration or mediation or otherwise if court rules or law so require.” (Comment 12 to Rule 3 505.5(c)(3)). While appearance in an arbitration may be the practice of law in Nebraska, it is not the unauthorized practice of law for a lawyer admitted in another jurisdiction for matters reasonably related to that lawyers practice in that other jurisdiction. Thus, pro hac vice admission would not be necessary for arbitration unless it is by court annexed arbitration, or if some other rule or law applies for matters reasonably related to that lawyer’s practice in another jurisdiction.


Nebraska Ethics Advisory Opinion for Lawyers

No. 12-01a nebraska law firm may operate in different cities with different trade names and different attorneys

Question PresentedWhether a Nebraska law firm may operate in different cities with different trade names and different attorneys.

Factual Overview A Nebraska firm purchased a law practice from a sole practitioner in another Nebraska city. The sole practitioner continues to practice with the firm in his old office and is officially listed as “of counsel” status on the firm’s letterhead for that office only. The Firm desires to create separate trade names for their original office and their newly-acquired office in another city.

To avoid creating confusion among its clients throughout Nebraska, the Law Firm needs to clearly communicate that the sole practitioner in another city is a member of the firm, just operating out of a different office than the firm’s main office. The challenge in the present case is that there are not two firms with separate identities – there is one firm with two offices with the desire to have a different trade name in place for each of the offices. That would preclude use of “associated” or “affiliated” language to link the two offices. The Firm would have to explain the relationship between itself and the sole practitioner, to every client that used the sole practitioner’s office purchased by the firm.

Perhaps the firm should consider listing the sole practitioner as “of counsel” in both of its offices’ names. That would demonstrate an attempt to avoid confusion.

Avoiding confusion and preventing misleading information to be publicized are the objectives of this present case.

The Applicable Rule & CommentsStarting with the basic Rules of Professional Conduct, Rules 3-507.1 and 3-507.5 are instructive:

§ 3-507.5. Firm Names and Letterheads

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if:

(1) the trade name includes the name of at least one of the lawyers practicing under said name. A law firm consisting solely of the name or names of deceased or retired members of the firm does not have to include the name of an active member of the firm;

(2) the trade name does not imply a connection with a government entity, with a public or charitable legal services organization or any other organization, association or institution

or entity, unless there is, in fact, a connection; and

(3) the trade name is not otherwise in violation of Rule 7.1.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

COMMENT

[1] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm’s identity. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.

[2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.

§ 3-507.1. Communications Concerning a Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

With these above two rules, the firm needs to make sure the relationship between the partners of that firm are clearly articulated to clients of the former sole practitioner’s office that will go by a name which includes the former sole practitioner’s office. How to do this successfully is where the two firms run into trouble.

While not specifically applicable in the present case, a lawyer who opens a solo practice may conduct his or her business under any trade name that does not constitute a false or misleading communication about the lawyer or the lawyer’s services. A solo practitioner must take care, however, to insure that clients and potential clients are not misled as to the nature of his or her practice.

Rule 3-507.1(a) generally provides that: “A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 3-507.1.” Rule 3-507.1(a), in turn, prohibits lawyers from making a “false or misleading communication” concerning the lawyer or the lawyer’s services. A statement is false or misleading if it: contains a material misrepresentation of fact; omits a fact necessary to make the statement considered as a whole not materially misleading; or contains an assertion about the lawyer or the lawyer’s services that cannot be sustained. Id. § 3-507.1(a).

This general prohibition on materially misleading representations is applied to law firm names, in part, through Rule 3-507.5(d), which provides: “Lawyers may state or imply that they practice

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in a partnership or other organization only when that is the fact.” Thus, for example, lawyers who share office facilities but who are not, in fact, partners may not denominate themselves as, say, “Smith and Jones” because that title suggests a partnership in the practice of law that does not in fact exist. Rule 3-507.5, Comment [2]. More broadly, one may not use the name of a particular lawyer as part of the firm’s name if the lawyer is not associated with the firm or is not a predecessor of the firm. Id. at Comment [1].

Courts have applied Rule 3-507.5 and its commentary in a manner that furthers the general prohibition on a misleading firm name. Thus, it is commonplace that a firm name must reflect accurately the nature of the entity that bears it and the nature of the relationship of the lawyers who are affiliated with it. Since the former sole practitioner remains an active participant at his old office, along with lawyers from the purchasing firm’s office, using their names in the trade name for that office complies with Rule 3-507.5 (and, therefore, 3-507.1). The use of the former sole practitioner’s name with the other partner names in the formation of a trade name for the former sole practitioner’s office does not create the confusion that Rules 3-507.1 and 3-507.5 are trying to prevent. How to link the two offices while at the same time avoiding confusion is the next step in this present scenario.

The possibility for confusion between these two offices is particularly acute as the connection between and amongst the members of the differently named entities requires an explanation. If two lawyers who share offices maintain a continuing relationship akin to that of “of-counsel” association, they may hold themselves out as such, though they may not take the next step of misleadingly practicing under a trade name such as “Law Offices at X Square” which implies a unitary relationship. See N.Y. City Ethics Op. 1995-8 (1995); see also ABA Informal Op. 85-1511 (1985) (firm may name itself “The X Partnership” where X is a retired former partner).

Where the question is whether a particular form of firm name might mislead members of the public, the public’s actual confusion (or lack thereof) seems germane to the inquiry. It is, therefore, worth asking whether the public could actually be confused by the fact that the former sole practitioner’s office is actually a second office for the law firm.

As Rule 3-507.5, comment [1] explains, any analysis of trade names’ use should take into account broader constitutional considerations. The United States Supreme Court has held that the First Amendment protects commercial speech and that the public, generally, has a right to receive truthful and non-deceptive information. See Bates v. State Bar, 433 U.S. 350 (1977) (commercial speech serves individual and societal interests in assuring informed and reliable decision-making). To be sure, a state may regulate trade names where their use is deceptive, see Friedman v. Rogers, 440 U.S. 1 (1979), but the First Amendment clearly prohibits the regulation of lawyer

speech where such regulation is based merely on speculative harms. E.g. In re RMJ, 455 U.S. 191 (1982) (rejecting restriction on listing expertise); Peel v. Attorney Registration and Disciplinary Com’n of Illinois, 496 U.S. 91 (1990) (rejecting restriction on advertisement as trial specialist); Ibanez v. Florida Dept. of Business and Prof. Regulation, 512 U.S. 133 (1994) (rejecting listing of CPA qualification). As the Supreme Court has said: “[T]he States may not place an absolute prohibition on certain types of potentially misleading information. . . if the information also may be presented in a way that is not deceptive.” In re RMJ, 455 U.S. at 203.

Thus, at a minimum, in interpreting the Nebraska Rules of Professional Conduct, one should err on the side of permitting lawyers to choose their own trade names unless there is a clear indication that the name is deceptive or misleading.

Cases and opinions on lawyer’s speech make clear that the context of trade names, and their relationship with other trade-named firms, matters. Specifically, two firms may reflect their association with each other - but only in a manner that contextually makes clear the nature of their relationship. See ABA Formal Op. 94-388 (1994) (provides that if firms retain their own separate identities, but represent that they are an “associated” or “affiliated” firm of another firm, this form of networking is permissible under Rule 3-507.1 and 3-507.5 provided the clients receive “information that will tell them the exact nature of the relationship and extent to which resources of another firm will be available in connection with the client’s retention of the firm that is claiming the relationship.”); ABA Formal Op. 84-351 (1984) (law firms may list themselves as “Affiliated” or “Associated,” so long as communications regarding the nature of the firms’ relationship are clear and not misleading).

ConclusionPractitioners should exercise caution to insure that the manner in which they conduct their practice does not, in context, mislead clients or potential clients. Practitioners are also affirmatively obligated to correct any misimpression that might arise whenever they know or reasonably should know that a client may be confused. The steps that the firm proposes to take to inform their former sole practitioner’s clients is a necessity. In addition, it would benefit the firm if they amended their letterhead to more closely resemble the letterhead of both offices.

To avoid confusion, the letterhead of both offices should have both trade names with the names of the attorneys practicing at the respective offices listed under the respective trade name. This would show that the firm has proactively demonstrated the relationship between the two trade names while actively attempting to clarify the relationship between the two offices. These steps are required to be in compliance with Rules 3-507.1 and 3-507.5.


The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) withthe Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. TheCollective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, moststate and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may beobtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142,Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of theCollective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of theCollective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such stateor other jurisdiction. The Program is available through the Nebraska State Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no waya recommendation with respect to, any security that is available through the Program.

Who’s Watching Your Firm’s 401(k)?

C12-0201-010 (2/12)

At the end of the day...

Who’s Really Watching Your Firm’s 401(k)?And, what is it costing you?

YES NO

Does your firm’s 401(k) feature no out-of-pocket fees?

Does your firm’s 401(k) include professional investment fiduciary services?

Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors?

If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email [email protected] learn how we keep a close watch over your 401(k).


A number of legal scholars have examined what films have to say about lawyers and lawyering. Most of these excellent articles, books, and CLE presentations have examined the ethical issues raised by various films in which lawyers play a significant role. Kelly Anders’ new book takes a different focus, examining films for examples of skills lawyers can learn from the lawyers and other characters in a variety of classic films.

Each chapter focuses on a specific skill, such as (to be expected) “the skill of advocacy”, but also “the skill of

compassion,” the skill of negotiation,” “the skill of persuasion,” “the skill of judgment,” as well as some less expected skills, such as “the skill of marketing,” and “the skill of a keen sense of timing.” While the films that one associates with “reel lawyering” such as To Kill a Mockingbird, Twelve Angry Men, Judgment at Nuremberg, and Inherit the Wind are included in the lineup of films, a number of other films are also analyzed for the skills they model. Less frequently discussed films included in the book are Pinky, The Bachelor and the Bobby Soxer, The Man Who Shot Liberty Valance, and Sweet Smell of Success, among others.

Each chapter discusses the skill portrayed in the movie, analyzing the movie and how the characters embody the lawyerly skill that has been highlighted. The film discussion is followed by questions for discussion and a further set of exercises for improvement. These consist of experiences interested persons can seek out to improve the particular skill in question, such as advocacy, where as a practice exercise, she recommends taping yourself discussing an uncomfortable topic, and notice the changes in your voice and tone, since our voices tend to change under stress. Each chapter includes at least one exercise specifically for law students, while others can be used by lawyers already in practice.

