Better Client Counseling Begins (And Ends) with You Tana M. Fye Bond Law Basics for a General Practice Lawyer Colleen Duncan

Richardson R. Lynn R. Richardson Lawyer Nebraska State Bar Association PRSRT STD

635 South 14th Street #200

US POSTAGE If I Had a Boat: What I Wish I Had Known as a Young Young a as Known Had I Wish I What Boat: a Had I If Lincoln, NE 68508 PAID OMAHA NE

PERMIT NO 2270 William C. Brown C. William

Had Known as a Practicing Lawyer Practicing a as Known Had

What I Have Learned as a Trust Officer That I Wish I I Wish I That Officer Trust a as Learned Have I What

Colleen Duncan and Mike Rogers Mike and Duncan Colleen

Bond Law Basics for a General Practice Lawyer Practice General a for Basics Law Bond

Tana M. Fye M. Tana Better Client Counseling Begins (And Ends) With You With Ends) (And Begins Counseling Client Better Paper checks are notoriously unreliable. They get lost in the mail, they get tossed in the laundry, and they carry a lot of sensitive information around with them wherever they go. LawPay changes all of that. Give your clients the flexibility to pay you from anywhere, anytime. Most importantly, we ensure you stay in compliance with ABA and IOLTA guidelines. Proud Member Benefit Provider

855-599-5738 or visit lawpay.com/nebar The Nebraska Lawyer Official Publication of the Nebraska State Bar Association • January/February 2020 • Vol. 23 No. 1 Features President’s Page: 3 What Mentors Meant to Me Departments ...... Steven F. Mattoon Steven F. Mattoon 37 Plain Language You Think Lawyers Are Good Drafters? Better Client Counseling Begins by Joseph Kimble (and Ends) With You 9 41 Tech Corner The Lawyer's Duty of Technology Competence - ...... Tana M. Fye And Some Easy Upgrades for Everyone by Rick Jeffries Bond Law Basics for a General 44 Wellness Brief 15 Practice Lawyer Making the Case for a Culture Shift by Chris Aupperle ...... Colleen Duncan and Mike Rogers 48 Court News What I Have Learned as a Trust 51 Legal Community News Officer That I Wish I Had Known as 54 NSBA Member Spotlight 21 a Practicing Lawyer Forty Years and Still Loving Life in Law: ...... William C. Brown A Conversation with Howard Duncan by Susan Ann Koenig If I Had a Boat: 57 NSBA Member Spotlights What I Wish I Had Known as a Young 27 Lawyer 58 Volunteer Lawyers Project Knowing the Need and Acknowledging the Assistance: ...... Richardson R. Lynn 2019 Pro Bono Summit by Laurie Heer Dale and Shannon Seim You Didn't Necessarily Lose Money in the Market 68 NSBA Section Connection 31 70 Practice Manual Promo ...... Patricia A. Vannoy, J.L. Spray, 71 Upcoming CLE Programs and David M. Gaba 72 CLE Faculty Recognition Practical Pointers: 73 Transitions Realities About Criminal Defense You 77 In Memoriam 35 Did Not Learn in Law School 80 Classifieds ...... F. Matt Aerni

www.nebar.com

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

THE NEBRASKA LAWYER 1 JANUARY/FEBRUARY 2020 Nebraska State Bar Association 635 S 14th St. #200, Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com issue editor EXECUTIVE COUNCIL Brandy R. Johnson is an attorney and owns President: Steven F. Mattoon, Sidney Governmental Law, LLC. Her law practice focuses President-Elect: Jill Robb Ackerman, Omaha President-Elect Designate: William J. Mueller, Lincoln on representation of Nebraska counties and their House of Delegates Chair: Hon. Patricia A. Freeman, Papillion employees in civil matters, including tort, employ- House of Delegates Chair-Elect: Susan K. Sapp, Lincoln ment, civil rights, and other litigation. She is also House of Delegates dedicated to assisting counties in proactive efforts to Chair-Elect Designate: Jason S. Doele, Norfolk avoid liability risks. Past President: J. Scott Paul, Omaha Past House of Delegates Chair: Michael J. McCarthy, North Platte First District Rep.: Jane Langan Mach, Lincoln Second District Rep.: Mark E. Novotny, Omaha Third District Rep.: Tracey L. Buettner, Norfolk Brandy R. Johnson Fourth District Rep.: Hon. Stefanie Martinez, Papillion Fifth District Rep.: Julie E. Bear, Plattsmouth Sixth District Rep.: Jon S. Schroeder, Curtis ABA State Delegate: Warren R. Whitted, Jr., Omaha Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln Young Lawyers Section Chair: Christin P. Lovegrove, Geneva Executive Director: Liz Neeley, Lincoln publications chair

EDITORIAL BOARD P. Brian Bartels is a partner in the Omaha office of Kutak Rock LLP. Brian’s practice includes advising Chair: P. Brian Bartels, Omaha governmental, tax-exempt, and for-profit employ- Melodie Turner Bellamy, Minden Brandy R. Johnson, Lincoln Sheila A. Bentzen, Lincoln Luke H. Paladino, Omaha ers on health and welfare benefit plans, the Patient Elizabeth Stuht Borchers, Omaha Edward F. Pohren, Omaha Protection and Affordable Care Act, and HIPAA Edward E. Brink, Omaha Kathleen Koenig Rockey, Norfolk compliance. He also advises clients on employee Daniel E. Cummings, Omaha Monte L. Schatz, Omaha Elizabeth Eynon-Kokrda, Omaha Ronald J. Sedlacek, Lincoln benefit issues in the context of mergers, acquisi- Thomas J. Freeman, Lincoln Colleen E. Timm, Omaha tions, and divestitures. Brian graduated summa cum Andrea V. Gosnold-Parker, Emily J. Wischnowski, Omaha laude from Creighton University School of Law. He Papillion earned a Master of Arts degree in Political Science P. Brian Bartels Executive Editor: from Indiana University and a Bachelor of Arts Allyson Felt degree, summa cum laude, from Creighton University. [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 St. #200 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] The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

THE NEBRASKA LAWYER 2 JANUARY/FEBRUARY 2020 president’s page

What Mentors Meant to Me

Steven F. Mattoon

The theme for this issue of The Nebraska Lawyer is, “As a Oklahoma. The Nebraska Oil and Gas Conservation Act lawyer, what I wished I had known as it relates to a specific area was not enacted and the Nebraska Oil and Gas Conservation of the law.” In my case, the specific area of the law is oil and Commission was not established until 1959. My knowledge gas. Upon joining the firm of Paul Martin, Gerald Matzke, and of oil and gas law came solely from one-on-one discussions, my father, Frank Mattoon, I knew that this was a large part analysis, and teaching from what I consider three tremendous of their practice. The Oil and Gas Commission is located in mentors. I suspect that if each of you reflect on how you came Sidney, and a retired partner actually helped draft the Nebraska to know your specific area of law, the answer may be the same Oil and Gas Conservation Act. Although oil and gas develop- for you. ment was initially discovered in the southeastern part of the Mr. Paul Martin, who was always Mr. Martin to me, spent state, drilling and production activities were primarily located in many hours with me, primarily over coffee, discussing estates, the panhandle and southwest Nebraska when I joined the firm. trusts, conservatorships, guardianships, and probate proce- What I didn’t know was how little I really knew! I didn’t dures. He assigned several cases to me, usually estates with know I would be examining title for the drilling of oil wells either minimal assets or major family issues. Gerald Matzke in courthouses located in over 20 counties and over two time provided training and instruction in corporations, limited zones with varying schedules of operation. I also did not real- liability companies, partnerships, court room procedure, law ize that the various chains of title would usually include at least office management, and, probably most importantly, how to 100 documents and often more, some of which would require a conduct oneself as an attorney and how to deal with clients. magnifying glass to examine. Knowledge of probate, corporate He was, and continues to be, the ultimate example of profes- law, real estate, and title issues was essential. My travels often sionalism. necessitated staying in very small towns with motels ranging However, my actual training and knowledge of oil and from well-known hotel chains to a motel my wife nicknamed gas law came from one-on-one contact and instruction from “Motel 4 1/2" (no office, no person, keys taped to the door, and my father, Frank Mattoon. We spent much time, usually in payment left in an envelope). I particularly remember dictating daily discussions and while driving to and from various court- a Title Opinion from a motel with no basement while watching houses, discussing title issues, formats for Title Opinions, and a tornado as it approached! proceedings before the Nebraska Oil and Gas Conservation The Nebraska Law School did not offer a course in oil Commission. Although he may not have been the most patient and gas law at that time. There were very few leading cases. person in all matters, he was never too busy to continue my Treatises and reference materials primarily dealt with oil and training. gas law in other jurisdictions, such as Texas, Louisiana, and  THE NEBRASKA LAWYER 3 JANUARY/FEBRUARY 2020 PRESIDENT’S PAGE

All three of my prior partners/mentors were also examples Although I may not have realized it at the time, perhaps of community service and commitment to the legal profession. this is the definition of being part of a profession. We uphold Mr. Martin served as President of the Nebraska State Bar public trust and confidence in the legal profession by ensur- Association in 1958 and as President of the Rocky Mountain ing that the next generation of lawyers is competent, ethical, Mineral Law Foundation. Gerald Matzke served two terms as and professional. And now it is my turn. I hope that I am a State Senator. My father served in the House of Delegates exhibiting the same patience in passing my knowledge on to and as the Governor’s Representative to the Interstate Oil and my younger partners, Tanya Martens and Kendra Strommen, Gas Compact Commission. and to the other lawyers in my community. It is my hope that Even lawyers outside of our firm had a direct impact and all attorneys realize the influence they can have on younger influence upon my growth as an attorney. The Honorable John attorneys, not only by direct mentoring and advice, but also by D. Knapp of Kimball, District Court Judge, and the Honorable patience and serving as examples of civility, integrity, service, Thomas H. Dorwart of Sidney, County Judge, both subtly and professionalism. provided advice; were always accessible; and were examples of judicial decorum, patience, and fairness. Older attorneys in my community including Jack Knicely, John Peetz, Donald Tedesco, Jeff Bush, and others were always fine examples of Steven F. Mattoon, President civility and professionalism and did not take advantage of a (308) 254-5595 young, inexperienced attorney. [email protected]

Save the Date! Watch your email and nebar.com for more information. FRIDAY February 21, 2020 FREE CLERKSHIP NORTH PLATTE PRAIRIE ARTS CENTER CLE & INTERVIEWS 416 N JEFFERS ST In an effort to provide attorneys and law students with an opportunity to experience the practice of law in Greater Nebraska, the Nebraska CLE SEMINAR State Bar Association is conducting its annual Rural Practice Initiative 10:00 am - 12:00 pm Program. TOPIC TBD Students participating in the program can support your firm while gaining practical experience.

IN-PERSON In-person interviews for our clerkship program or full-time INTERVIEWS 12:30 pm - 5:00 pm employment will take place following the CLE Seminar.

RURAL PRACTICE INITIATIVE The goal is to provide 15-20 minutes for each interview.

ASSOCIATE AND SUMMER We estimate that each attorney will have the opportunity CLERKSHIP PLACEMENT PROGRAM to interview at least six students in the afternoon. Attorneys and students will have an additional opportunity to meet and converse at a reception following the formal interview session. SPONSORED BY: Nebraska State Bar Association Women and the Law Section

THE NEBRASKA LAWYER 4 JANUARY/FEBRUARY 2020 editor's note

Happy 2020 from The Nebraska Lawyer! An Editorial Update from The Nebraska Lawyer By Allyson Felt, Editor

As we enter a new year and decade, the Publications Looking ahead to 2020, we are proud to announce the fol- Committee and editorial staff at The Nebraska Lawyer wanted lowing themes for The Nebraska Lawyer: to try something a bit different for this issue. Publication Theme Our theme for this issue is: “Reflections and Lessons: From Date Those Who’ve Been There.” The idea behind this theme was March/Apr. Civil Rights and Civil Liberties to provide a high-level overview on a specific area of law—what an attorney not practicing in that area should know about that May/June Emerging Technology and Law Practice area—and to provide practice tips for newer attorneys. Management July/Aug. Family Law As President Steve Mattoon said, mentoring is vital to the survival and success of attorneys—new and not-so-new. At Sept./Oct. Military/Veterans and International Law one point or another, we have all been there: dealing with the Nov./Dec. Employment Law first case in a new area of law, trying to handle an extremely If you are interested in submitting any articles, or if you tricky client for the first time, being new to the practice of law have ideas about what you’d like see in future issues of the in general. Those shared experiences are part of what bonds us magazine, please send me an email at [email protected]. I’d love together in this profession. This issue builds on those shared to hear from you, and our editorial team is always looking for experiences (or the idea of helping others understand how to new content. better handle those experiences) and resulted in interesting From all of us here at the NSBA, we wish you the happiest information about different areas of law and useful advice that and healthiest start to your new year! can be applied across all practice areas and in life generally. We hope this issue will be a valuable resource for those attorneys who are new to the practice of law, changing practice areas, or simply looking for new ideas that can help 2020 get off to a great start. Happy New Year from the NSBA!

THE NEBRASKA LAWYER 5 JANUARY/FEBRUARY 2020 THE NEBRASKA LAWYER 6 JANUARY/FEBRUARY 2020 2020 Nebraska Lawyer Cover Art Competition Rules of the The Nebraska Lawyer Cover Art Competition the content is within the bounds of the fair use doctrine. The Artist further warrants that: (a) he or she has obtained permission from any 1. The competition is comprised of the following categories: person whose name or likeness is used in the Work; and (b) publica- Photography, Painting/Drawing, and Sculpture. tion of the Work via various media, including on the Web, will not 2. Submissions will be accepted beginning January 1, 2020, and infringe on any third-party rights. The Artist indemnifies and holds must be received by 5 p.m. CT on March 15, 2020. The winning harmless the NSBA from any claims to the contrary, or from loss or entry will be published on the cover of the May/June 2020 issue damage of any kind arising from or in connection with the Work and of The Nebraska Lawyer. The NSBA may choose more than one the competition. winning entry, in which case the additional winning entries may be 10. The competition is governed by the laws of the State of Nebraska, published on the covers of subsequent issues following the May/June and the Artist consents to its exclusive jurisdiction for any causes or 2020 issue, for as many issues as is necessary to publish all winning controversies arising in relation to this competition. entries, or elsewhere in the May/June 2020 issue. *Works previously submitted for this contest will not be considered.* 11. The NSBA is not responsible for any technical malfunction or service outage related to the 3. No submission form or cover competition. letter is needed, but a person making a submission (“Artist”) 12. NSBA officers, members must indicate which category or of the NSBA staff, and mem- categories he or she is entering, bers of the NSBA Publications his or her name, the title(s) of Committee cannot assist Artists the work(s) he or she is submit- in selecting Work for submis- ting (if applicable), and a means sion to the competition. by which to contact the Artist. 13. Submissions are reviewed by 4. Submissions from the fol- the Editor and the Publications lowing will not be accepted: Committee and their decision Staff and officers of the NSBA is final. In their sole discretion, or members of their immedi- To submit Works in the Editor and the Publication ate family, or members of the any category, send to Committee reserve the right not NSBA Publications Board or Allyson Felt, Editor, to accept any submission. members of their immediate via email at 14. Voting for the submissions family. [email protected]. will be opened up to the mem- 5. Artists may enter more than bership of the NSBA after all one work (“Work”), and they submissions are received. Only may enter more than one cat- one vote per member. Once all egory. In the “Photography” category, the maximum number of submissions are received, the NSBA will provide a link to the online submissions by one Artist is 10. voting. Each member must provide their first name, last name, bar number, and birthday for their vote to be counted. 6. “Legal” subject matter is not required. 15. The Publications Committee reserves the right not to award a 7. The competition is open to all categories of Nebraska-admitted prize in any or all categories, or to award an “Honorable Mention” in attorneys (including inactive, retired, and judicial). any and all categories. 8. Artists retain the copyright in their own Work. By entering the 16. Questions regarding the competition should be directed to the competition, however, Artists grant to the NSBA and The Nebraska Editor, Allyson Felt, at [email protected]. Lawyer magazine a license for the first North American publication in print, and for publication on the website of the NSBA and/ Guidelines Regarding Submissions or of The Nebraska Lawyer magazine and other electronic chan- 1. Do not send original artwork. All Works must be delivered in nels including, but not limited to, social media pages of the NSBA. electronic format. For example, if submitting Work in the Sculpture Publication in either medium is in the sole discretion of the NSBA. or Painting/Drawing categories, send photograph(s) of the work. Artists also grant the NSBA a license to grant reprint permission of When submitting photos, high-resolution quality is required: 300 any Work that is published in the printed magazine or on the web- dpi at 10” x 12”. site of the NSBA and/or of The Nebraska Lawyer magazine or other electronic channels. 2. In the Sculpture category, it is advised that multiple photo views are helpful. In addition, the Artist should describe the scale (dimen- 9. By submitting, the Artist warrants and represents that the Work: sions) of the Work. (a) is the Artist’s original work; (b) has not been previously published; (c) has not received any previous awards; (d) does not infringe upon 3. In the Photography category, the Artist must explain any sig- the copyrights, trademarks, rights of privacy, publicity, or other nificant post-shooting manipulation done to the Work via computer intellectual property or other rights of any person or entity; and that software (e.g., Photoshop).

THE NEBRASKA LAWYER 7 JANUARY/FEBRUARY 2020 NSBA Member Benefits Helping Lawyers Help People

Please take a moment to make sure you’re taking full advantage of your NSBA member benefits. To learn more about all of the benefits, programs, and services of the NSBA, visit www.nebar.com.

