the nebraska laywer may/june 2012

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The Dodd-Frank Act’s Impact on Private Securities OfferingsDaniel M. McMahon & Jeffery R. Schaffart

Ten Things Every Estate Planner Should Know About Long Term CareNick Halbur

You Say Lee- n, I Say LeenBen Thompson

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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.

www.nebar.com

Features

The

Nebraska LawyerOfficial Publication of the Nebraska State Bar Association • May/June 2012 • Vol. 15 No. 3

President’s Message - We Are The NSBA

....................................Warren R. Whitted Jr.

The Dodd- Frank Act’s Impact on Private Securities Offerings...............................Daniel M. McMahon & Jeffery R. Schaffart

You Say Lee- n, I Say Leen

........................................................ Ben Thompson

Ten Things Every Estate Planner Should Know About Long Term Care.............................................................. Nick Halbur

Justice Denied

...........................................Thomas J. Freeman

Navigating the National Flood Insurance Proof of Loss Requirement............................................... Cameron Guenzel

Attorney Deception

................... Professor G. Michael Fenner

Developments in Nebraska Workers’ Compensation Third Party/Subrogation Litigation................................................Gregory W. Plank

Warren R. Whitted Jr.

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37 Coaches’ Corner Celebrating the Seasons of Our Life by Susan Ann Koenig

41 Professional Responsibility Regulating the Highs & Low of Legal Fees by Dennis G. Carlson

43 Ethics Advisory Opinion 12-02



52 NSBA Calendar

54 Nebraska Lawyers Foundation The Reason for a “Painless” Planned Gift by John M. McHenry

59 NCLE Calendar

60 Court News

67 Legal Community News

68 NSBA News

69 MCLE News

71 Transitions/Awards & Recognition

76 In Memoriam

79 Classified Ads

80 Legal Marketplace

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issue editorsEXECUTIVE 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]

www.nebar.com

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.

Thalia L. Downing Carroll

Thalia L. Downing Carroll is an attorney with Thompson Law Office, PC LLO in Omaha, practicing in the areas of bankruptcy, debtor-creditor litigation and real estate transactions. She received her J.D. in 1999 from Creighton University School of Law. She is admitted to the Nebraska and Iowa State Bars and to the Eighth Circuit Court of Appeals.

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.


These are interesting times for the NSBA. On February 29, 2012 Senator Scott Lautenbaugh filed a petition with the Nebraska Supreme Court seeking a rule change that would make the NSBA a voluntary rather than a mandatory association. Shortly after the petition was filed the Executive Council (“EC”) met to consider the issue and voted unanimously to support the unified bar. However, more importantly, the EC decided to distribute the petition and all related information to the members of the House of Delegates (“HOD”) and to the membership as a whole. The EC also decided to call a special meeting of the HOD. At a regularly scheduled meeting with me, Chief Justice Heavican indicated that the Court would open a comment period with regard to the requested rule change. The special meeting of the HOD was held on April 11, 2012. The meeting was conducted through six video conference sites and a telephone conference bridge. Any member of the Association who wished to speak was afforded the opportunity to do so. After hearing comments from the membership and HOD delegates, the HOD voted 58-4 in favor of the unified bar.

While gratifying, the vote was less important to me as President than the comments made by those who spoke. An Omaha lawyer supported by a number of lawyers employed by Douglas County and the City of Omaha called for a vote of the membership on the deunification issue. There were comments from the western part of the state questioning “mission creep” of Association programs and others suggesting that the Association should be more responsive to the needs of lawyers outside the Omaha and Lincoln metropolitan areas. All of these were excellent comments. I, and the other officers, appreciate all of the comments we have received from the membership.

Despite the view of some, the NSBA is an open and democratic association, one that values participation by its members and encourages all members to speak their mind. As President, I invite comment and input from all of you. You may also obtain information and a full explanation of NSBA activities by making a call or sending an email to the Association office.

The NSBA is seeking to improve its communication with you. We are attempting to foster more involvement from all areas of the state and to encourage young lawyers to take an active role in NSBA activities. Communication with our members has always been difficult. Before email, written communication from the NSBA often found its way to the “I’ll read this later” stack and was often less than enlightening. With the advent of email, the Association website and other media, it is easier to communicate with you, but NSBA communications often become part of the background noise that fills our inboxes until we hit the delete key. The NSBA continues to work to refine our message and to provide you timely, relevant and useful information. On April 17, 2012, we launched a new NSBA website. We believe that it provides better information in a more organized and accessible format. We encourage your comments to help us provide information relevant to and useful in your practices. We are also continuing to inform you through eCounsel, Case Digest, the Legislative Report and regular CLE notifications.

Despite these efforts, there is a general lack of understanding of what the NSBA does. What does the NSBA do??

First, the NSBA administers programs at the direction of

president’s page

We Are The NSBAWarren R. Whitted Jr.

➡


the Court. For example, the Commission on the Unauthorized Practice of Law was created upon the petition of the Association. It is a commission of the Supreme Court, but is fully staffed and funded by the NSBA. The Minority and Justice Committee and the NSBA Minority and Justice Task Force were, and still are operated jointly by the Supreme Court and the NSBA with administrative and financial support of the Bar. The Client Assistance Fund was created at the direction of the Court and is fully funded by the membership through its dues. It is administered by and at the cost of the Association. The Association administers the admission process under the direction of the Nebraska State Bar Commission, receiving applications, verifying information, arranging for background checks, conducting the bar examination, all at the request of the Supreme Court. The adoption of Mandatory Continuing Legal Education was the result of the efforts of the NSBA. The Commission on MCLE is staffed by Supreme Court employees.

In addition to these activities, the NSBA works closely with the Court in efforts to see that the legislature recognizes the importance of a fair, impartial and independent judiciary; that it is a separate and co-equal branch of government, that an adequate number of judges are necessary and that our judges are fairly compensated. The NSBA has actively supported access to the courts throughout Nebraska. The NSBA also actively assists in defending the Courts and individual judges who are subject to unjust criticism.

The NSBA has fostered an improving relationship with the Court allowing interaction and discussions of issues important to all the lawyers of Nebraska on an informal basis. There was a time when all NSBA contact with the Court was by written petition. Through the efforts of my predecessors, we now meet regularly with the Chief Justice. He sits on the EC and we have open lines of communication with him. Annually the officers of the NSBA meet with the entire Court to discuss issues of common interest and concern.

For the membership we maintain a current and regularly updated roster of members of the Association and are able to advise anyone who inquires as to the status of any member of the bar. We produce a comprehensive NSBA Directory in both paper and electronic form providing our members ready access to contact information for their peers. We provide CaseMaker at no additional cost to our members. We have expanded our already comprehensive curriculum of CLE Programs providing a broad range of programs in a variety of subject areas facilitating compliance with the Supreme Court’s Mandatory Continuing Education requirement. The Association endorses professional liability, life and health insurance plans making them available to the membership and has developed an array of member benefits.

In cooperation with the Nebraska Lawyers Foundation, we administer the Volunteer Lawyers Project (“VLP”), providing civil legal services to indigent clients and operating self-help

desks in Douglas, Lancaster and Hall Counties. We operate the Nebraska Lawyer’s Assistance Program (“NLAP”) working with lawyers and their families on personal issues, including mental health, substance abuse and family tragedies. NLAP works closely with the Counsel for Discipline in discipline cases involving these issues. NLAP also is appointed trustee in the windup of practices where the lawyer has died or been forced to leave the practice.

The NSBA also is developing the next generation of bar leaders through the Leadership Academy.

The NSBA operates within a budget of $3.3 million. Dues represent approximately 54% of the budget. The balance is a combination of gifts, grants, program fees and so forth. The bar works with a staff of 19. The bar occupies one floor of the Bar Center under a lease with the Nebraska State Bar Foundation. Our staffing level is approximately 2/3 that of other unified bars of comparable size. As member of the NSBA, you pay $335.00 per year. Of that amount, $60.00 is the Supreme Court Disciplinary Assessment. The balance supports the activities of the Association. Bar dues have been increased twice in the last 10 years. In 1998 they were raised from $205 to $250. In 2001 the dues were reduced to $240 and a disciplinary assessment of $60 was added when the Supreme Court separated the Office of Counsel for Discipline from the NSBA. In 2009, they were increased to their current level of $275. The Association continues to develop non-dues revenue sources and works diligently to keep your dues at a reasonable level while continuing to offer a high level of service.

The loudest voices heard in support of the deunification of the NSBA base their arguments on our legislative program. The NSBA has been involved in the legislative process on some level for over 40 years. We first employed Legislative Counsel in the 1970s. Our process and legislative policy coupled with our legislative check-off fully satisfy the constitutional requirements established by the U.S. Supreme Court in Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228 (1990). Nonetheless, there are members who believe we take positions on issues that are beyond the scope of our legislative policy and the mission of the Association. I have made my position clear; I firmly believe that our involvement in the legislative process is important in assuring that the interests of lawyers, the courts and our clients are properly served. However, I believe there are areas and issues that are clearly beyond the scope of our program. I also believe that something as important as our legislative policy should be regularly reviewed to make certain it clearly guides our action. To that end and with the support of the Executive Council, I will appoint a Legislative Policy Task Force to review our legislative policy. The Task Force will be led by Jeff Peetz of Lincoln, and will include members from across the Association and our legislative counsel. It is my hope that this Task Force will come forward with its findings

PRESIDENT’S PAGE


PRESIDENT’S PAGE

major NSBA committees should be enlarged. The Task Force endorsed the representative nature of the HOD and concluded that it was truly representative of the membership at large.

The Supreme Court’s Comment period on the Lautenbaugh Petition will end on June 1. I encourage you to provide your comments. I also encourage you to contact me or any of the other officers or members of the Executive Council or House of Delegates regarding matters related to the Association. If by a stroke of my pen I could dispel any notion that this is a “Closed Club”, I would. The NSBA is not the President or Officers, the Executive Council or the House of Delegates. WE, THE LAWYERS OF NEBRASKA, ARE THE NSBA. In this as in all issues arising in our courts, councils and communities across the state, LAWYERS MATTER.

and recommendations for consideration of the EC and the HOD at the Annual meeting in October.

There are very important and specific reasons that we should remain as a unified Bar. Unlike local and specialty Bars, the NSBA speaks for the Nebraska lawyers as a whole. When we speak, those to whom our comments are addressed listen. Nebraska is more than 400 miles wide. Half of the active lawyers live in the Omaha Metro area with another twenty five percent in Lancaster County. Nonetheless, as a Unified Bar, the NSBA is proud to serve all of the Lawyers of Nebraska.

I assure you that the NSBA is taking the petition and the comments and concerns of the membership to heart and we are striving to improve both the quality of the service provided and your awareness of what the NSBA does.

What is the point of all this? The NSBA has as its overriding mission, service to the profession and membership. Last year President Bob Bartle formed a Task Force to reexamine the manner in which the Association is governed. After several months of work, the Task Force, led by Mike Kinney, concluded that the 91 member House of Delegates should be maintained and further concluded that its role in the

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

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

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On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) was signed into law. While the sweeping legislation is primarily aimed at large financial institutions that are deemed to be systemically important, smaller financial institutions and non-financial institutions are also affected in significant ways, including, by way of example, the Dodd-Frank Act’s impact on

private securities offerings. This article first discusses the new accredited investor standard that was mandated by the Dodd-Frank Act. Next, this article discusses the proposed Securities and Exchange Commission (“SEC”) rules that will, as required by the Dodd-Frank Act, disqualify certain “bad actors” from relying on the frequently used securities registration exemption provided by Rule 506 of Regulation D.

feature article

The Dodd-Frank Act’s Impact on Private Securities Offerings

by Daniel M. McMahon & Jeffery R. Schaffart

Daniel M. McMahonDaniel M. McMahon is a shareholder and member of Koley Jessen’s M&A/Securities and Business/General Counsel Practice Groups. He assists companies and private investment funds with respect to the structure and preparation for transactions, and represents the clients throughout the sale, acquisition, merger, or restructuring process. This includes conducting due diligence, drafting

and negotiating transaction documents, and advising on other closing and post-closing matters. He also counsels and advises clients on the formation and organization of new businesses, corporate governance matters, and business contracts. He also has extensive experience advising fund sponsors in connection with the organization, structuring, and operation of private investment funds. He assists clients from the fundraising process throughout the life of the fund, and advises and counsels clients with respect to the laws and regulations applicable to private investment funds and their sponsors, including investment adviser registration, securities law compliance, and SEC filings.

Jeffery R. Schaffart

Jeffery R. Schaffart is a shareholder and member of Koley Jessen’s M&A/Securities, Business/General Counsel, and Tax Practice Groups. He counsels clients on securities law issues including private offerings, registered public offerings under the Securities Act of 1933, disclosure and reporting obligations under the Securities Exchange Act of 1934, compliance

obligations under the Investment Advisers Act of 1940, and compliance obligations under the Investment Company Act of 1940. He also advises private equity clients on their structuring, organization, and operations. Jeff has counseled both franchisors and franchisees in franchise development and franchise relationship matters. Through his tax practice, Jeff counsels clients on corporate and partnership tax issues, including structuring and implementing transactions designed to achieve desired tax results. He is the current chair of the Nebraska State Bar Association’s Securities Law Section.

➡


I. Accredited Investor Standard

a. Background

The accredited investor standards, which are set forth in Rules 215 and 501 of the Securities Act of 1933 (the “Securities Act”), are used by issuers of securities in determining the availability of certain exemptions from Securities Act registration, primarily for private offerings. Rule 501 defines the term “accredited investor” for purposes of the Regulation D safe harbor exemptions (Rules 504, 505, and 506). Accredited investors do not have to be counted for purposes of determining the 35-purchaser limit of Rules 505 and 506, and, if sales made pursuant to Rules 505 or 506 are made only to accredited investors, no specified disclosure document has to be used. As the SEC noted in its adopting release (the “release”) (Release Nos. 33-9287; IA-3341; IC-29891: December 21, 2011), Regulation D (and thus Rule 501) is frequently and primarily relied upon for private offerings, while reliance on the exemption to which Rule 215 relates is rare.

Under both Rules 215 and 501, the definition of “accredited investor” includes persons that fall within any of the listed categories (or whom the issuer reasonably believes come within one of those categories) at the time such person purchases securities. One of the categories is the individual net worth standard. Prior to the enactment of the Dodd-Frank Act, the individual net worth standard provided that any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of that person’s purchase exceeded $1,000,000 was an accredited investor. Although “net worth” was not defined in the Securities Act, it was commonly understood to mean the excess of total assets, less total liabilities, in each case including those relating to the investor’s primary residence.

Effective as of July 21, 2010, Section 413(a) of the Dodd-Frank Act changed the individual net worth standard for purposes of the Securities Act to exclude from one’s assets, the value of a person’s primary residence and charged the SEC with implementing rules reflecting this requirement. The SEC subsequently issued guidance on July 23, 2010 that, in calculating net worth under this new standard, an investor may also exclude the amount of any indebtedness secured by his or her primary residence, up to the fair market value of the residence. The final rule issued by the SEC on December 21, 2011, adopts amendments to the individual net worth accredited investor standard in order to (i) codify the changes required by the Dodd-Frank Act and the SEC’s guidance regarding the same and (ii) provide further rules and guidance regarding the new standard, specifically with respect to the treatment of mortgage debt and limited grandfathering and transition matters (the “amendments”). The amendments became effective February 27, 2012.

b. Amendments

i. Primary Residence and Mortgage Debt

As noted above, a most significant change under the new standard is that an individual investor may not include any positive equity he/she may have in his/her primary residence as an asset in calculating his/her net worth. The SEC specifically declined to define “primary residence,” and instead noted in the release that such term has a commonly understood meaning as the home where a person lives most of the time.

One of the primary areas of further clarification and rule making in the amendments relates to the treatment of mortgage debt in the net worth calculation. As a general matter, indebtedness that is secured by the primary residence is not included as a liability when calculating net worth. However, there are two exceptions to this general rule.

First, mortgage indebtedness that is in excess of the estimated fair market value of the primary residence is included as a liability. The SEC received comments that excess mortgage debt should not be included as a liability in the net worth calculations if the borrower would not be subject to personal liability. The SEC rejected this view in the release and stated that it believed the full amount of the debt incurred by an investor is the most appropriate value to use in determining accredited investor status, since it is the basis upon which interest accrues and third parties would look in assessing creditworthiness. Thus, excess mortgage debt is included in the net worth calculation whether or not the lender can seek repayment from the purchaser’s other assets in default. (Note: In determining the value of the primary residence (as well as any other assets and liabilities) investors are not required to obtain a third party opinion on valuation. Rather, all that is required is an estimate of fair market value for such assets or liabilities.)

Second, increases in the amount of debt secured by the primary residence that are incurred in the 60 days before the sale of securities to the investor will be included as a liability in the net worth calculation. This is the case even if the estimated fair market value of the primary residence continues to exceed the aggregate amount of debt secured by the residence. The SEC stated in the release that it believes this look-back provision is necessary to prevent investors from artificially inflating their net worth by borrowing against their primary residence and converting their positive home equity (which would be excluded from the net worth calculation) into cash or other assets (which would be included in the net worth calculation). The 60-day look-back period will not apply to debt that was incurred as a result of the acquisition of the residence.

ii. Transition and Grandfathering

In adopting the amendments, the SEC determined that grandfathering and other transition relief (e.g., for issuers in

THE DODD-FRANK ACT’S IMPACT



Rule 505) contain “bad actor” disqualification requirements that prohibit issuers and others from participating in offerings if they have committed certain specified bad acts, such as securities fraud. In its current form, Rule 506 contains no such bad actor disqualifications. It is also important to note that, because Rule 506 offerings preempt state laws, any state-level bad actor disqualification rules that would otherwise be applicable do not apply to Rule 506 offerings.

Section 926 of the Dodd-Frank Act, entitled “Disqualifying felons and other ‘bad actors’ from Regulation D offerings” requires the SEC to adopt bad actor disqualification requirements that apply to Rule 506. Section 926 instructs that the SEC adopt disqualification rules that are substantially similar to those set forth in Rule 262 of Regulation A, as well as adopt certain additional disqualification triggering events that are not currently contemplated by Rule 262. As of the date this article was submitted for publication, the SEC was estimating that final Section 926 rules will be adopted in the first half of 2012.

b. Proposed Amendments

On May 25, 2011, the SEC proposed amendments to Regulation D to implement Section 926 of the Dodd-Frank Act (the “proposed rules”) (Release No. 33-9211: May 26, 2011). The proposed rules would be codified as a new paragraph (c) of Rule 506, and some of the highlights of the proposed rules include the following:

i. Covered Persons

The first critical element of the proposed rules is the list of persons that would be covered by the disqualification provisions (“covered persons”). The SEC proposes that the following persons be covered persons:

• the issuer and any predecessor of the issuer or affiliated issuer;

• any director, officer, general partner or managing member of the issuer;

• any beneficial owner of 10% or more of any class of the issuer’s equity securities;

• any promoter connected with the issuer in any capacity at the time of the sale;

• any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with sales of securities in the offering; and

• any director, officer, general partner, or managing member of any such compensated solicitor.

This list is substantially the same as the current list under Rule 262. Of note, however, the SEC expresses concern in the proposed rules that the breadth of the term “officer” (defined as “a president, vice president, secretary, treasurer or

the midst of an ongoing offering; or investors that intended to make follow-on investments as part of an investment plan) generally was not necessary or appropriate. Thus, the SEC has drawn a fairly bright-line rule: the previous accredited investor standard (as modified by the Dodd-Frank Act) will apply to all sales of securities made before February 27, 2012, and the new standard as reflected in the amendments will apply to all sales of securities made on or after such date. There is, however, one limited grandfathering exception. The amendments allow an investor who is not an accredited investor under the new net worth standard to use the previous net worth standard if (i) the investor is purchasing securities in accordance with a right to purchase such securities (e.g., pre-emptive rights under state law; rights arising under an issuer’s constituent documents; or contractual rights, such as options, warrants, convertible instruments, rights of first offer or refusal, or anti-dilution rights), (ii) the right was held by the person on July 20, 2010 (the day before the enactment of the Dodd-Frank Act), (iii) the person qualified as an accredited investor under the prior net worth standard at the time the right was acquired, and (iv) the person held securities of the same issuer (other than the right in question) on July 20, 2010.

iii. Future Review

Section 413(b) of the Dodd-Frank Act requires that, every four years, the SEC review the definition of “accredited investor”, as it relates to natural persons. In conducting such review, the SEC is to determine whether the definition should be adjusted or modified “for the protection of investors, in the public interest, and in light of the economy”.

II. Bad Actor

a. History

Rule 506 of Regulation D is a “safe harbor” for the private offering of securities under the Securities Act. In order to be within the safe harbor, the issuer, among other things, cannot use general solicitation or advertising to market the offering; must limit the offering to no more than 35 non-accredited investors; and must provide any non-accredited investors certain financial information about the issuer and confirm that such investors have (either alone or with a representative) sufficient knowledge and experience in financial and business matters to make them capable of evaluating the merits and risks of the proposed investment. Unlike Rules 504 and 505 (the other exemptive rules under Regulation D), issuers using the Rule 506 exemption can raise an unlimited amount of capital in the offering, which is one of the primary reasons that, according to the proposed rules (defined below), Rule 506 is the most widely used Regulation D exemption and accounts for the overwhelming majority of capital raised under Regulation D.

Other areas of the Securities Act (e.g., Regulation A and ➡



- being suspended or expelled from membership in, or suspended or barred from association with a member of, a registered national securities exchange or a national securities association for conduct inconsistent with just and equitable principles of trade.

In addition, the proposed rules would expand the Rule 262 list to include the following disqualifying events mandated by the Dodd-Frank Act:

• Final orders issued by state securities, banking, credit union, and insurance regulators, federal banking regulators, and the National Credit Union Administration that either:

- bar a person from association with an entity regulated by the regulator issuing the order, or from engaging in the business of securities, insurance, or banking, or from savings association or credit union activities; or

- are based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within a ten-year period; and

• Felony and misdemeanor convictions in connection with the purchase and sale of a security or involving the making of a false filing with the SEC.

Under the proposed rules, each of the above disqualifying events would generally relate to all covered persons, whereas, under Rule 262, certain disqualifications apply only to certain covered persons. Also, unlike Rule 262, which measures the look-back periods from the date the requisite offering filing is made with the SEC, the proposed rules would measure from the date of each sale for which the Rule 506 exemption is sought. Given that many Rule 506 offerings are on-going, multi-year offerings, this will require issuers to continuously monitor their compliance with the proposed rules.

iii. Other – Proposals

In addition to the two most critical elements described above, the SEC proposes certain other amendments in the proposed rules to address potential implementation and compliance issues.

(1) Reasonable Care

In an attempt to balance the burden on issuers of ascertaining whether disqualifications apply – particularly in light of the broad definition of “officers” and the lack of a public, central repository that would allow an issuer to determine whether a covered person has a disqualifying event in his or her past – and the issuers’ responsibility to screen bad actors out of their Rule 506 offerings, the SEC proposes a “reasonable care” exception. Under this proposal, an issuer would not lose the benefit of the Rule 506 safe harbor, despite a disqualifying event by a covered person, if the issuer can establish that it did not know, and, in the exercise of reasonable care, could not have known, that a covered person had committed a disqualifying

principal financial officer, comptroller or principal accounting officer, and any person routinely performing corresponding functions with respect to any organization”) could present significant challenges, particularly with respect to large financial institutions participating in the offering as placement agents, broker-dealers, finders, and advisors. The SEC notes that these firms may have a large number of employees that fall within this definition, many of whom are not involved in the offering and that, given the reasonable care requirements of issuers described below, could result in issuers expending significant time and resources attempting to comply with this proposed rule. Accordingly, the SEC has sought comment on whether covered persons should be limited to “executive officers”, those officers “actually involved with the offering”, or in some other manner; or whether the broad category in the proposed rule is justified because it would provide investors with greater protection.