The film discussions are engaging and the discussion questions and exercises are interesting and thought-provoking – even if you don’t implement them, they provide insight into the lawyering skills highlighted by this compact, readable, and entertaining guide.

book review

Advocacy to Zealousness: Learning Lawyering Skills from Classic Films(Carolina Academic Press, Durham, North Carolina, 2012)

by Kelly Lynn AndersReview by Kathryn Bellman

Kelly Lynn Anderskelly Lynn Anders is Director of Communications and Diversity at Creighton University School of Law. Before her legal career, she was a journalist and film reviewer. She has taught courses at the Art Institute of Colorado, University of Denver College of Law, McGeorge Law School, Washburn University School of Law, and the University of Nebraska at Omaha. She is the author of The Organized

Lawyer (Carolina Academic Press, 2009). For additional information, visit her website at www.theorganizedlawyer.com. Anders also serves on the Publications Committee for the Nebraska Lawyer magazine.


Run for the Roses2012 Barristers’ Ball

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most innovative pastry chefs in the country.” Katy currently works as a chef at Roberta’s Restaurant in Brooklyn, New York. Roberta’s was noted in the New York Times as “one of the more extraordinary restaurants in the United States”. The menu will be determined by Chef Katy and will include an appetizer, salad, entree, vegetable and starch, dessert, cocktails and wine pairings with dinner.

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in the second bedroom (sleeps 6-8 people). Other amenities include a washer/dryer, gas fireplace, full kitchen, internet and balcony.

THEY CALL IT THE BIG EASYCOME TO HISTORIC NEW ORLEANSEnjoy a complimentary 4-day/ 3-night stay in deluxe accommo-dations as guests of the historic Hotel Monteleone located in the heart of New Orleans’ French Quarter. Sitting at the foot of Royal Street, this historic hotel is your starting point for the French Quarter. From Jackson Square to the River Walk, enjoy modern shopping, great music, and historic sites in vibrant New Orleans! Package includes a $500 travel voucher.

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Lincoln or Omaha. Lakehouse sleeps 6 comfortably.


Auction Sponsor• The Daily Record

Band Sponsor• Marsh

Reception Sponsor• Jackson Lewis LLP

Dessert Sponsor• ABA Retirement Plan

Auction Program Sponsor• D4 Nebraska

Silver Sponsors• Baird Holm LLP• Bartle & Geier Law Firm• The Berry Law Firm• Bradford & Coenen, LLC• Cassem Tierney Adams Gotch & Douglas• Cline Williams Wright Johnson & Oldfather LLP• Creighton Law School• D4 Nebraska• Family and Juvenile Law Omaha, Christensen &

Madara-Campbell• Fraser Stryker PC LLO• Hauptman, O’Brien, Wolf & Lathrop, PC• Kalkwarf & Smith Law Offices, LLC• Kiewit Corporation• Knapp Fangmeyer Aschwege Besse & Marsh• Lamson Dugan & Murray LLP• Lieben, Whitted, Houghton, Slowiaczek &

Cavanagh, PC, LLO

• Locher Pavelka Dostal Braddy & Hammes, LLC• Matzke & Mattoon• Minnesota Lawyers Mutual Insurance Company• Mueller Robak LLC• Paychex• Schirber & Wagner LLC• Seiler & Parker, PC, LLO• Young Lawyers Section

General Sponsors• ADR Section• Agricultural Law Section • Bank Attorneys Section• Bankruptcy Section• Business Law Section• Corporate Counsel Section• Elder Law Section• Family Law Section• GWR Wealth Management• General Practice Section• Labor & Employment Law Section• Law Practice Management Section• Litigation Section• Nebraska Women’s Bar Association• Securities Law Section• Sibbernsen & Strigenz, PC• University of Nebraska College of Law• Women & the Law Section

Cab Ride Sponsor• Hauptman, O’Brien, Wolf & Lathrop, P.C.

2012 Barristers’ Ball

Run for the RosesApril 14, 2012

Hilton Hotel - Omaha

Please join the following law firms & corporate sponsors in purchasing a table at the 2012 Barristers’ Ball


Young Lawyers Section2012 Best Practices Seminar

Friday, March 23, 2012 • 9:00 am - 4:00 pmUniversity of Nebraska College of Law

*Nebraska & Iowa MCLE Accreditation pending. Estimated 6.0 total CLE hours.

REGISTRATION FORM: 2012 YLS Practice Seminar - March 23, 2012c YLS Members - $100 c Regular Fee - $125 c Law Student - $75 c Manual Only - $75

Name:______________________________________________________________Bar #_______________________Address:_______________________________________ City:__________________ State:_____ Zip:_________Telephone:____________________________________ E-Mail:________________________________________________ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEXAmount enclosed or to be charged $______________Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ |Security Code (located on back of card):_____________ Expiration Date:____________ Mo/YrPlease print name on credit card:__________________________________________________________________Credit card billing address (if different from above):__________________________________________________City:__________________________________________________ State:______________ Zip:_______________Signature:_____________________________________________________________________________________Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

8:30 am Registration (Continental breakfast provided)

9:00 am Labor & EmploymentRuth A. Horvatich & Aaron A. Clark, McGrath North Mullin & Kratz, PC LLO - Omaha, NE

9:50 am EthicsJohn W. Steele, Counsel for Discipline - Lincoln, NE

10:40 am Break

10:55 am Family LawAmie C. Martinez, Anderson Creager & Wittstruck, PC LLO - Lincoln, NE

11:45 am Lunch (provided)

12:15 pm Estate Planning Julianna Stitt Jenkins, Sennett Duncan & Jenkins, PC LLO - Broken Bow, NE

1:05 pm Criminal Law Sean M. Conway, Dornan Lustgarten & Troia, PC LLO - Omaha, NE

1:55 pm Break

2:10 pm Business FormationsDavid W. Rasmussen, Wolfe Snowden Hurd Luers & Ahl, LLP - Lincoln, NE

3:00 pm Judicial PanelHon. Robert R. Otte - Lancaster County Disrict Court; Chief Justice Michael G. Heavican - Nebraska Supreme Court

4:00 pm Adjourn


NSBA calendar

NSBA Events Calendar

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

23 2012 YLS Best Practice Seminar University of Nebraska College of Law

30 Dawson County CLE Program Central Community College, Lexington

April 2012 6 Weathering the Storm featuring Dustin Cole Embassy Suites, La Vista

10 Win Your Case with a Better Memory Scott Conference Center, Omaha

13 CREW Commercial Real Estate Workshop CenturyLink Center, Omaha

13 Crimmigration featuring Kevin Ruser Mid-Plains Community College, Broken Bow

14 2012 Barristers’ Ball Hilton Hotel, Omaha

May 2012 9-12 National Consortium on Racial & Ethnic Fairness in the Courts Hilton Hotel, Omaha

June 2012 1 3rd Annual NSBA Community Service Day

8 Government Practice Section Seminar University of Nebraska College of Law

15 NCLE Bank Attorneys Seminar Embassy Suites, La Vista

20 Real Estate Probate & Trust Section Legislation Meeting, Mahoney State Park, Ashland

20 Crimmigration featuring Kevin Ruser Eldorado Hills Country Club, Norfolk

22 9th Annual Greater Nebraska Golf Tournament Wild Horse Golf Club, Gothenburg

July 2012 13 NCLE Family Law Update Embassy Suites, La Vista

August 2012 13 NLF Charity Golf Tournament Quarry Oaks, Ashland

13 - 31 Quashing Hunger Food Drive

September 2012 14 NCLE Annual Real Estate Institute Embassy Suites, La Vista

October 2012 24 - 26 2012 NSBA Annual Meeting Embassy Suites, La Vista

December 2012 14 Advanced Negotiation Techniques featuring Martin Latz Location TBA, Omaha


Weathering the StormNew Techniques for Staying Successful in Tough Times

featuring Dustin ColeFriday, April 6, 2012

AM Session - 8:45 am - 12:00 pm • PM Session - 1:00 pm - 4:15 pmEmbassy Suites - La Vista • 12520 Westport Parkway • La Vista, Nebraska 68128-2198

*MCLE Activity #66745. 6.0 CLE hours including 2.0 hours ethics.

AM Session: Ethical Marketing for the New Economy• The “four horsemen” of change and what they mean to you• The essential “layers” of your marketing, and what you must be doing in each• The ethical rules for referral marketing and how they create your key distinction• Social media: how to use the new technologies of marketing without being a geek• How to turn more prospects into clients – who pay their bills

PM Session: Turning Time Into Money: New Rules for Working Smarter • The (profitable) distinctions between a “practice” and a “legal business”• How to rebuild your foundations, recover lost bill-able time, and deliver your best work

• Identifying what technology is essential and what is hype• How “practice management” becomes “risk man-agement” – and produces higher profit• How to build a new virtual and “on demand” struc-ture for decreased costs & greater profit

Dustin Cole defines his work as helping attorneys transform their practices into highly successful legal businesses. In his more than twenty years of work with law firms ranging from sole practitioners to firms of over 2,000, he has helped thousands of attorneys surf the waves of change, seize opportunities, and grow their revenues. Over the past decades he has conducted CLEs in conjunction with more than 30 state bar associations, and has personally trained over 30,000 attorneys through his workshops, training programs, and personal practice development coaching.

A storm of change is battering the legal profession. How can you survive and prosper in the new business environment?

REGISTRATION FORM: Weathering the Storm - Dustin Cole - April 6, 2012c AM Session (8:45 am - 12:00 pm) - $149 c PM Session (1:00 pm - 4:15 pm) - $149c Both Sessions - $270 Name:______________________________________________________________Bar #_______________________Address:_______________________________________ City:__________________ State:_____ Zip:_________Telephone:____________________________________ E-Mail:________________________________________________ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEXAmount enclosed or to be charged $______________Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ |Security Code (located on back of card):_____________ Expiration Date:____________ Mo/YrPlease print name on credit card:__________________________________________________________________Credit card billing address (if different from above):__________________________________________________City:__________________________________________________ State:______________ Zip:_______________Signature:_____________________________________________________________________________________Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098


(Transcript of Justice Heavican’s address to the Legislature)

Mr. President, Mr. Speaker, Members of the Legislature, and fellow Justices of the Nebraska Supreme Court. I would like to thank the members of this body, and specifically thank the Speaker for inviting me to address you again this year. It is always a great honor for me to report on the Court’s past year and discuss the Court’s future. But first I will introduce my fellow Justices of the Supreme Court.