Casemaker NSBA Health Insurance Unlimited access to a vast online legal re- Consortium search engine including legal authorities The Health Insurance Consortium con- for all 50 states and the federal govern- sists of multiple employers, with NSBA ment and a mobile application. Casemaker membership, pooling together to obtain premium services also available for free: affordable health insurance coverage on Casecheck+, Citecheck+, and Casemaker terms similar to those currently available Digest. Access to Casemaker is valued at only to large employers. There are seven $450 per year. Blue Cross Blue Shield of Nebraska plans to choose from. Employers also have the Free and Reduced-Cost CLE option of selecting “narrow networks” to Receive two free hours of ethics credit achieve additional savings. In addition to at certain NSBA-produced seminars and staff, employers may offer family and de- webinars (a $130 value) as well as a sig- pendent coverage to their employees. nificant discount on all NSBA-produced CLE seminars and webinars, including our Insurance On-Demand webinars at www.nebaronde- Through its partnership with Mercer, the mand.com. NSBA offers a full range of insurance options, including professional liability, life, Child Support Calculator disability, and employment practice liabili- Unlimited free access to the Nebraska ty. For additional information on insurance Child Support Calculator, a state-of-the-art products, visit www.nebarinsurance.com platform for calculating child support in all or call John Collentine at (800) 328-4671. Nebraska courts, valued at $109 per year. Legislative Update NebDocs As lawyers, it is imperative that you are up- NebDocs is a document assembly system to-date on changes to the law. The NSBA’s on a HotDocs platform that covers most Legislative Update is sent weekly to dues- practice areas. NebDocs templates auto- paying members during the session to matically create customized documents keep them up to date on the status of bills based on the answers given—saving mem- impacting their areas of practice. bers time, effort, and money in the production of documents and forms (available for an additional fee).

YOU ALSO . . .

• have access to the NSBA Library filled with past NSBA seminar materials, manuals, forms and videos, all categorized by practice area; • can join Sections to connect with other attorneys in your areas of practice through events, seminars and listervs; • can join NetWORKS!, the NSBA’s Professional Networking Group in Omaha and/or Lincoln, where you’ll be matched with six lawyers for coffee or lunch at your mutual convenience throughout the year; • can connect with potential clients with a listing on the Nebraska Find-A-Lawyer website, (www.nefindalawyer.com); • have access to Medicare Insurance Solutions through NSBA’s partnership with Millard Benefits, providing members with no-cost services including Medicare Supplemental cost comparisons, product options like Medicare Advantage (where available), and annual prescription drug cost reviews for you and your family. Visit www.millardbenefits.com for more information.

THE NEBRASKA LAWYER 8 JANUARY/FEBRUARY 2020 feature article

Better Client Counseling Begins (and Ends) With You by Tana M. Fye

Attorneys regularly deal with clients who are under an ethical obligations to our clients. “As a representative of clients, immense amount of stress and in the midst of difficult situ- a lawyer performs various functions. As advisor, a lawyer pro- ations. They come to us when they’re facing a divorce, when vides a client with an informed understanding of the client's legal they’ve been charged with a crime, when their children have rights and obligations and explains their practical implications. As been taken away from them, when they’re facing bankruptcy, advocate, a lawyer zealously asserts the client's position under when they’ve been served with a lawsuit, whenever they have the rules of the adversary system. As negotiator, a lawyer seeks a problem and don’t know how to solve it. Attorneys have the a result advantageous to the client but consistent with require- awesome responsibility of not only helping people to solve ments of honest dealings with others. As an evaluator, a lawyer their problems, but also communicating with those people acts by examining a client's legal affairs and reporting about them about their options, and helping to alleviate their stress. We to the client or to others.”1 Two of these functions, advocate and are tasked with walking with clients through some of the most negotiator are outward facing functions. The other two, advisor challenging moments of their lives. This is client counseling, and evaluator are inward facing functions, that the attorney does and much like the practice of law in other respects, we can alone and with his or her client. Both advising and evaluating continue to work at it and improve over time. are included in what we as attorneys do when we counsel clients. Ethical Obligations “In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication In thinking about the necessary elements of good client with a client concerning the representation. A lawyer should keep counseling, it is important to begin with an eye toward our in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules Tana M. Fye of Professional Conduct or other law.”2 Client counseling is Tana M. Fye important. It’s required for us to meet our ethical obligations to is an attorney at our clients. It’s also important because being effective commu- Fye Law Office in Holdrege, NE. nicators with our clients is the only way that we can be effective She practices predominantly in the as attorneys. And it’s important for us to do in order to keep areas of juvenile law and criminal defense. She graduated from The clients, which keeps our law practices in business. According to University of South Dakota School a national survey, 67% of clients who leave do so “because they of Law and then clerked for the feel they were treated discourteously, indifferently, or simply 3 ten judges of the Second Judicial were not given good service.” Good client counseling goes Circuit of South Dakota after a long way to addressing these issues and keeping our clients. graduation and before starting her But how do we counsel our clients well? And what are concrete own law practice. Tana is trained tips and strategies that we can all use to improve our skills in in reflective practice through The this regard? Nebraska Center of Reflective Practice.  THE NEBRASKA LAWYER 9 JANUARY/FEBRUARY 2020 BETTER CLIENT COUNSELING

Preparation that need to be discussed during the meeting. This will help you to set an agenda, which will make your meeting with the When meeting with either a new client for the first time or client productive. with an existing client, preparation for the meeting (or phone call) is important. And preparation includes both physical If you are meeting with a potential client for the first time, preparation and mental preparation. mental preparation may also involve researching the potential client. This would be more important if you were dealing with Physical preparation includes looking professional and com- a company or organization than it would for a private indi- petent, dressing neatly and in a manner that demonstrates that vidual. But having a basic understanding of the business of the you both take your work seriously and are competent to handle client can help you to formulate questions that you may need the client’s legal matter.4 I’m of a generation that recognizes to ask during the meeting. Potential clients may not be able to that this is not always a business suit (though in many situations give very much legally important information at the outset of is may be), and that some clients may feel more comfortable with the representation, because they may not understand what the an attorney dressed more or less casually. Use your best judg- legal issues are. Research into the law, and sometimes the cli- ment and think about what will most set your client at ease, but ent, can help you to ask more probing questions at the outset realize that appearing sloppy will not help clients, particularly to make the meeting more effective. of an older generation, trust that you know what you’re doing. Physical preparation also means meeting with your client in Communication and Advice a professional setting without interruptions. This can include “Reasonable communication between the lawyer and the a conference room in your office building, in your office itself, client is necessary for the client effectively to participate in the in a conference room at the courthouse, or many other set- representation.”5 Communication can be written and oral, and tings. Whatever the actual location, the keys elements are that both involve elements of client counseling. The method of the client feels comfortable, confidentiality can be maintained, communication that we’re most concerned with in this article and you can meet without interruption. In my own office, this though is oral communication. “The client should have suf- looks like clearing my desk of other work and client files (both ficient information to participate intelligently in decisions con- to maintain confidentiality of those other clients, and to convey cerning the objectives of the representation and the means by a sense to the client whom I’m meeting with that he/she is a which they are to be pursued, to the extent the client is willing priority), closing office doors, and turning the ringers on my and able to do so. Adequacy of communication depends in part cell phone and desk phone off. on the kind of advice or assistance that is involved...The guid- Mental preparation includes being punctual for your client ing principle is that the lawyer should fulfill reasonable client meeting or rescheduling if you are not able to be on time. It also expectations for information consistent with the duty to act in means that you schedule enough time before the client meeting the client's best interests, and the client's overall requirements so that you’re not still thinking about the last client meeting, the as to the character of representation.”6 brief you have due at the end of the day, the hearing that went “In some circumstances, a lawyer may be justified in delay- badly yesterday, the fight that you had with a spouse or a child, ing transmission of information when the client would be or anything other than that client’s issue. If we’re distracted, we likely to react imprudently to an immediate communication.”7 can’t give the client the attention that he or she needs, we may But “[a] client is entitled to straightforward advice expressing miss key issues in their cases, and we can’t meet them where the lawyer's honest assessment. Legal advice often involves they’re at. I have found that engaging in mindful self-regulation unpleasant facts and alternatives that a client may be disin- strategies are helpful in this regard. Some of the self-regulation clined to confront. In presenting advice, a lawyer endeavors to strategies that I’ve found to be most helpful are meditation, tap- sustain the client's morale and may put advice in as acceptable ping, self-talk, and deep breathing. But there are many more, a form as honesty permits. However, a lawyer should not be and it’s important to find what works best for you. deterred from giving candid advice by the prospect that the Mental preparation also means having a basic understand- advice will be unpalatable to the client.”8 But when you have ing of the issue that the client or potential client is coming in bad news to deliver to the client about his or her case, do so with. If you’re a new attorney without much experience, or simply, directly, and honestly.9 Bad news doesn’t get better if it is not in an area of law that you regularly practice in or with the passage of time, it only gets more difficult to deliver. just haven’t handled for some time, you may need to read (or reread) statutes, cases, or primers. If you’re meeting again with Diminished Capacity an existing client, you will probably also need to refresh your “The normal client-lawyer relationship is based on the memory on the current status of the case, any offers that are assumption that the client, when properly advised and assisted, outstanding or need to be communicated, and any other items is capable of making decisions about important matters. When THE NEBRASKA LAWYER 10 JANUARY/FEBRUARY 2020 BETTER CLIENT COUNSELING

the client is a minor or suffers from a diminished mental capac- often follow up with a letter confirming what we talked about ity, however, maintaining the ordinary client-lawyer relation- and decided on, or send a letter in advance so that they have ship may not be possible in all respects…Nevertheless, a client time to think about the information before even walking into with diminished capacity often has the ability to understand, my office. And I use reflective practice in my meetings with deliberate upon, and reach conclusions about matters affecting these individuals. All of this has carried over to how I engage the client's own well-being.”10 “The fact that a client suffers a and talk with my normal functioning adult clients. And I have disability does not diminish the lawyer's obligation to treat the found that it is more effective, because none of our clients client with attention and respect. Even if the person has a legal really understands legalese or complicated legal concepts. If representative, the lawyer should as far as possible accord the we can simplify to the point that an adolescent or teenager represented person the status of client, particularly in maintain- understands, then our adult clients is more likely to understand ing communication.”11 too. And this has the added benefit of making us better com- Practically speaking what does this actually look like? I municators in court and in legal writing as well. often work with children, teens, and people of all ages who What is Reflective Practice suffer from mental illness or developmental disabilities. I use simpler language when talking with these individuals about Fundamentally, reflective practice involves an examination their cases. I repeat information for them. I ask them ques- of feelings, exploration of issues, brainstorming solutions, and 12 tions to check their understanding of what we’re discussing. I integrating these areas together to become more resilient. 

THE NEBRASKA LAWYER 11 JANUARY/FEBRUARY 2020 BETTER CLIENT COUNSELING

Reflective practice builds capacity “to imagine, think, and plan; of their own ‘triggers’ in interactions [which] allowed them to generate new awareness; to construct new understandings; to be less reactive and use more proactive approaches to prob- and to use this process to transform practice.”13 There are lem solving. With greater ability to reflect, they were more many models of reflective practice used in different contexts, able to step back and see issues from the staff’s perspective but the fundamental elements of the models are largely the and then to build more on staff strengths.”17 When used by same.14 those interacting directly with families, the workers reported Reflective practice can either occur through consultation or that reflective practice enabled them to better work in spite of through supervision.15 Reflective supervision occurs between their own adverse feelings toward a family, talk about stresses of their roles, process relationships with providers, and deal leaders and their staff. This can include managing attorneys 18 and associates, as well as between managers and their employ- with feelings of overwhelm, undervalue, and lack of respect. ees. Reflective consultation can be done in groups of individu- There are benefits to those engaging in reflective practice, no als with a consultant who engage in in the reflective process matter which side of the interaction they are on. This is impor- with them. Reflective consultation can also be done one-on- tant because “[c]ertain types of legal work lend themselves to one with a single individual and the consultant, as well a with increased stress…[and] may expose attorneys to information a client and an attorney. that is sensitive and sometimes traumatic in nature. It may present dilemmas about humanity and fairness, which include Practically what happens during a client meeting which the inherent limitations within the rules of evidence. When uses reflective practice, is as follows: exposed to traumatic and emotionally difficult information (1) Ensuring that the attorney of the reflective repeatedly, attorneys risk developing vicarious trauma or sec- practice session is self-regulated (i.e., calm, not ondary traumatic stress.”19 distracted by other issues or cases, prepared to But the benefits of better client counseling are easily under- meet the client wherever he/she is emotionally stood by practitioners. Clients whose emotions are contained and cognitively); are able to think more rationally about their cases and options. (2) Setting an agenda that both the attorney and the This eases interactions between the attorney and client, as well client want to cover; as interactions with others (the Department of Health and (3) Listening for strong feelings experienced by the Human Services case managers, visitation workers, a former client and helping to contain them; spouse, etc.). It ensures that the client has a better understanding of their case, which helps to ensure due process for the cli- (4) Exploring the problem or issue that needs to be ent. It can also (but as practitioners know, doesn’t always) lead addressed in this meeting; to better case outcomes. And when client meetings run more (5) Brainstorming and discussing possible solutions smoothly, the benefits to attorneys include less angst about to the problem, while helping the client to feel cases, less stress in our own lives, and a generally more positive empowered to decide the best path forward with feeling about the work that we do. input from the attorney’s experience; and Case Studies20 (6) Integrating the information together and either arriving at a decision, outlining when the cli- Reflective practice is best understood in action. In order to ent needs to respond to the attorney, or when demonstrate this in a written format, I am including a couple of 16 another meeting needs to occur. case studies drawn from previous clients and scenarios to show If the client becomes dysregulated and responds emotion- how I’ve utilized reflective practice with clients. ally later in the process, the attorney will need to circle back Case Study: Robert and help the client to again contain his/her emotions so that the process can move back to either exploring the problems Robert is a man who is lower functioning and has difficulty or brainstorming solutions, as the process is not always linear. with speech, making him difficult to understand. I represent Robert in a criminal case, where he faces the potential for Why Use Reflective Practice incarceration. He struggles to understand complex concepts, but is not low enough functioning such that competency is in Reflective practice has not been studied in the context of question. Robert feels like people are out to get him, which client counseling, but has been studied in other contexts where causes him to be verbally aggressive. He shouts when he feels it has been applied. The benefits have been universal in those as if he isn’t being understood or heard. contexts studied. To prepare for my meeting with Robert, I needed to ensure In the context of using reflective practice among manag- that I was calm, wasn’t holding on to particular emotions or ers of staff, the managers reported “a greater understanding THE NEBRASKA LAWYER 12 JANUARY/FEBRUARY 2020 BETTER CLIENT COUNSELING

feelings from other cases, and ready to be patient. This is step and is tearful at nearly every meeting. She is, however, a young one from the process outlined earlier. mother without job or life skills, and is easily overwhelmed by Step two involves setting an agenda, so we started our the expectations on her. meeting by doing just that (outlining upcoming court dates, Step 1—To prepare for my meeting with Emily, I again discussing the plea offer, discussing the facts of his case—his needed to ensure that I was calm and focused on her case, version and the version in police reports, discussing pros and rather than be distracted by outside matters. I also needed to cons of the various options, and arriving at a decision about remember to be patient, as the process is new for Emily and she how to proceed). I outlined what I wanted to cover and asked doesn’t know what to expect. Robert if he wanted to discuss anything else during our meet- Step 2—We first met after the Pre-Hearing Conference ing. He advised that he did not have any other topics that he (PHC), approximately one week after her children were wanted to cover. removed. It was clear to me from how she responded in the Knowing what was going to happen in our meeting helped PHC that she was already overwhelmed. To keep from mak- Robert to feel in control which immediately made him less agi- ing this worse, and to try to calm her, I limited our agenda tated. After advising Robert of the upcoming court dates and for that first meeting. I told her that we were going to discuss of the plea offer, I then let him take over and talk about what the general process of juvenile cases, talk about the things that had occurred. At times he was so upset that he shouted about she could start doing right away to help get her kids returned how ‘it wasn’t right’ what the cops had done to him. Telling quickly, and just decide when we wanted to meet again to the story illustrated Robert’s strong feelings of persecution and decide on a course of action. I asked her if this was alright, or feeling misunderstood. I validated his feelings, which calmed if there were other things that she wanted to talk about right him further. I contained his emotions by telling him that I away. She told me that she also wanted to talk about whether understood how hard the situation was for him, and asked if he she and her boyfriend could stay together, so I agreed that we was ready to explore the options for dealing with his case. He could cover that as well. agreed, and we were able to move out of step three. Step 3—I asked her how she was holding up with this situ- In our meeting (and most of my meetings with criminal ation. She started crying and telling me how much she missed defense clients) we essentially handled steps four and five her children. I told her that I heard how hard this was for her together. I asked some questions to clarify information that and how difficult it was. I validated her love for her children he’d given to me. We discussed the charges in his case, the and her desire to get them back quickly. Once she had stopped possible penalties, what information was in the police reports crying, I asked if she was ready to hear about the process and and what likely would be presented at trial, and the options for the next steps that she could take. going forward—trial or accepting the plea offer. I gave him Step 4—I then outlined, in a very general sketch, the juve- advice based on my experience and answered questions. I told nile court process from pre-adjudication through disposition. him that the decision was his to make, but made clear that I’d Because of her fragile emotional state, and to avoid moving her support whatever decision he arrived at. Once all of his ques- back to a place where her emotions, rather than her thinking tions had been answered, and he seemed as if he understood controlled, I avoided telling her about the possibility of termi- all of his options and what they meant, we moved to step five. nation of parental rights at that stage. Knowing that we’d be In step six, we integrated our meeting. He told me that he talking again regularly, I covered this in a later meeting with wanted to accept the plea offer. I asked if he had any additional her. I asked if she understood what the terms meant, and what questions for me or other things that we needed to cover that the next steps were. She asked a few questions to clarify, and I we hadn’t already covered. I asked if there was any other infor- knew that she understood at least generally. mation that he wanted me to remember from our meeting. He Step 5—We talked about some of the things that she could advised that his questions had all been answered, and that he’d control and start on right away. During the PHC, Emily had told me everything. We ended the meeting with Robert feeling stated that she wanted to start on counseling and had already calm and that he’d been heard, and with a clear path forward contacted an agency to set up her first appointment, so I high- in his case. lighted her effort. I offered Emily some other services that she Case Study: Emily could get started on right away, and explored with her whether they seemed reasonable. I also told her some of the non- Emily’s two children have been removed from her home negotiable expectations of the case—that she attend her visits and are in the care, custody, and control of the Department consistently, and that she have the house cleaned up within two of Health and Human Services. They were removed due to weeks so that visits could return to her home. She agreed that domestic violence between Emily and her boyfriend, as well she could do these things. as a dirty house. Emily loves her children and her boyfriend,  THE NEBRASKA LAWYER 13 JANUARY/FEBRUARY 2020 BETTER CLIENT COUNSELING