The SEC also sought comment as to whether the proposed coverage of 10% equityholders is appropriate, or whether the threshold for covered persons should be increased or only applied to those persons that have a control stake in the issuer.

ii. Disqualifying Events

The second critical element of the proposed rules is the list of events and circumstances that give rise to disqualification if committed by a covered person (“disqualifying events”). The proposed rules would generally mirror the disqualifying events currently covered by Rule 262, which includes:

• Felony and misdemeanor convictions in connection with the purchase and/or sale of a security or involving the making of a false filing with the SEC with the last five years in the case of issuers and ten years in the case of other covered persons;

• Injunctions or court orders within the last five years against engaging in or continuing conduct or practices in connection with the purchase or sale of securities, or involving the making of any false filing with the SEC;

• U.S. Postal Service false representation orders within the last five years;

• Filing, or being named as an underwriter in, a registration statement that is the subject of a proceeding to determine whether a stop order should be issued, or as to which a stop order was issued within the last five years; and

• For covered persons other than the issuer:

- being subject to an SEC order:

• revoking or suspending their registration as a broker, dealer, municipal securities dealer, or investment adviser;

• placing limitations on their activities as such;

• barring them from association with any entity; or

• barring them from participating in an offering of penny stock; or



date of the proposed rules. And further proposes not to measure the disqualifying rules only at the time of the commencement of a Rule 506 offering, but rather at the time of each sale made in connection with that offering. Therefore, with respect to an on-going offering, the disqualification rules will apply to any sales made after the effective date. This could pose significant and unexpected compliance costs and delays for issuers in the midst of a Rule 506 offering, as they attempt to identify each of their covered persons, and confirm that none of them have disqualifying events. Moreover, if the disqualifying rules do apply, issuers will be faced with difficult business decisions (e.g., parting ways with an officer that has a disqualifying event or registering the offering) and contractual issues (e.g., query the impact on an exclusive placement agent arrangement if a covered person of the placement agent has a disqualifying event).

(3) Transition Period

Finally, the SEC has not proposed any transition or phase-in period. Thus, as noted above, issuers may be faced with unexpected delays, as they halt their offerings to confirm that they are not disqualified from relying on Rule 506.

III. ConclusionThe new accredited investor definition and the proposed

bad actor provisions have significant impacts on issuers, investors, and their counsel.

With respect to the new accredited investor definition, counsel to issuers who rely on the accredited investor definition, such as issuers engaged in Rule 506 offerings, should be certain to update their investor questionnaires and subscription agreements to reflect the new definition. In addition, if follow-on investments are contemplated, such as a capital call in the private equity context or the exercise of preemptive rights, whether the follow-on investment would be considered the exercise of a right that existed on July 20, 2010, or a new investment, should be analyzed. Finally, counsel to high net worth individual investors should re-evaluate whether such individuals still qualify as accredited investors that can continue to participate in the same manner in private offerings.

With respect to the bad actor disqualification provisions, which were still in proposed format on the date this article was submitted for publication, counsel to issuers contemplating or conducting a Rule 506 offering may want to begin preliminary bad actor compliance now so as to avoid potential lengthy delays upon enactment. Items to consider include beginning the waiver process if the covered person who is a bad actor is vital to the offering and exploring other potential offering exemptions – keeping in mind state “bad actor” rules. In addition, contracts with service providers, such as third-party placement agents, involved in the offering, as well as covered persons of the issuer, should contain termination provisions

event. To establish reasonable care, the issuer must conduct a factual inquiry, the nature of which would depend on the facts and circumstances of the situation (e.g., the likelihood that bad actors could be present; the presence of other screening and compliance mechanisms; and the cost and burden of the inquiry). The SEC indicates that the factual inquiry of the covered persons themselves – through questionnaires, for example – may be sufficient in some circumstances.

(2) Waivers

The proposed rules also provide that the SEC may grant a waiver from the disqualifying rules if it determines that the issuer has shown good cause as to why the disqualifying rules should not apply. The SEC did not, however, provide guidance on circumstances that are likely to give rise to the grant or denial of a waiver.

(3) Form D Amendments

Finally, the proposed rules would include a conforming amendment to Form D that would require issuers claiming a Rule 506 exemption to confirm that the offering is not disqualified from reliance on Rule 506 under the new rules.

iv. Other – Proposals Not Included

The following issues that are not addressed in the proposed rules are almost as important as the amendments that are proposed.

(1) Grandfathering

The SEC proposes not to exempt or “grandfather” potentially disqualifying events that occurred before the enactment of the Dodd-Frank Act. Thus, under the proposed rules, the disqualification provisions would apply to all sales made under Rule 506 after the effective date of the proposed rules, and all offerings would be subject to disqualification for all disqualifying events that had occurred within the relevant look-back period, in each case without regard to whether the disqualifying event occurred before the enactment of the Dodd-Frank Act. The proposed rules would not affect any offerings that closed, or transactions that were completed, before the effective date.

The SEC sought comment as to whether certain market participants would be unfairly impacted by the new rules. Specifically, it notes in the proposed rules that some participants may have entered into negotiated settlements prior to the enactment of the Dodd-Frank Act that would now, under the proposed rules, prohibit them from participating in Rule 506 offerings, and that such persons may have settled on different terms, or not at all, if they knew the settlement would result in disqualification from Rule 506.

(2) On-going Offerings

The SEC also proposes not to provide different treatment to offerings that are open and on-going at the time of the effective ➡



rules to any other offering exemptions that are not subject to “bad actor” provisions at this time (e.g., Rule 504), (ii) modify all existing “bad actor” provisions (i.e., Regulation A and Rule 506) to conform to the new Rule 506 provisions, and (iii) propose a uniform look-back period of ten years for any disqualifying events that have an express look-back period.

tied to the proposed bad actor rules.

Finally, as with any area of law, practitioners should stay

alert for further changes to the Securities Act arising from

the Dodd-Frank Act. For example, the SEC is currently

considering whether to (i) apply the new Rule 506 disqualifying

NSBA Banking & Bankruptcy Sections CLEFriday, June 15, 2012 • 9:00 am - 3:30 pm

Embassy Suites - La Vista • 12520 Westport Parkway • La Vista, Nebraska 68128-2198*MCLE Activity #67674. 5.25 CLE hours including 1.0 hour ethics.

REGISTRATION FORM: Banking & Bankruptcy Sections CLE - June 15, 2012c Registration - $247.50 c Banking & Bankruptcy Section Members - $210c Materials on CD - $55 c Printed materials (special order) - $95 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

8:55 am Welcome and AnnouncementsMichael W. McDannel, Jenna B. Taylor

9:00 am UCC /Legislative Update Robert J. Hallstrom, Gerald M. Stilmock

10:05 am Bankruptcy Case Law UpdateThomas O. Ashby, Brandon R. Tomjack; Brian Koenig; Matthew Speiker; Kristin Farwell

10:50 am Break

11:10 am Dodd Frank/A Year Later - What Has Changed? JonathanWagner; David C. Solheim

12:10 pm Lunch (included with your registration)

12:50 pm State Chartered BanksWhat is working; What has not worked; Areas where legal counsel can help the bank. John Munn

1:20 pm Electronic RecordsLiability for Breach; Duties/Best Practice James E. O’Connor, Gray Derrick

2:20 pm Break

2:30 pm Ethical Issues for AttorneysWho is your client?; What are your duties? Thomas Ostdiek

3:30 pm Adjourn/Social Hour


When attorneys fail to agree on how to simply pronounce a four letter word, the prospects are not good for agreeing on much else about what to do with the word. Such is the case with the lien. We all have a basic understanding of what a “leen” is, or the practical value of possessing a “lee-ən” on someone’s property. However, the Ninth Edition of Black’s Law Dictionary identifies no less than 69 specific variations of liens in its general definition of lien.1 This brief article is intended to start demystifying this jumbled world of liens and provide a bird’s eye view of liens for today’s practitioner seeking to enforce payment of a secured debt.

For starters, a lien is generally defined as a “legal right or interest that a creditor has in another’s property, lasting usu[ally] until a debt or duty that it secures is satisfied. Typically, the creditor does not take possession of the property on which the lien has been obtained.”2 Ultimately, most practitioners are concerned with establishing when such a lien is enforceable, both against the lienee as well as against competing lienholders staking a claim to the property. First, though, we should start with a basic understanding of where liens come from.

Sources of LiensThere are five main sources of liens, which should not be

confused with types of liens. The main sources are: (1) statute; (2) agreement of the parties; (3) judicial actions when equity requires; (4) established custom and usage of a particular trade; and (5) from a mode of dealing between the parties.3 Unless created by operation of some positive rule of law, like a statute, generally a property owner must consent to the lien.4 Consent from the property owner may be by implied or express contract.5 However, even in the absence of a statute or consensual agreement, courts may decree an equitable lien when certain equities exist.6

Types of LiensFrom these sources of liens, courts and commentators

have generally categorized liens into three main types.7 They are statutory liens, equitable liens, and common-law liens.8 Correlated with the sources identified above, statutory liens clearly arise by statute; equitable liens generally arise by agreement of the parties or through judicial action when equity requires; and common-law liens arise from established custom and usage of a particular trade or from a mode of dealing between the parties.

Common-Law Liens

Originally, there were common-law liens. A common-law lien is the right to retain possession of property belonging to another until certain obligations are fulfilled.9 It is directly based on the principle of possession.10 A common-law lien only gives the power of possession. It does not confer power to sell the property for purposes of paying the lien.11 For example,

feature article

You Say Lee- n, I Say Leen :Demystifying Liens So That More Secured Debts Are Paid

by Ben Thompson

Ben Thompson

Ben Thompson is the founding and managing attorney at Thompson Law Office in West Omaha. He thinks about liens often enough that they creep into his dreams. He thought it was time to say something. He can be replied to at 402-330-3060, ext. 111.

e

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a court of equity has no jurisdiction to foreclose upon a bill solely for the purpose of selling the property. However, if the court obtains jurisdiction for another purpose, it may order the sale of the property to satisfy a common-law lien.12 Because a common-law lien is based on possession, a court of equity will not recognize a common-law lien where possession is not legally present.13

In Nebraska, nonconsensual common-law liens are disfavored.14 A nonconsensual common-law lien is defined as any lien that is not a statutory lien, does not depend on the consent of the property’s owner, and is not an equitable or constructive lien imposed by a court.15 Persons found to have recorded such liens against either personal or real property can be held liable for actual damages plus costs and reasonable attorney’s fees.16 Further, the law provides for such liens to be refused for recording,17 and if recorded, stricken from the record.18

Equitable Liens

An equitable lien can be decreed when a lienor demonstrates to the court that they are owed a debt, duty, or obligation by another who intended for some identifiable and described property to serve as security for the debt, duty, or obligation; the leinor is entitled to a debt; and there is no other adequate remedy at law available to the lienor.19 Unlike a common-law lien, possession of the property remains with the debtor when an equitable lien is claimed.20

Equitable liens may be created by express contract, or by implication stemming from relations and dealings between the parties.21 Assignment of a contract, debt, or fund also creates equitable liens along with judicial decrees.22 Some courts have held that equitable liens may be claimed based on the doctrine of unjust enrichment, although it has also been held that such a remedy is not justified if damages are available for unjust enrichment.23

There is some confusion about whether an equitable lien is more properly characterized as a remedy by which a court decrees a lien even in the absence of an agreement, or whether it also includes liens agreed to by the parties but merely enforced in an equitable proceeding. However, courts and commentators generally characterize as equitable liens any liens not arising from the common-law or created by statute, regardless of whether the lien was agreed to by the debtor.

Statutory Liens

Statutory liens are liens created by statute.24 They do not require possession or consent.25 Subject to constitutional limits, the legislature has the power to create liens providing for the payment of debts and various other obligations.26 Legislative authority includes the ability to create a right of lien that did not exist at common law.27 The legislature also possesses the

power to define, limit, and establish the priority of statutory liens.28 A positive legislative enactment prescribing conditions essential to the existence and preservation of a statutory lien may not be disregarded.29

Statutory liens are limited both in operation and extent by the terms of the statute itself.30 They only arise and can only be enforced under the facts provided in the statute.31 Courts are unable to extend the right of lien to cases not provided for within the statute.32 Statutory liens are to be strictly construed as to persons they benefit, and the procedure necessary to perfect and lien.33 In instances where the legislature codifies a common law lien, the lien must conform to the common law principles.34 However, if the legislature has expanded and defined a common-law lien, the statute supersedes the common law definitions of the courts.35

The existence of a statutory lien depends on compliance with the terms of the statute.36 Courts have held both that strict compliance is necessary, as well as substantial compliance as sufficient.37 The courts that found substantial compliance as sufficient determined that “substantial compliance” was based on the degree of noncompliance; the underlying policy of the statute in question; and the potential for prejudice that parties with an interest in the property may suffer as a result of noncompliance.38 The Nebraska Court of Appeals has found substantial compliance sufficient for the hospital lien statute.39

Enforceability and Priority of LiensIn general, a lien becomes “choate” and enforceable against

the lienee or debtor as soon as the lien “attaches.” For the lien to become enforceable against a third party, the lien must first be “perfected.” Many courts and commentators have used interchangeably the terms “inchoate,” “choate,” “attachment,” and “perfection” in evaluating when liens are enforceable. Unfortunately, Nebraska court cases are inconsistent in their treatment of these terms and concepts as well.40

However, Black’s Law Dictionary succinctly defines attachment as it pertains to security interests as:

4. The creation of a security interest in property, occurring when the debtor agrees to the security, receives value from the secured party, and obtains rights in the collateral. UCC § 9-203. Cf. PERFECTION.

In contrast, perfection is defined as:

Validation of a security interest as against other creditors, usu. by filing a statement with some public office or by taking possession of the collateral. Cf. ATTACHMENT (4).41

Note that the definition of each explicitly directs the reader to compare the term to the other.

Given these two different concepts, a lien may attach and be enforceable as to the lienee at a different time than it is

DEMYSTIFYING LIENS


DEMYSTIFYING LIENS

existed of the competing interest. Other more specific statutes may govern priority as to specific liens.

Methods of Enforcing LiensThe appropriate method of enforcing liens generally

depends on the type of lien involved. A common-law lien, being possessory in nature, is self-enforcing. An equitable lien generally involves a court action to weigh the equities in a given case. Enforcement of a statutory lien is prescribed by the statute by which it is created.55 If the statute creates a specific remedy for the enforcement of the statutory lien, the court of equity lacks jurisdiction to enforce it. A statutory provision that provides for the foreclosure of the statutory lien is exclusive and must be followed. Where a statute creating a lien provides no method for its enforcement, it may be enforced by an ordinary action at law for the collection of the debt.56

Before You Call the Whole Thing OffThere is still much to say about liens – but it will require

another dream. For now, know that when seeking to enforce a lien, the practicing attorney should have a firm grasp of where the lien came from, how it is classified, and any special rules for enforcing it as against competing liens seeking priority.

Endnotes1 BLACK’S LAW DICTIONARY, (9th Ed. 2009).2 BLACK’S LAW DICTIONARY, (9th Ed. 2009).3 53 C.J.S. LIENS § 10 (2012).4 Id. 5 Id. 6 Id.7 51 AM JUR 2D LIENS § 7 (2010).8 Id.9 51 AM JUR 2D LIENS § 25 (2010).10 Id.11 Id. at §80.12 Id.13 Id.14 Neb. Rev. Stat. § 52-1901 to § 52-1904 (2012). 15 Neb. Rev. Stat. § 52-1901 (2012).16 Neb. Rev. Stat. § 52-1902 (2012).17 Neb. Rev. Stat. § 52-1903 (2012).18 Neb. Rev. Stat. § 52-1904 (2012).19 51 AM JUR 2D LIENS § 34 (2010).20 51 AM JUR 2D LIENS § 7 (2010).21 51 AM JUR 2D LIENS § 39 (2010).22 Id.23 51 AM JUR 2D LIENS § 38 (2010).24 51 AM JUR 2D LIENS § 52 (2010).25 Id.26 Id. at § 53.27 Id.28 Id.

perfected and enforceable against a third party creditor. The critical distinction is that attachment merely requires that the identity of the lienor, the property subject to the lien, and the amount of the lien be established;42 whereas perfection requires notice to the third party.43 As noted in American Jurisprudence, Second Edition:

The perfection of a lien protects the lienor from third parties without knowledge and protects third parties who act in good faith and without notice; perfection does not change the relationship of the lienor and lienee. ‘Perfection’ refers to that single date, or moment in time, when a creditor obtains a superior lien that cannot be overcome by another creditor on a simple contract.44

A lien created by statute is limited in operation and extent by the terms of the statute and can arise and be enforced only in the event and under the facts and conditions provided in the statute.45 It cannot be extended by the court to cases not within the statute.46 A positive legislative enactment prescribing conditions essential to the existence and preservation of a statutory lien may not be disregarded.47

Liens created by agreement or statute are subordinate to all existing rights in the property and are generally governed by the rule “first in time, first in right.”48 The priority of liens generally depends upon the time that they attach or become specific and perfected. Ordinarily a prior lien gives a prior legal right that is entitled to prior satisfaction out of the subject it binds (“first in time, first in right”), unless the lien is intrinsically defective or is displaced by some act of the party holding it or unless the priority of liens is regulated by a statute that provides a different priority rule.49

For personal property, the common law rule would generally apply. The Uniform Commercial Code extends a similar rule to secured transactions covered by the Code. It provides that “[p]riority dates from the earlier of the time a filing covering the collateral is first made or the security interest or agricultural lien is first perfected.”50

In the case of debts secured by real property, the traditional “first in time, first in right” rule’s “significance has been greatly reduced by legislation.”51 “The recording acts adopted in most states carve out two exceptions to the basic first-in-time rule.”52 A major exception recognized by almost all states is that of the bona fide purchaser doctrine.53

Such is the case with Nebraska’s recording act at Section 76-238, which is a “race-notice” statute. It requires that a bona fide purchaser have no notice of earlier interests in the property. One must both “win the race” and be without notice to claim the protection of the recording act.54 This statute contrasts with the common-law “first in time” rule in that the latter is concerned solely with dates of recording, whereas the former considers both the date of recording and whether notice ➡


DEMYSTIFYING LIENS

42 United States v. New Britain, 347 U.S. 81. 84, 74 S.Ct. 367, 98 L.Ed. 520 (1954). See also 51 AM JUR 2D LIENS § 8 (2010).

43 See 51 AM JUR 2D LIENS § 8 (2010); 51 AM JUR 2D LIENS § 68 (2010).

44 51 AM JUR 2D LIENS § 22 (2010).45 County Board of Supervisors v. Breese, 171 Neb. 37, 105 N.W.2d

478 (1960).46 Neb. Health Sys. v. Bear (In re Marshall), 10 Neb. App. 589 (Neb.

Ct. App. 2001).47 County Board of Supervisors v. Breese, 171 Neb. 37, 105 N.W.2d

478 (1960).48 51 AM JUR 2D LIENS § 68 (2010). 49 51 AM JUR 2D LIENS § 70 (2010).50 Neb. Rev. Stat. (U.C.C.) § 9-322 (2012).51 John G. Sprankling, UNDERSTANDING PROPERTY

LAW § 24.02 (2nd Ed. 2007).52 Id.53 Id. at § 24.03.54 Neb. Rev. Stat. § 76-238(1) (“All deeds, mortgages, and other

instruments of writing which are required to be or which under the laws of this state may be recorded, shall take effect and be in force from and after the time of delivering such instruments to the register of deeds for recording, and not before, as to all creditors and subsequent purchasers in good faith without notice.”).

55 51 AM JUR 2D LIENS § 81 (2010).56 Id.57 53 C.J.S. LIENS § 32 (2012).

29 County Board of Supervisors v. Breese, 171 Neb. 37, 105 N.W.2d 478 (1960).

30 Id. at § 54.31 Id.32 Id.33 Id.34 Id.35 Id.36 Id. at § 56.37 Id.38 Id.39 Neb. Health Sys. v. Bear (In re Marshall), 10 Neb. App. 589 (Neb.

Ct. App. 2001).40 See West Nebraska General Hosp. v. Farmers Ins. Exchange,

239 Neb. 281, 75 N.W.2d 901 (1991) (accurately recognizing distinction; “A hospital lien is enforceable against the patient upon attachment, but perfection is required if the hospital seeks to enforce the lien against third parties.”); cf. Allied Mut. Ins. Co. v. Midplains Waste Mgmt., L.L.C., 259 Neb. 808, 612 N.W.2d 488 (2000) (inaccurately confusing perfection for attachment; “For purposes of the first in time rule, a competing state lien is in existence only when it has been perfected in the sense that the identity of the lienor, the property subject to the lien, and the amount of the lien are established.”); Omaha Nat’l Bank v. Continental Western Corp., 203 Neb. 264, 270, 278 N.W.2d 339, 343 (1979) (inaccurately confusing perfection for attachment; “When, however, several junior lienors have taken security upon the same tract, their relative priority will depend upon the time when their liens attached.”).

41 BLACK’S LAW DICTIONARY (9th Ed. 2009).


Many events prompt clients to finally go out and get a will made. My last few clients were pulled in by the death of a close friend, the birth of a child, and a New Year’s resolution. There are many concerns that each practitioner tries to go through during a consultation: Mark Goodall uses the 3 Ds of Death, Divorce, and Debt when thinking about what could put a crimp in the plan if such an event should impact the client, their attorney-in-fact, the PR for their estate, an heir, etc. I’ve started talking about 4 Ds with each planning client, adding Disability, and more specifically, the possible need for long-term care.

Medicaid, the insurance of last resort, is a need-based program that many people never approach until faced with the costs of Long-Term Care. Medicaid, along with other funding options, will be confronted by an increasing number of clients. Client biases against welfare or government programs will often melt away in the face of Long-Term Care costs. The options for planning vary quite a bit of course, but here are

some key options and misconceptions that an estate planner should be aware of:

1. Long-Term Care will be a significant financial factor for many clients.

The US Department of Health and Human Services estimates that 70% of adults age 65 and older will need some Long-Term Care.1 The AARP’s State Scorecard for Nebraska puts the annual cost of care for a private-pay nursing home resident at 217% of median household income at age 65 and the cost of private-pay home care at 96%.2 Long term care needs present a substantial threat to clients’ nest eggs. The threat becomes more immediate as clients age, but raising the issue with younger clients plants the seed for planning at a stage when more options, including Long-Term Care Insurance, may still be attainable.

2. Medicare coverage of Long-Term Care is very limited.

Many people are surprised to learn that the coverage for Long-Term Care is quite limited. It may get a client through a stint in rehab, but even that is subject to unexpected limitations like the requirement for 3 consecutive days of hospitalization before even rehabilitative services will be covered by Medicare.3 Coverage may also be cut under the “improvement standard”, ending coverage if a client’s condition plateaus or is really in need of “maintenance care only”. This standard is being contested, but is currently in force.4

3. Private health insurance policies rarely cover Long-Term Care

If clients want to purchase coverage for Long-Term Care,

feature article

Ten Things Every Estate Planner Should Know About Long Term Care

by Nick Halbur

Nick HalburNick Halbur is an Associate Attorney at the Thompson Law Office practicing in Iowa and Nebraska. He has been practicing for 5 years, primarily in the areas of elder law, estate planning and pro-bate. He began his practice career in a teaching fellowship for the University of St. Thomas’ Elder Law Clinic where he practiced, taught, and supervised student work for low-income individuals

in need of long-term care. Nick is currently the Treasurer of the Elder Law Section of the NSBA.

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then they should be told to seek out a specialized policy, as basic health insurance policies rarely cover this need. There are an increasing number of financial products that offer Long-Term Care riders (annuities and life insurance policies). On the good-news side I have had clients who did not believe that they had any coverage, but a closer examination revealed some Long-Term Care benefits available through a life insurance policy.

4. Medicaid will cover Long-Term Care costs when a client meets income and asset limitations.

A Nebraskan seeking Medicaid coverage for a nursing home stay can only keep $4000 in countable assets (there are a number of exemptions, including many for planning a funeral) but that individual’s spouse may keep up to $113,640 of countable assets. Not all of the DHHS benefits workers are familiar with every program and may not understand the availability of benefits to one spouse while the other maintains this level of assets. Clients need an advocate who does know the rules.

Income qualification focuses on the individual applying for Medicaid coverage and not the spouse. If the cost of care exceeds income, then the applicant qualified under the “medically needy” standard.

5. When exploring the possibility of Medicaid coverage, never assume that other laws, or logic, apply.

This rule is how I introduced my class on Medicaid when I taught the Elder Law Clinic at the University of St. Thomas and as I went through the program’s rules I would often refer back to it as a guiding principle. The coverage of Long-Term Care is very expensive to the Medicaid program but it is also a real possibility for many families given the size of the potential expenses. The result is a system with much more complexity than clients suspect. Advice that makes very good sense for financial and tax planning will sometimes be undermined by the implications in Medicaid.

6. The Medicaid look back period for gifts is currently 5 years.

Clients can be penalized for giving things away (the application for Medicaid in Nebraska asks for disclosure of “substantial gifts”) as well as transfers for less than fair market value in the 5 years prior to application for Medicaid benefits. The amount of all such transfers are added and divided by an amount that is linked to the average cost of a month of nursing home care. The resulting number is the number of months of the penalty. Prior law provided for a 3 year look back period and I have had clients and other professionals (though no lawyers recently) who still believe it is a 3 year rule. The old law also provided for the penalty to begin on the date of

the transfer, but now a client doesn’t start living through the transfer until they have applied and are eligible. For a single person that means they need to find a way to pay privately through a Medicaid penalty that doesn’t start until they are down to $4,000 in assets.