To my immediate left is Justice Kenneth Stephan of Lincoln. And to Justice Stephan’s left is Justice Lindsey Miller-Lerman of Omaha. To my immediate right is Justice John Wright of Scottsbluff. Next to Justice Wright is Justice John Gerrard of Norfolk. To the right of Justice Gerrard is Justice Michael McCormack of Omaha. Justice William Connolly of Hastings is unable to be with us this morning.

Today I will speak to you about the elderly and children in our courts, technology and the future of our courts, and the Court’s budget, emphasizing our commitments to cooperation, accessibility, affordability, and accountability.

1. The Elderly in the CourtsI will first speak to you about the elderly in our courts.

Last year this Legislature responded to a report from a committee which studied the status of adult guardianships and conservatorships in the Nebraska court system. The Committee’s recommendations were incorporated into LB 157, sponsored by Senator Colby Coash, which was passed unanimously as the Guardianship Reform Act of 2011. Your actions were both timely and far-sighted.

While the total population of the State is expected to grow 11 percent by 2030, the number of Nebraskans between the ages of 70 and 79 is expected to grow by more than 80 percent during that same time. We expect the number of guardianships and conservatorships to likewise grow dramatically in the next two decades.

The statutory changes in LB 157 went into effect on January 1 of this year. Among other provisions the new law requires background checks for guardians and conservators, and mandates bonds for conservators when the assets of a ward are greater than $10,000.

The courts have finalized the changes called for by the statute. All of the necessary forms, as well as informational guides and links to statutes and court rules, have been made available on the judicial branch website at www.supremecourt.ne.gov.

In addition, training is being offered for court staff, judges, financial institutions, guardians, and conservators. We are aided in this process by the Nebraska State Bar Association and individual lawyers and volunteers throughout the State.

These efforts have resulted in Nebraska’s recognition as a national leader in this area. Other states have contacted us to review our reforms. The National Center for State Courts has established a link on its elder law website for information about the changes in the guardianship and conservatorship procedures here in Nebraska.

None of us is naïve enough to believe that elderly persons will no longer be subject to abuse. But the statutory changes made by this Legislature, which are being implemented by the judicial branch, will provide for better checks and balances. We appreciate the willingness of this body to provide increased protection to the vulnerable elderly of our State.

The Nebraska Supreme Court will continue to make every effort to ensure that these legislatively mandated changes to guardianships and conservatorships will be effectively administered.

2. Children in the CourtsLikewise, the courts have a number of innovative projects

concerning children in the courts. Although time does not allow me to speak about all of these projects, I will address several of them.

LR 37 Report

I first note that the Court read with interest the LR 37 report issued by your Health and Human Services Committee, under the leadership of Senator Kathy Campbell. We are humbled by the report’s vote of confidence in the courts. We acknowledge with gratitude the Committee’s charge to the courts and will use all available resources to continue to explore and implement innovative programs for Nebraska’s children.

Inter-branch Agreement

Consistent with LR 37, the courts have participated in inter-branch cooperation on several levels. On a statewide level, with the help of the Casey Family Programs Foundation, a working group has been convened comprised of representatives from all three branches of state government. The purpose of this group is to identify solutions to the ongoing issues relating to children in the state foster care system.

State of the Judiciary Address January 2012

Chief Justice Michael G. Heavican

court news

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COURT NEWS

Juvenile Service Delivery Project

I have also previously spoken to you about a project developed and operated by the Court’s Office of Probation Administration, led by Probation Administrator Ellen Brokofsky. The Nebraska Juvenile Service Delivery Project is run in conjunction with the Department of Health and Human Services. This project allows children, found to have violated the law, to receive necessary rehabilitative services without those children being made wards of the State.

The pilot project, currently operating in Douglas County, has shown great promise. While under probation supervision, 635 juveniles were able to access rehabilitative services without becoming State wards. And 83 percent of the juveniles participating in the project were served while remaining in their own homes.

We think this program is both efficient and effective. We hope the program will be fully funded and expanded to at least one county in rural Nebraska. In particular, we thank Senator Bob Krist for his ongoing support in seeking full funding for this program.

3. Community-Based Services/ProbationThe Court’s probation officers not only provide programs

for children, they also provide Nebraska’s only comprehensive system of community-based corrections for adults.

The Community Corrections Council was statutorily abolished during the last legislative session. However, the commitment to continue to provide meaningful sentencing alternatives through community supervision initiatives remains strong under the Court’s Office of Probation Administration.

Significant strides have been made over the past six years to offer specialized probation programs and to offer participation in problem-solving courts as viable alternatives to imprisonment. These community-based programs are both effective and far less costly than incarceration.

As an example, Probation’s nationally recognized Specialized Substance Abuse Supervision Program is intended for individuals charged with a drug offense and assessed to be at high risk to reoffend. Each participant has a story to tell about the personal impact of the program. It is not unusual for successful participants to say this program has saved their families and saved their lives.

Likewise, Nebraska’s 25 problem-solving courts perform a similar service. They have just undergone an extensive evaluation by the University of Nebraska Public Policy Center. Preliminary results indicate that these courts can also make dramatic changes in the lives of drug-addicted non-violent offenders by providing challenging rehabilitative programs rather than costly incarceration.

Nebraska Court of Appeals Chief Judge Everett Inbody, State Court Administrator Janice Walker, and I are regularly joined by Senators Kathy Campbell and Brad Ashford in meetings with Department of Education Commissioner Roger Breed and others, including Department of Health and Human Services Chief Executive Officer Kerry Winterer. This group continues to search for practical ways to improve service delivery in child welfare cases in our juvenile and county courts.

On the local level, we work to improve the court system for abused and neglected children across the State. This is being accomplished by utilizing the Court’s “Through the Eyes of the Child Initiative.”

Every judicial district has teams headed by local county or juvenile court judges, which work to find better, speedier ways to deal with families and children in our juvenile courts. Our Through the Eyes of the Child teams are available as local forums to the Department of Health and Human Services for discussion as the Department strives to meet its obligations to children in foster care across the State.

I want to cite in particular several local teams. First, i would like to recognize the Dawson County Through the Eyes of the Child team, led by Judge Carlton Clark. The Dawson County team has conscientiously worked to move its child welfare cases forward, continually outperforming the rest of the State.

Today I also acknowledge the efforts and leadership of the Douglas County Separate Juvenile Court Judges who are working with the Douglas County Attorney, the Douglas County Public Defender, the Department of Health and Human Services, guardians-ad-litem, courtappointed special advocates, and others to expedite permanence for children in that court.

I challenge all involved in that difficult process to find answers to the question: “How can we best serve the families and children in Omaha, Nebraska?”

Truancy

No timely discussion of children in the courts would be complete without addressing truancy. Last year I stated that “truancy is a major contributing factor to underperformance and underachievement of our State’s young people.” With the passage of Senator Ashford’s LB 800 during last year’s legislative session, truancy was brought to the forefront and much progress has been made in addressing the issue.

I would like to thank Nebraska’s county attorneys, school administrators, and others who instituted changes on a local level by addressing truancy issues prior to formal court involvement. By focusing our efforts on prevention and on diversion of truants before they enter the court system, all parties benefit. The courts’ resources should be reserved for the most difficult truancy cases. Programs in Douglas, Hall, Saunders, Lancaster, and other counties have been effective in doing just that.


COURT NEWS

also allow online payments of other court fines and costs, including civil judgments, criminal fees and fines, restitution, and probation fees. All combined, collections through the Court’s ePayment systems totaled nearly $9.5 million in 2011.

5. The Future of the CourtsThe Judicial Branch continues to look to the future and

plan for greater efficiencies. I am pleased to report to you that the Nebraska Supreme Court’s Re-engineering Committee has now established an ongoing relationship with the National Center for State Courts.

The National Center will assist our Judicial Branch with the establishment of pilot projects pertaining to centralized fine collection, remote review of guardianship/conservatorship accountings, technology enhancement, and the sharing of court services across county lines. These projects, designed to enhance efficiency and better utilize staff resources statewide, will begin in 2012.

For example, court employees in Colfax County will be able to process electronic filings for court employees in Douglas County, or a court employee in Knox County will be able to review a guardian’s annual accounting filed in Adams County. Our probation staff in one county can transcribe pre-sentence investigation reports for our staff in another county.

4. Technology in the CourtsI turn now to technology in the courts. As I spoke to you last

year, the court system was looking forward to integrating both the Douglas County District Court and the Douglas County Separate Juvenile Court into the Court’s statewide case management computer system. That mission has been accomplished.

We are now one of only a few court systems in the nation that have a statewide comprehensive case management system. This system allows for electronic filing of cases, electronic payment of fines, and electronic viewing of court records 24 hours a day, as well as improved collection of statistical data.

We are making great progress in the area of electronic filing of cases. An example of the efficiency and cost savings that eFiling brings to the Court system is shown by last December’s new county court civil filings: In December 2011, 63 percent of the total civil filings in the State’s county courts were done electronically, saving several thousand hours of staff time.

Our ever-increasing use of technology in the courts has also helped to improve overall productivity in the area of payment collections. In 2011, our electronic payment system for traffic fines collected over $6.3 million -- an increase of over 25 percent from the previous year.

Through our partnership with Nebraska.gov, our courts

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COURT NEWS

important anniversaries that took place in 2011.

First, we celebrated the 20th anniversary of the Nebraska Court of Appeals, which has greatly improved the delivery of justice in Nebraska. Prior to the establishment of the Court of Appeals, some cases languished for years before being decided. The appellate docket is now current and the Court of Appeals, as well as the Supreme Court, continues to innovate and find ways to expeditiously handle our appellate cases.

Last year also marked the 20th anniversary of the Dispute Resolution Act, which formally established the use of mediation in Nebraska courts. The Office of Dispute Resolution of the Nebraska Supreme Court partners with Nebraska’s nonprofit mediation centers in Fremont, Kearney, Scottsbluff, Beatrice, Lincoln, and Omaha to provide mediation and dispute resolution to Nebraska’s courts and citizens. Mediation is a major component in the Parenting Act passed by this Legislature in 2007.