I asked her if we’d covered the things she wanted to talk Endnotes about, and she reminded me that she wanted to talk about her 1 Preamble, Nebraska Rules of Professional Conduct [2] (empha- relationship with her boyfriend. I thanked her for reminding sis added). 2 me. We talked about how if her relationship were to continue Preamble, Nebraska Rules of Professional Conduct [4] (emphasis added). with the boyfriend, he’d be expected to comply with a case 3 Foonberg, Jay G., How to Start & Build a Law Practice, 4th plan, and that he needed to get started on the same types of Edition, 201 (1999). things that she was expected to do. She stated that she under- 4 Law Firm Suites, How to Make the Best First Impression with Your stood and that she was going to talk with him about this, as Law Firm’s New Clients (2019). 5 Comment [1] to Nebraska Rules of Professional Conduct § well as talk to her counselor. I agreed that this was a good plan, 3-501.4. and that we could continue to check-in and talk about this 6 Comment [5] to Nebraska Rules of Professional Conduct § topic as the case progressed. 3-501.4. 7 Comment [7] to Nebraska Rules of Professional Conduct § Step 6—I again asked if we’d covered everything that she 3-501.4. wanted to talk about on that date, and she agreed that we had. 8 Comment [1] to Nebraska Rules of Professional Conduct § I asked if there was any other information that she wanted me 3-502.1. 9 to remember from our meeting to discuss in the future, and she Foonberg, Jay G., How to Start & Build a Law Practice, 4th Edition, 527 (1999). told me that she just wanted me to remember that she loved her 10 Comment [1] to Nebraska Rules of Professional Conduct § kids and would do anything for them. I agreed that this was the 3-501.14. case, thanked her for taking the time to meet with me, and told 11 Comment [2] to Nebraska Rules of Professional Conduct § her that I’d be in touch to set up a time to meet with her again. 3-501.14. 12 Linda Gilkerson, Fussy Baby Network Supervisor FAN Pocket She left the meeting much calmer than we’d started, and even Guide: Things to Remember in Blended Supervision, Erikson smiled at the end. She appeared to feel empowered by knowing Institute Fussy Baby Network, 2010, rev. 2017. what she could do to help get her children back home. 13 Angela Tomlin & Sherryl Scott Heller, Measurement Development in Reflective Supervision: History, Methods, and Next Steps, Zero to Three Journal Vol. 37 No. 2 p. 6 (2016) (citing K. Brandt et Conclusion al., Transforming Clinical Practice Through Reflective Work, Infants and Early Childhood Mental Health: Core Concepts and Clinical Client counseling is not easy. But there are things that we Practice. 293-308 (2014)). can do to make it easier. Reflective practice, in particular is 14 Casey, supra note 1, at 327. a great tool for improving interactions with clients in many 15 Alicia Henderson et al., Lawyering from the Inside Out, 20 Neb. types of cases. It is particularly useful for cases and situations Law. Note 3 (2017). 16 which are very stressful and in which clients are particularly Gilkerson, supra note 4. 17 Linda Gilkerson & Carolyn Cochran Kopel, Relationship-based emotional. And this means that attorneys who are using it can Systems Change: Illinois’ Model for Promoting Social-Emotional better meet our ethical obligations and the needs of our clients Development in Part C Early Intervention. Erikson Institute simultaneously with ensuring that we can better manage the Occasional Paper, 13 (2004). 18 Id. at 14. stress of practicing law and how it affects us. 19 Henderson et a. supra, 30 (citing Levin, A. & Greisberg, S., Vicarious Trauma in Attorneys, Pace Law Review, 245-252 (2003). 20 Names and details have been changed to protect the identities of clients past and present. And case studies may reflect composites of multiple meetings with the same client or multiple clients.

THE NEBRASKA LAWYER 14 JANUARY/FEBRUARY 2020 feature article

Bond Law Basics for a General Practice Lawyer by Colleen Duncan and Mike Rogers

Many lawyers hear “bonds” and think of bail bonds, perfor- regarding these areas of law are addressed by a lawyer or a law mance bonds or surety bonds. If you are interested in learning firm designated to act as “bond counsel.” At the closing of a bond about those types of bonds, please read no further. In this transaction, bond counsel typically delivers an unqualified legal article, we explore governmental bonds used to finance capital opinion as to the validity of the borrowing under state law and construction projects. We assume, for most people,1 these are the tax-exempt status of interest payments under federal tax law. far less exciting than bail bonds or even surety bonds—but the We will address each of these three areas of law in turn, bonds we will discuss are important to an effectively functioning explain the significance of unqualified bond counsel opinions, community. The more than $3.5 trillion U.S. municipal bond and discuss some of the ancillary issues we see frequently. market has financed water, gas and electric utilities, roads, fire Often, the ancillary issues will require the involvement of a stations, schools, universities, airports, and other important governmental entity’s general counsel or regular attorney, such governmental functions. as a city or school attorney, and it’s always helpful for the attor- First, we note that governmental bonds at their most basic ney in that role to have a general understanding of the issues. level are simply debt instruments. When a governmental entity2 “issues bonds,” it is delivering a debt instrument in exchange for State Law borrowed money which will be repaid over time with interest. Authority to Borrow, Generally There are three main areas that comprise the legal pillars of public finance: state law, federal tax law, and securities law. For most Like any corporate matter, the first question a bond lawyer governmental bond issues, the legal representation and advice considers is, “Does the entity have legal authority to take this  Colleen Duncan Mike Rogers Colleen Duncan is a shareholder Mike Rogers is a shareholder of of Gilmore & Bell, P.C. She Gilmore & Bell, P.C. and leads represents a variety of governmen- the Firm’s Nebraska practice. He tal issuers as bond and disclosure represents state-wide issuers, as counsel in Nebraska, and provides well as cities, school districts, air- Firm-wide counsel on municipal port authorities, utilities and other securities law structuring and dis- issuers across Nebraska as bond closure matters. Colleen began her counsel and disclosure counsel, legal career in corporate capital providing structuring, risk man- markets, including equity and debt agement, and compliance advice in offerings, and SEC reporting and connection with financing transac- compliance. Colleen received her tions. Mike received his J.D. (with J.D. (cum laude) from American University. distinction) from the University of Nebraska.

THE NEBRASKA LAWYER 15 JANUARY/FEBRUARY 2020 BOND LAW BASICS

particular action?” Most governmental entities in the state Other Types of Security. There are many other types of of Nebraska do not have articles of incorporation or bylaws. security for governmental financings, which may range from Instead, the power for governmental entities to act, and the straightforward to complex. These may include sales tax or scope of that power, is derived from and enumerated in state occupation tax revenues, lease or other contractual obligations statute and the state’s constitution. Nebraska is a “Dillon’s of a governmental entity which may or may not be subject Rule” state, which means that governmental entities only to annual appropriation by the governing body, incremental have the authority to act when the power is expressly granted increases in property tax for a particular project (in the case of by statute for that specific entity, implied by such statute, or tax increment financing), a combination of repayment sources, essential to the entity’s purpose.3 Each type of governmental or even no specified repayment source at all. entity in Nebraska has a statute or set of statutes that describe its powers, which may include the power to borrow money or Open Meetings Act and Borrowing otherwise enter into a financing transaction. If the power to Like other states, Nebraska has a statute which requires borrow money exists for a governmental entity, the statutes will public bodies to hold meetings in public and provide advance also describe the purposes for which it may borrow, and what public notice of those meetings.5 Unlike many other states, authority, if any, it has to pledge revenues, taxes, or other assets however, Nebraska’s Open Meetings Act includes some rather for payment of a debt obligation. The fact that governmental draconian penalties for violations. If a governing body took entities may only borrow if allowed by state law makes them action at a public meeting that was in violation of the Open significantly different than corporate borrowers, and often Meetings Act, the action is void if a related suit is commenced comes as a surprise to many. within 120 days after the meeting at which an alleged violation occurred (not voidable; it’s void). This important feature of the Types of Security/Source of Payment Open Meetings Act promotes strict interpretation and makes Under most statutes in Nebraska, the power to borrow compliance with the Open Meetings Act a critical part of any money often depends on the type of security or source of bond issue. There would be significant ramifications for all repayment for the borrowing. Common types of governmen- involved if an Open Meetings Act violation was discovered after tal bonds in Nebraska are tax-supported bonds and revenue- a bond issue closes and a court declared the transaction void. supported bonds. Bond Counsel Opinion – State Law Matters Tax-Supported. Certain governmental entities have the ability to levy property taxes to repay bonds issued for capital Legal opinions customarily delivered by counsel in con- financings. Tax-supported obligations of governmental enti- nection with a corporate transaction typically include lengthy ties include general obligation bonds and limited tax bonds. assumptions, restrictions, qualifications, and limitations which A general obligation bond is typically supported by a pledge serve to limit the liability of the lawyer or law firm delivering of the governmental entity to levy property taxes in such the opinion. In municipal bond financing transactions, inves- unlimited amount as may be necessary to make debt service tors expect bond counsel opinions to be delivered without such payments on the general obligation bond. Limited tax bonds qualifications (referred to as an “unqualified opinion”), except include a pledge by the governmental entity to levy property as to the impact of bankruptcy, insolvency or other similar taxes, but the amount of the levy rate is limited by a state law. laws that involve creditor’s rights, and equitable principles. Certain governmental entities may issue tax-supported bonds The bond counsel opinion is not a “more likely than not”-type without a public vote, others may issue tax-supported bonds opinion. Bond counsel must be “firmly convinced” that the highest court of the relevant jurisdiction would reach the legal only with voter approval, and still others have no ability issue 6 tax-supported bonds. conclusions stated in its opinion. Revenue-Supported. Revenue bonds are payable from a The bond counsel opinion is delivered to the governmental specific and designated source of revenue of a governmental entity and the underwriter and is relied upon by bondholders entity—other than property taxes. For example, a municipal who may hold the bonds for decades or purchase bonds from utility is permitted to pledge the revenues from the operation other bondholders in the secondary market. of the utility to repayment of bonds that are issued to finance Given these elements, bond counsel has little leeway to the cost of capital improvements to the utility; no public vote is accept questionable legal authority or errors in the approval required. These utility system revenues (net of operation and process or flaws with Open Meetings Act compliance. Bond maintenance expenses of the utility) are pledged to payment of counsel is therefore heavily involved in structuring a financing bonds, and bondholders generally could compel the utility to before it is submitted to the governing body of the governmen- increase its rates and charges, if necessary to make payments of tal entity, as well as the actual approval process. Not only does debt service on the bonds.4 this promote elevated standards of practice in our industry, it

THE NEBRASKA LAWYER 16 JANUARY/FEBRUARY 2020 BOND LAW BASICS

reduces the risk to governmental entities that there are author- at which point the principal of the bond will be repaid in full ity or validity concerns with the bonds that could be outstand- to the lender or bondholder. ing and traded in the secondary market for 30 or more years. Certain federal tax laws allow nonprofit entities, such as a Tax Law nonprofit hospital, to borrow on a tax-exempt basis. However, to comply with the federal tax requirement that a governmental Under the federal tax laws, governmental entities are per- entity “issue” the bonds, a nonprofit entity (such as a hospital) mitted to issue “tax-exempt” bonds. This means that the inter- may enter into what is referred to as a “conduit” transaction est income that the investor receives when the governmental with a governmental entity (such as a county) to issue tax- entity repays the bonds is not subject to income taxation by the exempt bonds for the benefit of the hospital.9 In this example, 7 federal, and often state, government. Payments of tax-exempt the hospital (the “conduit borrower”) would enter into a loan interest are more valuable than a comparable payment of tax- agreement with the county (as the “conduit issuer”) and agree able interest, because the recipient generally is not required to make all payments related to the bonds issued by the county. 8 to include such amount in gross income. Because of this tax The county would act as issuer of the bonds and assign all of its benefit, borrowing costs for governmental entities issuing tax- rights under the loan agreement to a trustee or other fiduciary. exempt bonds are typically lower than they are for corporate Ultimately, the county has no financial liability if the hospital borrowers. defaults on its obligations to make payments. In this way, the county acts as a “conduit” for the hospital to borrow on a tax- Governmental Issuers and Conduit Borrowers exempt basis. In order for interest on a bond to be tax-exempt, the issuer of the bond must be a governmental entity. Most of the time in Compliance with Tax Laws at Closing and While municipal finance, the issuer of the bond is also the borrower. Bonds are Outstanding In other words, the governmental entity “issues” a bond to a The federal government views the ability of governmen- lender or bondholder in exchange for cash, with a promise to tal entities to issue tax-exempt bonds as a kind of subsidy repay the principal of that bond, plus interest, from the gov- or grant. Like any federal grant, there are strings attached. ernmental entity’s own resources to a certain date of maturity, Governmental issuers (and conduit borrowers) must comply 

THE NEBRASKA LAWYER 17 JANUARY/FEBRUARY 2020 BOND LAW BASICS

with myriad federal tax laws not only at the time the borrowing No Private Business Use occurs, but over the entire life of the bond issue in order for the The tax rules also restrict the way assets financed with bonds to be considered tax-exempt. Failure to comply with the tax-exempt bonds can be used. Any contract between a gov- federal tax laws can subject the governmental issuer or conduit ernmental entity and a nongovernmental entity for the use of borrower to significant financial penalties. an asset that has been financed with governmental tax-exempt Prior to the closing of any tax-exempt bond transac- bonds should be discussed with bond counsel to confirm that tion, bond counsel and the governmental entity undertake an the contract complies with federal tax rules. It is important to “upfront” diligence process to be sure that the rules are met remember that even agreements with nonprofits and the fed- as of closing. At closing, the governmental entity agrees in a eral government can create private use problems. Common document typically titled “Tax Certificate” or “Tax Compliance examples of arrangements that may create a tax issue are leases, Agreement” to undertake ongoing tax compliance work dur- management contracts, and sales of bond-financed property. A ing the entire time the bonds remain outstanding. In addi- governmental entity’s general counsel is often in the best position, most governmental entities that have issued tax-exempt tion to know about and raise questions with finance staff and bonds since 2012 have adopted “post-issuance compliance bond counsel whenever a new or amended lease, management procedures” which describe the steps necessary to promote contract, or asset sale is being considered. compliance with the ongoing obligations related to its tax- exempt bonds. Having familiarity with these documents can Importance of Ongoing Tax Compliance; IRS be a helpful step towards assisting governmental clients with Audits compliance. At a minimum, understanding the concepts can The IRS conducts routine audits of tax-exempt bonds. An allow you to raise issues with bond counsel to avoid negative IRS audit can consume a significant amount of staff (and gov- consequences for governmental entities or borrowers. erning body) time responding to document requests and ques- Expenditure of Bond Proceeds; Documentation tions about the entity’s compliance with its ongoing tax-exempt bond obligations. However, a governmental entity that has Under the federal tax rules, governmental entities are followed its post-issuance compliance procedures during the required to prove how all of the bond proceeds (and any related periods preceding an IRS audit is likely to find the audit pro- investment earnings on these proceeds) have been spent. It is cess relatively painless. Failure to comply with certain provi- important for the governmental entity to maintain complete sions of the tax-exempt bond rules means that the bonds could and accurate records related to these financial transactions for 10 be determined to be retroactively taxable to the date they were the entire life of the bond issue, plus three years. In addition, issued, which would create costly legal liabilities and harmful the federal tax rules contain certain requirements about how reputational issues for the governmental entity. quickly the governmental entity must spend the bond proceeds after closing. The rules in this area are very technical, but gen- Bond Counsel Opinion – Tax Law Matters erally speaking, borrowing too much money too early should If the governmental entity is issuing tax-exempt obliga- be avoided. tions, investors expect the bond counsel opinions delivered at Arbitrage closing to verify that the interest on the bonds is excludable from gross income for federal tax purposes. The extraordinarily The federal tax rules also restrict the ability of governmen- high standards for delivering a bond counsel opinion on state tal entities and borrowers to earn “arbitrage” in connection with law matters described above also apply to the bond counsel a bond issue. Arbitrage exists when the governmental entity’s opinion on tax-exemption. All of the foregoing discussion investment earnings exceeds the rate of interest paid on a bond related to tax laws, rules and compliance is intended to demon- issue. For example, if a governmental entity issues tax-exempt strate some of the components that form a basis for the bond bonds bearing three percent interest and then turns around counsel opinion on tax-exemption. and invests the bond proceeds in a taxable investment bearing four percent interest, the one percent difference would be Securities Law considered “arbitrage.” Unless a specific exception exists in the federal tax laws, any arbitrage must be paid (“rebated”) to the Antifraud Rules 11 federal government. Governmental entities should carefully Most governmental bonds are considered “securities” under track the spending and investment of bond proceeds, as well as securities laws. Bonds offered for sale by governmental entities the investment interest earned by the governmental entity on are typically exempt from the securities registration require- certain bond-related funds (such as debt service reserve funds) ments of both state and federal securities laws by virtue of the in order to comply with the arbitrage rules. borrower’s status as a governmental or nonprofit organization.12