There are strategies that involve making gifts with a portion of the client’s funds and using the remaining funds to create a payment source to bridge the penalty period. Empowering a financial attorney-in-fact to make gifts makes these strategies much easier to implement if the Long-Term Care client has lost capacity at the time when a Medicaid plan must be put in place.

7. Life insurance can be a resource.

This is a good example of a Medicaid rule that goes against most people’s expectations. If a life insurance policy has a cash-out value, then that cash out value is an available resource. The cash out value on many policies is much lower than the death benefit, so a client with such policies has a very challenging decision to make about whether to pursue Medicaid coverage.

8. Know the asset assessment date for Medicaid.

A couple applying for Medicaid coverage for one spouse will need to verify their resources at 2 points in time. The first will be the asset assessment date, which is when the spouse in need of coverage entered into care (the hospital, nursing home, assisted living facility, etc). The resources on that date are used to calculate what the well spouse or community spouse can keep in countable resources. The community spouse can keep all resources up to a minimum of $22,728 or half of the countable assets owned by the couple on the asset assessment date, up to the maximum of $113,640. The minimum and maximum amounts change annually. So, it may be advantageous to keep countable assets above twice the maximum if a need for Long-Term Care is anticipated and reserve some simple strategies for a quick spenddown until after entry into care.

Combining the dangers of 7 & 8, one client submitted her assets to DHHS at the time of admission, but failed to report her and her husband’s life insurance policies based on poor advice of a family member. That resulted in a resource allowance for her that was about $25,000 lower than it should have been. Fixing that on the back end involved significantly more work and would typically require a hearing before an Administrative Law Judge.

9. Veterans Administration Pensions are available to cover some Long-Term Care costs.

With an other than dishonorable discharge, 90 days of active duty service, and one day of service during a qualifying war period, a Veteran, Veteran’s Spouse, or Veteran’s widow(er), can receive a pension that increases if they meet

TEN THINGS


TEN THINGS

available to obtain Medicaid or VA Benefits in an efficient manner. I’ve had a number of consultations with clients who were told by other professionals that there just wasn’t anything to be done in terms of planning for present or future costs. Coordination with an attorney or financial advisor familiar with the full spectrum of funding options may be necessary to provide clients with the excellent level of advice that we all strive for.

Endnotes1 http://www.longtermcare.gov/LTC/Main_Site/index.aspx2 http://www.longtermscorecard.org/DataByState/State.

aspx?state=NE 3 42 USC § 1395x(i)4 http://www.medicareadvocacy.org/medicare-info/improvement-

standard-2/

the VA definition of “homebound” or “in need of regular aid and attendance”. In 2012 the aid and attendance maximum monthly payment is $1703 to a Veteran. There are income and asset limitations, but they are more generous than Medicaid limitations. This is a significant source of potential coverage for Long-Term Care that very few Veterans are aware of. VA rules restrict anyone from being paid to assist in filling out the benefits application and VA Accreditation is required to represent an individual before the VA if an appeal is necessary.

10. Planning can be done.

Even with all of the limitations, severe rules, and the high cost of care, planning can be done. From a wise and efficient spenddown to the conversion of excess resources into specialized types of income streams, clients do have options

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In Nebraska, as in other states, a variety of administrative boards are established to make all kinds of decisions and to adjudicate all manner of disputes. But what most of those appearing before those panels and even some of the attorneys representing them do not realize is that the deck is stacked against them. As a result, those administrative boards are free to violate the rights of many of those who appear before them with impunity, with full knowledge that their processes and decisions will likely never be reviewed by a court. In Nebraska, this has become a real problem. And real people have suffered and continue to suffer as a result.

In Nebraska, a party seeking to appeal a decision from an administrative board normally does so to the District Court of the county in which that board sits. The standards for such a review are well-settled.

“In reviewing the action of an administrative panel, in an appeal to the district court from a

final decision of an administrative agency, under the Administrative Procedures Act, Neb.Rev.Stat §§ 84-901 to 84-919 (Reissue 1981 & Cum.Supp.1984), the district court may affirm the decision of the agency or remand the case for fur-ther proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the agency decision is:

(a) In violation of constitutional provisions;

(b) In excess of the statutory authority of jurisdic-tion of the agency;

c) Made upon unlawful procedure;

(d) Affected by other error of law:

(e) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or

(f) Arbitrary or capricious.”

Zybach v. State of Nebraska,. Dept. of Social Services, 226 Neb. 396, citing Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).

The Nebraska Supreme Court has been clear on the point that the courts in the State of Nebraska cannot take judicial notice of ordinances or the rules or procedures of administrative boards, etc. Zybach, supra at 401-2, 411 N.W.2d 627, 631 (Neb. 1987), citing Nevels v. State, 205 Neb. 642, 646, 289 N.W.2d 511, 513 (1980). In order then for the District Court to be able to review an appeal from an administrative board, the ordinances or rules, governing the process that a petitioner is entitled to before the administrative board, including the rules by which that board must conduct itself and review the matter before it, must be entered into the record before the administrative board.

feature article

Justice DeniedHow a Gaping Hole in Nebraska Law Deprives Those Appearing Before Administrative Boards of Justice

by Thomas J. Freeman

Thomas J. FreemanThomas J. Freeman is a partner at the law firm of Wulff & Freeman, LLC. Starting in the fall of 2012, he will be teaching Negotiations as an Adjunct Professor at Creighton University School of Law. Mr. Freeman received a J.D. from Creighton Law in 2007, a M.S. in Negotiation and Dispute Resolution from the Werner Institute at Creighton University in 2009 and a M.B.A. from Creighton

University in 2012. The opinions expressed are his own.➡


It will not suffice to ask the administrative board to simply take judicial notice of its own rules or the right to appeal. The district court will reject an appeal if the rules or ordinances that authorize an administrative panel to decide a matter and control how it is required to reach its decision are not made part of the record before the administrative panel. This sets up a disturbing situation, where regardless of whether the process or ultimate decision of an administrative panel is just, equitable, supported by the evidence or even follows that board’s own rules, an appeal of its decision may simply be unavailable.

Even more troubling is the fact that pro se petitioners appearing before these boards and even some of the attorneys they hire to represent them are unaware of these procedural requirements. The administrative boards are certainly aware of them and know that if the necessary steps to protect an appeal are not taken, then any decision they reach won’t be reviewed. As a result, they can then feel free to render whatever decision they want, and completely disregard both the law and their own rules. Under those circumstances, the boards are answerable to no one and the petitioners who appear before them are entirely at their mercy. This is a particularly dangerous situation in the current economic climate, when certain administrative bodies that handle money, such as pension boards, might be even more tempted than usual to violate the rights and sacrifice the livelihoods of those appearing before them, all in the name of saving a few dollars and making their balance sheets look a bit better. I have seen some truly despicable abuses of the administrative process by these boards, committed with full knowledge that their processes or decisions are unlikely to ever be reviewed. What follows are two examples:

Jeanie Zaporowski vs. City of Omaha, et al.Ms. Zaporowski was a civilian employee of the City of

Omaha who was injured in a work accident in 1991. She received a service-connected disability pension in 1992. Her pension was reviewed and continued seven (7) times prior to being reviewed in 2010. The process by which a petitioner’s application for a service-connected disability pension is clearly laid out, both as a matter of collectively bargained union contracts and in the Ordinances of the City of Omaha (§22-21 et seq.) The current rule is that if an employee has accumulated more than 13 pay periods of service credit and sustains a work-related injury that renders him permanently unfit to perform the duties of his current job classification and the City is unable to accommodate the employee by reassigning him to a different classification of not less than twenty percent of his current pay grade, the employee is entitled to a service-connected disability pension. The rule that was in place at the time that Ms. Zaporowski’s pension was granted in 1992 did not offer the City the opportunity to accommodate the injured employee, mandating that if a return to the injured employee’s

previous position was not possible, the employee was entitled to a disability pension.

A memorandum from the City of Omaha Law Department to the Board made clear that Ms. Zaporowski was grandfathered in under the old policy and that her pension should be reviewed under that standard. Despite that, the Board proceeded erroneously to review her pension under the newer policy. But under either standard, Ms. Zaporowski continued to be disabled during her pension review in 2010. The medical evidence made clear that she could not return to either her old position with the City or to any other position offered by the City. That evidence was further supported by a memorandum from the City’s then-Acting Labor Relations Director that made clear that based on the medical evidence available, Ms. Zaporowski could not safely perform the jobs that the City had proposed for her and that attempting to do so would subject her to risk of further injury and harm. There was no evidence in the record that indicated that the City could accommodate Ms. Zaporowski and ample evidence it could not. The medical reports and memorandum from the City’s then-Acting Labor Relations Director that Ms. Zaporowski could not be accommodated were uncontroverted.

Ms. Zaporowski had not at that time of her pension review in 2010 hired an attorney to represent her. She lives in Arizona and is unable to travel due to her disability. So even if she had known that the City Ordinances needed to be entered to preserve her right to appeal, she had no reasonable means to enter them.

Despite what was a clear case where a service-connected disability pension should have simply been continued, the Pension Board voted to terminate Ms. Zaporowski’s pension. There was absolutely no evidence to support that decision and it was made in the face of overwhelming and uncontroverted evidence that she remained permanently disabled. It should also not be lost in this that including the initial hearing where her pension was granted in 1992, this same board had found that she was permanently disabled on eight previous occasions over the course of more than seventeen years.

After a year of protracted litigation in state and federal courts, we were finally able to force the Board to restore Ms. Zaporowski’s disability pension retroactive to the date her pension was terminated and to force the Board to pay a significant portion of her attorney fees. But the loss of the bulk of her income for so long took an enormous emotional and financial toll. She will ultimately lose her home as a result of being deprived of her pension for so long. And the emotional toll of the stress of dealing with all of this took a terrible toll on her health.

Robert Bazer, Jr. Mr. Bazer was an employee of the City of Omaha who

JUSTICE DENIED


JUSTICE DENIED

civilian employee or a member of the police or fire departments, covers the rules the board is bound by in determining whether the petitioner is entitled to receive a pension. By offering both Article VI and either Article II or III, you insure that if an appeal is necessary, the district court will have jurisdiction of the matter as well as the necessary rules to conduct a review of the board’s process and ultimate decision. The simple fact that the board will be aware that those procedural requirements have been satisfied and that the right to appeal has been preserved will also help to insure that they act appropriately and in accordance with the law and its own rules.

2) If you represent a client who has already had a hearing before an administrative board and would like to appeal that decision but did not introduce the necessary ordinances to preserve the right to appeal, all hope may not be entirely lost. Examine the record for any due process issues that can be raised on appeal. For example, if the client was not provided with notice of the hearing at which the decision was made and was thus not able to attend, a good argument can be made that the claimant can hardly be held responsible for not introducing the necessary ordinances to preserve an appeal at that hearing. So look for whether your client was informed of the date, time and location of the hearing. Also take a look at the record and see whether your client was duly apprised of the stakes, that is, whether the Board informed him of the action it was contemplating. If not, that constitutes another possible due process argument that can be raised.

If the board did not comply with its Constitutional duties with respect to affording due process, then the proper course of action for the district court on appeal would be to either reverse that board’s decision or in the alternative to remand the decision back to the board for a rehearing. Under these circumstances, a remand is really a win, since the client will have the opportunity to have competent representation with knowledge of the procedural requirements at any rehearing. In my experience, administrative boards are a lot more reluctant to abuse their authority when they know a party is represented and are aware that any unreasonable or arbitrary decision they might make is likely to be appealed.

3) If there are due process violations committed by the board, then it may make sense to bring a separate federal claim to address those. If the board treated your client differently than other similarly situated individuals who have appeared before the board, then an equal protection claim may also be a possibility. The fact that an appeal may not be possible in state court doesn’t prevent action in federal court to address any rights violations the Board may have committed. A claim brought under certain federal statutes, such as 42 U.S.C. 1983 can also make the recovery of attorney fees a possibility, which increases the potential exposure of the board and provides some

applied for a service-connected disability pension in 2011 due to a work-related back injury. He presented the Board with medical evidence that he suffered a permanent disability as a result. Both his primary treating physician and the doctor the Board sent Mr. Bazer to made clear in records provided to the Board the extent of his disability. The City’s Labor Relations Manager issued a memorandum to the Board stating that he had reviewed the medical reports in the case, Mr. Bazer’s previous position and the positions available within the City. After doing so, he concluded that “It is the City’s position that Mr. Bazer cannot be reasonably accommodated at this time due to his permanent medical restrictions and his overall educational (sic) and experience.” Despite this evidence, which was unrefuted, at its meeting in December of 2011 the Board voted down a motion to grant Mr. Bazer a service-connected disability pension on a 3-4 vote.

After being retained shortly after his pension was denied, we applied for reconsideration of the Board’s denial and also submitted a new application for a service-connected disability pension. We offered the Union Contract and the City Ordinances as exhibits for those hearings. At the Board’s hearing in January of 2012, it voted to approve Mr. Bazer’s application for a service-connected disability pension on a 6-1 vote. The only meaningful distinctions between Mr. Bazer’s applications for a disability pension made in December and in January were that at the January meeting, Mr. Bazer was represented and the Union Contract and City Ordinances were a part of the record.

Practice Tips1) Any attorney appearing before an administrative board

should be familiar with the rules governing that board, the administrative process and the steps necessary to preserve the right to appeal. Failing to do so, in my opinion, constitutes malpractice. For example, for a proceeding before the Omaha Civilian Employees’ Pension Board, the City Ordinances, Article VI, which includes Sec. 2-161 thru Sec. 2-250 and Article II, Employees Retirement System Sec. 22-21 through 22-60 need to be included as an exhibit at the hearing. For a proceeding before the Omaha Police and Fire Pension Board, Article VI, which includes Sec. 2-161 thru Sec. 2-250 should still be offered, but should be combined with Article III, Sec. 22-61 thru Sec. 22-101.5, as the Board and processes governing the entitlement to a pension are different for civilian employees than for members of the police and fire departments. It is also a good idea to include the applicable union contracts, which make clear that that the process by which the Board determines whether an applicant merits a disability pension is collectively bargained for.

Article VI establishes the right to appeal to the district court from a decision by either of these administrative boards. Article II or III, depending on whether the petitioner is a ➡


JUSTICE DENIED

appearing before them, including the right to appeal that board’s decision.

Toward that end, state law should make it the responsibility of all administrative bodies in Nebraska, whether state, county, municipal, etc. to enter into the record of any proceeding that board’s own rules establishing its authority and governing its processes as well as any ordinances or rules which are necessary to ensure that those appearing before those boards have the right to appeal any decision rendered by those boards. This is a matter that is deserving of immediate attention by the Nebraska Legislature.

The stories of Ms. Zaporowski and Mr. Bazer are used with their consent.

added incentive to its members to revisit their decision and do the right thing.

RecommendationsIt places an unfair burden on individuals appearing before

an administrative board to require them to know that they have to take specific actions to have a right to appeal that board’s decision. Some attorneys are even unaware of those requirements. The right to appeal a decision that one feels is unjust, arbitrary or not supported by the evidence is an important and very basic one. It should be the responsibility of the administrative board to protect the rights of petitioners

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With another flood season upon us, now is a good time to review one of the more hazardous legal challenges facing flood insurance claimants: the National Flood Insurance Program’s proof of loss requirement. For the unfortunate claimants who fail to strictly comply with this requirement, the real tragedy will arise long after flood waters recede.

To understand the danger of this requirement, it is helpful to review the origin of the National Flood Insurance Program. Prior to the program’s enactment in 1968, few carriers were willing to insure against flood damage.1 With little private insurance to cover flood losses, the federal government experienced “massive and ever increasing”2 costs for annual flood-related disaster relief.3 In an effort to reduce both these costs and the widespread damage caused by flooding each year, Congress enacted the National Flood Insurance Program (NFIP). This program provides a government-subsidized Standard Flood Insurance Policy (SFIP), which is managed by the Federal Emergency Management Agency (FEMA), but is primarily offered through private insurers. The SFIP is

available to property owners in communities which have agreed to adopt federal floodplain management rules.4 Today, the NFIP collects more than $2.2 billion in annual SFIP premiums nationwide,5 and the SFIP is available to property owners in 480 Nebraska communities.6

Along with federal support of insurance policies, however, come strict federal insurance rules which can overwhelm claimants. Among these rules, one of the most onerous is the proof of loss (POL) requirement. The POL is a one page form, available from FEMA, that essentially documents the amount of the claim. For all SFIP claims over $7,500,7 claimants must submit a signed and sworn POL within 60 days of the date of loss (or within an extension authorized by FEMA; see below).8 If this form is not submitted within this short period, or if it fails to strictly comply with SFIP requirements, the insurer can reject the claim—even if the claimant substantially complied and the insurer suffered no prejudice.9 As such, this relatively simple form presents a number of formidable traps for the unwary.

Failure to Understand the POL Requirement and Its Strict Deadline

The most common trap for claimants is that they are simply unaware of the POL requirement until it is too late. This requirement is plainly listed in the SFIP language,10 but after what is often a devastating loss, many claimants never bother to read their policy—especially if they have already notified their insurer of the loss. Unfortunately for many such claimants, an insurance denial will be the first time they hear of a POL. Further, although FEMA envisions that claims adjusters will “usually” provide the proof of loss form,11 the SFIP states that “this is a matter of courtesy only.”12 In fact, the insurer’s failure

feature article

Navigating the National Flood Insurance Proof of Loss RequirementFailure to Strictly Comply Can Spell Disaster for Claimants

by Cameron Guenzel

Cameron GuenzelCameron Guenzel joined Johnson Flodman Guenzel & Widger in September 2010 after clerking with the firm for several years. A third-generation lawyer, he graduated from the University of Nebraska Law School. Mr. Guenzel has since primarily focused his practice on general litigation, personal injury and medical malpractice.

➡


to provide a POL form—or even mention the requirement—will not prevent it from denying coverage when no timely POL is submitted.13

More alarming, sometimes insurers even give claimants the wrong impression that informal notice is sufficient—only for claimants to learn the truth after the deadline has passed. One particularly egregious example of this was in Suopys v. Omaha Property & Cas.14 There, the plaintiff Suopys’s summer home was damaged in a flood on June 21, 2001. Suopys promptly notified Omaha Property & Casualty (“Omaha”), the provider of his SFIP. In early July, 2001, Omaha’s adjuster inspected the damage, estimated the claim at $12,962.44, and told Suopys that he should expect payment in that amount within two months. While Suopys was waiting the two months for payment, the POL deadline ran out. Omaha never paid, and Suopys’s claim was ultimately barred because he failed to file a timely POL.

When insurers do mention the POL requirement, they frequently purport to extend the deadline, requesting and accepting untimely POLs—only to have an iron-clad defense if disputes later arise.15 Insurers have no authority to waive or modify SIFP requirements, such as POL deadlines, so the promises of a well-meaning adjuster will not protect the claimant who submits a late POL.16 Further, even if claimants detrimentally rely upon the insurer’s purported extension, they will have no remedy via equitable estoppel. This is because federally-subsidized flood insurance payments are a “charge” on the U.S. Treasury, so granting a payout through estoppel would impermissibly “encroach upon the appropriation power granted exclusively to Congress by the Constitution.”17

While on the topic of the POL deadline, it is important to note that FEMA occasionally gives extensions of this deadline in circumstances where widespread damage makes it especially difficult to submit timely POLs.18 Sometimes FEMA will even give multiple extensions in a row.19 These extensions, however, are often poorly publicized and frequently only announced after the original POL deadline has expired.20 Like all aspects of the POL requirement, claimants must carefully analyze their options under any FEMA extensions to protect their claims.

Dangers in Signing and Completing the POL Form Itself

Even when claimants are aware of the POL requirement and deadlines, their claims are not safe yet. The matter remains to submit a POL that both protects the claimant’s rights and complies with the SFIP’s policies. When adjusters provide claimants with POL forms, their standard practice is to fill in every value—including those for total loss, depreciation, and the like.21 This leaves claimants with two choices: agree to the insurer’s valuation of their claims and submit a supplemental POL if they decide the damage exceeds that valuation, or

reject the insurer’s valuation and fill out their own form. Both options present their own challenges.

If claimants sign the insurer’s form, they forfeit all claims to any damage exceeding that amount stated22—unless they submit a supplemental POL. The utility of supplemental POLs, however, is severely limited because they must be also submitted by the original POL deadline.23 So while claimants could sign the insurer’s POL upon receiving it, and then submit a supplemental POL for an additional amount of loss, they might not have time do so. If not, their recovery will be limited to the amount on insurer’s POL.

On the other hand, if claimants reject their insurers’ form, they must complete their own,24 and this can be a daunting task. The form includes lines for figures that are often difficult to ascertain quickly, such as actual cash value of the real property and its contents, full cost of repair or replacement, and depreciation. Claimants must provide exact values25 for each line and attach documentation supporting those values.26 To ascertain the correct figures and collect the necessary documents, claimants typically need to arrange for their own estimates and valuations. However, these arrangements can be difficult to make within the POL deadline, particularly after a widespread disaster that has all qualified experts and contractors occupied, or when the nature and extent of the damage is difficult to ascertain.

Strategies for Protecting ClaimsThe general lesson from the traps described above is that

claimants should be extremely wary of flood insurance POL requirements. More specifically, claimants must immediately ascertain their POL deadline, and if that deadline has already passed, they should determine if FEMA has granted any extensions. Claimants also must not rely upon anything their insurer has told them, because the statements of even a well-meaning adjuster will provide no protection if a dispute later arises. Finally, claimants should consider arranging their own estimates and valuations immediately after a loss so that they can submit their own POL if necessary. While those pursuing flood claims will likely encounter other dangers lurking beneath the surface, these strategies can at least help claimants safely pass the initial proof of loss hazard.

Endnotes1 Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir. 1998).2 United States v. St. Bernard Parish, 756 F.2d 1116, 1122 (5th

Cir. 1985)3 See 42 U.S.C. §§ 4001 and 4002. 4 St. Bernard Parish, 756 F.2d at 1120.5 Rawle O. King, National Flood Insurance Program: Background,

Challenges, and Financial Status, Congressional Research Service (March 4, 2011), available at http://assets.opencrs.com/rpts/R40650_20110304.pdf.

6 Federal Emergency Management Agency, The National Flood Insurance Program Community Status Book: Nebraska, available at

LOSS REqUIREMENT


LOSS REqUIREMENT

16 See, e.g., Id. at 529 (citing 44 C.F.R. Pt. 61.4(b), 61.13(d), and 62.23(c) and (d)).

17 Wright v. Allstate Ins. Co., 415 F.3d 384, 387 (5th Cir. 2005).18 See, e.g., FEMA, Deadline Extended for Flood Insurance Claims,

December 1, 2011, available at http://www.fema.gov/news/newsrelease.fema?id=60002.

19 See, e.g., FEMA, Extension Granted for Flood Insurance Proof of Loss, September 28, 2011, available at http://www.fema.gov/news/newsrelease.fema?id=58496.

20 For example, following losses caused by Hurricane Irene between August 26 and September 4, 2011, FEMA extended the deadline by 60 days. FEMA, however, did not announce this extension until November 22. As such, even an insured who experienced a loss on September 4 would have had a POL deadline of November 3—several weeks before FEMA’s memo extending this deadline. FEMA, Hurricane Irene – Notice of Extension of Time for Sending Proofs of Loss, November 22, 2011, available at http://www.njm.com/pdf/FEMA_memo.pdf.

21 See, e.g., Wright, 415 F.3d at 386.22 Howell, 540 F. Supp. 2d at 627 (citing 44 C.F.R. Part 61, App.

A(1)); SFIP Art. VII.J.4; Ambassador Beach Condo. Ass’n Inc. v. Omaha Prop. & Cas. Ins. Co., 152 F.Supp. 2d 1315, 1317 (N.D. Fla. 2001).

23 Ambassador Beach Condo. Ass’n, Inc., 152 F. Supp. 2d at 1316.24 Howell, 540 F. Supp. 2d at 629.25 Wright, 415 F.3d 384.26 Exactly what supporting documentation is required must be

determined on a case-by-case basis. As one court put it, claimants need not “submit every bill, receipt, and related document, . . . unless requested to do so by the insurer. Instead, an insured must submit enough support to allow the insurer to evaluate the merits of the claim, including the estimated cost of repair.” Sun Ray Vill. Owners Ass’n v. Old Dominion Ins. Co., 546 F. Supp. 2d 1283, 1291 (N.D. Fla. 2008).

http://www.fema.gov/cis/NE.pdf.7 According to the FEMA Adjuster Claims Manual, the POL

requirement can be waived on claims under $7,500. Suopys v. Omaha Prop. & Cas., 404 F.3d 805, 811 (3d Cir. 2005) (citing online claims manual the URL for which is no longer valid; the relevant section of the current claims manual can be found at http://www.fema.gov/library/viewRecord.do?id=1584). It should be noted that this area is murky, because the $7,500 limit is only found in the Claims Manual, which is in turn incorporated by reference into the FEMA regulations. 44 C.F.R. § 62.23. One unpublished 9th Circuit opinion held that, because this $7,500 limit is unclear from the regulations, claimants should not be bound by it, and thus insurers can waive POL on claims of any amounts. Pecarovich v. Allstate Ins. Co., 135 F. App’x 23, 26 (9th Cir. 2005). However, this holding is the sole dissent against a veritable mountain of opinions to the contrary, and no case can be located which either cites it or comes to the same conclusion.