Neither of these anniversaries would have been possible without the foresight of former Supreme Court Chief Justice William C. Hastings, who passed away in 2010. Chief Justice Hastings was the driving force behind the creation of these two entities, and the Supreme Court honored him in a memorial service held this past December.

ConclusionI would like to end by noting, as I have in the past, that

our courts perform the constitutionally mandated role of providing access to justice for all Nebraska citizens. And I want to reiterate that the judicial branch is committed to efficiently fulfilling that critical role.

We continue to be committed to cooperation, to making the judicial branch and its services accessible and affordable, and to being held accountable.

Thank you for this opportunity to speak with you today. And thank you for the good work you do for the courts and for the citizens of Nebraska.

Additionally, Judge Anne Paine of McCook will conduct a pilot project in the 17 counties that comprise the 11th judicial district. One employee will oversee collection of fines and costs for all county courts in the district.

It is hoped that these projects can serve as models for rural courts and allow us to preserve jobs in communities with fewer needs, while easing the burden of courts which have greater demands on staff time.

I also wish to note that the Nebraska Association of County Officials has included working with the Court’s Reengineering Committee in its recommendations for county government in the future. I am pleased by NACO’s recommendation that its 2020 Committee cooperate with the Court’s Re-engineering Committee to develop procedures and technology that are efficient and economical. We are indebted to county governments across the state who partner with us in all 93 counties and provide facilities and operating expenses for the trial courts and probation.

6. The Court’s BudgetThe Court’s personnel expenses, however, are paid from

the State’s budget. I appreciate the Legislature’s recognition of the unique role of the judicial branch and the assistance we received during the last two budget cycles.

Although our budget was reduced several times, through cost-saving measures and the efforts of our court and probation staff, we have been able to maintain access to justice for all Nebraskans. With your help, we have not had to close courts or jeopardize court and probation services -- actions which many other state courts were forced to take in order to survive budget reductions.

I am very proud of the sacrifices our court and probation employees have made by stepping up to the challenge of doing more with less. These employees are continually learning new skills and adapting to new methods to meet our constitutional responsibilities.

7. AnniversariesAs the judicial branch looks ahead to its role in providing

services to Nebraska’s citizens, we also wish to look back at two

Judgment Interest RateEffective January 19, 2012, the judgment interest rate is 2.056%.

http://supremecourt.ne.gov/community/judgment-interest-rate.shtml


NCLE calendar

March 2012

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

23 2012 YLS Best Practices Seminar University of Nebraska College of Law, Lincoln

30 Lexington Ethics Seminar Central Community College, Lexington

April 2012

6 Weathering the Storm featuring Dustin Cole Embassy Suites, La Vista

10 Win Your Case With a Better Memory Scott Conference Center, Omaha

13 CREW Commercial Real Estate Workshop CenturyLink Center, Omaha

13 Crimmigration featuring Kevin Ruser Mid-Plains Community College, Broken Bow

27 Adolescent Brain Development and Its Influence on Behavior featuring Dr. Shawn C. Marsh Council Chambers of the City/County Building

May 2012

9-12 National Consortium on Racial & Ethnic Fairness in the Courts Hilton Hotel, Omaha

June 2012

8 Government Practice Section Seminar University of Nebraska College of Law, Lincoln

15 NCLE Bank Attorneys Seminar Embassy Suites, La Vista

20 Crimmigration featuring Kevin Ruser Eldorado Hills Golf Club, Norfolk

July 2012

13 NCLE Family Law Update Embassy Suites, La Vista

20 Real Estate Probate & Trust Section Legislation Meeting Mahoney, Ashland

August 2012

8 Crimmigration featuring Kevin Ruser New World Inn, Columbus

September 2012

14 NCLE Annual Real Estate Institute Embassy Suites, La Vista

October 2012

24-26 2012 NSBA Annual Meeting Embassy Suites, La Vista

December 2012

14 Advanced Negotiation Techniques featuring Martin Latz Location TBA, Omaha

NCLE Calendar

Nebraska Continuing Legal Education Supported by:

The Winthrop & Frances Lane Foundation


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24th Annual Conference of the

National Consortium on Racial and Ethnic Fairness in the Courts

Wednesday, May 9, 2012 - Saturday, May 12, 2012Hilton Hotel - Omaha, Nebraska

Hosted by the Nebraska Minority Justice Committee

About the ConferenceThe National Consortium for Racial and Ethnic Fairness in the Courts has been working since 1988 with the highest courts of each state to create commissions and task forces to examine the treatment of minorities in those courts, and to provide technical assistance and expertise on the subject of racial and ethnic fairness in the courts. At its annual meeting each year, the National Consortium brings together thought leaders and delegates of state justice systems from around the country to share their collective knowledge about best practices within their court systems for achieving fairness and access to justice for all.

Conference HighlightsRecognizing the ever-changing landscape and the increasing challenges that face justice systems committed to achieving the promise of “equality before the law”, the 24th Annual Conference of the National Consortium invites conference attendees to promote the work of institutional change locally by applying the lessons learned and tools acquired through this national exchange of engaging ideas, practical strategies, and concrete solutions. The conference offers programs on a broad range of topics across four primary areas: addressing language barriers, enhancing diversity and cultural competence, addressing racial disparity, and building capacity to effect change.

CLE Credit InformationThe Consortium has been approved for 13.5 ethics CLE/JBE credits for Nebraska attorneys and judges and 12.25 CEU credits for Nebraska law enforcement and Nebraska county attorneys. Accreditation in other states will be made upon request.

About the Report of the StatesWith decades of experience in examining and addressing issues of racial and ethnic fairness in the courts, one of the greatest benefits to conference participants is the Consortium’s ability to connect participants with experts and information on current activities and reforms taking place across the country. In addition to attending the programs offered at the annual conference, each state is invited to take part in expanding this knowledge base by participating in the “Report of the States.” A delegate from each state is invited to submit a two page written report (to be disseminated to conference attendees) and provide a brief oral report regarding activity and pressing issues being addressed in their state so that conference participants can make connections across areas of common interest. Further instructions will be sent to those volunteering to serve as the presenting representative from their state. States are invited disseminate useful materials, reports, etc. at this time to conference attendees.

About the Chief Standing Bear Celebration on May 12, 2012This year’s conference takes place in conjunction with Nebraska’s 7th Annual Chief Standing Bear Breakfast. This annual event honors and celebrates Chief Standing Bear’s enduring message of “Equality Before the Law” on the 133rd Anniversary of the Standing Bear v Crook decision. The 2012 event will feature keynote speaker Larry Ecohawk, Assistant Secretary of Indian Affairs, and enrolled member of the Pawnee Nation of Oklahoma. In addition to Native Art exhibits and cultural performances, the event will also recognize the 2012 recipients of the Humanitarian Award, Organizational Award, Scholarship Recipients, and winners of the McDonalds Chief Standing Bear Essay Contest.


Hotel AccommodationsThe conference is being held at the Hilton Hotel in Omaha (1001 Cass Street), a four diamond luxury hotel located just blocks away from Omaha’s Old Market area. Participants must make their own hotel reservations. A block of rooms is being held at the conference rate of $142 per night plus tax which includes complimentary internet access in guestrooms for the duration of the conference (from Tuesday through Saturday). To receive the conference rate, all reservations must be made by 5:00 p.m. on April 18, 2012. To make hotel reservations, call 1-402-998-3400 and mention the NCREFC to secure the convention rate or register online at: http://www.hilton.com/en/hi/groups/personalized/O/OMACVHH-NCS-20120508/index.jhtml?WT.mc_id=POG

TransportationThe Hilton offers a 24-hour complimentary shuttle service to and from the airport and to the Old Market, a premier arts and entertainment district.

EntertainmentOn May 11, 2012 there will be an evening reception at the Durham Museum. Originally designed as Omaha’s “Union Station” in the 1930s, the Durham is one of finest examples of Art Deco architecture in the United States. The Museum offers a fascinating look at the history of the region and a broad-range of traveling exhibits. If you are thinking about flying in early or staying late in Omaha, or just want something to do in the evening after the meeting events, this website provide information about the events and attractions going on in the Old Market: Omaha’s Art and Entertainment District: http://www.oldmarket.com/

Thank you to the Sponsors of the 2012 National Consortium on Racial & Ethnic Fairness in the Courts

Conference Sponsor

• Union PacificPlatinum Level Sponsors

• Jackson Lewis• Stinson Morrison Hecker

• Thomson Reuters

• ABA Retirement• Casemaker• Creighton University and Creighton University School of Law• Daily Record • Legal Aid of Nebraska

• Minnesota Lawyers Mutual• NSBA Women in the Law Section• Ponca Tribe• UN College of Law• UN School of Criminology and Criminal Justice

Gold Level Sponsors


Regular (By April 18, 2012) Late (After April 18, 2012)

Attorney & Judge Registration

• Full Conference Attorney CLE (13.5 ethics hours) c $225 c $250• Thursday, May 10th c $112.50 c $125• Friday, May 11th c $112.50 c $125

Other Justice System Professionals

• Full Conference c $100 c $125• Thursday, May 10th c $50 c $62.50• Friday, May 11th c $50 c $62.50

Guest Meals/Social Events Only• Wednesday, May 9th Reception c $25• Thursday, May 10th Luncheon c $25• Friday, May 11th Luncheon c $25• Friday, May 11th Reception/Tour of Durham Museum c $25• Saturday May 12th, Chief Standing Bear Breakfast c $25

Return the completed registration form to NSBA, PO Box 81809, Lincoln, NE 68501 or fax to 402-475-7098. Registration is also available online at www.nebar.com

Name:________________________________________________________________________________________Title:__________________________ Affiliation:______________________________________________________Address:____________________________________________________________________________________________________________________________________________________________________________________City:________________________________ State:___________ Zip:________________Country:_______________Email:_________________________________________________________________________________________Phone:________________________________________ Fax:____________________________________________Special Needs (Physical or dietary):__________________________________________________________________

c Check here if you will be reporting in The Report of the States on behalf of your State.