THE NEBRASKA LAWYER 18 JANUARY/FEBRUARY 2020 BOND LAW BASICS

However, most offerings of governmental securities such as municipal market with respect to the antifraud rules. This has bonds are subject to the antifraud rules under securities laws.13 led to increased focus by all market participants on the qual- Antifraud rules generally provide that an issuer of securities ity, quantity, and timeliness of disclosures to investors, both in the primary offering through an Official Statement and in the cannot make a material misstatement or omit to state a mate- 16 rial fact in connection with the offering or sale of a security. In secondary trading market as continuing disclosure. There are the municipal context, most publicly-offered bond issues are a number of examples in recent years of successful enforcement accompanied by a disclosure document commonly referred to actions by the SEC against municipal issuers, their officers, or advisors even when there have been no investor losses, payment as an “Official Statement.” The Official Statement, similar to 17 corporate offering documents, summarizes the securities sub- delinquencies, or risk of either. ject to the offering; the source of repayment; tax matters; the Responding to an informal inquiry from the SEC with legal documentation; and information about the governmental respect to the antifraud rules, let alone defending an enforce- entity’s business, operations, and financial condition. The gov- ment action, can be extremely time-consuming for a governmental entity is primarily liable under federal securities laws ernmental entity’s governing body and staff. As a result, for the accuracy of the content of its Official Statement for a many governmental entities are increasing their focus on the governmental bond issue.14 However, if a governmental entity quality of their Official Statements and other disclosure docu- is issuing bonds for the benefit of a nonprofit borrower in a ments, through internal processes or engagement of external conduit financing (as described above), the legal responsibility professionals to assist them with their obligations under the for the content of the Official Statement rests largely with the antifraud rules. Many governmental entities across the U.S. nonprofit borrower. engage an external law firm as disclosure counsel in order to The U.S. Securities and Exchange Commission (SEC) has reduce the antifraud risk associated with securities offerings, been the main driver of increased focus on disclosure matters which is frequently the same law firm serving as bond coun- in the area of municipal finance.15 The SEC functions primar- sel. Disclosure counsel will typically help the entity prepare ily as a law enforcement agency for governmental entities in its Official Statement, conduct due diligence, and render a the municipal market, rather than a regulator. Within the last negative assurance letter to the entity at closing. A negative decade, the SEC has increased its enforcement efforts in the assurance letter is not a legal opinion but a statement by the law 

You can trust 35+ years of experience protecting lawyers.

Insuring Nebraska attorneys since 1996.

Put your trust in the carrier • Works exclusively with lawyers professional liability insurance created by lawyers, • Specializes in solo to 75+ attorney firms run by lawyers, • Returned over $56 million in profits to exclusively serving lawyers. policyholders since 1988 • Offers an array of services to mitigate risks

Get a fast quote today! www.mlmins.com Protecting Your Practice is Our Policy. ® or contact Clayton Jones 402-699-1985 or [email protected]

THE NEBRASKA LAWYER 19 JANUARY/FEBRUARY 2020 BOND LAW BASICS

firm that “nothing has come to its attention that would lead it 4 In Nebraska, a security interest granted by a governmental borrower in a particular source of revenue for repayment of a debt to believe” that the offering document contains a material mis- instrument is automatically perfected. Neb. Rev. Stat. § 10-1103 statement or omission of a material fact. Receipt of a negative et seq. Accordingly, it would be uncommon and largely super- fluous in Nebraska to file financing statements for a governmen- assurance letter does not eliminate a municipal entity’s risk tal borrower. under the antifraud rules, but in our view, if done properly, the 5 Neb. Rev. Stat. § 84-1407 et seq. due diligence and preparation undertaken by disclosure counsel 6 This fun fact is likely the driving reason that bond attorneys are in connection with an Official Statement should increase the viewed as humorless or difficult or sticklers, all of the above, or worse. We’re just playing the hand we were dealt. quality of the Official Statement and thus reduce the likelihood 7 26 U.S.C. § 103. This and every other Code provision related that the Official Statement contains a material misstatement or to tax-exempt bonds is short and sweet, but the related IRS omission of a material fact. regulations, rulings, and guidance are extensive and the opposite of sweet (salty?). Continuing Disclosure 8 Compared with interest on corporate debt instruments, which is includable in gross income for federal income tax purposes. For certain publicly offered bonds, a governmental entity 9 Neb. Rev. Stat. § 13-1101 et seq. While there are other conduit may also be required to enter into a contractual obligation issuers in Nebraska that may be utilized for nonprofit conduit financings, many nonprofit borrowers utilize local cities or coun- with bondholders commonly called a “Continuing Disclosure ties due to reduced expense. Undertaking” or “Continuing Disclosure Agreement.” Under 10 The “life of the bond issue” includes all refundings or refinanc- these contractual obligations, the governmental entity is obli- ings. Accordingly, refinancing a bond issue does not relieve the governmental entity of its obligation to retain records. gated to provide to its bondholders annual updates of certain 11 The rules governing arbitrage and rebate under federal tax law financial information and operating data and prompt notice are complex and contain many nuances. of certain enumerated events, such as changes to the entity’s 12 The federal law known as the Tower Amendment restricts the bond rating. This information is required to be furnished on a SEC’s ability to require municipal entities to register their securities with the Commission. 15 U.S.C. § 78o-4(d)(1). Congress, publicly-available website called EMMA, which can be found and the regulatory agencies, however, regulate broker-dealers, at www.emma.msrb.org. and most of the securities-related requirements in the municipal market not relating to the antifraud rules but impacting govern- A governmental entity’s failure to comply with its contrac- mental entities are through the regulation of broker-dealers who act as underwriters in an offering of municipal securities. tual obligations to provide updated information on EMMA 13 Governmental offers and sales of securities may be subject to may cause difficulties for the governmental entity in connection state antifraud laws, but the most common enforcement agency with future bond issues, so compliance should be a priority. in the municipal market is the SEC, so we focus our discussion on the application of federal antifraud laws and related rules, Conclusion better known as “10b-5.” 14 This might surprise many governmental issuers, who have not historically been informed of this responsibility and may have The practice of public finance practice law is very narrow, relied on an underwriter or underwriter’s counsel for the content continually evolving, and increasingly complex. We hope this of the Official Statement. discussion has provided a framework for a general understand- 15 Increased focus by municipal issuers on disclosure matters is also propelled by the bond investor community. Today’s investors ing of the legal issues involved with tax-exempt bonds in the expect higher quality and more robust disclosures. Although this event you have a client involved in a bond financing or that does not necessarily create legal concerns for our governmental may be entering into a transaction that involves bond-financed clients, it impacts the quality of investor a governmental entity is able to attract in an offering, which may affect borrowing costs. property. 16 Continuing disclosure in the municipal market is akin to periodic reporting by registered companies under the Securities Exchange Endnotes Act of 1934, as amended (such as Form 10-K or Form 8-K), 1 but the filing obligations are required by contract for municipal Who are not bond lawyers. borrowers rather than by regulation as they are for registered 2 We use the term “governmental entity” to include cities, villages, companies. counties, school districts, community colleges, public power 17 See e.g., In the Matter of Kings Canyon Joint Unified School districts, airport authorities, interlocal agencies, and many other District, SEC Release No. 33-9610 (2010). organizations in Nebraska that are by statute “governmental.” 3 States have all powers not restricted by state or federal constitu- tions, but local governments only have those powers that are given to them by the state through statute or legislative act.

THE NEBRASKA LAWYER 20 JANUARY/FEBRUARY 2020 feature article

What I Have Learned as a Trust Officer That I Wish I Had Known as a Practicing Lawyer by William C. Brown

On January 1, 2019, after 33 years in private law practice,1 panies to the Nebraska Department of Banking and Finance I became a Trust Officer for a state-chartered Nebraska trust (“NDBF”).7 company. Over the next year, I learned a significant amount about trust business and about trust administration and practi- Entity Organization cal drafting issues. The following is offered in the hope that A trust company must be formed as a corporation8 by at current estate planning practitioners may benefit from my least three incorporators.9 The name of the trust company may experiences. not cause confusion with others.10 Generally, only qualified 11 Trust Business trust companies may use the term “trust” in their names. There must be at least five directors,12 a majority of whom 13 Overview must be Nebraska residents, and as many as reasonably pos- 2 sible of whom should be from the county of the trust company’s Ongoing trust business is conducted either through 14 location. Directors must be people of good moral character, Nebraska-chartered trust companies;3 trust departments of 4 known integrity, business experience and responsibility, who Nebraska-chartered banks; or foreign trust companies or 15 5 must be approved by NDBF. Directors must meet at least departments. The focus here is on Nebraska-chartered trust 16 quarterly and must keep written minutes of meetings. companies, as the law applicable to them is seminal as to the 17 others. Trust companies must have capital of at least $500,000. 6 They also must maintain a fidelity bond in an amount to be The Nebraska Trust Company Act is the main applicable 18 fixed by NDBF. The bond protects and indemnifies the trust statute. It gives general supervision and control over trust com- company from loss via dishonest acts committed by its own 19 William C. Brown officers and employees. Trust companies also must pledge securities with NDBF.20 William C. Brown joined Bridges The amount required to be pledged varies depending on Trust Company after a 33-year the amount of assets the trust company holds.21 The largest career in private law practice, amount is $500,000 for trust companies holding assets of $5 focused mainly on financial areas billion or more.22 The pledged securities are primarily liable for of the law (estates/trusts, estate 23 trust companies’ fiduciary obligations and losses. administration, business, contract, commercial, pensions/employee Powers benefits, mergers/acquisitions). He graduated from the University of Trust companies have the following powers: Iowa (B.G.S. 1982 with highest dis- • To receive, hold, manage, and invest trust assets.24 tinction, Phi Beta Kappa; J.D. 1985 25 • To act as personal representative of estates. with distinction, Iowa Law Review).  THE NEBRASKA LAWYER 21 JANUARY/FEBRUARY 2020 WHAT I HAVE LEARNED AS TRUST OFFICER

• To act as conservator.26 • Other. Trust companies may maintain confiden- 58 • To act as attorney-in-fact/agent.27 tially of client information with some exceptions. 28 Records must be maintained in accordance with • To act as UTMA custodian. applicable regulations.59 Trust companies are • To act as retirement plan trustee and IRA custo- subject to the Financial Data Protection and 29 dian/trustee. Consumer Notification of Data Security Breach 60 • To loan30 and borrow31 money. Act of 2006. Trust companies may deposit securities with clearing agen- Policies and Procedures cies and other organizations and such securities may be held in My firm has in place the following policies and procedures: bulk in the name of a nominee.32 • Information Security Policy Restrictions • Identity Theft Prevention Policy Trust companies (and entities generally) may not act as • Business Continuity and Disaster Recovery Plan agent/attorney-in-fact under health care powers of attorney.33 Trust companies may not substitute their own securities for • Anti-Money Laundering Policy those of a trust or estate.34 Loans of trust company assets or • Conflict of Interest Policy accounts may not be made to trust company officers or direc- • Ethics Policy and Code tors.35 Trust company lawyers may not charge a fee for giving any legal advice.36 Real estate conveyances made by the trust • Privacy Policy company must be approved by the directors or a board com- NDBF requires the firm to train employees on these mittee and by the trust company’s president or vice president.37 policies, and to present a comprehensive compliance review and risk assessment to the board, at least annually. Regulation, Reporting, Disclosure My firm implements the following additional physical Trust companies are subject to significant regulation and security measures: redundant office entry security systems, reporting/disclosure requirements, including the following: overnight “clean-desk” and locked-doors/drawers policies, • Annual internal examination. At least annually automatic personal computer log-off after twenty minutes of the board must conduct a thorough examination inactivity, end-of-day copy room security procedures, required of the books, records, funds and securities held shredding of discarded documents with confidential informa- for the trust company and customer accounts.38 tion, and multi-layered security for entry to vault containing The board may instead engage an accountant original documents. or accounting firm to conduct an audit.39 The 40 Trust and Estate Administration accountant/firm must be preapproved by NDBF. Extensive audit guidelines apply.41 A significant part of my firm’s activities involves the • Bi-annual report. Each January and July, trust administration of trusts and estates. My firm has formed a spe- companies must file with NDBF verified reports cific committee, the Trust and Estate Administration (“TEA”) of the trust company’s condition.42 NDBF has Committee, that meets bi-weekly, and as needed, to discuss issued forms and instructions for these reports.43 legal and administrative issues that arise in the course of trust Summaries of the reports must either be published and estate administration. The committee keeps minutes of its or made available to the public upon request.44 meetings and decisions, which minutes are reviewed by NDBF. • NDBF regulation. NDBF has broad-ranging The TEA Committee reviews estate and trust documents authority to examine and investigate trust compa- prepared by many lawyers and firms. In that process, a variety nies.45 NDBF can levy assessments46 and collect of drafting and practice issues have arisen. Those are discussed fees,47 suspend or revoke licenses for failure to in the next main section of this article. pay the same,48 impose fines,49 issue injunctions,50 Drafting and Practice Issues exercise emergency powers,51 and take over a failing institution.52 NDBF must approve change of 1. Discretionary Trust Distributions Based on Some trust company main office location,53 establish- Standard. Many trusts allow distributions to be made if some ment of trust company branch54 and representa- standard is met (need, maintain current standard of living, tive55 trust offices, acquisitions of control,56 and etc.). Our TEA committee will investigate and determine mergers/consolidations.57 whether the trust’s stated distribution standard is met. We may require the beneficiary to complete beneficiary needs state- THE NEBRASKA LAWYER 22 JANUARY/FEBRUARY 2020 WHAT I HAVE LEARNED AS TRUST OFFICER

ments, which may include financial statements (balance sheet, A common drafting error is to confuse first-party, or self- income/cash-flow statements), tax returns, etc. This helps settled, special needs trusts (“SNTs”) with third-party SNTs. ensure compliance with the grantor’s intent and protection of Self-settled SNTs are generally funded with assets deemed to remainder beneficiaries’ interests. be those of the special needs individual. Third-party SNTs are generally funded with assets deemed not to be those of the Practicing attorneys may want to inform their clients of this 63 administrative practice. Clients may want to advise remainder special needs individual. Properly-drafted first-party SNTs beneficiaries of this (assuming the client otherwise discloses the will include a right for relevant governmental agencies (e.g., estate plan to remainder beneficiaries). Medicaid) to recover trust assets upon the death of the special needs individual.64 Third-party SNTs need not include such a 2. Rule Against Perpetuities. A surprising number of right of recovery.65 We have seen third-party SNTs that erro- recently-drafted Nebraska trusts that we see continue to neously include a right of governmental agency recovery, when recite the common-law rule against perpetuities. Nebraska 61 that is not necessary and may prevent assets from descending has adopted the Uniform Rule Against Perpetuities Act. It to trust beneficiaries. allows a trust to mostly waive the rule.62 Estate planning attorneys who are dealing with known On the other hand, it may be desired, and it is possible, special-needs individuals, but who are not familiar with the to shorten the otherwise-applicable perpetuities period. In intricacies of SNTs, would be well-advised to associate with at least one case, a trust we administered did just that, calling attorneys who are. This may be an ethical obligation under for imposition of a period of time intentionally shorter than applicable rules of professional conduct.66 It may also be advis- that required under the particular state’s statutory rule against able to include fail-safe SNT language in all trusts in the event perpetuities. any trust beneficiary may become a special needs individual in 3. Special Needs Issues. A frequent source of confusion the future. and misunderstanding involves drafting and planning for spe- 4. Name Testamentary Trusts. Some testamentary trusts cial needs trust beneficiaries. In our experience, special needs created within wills are not named. Giving the trust a name issues cut-across all categories of society. is helpful to the trust company. It avoids the awkwardness of having to refer to the trust only by the name of the testator, the date of the will, and the particular section of the will that creates the trust. 5. Avoid “Revocable” And “Living” In The Names Of Trusts. Using the terms “revocable” and “living” in the name of inter vivos trusts can cause confusion when the trust becomes irrevocable, for example, upon grantor’s death or incapacity. 6. Define “Disability” and “Incapacity”. Disability/incapacity status can impact all three major parties to a trust. If a grantor of a revocable inter vivos trust becomes incapacitated, the trust generally becomes irrevocable. If an individual trustee or co-trustee becomes incapacitated, that person should no longer act as trustee. If a beneficiary becomes disabled or incapacitated, distributions that could otherwise be made outright may need to be directed elsewhere or retained in trust. If a disabled/ incapacitated beneficiary could qualify for public assistance, stand-by SNT provisions may be triggered. In each of these situations, trustees can be significantly aided if the trust document itself contains definitions of “disability” and “incapacity” for all these purposes. 7. Define Trustee Succession Procedures. The Nebraska 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Uniform Trust Code does have a fail-safe provision for estab- Telephone: 847-519-3600 Fax: 800-946-6990 67 lishing acceptance of trusteeship. However, our experience is Toll-Free: 800-844-6778 that the statutory methods are cumbersome, and that it is pref- www.landexresearch.com erable for trusts to specify procedures for assumption of office  THE NEBRASKA LAWYER 23 JANUARY/FEBRUARY 2020 WHAT I HAVE LEARNED AS TRUST OFFICER