8 44 C.F.R. Pt. 61, App. A(3), Art. 10(O)(3).9 Mancini v. Redland Ins. Co., 248 F.3d 729, 734 (8th Cir. 2001).10 SFIP Art.VII.J.7 (in the Dwelling Policy Form and General Property

Policy Form); Art.VII.J.4 (in the Residential Condominium Building Association Policy Form). There are several versions of the SFIP depending upon the nature of the property insured, but the POL requirement is the same in each. Each version is available at http://www.fema.gov/business/nfip/sfip.shtm.

11 See, e.g., FEMA News Release, FEMA Explains Flood Insurance Claim and Repair Process, January 28, 2008 available at http://www.fema.gov/news/newsrelease.fema?id=42404 (“The insurance company will usually provide a proof of loss form. . . .”)

12 See supra note 10.13 Howell v. State Farm Ins. Companies, 540 F. Supp. 2d 621, 633

(D. Md. 2008).14 Suopys, 404 F.3d 805.15 See, e.g., Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp.

2d 523, 526 (D.N.J. 2000).

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I. The Honorable Lyle E. Strom and United States v. Williams1

In October of 2008 Illinois law enforcement officers pulled over a U-Haul truck. What began as a routine traffic stop culminated in a Nebraska lawyer risking his professional career and potentially his life to unveil a massive marijuana conspiracy.

In the U-Haul, officers discovered a large quantity of marijuana. The driver agreed to cooperate, phoned his contacts on the delivery end—Shannon Williams and Richard Conway—to arrange to drop-off the cargo, and, in Omaha, under police supervision, made delivery to Conway and four others. Omaha police arrested Conway (but not Williams, who was not at the scene) and placed him at the Douglas County Correctional Center (DCCC). Before it was over the Federal Government indicted eleven individuals and a lawyer wore a

wire into the attorney-client interview room.

Williams and Conway both used the same lawyer in the past, Eric Whitner, and Whitner represented Conway in the matter at hand. So that he could keep in contact with Conway without their conversations being recorded. Williams had Whitner smuggle cell phones to Conway, inside DCCC.2 One of Conway’s co-defendants was represented by Terry Haddock. At DCCC, Haddock and Conway had a conversation about the payment of Haddock’s client’s legal fees. (Conway told Haddock that there was money hidden in his client’s home, hidden for just this purpose: legal fees.) At this meeting Haddock urged Conway to cooperate with the government.

Conway decided he would cooperate. He told an officer that he wanted to assist the government but would not do so with Whitner present for fear that Whitner would tell Williams. He requested that Haddock be present instead. Haddock agreed. Conway began cooperating. Subsequently, Whitner withdrew as Conway’s counsel and Haddock took over his defense. Conway’s cooperation led to the arrest of Williams.

Whitner—Conway’s former attorney—represented Williams, and continued to smuggle cell phones into DCCC, this time to Williams. Because Williams became suspicious of Whitner, he had Conway request of Haddock that he bring in cell phones so Williams could continue to make unmonitored calls. With the knowledge and sanction of the police, Haddock “smuggled” phones into DCCC and the police recorded the calls on these cell phones. At this time, Haddock began meeting with Williams. Between April and December of 2009, they met 63 times. At their first meeting Haddock made it clear that he represented Conway and therefore could not represent Williams. On some, but not all, of their subsequent meetings Haddock reiterated that while he would continue to meet with Williams, he could not represent him and was not his lawyer.

feature article

Attorney Deception: The Honorable Lyle E. Strom & Professor Tory L. Lucas

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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Haddock and his credibility would later become an issue at Williams’ trial. At the time Haddock desperately needed a good break. Others described him as “a milquetoast sort of guy.” In part, at least, because of his interest in an ex-escort from Zimbabwe, a woman acting in Omaha as a lookout for the marijuana truck, Haddock’s wife had filed for divorce. He faced mounting credit card debt, along with severe mental depression. Within the months before becoming involved with Conway and Williams, Haddock had sought mental-health treatment and he missed court appearances. At trial, Williams revealed that “Haddock’s psychiatrist reported that he needed to ‘continue to help [Haddock] with reality testing’ and that Haddock had ‘extreme difficulty with concentration.’ ”3

At his trial, Williams argued that Haddock’s conduct as an attorney and a government informant constituted “outrageous conduct” and the introduction into evidence of the information Haddock gathered violated the Due Process Clause of the Fifth Amendment. He also argued that it violated the attorney-client privilege.

Regarding the Due Process Clause, Judge Strom analyzed the claim of outrageous government conduct under the Third Circuit’s Voigt test.4 Voigt requires that defendant to prove: (1) the government had an objective awareness of an ongoing, personal, attorney-client relationship between the attorney and the defendant; (2) the government deliberately intruded into that relationship; and (3) actual and substantial prejudice resulted to the defendant. Regarding the first prong, Judge Strom found that Haddock and Williams did not have an attorney-client relationship. Under Nebraska case law “ ‘an attorney-client relationship is formed when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.’ ”5 Williams and Haddock did not have such a relationship:

• Haddock kept telling Williams that he was not and could not be the latter’s attorney.

• Williams had Haddock smuggle cell phones into the DCCC for a prisoner to use and had him assist in money laundering, and these are not “matters within the attorney’s professional competence.”

Regarding the attorney-client privilege, Judge Strom found that it did not attach because Williams’ statements “were either made in the presence of third parties or dealt with ongoing or future criminal activity.” Douglas County Public Defender Tom Riley countered that, “If it doesn’t violate the letter of the law when it comes to attorney-client privilege, it certainly violates the spirit.” Judge Strom recognized that these facts raise difficult questions of professional ethics, but those are separate from the legal questions he had to resolve. As Judge

Strom explained:

An attorney’s failure to assert an ethical obligation does not transform the Government’s investigatory practices into misconduct. . . . Whether or not and to what extent Haddock’s conduct implicates the Rules of Professional Conduct governing attorneys has little bearing on whether Government’s conduct was outrageous. It is not contradictory to say that Haddock’s actions in this case may be worthy of professional sanction, but that the evidence he obtained was not collected in violation of the Constitution.6

And this is where the work of Professor Tory Lucas enters the picture.

II. Professor Tory L. Lucas’s Article on the Ethics of Attorney Deception

Judge Strom addressed the constitutional and evidentiary issues concerning the admission of evidence obtained through attorney deception. Professor Tory Lucas addresses the ethical issues. (Judge Strom’s Eighth Circuit connections are common knowledge. Professor Lucas’ include law clerk to Judges Pasco Bowman and William J. Riley; Visiting Professor of Law (professional ethics) at Nebraska’s law school and graduate of Creighton’s; friend to many Nebraska judges and lawyers; and husband of the Bellevue Leader’s Person of the Year for 2011, Megan Lucas.)

Professor Lucas tackles the issue of whether attorneys may ethically engage in deception and, if so, to what extent and under what circumstances. The ethics of attorney deception, he says, has not been debated in the legal community, locally or nationally. His intent is to open that debate—and open it he does. He begins his analysis with this foundational principle: The self-regulated legal profession must hold those attorneys privileged to practice law to the highest ethical standards. If we do not, we risk eroding the public’s (already weakened) faith in our profession and in the rule of law itself—in the entire American justice system.

Neither the American Bar Association’s Model Rules of Professional Conduct (Model Rules) nor the Nebraska Rules of Professional Conduct sanctions any attorney deception—explicitly or implicitly. They in fact forbid all attorney deception. Model Rule 8.4 makes it unethical for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” or “engage in conduct that is prejudicial to the administration of justice.”

Professor Lucas’ article details a number of situations where American society has accepted the lawful use of deceptive practices to gather evidence for use in court. For example, he explains that deception is routinely and actively employed by federal and state governments in undercover criminal investigations, by various civil-rights groups to unearth unlawful discrimination,

ATTORNEY DECEPTION


ATTORNEY DECEPTION

comply with all laws in conducting the investigation, and (3) no other reasonable alternative is available to the attorney to discover the suspected violations of the criminal or civil law or constitutional rights. An attorney who is not acting in a representational capacity (e.g., an attorney employed as an investigator for a government agency) is permitted to personally use dishonesty, deception, and misrepresentation as outlined above. An attorney acting in a representational capacity has no authority to personally use dishonesty, deception, and misrepresentation. The purpose behind this investigation deception exception is to promote the discovery of unlawful activity that otherwise often goes undetected. For example, criminal investigators may need to use deception when conducting undercover sting operations; civil rights activists may need to use deception to uncover unlawful discrimination in employment, housing, education, lending, public accommodations, and government services; and holders of intellectual property rights may need to use deception to discover violations of those rights. This investigation deception exception in no way authorizes an attorney to violate any other ethical rule. An attorney who seeks to employ deception is cautioned to review Rules 1.2(d), 3.1, 3.2, 3.3, 3.4, 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, and 7.1. 8

III. Conclusion Judge Strom’s opinion in United States v. Williams and

Professor Lucas’ article in the Nebraska Law Review nicely complement each other, the former on the law of attorney deception and the latter on the ethics of attorney deception.

Judge Strom wrote an interesting and well-written opinion. Professor Lucas likewise wrote an interesting and well-written article. I commend both to your attention.

Endnotes1 The facts in Part I are taken from Judge Strom’s opinion in United

States v. Williams, 2011 U.S. Dist. LEXIS 28960 (March 21, 2011), various articles published in the Omaha World-Herald between January 10, 2010, and April 28, 2011, and Tory L. Lucas, To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the ABA Model Rules of Professional Conduct, 89 Neb. L. Rev. 219 (2010).

2 United States v. Williams, supra, at *9-10. 3 Todd Cooper, “Suspect Opens His Own Defense, http://www.

momaha.com/article/20110406/NEWS97/704069915/960. (April 6, 2011).

4 United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996).5 United States v. Williams, supra, at * 42 quoting State ex rel.

Stivrins v. Flowers, 273 Neb. 336, 331-42, 729 N.W.2d 311, 317 (2007); see also Macawber Eng’g, Inc. v. Robson & Miller, 47 F.3d 253, 256 (8th Cir. 1995) (applying state law to determine whether an attorney-client relationship exists).

6 United States v. Williams, supra, at *54. 7 Part II is a discussion of Tory L. Lucas, To Catch a Criminal, to

Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the ABA Model Rules of Professional Conduct, 89 Neb. L. Rev. 219 (2010).

8 Id. at 287-88.

and by holders of intellectual property rights to protect and secure those valuable legal rights against unlawful infringement. Deception can effectively target and root out lawlessness, and such lawlessness may go undetected or unpunished without such deceptive practices. Deception’s longstanding role in the American justice system is unquestionably well-established.

But what about deception by attorneys? Public policy and general considerations of morality support some kinds of attorney deception—such as that in which Haddock engaged. And yet, Professor Lucas maintains the Model Rules do not allow attorney deception even when they are not in an attorney-client relationship with the one deceived—such as Haddock’s relationship with Williams.

It is Professor Lucas’ position that some attorney deception should be explicitly allowed. And that we attorneys should adopt attorney deception rules so that attorneys dealing with clients, attorneys dealing with non-clients, and the public in general can know the breadth and depth of such authorized deceptions. When the police ask them to gather evidence for use in a criminal prosecution, the Haddocks of the world need guidance. Before they risk their license they need something more than their own intuition as to what is allowed and what isn’t—or their own interpretation of Rule 8.4 that no deception is allowed ever. When the police come calling, attorneys need a rule-based answer.

Professor Lucas’ answer starts here: The Rules should forbid personal deception by attorneys while acting on behalf of or working with clients. And then moves on to these questions: What about attorneys who are engaging in deception while not acting on behalf of a client, but acting in direct contact with the person being deceived? And what about the attorney advising non-attorneys who wish to engage in deception and want to stay within legal boundaries when they do so? He proposes an express “investigation exception” to the Model Rules: We should, he writes, make crystal clear the specific instances in which attorneys may be involved in deceptive practices.

To start the debate, Professor Lucas proposes the following as an official comment to Model Rule 8.4:

Rule 8.4’s restrictions that make it unethical for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice” are subject to a permissive investigation deception exception. This exception permits any attorney, whether government or private, and at his or her discretion, to advise, direct, and supervise a third person, including a client, to use dishonesty, deception, and misrepresentation (particularly as to identity and purpose) while investigating suspected violations of the criminal or civil law or constitutional rights so long as (1) the attorney reasonably believes that a violation of the criminal or civil law or constitutional rights has occurred or is imminent, (2) the attorney and third person


REGISTRATION FORM: Family Law Update - July 13, 2012Materials will NOT be printed for registrants unless requested and paid the additional fee below.

ALL registrants will receive a link to download and print the materials ahead of time as well as a CD of the materials the day of the seminar.

c Registration - $235 c Family Law Section Members - $195c Not a Member of the Section? Join now, pay $15 dues plus Section price for a total of $210c I am attending the Family Law seminar & want printed materials - $45 (cost is additional to registration fee)I am unable to attend, please send me: c Printed Manual - $95 c CD Only - $55Name:_____________________________________________________________________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

8:15 am Introductions & WelcomeKathleen M. Schmidt, Esq., Planning Chair

8:25 am Support by the NumbersLiens, Student Loan Deductions and Wifi Cloud Storage - Adam E. Astley

9:05 am Collaborative Divorce - What’s It All About?Jaimee Dixon Johanning & Glenda L. Cottam

9:20 am Limited Unbundled Representation Jackie A. Madara-Campbell

9:35 am The Pros & Cons of the Nebraska Parenting Act in Practice: Is the Legislative Goal Being Met? Robin L. Binning & John A. Kinney

10:15 am Break

10:30 am Annual Legislative UpdateJane F. Langan

11:00 am Questions You Always Wanted to Ask a Judge But Were Afraid to Ask - What District Court Judges Want You to KnowHon. Gary B. Randall; Hon. David K. Arterburn; Hon. Paul D. Merritt, Jr.; Hon. James G. Kube; Hon. John P. Icenogle; Hon. J. Michael Coffey

12:00 pm Lunch (included with your registration)

1:00 pm Cesar vs. Alicia and its Progeny Philip B. Katz

1:35 pm Interplay Between Divorce and Bankruptcy Law with FormsJames H. Truell

2:10 pm Standard or Burden in Contempt Actions - Redefined When to Appeal Temporary Orders, Removal Within the Jurisdiction and The Standard for 702 Experts in Child Custody Cases - Matthew S. Higgins

2:50 pm Break

3:05 pm Annual Caselaw UpdateSteven J. Flodman

3:45 pm EthicsDennis G. Carlson

4:45 pm Reception Hosted & Sponsored by Adam Astley’s Nebraska Child Support Calculator

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NCLE & the NSBA Family Law Section present the

2012 Annual Family Law UpdateFriday, July 13, 2012 • 8:15 am - 4:45 pm

Embassy Suites - La Vista • 12520 Westport Parkway, La Vista, NE 68128-2198LIVE CREDIT *Nebraska MCLE #68161. 6.17 hours / 1.0 ethics. *Iowa MCLE #88304. 6.75 hours / 1.0 ethics.

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A few recent reported cases, two from the Supreme Court and one from the Nebraska Court of Appeals, impact the practice of third party pursuit/subrogation litigation. This article addresses these cases and their impact to this type of litigation, and addresses additional issues regarding subrogation under the Act.

I. What Entities Are Protected by the Exclusive Remedy of Workers’ Compensation

A. Background

Generally, when an employee sustains a work related injury, his exclusive remedy against his employer is under the Worker’s Compensation Act.1 The issue which sometimes arises is who is the “employer”. In the situation involving a temporary employee working for a company through a temporary employment agency, the Supreme Court has held that the ultimate employer was the party which had the sole right to designate the work to be done by the temporary employee, and where and how that work would be performed.2 In the Millard case, the Supreme Court was faced with a situation where the employer owned multiple corporations and two employees of one of the corporations were killed in a plane crash while on a trip with their employer to view a couple of plants (not owned

by the employer and disputed as to whether the employer was looking to purchase one of the plants or have his employees merely look at the location before he expanded the operations at their company’s plant) and attend a professional group meeting.3 In that case, the Court held that even though the trip may have been to benefit one of the other corporations owned by the employer, the employees were barred from attempting third party recovery from that corporation because of the exclusive remedy under the Worker’s Compensation Act.4 The Court, while discussing a dual persona theory, noted that there was insufficient evidence to show that the pilot had a second persona unrelated to his status as the employer.5

B. Howsden v. Roper’s Real Estate6

The Howsden case, decided on October 28, 2011, dealt with an employee for a funeral home who fell down an elevator shaft at the building where the funeral home was located. The building was owned by a separate corporation (real estate company), which was owned by the same individual owners as the funeral home. The employee received worker’s compensation benefits from a policy which provided coverage for the funeral home employees and the real estate company.

The employee then brought a third party action against the real estate company.7 The district court granted the real estate company’s motion for summary judgment finding that worker’s compensation was the exclusive remedy for the employee, citing the Millard case as authority.8 The Supreme Court reversed the district court finding that the two corporations were distinct and separate and the employee could bring a third party action against the real estate company, which was not her employer.9 The Court noted that courts typically look at whether the third party had control over the employee’s duties, payment of wages,

feature article

Developments in Nebraska Workers’ Compensation Third Party/Subrogation Litigation

by Gregory W. Plank

Gregory W. PlankGregory W. Plank practices law with Ray Lego & Associates in Greenwood Village, Colorado. He is a 1989 graduate of Creighton University School of Law and is a member of the Colorado and Nebraska Bar Associations.

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and right to hire and fire.10 The Court found that Millard was distinguishable and there was no dual-employer issue in the instant case based upon the separate and distinct corporations.11

When considering pursuing a third party action, one needs to consider if the third party defendant is the employer of the employee. Prior to Howsden, it appeared that Nebraska court’s would prohibit an employee from pursuing a corporation which was held by the same shareholders and/or employer. The Howsden opinion reveals that this is not the case. When investigating the pursuit of a third party action, consideration should be given to the corporate structure of the employer and a determination as to whether a separate and distinct corporation may be liable for the injury needs to be made.

II. Fair and Equitable Distribution of Third Party Funds Between the Employee and Employer

A. Background

Pursuant to the Workers Compensation Act, the employee and the employer may pursue a third party responsible for the injury, but need to comply with certain requirements within the Act regarding the subrogation lien rights of the employer.12 Prior to July 16, 1994, the Act provided that the subrogation lien was to be reimbursed in full prior to any recovery amount being distributed to the employee.13 The Act was changed to provide for “a fair and equitable distribution” of the third party recovery between the employee and employer.14 The Supreme Court, in 2006 in the Turco v. Schuning opinion, determined that the “fair and equitable distribution” of the settlement of the third party claim did not require that the employee, the injured worker, be “made whole” before the employer could subrogate.15 However, other than that instruction, the Turco case did not give any further instruction as to what the definition of “fair and equitable distribution” meant. In 2007, in the Burns v. Nielsen16 opinion, the Supreme Court held that equitable defenses, such as unclean hands and estoppel were inapplicable to the workers’ compensation distribution hearing and would not bar the employer from recovering its lien.17 The court stated that the district court needs to merely determine a reasonable division of the proceeds among the parties.18 Also, back in 2000, the Supreme Court, in its Jameson v. Liquid Controls Corp.19, had found that the district court could not carve out the portion of the third party settlement allocated for pain and suffering because the Act did not distinguish between settlement proceeds paid for various damage categories in distributing settlement proceeds.20

B. Sterner v. American Fam. Ins. Co.21

On November 15, 2011, a panel from the Nebraska Court of Appeals decided the Sterner case which provides additional

insight into the meaning of “fair and equitable distribution”. The employee sustained an injury when he fell due to slipping on snow after being lunged at by a dog.22 The worker’s compensation carrier did not dispute the injury to his left shoulder and paid benefits for that injury, but disputed the claim that he sustained a right shoulder injury due to overuse.23 The worker’s compensation court denied benefits for the right shoulder injury.24 The employee obtained a third party settlement from the homeowner/dog owner of $80,000 which was consented to by the worker’s compensation carrier.25

The employee and worker compensation carrier did not agree on the distribution of the settlement funds and a fair and equitable hearing was held by the district court.26 The parties stipulated to the amount of benefits paid for the left shoulder injury which were paid by the carrier, and the amount of medical benefits and lost wages due to the right shoulder condition, and to the amount of attorneys fees paid to employee’s counsel and costs.27 The district court found that the carrier was entitled to nothing for its subrogation lien.28 In making its determination, the district court carved out of the settlement proceeds that were subject to the subrogation interest the amount related to attorney fees and costs and lost wages which were not reimbursed by the workers compensation carrier as temporary total disability benefits.29 The district court further stated that the carrier had “a claim of subrogation” in the remaining amount which the employee “must be compensated for the severe and permanent physical and emotional injuries that he suffered as a result of this injury, which sum is far less than the overall value of his claim.”30

The Court of Appeals panel reversed the district court finding that, although the district court did not come out and say that it “made whole” the employee, the district court by saying the employee “must be compensated” juxtaposed to the description of the workers’ compensation carrier having a “claim” had prioritized the employee’s claim over the carrier and, in fact, applied the impermissible “made whole” doctrine.31 The panel also found that it was impermissible to carve out a portion of the wage loss as there was no authority for doing so and it was contrary to the Jameson holding.32

Lastly, the panel rejected the carrier’s argument that the employee’s attorney did not benefit its subrogation lien because if the employee and his attorney were reasonable, the subrogation claim and worker’s compensation left shoulder claim could have been resolved without litigation.33 The panel found that the Act provides for attorney fees for the party bringing the claim or prosecuting the suit34 and therefore, the carrier’s contention was “plainly wrong”.35 However, the panel found the district court had improperly increased the amount of attorney fees paid to an amount greater than the amount which was stipulated to by the parties.36

The Sterner case is really not a new development, but

DEVELOPMENTS IN NEBRASKA WORKERS’ COMPENSATION


DEVELOPMENTS IN NEBRASKA WORKERS’ COMPENSATION

additional guidance regarding: (1) what entities will be considered an employer and be protected by the exclusive remedy of Workers’ Compensation; (2) how third party settlement proceeds should be distributed between the employee and employer; and (3) how to handle (or not handle) employer negligence conduct under the contributory negligence scheme.

Endnotes1 Neb. Rev. Stat. § 48-101, et seq. 2 Schwartz v. Riekes and Sons, 195 Neb. 737, 240 N.W.2d 581

(1976).3 Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124

(1991). 4 Id. at 910- 9125 Id. at 912.6 282 Neb. 666, ___ N.W.2d ___ (2011). 7 Id. at 668.8 Id.9 Id. at 673.10 Id.11 Id. at 674.12 Neb. Rev. Stat. § 48-118, et. seq. 13 See Jackson v. Branick Indus., 254 Neb. 950, 581 N.W. 2d 53

(1998)14 Neb. Rev. Stat. § 48-118.04.15 Turco v. Schuning, 271 Neb. 770, 716 N.W. 2d 415 (2006).16 273 Neb. 724, 732 N.W.2d 640 (2007). 17 Id. at 731-34.18 Id. at 735.19 260 Neb. 489, 618 N.W.2d 637 (2000)20 Id. at 505.21 19 Neb. App. 339, ___ N.W.2d ___ (2011).22 Id. at 340.23 Id.24 Id. at 341.25 Id. at 340.26 Id. at 342.27 Id. at 34328 Id. at 343-44.29 Id.30 Id. at 343.31 Id. at 346-47.32 Id. at 347.33 Id. 34 Neb. Rev. Stat. § 48-118.02.35 Sterner, 19 Neb. App. at 348.36 Id. at 348.37 Vangreen v. Interstate Machinery & Supply Co., 197 Neb. 29, 246

N.W.2d 652 (1976); Harsh Int’l v. Monfort Indus. Inc. 266 Neb. 82, 662 N.W.2d 574 (2003)

38 Steele v. Encore Manufacturing Co., 7 Neb. App. 1, 7, 579 N.W.2d 563, 568-9 (1998).

39 282 Neb. 970, __ N.W.2d __(2012)40 Neb. Rev. Stat. § 25-21,185.11.41 Downey 282 Neb. at 983-5.42 Id. at 986-87

reaffirmation of the principles which apply to the worker’s compensation statutory lien distribution under the “fair and equitable distribution” requirement under the Act. The case reaffirms that the third party settlement cannot be carved out to provide for funds that would be considered not part of the subrogation lien. It also reaffirms that the district court cannot attempt to apply the “made whole” doctrine regardless of whether it calls the distribution that or merely favors the employee’s damages over the lien.