National Consortium on Racial and Ethnic Fairness in the Courts

c Enclosed is a check for $________ payable to Nebraska State Bar Association (NSBA)Charge $________ to c MasterCard c Visa c Discover c AMEX

Card number:______________________________________________________ Expiration date:______________ (Mo/Yr)

Security Code (3 or 4 digit security code printed on back of card):_____________

Name as it appears on card:_______________________________________________________________________________

Billing Address (if different from address provided above):_____________________________________________________

______________________________________________________________________________________________________

Signature of cardholder:__________________________________________________________________________________

May 9 - 12, 2012 • Hilton Hotel - Omaha, NEConference Registration Form

Cancellation and Refund Policy: Cancellations of registration must be made in writing via fax to 402-475-7098. A refund minus a $75 processing fee will be issued for cancellations received by 5 pm on April 18, 2012. A refund minus a $100 processing fee will be issued for cancellations received by fax after 5 pm on April 18 - May 2, 2012. No refunds will be issued for “no shows” or for cancellations received after 5 pm on May 2, 2012.


Wednesday, May 9, 20123:00 pm NCREFC Board Meeting4:00 pm Registration

6:00 pm c Welcome Reception

Thursday, May 10, 20127:45 am Continental Breakfast8:30 am Opening Ceremony9:00 am Plenary Sessionc Chief Standing Bear’s Journey for Justice - Joe Starita10:30 am Breakout Sessions

c A1 - Language Access Assessment and Planning - Department of Justice

c A2 - Hot Spot Policing: How Law Enforcement Uses Data to Define Target Areas - Panel

c A3 - Reviewing Applicants: Research on Bias and Assumptions - Eve Fine12:00 pm Luncheon Speakerc Unfinished Business: Racial Equality and American History - Michael Klarman2:15 pm Breakout Sessions

c B1 - Coerced Confessions: Bilingual Police Interrogations - Susan Berk-Seligson

c B2 - Strangers in a Strange Land: Immigration & the Law, Part 1 - Panel

c B3 - Beyond Diversity into Inclusion - Arin Reeves3:45 pm Breakout Sessions

c C1 - Effectively Using Court Interpreters - Laura Garcia-Hein

c C2 - Strangers in a Strange Land: Immigration & the Law, Part 2 - Panel

c C3 - The Next IQ: Diversity & Leadership - Arin Reeves5:00 pm Adjourn for the day

Friday, May 11, 20127:45 am Continental Breakfast and Annual NCREFC Business Meeting9:00 am Plenary Sessionc Implicit Bias and the Justice System - Jeff Rachilinski10:30 am Breakout Sessions

c D1 - Task Force on Domestic Violence and Indian Women - Department of Justice

c D2 - Navigating the Grant Writing Maze - Monica Miles-Steffens & Toni Ahrendt

c D3 - Juvenile Detention Alternatives Initiative - Casey Foundation

c D4 - Race and Reducing Failure to Appear - UN Public Policy Center

c D5 - Equal Justice Initiative: Illegal Discrimination in Jury Selection - Brian Stevenson12:00 pm Luncheonc American Swastika: Inside the White Power Movements Hidden Space of Hate - Pete Simi2:15 pm Breakout Sessionsc E1 - Refugee Populations and the Courts - Mary Willis & Anne Hobbsc E2 - Framing and Messaging Racial Justice Initiatives - Opportunity Agendac E3 - ABA Racial Justice Improvement Project - Panelc E4 - Panel on Tribal and State Court Collaborations

3:45 pm c Report of the States5:00 pm Adjourn for the day

6:30 pm c Reception & Tour of the Durham Museum

Saturday, May 12, 20128:00 am Art and Cultural Exhibit Open for Chief Standing Bear Day

9:00 am c Chief Standing Bear Breakfast11:00 am Closing Ceremony11:30 am NCREFC Board Meeting/Working Lunch

National Consortium on Racial and Ethnic Fairness in the CourtsPreliminary Agenda

Please help us with our planning efforts by marking which sessions you plan to attend.


AYO LABODE is pleased to announce the formation of the Law Office of Ayo Labode, LLC specializing in elder law. Ms. Labode is a former Ombudsman, an advocate for nursing home residents, and has extensive knowledge of nursing home and assisted living residence issues. She is a graduate of the University of Notre Dame in 1991 and

Creighton University School of Law in 1997. Ms. Labode’s practice based in Denver, Colorado. She is licensed in Colorado and Nebraska.

Attorneys kARINE E. SOkPOH and CAROL A. CLEAVER are pleased to announce the opening of their new law firm, SOkPOH CLEAVER LAW GROUP, PC LLO. The law firm offers affordable, client centered and results oriented legal services to clients in a variety of practice areas. Practice areas focus on business, intellectual property, immigration, dispute resolution, family and elder law. The attorneys also offer per diem attorney services to attorneys and law departments needing additional support. As part of their commitment to the community, both attorneys speak and present on various legal topics throughout the year and offer no-cost immigration consultations one Saturday every other month. Consultations are available in English, French, Mina and Spanish. A South Omaha native, CAROL A. CLEAVER received her B.A. from the University of Nebraska at Omaha, summa cum laude, and earned her law degree from Creighton University School of Law. Cleaver started her legal career as an associate attorney with Seigfreid Bingham Levy Selzer & Gee in Kansas City, Missouri. In addition to her law practice, Cleaver has taught legal studies courses at several colleges and currently teaches paralegal courses at the College of Saint Mary. She is an active member of several Latino nonprofit organizations and she is an executive board member for the Omaha South High School Alumni Association and Foundation. Cleaver is admitted to practice law in Nebraska, Missouri and Kansas. kARINE E. SOkPOH received her B.G.S. from the University of Nebraska at Omaha and earned her Juris Doctor from Creighton University School of Law, magna cum laude. She was named Outstanding Young Lawyer in 2010 by the Nebraska State Bar Association. Sokpoh started her legal career at the Koley Jessen law firm in Omaha. Originally from Togo, West Africa, Sokpoh is active in the community and she serves several nonprofit organizations. She

is Vice President of the Midlands Bar Association and Vice President of Fundraising of the Girls Inc. Girlfriends Board. She is admitted to practice in Nebraska and Iowa. For more information about Sokpoh Cleaver Law Group, call at (402) 932-8900 or visit http://www.scolawgroup.com. The office is located at 3032 S 87th St. #102 Omaha, NE 68124.

DAVID A. HOUGHTON practices in the firm’s business and commercial litigation group. Mr. Houghton devotes a large portion of his practice to construction and design law. He represents contractors, subcontractors, design professionals, owners and developers in litigation and alternative dispute resolution matters. Mr. Houghton also counsels clients on matters before and

during construction projects and assists client in drafting and negotiating contracts. In addition, Mr. Houghton has experience in business entity creation and dissolution and, real estate transactions. Mr. Houghton graduated from the University of Nebraska College of Law, and is a member of the Omaha, Nebraska State and American Bar Associations, as well as the ABA Forum on the Construction Industry. Prior to joining the firm, Mr. Houghton practiced with a litigation focused firm in Lincoln, Nebraska where he gained valuable courtroom experience. Before attending law school, Mr. Houghton worked in the insurance and finance industry..

MITCHEL L. GREENWALL and NATHAN T. BRUNER of Greenwall Bruner, L.L.C. are pleased to announce the

addition of their new law partner, LORALEA L. FRANk. As a result of this addition, Greenwall Bruner, L.L.C. has changed its name to GREENWALL BRUNER FRANk, L.L.C. The firm practices in general law with an emphasis on litigation. Ms. Frank received her Juris Doctorate from the University of South Dakota College of Law in 2006 and has been in private practice in the Kearney

area since her graduation. Her practice areas include experience in family law, civil litigation, and criminal defense. Greenwall Bruner Frank, L.L.C.’s offices are located at 3423 2nd Avenue, Suite 9, Kearney, NE 68847 and all of the attorneys can be reached at (308) 455-1046.

transitions

Career Changes....................................................and Relocations

Ayo Labode

David A. Houghton

Loralea L. Frank

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DAVID P. LEPANT and JOHN A. LENTz are pleased to announce the opening of their law firm, LEPANT & LENTz, PC, LLO. The firm practices in bankruptcy, estate planning, business planning, and general civil

and criminal litigation. Dave and John both graduated from the University of Nebraska College of Law, 2003 and 2010 respectively, both with distinction and have practiced in the Beatrice and Lincoln areas since graduation. Lepant & Lentz, PC, LLO is located at 601 Old Cheney Rd., STE B, Lincoln, NE 68512 and they can be reached at: 402-421-9676.

L. TYLER LAFLIN has been named shareholder and principal of Engles, Ketcham, Olson & Keith, P.C. in Omaha. Tyler earned his B.S.B.A from The University of Nebraska in 2003 and his J.D. from Creighton University Law School in 2006. He has been an associate with the firm since 2007, and practices exclusively in

the area of workers’ compensation.

McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, PC, LLO, is pleased to announce that shareholders SHERI BURkHOLDER and CHRIS BLOMENBERG have been added to the law firm’s name. Sheri Burkholder graduated from UNL College of Law with Distinction in May 2000. She joined the firm in 2001 and was elected a shareholder in 2004. Burkholder’s

practice is concentrated in the areas of adoptions, farm and business related divorce litigation, the formation of business and non-profit entities and general civil litigation. Chris Blomenberg is also an alumnus of UNL Law College, graduating with Distinction in May 2004. He joined the firm on admission to the bar in 2004 and became a shareholder

in 2007. Blomenberg’s areas of practice focus on elder law, estate planning and probate, guardian and conservatorships and Social Security disability.

Fredericks Peebles & Morgan, LLP is pleased to announce JOSEPH MESSINEO has become a partner in the firm’s Omaha office. Mr. Messineo has more than 11 years of experience in representing individuals, businesses, and government agencies. He will focus his practice on complex litigation, including appellant

advocacy, involving the commercial interests and sovereign rights of Indians and Indian tribal governments. He graduated from the University of Nebraska-Lincoln in 1994 with an emphasis on political science and political philosophy. In 2000 he earned his Juris Doctor, cum laude, from Creighton University School of Law. Mr. Messineo’s previous experience includes practicing as a government attorney where he gained significant experience in regulatory and administrative law. He has developed a particular expertise in state excise taxation and regulation as it relates to tobacco products, which includes extensive experience with the 1998 Tobacco Master Settlement Agreement and related state statutes. Much of the work he does involves defending the rights of tribal members and tribal governments against the illegal encroachment of state tax and regulatory jurisdiction into Indian Country. He also has extensive knowledge of federal tobacco laws. Mr. Messineo is admitted to practice in the courts of Nebraska, and Arizona, as well as in the United States District Courts for Nebraska and Arizona, and the United States Court of Appeals for the 10th Circuit.