by successor trustees. This is especially true if there could be 16. Personal Property. The difficulties of dealing with real estate conveyances. tangible personal property in estates were generally known to 8. Accurately Name Trustee. Mis-naming the corporate me as a private practitioner. However, those difficulties were trustee can cause undue complications. Again, this is especially highlighted all the more to me as a trust officer of a corporate true if there could be real estate conveyances. trustee. Use of corporate trustee time and efforts to dispose of tangible personal property can be inefficient and unwise. 9. Urge Clients to Update Documents for Changed Disposition of such property other than through trusts can be Circumstances. A significant portion of the difficulties we preferable. Alternatives exist, such as collection/disposition by face as trustee involves planning that has not been updated to affidavit,71 or informal probate,72 if necessary. If a corporate- reflect clients’ changed circumstances. This can take a variety trusteed trust will end up holding tangible personal property, of forms, including: client no longer is, or has become, subject a complete and detailed list as to the property’s disposition is to federal estate tax; a trust beneficiary has become, or no lon- strongly preferred.73 ger is, a special needs individual; client moves from one state to another; or marital and other family changes. 17. Choice of Law/Situs. It can be helpful if trusts do not immutably specify a particular body of substantive law that 10. Account Titling. Effective estate planning should applies or a particular situs. That allows the trust to adjust include consideration of assets that may pass by beneficiary either or both facets in order to avail itself of better laws, designation and co-ownership. Pour-over wills generally can- changed circumstances, changed location of grantor and/or not direct those assets to a trust. beneficiaries, and the like. A more flexible approach is to state 11. Co-trustees. Clients sometimes insist on acting as that the trustee may change the situs and applicable substantive individual co-trustee. In those situations, it is very helpful if the law of the trust. trust document sets out, as specifically as possible, the alloca- 18. Joint Trusts. The use of joint trusts in community tion of duties between the individual and the corporate trustee. property states is common and consistent with a clear income 12. Form Documents. Form documents may save time tax advantage in community property states: all trust assets can and cost over custom-drafted documents in the short run. receive a basis adjustment upon the first spouse’s death.74 The However, we have seen them cause at least as many problems use of joint trusts in non-community property states can raise as they solve. Some issues we have seen include: language not a number of legal and tax issues, including the extent to which in accordance with current applicable law, form language that basis-adjustment applies, and to which assets. Trust provisions contradicts other language in the same document, and form addressing the basis-adjustment issue in particular can be very language that contradicts the grantor’s desires. The more helpful to the Trustee. custom, individualized language that can be drafted, the better. 19. Principal and Income Act. There are two aspects of 13. Inter Vivos Gifts as Offset. If the client has made the Uniform Principal and Income Act75 that merit particular significant, unequal inter vivos gifts, it is best to document in attention: each planning document thereafter whether or not the gifts are a.) Trust income versus principal. Traditionally, intended as an offset to ultimate trust (or estate) distributions. trusts differentiate between income and principal. 14. Trusts as Recipient of Retirement Plan Assets. The tax Especially with income yields at near-historic lows, and other law regarding trusts’ receipt of retirement plan assets alternative means have become timely and more is extraordinarily complex and beyond the scope of this article. prevalent. Practitioners’ familiarity with concepts As a very general matter, if the estate plan can be implemented such as the power to adjust between principal and without placing retirement plan assets in a trust, that is prefer- income,76 and conversion to a total return trust,77 able. If it is deemed advisable to place retirement plan assets can be helpful, both at the drafting and administra- in a trust, great care, consideration, analysis, and pre-planning tion stages. should be taken. The use of trusteed IRAs may be a viable b.) Retirement plan distributions to trusts. The alternative, along with beneficiary designation forms that can Principal and Income Act provides that trust be lawyer-drafted and customized to fit clients’ particular plan- 68 receipts of required retirement plan distributions are ning needs. to be allocated 10 percent to income and 90 percent 15. Pre/Post Nuptial Agreements. Successful implemen- to principal.78 To the extent the distribution is not tation of an estate plan may depend on effective waiver of required, the entire amount is allocated to princi- 69 spousal inheritance rights. That can be accomplished in pre- pal.79 This can result in the trust-accounting princi- 70 or post- nuptial agreements. This is especially true in subse- pal amounts80 being subject to income tax at trusts’ quent marriages. very-compressed income tax rates.81 Fortunately,

THE NEBRASKA LAWYER 24 JANUARY/FEBRUARY 2020 WHAT I HAVE LEARNED AS TRUST OFFICER

this unappealing income tax result can be avoided. 18 Neb. Rev. Stat. § 205.01. Our trust company has about $5.3 billion assets under management and just under 50 employees, and One of the simplest ways is to override the Principal it is required to maintain a $15 million bond with a $150,000 and Income Act provision by a trust provision set- deductible. ting out a different accounting convention (e.g., all 19 Neb. Rev. Stat. § 8-205.01. 20 retirement plan distributions received by the trust Neb. Rev. Stat. §§ 8-209 to 8-217. 21 are trust-accounting income).82 Neb. Rev. Stat. § 8-209(2). 22 Neb. Rev. Stat. § 8-209(2)(e). 20. Nebraska Uniform Directed Trust Act. Nebraska 23 Neb. Rev. Stat. § 8-212. adopted the Uniform Directed Trust Act on September 1, 24 See, e.g., Neb. Rev. Stat. § 8-206(1) – (3), (6), (8), (11), 8-1302 2019.83 The Act sets out legal standards for trust directors84 & 1303. 25 and directed trustees,85 and delineates other duties and liabili- Neb. Rev. Stat. § 8-206(5). 26 ties of those parties.86 Incorporation of the Act’s standards Id. 27 Neb. Rev. Stat. § 8-206 (4) and (7). This allows trust companies into trust documents can be of assistance especially when a to act as agents under durable financial powers of attorney. See corporate trustee is asked to be directed as to trust investments. Neb. Rev. Stat. § 30-4002(1) and (7). But see text accompanying This can occur, for example, when the client wishes to retain note 31. 28 the client’s long-time investment advisor despite assets being Neb. Rev. Stat. § 43-2710(1)(a)(i). 29 See IRS Rev. Proc. 2019-4, § 3.07; Treas. Reg. §§ 1.408-2(e) held by the corporate trustee. (1) – 1.408-2(e)(8). Conclusion 30 Neb. Rev. Stat. § 8-206(8). 31 Neb. Rev. Stat. § 8-206(11). 32 Trust companies are financially secure, well-capitalized, Neb. Rev. Stat. § 8-1302. See also Neb. Rev. Stat. § 1303 as to deposit of United States Government securities with the federal extensively regulated, highly trained professional fiduciaries. reserve bank. Trust companies are storehouses of legal knowledge and prac- 33 Neb. Rev. Stat. §§ 30-3402(1) & (3). tical administrative experience. Both during trust drafting 34 Neb. Rev. Stat. § 8-224.01(1). and administration, trust companies can provide invaluable 35 Neb. Rev. Stat. § 8-224.01(2). assistance to private practitioners and thereby to estate plan- 36 Neb. Rev. Stat. § 8-224.01. ning clients.87 37 Neb. Rev. Stat. § 8-208. 38 Neb. Rev. Stat. § 8-204. The board may assign this task to a Endnotes non-board member, but the board by majority vote must adopt the assignee’s report. NAC § 45-24-001.0. The board may also 1 My private law practice included ERISA, trust, estate and perform the examination throughout the year. NAC § 45-24- probate, business, mergers/acquisitions, contract, tax, and com- 001.09. mercial matters. 39 Neb. Rev. Stat. § 8-204. 2 See also Neb. Rev. Stat. § 30-3820, requiring foreign corporate 40 Id. See also NAC § 45-24-001. Independence is a key issue. trustees to qualify as foreign corporations if the principal place of NDBF has an online form for approval of the accountant/ administration of a particular trust is in Nebraska. firm, at https://ndbf.nebraska.gov/sites/ndbf.nebraska.gov/files/ 3 See Nebraska Trust Company Act, Neb. Rev. Stat. §§ 8-201 to industries/Approval%20to%20Conduct%20Audit%20or%20 8-235. DirectorsExamRev%202017.pdf. 4 See Nebraska Banking Act, Neb. Rev. Stat. §§ 8-159 to 41 See NAC § 45-25-001. 8-162.02; NAC §§ 45-21-001 to -003. 42 Neb. Rev. Stat. §§ 8-223, 8-224. 5 See Interstate Trust Company Office Act, Neb. Rev. Stat. §§ 43 See https://ndbf.nebraska.gov/industries/trust-company-forms. 8-2301 to 8-2313. See also 12 U.S.C. § 92a. 44 6 Neb. Rev. Stat. § 8-224. See also https://ndbf.nebraska.gov/sites/ See supra note 3. ndbf.nebraska.gov/files/doc/industries/trust_annual_disclosure. 7 Neb. Rev. Stat. § 8-201. See also Neb. Rev. Stat. § 8-103(1)(b). pdf. 8 Therefore, the Model Business Corporation Act (“MBCA”), 45 Neb. Rev. Stat. §§ 8-108, 8-201. Neb. Rev. Stat. §§ 21-201 to 21-2,232, applies. 46 Neb. Rev. Stat. §§ 8-601, 605, 606. 9 See supra note 7. 47 Neb. Rev. Stat. § 8-602. 10 Neb. Rev. Stat. §§ 8-1901 to 8-1903 and 21-230(b). 48 Neb. Rev. Stat. § 8-607. 11 Neb. Rev. Stat. § 8-226. 49 Neb. Rev. Stat. § 8-1,134. 12 Neb. Rev. Stat. § 8-204. 50 Neb. Rev. Stat. § 8-1,136. 13 Id. (unless NDBF approves otherwise). 51 Neb. Rev. Stat. § 8-1,134(3). 14 Id. 52 Neb. Rev. Stat. § 8-1506. 15 Id. NDBF has issued a form to apply for approval as a direc- 53 See https://ndbf.nebraska.gov/sites/ndbf.nebraska.gov/files/ tor. See “Application for Approval of a Director” at https:// industries/appmovemainoff-indtrustco.pdf. ndbf.nebraska.gov/sites/ndbf.nebraska.gov/files/industries/ 54 DirApp2018.pdf. Neb. Rev. Stat. § 8-234. 55 16 Neb. Rev. Stat. § 8-204. Neb. Rev. Stat. § 8-235. See https://ndbf.nebraska.gov/files/ industries/trustformA_0.pdf. 17 Neb. Rev. Stat. § 8-205(1) (for trust companies initially autho- 56 Neb. Rev. Stat. §§ 8-1501, 1502. rized after August 1, 2000).  THE NEBRASKA LAWYER 25 JANUARY/FEBRUARY 2020 WHAT I HAVE LEARNED AS TRUST OFFICER

57 Neb. Rev. Stat. §§ 8-227 to 8-229.03. 75 Neb. Rev. Stat. §§ 30-3101 to 3149. 58 Neb. Rev. Stat. § 8-1401. 76 Neb. Rev. Stat. § 30-3119. 59 NAC § 45-32-001. 77 Neb. Rev. Stat. § 30-3119.01. 60 Neb. Rev. Stat. §§ 87-801 to 808. 78 Neb. Rev. Stat. § 30-3135(c). 61 Neb. Rev. Stat. §§ 76-2001 to 76-2008. 79 Id. 62 Neb. Rev. Stat. § 76-2005(9). Trust property must be salable for 80 To the extent they are income-taxable as income in respect of any period of time beyond the otherwise-applicable perpetuities decedent (See 26 USC § 691) and do not represent investment period. in the contract (see generally 26 USC § 72). 63 See generally 42 U.S.C. § 1396p(d). 81 26 U.S.C. § 1(e). 64 See 42 U.S.C. § 1936p(d)(4)(A). 82 Neb. Rev. Stat. § 30-3118 (a) (1) allows the trust to override a 65 See 42 U.S.C. § 1396p(d)(2)(B). contrary provision of the Act. For a detailed discussion of this 66 topic, see “Life and Death Planning for Retirement Benefits,” Neb. Ct. R. of Prof. Cond. § 3-501.1, comment [1]. Natalie B. Choate, ATaxPlan Publications (2019), at pp. 395- 67 Neb. Rev. Stat. § 30-3857. 402, §§ 6.1.02-6.1.04. 68 My firm sponsors only trusteed IRAs, and welcomes custom, 83 Neb. Rev. Stat. §§ 30-4301 to 4319. Note the effective date/ lawyer-drafted beneficiary designation forms. applicability provisions of § 30-4319. 69 See Neb. Rev. Stat. § 42-1004(1)(c). 84 Neb. Rev. Stat. § 30-4308. 70 See Neb. Rev. Stat. § 30-2316(a). See also Devney v. Devney, 295 85 Neb. Rev. Stat. § 30-4309. Neb. 15, 886 N.W.2d 61 (2016). 86 See, e.g., Neb. Rev. Stat. §§ 30-4310, 4311, 4312. 71 Neb. Rev. Stat. § 30-24,125. 87 The author wishes to acknowledge and express gratitude for the 72 Neb. Rev. Stat. §§ 30-2414 to 2424. efforts of his cohort, Jeanne Hauser, for her assistance in the 73 Neb. Rev. Stat. § 30-3844. preparation of this manuscript. 74 26 U.S.C. § 1014(b)(6).

Like Casemaker, Only Better!

• Faster Results • Cleaner Look • New Functionality • New Alerts Feature • Content You Can Continue to Trust

To learn more The Wait is Over! visit www.casemakerlegal.com call 877.659.0801 Log on today and see what all the fuss is about! email [email protected]

THE NEBRASKA LAWYER 26 JANUARY/FEBRUARY 2020 feature article

If I Had A Boat: What I Wish I Had Known as a Young Lawyer by Richardson R. Lynn

The best speech I ever gave was based on a verse from “If What do I wish I had known as a young lawyer? When I Had A Boat” by Lyle Lovett.1 In the song, the “mystery I began in 1976, I wish I had known that one day you could masked man” is smart because he has Tonto, who does “the practice law while sitting on a beach in Fiji using a hand-held dirty work for free,” much like a young law firm associate. But computer that also makes phone calls. That would not have Tonto turns out to be smarter when he says, “Kemo Sabe, kiss been useful information, but my law partner had taken out a my ***, I bought a boat, I’m going out to sea.” The speech, second mortgage on his house to pay $25,000 for a desk-sized addressed to a group of soon-to-be-graduating law students, computer to print out real estate closing documents, so I could described several common dilemmas facing new lawyers under have said, “Hey, why don’t you wait 45 years?” Here are a few pressure from law firm partners, judges, or clients to do the things I wish I’d known that would have been actually useful. wrong thing. After working through each dilemma, my advice 1. You will always get another client. As a young lawyer was to make the right choice while telling the pressuror to “kiss 2 in a small firm, I wound up with some terrible cases because my grits, I bought a boat, I’m going out to sea.” That advice, I thought, “If I don’t take the case, I may never have another naturally, came from my own failures, but not my only failures. client. And, if I never have another client, the world will end and me with it.” By “terrible cases,” I mean cases that lawyers Richardson R. Lynn often refer to as “dogs,” although that does a disservice to dogs, who at least are loyal, no matter how flea-bitten. Telltale signs Richardson Lynn is licensed to prac- of terrible cases include earnest people bearing rumpled folders tice law in Nebraska and Tennessee. of documents, tales of injustice by every judge handling prior He is a graduate of York College, incarnations of the case, and unrealistic expectations of multi- Abilene Christian University, and million dollar verdicts. Also, the fact that three other lawyers the Vanderbilt University School of Law. After practicing law in have told the guy to take a hike is significant. Seeking advice Nashville, TN, Richard began a from more experienced lawyers about the merits of a potential career in legal education, teach- client’s case is always a good idea, but an older lawyer may have ing at Pepperdine University referred this particular canine to you, thinking it will be a good School of Law and serving as dean learning experience. at Pepperdine and Atlanta’s John The cases I took, fearing the end of the world, always cost Marshall Law School. (Pepperdine is now the Caruso School me money, created professional anxiety, and featured the most of Law, named for billionaire alumnus, Rick Caruso.) Richard ungrateful clients. I wish I had known you can safely turn became a member of the Nebraska bar in 1989. While spend- 3 ing most of his time lately practicing in Tennessee, he firmly down a potential client. What I know now is that the univer- expects Warren Buffett to call any day now. (Or Rick Caruso.) sal experience of lawyers is another client will walk in the door You may enjoy browsing this collection of legal quotations: or, today, contact you online, after you “regretfully” decline to www.richardlynnlawyer.com/legal-quotations. be involved in their nightmare. And, you’ll do a better job with THE NEBRASKA LAWYER 27 JANUARY/FEBRUARY 2020 IF I HAD A BOAT