III. Can Negligence be Apportioned to the Employer?

A. Background

Nebraska law has consistently held that the Act bars an action by a third-party tortfeasor against the employer for contribution based on claim arising from a work-related injury. However, the jury may consider the negligence of the employer as a nonparty and find that the employer’s negligence was the sole proximate cause of the injury and, therefore, conclude the third-party’s conduct was not the proximate cause of the accident.38

B. Downey v. Western Community College Area39

Downey was decided on January 6, 2012. The injured worker was working for a sign company and was installing a scoreboard at Western Nebraska Community College, when he fell and sustained injuries. The injured worker received worker’s compensation benefits and filed a lawsuit against the college in which the employer was joined for purposes of the lien. The trial court found the college was liable for the in accident but also apportioned a percentage of fault upon the employer and the injured worker.

In Downey, the question was presented to the trial court whether the employer was a “released person” under the Nebraska contributory negligence scheme.40 The trial court concluded that the employer was a “released person” and the Supreme Court reversed. The Supreme Court noted that in order to be a “released person” the employer had to be a “person liable,” and the employer was never liable in tort for the injury due to immunity based upon the Act.41 The Court noted that Federal district courts had decided the issue differently in the past, based upon a misinterpretation of the Steele case, which held that that the jury could consider the employer’s conduct as the sole proximate cause. That opinion was considered consistent with the Court’s approach nd the defendant was merely arguing it was “not liable at all” in that case.42

IV. ConclusionAs the discussion above indicates, the recent cases do not

change the subrogation practice under the Act, but do provide


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The 2009 Leadership Academy Class and the Nebraska State Bar Association invite you to participate in the Third Annual Community Service Day. On Friday, June 1, 2012, whether you’re a solo practitioner, part of a large law firm, or somewhere in between . . . there is a way you can give back to your community. Below is a list of some organizations that could use volunteers. These are only a few suggested organizations; many more exist. We would encourage you to look for any opportunity in your community where you can help. Please fill out the form below, marking which organization you would like to volunteer with and at what time, and return to the Nebraska State Bar Association, Attn: Sam Clinch, PO Box 81809, Lincoln, NE 68501 or fax to 402-475-7098 by May 18, 2012. NSBA will contact the organizations with the number of volunteers to expect.

NSBA Third Annual Community Service Day

June 1, 2012


Perhaps it’s because I was admitted to the bar over 30 years ago. Or because I am in the second half of my life. Or that I was widowed last year. Whatever the reason, I am acutely aware of the power of appreciating each season of one’s life.

When we start our career, we want to be further along and when we near the end of our career we long for the good old days. Learning to surrender to each season of our life does not always come naturally.

When I get clear about the time of my life that I am in, I am better able to bring myself present to its gifts and to know where to focus my time, energy and attention. When I forget where I am now, I struggle more and create frustration because of my own expectations.

The spring of the lawyer’s life, our energy is high and strong, but our roots are not yet well established. We are still fragile, but so eager to grow. We strive to prove who we are to

both ourselves and others. While our fear might cause us to try to hide it, we are, indeed, “green.”

I watch my senior certified law clerk as she anticipates upcoming bar exams. I see my son practicing “big law” in San Francisco as his firm undergoes a merger. I observe the struggles of the brilliant young lawyers who graduated a year ago and are still in pursuit of a law job with a paycheck big enough to both buy groceries and pay student loans.

The questions of “Who am I?” and “Why am I here?” are reflections for a lifetime. But at the start of a career, they are foundational. Motivators for entering law school can vary from not knowing what to do with your sociology major (like me) to unspoken expectations to join the family profession. But upon graduation, the student becomes a lawyer and must ask these questions anew and in earnest.

When looking at one’s life work and purpose, we can ask ourselves questions to become clear.

• Who would I most enjoy serving?

• When do I most enjoy myself at work?

• What do I have to contribute which is unique?

• What leaves me feeling great at the end of the day?

Being truthful with ourselves about the answers we discover frees us to see that we may choose to go in a direction with our career that we had never before considered.

So many new lawyers are living with the reality of huge student loan debt. The quandary of how to follow your calling while living above the poverty line can be very real. This is where a realization of the season of one’s life can be helpful.

Early in one’s career, it can be difficult to take the long

coaches’ corner

Celebrating the Seasons of Our Life: A Lawyer’s SpringPart 1 of a 4 part series on the seasons of our lives as lawyers

by Susan Ann Koenig

Susan Ann KoenigSusan Ann Koenig, JD, is an executive coach and speaker who inspires and empowers success-ful people to make their greatest contribution. She is the author of Divorce in Nebraska and co-author of Success Simplified----Simple Solutions, Measurable Results with Stephen R. Covey. Susan is of counsel with Koenig Dunne Divorce Law in Omaha where she contributes to the blog, Doing

Divorce: A Thoughtful Discussion on Divorce at www.nebraskadivorce.com.

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view. After so many years of study and hard work, we are eager to reap some rewards. We find ourselves making comparisons to those in the top of our class who have captured those too few high paying jobs. Still, if we can recognize that we are in the spring of our career (no matter at what age we graduated), we can take a deep breath and take a long range look.

My first job out of law school ended when the small firm I worked for was unable to pay my $15,000 a year salary. I went solo not long after; I hardly felt “successful.” For years my income was lean and unpredictable, and the responsibilities tremendous. As I look back today, I see that in the spring of my life as a lawyer I planted seeds for careers both as a firm owner and as an executive coach.

Practicing, failing, and learning is a humbling reality for the novice lawyer, especially for those who were rock star students. With so many “firsts,” the odds of misjudgments and minor mistakes increase. Add to this the countless skills not learned in law school, from how an introvert is supposed to be a rainmaker to discerning when to interrupt the senior partner with a question. In a season intended to build our confidence, we can be less sure of ourselves than ever.

At every season of our career, it is important to seek out support along the way. The power of letting in support cannot be underestimated. For the beginning lawyer, it is critical.

A “spring lawyer” can benefit from asking:

• Who might serve as role models for me?

• Where do I find mentor?

• How can I let in more support from my family?

• Would having a coach be useful?

• Am I willing to ask for help when I don’t know or am not sure?

Being willing to let in help will not only accelerate your growth, but it will give your journey more ease and joy.

The first season of our life as lawyers is one of learning. Learning who we are as advocates. Learning who we are as colleagues. Learning that the process of learning the law is never ending.

Lawyers are accustomed to “knowing the answers.” We are well educated. People pay us to have the “right” answers. For many of us, admitting we don’t know---something, anything, or everything---can be extraordinarily uncomfortable. Early in our careers we are driven to appear competent and capable. If we ask too many questions, our deepest fear is that others will think us stupid, lazy, or incompetent.

When we fail to let in support, it costs us. The sooner an attorney can develop the capacity to do so, the sooner life gets easier. Shift the focus from avoidance of your discomfort to

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is your fitness plan or your savings plan, smaller is better when there’s a lot on your plate.

Develop those good habits--both personal and professional---which will serve you for a lifetime. It will never be easier to learn them. Start with one. (See above: Keep things smaller.) So what if it takes you a year to develop a single new habit? You will have the rest of your life to enjoy its benefits.

Let in support. As lawyers starting out we may envy those farther along in their careers, but we can remember that no one got where they are without the help of others.

Be appreciative. When you are struggling to learn so much, be grateful you are not bored with your work. When your paycheck looks paltry, be grateful you are employed. When your hours are long, be grateful for good health that enables you to work them. When your workload is heavy, be grateful you are not the partner worrying about rainmaking. Living in gratitude can transform your life, no matter what the season.

Plant seeds for what you most want to grow. Tend to your garden. Remember that while some time will pass before your reap your full harvest, you can appreciate what you are creating right now.

developing the skills to make you a great lawyer.

With so much to keep in mind, how does the lawyer beginning a career know what to focus on?

Avoid comparisons to other attorneys. Not everyone has the same calling, gifts, values, or priorities. I was never the attorney willing to put in the hours of many of my peers; it was useful for me to accept getting a paycheck the size of theirs was less important than having those hours in my week to devote to my other passions.

Avoid “either/or” thinking, such as “Either I am the associate with the highest number of billable hours or I can be a good spouse.” Consider what is most important for this season, and give it more time, attention, and energy. Then give a little to that which you care about, but which is less important at this time. I didn’t publish my first book until my youngest was 20, but when my children were small I allowed myself time to write an occasional letter to the editor.

Keep things smaller when your energy is pulled in multiple directions. You may not be able to take that ten day vacation, but carving out a Sunday afternoon for rest and rejuvenation with a nap or a hike can make a world of difference. Whether it

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NSBA Government Practice Section SeminarThe Needle in the (Electronic) Haystack

Electronic Discovery & Records Management for Government PracticeFriday, June 8, 2012 • 8:10 am - 12:30 pm

University of Nebraska College of Law Auditorium*MCLE Activity #68026. 4.0 CLE hours.

REGISTRATION FORM: Government Practice Section Seminar - June 8, 2012c Registration - $99 c Government Practice Section members - $49

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

8:10 am Welcome and AnnouncementsJohn L. Jelkin, Frank J. Daley, Jr.

8:15 am E-Discovery Rich Hoffman, AVP Computer Forensics

Rich Hoffman, AVP Computer Forensics, is affiliated with United Lex Computer Forensics in Omaha and is a frequent presenter on e-discovery topics. This presentation will explain the nature of electronic discovery, starting with an overview of computer hardware and software, what it does, and how it stores information. The ubiquity of electronic documents and electronic communication such as email has changed the face of modern litigation. These facts have a unique impact on government offices, which often have fewer resources to devote to managing electronic discovery requests. The more you know now, before a case is filed, the better off you will be. Participants will learn about data collection, chain of custody, hash values, backups, litigation holds, and more.

10:15 am Break

10:30 am Records Management Duane Doppler, CRM is Electronic Records Manager, Records Management Division, for the Secretary of State; Jason Meyer and Aaron Weaver from the State of Nebraska Office of the Chief Information Officer (CIO)

The Records Management Division for the Nebraska Secretary of State’s Office encompasses records retention and disposition policies and publishes schedules for all local and state government offices. It has web page guidelines, electronic messaging and email guidelines, standards information. This session will also cover the Records Management Act and the Uniform Photographic Copies of Business and Public Records as Evidence Act.

Jason Meyer and Aaron Weaver with the Office of the Chief Information Officer (CIO) will discuss what the CIO does – and what it doesn’t do, what the system can and cannot do, and where to start if you need assistance in responding to a request for electronic records. The CIO provides network services, intergovernmental data services, technology support services, and performs other functions as well. The duties previously assigned to the Division of Communications, and Information Management Services are now part of the Office of the CIO.

12:30 pm Adjourn


STORYSTORY

minimum fee schedules. The evils of fee cutting, according to the Opinion, “ought to be apparent to all members of the Bar.”

Minimum fee schedules faded from the legal landscape when Goldfarb v. Virginia State Bar, 421 U.S. 773, was decided in 1975. The Goldfarbs were a married couple who bought a house and needed a title search in order to obtain title insur-ance. When the Goldfarbs contacted a lawyer, they were quoted a price from the county bar association’s minimum fee schedule, which was 1% of the value of the involved property. Dissatisfied, the Goldfarbs tried to find a lawyer who would not charge as much. The Goldfarbs sent letters to 36 other attorneys and requested price quotes. The 19 attorneys who responded all followed the guidelines of the minimum fee schedule.

The Goldfarbs subsequently filed a class action lawsuit against state and county bar associations challenging the use of minimum fee schedules. The resulting opinion from the United States Supreme Court determined that minimum fee schedules for lawyers constituted price-fixing and were contrary to the Sherman Act.

Even though minimum fee schedules are no longer in use, legal fees at the other end of the pendulum remain the subject of regulatory interest.

According to the Supreme Court of Indiana in a case entitled In the Matter of Earhart, 957 N.E. 2d 611 (2011), if an attorney labels a fee “non-refundable”, the fee is still subject to the “reasonable” standard of the Rules of Professional Conduct. Attorney Earhart was paid $10,000 by a client who anticipated criminal charges being filed against him. Attorney Earhart later sent a letter to the client and referred to the initial fee as a “non-refundable retainer”. Earhart further advised the client

Author bio

Last summer, my wife and I took the big plunge and moved from the house we had owned for 34 years. As part of the mov-ing process, we sorted through stacks and boxes of accumulated belongings, often wondering why they had been saved in the first place. One of the items of interest (at least to me) that I stumbled across was a bit of legal history—a “suggested” mini-mum fee schedule for attorney fees.

Minimum fee schedules at one time were an accepted part of the legal profession and were whole-heartedly endorsed by bar associations. In American Bar Association Formal Opinion 302 (1961), attorneys were cautioned that they may be in ethical hot water if they habitually strayed from established

professional responsibility

When asked what he would do if he found one million dollars, Yogi Berra responded, “If the guy was poor, I’d give it back.”

Regulating the Highs and Lows of Legal Fees

by Dennis G. Carlson

Dennis G. 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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that he would be charged an additional $10,000 if the case proceeded through trial.

Soon after the letter was sent, the client took his own life. At that time Earhart had spent about five hours on the case. When the client’s widow requested a refund, Attorney Earhart refused, claiming that he had earned the full $10,000.

After the hearing officer in Earhart’s attorney disci-plinary case submitted his report, Mr. Earhart admitted that he should have returned the fee to the client’s widow and tendered a cashier’s check for $10,000. The Supreme Court of Indiana, however, concluded that Attorney Earhart charged an unreasonable fee and failed to timely refund unearned fees. Mr. Earhart was suspended from the practice of law for 30 days for his misconduct.

In another disciplinary matter, The Florida Bar v. Patrick, 67 So. 3d 1009 (2011), an attorney permitted his fee to dictate the course of a client’s case, creating a tail-wagging-the-dog scenario.

Attorney Patrick represented a chiropractor on two Personal Injury Protection (PIP) claims against Progressive Insurance Company. Each claim involved only $24.00. Patrick’s fee con-tract with the chiropractor provided that if the client prevailed, the insurance company would be required (by statute) to pay Patrick’s attorney’s fees. If the chiropractor did not prevail, no fees would be owed to Patrick.

When the claims of the chiropractor reached mediation, Attorney Patrick had already spent 60 hours on the cases. His normal billing rate was $225 per hour. At mediation, Progressive offered to settle for $2500, but the offer was reject-ed. The chiropractor later testified in the discipline case that he was satisfied with the offer, but Attorney Patrick wanted the cases to go forward so he could be properly compensated for his time. The client also claimed that Attorney Patrick offered to pay Progressive’s fees and costs if the client did not prevail.

Since mediation was not successful, the two PIP claims went to trial. One claim was upheld at trial and the chiro-practor was awarded $24 in damages plus attorney’s fees and costs. Attorney Patrick by that time had spent 235.5 hours

on the $24 claim, and the court awarded him attorney fees of $120,772.50. On the second PIP claim, Progressive prevailed and was awarded $9,000 in fees. Appeals were filed in both cases and Progressive prevailed on both, resulting in the court setting aside the award of Patrick’s attorney’s fees and finding his client, the chiropractor, responsible for Progressive’s fees and costs.

To pursue a further appeal, Attorney Patrick hired Attorney Caldevilla and signed a fee agreement with him. Patrick later paid Caldevilla $5800 for his services. The appeal handled by Caldevilla, however, was unsuccessful and Progressive looked to the chiropractor for attorney’s fees.

In the attorney disciplinary prosecution, the referee con-cluded that the chiropractor had nothing to gain by not set-tling, and had declined to settle because of Patrick’s induce-ments, which were made so Patrick could pursue his claim for attorney’s fees. The referee also determined that Attorney Patrick told his client that if Progressive prevailed, he (Patrick) would pay the fees and costs owed to Progressive. The referee stated:

The entire motivation to reject the offer at mediation and proceed with this claim was based upon Patrick’s desire to be fully compensated for the time, money, and effort he had placed in this case. In order to be able to do so, he induced and convinced Newman to reject the offer by accepting all of the additional risk. Patrick clearly placed his personal interest of being compensated above the interest of his client. Patrick wrongfully advised and induced his client to reject an offer for full compensation so that Patrick could personally benefit. Patrick wrongfully agreed to and paid approximately $5,800.00 towards Caldevilla’s fees.

In its review of the case, the Supreme Court of Florida approved the findings of the referee and suspended Attorney Patrick from the practice of law for one year.

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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

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.


Nebraska Ethics Advisory Opinion for Lawyers

No. 12-02a lawyer, who is elected to a county board, which has, as one of its duties to act each year upon the budget presented by the county attorney, should not handle criminal cases, negotiating and defending them against the county attorney nor any member of his or her staff. nor should any member of his or her firm handle criminal cases against the county attorney or any member of his or her staff. this would not prohibit that law firm against handling criminal cases in other jurisdictions.

FactsAn attorney seeks election to serve as a part-time County Commissioner for one of the counties in Nebraska. This attorney and his firm handle criminal cases in the county in which he seeks election as well as other counties. This attorney is also the public defender in an adjoining county. The County Commissioners have budgetary authority over the County Attorney’s office, and each year must act upon the County Attorney’s budget.

questions Presented1. Does ethics Advisory Opinion No. 75-4 still control?

2. How does election to the County Board affect other members of a law firm?

3. Are there any potential remedies to disqualification which may exist?

4. How extensive is any disqualification?

Applicable Rules of Professional Conduct§ 3-501.11. Special conflicts of interest for former and current government officers and employees.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rule 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally or substantially while in private practice or otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing...

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

(1) any judicial or other proceeding, application, request for

a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

§ 3-501.7. Conflict of interest; current clients.

(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 representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, 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 assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

§ 3-501.10. Imputation of conflicts of interest; general rule.

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

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

DiscussionAs the Advisory Committee noted Advisory Opinion No. 75-4:

The trial of a criminal case is expensive to the county and the taxpayers. Lots of money would be saved if attorneys for persons accused of crimes would plead them guilty or bargain for dismissal of more serious crimes by offering to plead to a lesser crime. The lawyer commissioner... situation may very well impair his independent professional judgment either consciously or unconsciously... Full disclosure to both the client, the other com-missioners, and the county attorneys still leaves

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open the question of whether the public (in this case the county) can give consent... We therefore conclude that a lawyer who is one of the county board, should not practice in that county.

Nebraska has since adopted the Rules of Professional Conduct. Therefore, the applicability of the above has been questioned as the prior opinion was decided under the Code of Professional Responsibility. To his credit, the inquirer has sought to avoid any potential ethical problems before they could have arisen.

The relevant ethical rule is as follows:

§ 3-501.11. Special conflicts of interest for former and current government officers and employees.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rule 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally or substantially while in private practice or otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing...

Under the Rules, a similar disqualification would exist as under the previous Code. Nebraska Ethics Advisory Opinion for Lawyers No. 08-01, refers to consent by the county saying:

(I)t is at least theoretically possible in Nebraska to obtain a waiver from a public entity or govern-mental agency. To the extent there is a mechanism which allows a public entity to waive a conflict of interest, an attorney may seek to obtain such a waiver. However, there is currently no such mechanism for an attorney who represents the State of Nebraska (as opposed to an attorney who represents other governmental entities).

Thus, under the current Rules, the disqualification still exists.

A more difficult situation exists with the other members of the firm. The relevant ethical provision is as follows:

Under § 3-501.10. Imputation of conflicts of interest; general rule.

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

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

However, (d) above does not specifically refer to lawyers who are current public officials as opposed to current or former government lawyers. § 3-501.11 (b) refers to conflicts concerning law firms and former public officers or employees. The remaining conclusion by the above gaps would be that under § 3-501.10, none of the lawyers in the firm can knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7. As consent is not possible, there is no remedy. The disqualification extends to all members in that firm for that county, but not to criminal representation in any other county, unless no additional factual situations which are not stated here could occur.

ConclusionEthics Advisory Opinion No. 75-4 does not still control, as the Rules have changed, but the underlying reasons and conclusion remain sound. The disqualification from criminal cases for the County Board member would extend to other members of the law firm. There are no remedies for this disqualification as there is no mechanism for consent. The disqualification extends for the county in question, but not for other counties.

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No. 12-03a nebraska attorney may advertise for services via web-based services where the web provider shares in the fee for services provided the advertising is reasonable in relation to the cost of advertising and otherwise conforms with the nebraska rule of professional conduct.

Statement of FactsA Nebraska Attorney desires to utilize “Groupon” web-based Advertising to offer a single product for a set price, such as a “living will” or a “simple” last will and testament. The Groupon website would feature an offered product at a discounted rate, and Groupon would retain a percentage of total sales in response to the Groupon advertising. An interested customer would purchase the Groupon, make payment to Groupon, and after withholding its percentage of sales, Groupon would forward to the attorney his/her share of the sales.

Statement of IssuesIs it permissible for an attorney to utilize Groupon Advertising where the fee for services to be provided is shared between the attorney and the web provider?

Applicable Rules of Professional ConductSeveral rules contained with the Rule of Professional Conduct are instructive:

§ 3-501.5. Fees.

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses….

§ 3-501.15 Safekeeping Property

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

§ 3-505.4 Professional Independence of a Lawyer.

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except [subsections inapplicable]….

(c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

§ 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.

COMMENT

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

§ 3-507.2. Advertising.

(a) Subject to the requirements of Rule 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;….

. . . .

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services, not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

. . . .

[3] Questions of effectiveness in taste and advertising are matters of speculation and subjective judgment . . . . [E]lectronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.

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[5] Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the cost of print directory listings, on-line listings, newspaper ads, television and radio air time, domain-name registrations, sponsorship fees, banner ads and group advertising.

§ 3-507.3 Direct Contact With Prospective Clients.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client shall include the words “This is an advertisement” on the outside of the envelope, if any, and at the beginning and ending of any recorded or electronic communication, and in the subject line of an email, unless the recipient of the communication is a person specified in paragraphs (a)(1) [a lawyer] or (a)(2) [familial or close personal or professional relationship]. “This is an advertisement” shall appear in type size at least as large as the print of the address and shall be located in a conspicuous place on the envelope or postcard.

DiscussionRule 5.4(a) prohibits, generally, the sharing of legal fees with non-lawyers. It is this Committee’s opinion that the principle underlying this fee-splitting prohibition is the risk of undue influence upon the attorney. Although the payment to Groupon is based upon a percentage of total sales, we do not believe that this constitutes an impermissible sharing of legal fees with a non-lawyer under Rule 5.4 because there is little risk that the attorney’s representation of the client will be influenced by Groupon. Rather, it is the Committee’s belief that this arrangement must be further analyzed under the limitations of Rules 7.2 and 7.3 which govern advertisements, as well as Rules 1.5 and 7.1. The Committee views Groupon not so much as a referral, but rather, as an entity providing advertising services. Therefore, the limitations of Rule 7.2 and 7.3 must be analyzed.

Rule 7.2 requires that the cost of advertising be “reasonable.” Groupon bases the cost of advertising upon a percentage of gross receipts. Comment 1 to Rule 7.2 acknowledges that the rule “does not prohibit a lawyer from paying for advertising and communications permitted by these rules . . . .” The threshold requirement is that Groupon’s charges are “reasonable.” To the extent that the percentage charges arguably exceed the true cost of advertising, then the lawyer risks violating Rule 5.4(a). The committee makes no recommendation as to the level of percentage charge that would be appropriate in any given case as the burden is upon the lawyer to assure that the percentage is reasonable within the Rules.

Several jurisdictions have addressed this issue. South Carolina Op. 11-05 concluded that the money retained by the website constituted “the reasonable cost of advertisements” and not an impermissible fee-splitting arrangement. Likewise, the New York State Bar Association, in Opinion 897 (12/13/11), concluded that the website does not undertake a referral, but rather “carried a particular lawyer’s advertising message to interested consumers and has charged a fee for that service.” North Carolina, in 2011 Formal Ethics Opinion 10, concluded

that the fee retained by the website company is permitted under Rule 7.2(b)(1) as long as the “percentage charged against the revenues generated is reasonable compensation for the advertising service.” We, likewise, find that the website does not engage in a referral by carrying an attorney’s advertisement and that if the percentage charged against the revenues generated is reasonable compensation for the advertising service, then an attorney does not violate Rule 7.2 by his or her participation. The Committee offers no opinion on whether such a fee is “reasonable” since no information was provided as to the percentage charged.