Advent is pleased to announce the addition of JEFF ANDERSEN as a Patent Attorney. Andersen has worked as a patent attorney in the Omaha area for over 8 years. He graduated from Creighton University with a Bachelor’s degree in Chemistry, and graduated from Creighton University School of Law in 2000. Andersen will focus on patent drafting, patent prosecution, and patent searching.

Fredericks Peebles & Morgan, LLP is pleased to announce LEONIkA CHARGING has become a partner in the firm’s Omaha office. Ms. Charging will focus her practice on representing tribal governments and tribal business enterprises in commercial transactions, government contracting, and economic development. In addition to her duties as a partner, Ms. Charging will also serve

as the firm’s first ever Director of Business Development. She will spearhead the firm’s marketing initiatives, such as seminars, newsletters, sponsorship, social media, and enhanced website development. Ms. Charging graduated from the University of Kansas earning a bachelor’s degree in political science and criminal justice. In 2003 she earned her Juris Doctor from the University of South Dakota School of Law, emphasizing her studies on federal Indian law. Her previous experience includes representing tribal governments as general counsel and special counsel, where she gained significant experience in regulatory and administrative law, tribal constitutional revision, and tribal court development. She has developed a particular expertise in tribal business transactions, including development of tribal legal

TRANSITIONS

John A. LentzDavid P. Lepant

L. Tyler Laflin

Sheri Burkholder

Chris Blomenberg

Joseph Messineo

Jeff Andersen

Leonika Charging


TRANSITIONS/AWARDS AND RECOGNITION

Rembolt Ludtke LLP is pleased to announce that DAVID J. A. BARGEN has become a partner with the firm. Bargen is a graduate of the University of Nebraska at Kearney (B.S., cum laude, 1996); the University of Nebraska at Omaha (M.P.A., 1999); and the University of Nebraska College of Law (J.D., with high distinction, 2004). He started his practice at Rembolt Ludtke in 2006 after serving two years as staff attorney to the Honorable C. Arlen Beam of the U.S. Court of Appeals for the Eighth Circuit. Bargen’s practice is concentrated in the areas of municipal law, water law, civil litigation, administrative law, and government relations.

kENDALL kRAJICEk is pleased to announce the opening of the LAW OFFICE OF kENDALL k. kRAJICEk, a general practice with a focus on family, juvenile, and elder law. Krajicek graduated summa cum laude with a B.S in Justice and Social Inquiry from Arizona State University in 2007 and received her J.D. and a Certificate in Public Interest Law from the University of Alabama School of Law in 2010. She is licensed in Alabama as well as Nebraska and is a member of the Nebraska Women’s Bar Association.

Awards and Recognition

DERYL F. HAMANN was honored for his lifetime achievements at the Ak-Sar-Ben Coronation and Scholarship Ball on October 22, 2011, where he was crowned as the 115th King of Ak-Sar-Ben. Hamann is senior counsel to the law firm of Baird, Holm McEachean, Pedersen, Hamann and Strasheim and is former Chairman and CEO of Great Western Bank. During his

professional career, Hamann has been a lecturer, a former Chairman of the Advisory Committee on Ethics, appointed by the Nebraska Supreme Court and a Director and Past President of the Nebraska Association of Bank Attorneys. He is the recipient of the Nebraska State Bar Foundation’s Foundation Award and he was inducted into the Omaha Business Hall of Fame in 2009. He was the recipient of the University of Nebraska College of Law’s Outstanding Service Award. He is a member of the Board of Directors of the University of Nebraska Foundation, a member and former chairman of Bellevue University Board of Trustees, as well as a member of Bellevue University Foundation Board of Trustees, former Chairman and Trustee of the Board of Trustees for Midland Lutheran College, and former member of the Board of Directors of the Omaha Community Foundation.

infrastructure, and representation of tribal corporate entities in the federal 8(a) government contracting program. She is admitted to practice in the state courts of Nebraska and South Dakota, as well as in the United States District Courts for Nebraska, and the United States Court of Appeals for the 8th Circuit.

STEVEN G. RANUM joined Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C. in 2009 as a law clerk. Upon completion of the Nebraska bar examination, he became an associate attorney. Steven practices in the areas of real estate, banking and litigation. He graduated with his Bachelor of Science summa cum laude from Northern State University in 2005 and received his

Juris Doctor summa cum laude from Creighton University School of Law in 2011. He was a member of the Creighton Law Review from 2009 through 2011, Outstanding Oralist in the 2010 Creighton Moot Court Competition, and President of the Creighton Moot Court Board in 2011. Prior to entering law school, Steven was a bank examiner for the North Dakota Department of Financial Institutions. He is a member of the Omaha, Nebraska and American Bar Associations.

Sneckenberg Thompson & Brody, LLP of Chicago, IL is pleased to announce that Senior Litigation Partner and former Omaha resident, WILLIAM J. SNECkENBERG has activated his license to practice in the State of Nebraska. Bill Sneckenberg is a Trial and Appellate Specialist with a diverse litigation practice. His representative practice areas include: appellate, business and commercial litigation, construction and construction defects, employment, labor and discrimination issues, estate litigation, personal injury and subrogation recovery. Mr. Sneckenberg holds a B.A. from the University of Nebraska and a J.D., cum laude, from Creighton Law School.

Lewis, Pfanstiel & Williams would like to announce the hiring of MICHAEL BREWER as an Senior Associate Attorney. Michael received his Juris Doctor from the Creighton School of Law in 2005 and has been in private practice for the past four years. He is licensed in Nebraska and Iowa, and practices primarily in the areas of family law, personal injury, and civil and criminal litigation. Prior to receiving his law degree, Michael received his Bachelor of Arts from Hastings College in 1998, and graduated from Bellevue East in 1994.

kURT MAAHS has joined the Phoenix, Arizona law firm of O’Connor & Campbell, PC. Maahs will continue to concentrate his practice in the litigation area, including insurance law, bad faith, product liability, professional negligence and premises liability.

Steven G. Ranum

Deryl F. Hamann

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AWARDS AND RECOGNITION

JAMES R. MOWBRAY, Chief Counsel of the Nebraska Commission on Public Advocacy, received the 2011 NCDAA Don Fiedler Excellence in Criminal Defense Award at the Nebraska Criminal Defense Attorneys Association seminar in November 2011. The award is presented annually to an individual excelling in the criminal defense field, as Don Fiedler did. Jim Mowbray has been Chief

Counsel at the Commission since 1996, participates in several NCDAA and NSBA committees, and currently represents indigent defendants charged with first degree murder from Scottsbluff to Fairbury. He has dedicated years to the cause of criminal defense.

LORI WILSON, managing attorney of the Grand Island office of Legal Aid of Nebraska, has been named the 2012 winner of the Ruth Miller Award for Outstanding Advocacy. Wilson was nominated by her fel-low attorneys. The honor is bestowed upon the best example of advocacy to clients, and demonstrates a commitment and dedication to providing quality representation to clients. “This is Legal Aid’s highest honor for service to low-income Nebraskans,” said Executive Director Dave Pantos. “Lori Wilson has worked for decades as a fearless advocate. She truly exemplifies the best in a Legal Aid attorney.” Among fellow attorneys, both inside and outside of Legal Aid, Wilson has built a reputation as an astute and savvy attorney with special expertise in the areas of the law where low income people are most affected, such as employment law and Social Security disability. In Grand Island Wilson is involved with local homeless shelters and also assists the Continuum of Care (COC) program. Wilson served from the Lincoln office of Legal Aid before moving to Grand Island two years ago. Her specialty in the capital city was legal issues affecting the homeless, Pantos said. Lori Wilson received the Ruth Miller award due to her commitment to serving Legal Aid’s client population. The award nomination noted that Wilson has “a sociologist’s understanding of the issues” with which low-income Nebraskans are confronted and “a humanitarian’s desire to help them improve their lives.”

JOHN D. FELLER was recently elected Chair of the Nebraska Abstracters Board of Examiners. He was appointed to the Board in 2007 by Governor David Heineman. The Nebraska Abstracters Board of Examiners is the licensing and regulatory agency for abstracters and abstracting companies. Feller has been in the abstracting/land title business

over 30 years and is owner and president of United Title and Escrow Company located in Beemer, Nebraska. He is a member of the Nebraska State Bar Association and the American Bar Association. Feller is a 1976 graduate of the University of Nebraska College of Law.

Governor Heineman appointed JILL ROBB ACkERMAN of Baird Holm LLP to the Commission on Uniform State Laws. The Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws) provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Members are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. Ms. Ackerman will serve a four-year term.

ACLU Nebraska is a nonprofit nonpartisan organization dedicated to preserving civil liberties. ACLU’s 2012 banquet was held March 10, 2012 in Omaha, and included the following recognitions: The Roger Baldwin Civil Libertarian of the Year award was given to the DOMINA LAW GROUP for their defense of the First Amendment. Attorneys David Domina and Brian Jorde of the firm are currently working with ACLU Nebraska, representing Millard students who were disciplined for exercising their free speech rights. The Robert Spire Founders Service award was given to Creighton Law Professor G. MICHAEL FENNER. Professor Fenner has given several decades’ worth of volunteer service to ACLU Nebraska. He has been a volunteer ACLU lawyers panel member for many years and has also been the author of amicus curiae work on behalf of the organization.

James R. Mowbray

Jill Robb Ackerman

John D. Feller

Lori Wilson


in memoriam

LAWRENCE ROBERT BRODkEY, 88, died December 24, 2011. He was born in Avon, SD on March 23, 1923. Preceded in death by parents, Harry and Fannie Brodkey; brothers, Edward and Donald; and beloved pets, Bongo, Chip and Molly. Survived by wife, Gloria; sons, Andrew (Leslie), Tucson, AZ, and Daniel (Jill), Grand Rapids, MI; daughter, Sherry, Omaha; and grandsons, Spencer, Alex and Zachary. Larry served in the Army in World War II aboard the USS Wakefield. He was a graduate of Benson High School in Omaha, the University of Omaha and Law School at the University of Nebraska-Lincoln. He was engaged in the private practice of law in Omaha for over 50 years and retired as the City Attorney for Fort Calhoun, NE after many years of service. He was also an Adjunct Professor of Law at Bellevue University teaching medical ethics, and former State and Local Chairman of the American Cancer Society. Larry was a member of the Nebraska State Bar Association and American Legion Post #266. Mr. Memorials to the Nebraska Humane Society or Nebraska Medical Center.