the good cases and the good clients when you are not bogged that served as a warehouse for the firm’s moribund down in ones you should never have taken. The difficulty of files. … Near the center of the room, in a pool of withdrawing from representation when the good case turns lamplight, Facher had assembled three large tables bad means that, when deciding whether to take on new clients, to form a desk on which more paper—depositions, assume you will not be permitted to withdraw but will be zeal- briefs, motions, affidavits—had accumulated. Piles ously representing them until the work you promised to do is of legal memorandum had taken root on a sag- concluded. ging, threadbare, mustard-yellow couch, a piece of 2. Sustained stress is not good for lawyers or other living furniture that would never be exposed to the soft things. While it is impossible to practice law without stress— lights and thick carpets of a Hale and Dorr recep- the stress of deadlines, opposing counsel, judges, and, yes, cli- tion room. ents themselves—I did not recognize as a young lawyer that I Facher would sit amid these files in his shirtsleeves, and many of my contemporaries were experiencing more stress the breast pocket stained by a leaky pen, his collar than we could safely handle. The stress of 18-hour days dur- and cuffs frayed. He looked like an aging clerk ing trial is unavoidable, but fades in the breaks between trials. caught in the backwater of a large bureaucracy, yet Stress caused by procrastination may be richly deserved, but one hour of his time would cost a client several stress is cumulative. The stress of 10-hour days in the office, hundred dollars and he earned more than he could six or seven days a week, year after year, when you rarely take ever spend.8 4 true vacations, untethered to the office, can be fatal. Most of 3. Market Thyself. I began practicing law in an age when, the “progress” in law practice during my career has tended to after lawyer advertising was first permitted, we held a firm- increase stress, including the pace of communications (from 5 wide meeting to discuss whether putting the law firm name in snail mail to the expected instantaneous response to texts) , bold type in the white pages was appropriate. The assumption the radically different business model, especially in larger law was that good work and word-of-mouth from satisfied clients firms, and the smothering amount of electronic discovery in would bring us all the clients we could handle. Marketing civil cases. was thought of as being active in bar associations, playing golf The legal profession has responded over the last twenty with clients, and running for office. I knew that writing law years by emphasizing lawyer wellness, including efforts such review articles was a form of marketing, in the same sense that as the Nebraska Lawyers Assistance Program.6 While I was the Bataan Death March was a form of exercise. Today, the fortunate to have avoided addiction or another form of self- internet’s blogs and forums and websites and YouTube and sabotaging conduct, if I had known how many of my friends all those social media platforms that I’m not on furnish expo- were headed that way due to the stress they were facing or, nentially more outlets for short, informative written pieces, perhaps, causing themselves, I hope I could have been more podcasts, and video, a.k.a. “content,” that is more visible and helpful. At least, I could have recited the Stoic mantra that you useful to clients. 7 are only responsible for your effort, not the outcome. In those ancient days, I once represented two franchise cli- My favorite stress-reduction tactic also increases productiv- ents, a franchisor and a franchisee in different businesses. The ity: have a “bolt hole,” a British term for an animal’s burrow or work was interesting, and I thought it would be a great specialty. den, a place of escape. For lawyers, a bolt hole is a refuge where Based on my limited understanding of marketing, I came up you can concentrate on one task at a time, without interrup- with a topic for a law review article. That was the end of that. It tions from phone calls, emails, and drop-in visitors. It could was my failure of imagination. New lawyers today instinctively be in a local law school library, a coffee shop, or the food court know about the many outlets for marketing; they were blogging at a nearby mall, where I find the background buzz is a perfect in high school. If only there had been a website back then white noise. In Jonathan Harr’s “A Civil Action,” defense listing franchising clients looking for a lawyer to play golf with. attorney Jerome Facher’s hideaway is the ultimate bolt hole: 4. Compensate for your weaknesses. Of course, for a He didn’t spend much time in his office anyway. new lawyer, admitting a weakness is as hard as telling a client He would stop there in the morning to check the you don’t know the answer instantly. It’s difficult to believe mail and phone messages and then he would van- that clients are actually comforted when you say, “I haven’t ish to one of his many hideouts, as he called them, handled this exact issue before, so let me research it briefly and where he could work without interruption. He had I’ll get back to you.” And, nowadays, if you’ve spent a zillion hideouts on several different floors, but his current dollars for your law degree and will be paying off student loans favorite was on the twenty-first, at the end of a win- long after we’ve abandoned the dollar and gone to a currency dowless corridor, behind a heavy steel door. The redeemable in quarts of clean water, you should, after all, be door opened into a large, dimly lit storage room supremely capable. You’re not; none of us are. THE NEBRASKA LAWYER 28 JANUARY/FEBRUARY 2020 IF I HAD A BOAT

My biggest weakness as a lawyer, then and now, is that 5. Cherish civility. Like most Nebraska lawyers, I had I’m a terrible negotiator. My effort to deal with that weakness the innocent, almost lyrical experience of starting my career in was to admit it, for example, by telling an insurance adjuster, a legal community where civility was instinctive and what we “I think this case is worth $10,000.00. Now, I could start by heard about lawyers in large eastern cities was the bar’s equiva- saying it’s worth $20,000 and we’ll wind up at ten, but I’m lent of the bogeyman. During the worst days of the Rule 11 a terrible negotiator, so let’s not waste time--pay my client mania,10 I consulted with lawyers in Los Angeles in a securities $10,000.” The adjuster, naturally, thought I would settle for case where every other filing sought sanctions and attached five if I started at 10, so he offered $2,500. Which means I dozens of daily faxed letters full of insulting invective between could never get it back up to 10. Yes, I read books about suc- counsel. It made me physically ill. On the other hand, the best cessful negotiation techniques, but I also read about Einstein’s advice about civility I ever heard was from a Los Angeles law- theory of relativity and that didn’t make me a physicist. yer, Frank Rothman, who said, “You should never file a motion My second biggest weakness—probably related to the if you can send a letter and you should never send a letter if you first—is that I was awful at actually collecting fees. I assumed can make a phone call.” that when I successfully concluded the matter, the client would As with lawyer wellness, bar associations now seek to pro- cheerfully pay up. It took far too long to realize that, in fact, mote civility because they understand how corrosive hostility the better the job I did for clients, the less likely they were to between opposing counsel damages the image of the profes- pay up. This makes no sense and it hurt my feelings, making sion and, coincidentally, increases lawyer stress.11 The Atlanta me wonder if I had failed somehow. (The only failure may Bar Association sponsors a “Take Your Opponent to Lunch” have been in not lowering the client’s expectations enough, so program.12 Such a lunch may not result in becoming instant they would fully appreciate the amazing outcome.) Today’s buddies, but it will increase trust and allay suspicions. We all solution is to require clients who can’t pay in advance or sup- experience the tension of dealing with a lawyer we don’t know ply a reasonable retainer to pay by credit card. The way I through initial correspondence, stilted and lawyerly. But, after compensated for both those weaknesses was to make sure I we meet in person the first time, the tension disappears even had a partner who was unemotional about money and had the before we get to know much about him or her. Natural lawyer haggling skills epitomized in bazaars. Identify your weaknesses camaraderie overcomes almost all suspicions. and make sure you’re compensating for them. One modeling of civility is in the U.S. Court of Appeals for the Fourth Circuit where the judges step down from the bench and shake hands with the lawyers after each argument.13 Referrals There is a great lawyer story about a new attorney in a small Welcome. Confidence town who called opposing counsel, let’s say “Mr. Smith,” to That’s exactly what you’ll have when introduce himself because he was representing the defendant referring your landowning clients to us. in a case filed by Smith. Smith said, “Here’s all you need to know about that case. My client says your client is a son-of-a- We are land management and sales bitch. Your client says my client is a son-of-a-bitch. They’re professionals, ready to help landowners both right.” Clients may not always be civil, but lawyers can, achieve their goals. Contact us today! should, and must. The Savannah (Ga.) Bar Association has an annual Boat Ride for lawyers and judges who board a harbor cruise boat for a day-long, slow cruise down the Savannah River and up the Intracoastal Waterway, meandering through marshes to Your Trusted Partner. Hilton Head, South Carolina and back.14 Lunch, drinks, and ice cream are included, as is a corner poker game with Georgia Supreme Court judges. Laughing, story-telling, and friendship

800-509-3276 | ufarm.com are everywhere. Just thinking about the fellowship on those boat rides, like the hubbub in the hallways during the Nebraska Lincoln, Kearney, Norfolk & North Platte, Nebraska Bar Association Annual Meeting, makes me smile. When I and Columbia, Missouri have my boat, I want only lawyers on board when we’re going out to sea. FARM & RANCH MANAGEMENT | REAL ESTATE SALES & AUCTIONS RURAL APPRAISALS | ASSET INVENTORY | RECEIVERSHIPS  THE NEBRASKA LAWYER 29 JANUARY/FEBRUARY 2020 IF I HAD A BOAT

Endnotes 6 www.nebar.com/page/NLAP. 7 Also Hindu and Buddhist. https://www.rightattitudes. 1 Lyle Lovett, America’s greatest living poet, is also a real cowboy. com/2015/06/30/control-your-efforts-not-the-outcomes/. See Alec Wilkinson, “Homeboy: The Life of Lyle Lovett,” The 8 New Yorker, Mar. 1., 2004, p. 68. Jonathan Harr, A Civil Action 89 (Vintage Books, 1995). The last quoted paragraph is not relevant to bolt holes, but it’s one of 2 Yes, you are present at the birth of two new words: “pressuror,” the best paragraphs of all time. with the new lawyer being the “pressuree.” And, since I couldn’t 9 say “***” ten times in a row in public, I substituted “grits.” I hope There were other nostrums for “growing your practice.” One Lyle will understand. of my friends was told that joining a church was a good way to get business. Based on no market research, he joined an afflu- 3 If the client persists in knowing why you won’t take the case ent Episcopal congregation which was overrun with lawyers and refuses to settle for polite generalities, such as “I just don’t already. “Dress for success” was another marketing idea. I now handle these kinds of lawsuits” or “You can find a lawyer who has freely admit that my late ‘70’s green polyester suit was a fashion more time for this than I do right now,” tell them you’re bound mistake, as well as a serious fire hazard. by Section 3-501.16(a)(2) of the Nebraska Rules of Professional 10 conduct and usher them out the door. The rule states that you See Charles Yablon, Hindsight, Regret, and Safe Harbors in Rule should not represent a client if your mental condition will impair 11 Litigation, 37 LOY. L.A. L. REV. 599, 600 (2004). your ability to represent the client. I interpret this to mean “my 11 See e.g. https://www.omahadailyrecord.com/content/civility- sanity impairs my ability to handle your case.” common-thread-among-first-amendment-freedoms. Send the rejected non-client a letter stating that, while you will 12 https://www.gatriallawyers.net/take-an-adversary-to-lunch. not be representing them in the XYZ matter, you wish them html. In Atlanta, the program depends on everyone knowing the very best and state that they should consult another attorney that “Jeet?” is actually a Southern sentence meaning “Did you eat promptly because the statute of limitations or other procedural yet?” barrier to their claims may arise at any moment. (If you know 13 https://www.csmonitor.com/2003/0529/p01s01-usju.html This for sure what that risk is, be specific.) You may wish to tell practice has spread to New Jersey. In at least one Florida appel- them about a local attorney referral service, but should not direct late court, the judges take a coffee break with lawyers arguing them exclusively to another lawyer, unless there’s one who really before them. http://appellatelaw-nj.com/a-new-practice-at-the- annoyed you recently. No, no, you can’t do that. third-circuit/. 4 I’m tempted to use the frog in boiling water fable, but it has 14 The full title is the Admiral Harvey Weitz Boat Ride. https:// been thoroughly debunked. https://www.theatlantic.com/tech- www.savannahbar.org/event-3499840 Harvey, the dean of the nology/archive/2006/09/the-boiled-frog-myth-stop-the-lying- Savannah Bar, invited me each year when I was dean of Atlanta’s now/7446/. The workaholic lawyer knows she’s in boiling water, John Marshall Law School and it was the best perk of the job. but can’t or won’t jump out. 5 Shortly after email became ubiquitous, I asked an English bar- rister friend if he was using this new technology. “Oh, no,” he said, horrified. “I never even mail a letter the same day I write it. I like to think about it overnight, in case something was omitted or my tone was not quite right.” Those were the days.

SOLACE (Support of Lawyers/Legal Personnel - All Concern Encouraged) Program “Losing my son has been the hardest struggle ever. I am proud to be a member of such a compassionate bar. I moved to Arizona over a year ago and it is amazing at the love and generosity from my friends and from strangers that I received from you all. My children and I THANK you for lightening the burden. Bless you.”

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 Liz Neeley at [email protected] for more information. We have a statewide-and-beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions through the thousands of contacts available to us through the NSBA and its membership.

THE NEBRASKA LAWYER 30 JANUARY/FEBRUARY 2020 feature article

You Didn’t Necessarily Lose Money in the Market … by Patricia L. Vannoy, J.L. Spray and David M. Gaba

During the past decade, our country has enjoyed the great- Brokers can have different levels of licenses that authorize est bull market in history. Your 401(k) and other investment them to sell different types of investments.3 These licenses accounts have probably more than doubled or tripled during are administered and maintained by the Financial Industry this time. You’re feeling good about your retirement prospects. Regulatory Authority (FINRA), which is a self-regulatory orga- Your clients also feel optimistic. But as the markets inevitably nization made up of broker-dealers as their members.4 Many fluctuate, someday, account values will fall—and questions will brokers carry the Series 7 (General Securities Representative arise as to why. The answer most often given by financial ser- Qualification Examination) and the Series 63 or 66 (Uniform vices professionals is that markets go up and markets go down. Securities State Law Examination and Uniform Combined But the answer is not always simple. State Law Examination) which allow them to sell stocks. Some brokers instead have a Series 6 (Investment Company Your Advisor’s Duties to You Might Vary and Variable Contracts Products Representative Qualification Widely Examination), which limits them to selling mutual funds, variable annuities, and insurance. Holders of the Series 6 license are The answers to your questions will depend on a number of not permitted to sell corporate or municipal securities, direct facts, and one of the most important is who has been advising participation programs, or options. Also, additional licenses are you—and who has been advising your clients. Regulation of the necessary for a person to help supervise other brokers. financial services industry is splintered to a degree that might be surprising, and many people do not know the legal ramifica- You can look at a limited portion of a broker’s record through tions of who they choose to advise them. the FINRA’s “BrokerCheck” database, found at: https://brokercheck.finra.org/. But unfortunately, BrokerCheck does not First and foremost, it’s important to know that every per- show all of the information you may want to know about your son or firm who is selling financial services is likely required to broker, and many customer complaints are not required to be have a license of one sort or another. There are ways to thread reported on BrokerCheck. the needle, but the average person should not be dealing with someone who is unlicensed. At the outset, ask your financial Registered Investment Advisers & Investment advisor what licenses they hold and look into their record (to Adviser Representatives (RIAs) the extent you can, as we discuss). Rather than earn a commission on each investment, RIAs Brokers take a fee based on the value of your investments in exchange for managing your accounts.5 Usually, the fee is a percentage Traditionally, investments were handled by “stockbrokers” paid on an annual or quarterly basis. With this fee comes fidu- who charge a commission on each sale. In other words, they ciary duties6 owed by the adviser to the client or “customer.” are salespersons—but sales reps who are subject to special However, many RIA firms are very small (even just one per- duties given the level of trust you place in them. Likewise, the 1 son), and RIAs do not need to be supervised by a broker-dealer. “broker-dealer” firm who associates with a “broker” has duties to supervise their licensed representatives.2  THE NEBRASKA LAWYER 31 JANUARY/FEBRUARY 2020 YOU DIDN'T NECESSARILY LOSE MONEY IN THE MARKET

RIAs also must be licensed, but not by FINRA. Instead, Indeed, the industry has been locked in a race to the bot- the Securities and Exchange Commission regulates some RIAs tom, cost-wise, with several firms announcing zero dollar com- directly while others are regulated by the State of Nebraska. missions on certain types of investments just this fall.8 “Robo Some information about a licensed RIA can be found through advisors” are another trend in the industry, where firms offer the SEC’s website at: https://www.sec.gov/fast-answers/ advice generated by software programs (instead of profession- answersiardhtm.html. als) in exchange for lower fees—and smaller promises from the firm (usually a broker-dealer) to you or your client.9 Insurance Agents While these cheap investments may be appealing, there Over time, insurance companies have developed products that are still costs. Discount brokerages often charge hidden fees10 look and feel—and are often sold—like investments. However, and sometimes create and sell proprietary products, which are the person who sells these does not have to be licensed by FINRA often poorly understood even by those selling them. There may nor the SEC (although they can be). As long as they don’t sell be no adviser, and no one to turn to for help when advice or mutual funds, stocks, bonds, and the like directly (without a life an investment strategy goes wrong. And several commenta- insurance component), they don’t need to be licensed as a broker tors have noted that free trading costs encourage the worst or RIA. Instead, insurers and their agents are regulated only by psychological human tendencies, which could hurt investment the state or states in which they decide to practice. A very limited performance.11 amount of information about agents can be obtained through the various state insurance regulators’ web sites. For example, the The “Fiduciary” Rule Nebraska Department of Insurance lists the insurance companies For several years now, there has been quite a bit of atten- an agent is licensed with via its website, found here: https://doi. tion paid to whether there should be a “fiduciary rule,” what nebraska.gov/consumer/company-and-producer-search. it should look like, and who should promulgate and enforce Self-Directed and Discount Brokerage Accounts it. Exercising its authority under the Employee Retirement Income Security Act of 1974 (ERISA), the U.S. Department To try to avoid liability for its advice, the financial advice 7 of Labor proposed a rule that applies fiduciary duties to industry developed “self-directed” retirement and investment retirement accounts that are “rolled over” from an employer- accounts. Because they (theoretically) aren’t responsible for sponsored 401(k) account to an IRA account that is not what happens in the accounts, these accounts often come with sponsored by an employer. The rule was overturned in 2018.12 lower fees.

Patricia L. Vannoy J.L. Spray Patricia L. Vannoy is a partner J.L. Spray is a lifelong resident with Mattson Ricketts Law Firm of Lincoln and has practiced with in Lincoln, where she focuses her Mattson Ricketts Law Firm for practice on investors’ rights and more than 30 years. J.L.’s expertise insurance issues. She has repre- focuses on investors rights, com- sented more than 400 clients with mercial litigation, including cor- claims involving private placements, porate and real estate disputes, and real estate investment trusts, vari- estate litigation. J.L. has also han- able annuities, life insurance, and dled many campaign-related mat- all manner of securities, including ters, including compliance, elec- cases against broker-dealers, regis- tion contests, and initiative peti- tered investment advisers, insurers, tion issues. J.L. has served as the and clearing firms. She has also led work on bad faith claims Chairman of the Nebraska Republican Party and a member related to the financial services industry, against both errors of the Republican National Committee. From 1987 to 1992, and omissions and directors and officers insurers, and has J.L. served as an Administrative Law Judge for the Nebraska represented several whistleblowers seeking protection under Department of Labor. He served two different terms on the the Dodd-Frank Act and Sarbanes-Oxley. Patti also enjoys Nebraska Accountability and Disclosure Commission, over- a general civil practice, which includes labor law, civil litiga- seeing campaign practices and government ethics, and seven tion, contract negotiation, real estate, estate planning, and years on the Nebraska Equal Opportunity Commission. J.L. advising startup and small businesses. She currently serves as has also served as a member of the Commission of Industrial a Commissioner on the Nebraska Commission of Industrial Relations, which resolves disputes involving certification, Relations. Before practicing law, Patti worked as a reporter wages, and prohibitive practices between municipalities and and editor with major newspapers in the Midwest. public employee unions.