A more complicated question arises in relation to Rule 7.1, which precludes a lawyer from engaging in misleading advertising. The lawyer expressed intent to “offer a single product for a set price, such as a living will or a simple last will and testament.” The Committee’s concern is whether the public will have a full understanding of the product offered. We stated in Formal Opinion No. 89-56 that the language of a proposed coupon for a “free simple will,” or a discount on more complex wills under our former Code of Professional Responsibility, was misleading because the general public may not know what constituted a “simple” or a “complex” will. Later, in Formal Opinion No. 09-05, we determined that a coupon offering a percentage off or a reduced fee was not necessarily prohibited, but that “[t]he language of the attorney’s coupon must be clear in identifying what ‘professional fees’ will be discounted (i.e., will the discount apply to paralegal or legal assistant fees, filing fees, mileage costs, and copied print charges?). Furthermore, in identifying the service to be offered at a discount, it is necessary to specify any limits on the discounted service, and explain terms which may be misinterpreted by the potential client.”

We continue to believe that the use of the term “simple will” is misleading due to the absence of any indication that the general public will understand what that term includes. However, if the services to be offered can be clearly described so as not to be misleading or potentially confuse the public, then Rule 7.1 is not violated by participation in such a program.

It is important to note however that Rule 7.3 requires that the words “advertising material” be visible on the outside of the envelope. In Advisory Opinion No. 10-03, we recognized the availability of Internet advertising and stated that “[i]f the advertising does not have an envelope, the specified word should be inserted next to the advertisement in the same size font as the actual advertisement.” The same is true in this context.

The program at issue here requires the customer to pay for service at the time of purchasing the Groupon. Rule 1.15(c) requires that pre-paid funds be deposited into a trust account until they are earned. Amounts received from Groupon, must, therefore, be deposited into a trust account until the service is rendered. If it turns out that the attorney is unable to “earn” the fee because of a conflict, or for other reasons, the attorney is responsible for returning the full amount paid by the purchaser, including the amount retained by Groupon.

Because an attorney may not collect fees for services he or she did not perform pursuant to Rule 1.5, if the customer ultimately

does not use the Groupon, the attorney must refund the full price. In order to avoid an indefinite attorney-client relationship, the Groupon should advise the purchaser that no attorney-client relationship is formed until the purchaser requests that service and the attorney can perform a conflicts check.

In Advisory Opinion No. 06-11, in which the Advisory Committee rescinded Formal Opinion No. 92-4, we held that it was not unethical for an attorney to donate specific services to be auctioned by a charity if certain ethical safeguards were in place. In doing so, we held that the wording of the auction item must not be false and misleading, that the specific service be clearly disclosed and convey that the attorney retained the right to decline the service for conflicts or other ethical problems, and if that situation arose, the price would be refunded by the attorney. We find that the same procedure must be followed here.

ConclusionThe use of a Groupon for discounted, prepaid legal services does not violate Rule 5.4 as an improper sharing of legal fees, but the amount charged as an advertising fee must be reasonable otherwise it may be deemed to be in the nature of fee-splitting. In addition, the following ethical safeguards must be taken:

(1) the Groupon must clearly identify the service being offered and cannot be false, deceptive, or misleading;

(2) the Groupon must clearly disclose that no lawyer-client relationship is established until after a conflicts check has been performed;

(3) the Groupon must state that it is “advertising material;”

(4) payment received from Groupon must be placed in the attorney’s trust account until earned;

(5) if the services cannot be performed due to conflicts, or if the customer later decides not to utilize the service, the entire fee paid by the customer must be refunded.


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No. 12-04a lawyer may advertise using any means or methods, including testimonials, so long as the content of the advertising is not false or inherently misleading. all advertising must comply with all of the rules of professional conduct that may apply to the contents of an ad. appropriate disclosures or disclaimers should be added to any advertisement that has the potential to mislead or deceive the public.

question PresentedWhat are the current ethical standards regarding use of testimonials in advertising by lawyers?

FactsA lawyer asks whether testimonials can be used in advertising his services, and if so, (1) whether they can be provided by anonymous sources; (2) whether there are any limits on content; and (3) whether the content must be objectively verifiable.

Applicable Rules of Professional ConductSeveral rules contained with the Rule of Professional Conduct are instructive:

§ 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.

COMMENT

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to

the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

§ 3-507.2. Advertising.

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

…

COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.


DiscussionRule 7.2(a) allows lawyers to advertise as long as they obey rules 7.1 and 7.3. None of these rules prohibits any particular method or means of advertising, so the short answer to this inquiry is that testimonials are allowed. The American Bar Association has revised its recommended wording of these rules several times in recent years, mainly to keep up with the decisions of the courts interpreting lawyer free speech rights under the First Amendment. Even so, the general language of the current version of the rules leaves some questions about the limits on content unanswered. The comments help with interpretation but do not add obligations to the rules, as the preamble to the rules explains in paragraph 14. Lawyers planning to advertise can look to court decisions for guidance on the likely answers to questions about the contents of ads.

The relevant decisions are a mixture of disciplinary and declaratory actions that began with Bates v State Bar of Arizona, 433 U.S. 350 (1977). In Bates the Supreme Court ruled that lawyer advertising is commercial speech that is protected by the First Amendment to the Constitution of the United States, but subject to some regulation. One clear rule is that states are allowed to prohibit false or inherently misleading advertising by lawyers. This is essentially what Rule 7.1 says. In addition, the First Amendment case law allows states to impose reasonable restrictions on advertising that has the potential to mislead. Courts have approved mandatory disclosures or disclaimers in those cases. Bates, id.; In re R.M.J., 455 U.S. 191 (1981); Zauderer v Office of Disciplinary Counsel, Supreme Court of Ohio, 471 U.S. 626 (1985). But before a “potentially misleading” ad can be regulated, the state must prove that the risk of misleading the public is real, not merely speculative or conjectural, and that regulation will materially alleviate the risk. Florida Bar v Went For It, Inc., 515 U.S. 618 (1995).

A lawyer planning to advertise must first of all recognize the difference between ad content that is in fact false or misleading, and content that is only potentially misleading. Actual falsehood is uniformly prohibited and not difficult to identify. For example, “A promise that a party will prevail in a future case is necessarily false and deceptive. No attorney can guarantee future results.” Public Citizen, Inc. v Louisiana Attorney Disciplinary Board, 632 F.3d 212, 218 (5th Cir. 2011). An attorney who has never tried a case to conclusion may not call himself an experienced trial lawyer. In re Shapiro, 780 N.Y.S.2d 680 (App.Div. 2004).

But simply telling the truth is not always enough to comply with the rules. Rule 7.1 also recognizes that a truthful ad can be misleading, and therefore the subject of discipline, if it leaves out important qualifying facts. Whether an ad is potentially misleading, and if so, what needs to be added to it, has been the subject of First Amendment cases.

Occasionally, the conclusion that an ad needs to say more to alleviate its potential to mislead is based on nothing more than the wording of the ad itself. For example, in Zauderer, supra., the Court held that “the State’s position that it is deceptive to employ advertising that refers to contingent fee arrangements

without mentioning the client’s liability for costs is reasonable enough to support a requirement that information regarding the client’s liability for costs be disclosed.” 471 U.S. 626, 653. In Milavetz v United States, __ U.S. __ , 130 S.Ct. 1324 (2010), the Court upheld Bankruptcy Code amendments enacted by Congress that require lawyers to identify themselves as “debt relief agencies” and disclose the fact that their services may involve bankruptcy relief, finding that the disclosures were factual statements “intended to combat the problem of inherently misleading commercial advertisements.” 130 S.Ct., at 1340.

Other times, truthful ads that are not proven to be potentially misleading will not require added disclosures or disclaimers. These cases demand evidence, not just arguments, about the misleading character of the ad. For example, in Peel v Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), the court reversed a lawyer’s censure by the Illinois Supreme Court. He advertised on his office letterhead that he was certified by the National Board of Trial Advocacy without including a disclosure explaining what that meant. The Illinois court had reasoned that the ad was a misleading representation of his skills. The Supreme Court held that the lawyer’s reference to his certification was not actually false or misleading. And since the public could find out the standards to obtain certification, there was no basis to argue without proof that there was a real potential to mislead that justified prohibiting the ad. In the end, the “possibility of deception in hypothetical cases” did not justify the punishment. Peel, id., 496 U.S. at 111.

In Ibanez v Florida Department of Business and Professional Regulation, 512 U.S. 136 (1994), the court reversed the Florida Supreme Court’s discipline of a lawyer who included references to her certification as a CPA and financial planner in her advertising materials. The court refused to allow “rote invocation of the words ‘potentially misleading’” to take the place of proof of harm that is “potentially real, not purely hypothetical” as a justification for restricting commercial speech. Ibanez, id., 512 U.S. at 146. In Mason v Florida Bar, 208 F.3d 952 (11th Cir. 2000), the court reversed the Florida court’s effort to force a lawyer to add a disclosure to his reference to his Martindale-Hubbell rating. The Court of Appeals rejected inferences that the ad threatened to mislead the public that were based on “mere speculation” and “unsupported conjecture” stating: “Even partial restrictions on commercial speech must be supported by a showing of some identifiable harm.” Mason, id., 208 F.3d 958.

Some courts have focused on the question of whether ad content could be objectively verified. In In re PRB Docket No. 2002.093, 868 A.2d 709 (Vt. 2005), the Supreme Court of Vermont affirmed discipline of a lawyer whose yellow pages ad proclaimed that his firm were “Injury Experts” and listed areas in which “We are the experts.” The court found that the ads violated the Vermont rule because the content made claims “that are not susceptible of measurement or verification” that were “likely to create an unjustified expectation and differentiation among those reading the advertisement about the results which can be achieved by a lawyer claiming to be an

➡


expert.” PRB, id., at 712. On the other hand, the fifth circuit court in Public Citizen, supra., concluded that unverifiable subjective statements included in testimonials could not be prohibited when there was no proof that they were likely to mislead the public. Public Citizen, supra., 632 F.3d at 221-223.

Controversy almost inevitably follows the effort to develop a comprehensive set of rules on these subjects, with uneven results. For example, in Alexander v Cahill, 598 F.3d 79 (2nd Cir. 2010), the court reviewed four rules that were adopted by the New York Appellate Division in 2006. Each of the rules prohibited certain content in lawyer ads. The court struck down all of the following rules on First Amendment grounds: (1) a rule prohibiting an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending; (2) the portrayal of a judge in an ad; (3) techniques to attract attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; and (4) nicknames, monikers, mottos or trade names that imply an ability to obtain results in a matter.

In Public Citizen, Inc., supra., the court reviewed six rules that were adopted by the Louisiana Supreme Court in 2009, with the following results: (1) a state may prohibit ads promising results; (2) but it may not prohibit all references or testimonials to past results; (3) nor may it prohibit ads including portrayals of a judge or a jury; (4) but it may require disclosure of the fact that an actor plays the part of a client, or that a reenactment is a reenactment, or that a picture or drawing is a reproduction; (5) and it may prohibit use of a nickname, moniker, motto or trade name that states or implies an ability to obtain results; (6) but it may not specify font size and the speed at which a disclaimer is read during an ad, or require both spoken and written disclaimers in television and electronic ads.

These cases illustrate the unsettled state of the law on this subject. The court decisions and advisory opinions are not uniform in part because of the variety of rules that states have adopted on the subject. Only a few standards are

clear. A testimonial cannot be false or inherently misleading. Ads promising or suggesting future results based on past performance must be produced with caution, if at all. But subjective, unverifiable statements are not prohibited unless there is proof that the public will in fact be harmed, and that prohibition or mandatory disclaimers will alleviate the harm. Public Citizen, supra., 632 F.3d at 221-223; Alexander, supra., 598 F.3d at 91-93. The proof of harm to the public must be real, not simply speculative or conjectural. Florida Bar v Went For It, Inc., supra.

A lawyer planning to advertise must comply with all of the rules of professional conduct that may apply to the contents of an ad. In addition to 7.1 and 7.2, these include: 7.3, regarding direct contact with prospective clients; 7.4 regarding advertising specialty practice; 7.5 regarding use of trade names; 8.4(c), regarding dishonesty, fraud, deceit or misrepresentation; 8.4(e), regarding any suggestion of an ability to achieve results by prohibited means; and 1.6 and 1.9 regarding confidentiality. Other rules may be implicated, depending on the specific contents of the advertising materials. The comments, while not adding substantive requirements, will provide insight into the likely interpretation of the rules in any specific situation. When in doubt, an appropriate disclosure or disclaimer, carefully written, should be added to avoid an argument that the ad is in fact misleading or that its potential to mislead is real and not just speculative.

Ethics advisory opinion 81–9, and all other opinions of this committee that contradict this opinion, are rescinded.

ConclusionLawyers may advertise using any means or methods, including testimonials, so long as the content of the advertising is not false or inherently misleading. All advertising must comply with all of the rules of professional conduct that may apply to the contents of an ad. Appropriate disclosures or disclaimers should be added to any advertisement that has the potential to mislead or deceive the public.


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)

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).

At the end of the day...

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


NSBA calendarNSBA Events Calendar

May 2012 17 Weathering the Storm featuring Dustin Cole, Gering Civic Center, Gering

18 2012 Legislative Update, Embassy Suites, La Vista

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 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

20 Real Estate Probate & Trust Section Legislation Meeting, Embassy Suites, La Vista

August 2012 8 Crimmigration featuring Kevin Ruser

New World Inn, Columbus

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


Have you thought of leaving the Nebraska Lawyers Foundation in your estate plans?

Please consider this...The Nebraska Lawyers Foundation funds these programs:

Volunteer Lawyers Project - The Volunteer Lawyers Project (VLP) is a statewide volunteer legal assistance project and referral network. It was created to provide legal assistance to low-income persons who cannot hire lawyers and who cannot receive assistance through the federally-funded legal services programs operating in the state. VLP is a program of last resort.

Minority Justice Committee - The Minority Justice Committee was established to examine and address issues of racial and ethnic fairness in the courts and legal profession. The Committee implements programs designed to: 1) promote diversity in the legal profession and court workforce; 2) ensure equal access to the justice system; 3) address racial disparities in the criminal justice system.

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

There are those that need your help. Your legacy could make a substantial impact. If not you, then who?

For more information, contact Greg Fox, Development Director, (402) 475-7091, [email protected].

“I was honored to be asked, and excitedly joined, the Minority Justice Committee simply because this committee is the beating heart of fairness in, and access to,

the courts in Nebraska.” - Dave Pantos, Legal Aid of Nebraska

Support

The Nebraska Lawyers Foundation

“When I left the abusive household, I was very frightened . . . Thank you again - deeply - for what you did.

Words alone can not describe the gratitude I feel.”- a recipient of VLP services

“The Nebraska Lawyers Assistance Program saved my life.” - from a Nebraska lawyer


by John M. McHenryThe Preamble to our Rules of Conduct which govern

the membership of the Nebraska State Bar Association clearly sets out our responsibilities and obligations as a member of the legal profession. It states that we have a special responsibility for the quality of justice and an obligation in all professional functions to be competent. Item (6) of the Preamble begins:

“As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”

This certainly means that we must ensure that the public has the opportunity to be represented in their legal affairs by well prepared individuals and that the public receives equal treatment within the judicial system. The lawyers of Nebraska through their State Bar Association created the Nebraska Lawyers Foundation to address these responsibilities and obligations. The Foundations’s MISSION is:

‘’To support programs to improve the legal profession and the administration of justice.”

The Nebraska Lawyers Foundation improves the legal profession and the administration of justice by funding the

Volunteer Lawyers Project, the Minority Justice Committee and the Nebraska Lawyers Assistance Program.

The Volunteer Lawyers Project (VLP) is a statewide volunteer legal assistance program and referral network. It provides legal assistance for low income persons who are unable to afford to hire a lawyer and who do not qualify to receive assistance through the federally funded legal service programs operating within the state. VLP is the program of last resort for these low income individuals.

The Minority Justice Committee was created through the joint efforts of the Nebraska Supreme Court and the Nebraska State Bar Association to examine and address issues of racial and ethnic fairness in our Courts and our legal profession. The Committee has implemented programs to: 1) promote diversity in the legal profession and the workforce of the Courts; 2) ensure equal access to the justice system by providing such things as bilingual forms and supplementing the cost of interpreters for individuals with limited English language skills; and 3) address racial disparities in the criminal justice system.

The Nebraska Lawyers Assistance Program (NLAP) is available and offers help to lawyers, judges and law students suffering from substance abuse, stress, depression, gambling, physical illness or other types of disorders which may impair their ability to perform in a competent and professional manner. The director of NLAP is assisted by a network of judges and lawyers throughout the State who are themselves recovering from alcohol or other drug addiction, psychological problems and impairment caused by other conditions. The activities of NLAP also include education, involvement in matters of lawyer discipline and issues related to death, disability or illness in a practice.

HOW CAN I HELP FUND THESE VITAL PROGRAMS?

Many times when we are asked to support a worthwhile cause we become anxious about our ability to meet our family and business financial obligations in the light of providing monies for these essential programs of the Foundation. There are planned gifts that can be made that do not change your current lifestyle, your cash flow or your family security. These are called “Painless” gifts because they are done with assets that are out of sight or out of


The Reason for a “Painless” Planned Gift

John M. McHenryJohn M. McHenry concentrates his practice in the areas of estate planning, probate of estates, buying and selling of businesses, real estate, and guardianships and conservatorships. McHenry is actively involved in the community and his profession. He does a great deal of volunteer work with the Metropolitan Area Volunteer Guardians and Conservators,

Nebraska Masonic Home Board, Grand Lodge of Nebraska, Beta Theta Pi Alumni Association of Nebraska, Madonna Foundation President’s Council and the Lincoln Public Schools Foundation. He served as the First Supreme Court District Representative to the Nebraska State Bar Association Executive Council.


mind to you and are planned by you to be transferred to the Foundation in the future from your estate.

BEQUESTSThe first common “Painless” method is to make a

bequest to the Foundation through your Will or Trust that will take effect only after your other obligations have ended. Typically there are three ways of providing a gift in your Will or Trust to the Foundation that will continue its Mission of improving the legal profession and the administration of justice. These can be easily modified if your financial circumstances change.

• Residual bequests. An example of a residual bequest is:

I give, devise and bequeath an undivided one-half share of the residue of my estate to the Nebraska Lawyers Foundation. I further direct that the Personal Representative of my Estate (or Trustee) shall pay such remainder share solely from assets of my estate that constitute “Income In Respect of a Decedent” within the meaning of IRC § 691 and from the assets of my estate.

• Specific bequests. An example of a specific bequest is:

I give, devise and bequeath the sum of $25,000.00 to the Nebraska Lawyers Foundation. I further direct that the Personal Representative of my Estate (or Trustee) shall pay such specific gift, devise and bequest solely from assets of my estate that constitute “Income In Respect of a Decedent” within the meaning of IRC § 691, then from other income of my estate, and if such other income is insufficient, then fom the other assets of my estate.

• Contingent bequests. An example of a contingent bequest is:

Upon my death, I give, devise and bequeath all of the residue of my estate to my child. In the event my child is not living at the time of my death, then the gift to her shall lapse and then I give, devise and bequeath all of the residue of my estate to the Nebraska Lawyers Foundation.

RETIREMENT ACCOUNT BENEFICIARYThe second common “Painless” method is to designate

the Foundation as a beneficiary of your 401K, IRA or other type of retirement account. The Foundation doesn’t pay income tax or estate tax on these monies and neither does your family.

The BENEFITS of naming the Foundation as a

beneficiary are:

• Avoidance of the potential double taxation of the estate tax and income tax that your heirs would pay.

• The ability to always change the beneficiary designation if your family’s financial circumstances change.

• During your lifetime you continue to take distributions from your retirement accounts

LIFE INSURANCE BENEFICIARYThe third common “Painless” method is to designate

the Foundation as a beneficiary of a life insurance policy. The use of life insurance policies to make your gift to support the Mission of improving the legal profession and the administration of justice can be done without having to reach for your checkbook. Just do the following:

• Name the Foundation as the primary beneficiary,

• Change a current policy naming the Foundation as owner and beneficiary,

• Continue to pay the premium to enhance the endowment fund,

• Name the Foundation as sole revocable Beneficiary of group term life insurance in excess of $50,000.00,

• Give a paid up policy to the Foundation, or

• Assign your annual dividends on your policy to the Foundation.

The transfer of a life insurance policy to the Foundation lets you make a significant gift without having a large estate. It is an easy way to leverage less cash into large dollars.

TRANSFER OF ASSETSThe fourth most common “Painless” method is to use

the automatic transfer at time of death of bank accounts and certificates of deposit by designating the Foundation as a joint tenant or a payable on death or transferable on death beneficiary. Examples of methods of transfer of Bank Accounts or C.D.s:

• Mary Smith or the Nebraska Lawyers Foundation, JTWROS,



➡


the administration of justice. The benefits of transferring appreciated assets are:

• You receive an income tax charitable deduction based on the fair market value of the asset on the date of transfer no matter what you paid for it,

• You pay no capital gains when the asset is sold, and

• Many times the transfer of appreciated assets is better than cash because of the smaller investment you have in the asset and the use of fair market value as the basis of the charitable deduction.

The Charitable Lead Trust currently is funded with securities and other appreciated property. The Trust then pays the income to the Nebraska Lawyers Foundation for a specified period of time. When the trust terminates, the remaining principal is paid to your named beneficiaries.

The benefits of the Charitable Lead Trust are:

• Income payments to the Foundation reduce the ultimate tax cost of transferring an asset to your beneficiaries,

• The amount and term of the payments to the Foundation can be set so as to reduce or even eliminate transfer taxes due when the principle reverts to your beneficiaries, and

• All appreciation that takes place in the trust goes tax-free to the individuals named in your trust.

WHICH planned giving METHOD will you CHOOSE to meet your RESPONSIBILITY to: IMPROVE the quality of justice; afford ACCESS to the legal system for all of the citizens of Nebraska; ENSURE the quality of representation available to the public; and FOSTER fair treatment of the lawyers, employees and litigants involved in the legal process?

before adopting any of these planned gifting strategies, you need to talk with your tax preparer to determine the income, gift or estate tax benefits to you.

• Mary Smith, POD to the Nebraska Lawyers Foundation, or

• Mary Smith, TOO to the Nebraska Lawyers Foundation.

CHARITABLE TRUSTS

The fifth common “Painless” method is the use of charitable trusts. The use of charitable trusts can provide income to you plus an income tax deduction. The two most popular forms of charitable trusts are the Charitable Remainder Unitrust and the Charitable Remainder Annuity Trust.

With the Unitrust, securities or other appreciated property are transferred to it. The Trust pays a percentage of the principal based on the annual value of the assets to you or your named beneficiaries. When the trust terminates, the remaining principal is paid to the Nebraska Lawyers Foundation.

With the Annuity Trust, securities and other appreciated property are transferred to it. The Trust then pays a fixed rate of income to you or your named beneficiaries. When the trust terminates, the remaining principal is paid to the Nebraska Lawyers Foundation.

With both the Unitrust and Annuity Trust the benefits to you are:

• Receipt of income for life or a specified number of years,

• Income tax deduction for a portion of your contribution, and

• Additional gifts can be made to the trust.

Planned gifts also include those that can be made currently to the Foundation. The two most common methods is to transfer appreciated assets or to create and fund a Charitable Lead Trust.

The transfer of stocks, bonds or mutual funds that have appreciated in value immediately allows the Foundation to sell those appreciated assets and to use the proceeds to further the Mission of improving the legal profession and




Give to Lincoln Day will be a 24-hour day of giving on Thursday, May 17. This first-ever event in Lincoln is an opportunity to make a real impact on the quality of life by helping local nonprofit organizations, including the Nebraska Lawyers Foundation.

$200,000 CHALLENGE MATCH FUND

Every donation made on Give To Lincoln Day will help even more because the Lincoln Community Foundation and their partner sponsors are contributing a challenge match fund of $200,000. At the end of the event, every agency will receive a proportional share of this fund, based upon their percentage of total dollars raised.

“Give to Lincoln Day is about investing in our daily lives,” said Barbara Bartle, President of the Lincoln Community Foundation. “We hope that many people will give on this day for their first time or make a donation to their favorite causes. We want every citizen to participate with every size of gift. This is a bonus day for local nonprofits, a standing ovation for the organizations that enrich our lives every day.”

HOW TO GIVE

The Nebraska Lawyers Foundation has its own customized web page that can be viewed at www.GiveToLincoln.com, where we share our cause, programs and stories with the community. Donations for Give To Lincoln Day will be made online at www.GiveToLincoln.com. Donations must be made by Thursday, May 17, beginning at 12:00 am and ending at 11:59 pm, to qualify for the matching funds. A continuously updated leader board on the site will show dollars raised and number of donors for every agency. Individuals who prefer to make their gifts in person, instead of online, may come to the Foundation office at 215 Centennial Mall South between the hours of 8 am to 5 pm.