ROBERT IRA EBERLY, 80, of Niobrara, passed away December 23, 2011. He was a long time Lincoln resident and attorney. Robert was born on July 26, 1931 to Thelma Rhea and Harley M. Eberly in Niobrara, where he attended grade school and high school. At the age of 15, he learned to fly airplanes from a friend in Creighton, Neb., and soon he was crop-dusting for local farmers. Robert joined the United States Army, and served in the Army Air Corps during the Korean War. Upon discharge from the Army, he returned home and attended Wayne State University and University of Nebraska at Lincoln where he received his law degree. He was passionate about veterans rights. Bob was a lifetime member of the American Legion, VFW, and the National Rifleman Association. He served as state commander for the American Legion Post #3 in Lincoln. Later in his life, he was a river guide at the Niobrara State Park. He was an avid hunter and fisherman. He held a lifelong passion for flying, the outdoors and Husker football. He was proceeded in death by his wife, Lois Eberly; his parents, Thelma Rhea and Harley M. Eberly; his step-mother, Beaulah Eberly; his brothers, Frank, Jay, and Rhea Eberly. Survivors include daughter, Barbara Eberly Chandler, Ariz.; son, Bob Eberly, Phoenix; daughter-in-law, Deborah Eberly, Chandler, Ariz.; four grandchildren: Jennifer (Rory) Burlison, Shane Lopresti, Jason (Amber) Eberly and Marty (Whitney) Brunswick; six great grandchildren: Tristen Burlison, Aleigha, Alexi, and Jakoby Eberly, Bryce, and Kaylee Brunswick; brother, William (Barbara), Eberly, III.; sisters-in-law: Fern

(Rhea) Eberly, Ocala, Fla., and Luanne (Jay) Eberly, Orlando Fla.; nieces, nephews, cousins, and many loyal family friends.

DOUGLAS R. MILBOURN, 64, of Columbus died January 4, 2012, at Edgewood Vista in Columbus. He was born Jan. 14, 1947, in Grand Island the son of Ivan K. and Valonne “Val” (Simms) Milbourn. Doug attended rural elementary school near Shelton and moved to Columbus with his family in 1960. He graduated from Columbus High School in 1965. He went to graduate from the University of Nebraska-Lincoln in 1969. On Nov. 22, 1969, Doug was united in marriage to Susanne Vlach in Columbus. Doug joined the National Guard and following active duty in the Guard, he entered law school at the University in Lincoln and graduated in December 1972. During his time with the National Guard he completed officer training. Doug began his legal career with Baker and Tessendorf in Columbus and served as Platte County Attorney for a short time. He loved and respected the law and was happiest when he could help those who needed guidance through the legal system. He was a member and served as president of the Nebraska Association of Trial Attorneys. He was also a member of the American Trial Lawyers Association and served several terms on the Board of Governors of that group. Doug had many interest and talents from art and architecture, to skydiving, ham radio, reading, magic tricks, marathon running, community theater, and Husker football, basketball and baseball. He was an active member of Rotary, the Elks Club, Columbus Family V, Friends of Music, and the Columbus Area Arts Council. He was also a member of MENSA and the American Amateur Radio Relay League. Survivors of the immediate family include his wife, Susanne Milbourn of Columbus; his mother, Val Milbourn of Columbus; a brother and sister-in-law, Steve and Nancy Milbourn of Wood River; brother-in-law and sister-in-law, Bob and Patti Vlach of Carlsbad, Calif.; a sister-in-law and brother-in-law, Carmen and Rod Ostrander of Ord; nephew, Michael (Jessica) Milbourn of Grand Island; niece, Kelly (Yogesh) Lamsal of Brighton, Colo. Doug was preceded in death by his father, Ivan Milbourn. For those considering memorials to Doug, the family suggests the Milbourn Scholarship Fund in care of the University of Nebraska Foundation or to the Columbus Library Foundation.

HON. THOMAS M. SHANAHAN, 77, retired Federal District Judge, died December 27, 2011. Judge Shanahan, the eldest of four sons of Thomas and Agnes (Stenner) Shanahan, was born in Omaha in 1934. Tom graduated from Notre Dame

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University, magna cum laude, in 1956. He and Jane Estelle Lodge were married August 4, 1956. He earned his LL.B. from Georgetown Law School in 1959 and entered private practice in Ogallala, NE, where he worked for the next 23 years. On March 24, 1983, Tom was Governor Bob Kerry’s first judicial appointment to the Nebraska Supreme Court. In August, 1993, President Clinton nominated him to the Federal District Court in Omaha. After confirmation by the US Senate, he was commissioned on November 22, 1993. He assumed Senior status May 5, 2004 and retired February 1, 2007. He was a master of evidence and procedure. His written opinions, both as a member of the Nebraska Supreme Court and as a federal district judge, were well-crafted, colorful, and reflected his brilliant analytical skills. Upon achieving Senior Status, Judge Kopf wrote: “Tom Shanahan has served Nebraska with great distinction on both the State and Federal Courts. His insight and intelligence on the full time bench will be sorely missed.” His parents and youngest brother, Michael P. Shanahan, predeceased Tom. He is survived by his high school sweetheart and wife of 55 years, Jane Lodge Shanahan; Catherine (Kirk) Trofholz, Lake Forest, IL, Thomas M., Jr., Kansas City, Mary Elizabeth and Timothy F., of Omaha, 7 grandchildren; brothers, Brian G., Kansas City, James L., Madison, WI, and many nieces and nephews.

WARREN R. WHITTED, SR., 91, Omaha, died December 21, 2011. He was preceded in death by wife of 66 years, Marjorie Claire (Disbrow) Whitted. An Omaha native, he graduated from Benson High School, the University of Omaha, and Creighton University School of Law. During WW II he served as a bombardier on a B-24 Liberator and was awarded the Silver Star

and Distinguished Flying Cross. Whitted started working for Mutual of Omaha in 1947. He left Mutual in 1969 to serve as vice president of claims for Illinois Blue Cross, spent about six years as a Medicaid administrator in Washington, D.C., returned to Mutual as a senior vice president, and retired in 1985 as president of Omaha Financial Life Insurance Co., a Mutual affiliate. In retirement, Whitted and his wife were active in the Nebraska State Bar Association, where his son, Warren R. Whitted Jr., currently serves as president. Survivors include sons, Warren Whitted, Jr. and his wife, Nancy; Dr. Peter Whitted and his wife, Diane; daughters, Laurel Tuttle, and her husband, Tom; and Pamela Whitted Gleason and her husband, Jack; 14 grandchildren; 14 great grandchildren; and cousin, Kermit Rohde. Services were held at Trinity Episcopal Cathedral in Omaha. Memorials to Trinity Episcopal Cathedral, Omaha, the Nebraska Lawyers Foundation or the University of Nebraska Foundation.

The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation P.O. Box 95103 Lincoln, NE 68509-5103.

Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact [email protected]. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

IN MEMORIAM

Warren R. Whitted, Sr.


classified ads

SCUDDER LAW FIRM seeks to hire an attorney with outstanding academic credentials and 2-5 years of experience in any combination of corporate, securities, financing, and mergers and acquisitions. Applicants must have excellent academic credentials, superior writing and interpersonal skills, an interest in sophisticated business transactions, and a desire to live in Lincoln, Nebraska. Our firm offers proactive, results-driven client service for a nationwide client base of publicly traded and large privately held clients. Specific work includes: mergers and acquisitions; public stock offerings for issuers and underwriters; asset-based, revolving, and securitized credit facilities; private equity and venture capital fund formation and maintenance; and board/SOX consultation. We offer a collegial office environment, competitive compensation at all levels of experience (starting 2011 graduates at $100,000). Please send a cover letter, resumé, and writing sample to [email protected] and visit our website at www.scudderlaw.com for a firm profile and recent transactions. (0412)

ASSOCIATE ATTORNEy. AV-rated, well-established law firm in western Iowa has opening for an associate attorney to practice in family law and litigation area. Ideal candidate must have 1-3 years experience, strong work ethic and excellent analytical, interpersonal, writing and research skills. Competitive salary and generous benefits. Please send cover letter, resume and coy of law school transcript to NSBA, Attn: SJL, PO Box 81809, Lincoln, NE 68501-1809.

ATTORNEy – The Law Offices of James W. Nubel, a Field Legal Office of the Liberty Mutual Insurance Group, is seeking an attorney for its Omaha office. The office handles both workers’ compensation and civil litigation. Experience in workers’ compensation, civil litigation, and/ or insurance defense preferred. This position requires licensure in both Nebraska and Iowa. Liberty Mutual offers a challenging opportunity, competitive salary and a comprehensive benefits package. To apply for this position, please go to: www.libertymutual.com, click on Careers, Search Jobs, and enter Keyword: Field Counsel Omaha. Liberty Mutual Insurance Company is an EEOC employer committed to a diverse workforce. (0412)

SEEKING ASSOCIATE ATTORNEy: Seven-attorney Central Nebraska Law Firm is seeking applicants with experience to engage in litigation in insurance defense, workers compensation, commercial and business litigation, domestic and criminal trial work throughout Greater Nebraska. Compensation is negotiable dependent upon qualifications. Please send resumes to P.O. Box 1060, Kearney, NE 68848-1060. (0412)

ROSS, SCHROEDER & GEORGE seek to hire an attorney to work full-time in our satellite office in Lexington, Nebraska. Experience would be helpful but not necessary. Salary negotiable. Contact Kent Schroeder at 800-657-2131.