THE NEBRASKA LAWYER 32 JANUARY/FEBRUARY 2020 YOU DIDN'T NECESSARILY LOSE MONEY IN THE MARKET

The SEC is also making efforts to in the area,13 but some have financial situation is not appropriate for others. Variable complained that a broad fiduciary rule would actually be bad annuities are a good example of this, and a good example of an for the public.14 investment that sometimes pays the advisor very large commis- What Kind of Claims Might Be sions (often eight percent or more). Available? It’s not uncommon to see investments that a firm has approved for sale by its advisors that is problematic in the After handling hundreds of claims for individual investors hands of the investor. It could be an investment that isn’t pub- against every one of the industry players described above, we licly traded (a “private placement”) or is illiquid because there can broadly summarize the problems into two categories: simply is no active market. Some investments involve higher internal costs and fees (in other words, the investment has to Bad Advice perform better to provide the same return to the investor). Real Sometimes an individual professional—whatever their estate investment trusts (REITs), oil and gas partnerships, and license category—does something wrong or is negligent. The business development companies (BDCs) are general examples extreme “wrong” examples include Ponzi schemes, theft, bor- in this category. rowing from clients, and ingratiating oneself into a client’s But Be Careful Where You File estate plan, perhaps as a beneficiary or trustee. But there are less obvious examples—here’s why we say, If you may have a claim, the next step is to consider “you didn’t necessarily lose money in the market.” For example, where to file. With almost no exceptions, broker-dealers have an advisor might sell a client one investment or type of invest- arbitration clauses embedded in their account agreements, ment instead of another because it pays a higher commission which customers sign long before a problem occurs. These (sometimes as high as eight to 25 percent). Or, an advisor pre-dispute arbitration agreements are enforceable under the 15 might sell appropriate investments, but might generate extra Federal Arbitration Act, and most select the FINRA Dispute commissions by buying and selling them too often (called Resolution forum. In other words, FINRA administers the “churning”). Similarly, an account may be over-concentrated forum through which claims against its own members are into one investment or type of investments. resolved. In addition to a completely different set of forum rules, this can result in a variety of quirky circumstances. Bad Investments For example, the rules of evidence do not apply in FINRA The other broad category is what we sometimes call “bad arbitration,16 which can complicate a case for attorneys accus- products.” These, too, can run the gamut. Sometimes an tomed to practicing in state or federal court. Moreover, the investment that is appropriate for one person based on their FINRA forum is a purely equitable forum, and arbitrators need not be attorneys or have any experience with either the law or investments.17 There is no right to a traditional appeal, David M. Gaba and therefore very limited ability to overturn any decision by 18 David Gaba has an active practice the arbitrators. To that end, FINRA arbitrators do not have representing both broker-dealers to explain their decisions – unless the parties make a joint 19 and consumers in complex securi- request and pay an extra fee. Which raises another challenge ties and insurance matters. Prior to of FINRA arbitration: unfortunately for the “little guy” whose joining Compass Law Group, Mr. life savings have been lost, it’s quite costly to pay arbitrators Gaba Represented broker-deal- (usually a panel of three) to preside.20 So in addition to the ers and stockbrokers at Golbeck important legal strategy, it’s important to consider ways to Roth PLLC and was an Assistant minimize arbitration fees. Attorney General for the State of Washington handling complex Lastly, FINRA arbitration is a small world. Counsel on 21 state and federal litigation; he has both sides often know each other, as well as the arbitrators. also been an Administrative Law The dynamics of these relationships can impact the process, Judge and serves as an arbitrator for FINRA and the beginning with the selection of arbitrators through FINRA’s American Arbitration Association. Mr. Gaba also represents ranking process. securities industry clients in employment matters and drafted RIAs sometimes use arbitration clauses, too, but these are and presented the FINRA employment law training to all FINRA arbitrators in Washington and Oregon. Mr. Gaba not as uniform in terms and application. Many claims against has a JD and MBA from the University of Nebraska and is a an RIA or an insurance company can be brought in state or member of the National Academy of Arbitrators. federal court, like any other civil lawsuit.  THE NEBRASKA LAWYER 33 JANUARY/FEBRUARY 2020 YOU DIDN'T NECESSARILY LOSE MONEY IN THE MARKET

A Word of Caution About Collectability 11 E.g., Ari I. Weinberg, Why No-Cost ETFs Aren’t No Cost, THE WALL STREET JOURNAL, Nov. 3, 2019, https://www.wsj.com/articles/why-no-cost-etfs-arent-no- If you’ve gotten this far, there is at least one more big- cost-11572837061; Andrew Keshner, The downside to Charles picture issue to consider. Regardless of the area of licensure or Schwab and TD Ameritrade eliminating trading fees (yes, really), regulation, no one in the financial services industry is required MARKETWATCH, Oct. 24, 2019, https://www.marketwatch. com/story/the-downside-to-charles-schwab-and-td-ameri- to have errors and omissions or other insurance to cover their trade-eliminating-trading-fees-yes-really-2019-10-03; Robert interactions with their clients. Some of the larger broker-dealer Farrington, Are Commission-Free Investing Apps Encouraging Reckless Behavior?, FORBES, Dec. 3, 2019, https://www.forbes. firms self-insure. Many small and medium-size firms of all types com/sites/robertfarrington/2019/12/03/are-commission-free- do have insurance, but the policy limits usually can cover only a investing-apps-encouraging-reckless-behavior/#73cef2852579. small number of claims. And unfortunately, it is not uncommon 12 See, e.g., Brian Menickella, The Return of The DOL’s Fiduciary Rule, FORBES, May 29, 2019, https://www.forbes.com/sites/ for small firms to fold in the face of a handful of claims. RIA brianmenickella/2019/05/29/the-return-of-the-dols-fiduciary- claims, in particular, are likely to be uncollectible because many rule/#10194a066fa1. RIAs are small, thinly-capitalized small businesses. 13 See, e.g., Greg Iacurci, What the new DOL fiduciary rule will probably look like, INVESTMENT NEWS, May 31, 2019, https://www.investmentnews.com/article/20190531/ Endnotes FREE/190539978/what-the-new-dol-fiduciary-rule-will-prob- 1 There are approximately 3,600 broker-dealers with 630,000 reg- ably-look-like. istered brokers. Key Statistics for 2018, https://www.finra.org/ 14 See, e.g., Bob Pisani, A breakdown of whether investors are media-center/statistics#key. safer after the SEC passes financial protection rule, CNBC, June 2 See FINRA Rule 3110. 6, 2019, https://www.cnbc.com/2019/06/06/a-breakdown-of- 3 whether-investors-are-safer-after-the-sec-passes-financial- See Qualification Exams, https://www.finra.org/registration- protection-rule.html; Commissioner Michael S. Piwowar, exams-ce/qualification-exams. Comment Letter in Response to the Department of Labor’s 4 Each state has its own regulator as well, but usually state licenses “Request for Information Regarding the Fiduciary Rule and are easily obtained if a broker has a FINRA license. Prohibited Transaction Exemptions,” U.S. Securities and 5 To complicate matters further, while you may be working with Exchange Commission, July 25, 2017, https://www.sec.gov/ an RIA, you also need a broker-dealer to act as “custodian” of news/public-statement/piwowar-comment-dol-fiduciary-rule- your accounts. There are also sometimes layers of broker-dealer prohibited-transaction-exemptions; https://www.forbes.com/ firms involved, such as an “introducing firm” that does market- sites/feeonlyplanner/2019/07/15/how-fiduciary-regulation-is- ing and manages the relationship with the client, and a “clear- failing-investors/#6807b85553a8. ing firm” that handles transactions and paperwork. Thus, your 15 9 U.S.C. § 2. See, e.g., Green Tree Fin. Corp.-Alabama v. account statements may show the name and logo of one firm on Randolph, 531 U.S. 79, 89-92, 121 S. Ct. 513, 521-23, 148 L. the top and the name of another firm in the fine print, in addi- Ed. 2d 373 (2000) (summarizing the principles in enforcing tion to the individual you’re used to dealing with. arbitration agreements). 6 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 194 16 FINRA Rule 12604. (1963). 17 See Become An Arbitrator Frequently Asked Questions (FAQ), 7 Advisors often (but not always) have special duties with respect to https://www.finra.org/arbitration-mediation/become-arbitrator- retirement accounts like pre-tax “individual retirement accounts” frequently-asked-questions-faq. (IRAs) and post-tax Roth IRAs. 18 9 U.S.C. § 10. 8 E.g., Theresa W. Carey, What’s New For Online Brokers: 19 FINRA Rule 12904(g). November 2019 Edition, INVESTOPEDIA, Nov. 5, 2019, 20 https://www.investopedia.com/what-s-new-for-online-brokers- FINRA Rule 12902 (setting hearing session fees based on the early-november-2019-edition-4775329. size of a claim and number of arbitrators). 21 9 What is a Robo-Advisor?, INVESTOPEDIA, Oct. 1, 2019, Those interested in applying to become a FINRA arbitrator can https://www.investopedia.com/terms/r/roboadvisor-roboadviser. find the application on the FINRA website: https://www.finra. asp. org/arbitration-mediation/apply-now. 10 Ryan Ermey, The Pitfalls Behind Zero-Fee Trading, KIPLINGER, Nov. 1, 2019, https://www.kiplinger.com/article/investing/ T052-C000-S002-fee-cuts-the-other-trade-war.html.

THE NEBRASKA LAWYER 34 JANUARY/FEBRUARY 2020 feature article

Practical Pointers: Realities About Criminal Defense You Did Not Learn in Law School by F. Matt Aerni

Congratulations! You made it through law school and negotiate your fees. If, when you tell the client the retainer for passed the bar exam. You are getting set to start a practice, your services is $3,000 and you bill at $250 per hour, the client which includes at least some criminal defense work. You are tells you that they really want to hire you but the attorney across very excited and nervous. You are also about to learn that law town wanted a $2,000 retainer, politely wish them luck with the school did very little to prepare you to actually practice law. other attorney. As for actually getting paid, if you are consider- As you probably expect, no law practice—criminal defense ing representing a client charged with a crime of dishonesty, it included—is without hardships. This article will, hopefully is generally a bad business decision to allow that client to make with a little humor, point out some of the realities of criminal payments to you. In those situations, expect to not get paid any- defense practice that might come as quite a surprise to you. thing beyond the first payment they make. Note also that if the Some of the points made herein are made quite bluntly. But potential client has difficulty coming up with a small retainer, (for in criminal defense, you will be representing people accused of example, $500 or $1,500), they are probably going to have diffi- murder, rape, child molestation, etc. If you can handle that, culty coming up with more money. Do not take a case without an you can handle some blunt observations/advice. appropriate retainer. Do not feel bad about turning down a case 1. If you are in private practice, the bottom line is, well, the because the client cannot afford you. If the client cannot afford bottom line. If you do not make money practicing law, you are an attorney, the court will appoint an attorney to represent them. going to need to find something else to do. In this sense, there 2. Judges do not like surprises. This is true in all cases, but is no difference between a lawyer, a doctor, or a college student judges seem especially sensitive to surprises in criminal cases. working part-time at a deli to pay tuition. To keep the lights When you plan to move to continue Sentencing, the first time the on, you have to get paid. With respect to clients who hire you judge learns of your wish should be before the judge says, “This (as opposed to clients you are appointed to represent), do not matter comes on for Sentencing…” Let judges know about things that could otherwise been seen as a surprise as soon as possible F. Matt Aerni (which includes a consideration about whether advance notice to the judge or springing it on the judge at the last minute will preju- dice your client.) This dovetails to the next point, which is…. Matt Aerni practices with Berry 3. (Most) judges prefer conducting as much business as Law and primarily fights for the possible with the lawyers in chambers. This came as a surprise rights of the injured and defends to me when I started practicing, as law school left me with a those who have been falsely sense that the judge is a person not to be talked to except in accused of crimes. Matt received the courtroom, on the record, with the court-reporter present. his J.D. from the University of At a recent seminar I attended, a judge displayed a photo of Nebraska College of Law. his office during his presentation. The judge was making the point, “This is where the work gets done. Please, come talk to THE NEBRASKA LAWYER 35 JANUARY/FEBRUARY 2020 REALITIES ABOUT CRIMINAL DEFENSE

me in my chambers.” Of course, with limited exception, do not in an article about human psychology, that a client would claim reach out to the judge without the prosecutor on the phone, or innocence in the face of objectively overwhelming evidence of CC’d on the email you send to the judge’s office. guilt. These situations can be handled proactively as described 4. No good deed goes unpunished. Sometimes a client will above when I discussed how no good deed goes unpunished. reluctantly accept your objectively reasonable advice to accept a 7. There are local rules you need to follow: In addition to plea agreement resulting in a conviction. Or, you might take statutes and Supreme Court rules of criminal procedure, the the case to trial at the client’s demand (and against your advice.) local judicial districts have their own procedural rules which Then, after the client is sentenced, the client will claim you were you must follow. Further, the local rules in the District Court ineffective. The client might claim that you either forced them could be different from the local rules in the County Court, into a plea agreement, or you told them they had a great case even though the courts are in the same county. The local for trial. There is no need to develop anxiety over these clients. rules for all County and District Courts are all available on Here are three parts of a proactive way to handle these situations. the Nebraska Supreme Court’s website. Making things more 1) Even though a plea agreement is clearly a wise choice, do not confusing is that even in districts where there is more than one express exasperation when the client demands a trial. Arguing judge, different judges can have different approaches to activi- back and forth with the client will not help the situation. As you ties and how they manage their dockets. If you have a question continue on in the case, frequently and calmly let the client know about how a judge is going to handle an activity, such as jury you do not think trial is a good idea, but you will be happy to selection, or pre-trial hearings, feel free to ask a local attorney take the case to trial; 2) Provide all plea agreements to the cli- who has been around long enough to understand the judge’s ent in writing, and to the extent possible the reasoning for your procedures, or call the judge’s bailiff and ask. Just like most opinion (taking into account the fact that the client might be in judges are happy to chat outside of the courtroom, the bailiffs jail and you may want to be cautious about what you put in a let- are generally happy to explain things to you. ter to the client). Regardless, document in your file that you, at a 8. Get comfortable feeling uncomfortable for a while, but minimum, explained the reasoning for your advice to the client; do not be uncomfortable about it. You are entering a world and 3) When the client rejects a plea agreement, write the client where a person’s liberty is going to be entrusted to you. That a letter confirming the client’s rejection of the plea agreement. is intimidating. On top of that, you are going to be opposed 5. Clients will lie to you. This relates back to the previous by a prosecutor who has probably been practicing longer than point. For reasons that seem to make sense in the client’s mind, you. There will be a judge, court staff, and other lawyers who they will lie to you because they think they know what is best for all seem to know what is going on. It might seem overwhelm- their case. For example, the client might tell you the gun used ing. That is just the way it works. The only solution I have in the murder will not be found because the client threw the gun for that problem is to jump in with both feet and sort it out. It in the river. But later on when another person provides the gun is going to take you a while before you think you have a grasp to law enforcement because that person had been hiding the gun, on how a criminal defense practice works. the client might tell you, “Ok, it was not melted.” Obviously, the 9. It is not too late for dental school. Unfortunately, in client lied. That is just the way it goes. Do not get upset with the criminal defense, the people you are trying to help (your cli- client. Confirm the truth with the client, document the change in ents) are frequently the source of the problems you run into. the story in your file, and move on. Do not take the lie personally. That is just the way it goes in this business. But step back for 6. Clients will be unable to accept the truth. Contrary to a second – who controls your happiness? Is it your clients over what Hollywood would have you believe, on many occasions whom you have limited control? Or is it you? Remember that when your client is charged with a very serious felony which is not your job to force your clients to see the logic and value could result in several years of prison, you will conclude there in your advice. It is your job to give them objective advice is zero chance of acquittal at trial. You will explain and, to the and zealously advocate for them. Do your job, document your extent possible, show the evidence to the client and tell them efforts, and you are going to be fine on those rare occasions that they would likely be convicted at trial. And then the client when a client tries blaming you for their problems. will tell you that they want a trial because they are not guilty. Last, you are going to get through this. Even the lawyers For example, perhaps your client is charged with sexual assault who have been practicing for 40 years were, at one point, of a child and in a recorded conversation expresses surprise exactly where you are. There are boatloads of lawyers across that the victim is pregnant because they always used protection the country who have been practicing for 40 years. Most likely when they had sex. Upon being confronted with that record- you are smarter, and more capable than at least one of those ing, the client says that he was not having sex with the victim lawyers were when they were first starting to practice. If that and has a variety of excuses for his statements in the recording. person has been able to make it for 40 years, I am confident you There are a number of reasons, probably best left for discussion are going to get through this. THE NEBRASKA LAWYER 36 JANUARY/FEBRUARY 2020 plain language

This article originally appeared in the Autumn 2014 issue of The Green Bag. This article is reprinted with permission from the Michigan Bar Journal’s Plain Language column (Joseph Kimble, editor). All rights reserved.