ADDITIONAL PRIzES AND GRANTS

Prizes and additional grants to the nonprofits will be awarded the day of the event. The 3 nonprofits that garner the largest number of donors on May 17 will receive bonus grants of $2,500, $1,500 and $1,000 respectively. Ten times during the day, a donor will be selected at random and an additional $200 will be added to their donation.

Contribute to

The Nebraska Lawyers Foundation

Participate in Give to Lincoln Day: Thursday, May 17, 2012A Special Day Sponsored by the Lincoln Community Foundation

Who counsels the counsel?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)



2012 Barristers’ Ball

No amount of rain or Jimmy Buffet “Parrotheads” kept the 2012 Barristers’ Ball from being held April 14, 2012 at the Hilton Hotel - Omaha. Approximately 350 people attended the event and took part in a fun-filled evening of music by Pam and the Pearls, silent and live auctions, dining and dancing.

Members of the Nebraska bar, family and friends, celebrated Derby Day and raised over $70, 000 to support the work of the Volunteer Lawyers Project. Recipients of the 2012 Visonary awards were JACkSON LEWIS, LLP of Omaha for their members’ commitment to helping at the self-help desk in Omaha, and JAMES E. SCHNEIDER of North Platte for his service to low income clients in central and western Nebraska. This year’s Robert M. Spire Pro Bono Award winner is TARA GARDNER of Lincoln, recognized for her dedication to helping people obtain advice and representation as exemplified by Robert M. Spire, founder of the Volunteer Lawyers Project.

A fundraiser like the Barristers’ Ball could not accomplish its goals without the support of sponsors. We’d like to thank all the sponsors that made the evening a success! Auction Sponsor: The Daily Record; Band Sponsor: Marsh; Reception Sponsor: Jackson Lewis LLP; Dessert Sponsor: ABA Retirement Plan; Auction Program/Parking Sponsor: D4 Nebraska; Silver Sponsors: Baird Holm LLP; Bartle & Geier Law

Firm; The Berry Law Firm; Cassem Tierney Adams Gotch & Douglas; Cline Williams Wright Johnson & Oldfather LLP; Creighton Law School; D4 Nebraska; Family and Juvenile Law Omaha, Christensen & Madara-Campbell, PC LLO; Fraser Stryker PC LLO; Hauptman, O’Brien, Wolf & Lathrop, PC; Kalkwarf & Smith Law Offices, LLC; Kiewit Corporation; Knapp Fangmeyer Aschwege Besse & Marsh; Lamson Duggan & 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, LLP; Seiler & Parker, PC LLO; Walentine, O’Toole, McQuillan & Gordon, LLP; West Gate Bank; 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; Women & the Law Section; Cash Contributors: James E. Gordon & Karen Kilgarin; Sibbernsen Strigenz & Sibbernsen, PC; Cab Ride Sponsor: Hauptman O’Brien Wolf & Lathrop.

The 2013 Barristers’ Ball will be held April 6, 2013 at Embassy Suites - La Vista.

Run for the Roses


NCLE calendar

May 2012

17 Weathering the Storm featuring Dustin Cole Gering Civic Center, Gering

18 2012 Legislative Update Embassy Suites, La Vista

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 Embassy Suites, La Vista

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


Omaha District Court Judge J. Patrick Mullen to Retire June 1, 2012

Douglas County District Court JUDGE J. PATRICK

MULLEN is retiring effective June 1, 2012 after 36 years of service to the State of Nebraska, with 26 of those years on the Douglas County District Court bench. In his resignation letter to the Governor he noted, “It is and has been my privilege to serve in this (judicial) capacity for the last 26 years, and I wish to express my gratitude through you to the citizens of this State.”

Prior to taking the district court bench in 1985, Judge Mullen worked as Associate Juvenile Court Judge from 1976 to 1985. During his tenure on the bench, Judge Mullen served on several volunteer committees including the Nebraska District Court Judges Association where he held the position of the association president from 1999 to 2000. He also served on the Nebraska State Bar Association’s Judiciary Committee from 1993 to 2000 and chaired the committee in 1994 and 1995.

The first step in replacing Judge Mullen will be for the Judicial Resources Commission to call a meeting to determine whether or not, based on judicial workload statistics, the retirement of Judge Mullen creates a vacancy in the Fourth Judicial District (Douglas County District Court).

Judge Randall Appointed to National Task Force

Douglas County District Court JUDGE GARY RANDALL has been appointed to the American Bar Association (ABA) Task Force on Preservation of the Justice system. Randall is the only sitting judge on the task force and represents state court judges throughout the U.S. Other members include individuals from Washington, D.C. to Oakland, California; from the public and the private sector.

The Justice System Task Force was established by ABA President Steve Zack in 2010 to study the fiscal crisis facing state and local courts in the United States, including closing of courts and personnel cuts, causing extensive court case delays. The task force’s initial efforts focused on raising awareness of the insufficient funding of the judicial branch of government. The underfunding of the justice system is widely considered to be the most critical issue facing the legal profession and the public in assuring the freedoms guaranteed by American society.

The Justice System Task Force met during the ABA’s February meeting in New Orleans where Judge Randall participated in the discussions. The focus of the meeting was to discuss the continued threat that courts face from governmental underfunding and to identify possible strategies for responding to that threat.

court news

The Supreme Court recently received a “Petition for a Rule Change to Create a Voluntary State Bar of Nebraska . . .” as well as a “Memorandum in Support of Petition for a Rule Change to Create a Voluntary State Bar of Nebraska . . . “ filed by Scott Lautenbaugh. After consideration it was the Court’s view that the petition and memorandum in support thereof should be published in the Nebraska Advance Sheets and placed on the Court’s Web site for comment. The deadline for the comment period shall be June 1, 2012.

The following is the Court’s Notice of Comment Period, the content of the Petition and the Memorandum.


Local Bar Associations to Hold Memorial Programs

The Omaha Bar Association Memorial Program is scheduled for May 15, 2012, at 11:30 a.m. in the Legislative Chambers of the Omaha-Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska. The speaker will be the Honorable Laurie Smith Camp, Chief Judge of the U.S. District Court for the District of Nebraska. The chairperson of the committee is Robert Mooney. The Barristers Club will provide the ushers. The program is courtesy of The Daily Record. The program is held each year to honor those members of the bar association who have died within the year. We sincerely hope you will attend this special Memorial Service to honor our departed attorneys.

The Lincoln Bar Association Memorial Program is scheduled for May 25, 2012 at 10:00 a.m. in Lancaster County District Courtroom #30.

IRS Offers Workshops in Lincoln and Kearney to Help Nebraska Non-profits Stay Tax-exempt

The Internal Revenue Service is offering workshops to educate tax-exempt organizations in Nebraska about meeting their tax obligations and maintaining their tax-exempt status.

The IRS will hold one-day “Stay Exempt” 501(c)(3) workshops in two locations: May 22 in Lincoln, Neb., and May 24 in Kearney, Neb.

The workshops are coordinated by the University of Nebraska – Lincoln, Tax Institute, and are designed especially for administrators or volunteers who are responsible for a small or medium-sized organization’s tax compliance.

The workshops are led by experienced IRS Exempt Organizations specialists and are approved for continuing education credits by practitioner licensing authorities in Nebraska.

The workshops will cover one of the most important ways to preserve an organization’s tax-exempt status, Form 990 series filing requirements. In the past two years nearly 3000 Nebraska non-profits have lost their tax-exempt status for not filing an annual Form 990 series return. This is one of the many reasons that the topics covered in this workshop are invaluable to a nonprofit organization.

Other workshop topics include discussion of activities that can jeopardize 501(c)(3) status, unrelated business income, charitable gaming, employment issues and tips on recordkeeping and answers to frequently asked questions.

The workshops cost $45 per person and pre-registration is required. For more information or to register, visit the University of Nebraska – Lincoln, Tax Institute website at http://online.unl.edu/501c3. You can also contact Virginia Uzendoski at [email protected] or call (402) 472-9334.

For information on these workshops and others events, visit the Charities and Non-profits page of the IRS website at www.irs.gov/eo and click the “Calendar of Events” link.

legal community news


The Nebraska Minority Justice Committee is a joint effort of the Nebraska State Bar Association and the Nebraska Supreme Court. Since it’s inception in 2003, the Committee has developed and implemented a number of policy reforms, research projects, and educational initiatives aimed at 1) addressing racial disparities in both the juvenile and adult justice systems; 2) ensuring equal access to justice; and 3) promoting the diversity of Nebraska’s judicial workforce and legal profession

The Nebraska Supreme Court has appointed Court of Appeals JUDGE JOHN IRWIN to replace long time co-chair Hon. John Gerrard, who was confirmed by the U.S. Senate in January to the U.S. District Court. “Judge Irwin has had a long term commitment in assuring that all lawyers and litigants experience an even playing field in Nebraska courts. He is innovative and together with co-chair Linda Crump will lead the committee to a high level of excellence”, said

Justice Gerrard. A Court of Appeals Judge since 1992, Judge Irwin served on the original Minority Justice Task Force (2001-2003) and has Co-chaired one of the Minority Justice Committee’s Subcommittee’s since inception (2003-2012). Of Judge Gerrard, Judge Irwin quoted Henry Wadsworth Longfellow, ‘The life of a man consists not in seeing visions and in dreaming dreams, but in active charity and in willing service.’ Judge Gerrard’s active charity and willing service, in themselves, are a mark of distinction for Judge Gerrard, as well as a mark of distinction for Nebraska.

In addition to its local impact, the Committee has received national attention for its work: pioneering research and legislative reform to improve the extent to which juries are representative of the communities that they serve, receiving an American Bar Association Award for its programming to diversify the legal profession, examining ways in which communities can reduce failure to appear among communities of color, and by providing technical assistance to Commissions being established in other states.

nsba newsJudge Irwin Named Co-Chair of

Minority Justice Committee

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

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

Hon. John F. Irwin


The Nebraska Supreme Court MCLE Commission has closed the door on year two of Mandatory Continuing Legal Education. In December 2011 the staff of the Commission fielded 1800 calls and responded to 1850 e-mails. We had many conversations with attorneys regarding the experience of building a new program from the ground up and introducing a new computer program. While frustrations always runs high when computers are involved, we have found it to be a rewarding experience to deal with so many attorneys who walk away with a sense of accomplishment when they master the submission process. Across the board attorneys are gracious and thankful to the commission for the help they receive. We sincerely want to assist anyone who needs help in submitting the annual report, and we want to be responsive to the concerns of the attorneys reporting education.

What was different about year two was that we had more time to pay attention to issues users have with the system and we amassed a wish list of those things attorneys thought would assist in navigating the system and making the process easier. That list resulted in many modifications to language on screens and some new screen views that the MCLE Commission has now implemented. It also generated the need for two rule changes to allow us to modify the system.

The December 31 due date for the filing of reports has been problematic. The MCLE Commission sends out e-mail

reminders, the first are general to all, but the later notices are specific to those that have failed to file reports, however we found that the week between the holidays is not a time when close attention is paid to e-mails from public agencies. Our staff has worked through a portion of holidays over the last two years in order to assist anyone waiting until the last minute to get reports filed. Few attorneys take advantage of that service. A change in the due date for the annual report will allow everyone some breathing room to make sure a compliant report is filed. This will be good news to all of the attorneys who requested a new due date for annual reports.

While the education for a given year must be completed by Dec. 31 of that year, beginning with the 2012 reporting year reports will not be due until 20 days after the end of the reporting year, the new Supreme Court rule provides:

§ 3-401.10. (B) On or before January 20 following of the end of the annual reporting period, each attorney admitted to the active practice of law in this state shall make a report to the Director, through the use of the on-line MCLE system, evidencing completion of accredited or approved CLE, including professional responsibility education, during the preceding reporting period.

The second rule change arises from requests to rescind annual reports. Once a report is filed the on line system resets the attorney’s account to the next year. No rule allowed a report to be rescinded. Several warnings are provided to attorneys that a report is final so all credits claimed must be included on the transcript prior to filing a report. The Supreme Court has now amended the rule to allow an inaccurate report to be rescinded up until Jan. 30 following the reporting year upon the payment of a $25.00 fee to cover the cost of resetting the system.

One Nebraska attorney told us if the third year of a new program goes really well, by then it becomes the way things have always been. Here’s to our third year.

mcle newsChanges to the MCLE Rules

Carole McMahon-Boies

Carole McMahon-BoiesCarole McMahon-Boies is a 1982 graduate of the UNL College of Law. She was engaged in a general law practice with a concentration in civil litigation and employment law until 2006 when she became Director of Judicial Branch Education for the Nebraska Court system. Judicial Branch Education is charged with education and training for the judicial branch and oversees compliance with the Supreme Court rule mandating continuing legal education.


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 Omaha law firm of Gross & Welch is pleased to announce STEVEN E. ACHELPOHL and ANDREW J. WILSON have

joined the firm as Directors. Mr. Achelpohl earned his law degree from the University of Nebraska College of Law in 1975, where he graduated with distinction. His past 35 years of experience have focused on civil and business litigation, white collar criminal law, and appellate practice. He is licensed to practice in Nebraska, including the U.S. District Court of Nebraska and the U.S.

Court of Appeals for the Eighth Circuit. Mr. Achelpohl is a member of the Nebraska State and Omaha Bar Associations. Mr. Achelpohl has received many honors and awards throughout his career, including fellowship in the International Academy of Trial Lawyers, American College of Trial Lawyers and the Nebraska State Bar Foundation. He has also received recognition in Great Plains Super Lawyers and The Best Lawyers in America, where he was named Lawyer of the Year in Omaha for White Collar Criminal Law (2012). In addition to his legal work, Mr. Achelpohl currently serves on the Board of Directors for Nebraska Appleseed and the Nebraska Humanities Council. He has also served as a board member for the Visiting Nurses Association. For nearly eight years, Mr. Achelpohl was the Chair of the Nebraska Democratic Party and a member of the Democratic National Committee. He was also an instructor of Legal Writing at Creighton University School of Law. Mr. Achelpohl was a CoSIDA Academic All-American baseball player at the University of Nebraska in

1972. Mr. Wilson earned his law degree from the University of Nebraska College of Law in 1991. He received his B.S. in Industrial Engineering from Iowa State University in 1987. His past 20 years of experience have focused on litigation, including Insurance Defense, Subrogation, Commercial Matters, Employment Law and Criminal Defense. He is licensed to practice law in both Nebraska

and Iowa. Mr. Wilson is a member of the Nebraska State Bar Association, Omaha Bar Association, Iowa State Bar Association, Nebraska Defense Counsel Association, Nebraska Criminal Defense Association, DRI, and Nebraska Association of Trial Attorneys. He is a member of the Millard Rotary

Club, serves on the board for the Omaha Suburban Athletic Association and at Countryside Community Church he has served as Moderator, Chair of the Board of Deacons, and Chair of the Board of Trustees.

ANDREW MARSHALL has opened up a law practice in Creighton, Nebraska. He grew up west of Niobrara on the family farm and graduated from Niobrara High School. He was an undergraduate at Mount Marty College in Yankton where he met his wife Melissa. He received a law degree at the University of South Dakota in Vermillion. The past two and one-half years Marshall has worked at a firm in Yankton that also has an office in Hartington. While there he worked with the city attorney of Hartington, attending half the meetings and helping with the workload. Marshall said he has stayed involved in the family farm and when his wife had the opportunity to work as a physicians assistant for Avera in Creighton, it gave them the opportunity to move back to this area. Marshall Law Firm, LLC is a general practice law firm offering a wide range of legal services in both Nebraska and South Dakota. The firm is now open for business and is located at 709 Main Street in Creighton.

The Law Firm of Kinsey Rowe Becker & Kistler, LLP is pleased to announce that SETH J. FELTON has joined the firm as an Associate Attorney. A native of Lincoln, Seth attended the University of Nebraska-Lincoln, where he earned a Bachelor of Arts in History and English, graduating with Highest Distinction. Seth subsequently

studied International Affairs at the University of Cambridge, England, where he received a Master’s degree. Upon receiving his Master’s, Seth worked in Washington, D.C. for the Federal Emergency Management Agency in Congressional relations. He moved back to Lincoln in 2006 to attend law school. During law school, Seth worked as a law clerk for a quasi-governmental electric and natural gas supplier, where he gained experience in the areas of utilities law, municipal law and contract law. Seth was also selected in his third year of law school to serve as a student attorney in the UNL College of Law’s Immigration Clinic, where he represented low-income clients under the supervision of a licensed attorney. Seth currently practices in the areas of estate planning and probate, family law, immigration

transitions

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

Steven E. Achelpohl

➡

Andrew J. Wilson

Seth J. Felton


and naturalization, and administrative law. Seth is licensed to practice in Nebraska. Seth and his wife, Jenni, have one daughter, Cora, who is nine months old. They enjoy travel, Nebraska volleyball, and gardening.

Orthman Manufacturing, based in Lexington, Nebraska, is pleased to announce the appointment of AMBER ACKERSON as its new Human Resources Manager. Originally from Polk, Nebraska, Amber earned her Bachelor’s degree magna cum laude in Business Administration and Sports Administration from the University of Nebraska at Kearney, and in 2006 graduated with distinction from the UNL College of Law. Subsequently, she entered private practice at Heldt and McKeone in Lexington, working primarily in the areas of family, juvenile, criminal and bankruptcy law. Residing in Lexington with her husband Brian, and young daughters Aubrey and Brennan, Amber has been an active leader in the community as well, having served as president of several organizations, including the Lexington Area United Way, the Lexington Chamber of Commerce, and the Dawson County Bar Association.

Lamson, Dugan And Murray, LLP is pleased to announce the addition, of three new attorneys, to the firm’s Litigation department. JASON GRAMS received his Bachelor of Arts

degree in 2000, from the University of Nebraska at Lincoln. Prior to law school, he was a senior-level manager in the marketing services industry. Grams received his J.D., with high distinction, from the University of Nebraska College of Law in 2007. At Nebraska, he was executive editor of the Nebraska Law Review and served as a member of the national moot court team. He

was elected to the Order of the Coif and Order of the Barristers in 2007. Grams is a member of the Omaha Bar Association, Nebraska State Bar Association, Iowa State Bar Association, American Bar Association, and is treasurer of the Robert M. Spire American Inn of Court. Prior to joining Lamson, Dugan And Murray, he served as a law clerk, to Senior Judge Lyle E. Strom of the United States District Court for the District of Nebraska, from 2007-2009, and to Chief Judge William J. Riley of the United States Court of Appeals, Eighth Circuit from 2009-2011. BONNIE MOORE received her Bachelor of Arts degree, in political science, magna cum laude in 2007, from the University of Nebraska at Omaha. She received her J.D., from the Creighton University School of Law in 2011. While at Creighton, she was a quarterfinalist in moot court competition and served as a member, of a trial team that won the national championship at the Buffalo-Niagara Mock Trial Competition in 2010. She received the David A. Svoboda Trial Advocacy Award and Order of the

Barristers upon graduation. Moore is a member of the Omaha Bar Association, Nebraska State Bar Association, and the American Bar Association. PATRICK W. MEYER received his

J.D., from Creighton University School of Law in 1981. He received his bachelor of arts degree from Creighton University in 1978. He brings thirty years of litigation experience to the firm, from both private practice and at Werner Enterprises Inc. Meyer’s practice will concentrate in the areas of trucking, professional negligence, personal injury, and general liability claims. He is a member of the

Omaha Bar Association, the Nebraska State Bar Association, American Bar Association, and the Defense Research Institute.

Lamson, Dugan, And Murray is pleased to announce three new partners to the firm. Anastasia Wagner, Denise M. Destache, and Cathy Trent-Vilim are all members of the firm’s Litigation Department. ANASTASIA WAGNER received her

J.D., with distinction, from the University of Nebraska College of Law in 2004. She received a Bachelor of Science degree, magna cum laude, from the University of Nebraska in 2000. Ms. Wagner’s practice focuses on the Federal Employer’s Liability Act and environmental matters. She is a member of the National Association of Railroad Trial Counsel, Environmental Law Institute and Defense Research Institute.

Ms.Wagner previously clerked at the firm and has served as an associate since 2004. DENISE M. DESTACHE received her J.D., cum laude, from Creighton University School of Law in 1996. She graduated from Creighton University in 1982, with a Bachelor of Science degree in nursing. Ms. Destache practiced nursing as a hospital nurse and nurse educator before pursuing her law degree. She represents health care professionals and health care providers in medical malpractice cases and state licensure actions. Ms. Destache is a member of the Omaha Bar Association, Nebraska State Bar Association, American Bar Association, Defense Research Institute, and Nebraska Nurses

Association. She has been with the firm since 2004. CATHY TRENT-VILIM received her J.D., with distinction, from the University of Nebraska College of Law in 2002. While at Nebraska, she was an executive editor of the Nebraska Law Review, participated in the Criminal Clinic, and was elected to the Order of the Coif. Ms. Trent-Vilim graduated from Loyola Marymount University in 1994,

TRANSITIONS

Jason Grams

Bonnie Moore

Patrick W. Meyer

Anastasia Wagner

Denise M. Destache

Cathy Trent-Vilim


TRANSITIONS

Bankruptcy Institute Medal of Excellence. In addition to his awards, Mr. Wachal served as the Assistant Editor of the Creighton Law Review. Mr. Wachal is a member of the Nebraska State Bar Association, Iowa State Bar Association and the Omaha Bar Association. He is licensed to practice in Nebraska and Iowa. Mr. Wachal joins Steven E. Achelpohl (Civil and Business Litigation, White Collar Criminal Law and Appellate Practice) and Andrew J. Wilson (Insurance Defense, Subrogation, Commercial Litigation, Employment Law and Criminal Defense) as Gross & Welch’s third new attorney since the beginning of 2012.

THE GOOSMANN LAW FIRM is proud to announce their change of address to the historic Lerch building in downtown, Sioux City: 410 5th Street, Sioux City, IA 51101. Phone: 712.226.4000. Fax: 712.224.4157. www.goosmannlawfirm.com. Attorneys at the Goosmann Law Firm are: JEANA GOOSMANN; ANTHONY OSBORN; LINDSEY BUCHHEIT; EMILEE BOYLE GEHLING; CHRIS BARONDEAU and MATT CAMPBELL, of counsel.

Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O. is pleased to announce that DAVID A. HOUGHTON has joined the firm as an associate 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.

CASSANDRA STAJDUHAR was sworn in as a Workers’ Compensation Judge in Long Beach, California on March 12, 2012. Cassandra was admitted to practice in Nebraska in 2004 and is also admitted in Illinois and California.

with a Bachelor of Arts degree, cum laude, in political science. She received her Master of Arts degree, summa cum laude, in political science from California State University, Long Beach in 1999. Prior to joining Lamson, Dugan and Murray in 2008, she served as in-house counsel for Berkshire Hathaway Homestate Companies and was in private practice in Lincoln. Ms. Trent-Vilim is a member of the Omaha Bar Association, Nebraska State Bar Association, American Bar Association, and Defense Research Institute. She currently serves on the Board of Directors of the Nebraska Defense Counsel Association, and for many years served as a member of the executive committee of the Women and the Law Section of the Nebraska State Bar Association. She is a Nebraska delegate of the Infinity Project and former member of the Robert Van Pelt American Inn of Court. Ms. Trent-Vilim has a general litigation practice with emphases in legal malpractice defense and appellate advocacy.

Stratton, DeLay & Doele, P.C., L.L.O. is pleased to announce the addition of their new law partners, TRACEY L. BUETTNER and JOEL E. CARLSON. As a result of this addition, Stratton, DeLay and Doele, P.C., L.L.O. has changed its name to STRATTON, DELAY, DOELE, CARLSON & BUETTNER, P.C., L.L.O. Ms. Buettner received her Juris Doctorate from The

University of Nebraska Law School with distinction in 2004. Her practice includes expertise in Estate Administration, Estate Planning and other transactional areas. Mr. Carlson received his Juris Doctorate from The University of Nebraska Law School in 1988. He has a general practice with an emphasis on Workers

Compensation, Family Law and Criminal Law. Stratton, DeLay, Doele, Carlson, & Buettner, P.C., L.L.O.’s offices are located at 200 W. Benjamin Avenue, Norfolk, NE 68701 and all of the attorneys can be reached at (402) 371-3100 or contacted through the website at www.strattondelaydoele.com.

The Omaha law firm of Gross & Welch is pleased to announce ADAM J. WACHAL has joined the firm as an Associate and will be practicing in the areas of litigation and business law. Mr. Wachal earned his law degree from Creighton University in 2010, where he graduated with honors. He received his undergraduate degree from the University of Nebraska. While at Creighton,

Mr. Wachal received the CALI Excellence for the Future Award in the areas of Federal Income Taxation, Alternative Dispute Resolution, Debtor-Creditor Relations, Marriage and Divorce, and Mortgages. He was also awarded the American

Tracy L. Buettner

Joel E. Carlson

Adam J. Wachal

Cassandra Stajduhar (left) with presiding Judge Cynthia Quiel

➡

David A. Houghton


TRANSITIONS/AWARDS & RECOGNITION

lawyer in structuring transactions and planning for individuals and corporations allows him to see many alternatives for each situation. Joe graduated from Creighton University with his Juris Doctorate and received his Bachelor of Science from Santa Clara University. He recently received the designation of Certified Financial Planner (CFP®).