APPELLATE BRIEF-WRITING: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com. (0412)

I AM LOOKING TO PURCHASE A LAW PRACTICE OR PARTNERSHIP OPPORTUNITy. Former judicial law clerk with 9 years of experience in the areas of contracts, commercial law, employment, and workers’ compensation. Licensed to practice law in Nebraska and Iowa. Certified mediator in the state of Nebraska. Fully bilingual Spanish-English. Looking to purchase a law practice in the Omaha, NE or Council Bluffs, IA metro area. Would consider a partnership opportunity and/or relocation for the right opportunity. Interested in and ready to learn litigation, criminal law - whatever is needed. The ideal opportunity would offer 3 phases: hands-on training, an intermediate period (incumbent part-time or semi-retired) and finally transfer of clients. If interested, please email [email protected]. (0412)

WANTED TO PURCHASE - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or [email protected]. (UFN)

OFFICE SPACE TO SHARE, on the second floor of the Keeline Building (directly across 17th Street from the east side of the Douglas County Court House). Roger R. Holthaus; Holthaus Law Offices; Suite 210; 319 South 17th St.; Omaha, NE 68102; phone (402) 341-5095; Fax (402) 341-5378; [email protected]. (UFN)

OFFICE SHARE/ATTORNEy ARRANGEMENT-Available for up to 4 attorneys. Includes parking, large conference room, break room, secretarial area, storage, phone system, high speed internet and other detailed amenities and arrangements including staff possible. Beautiful new office building located just south of 75th and Pacific Streets. Contact Angela Burmeister or Rick Berkshire, 1301 S. 75th St. Omaha, NE 68124 [email protected]. (UFN)

ASSOCIATE OR OFFICE SHARE: We are currently looking for attorneys with an established client base to join our Omaha firm. Position is perfect for a solo practitioner that wants to enjoy the support of a firm. We would also consider an office share arrangement. Rent is negotiable and includes internet, reception, conference room and printer/copier. Please email with any questions: [email protected]. (UFN)


legal marketplace

Gail E. BolivEr j.d. m.B.a.Malpractice of Stockbrokers & Financial Consultants

• Arbitration • Suitability • Churning • Stocks • Bonds• Concentration • Pension Investments - ERISA • Annuities

• Insurance Products & Others

www.boliverlaw.com

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LEGAL SERVICES CORPORATIONNotice of Availability of Competitive Grant Funds for Calendar Year 2013

The Legal Services Corporation (LSC) announces the availability of competitive grant funds to provide civil legal services to eligible clients during calendar year 2013. A Request for Proposals (RFP) and other information pertaining to the LSC grants competition will be available from www.grants.lsc.gov during the week of April 9, 2012. In accordance with LSC’s multiyear funding policy, grants are available for only specified service areas. To review the service areas for which competitive grants are available, by state, go to www.grants.lsc.gov/about-grants/where-we-fund and click on the name of the state. A full list of all service areas in competition will also be posted on that page. Applicants must file a Notice of Intent to Compete (NIC) through the online application system in order to participate in the competitive grants process. Information about LSC Grants funding, the application process, eligibility to apply for a grant, and how to file a NIC is available at www.grants.lsc.gov/about-grants. Complete instructions will be available in the Request for Proposals Narrative Instruction. Please refer to www.grants.lsc.gov for filing dates and submission requirements. Please email inquiries pertaining to the LSC competitive grants process to [email protected].


2012 Public Service AwardsThe Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2012 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 25, 2012.(A listing of past award winners in each of these categories is included following this page.)

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

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

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

Nomination FormPlease check the award for which you are providing a nomination.

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

Name of Nominee(s):_________________________________________________________________________

Address:___________________________________________________________________________________

Please briefly describe the activities and contributions which qualify this candidate as a nominee for the Award:

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

Please include any other information you believe would be helpful to the committee:

_________________________________________________________________________________________

_________________________________________________________________________________________

Your name and address:

_________________________________________________________________________________________

_________________________________________________________________________________________

Please return this form by May 25, 2012 to: NSBA House of Delegates Nominating Committee, PO Box 81809, Lincoln, NE 68501-1809

Fax (402) 475-7098


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

Award of Special Merit 2011 Honorable Karen B. Flowers

2010 Secretary of State John Gale Attorney General Jon Bruning 2009 Dean Patrick J. Borchers Dean Steven L. Willborn 2008 John P. Lenich 2007 Robert Bartle 2006 Roger W. Kirst 2005 Honorable Alan L. Brodbeck 2004 David S. Houghton 2003 John B. Milligan 2002 Douglas A. Kristensen 2001 Jay J. Sullivan 2000 Omaha Law League 1999 Dennis R. Keefe 1998 Mid-American Council Juvenile Diversion Program Nebraska Court Appointed Special Advocate (CASA) Association 1997 Richard C. Witt 1996 Honorable Richard D. Sievers 1994 John R. Doyle 1993 Charles W. Baskins 1992 Kathleen M. Severens 1991 Robert G, Scoville 1990 Honorable Janice L. Gradwohl Honorable Robert Van Pelt 1989 Honorable W.W. Nuernberger 1988 Legal Services of S.E. Nebraska, Inc. Omaha Legal Aid Society, Inc. Western Nebraska Legal Services Inc. 1987 Honorable Robert C. McGowan 1985 Richard M. Van Steenberg 1984 Robert J. Kutak 1983 Richard D. Shugrue & James W. Hewitt 1982 Vard R. Johnson 1981 Rodney Shkolnick & John Strong 1980 Joe R. Seacrest & Robert D. Mullin 1979 Robert M. Spire 1978 Leo F. Clinch 1977 Alfred G. Ellick 1976 William J. Baird 1975 Laurens Williams Jack W. Marer 1974 Honorable Robert R. Moran 1973 Murl M. Maupin Lester A. Danielson

Public Service Awards History


Award of Appreciation 2011 Honorable Gerald E. Moran 2010 Daphne Hyun-Jin Aronson Kenneth M. Wentz III Sherman P. Willis 2008 Deanna Lubken 2007 The Woods Charitable Fund 2006 Riko E. Bishop & Mark J. Young 2005 First National Bank 2004 Lawrence Raful 2003 Ronald R. Volkmer John M. Gradwohl 2002 Lane Foundation 2001 Nebraska Mock Trial Project 2000 Lancaster County Juvenile Court Judges 1999 Alan H. Frank 1998 Linda L. Willard 1997 Eileen Reilly–Buzzello James E. Reisinger 1996 The Omaha World Herald 1995 Jung Nguyen 1994 Nebraska Bankers Association 1993 Dave Thompson,(posthumously) Omaha World Herald 1992 Nebraska Association of Trial Attorneys Nebraska Highway Safety Program 1991 Reta Johnson, Nebraska State Library 1989 Ted Larson, Lincoln Southeast High School National Bicentennial Competition 1988 Eleanor Propp Nebraska Commission for the Hearing Impaired 1987 Kathryn E. Haugstatter, Lincoln Star 1986 Scottsbluff Star Herald 1985 Thomas R. Walsh, Nebraska Department of Education 1984 KFAB Radio, Tom Johnson 1983 Volunteers Intervening for Equity 1982 KETV Television, Gary Nielson 1981 Kearney State College, Brendan McDonald 1980 Gary Kerr, WOWT Television 1979 Nebraska Educational Television, John M. Lewis 1978 Nebraska Commission on Aging, David M. Howard 1977 Ceilia McNamara, Omaha Bar Association 1975 Lincoln Journal, Bill Kreifel 1974 Omaha World Herald, John Taylor

1973 Junior League of Omaha, Omaha Law Wives 1972 Donna Belle Weyers, Secretary of State’s Office 1971 KETV Television, Kenneth James 1970 Maurice H. Sigler, Nebraska Dept. of Corrections 1969 Benjamin Goble, Lincoln Police Department 1968 Nebraska Association of Broadcasters, Paul Jensen 1966 Junior League of Omaha, Mrs. Tyler Gaines 1965 KMTV Television, Owen Saddler 1964 Lincoln Journal News Staff, Gil Savery

Robert M. Spire Pro Bono Award 2012 Tara L. Gardner (Awarded at 2012 Barristers’ Ball) 2011 Ann S. Moshman (Awarded at 2011 Barristers’ Ball) 2010 Susan M. Koenig (Awarded at 2010 Barristers’ Ball) 2009 Alan D. Martin (Awarded at 2009 Barristers’ Ball) 2008 Diane B. Metz 2007 Paul M. Conley 2006 Charles R. Maser 2005 Catherine Mahern 2004 Ralph E. Peppard 2003 John V. Morgan 2002 D. C. “Woody” Bradford, III 2001 Charles A. Nye & Stephen A. Scherr 2000 Mary L. Wilson 1999 Mark R. Widell 1998 Martin J. Kushner (posthumously) 1997 Gail S. Perry 1996 Connie Kearney & Robert F. Martin 1995 Paul W. Rea 1994 The Marks & Clare Firm 1993 Michael D. Matejka 1992 J. Marvin Weems 1991 Earl D. Ahlschwede 1990 Clark J. Grant 1989 James W. Crampton 1988 James R. Nisley 1987 Paul W. Korslund 1986 David Perlman 1985 John W. Ballew Jr.


THE NEBRASKA STATE BAR ASSOCIATION NEBRASKA LAWYERS FOUNDATION (NLF)

Presents the

9TH ANNUAL GREATERNEBRASKA GOLF SCRAMBLE

FRIDAY, JUNE 22, 2012Wild Horse Golf Club

Gothenburg, NE 69138308-537-7700

Golf ScrambleFriday, June 22nd

Format: 4-Person ScrambleLunch & Driving Range: 10:30 AM - NoonShotgun Start: NoonDinner: 5:00 PMEntry Fee: $125 per golferIncludes: Lunch, dinner, green fee, cart, range balls, and door prize drawings!Players: Pairings will be made for individual and partial team entries.

Proceeds to Benefit The NSBA Volunteer Lawyers ProjectI am unable to play in the tournament, but have enclosed $________ to support VLP.

For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091, or at [email protected]. Please make your checks payable to NLF & return this form to: PO Box 81809, Lincoln, NE 68501-1809.***Gifts to NLF are deductible as charitable donations to the extent allowed by law.***

1) _______________________________________ Name

_______________________________________ Address

_______________________________________

__________________________________________ Phone

_______________________________________ U.S.G.A. Handicap Index Average 18 Hole Score

3) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


2) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


4) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


Directions: Wild Horse Golf Club is located north of Gothenburg on HWY 47 and west on Rd 768

the nebraska laywer march/april 2012

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