Awards and RecognitionKoenig Dunne Divorce Law is pleased to announce that managing partner, ANGELA DUNNE has become a fellow of the American Academy of Matrimonial Lawyers. The AAML is an association of the nation’s top matrimonial lawyers from the 50 states who specialize in all issues relating to marriage, divorce, annulment, custody, child visitation,

property valuation, property distribution, alimony and child support.

THOMAS A. WILCzEK, a 2004 admittee to the Nebraska State Bar Association, was named the Defense and Aerospace Industry Representative to the Nevada Governor’s Office of Economic Development. Mr. Wilczek was the Energy Program Manager for the Nevada State Office of Energy prior to this selection by the Governor’s Office. Mr. Wilczek is a member of the Board of Directors for the Nevada affiliate of Boys Town.

ROBERT M. SCHAFER has joined the Board of Directors of the Nebraska Chamber of Commerce and Industry. He will serve a three-year term as a Nebraska Chamber district director. Schafer is a partner with Carlson, Schafer & Davis, PC, LLO in Beatrice, and practices in the areas of business and estate planning, corporate law and real estate, and is licensed in Nebraska and Kansas. Schafer is also a member of the Executive Council of the Nebraska State Bar Association. He is also the current president of the Tri-County Bar Association and is a member of Beatrice Rotary Club and other community organizations.

The Kearney Area Chamber of Commerce Envoys presented their 2011 Friend of Kearney Award to THOMAS TYE II during the Annual Meeting of the Chamber of Commerce on January 30, 2012. The Envoy Friend of Kearney award is given each year to a member of the Kearney community or a couple who have been a “Friend of Kearney” through his or her community leadership and contributions. The nominations are asked to explain the nominees involvement in community and church organizations, contributions of voluntary leadership or assistance given to worthy causes for the betterment of Kearney and who has “carried Kearney” with him or her in the activities in which they are involved. Thomas Tye II certainly has had a significant impact on Kearney as a leader, with his most significant contribution being his leadership, vision and

Larson, Kuper & Wenninghoff, PC, LLO is pleased to announce that ROBERT WILLIAMS recently joined the firm. Robert will concentrate his practice in workers’ compensation defense, criminal defense and other civil defense litigation. Robert graduated from the Creighton University School of Law in 2000. Prior to joining

Larson, Kuper & Wenninghoff, Robert was a partner at Lewis, Pfanstiel & Williams, PC, LLO. Robert is a member of the Omaha Barrister’s and the Nebraska Criminal Defense Attorney’s Association. Robert is also a Board of Director with Gothenburg State Bank.

The Omaha law firm of Gross & Welch is pleased to announce that ERIC W. TIRITILLI has joined the firm as a Director. Mr. Tiritilli earned his law degree from Creighton University School of Law in 2003, where he graduated magna cum laude. He has substantial experience in employment and labor law, employment litigation,

noncompetition agreement litigation and OSHA & workplace safety. He is licensed to practice in Nebraska, including the U.S. District Court for the District of Nebraska and the U.S. Court of Appeals for the Eighth Circuit. Mr. Tiritilli is a member of the Nebraska State and Omaha Bar Associations. Tiritilli is a contributing editor to The Developing Labor Law and a frequent presenter at employment and labor law seminars. Mr. Tiritilli joins Steven E. Achelpohl (Civil and Business Litigation, White Collar Criminal Law and Appellate Practice), Andrew J. Wilson (Insurance Defense, Subrogation, Commercial Litigation, Employment Law and Criminal Defense) and Adam J. Wachal (Civil Litigation, Commercial Litigation, Creditors’ Rights, Bankruptcy and Business Law) as Gross & Welch’s fourth new attorney since the beginning of 2012.

SilverStone Group is proud to announce the addition of JOE HEFFLINGER. As a wealth advisor, Joe will help his clients identify and prioritize their financial goals by tailoring a customized investment, insurance and retirement strategy to work towards achieving those goals. Joe’s clients include business owners, executives, professionals

and those at or nearing retirement. Prior to joining SilverStone Group, Joe served six years as an attorney with the law firm of Koley Jessen P.C. in Omaha, Nebraska where he practiced law in the areas of Corporate/General Counsel, Mergers & Acquisitions, Tax Planning and Securities. While an attorney, Joe authored articles that were published in the Nebraska Law Review, as well as the Nebraska Lawyer. Joe’s experience as a

Robert Williams

Angela Dunne

Eric W. Tiritilli

Joe Hefflinger


AWARDS & RECOGNITION

Board member and current President, as well as the immediate past-chairman of the board of the Kearney Area Chamber of Commerce. Tom is a 2005 Inductee of the Knights of AK-SAR-BEN, Distinguished Alumni 2009 Leadership Kearney, Chancellor’s Advisory Council University of Nebraska Kearney. The Kearney Area Chamber of Commerce Envoy Friend of Kearney began in 1987 and has recognized 25 individuals or couples for their contributions to the growth and success of the Kearney area.

In February 2012 TERRI L. CRAWFORD published an article “A Proclamation of Greatness – Honoring Black Women” about the celebration of Black History Month and its theme for 2012: “Black Women in American Culture and History.” It appeared February 17, 2012 in the Omaha Star. Dr. Terri L. Crawford, Esq. is a member of the National Legislative Committee of the National Bar Association; a Criminal Defense Attorney; Adjunct Faculty of Black Studies at the University of Nebraska at Omaha; CEO and Founder of Yes, I Am My Sister’s Keeper, Re-Entry Program, and a member of Delta Sigma Theta Sorority Inc., Omaha Alumnae Chapter, Chair Political Awareness and Involvement.

commitment through the Yanney Heritage Park Foundation. He has been a mentor to future community leaders through his involvement as a leader to young men involved in the Boy Scouts of America program. His vision and leadership was evident as an original and founding member of the Kearney Family YMCA. He is a strong advocate for Kearney, as a life-long member of the community, he returned from college and continued to build his family law business. He advocates for Kearney when meeting with potential donors for Yanney Heritage Park. His activities working with community organizations to improve the quality of life including the splash park at Yanney or scholarships for children at the YMCA. He advocates for Kearney when talking with legislators on bills and laws affecting business in and around our state, and he regularly “thinks outside the box” when making sure resources stay in our community that help improve Kearney for future generations and to respond to emerging needs. His list of organizations and leadership roles is extensive, including Eagle Scout, National Eagle Scout Association Life Member and Past Boy Scout District Chairman, Ft. Kearney Chapter of the Red Cross Board Member, Board Member Good Samaritan Hospital, founding member and Past President of the Kearney Family YMCA, Yanney Heritage Park Foundation founding

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in memoriam

JOHN VICTOR ADDISON, 82, of Wayne, died March 2, 2012. He was born Nov. 16, 1929 in Wayne to Huber D. and Alma (Lammli) Addison. He attended schools in Wayne and Stanton, graduating from Stanton High School while residing with his grandfather, Victor, and cherished grandmother, Ida Lammli. He attended the University of Nebraska in Lincoln before enlisting in the Air Force, training as a fighter-bomber pilot and serving with distinction during the Korean War. He completed his law degree from UN-L in 1958 and practiced law in the Wayne area for more than five decades, serving as city attorney in Wayne and assistant county attorney in Stanton. John served in the Iowa Air National Guard following active duty service and a member of the VFW, American Legion, Masonic Lodge and the First United Methodist Church. John loved reading novels, dancing to “good” music, skiing at Vail, flying airplanes, talking about flying airplanes, fishing for walleye, talking about fishing for walleye, being with family and friends, spending time with friends and family on Lake of the Woods in Canada, fishing and boating on the lake, greeting new campers at Paradise Point and making sure they had walleye to eat, taking strangers fishing, checking out the progress of baby eagles in their nests and watching sunsets with friends on the dock. He was curious, adventurous, nearly always cheerful and friendly, and only occasionally cranky. Every aspect of him will be missed. Survivors include his beloved wife and companion, Selma; step-brother, Tom Addison of Ashland; three children, Robert (Julie) Addison of Wayne, Susan (Michael) Daws and John B. Addison, all of Parker, Colo.; two step-sons, Davin and Thor Flatmoe of Lincoln; four grandchildren; three step-grandchildren; eight great-grandchildren, cousins and many friends.

JAMES B. CAVANAGH, 63, died March 12, 2012. Mr. Cavanagh had been president for 20 years of Lieben Whitted Houghton Slowiaczek & Cavanagh, PC LLO. He had over 37 years of experience as a business and trial lawyer. He had a broad range of expertise in the fields of commercial transactions, banking and financial transactions, bankruptcy, commercial real

estate and securities arbitration. He represented franchisees, banks, thrift institutions, insurers, developers, manufacturers and retailers in many industries, as well as individual investors in business transactions and in court. He also had substantial experience representing creditors in complex bankruptcy matters. Mr. Cavanagh had litigated business and commercial cases at all levels of state and federal courts, involving directors’ and officers’ liability, lender liability, secured transactions,

and general commercial and banking litigation. He had also handled litigation and regulatory matters involving the FDIC, the Office of the Comptroller of the Currency, and the Office of Thrift Supervision. Mr. Cavanagh had been involved in arbitration proceedings before the NASD and NYSE, and he had handled numerous adversarial proceedings in bankruptcy court. Mr. Cavanagh was an “AV” rated lawyer in the Martindale-Hubbell Law Directory and is listed in the Best Lawyers in America in the fields of bankruptcy, creditor’s rights and commercial litigation and named in the Great Plains Superlawyers list. He was a 1970 graduate from Creighton University and he graduated cum laude from Creighton University School of Law in 1974. He was a member of the Omaha, Nebraska State and American Bar Associations. commercial real estate and securities arbitration. He is survived by his wife, Cheri; children Matt (Kelley), Daniel (Tara) and Sarah; parents Paul and Peg Cavanagh; and six siblings.

RICHARD A. (DICK) DOUGLAS of Scottsbluff died April 12, 2012. Dick was born November 23, 1945, in Pipestone, Minn., to Donald and Leona (Smith) Douglas. After living in Texas for a short time, the family moved to Omaha, where Dick graduated from Creighton Prep and Creighton University. Following service in the United States Army, he graduated from Creighton University School of Law. In 1972, he married Judith Fitzgerald in Omaha. The following year, the couple moved to Scottsbluff, where Dick began his law practice. At the time of his death, he was the president of the law firm Douglas, Kelly, Ostdiek and Ossian. His passion for education was reflected in his representation of Scottsbluff Public Schools, Western Nebraska Community College, and many other school districts in western Nebraska. He had many clients whom he represented with integrity and diligence. Dick was an active member of St. Agnes Catholic Church. He loved playing golf, discussing politics, and spending time with his friends. Most of all, he loved and cherished his family. He will be remembered for his advice, his generosity and his sense of humor. Dick was preceded in death by his parents and his brother Bob. He is survived by his wife Judy of Scottsbluff; daughter Ann (Justin) Hofmeister and their daughter Margot of Miami, Fla.; son Tim (Michelle) and their children Daisha, Davin and Ethan of Victorville, Calif.; daughter Maggie of Omaha; daughter Kelly (Justin) Villafane of Lincoln; brother Jack (Sally) of Omaha; many nieces and nephews and many loving friends.

RICHARD S. HARNSBERGER, 90, of Lincoln, passed away March 29, 2012. Richard was born December 14, 1921, and raised in Ashland. He entered military service in 1943 and attained the rank of Captain in the U.S. Army’s 773d Field Artillery Battalion. At the end of World War

James B. Cavanagh


II he was awarded five bronze battle stars for Normandy, Northern France, Rhineland, Ardennes, and Central Europe. He attended the University of Nebraska-Lincoln, where he earned his B.S., 1943; J.D., cum laude, 1949; and M.A., 1951. Member, Phi Kappa Psi, Beta Gamma Sigma, and Order of the Coif. He earned his S.J.D. at the University of Wisconsin-Madison, 1959. He practiced law with Stewart & Stewart, Lincoln, 1949-1955; Lancaster County Attorney’s Office, 1955-1956. He joined the faculty of the University of Nebraska College of Law, beginning in 1956. He taught there for many years, becoming the Cline Williams-Flavel A. Wright Professor of Law Emeritus in 1984; and Emeritus, 1992. He taught constitutional law, water law, and other subjects. Richard was honored with the Groundwater Foundation’s 1999 Maurice Kremer Groundwater Achievement Award. The Nebraska State Bar Foundation presented him with its 2001 Outstanding Legal Educator Award. The Lawrence Berger & Richard S. Harnsberger Faculty Wing of the College of Law was dedicated in 2003. He was preceded in death by his wife, Jean C. Harnsberger. He is survived by his sons, R. Stephen Harnsberger of Austin, Texas, and R. Scott Harnsberger of Huntsville, Texas; and grandchildren Michael R. Woodruff of Dickinson, Texas, and Sitara Jean H-K and Sanjiv Richard H-K of Austin, Texas. Memorials to the University of Nebraska for the Richard Harnsberger College of Law Scholarship Fund.

PAUL C. JESSEN, 59, died February 14, 2012. Paul Jessen was the co-founder and President of the Koley Jessen law firm with over thirty years of experience in the practice of law, including estate, business succession, tax planning and tax controversies, mergers and acquisitions, real estate, health law, charitable giving, and nonprofit organizations. Paul led

the Estate and Business Succession Planning Practice Group and was also a member of the firm’s Health Law and Tax Practice Groups. He was a Fellow of the American College of Estate and Trust Counsel and a Fellow of the Nebraska State Bar Foundation. Jessen received his J.D. degree from Creighton University School of Law, summa cum laude, in 1977. He also held a license as a Certified Public Accountant. He was a member of the Nebraska, Omaha, and American Bar Associations, the Omaha Estate Planning Council, The Great Plains Federal Tax Institute, and the Omaha Community Foundation. His community involvement also included the College World Series of Omaha, Inc., Knights of Aksarben Foundation, Member of Board of Councilors; River City Roundup, Heartland Chapter of American Red Cross, Rotary Club of Omaha – West. He is survived by his wife, Mary, daughter Kjirsten Finnegan (Joe), son Chad Jessen, grandchildren, nieces, nephews, and other family and friends.

HAROLD DEAN LANTz II, JD, 63, of Omaha, died April 10, 2012. He was born on May 24, 1948, to Harold and Ruth (Ruby) Lantz in Lincoln. Harold graduated from the University of Nebraska-Lincoln School of Law in 1975. He practiced law for many years with the St. Paul Insurance Company and in later years established a private law practice. He is remembered for his generosity with family and friends and his unique (wicked) sense of humor.He was preceded in death by his parents, Harold and Ruth Lantz. He is survived by his brother, Jim Lantz of Lincoln and partner Jeff Hoffman; niece Erika Peterson and spouse Jesse Peterson of Blaine, Minn.; nephew, Jacob Hoffman and spouse Krista Bartholomew of Portland, Ore.; special cousins, Debbie Sheldon, spouse Chris and family of Omaha; John Alan Fox, MD, spouse Suzanne and family of Hanover, Mass.; uncle, Don Ruby and spouse Florann of Henderson, Nev. The family wishes to thank his many kind neighbors and friends who treated him as family. Memorials to Vine Congregational United Church of Christ Church or charity of choice.

EDWIN C. PERRY, 80, of Lincoln, passed away on March 27, 2012. Edwin was a lifetime resident of Lincoln where he married, raised his family, and was very active in business and civic organizations. He received his BS in 1953 from UNL and his JD in 1955 from UNL Law School where he was a member of the Order of the Coif. He

served as Capt, USAF, JAG from 1955-1957 before returning to Lincoln. His local involvement included: chairman of Lincoln Lancaster County Planning Comm., president Lincoln Barristers, president Lincoln Bar Assn. 1977, chairman House of Delegates NE Bar Assn. 1987-1988, president NE Bar Assn 1991-1992, president Council of School Attorneys 1978-1979, fellow Amer. Bar Foundation, fellow NE Bar Foundation, legal counsel for LPS for 21 years, board of directors and legal counsel for Union Bank & Trust Co., CCD teacher and regular participant in Adoration at Cathedral of the Risen Christ, president Lincoln Serra Club, trustee Univ. of NE Foundation and recipient of the Perry W. Branch award, chairman Madonna Rehabilitation Hospital, vice president Folsom Children’s Zoo, board member Friendship Home, board member St. Elizabeth Hospital Foundation, instructor: UN College of Business 1957-1992, director May L. Flanagan Foundation, president Perry, Guthery, Haase & Gessford. Listed in “Who’s Who in America” and “Who’s Who in American Law,” St. Michael’s Parish Council, The Green Fez, member Equestrian Order of the Holy Sepulchre. Edwin is survived by wife Joan; sons, James (Gail) and Greg (Genelle) both of Lincoln, Jack (Missy) of Dellwood, Minn.; daughters, Marcy (Steve) Mills of Sacramento, Calif., Judy (Rand) Phipps of Edmond, Okla., and Priscilla (James) Hefflefinger of

IN MEMORIAM

Edwin C. Perry

Paul C. Jessen

➡


IN MEMORIAM

served on the Board of the Great Plains Federal Tax Institute, had been a member of the American College of Trusts and Estates Counsel since 1984, and had been listed in The Best Lawyers in America since 1997 in the areas of Trust and Estates law. Jeff began his legal career with Kennedy Holland DeLacy and Svoboda after graduating from Creighton University Law School in 1969 and joined Stinson when the firm opened its Omaha office in 1998. Jeff had been the Managing Partner of the firm’s Omaha office from August 2006 until January 2010. “Jeff was a rare combination of a talented and gifted attorney and an exceptional individual who unselfishly improved the lives of everyone around him.” said Bryan Hatch, Managing Partner of Stinson’s Omaha office. Jeff was also committed to civic involvement in organizations that foster and promote health care and community based activities, including Alegent Bergan Mercy Foundation, The American Lung Association and the Nebraska Humane Society. Jeff is survived by his wife Sue, six children and five grandchildren.

ANTHONY SAMUEL TROIA, 66, died February 14, 2012. He was born June 30, 1945. He received his undergraduate education at Creighton University and his law degree from the University of Tulsa. He was admitted to practice in 1972 and engaged in the general practice of law, including civil and criminal litigation in Omaha. He is survived by his wife, Christine; daughters Gina (Mack) Greder, Julie Perrault, Lisa (Scott) Timmermier, Laura (Craig) Coyle, Maria (Erik) Lighthall; stepson Tony (Sharlyn) Deterding; grandchildren, Mack and Milo Greder, Ainslie and Truman Perrault, Gabrielle, Gage and Gannon Timmermier, Caleb, Cadyn and Lola Coyle, Lily, Lexi and Louden Lighthall, Delaney and Jocelyn Deterding; brother Joseph Troia and his wife Candi; sisters Ginny (Robert) Brown, Kathy (James) Radosevich, Margaret (Stephen) Maher; many wonderful aunts, uncles, cousins, nieces, and nephews.

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.

Atlanta. Edwin had 19 grandchildren and one great grandson to be born. He was preceded in death by his parents, Arthur and Charlotte, and a sister Dorothy Duteau Wolff.

ALAN L. STEINACHER, 82, of Friend, formerly of Wilber, died March 7, 2012. He was born December 29, 1929 in Milligan, NE and grew up on the family farm outside of Milligan.At age 12 Alan lost his right arm in a farming accident. He graduated from the University of Nebraska and also received his law degree from the UNL College of Law. He practiced law in Wilber and Crete for

over 40 years, many of them with law partner Joe Vosoba. He also married Elizabeth (Betty) Rothenburger, a marriage which lasted 48 years. He served as the first president of the Wilber Lions Club, helped to establish the Hotel Wilber beer garden, was honored as a Knight of Blanik, and was part owner at one time or another in the following: Ace High Supper Club (located between Wilber and Crete), Saline State Bank, and an antique lire truck. Outside of work, Alan loved spending time with his family, seeing his four children grow up, and having visits from his grandchildren. He enjoyed football, outside activities, playing pitch, and having coffee with friends. In his retirement years, he and Betty enjoyed traveling and going to listen to polka bands. He served many years on the Wilber-Clatonia School Board and was instrumental in establishing the Wilber-Clatonia Public Schools Foundation. Alan is survived by his daughters and son-in-laws; Cindy and Wayne Havlat of Dorchester, Stacey and William Van De Graaf of Austin, TX, Brenda and Brad Pollard of Austin, TX; and son and daughter-in-law Jay and Dottie Steinacher of Lincoln. Also survived by twelve grandchildren, and many nieces and nephews.

JEFFREY D. “JEFF” TOBERER, 68, died March 5, 2012 following an illness. Jeff Toberer, a partner in the Omaha office of Stinson Morrison Hecker LLP, was a highly regarded attorney across a wide range of business and tax issues. He represented several Omaha-based companies in matters involving structure and governance, employment, finance, real estate, income

tax and general corporate matters. He also had significant experience in personal income, estate and gift tax planning, and business succession planning. For more than 20 years, he

Jeffrey D. “Jeff” Toberer

Alan L. Steinacher


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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.

PARALEGAL-LEGAL ADMINISTRATIVE ASSISTANT: Qualified candidate will possess a demonstrated history of dependability with an ability to prioritize and meet deadlines in a fast-paced environment, ability to multi-task with attention to detail, strong organizational and technology skills, proficiency in communication, both written and verbal, high motivation to work with and for the public in a tactful and confident manner, proven record of working independently and as a team player. Full-time. Salary commensurate with experience. Minimum of an Associate’s degree. Submit Résumé, letters of reference & writing sample to County Attorney, P.O. Box 126, Blair NE 68008.

ATTORNEY: Deputy Washington County Attorney: criminal prosecution, misdemeanor & juvenile. Qualified candidate will possess demonstrated history of dependability with ability to prioritize & meet deadlines in a fast-paced environment, ability to multi-task with attention to detail & strong organizational skills, proficiency in legal research & brief writing, ability to communicate effectively, high motivation to work with & for the public in a tactful & confident manner, proven record of working independently & as a team player. Non-smoker. Salary commensurate with experience. Minimum forty hours a week, nights and weekends as the job demands. Submit Résumé, letters of reference & writing sample to Shurie Graeve, P.O. Box 126, Blair NE 68008.

SEEKING EXPERIENCED ASSOCIATE Baird Holm LLP, an 82 attorney Omaha-based law firm, seeks an experienced associate for the firm’s Real Estate Section. The ideal candidate will have 3 - 6 years experience assisting property owners, developers and other users of real estate in all areas of real estate transactions and development. Experience with tax credit financed transactions is particularly valuable. The successful candidate will have a track record of excellent client relations, project management and client development.Please forward cover letter and resume to: Miriam Nelson, Director of Human Resources, Baird Holm LLP, 1500 Woodmen Tower, 1700 Farnam St., Omaha, NE 68102 or [email protected].

OFFICE SHARE: Attorney has office share available in 16th and Old Cheney area of Lincoln. Includes/available: office; telephone; receptionist; secretarial; internet; copier; conference room; break room; storage; and restroom. Contact Dale at 402-423-4300 or [email protected].

WEBSTER COUNTY ATTORNEY: Due to the retirement of Jerry McDole as County Attorney, the Webster County Board of Commissioners are seeking to fill this office vacancy by July 1st. The County Board has offered this position to local attorneys with no results. The next option is to find an attorney that would move to Webster County as a resident and fill that position. After that, the Board will offer the position to an attorney from an adjoining county. The final option is to contract with an attorney outside of Webster County. Please call the Webster County Clerk at 402-746-2716 or email [email protected].

STINSON MORRISON HECKER, LLP seeks a qualified associate attorney with 2-5 years experience in the areas of general business and corporate transactions to join the Omaha office. Excellent academic qualifications and writing skills are essential. Must be admitted to bar in Nebraska. Qualified candidates are invited to submit a cover letter, resume, law school transcript, and writing sample to Laura McDermott, 1299 Farnam Street, #1500, Omaha NE 68102 or email to [email protected].

SEEKING TO SELL PRIVATE PRACTICE. Established sole practitioner (1975) seeks to sell Lincoln, NE based law practice and transition toward retirement. This is a general practice that covers a broad array of legal areas but specializes in juvenile and bankruptcy work. The purchase of the practice could include three phases: introduction to and mentoring of current procedure, an intermediate period where purchaser has limited supervision, and finally, full transfer of clients. Interested individuals should inquire to Gene Oglesby at 402-476-3434 or via email at [email protected].

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. (0812)

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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)

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