You Think Lawyers Are Good Drafters? by Joseph Kimble

No, I’m sorry, but most lawyers are not skilled drafters. It doesn’t matter how smart or experienced they are or how many Legal drafting is a demanding skill that needs to legal documents they have drafted. Most—a supermajority, be learned and practiced. probably—are lacking. And yet, oddly enough, while they tend to be blind to their own shortcomings, the poor quality of sion itself saddled them with. Think of the generations of law others’ drafting is plain for them to see.1 When was the last students who studied, intensively, the Internal Revenue Code, time you heard a lawyer praise the clarity of a statute or rule the Uniform Commercial Code, the Federal Rules of Civil or contract? In another column, I identified five reasons for Procedure, and the Federal Rules of Evidence, among other this professional deficiency,2 but I think two of them stand out. such promulgations. And I doubt that many professors made First, until very recently, law schools have tended to neglect it a point to criticize the drafting in those laws and rules or legal drafting. Shamefully neglect. For how can lawyers prac- occasionally asked the class to work on improving a provision. tice effectively without training in how to draft—and critically So most law students must have come away with the impression review—legal instruments? Second, rather than take it upon that the drafting was perfectly normal and generally good. Well, themselves to acquire the skill, lawyers naturally turn to form- it may have been normal, but it was far from good, as I’ve tried 3 books—those bastions of dense, verbose, antiquated drafting. to show. The heartening news is that current and future gen- So the ineptitude cycles on. erations will at least not have to endure the old Federal Rules of Civil Procedure and Rules of Evidence, since completely Neglect by law schools. The poor models in formbooks. redrafted sets took effect in 2007 and 2011. If anything, law schools have historically provided a perverse kind of antitraining—through the models that the profes- Still, we need to be constantly reminded of how pervasive the ailment is in our profession, so I’ll dutifully keep nagging. Another would-be model Joseph Kimble In October 2012, the Charleston School of Law hosted a symposium on Federal Rule of Evidence 502—governing the JOSEPH KIMBLE taught legal writing for 30 years at Western  Michigan University Cooley Law Editors: School. He is the author of Lifting BRANDY R. JOHNSON the Fog of Legalese: Essays on Plain , attorney, Governmental Law, LLC, Language and Writing for Dollars, Lincoln Writing to Please: The Case for Plain P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha Language in Business, Government, and Law. If you are interested in submitting an article for the “Plain Language” column, please e-mail Allyson Felt at [email protected].

THE NEBRASKA LAWYER 37 JANUARY/FEBRUARY 2020 PLAIN LANGUAGE

extent to which a waiver occurs when a party discloses legally • Besides pursuant to, (a) contains two other multiword protected information. As part of the symposium, the partici- prepositions—in connection with and with respect to. pating judges, lawyers, and professors prepared a “model” order • (b) and (f) both contain unnecessary cross-references. to carry out Rule 502(d), which allows a judge to order that a disclosure connected with pending litigation does not create a • (b) should be divided into additional sections. waiver. The order was published in the Fordham Law Review,4 • (b) uses review, dissemination, and use, but (e) uses examin- and it presumably has, or will, come to the attention of federal ing or disclosing for what seem to be the same ideas. district judges. Thus, another typical piece of drafting makes • (e) and (g) start with Nothing in this order, but (h) doesn’t the rounds as an imitable form, an example to follow, a conve- follow suit. nient resource. • (e) uses privileged only, not privileged or protected. Is that On page 39, I have reproduced the order as published. difference intended? (On a positive note, the word shall is nowhere to be found.) • (f) switches from Proving in the heading to establishing in Alongside it is my redraft. I decided against annotating the the text. What’s the difference? original in detail—to spare readers a swarm of forbidding foot- notes. Instead, I’ll just highlight the drafting slips in the original • The relationship between the two sentences in (h) needs and stand on the comparison between the two versions. clarifying, but I didn’t venture into that. So what’s wrong? • After the first mention, attorney-client privilege or work product protection can be shortened to privilege or protection. • The original uses 125 more words than the revision. That’s what Rule 502 does. • The first sentence favors us with hard-core legalese—pur- • Work-product protection needs a hyphen throughout. suant to. Incidentally, if my revision makes some inadvertent sub- • The original uses four unnecessary parenthetical defini- stantive change, it would be easy to fix and would hardly ratio- tions (starting with “Disclosing Party”). This is one of the worst nalize the old-style drafting in the original. One more time: tics of all—producing any number of distracting, unnecessary legal drafting is a demanding skill that needs to be learned and capitals. practiced. The more important the project, and the more it • In several places, the original departs from the language of affects the public or the profession, then the more important it Rule 502 for no apparent reason. For instance, section (a) uses is that this skill shine through. waiver or forfeiture, but forfeiture does not appear in 502. And then (b) drops forfeiture, creating further inconsistency. For Endnotes another instance, (a) refers to information that is privileged— generally—or protected by the attorney-client privilege. But 502 1 See Garner, President’s Letter, The Scrivener (Winter 1998), pp refers to the latter only. Why the difference? 1, 3 (reporting on the author’s survey of lawyers at his seminars: they view only 5% of the documents they read as well drafted, • The sequence of events seems questionable. Under (b), the but, amazingly, 95% would claim that they draft high-quality receiving party must—unless it contests the claimed privilege or documents). 2 See Kimble, Another Example from the Proposed New Federal protection—notify the dis-closing party that the receiving party Rules of Evidence, 88 Mich B J 46 (September 2009), available will make best efforts to properly handle the information. Then at the disclosing party has five business days to explain its claim. (accessed April 20, 2015). 3 Kimble, Lessons in Drafting from the New Federal Rules of Civil But can the receiving party usually know whether to contest Procedure, 12 Scribes J Legal Writing 25 (2008–2009); Drafting the claim before getting the explanation? My redraft follows Examples from the Proposed New Federal Rules of Evidence, 88 Mich B J 52 (August 2009), 46 (September 2009), 54 (October the sequencing in the original, but should the disclosing party’s 2009), 50 (November 2009), available at (accessed April 20, 2015). (b))? 4 Symposium Participants, Model Draft of a Rule 502(d) Order, 81 Fordham L R 1587 (2013). • The second sentence in (a) is 94 words. The average sentence length in the original is 34 words. The revised version averages 26. • The second sentence begins with the truism Subject to the provisions of this Order. And note the pointless (and in-consistent) capitalization of order.

THE NEBRASKA LAWYER 38 JANUARY/FEBRUARY 2020 Michigan Bar Journal May 2015 56 Plain Language PLAIN LANGUAGE

MODEL DRAFT OF A RULE 502(D) ORDER REVISED DRAFT

(a) No Waiver by Disclosure. This order is entered pursuant to Rule 502(d) (a) No Waiver by Disclosure. This order is entered under Federal Rule of the Federal Rules of Evidence. Subject to the provisions of this Order, if a of Evidence 502(d). It applies when a party discloses information party (the “Disclosing Party”) discloses information in connection with the connected with this litigation and later claims that the information is pending litigation that the Disclosing Party thereafter claims to be privileged covered by the attorney–client privilege or work-product protection. or protected by the attorney-client privilege or work product protection By disclosing, the party does not waive—in this action or any other— (“Protected Information”), the disclosure of that Protected Information will any claim of privilege or protection concerning the information or not constitute or be deemed a waiver or forfeiture—in this or any other its subject matter. action—of any claim of privilege or work product protection that the Disclosing Party would otherwise be entitled to assert with respect to the Protected Information and its subject matter. (b) Notification Requirements; Best Efforts of Receiving Party. A Disclosing (b) Giving Notice of the Disclosing Party’s Claim. The disclosing party must, Party must promptly notify the party receiving the Protected Information in writing, promptly notify the party receiving the information that it is (“the Receiving Party”), in writing, that it has disclosed that Protected privileged or protected and that no waiver is intended. Information without intending a waiver by the disclosure. Upon such (c) Action by the Receiving Party if It Does Not Contest the Claim. Upon notification, the Receiving Party must—unless it contests the claim of receiving notice, the receiving party must promptly do the following attorney-client privilege or work product protection in accordance with unless it contests the claim: (1) notify the disclosing party that it will paragraph (c)—promptly (i) notify the Disclosing Party that it will make best make its best efforts to identify and to return, sequester, or destroy efforts to identify and return, sequester or destroy (or in the case of (or electronically delete) the information and any reasonably accessible electronically stored information, delete) the Protected Information and any copies it has; and (2) certify that it will not further review, disseminate, reasonably accessible copies it has and (ii) provide a certification that it will or use the information. [The information is sequestered if stored on an cease further review, dissemination, and use of the Protected Information. electronic source that is not reasonably accessible. If the information is Within five business days of receipt of the notification from the Receiving retrieved, the receiving party must promptly take steps to sequester or Party, the Disclosing Party must explain as specifically as possible why the delete it.] Protected Information is privileged. [For purposes of this Order, Protected Information that has been stored on a source of electronically stored (d) Explanation by the Disclosing Party. Within five business days after information that is not reasonably accessible, such as backup storage media, receiving the best-efforts notice in (c), the disclosing party must explain is sequestered. If such data is retrieved, the Receiving Party must promptly as specifically as possible why the information is privileged or protected. take steps to delete or sequester the restored protected information.] [Should the explanation accompany the notice in (b)?] (c) Contesting Claim of Privilege or Work Product Protection. If the (e) Contesting the Claim. If the receiving party contests the claim of Receiving Party contests the claim of attorney-client privilege or work privilege or protection, then within five business days after receiving product protection, the Receiving Party must—within five business days of notice of the claim, the receiving party must move for an order receipt of the notice of disclosure—move the Court for an Order compelling compelling disclosure of all or part of the information. The motion disclosure of the information claimed as unprotected (a “Disclosure Motion”). must be filed under seal and must not assert as one of its grounds the The Disclosure Motion must be filed under seal and must not assert as a facts or circumstances of the disclosure. While the motion is pending, ground for compelling disclosure the fact or circumstances of the disclosure. the receiving party must not use the challenged information in any Pending resolution of the Disclosure Motion, the Receiving Party must not way or disclose it to anyone except those who are legally required to use the challenged information in any way or disclose it to any person be served with the motion. other than those required by law to be served with a copy of the sealed Disclosure Motion. (d) Stipulated Time Periods. The parties may stipulate to extend the time (f) Stipulating to a Different Time Period. The parties may stipulate to extend periods set forth in paragraphs (b) and (c). the time periods in (d) and (e). (g) Burden of Proving Privilege or Protection. The disclosing party has the burden of proving a contested claim of privilege or protection. (e) Attorney’s Ethical Responsibilities. Nothing in this order overrides any (h) Attorney’s Ethical Responsibilities. This order does not override an attorney’s ethical responsibilities to refrain from examining or disclosing attorney’s ethical responsibility to (1) refrain from reviewing, disseminating, materials that the attorney knows or reasonably should know to be privileged or using materials that the attorney knows or reasonably should know and to inform the Disclosing Party that such materials have been produced. to be privileged and (2) inform the disclosing party that those materials have been produced. (f) Burden of Proving Privilege or Work-Product Protection. The Disclosing Party retains the burden—upon challenge pursuant to paragraph (c)—of establishing the privileged or protected nature of the Protected Information. (g) In camera Review. Nothing in this Order limits the right of any party to (i) In Camera Review. This order does not limit a party’s right to petition the petition the Court for an in camera review of the Protected Information. court to review the information in camera. (h) Voluntary and Subject Matter Waiver. This Order does not preclude a (j) Voluntary and Subject-Matter Waiver. This order does not preclude a party from voluntarily waiving the attorney-client privilege or work product party from voluntarily waiving the attorney–client privilege or work- protection. The provisions of Federal Rule 502(a) apply when the Disclosing product protection. Federal Rule of Evidence 502(a) applies when the Party uses or indicates that it may use information produced under this Order disclosing party uses or indicates that it may use information produced to support a claim or defense. under this order to support a claim or defense. (i) Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are (k) Inapplicability of Rule 502(b)(2). Federal Rule of Evidence 502(b)(2) does inapplicable to the production of Protected Information under this Order. not apply to producing information under this order.

THE NEBRASKA LAWYER 39 JANUARY/FEBRUARY 2020

tech corner The NSBA recently formed a Tech Subcommittee to discuss and educate about tech issues relating to the practice of law. As part of their education goal, the Tech Subcommittee intends to write a column for The Nebraska Lawyer each issue for 2020. This article is the first installment of that column. If you are interested in joining the Tech Subcommittee or would like more information, please contact Section Facilitator Jennifer Hiatt at [email protected]. Future meeting updates coming soon!

The Lawyer’s Duty of Technology Competence - And Some Easy Upgrades for Everyone by Rick Jeffries

You Have an Ethical Duty to Be The Nebraska MCLE Commission Could Do Competent With Your Computers More to Help Lawyers Get Educated Any lawyer could start a mobile law practice with a trip to Although the duty to acquire and maintain tech compe- a big-box retailer and a few hundred dollars. But lawyers just tence is a clear matter of each lawyer’s professional responsibil- aren't terribly sophisticated when it comes to keeping data safe ity, you can’t get Nebraska MCLE professional responsibility - it’s not something we’re taught in school. credit for learning how to secure your practice. The Nebraska Mandatory Continuing Legal Education Commission recently Even so, every lawyer has an ethical duty to be competent, ruled that it will continue an unpublished practice of awarding and in 2017, the Nebraska Rules of Professional Conduct were only general credit, and not ethics credit, for lawyers trying to amended to included comments clarifying that lawyers should learn how to more ethically serve their clients through the use “keep abreast of … the risks and benefits associated with rel- of technology. This is an unfortunate setback for the practic- evant technology.” Neb. Ct. R. § 3-501.1 cmt. 6. ing Bar. An ethical lawyer is a tech-competent lawyer. The Lawyers also must act competently to preserve confidenti- Nebraska State Bar Association is currently seeking to remedy ality of client communications and records, and take reasonable this via a proposed rule change. precautions to prevent client communications from falling into Fortunately, while you can’t currently get ethics credit for the hands of unauthorized recipients. Neb. Ct. R. § 3-501.6 it, there are a few things you can do to keep ahead of the curve. cmts. 15 and 16. Learn a little about encryption, then do it. Email May Be Ethical, but It Is Not Secure Rick Jeffries At the dawn of the internet age, the American Bar Association provided formal ethics guidance that it was okay to email your clients as long as you were careful about it. We Rick Jeffries is a partner in, take that permission for granted now, but in reality, the ABA and in-house Firm Counsel to, and many states have cautioned lawyers to consider encryption Cline Williams Wright Johnson & Oldfather, L.L.P. Rick is a when they transmit especially sensitive information. Certified Information Privacy Regular email is like a postcard: An email message that you Professional/US, as recognized by send bears your return address, the address of the recipient, and the International Association of the contents of your message in plain text - that means anyone Privacy Professionals. His practice can read it. From a technical perspective, it is not at all secure. includes technology, information security and privacy as well as com- We rationalize this like we rationalize sending any postcard - there are millions of pieces of mail, and the risk of intercep- mercial litigation.  THE NEBRASKA LAWYER 41 JANUARY/FEBRUARY 2020 TECH CORNER

tion by anyone who cares is accordingly small. But you should classes (uppercase, lowercase, number and symbol). For readers know that a dedicated evildoer could conceivably read your of this magazine, an obvious choice meeting these conditions mail as sent. is: Husker$1. It’s commonly recognized that plaintext email is no longer Over time, the propellerhead types have layered in multiple the best practice when it comes to sensitive information like additional requirements, including requiring passwords to be healthcare records, financial information, social security num- reset, and that the new passwords can’t be the same as the last bers and the like. There are free or cheap services you can use X passwords, etc. to encrypt your email, and most document programs allow you Here’s the problem with that thinking: Complex passwords to encrypt a single document, requiring a password to open it. are undoubtedly harder to guess, but for the most part comput- (Editor’s note: NSBA members receive a 20% discount on encryption ers are used to guess passwords, and they don’t really think in services provided by Identillect. Please use promo code NEBR2.) human terms anyway. Worse, as passwords become harder to You can also use the “compress” or “create archive” function remember, the more likely it is that users will write them down. of many operating systems and require a password to decom- Written-down passwords are no longer secret, and secrecy was press. These create ZIP files, but ZIP files are actually little the entire point. In short, the geeks forgot about the human pieces of software, so some email systems (including ours) will part of security. We’ve now re-thought it. reject emails containing ZIPs as a security measure. The New Thinking Obviously, the recipient of your encrypted data will need the password you selected. You must send this “out of band” The strength of a password is measured by the number of - that is, using a different method than the email system you attempts it would take, on average, to guess it. Just as guessing used to transmit the data - or you’re simply leaving the key in a sequence of coin flips correctly in advance gets exponentially the door. harder as the sequence gets longer, so does guessing a password as it gets longer. And people can remember strings of non- Device Encryption sense words much better than they can remember an arbitrary One of the most common causes of data loss is simply sequence of symbols. physical loss, through theft or inadvertence, of the device The example I frequently offer is “thefutureisbaconpants.” containing the data. If you give me a laptop and a screwdriver, It’s a silly phrase, but it’s one that people who have heard I can probably read all of your documents and email within a my talks remember and repeat to me months after the few minutes. fact. Mathematically, it’s much, much harder to guess than If you experience a theft of computers from your office or Husker$1, simply because it’s longer. According to a password a phone from the back of a cab, you may be obligated to notify tester maintained by Dashlane, “Husker$1” can be guessed by the people whose data you’ve lost and the Nebraska Attorney existing technology in about 9 hours; “thefutureisbaconpants” General under the Data Breach Notification Act. One way you will resist cracking for 410 billion years. If the security of can mitigate this risk is through encryption. “Husker$1” is an object the size of the head of a pin, “thefutureisbaconpants” is three times the size of the sun. Any device that can be picked up by a person, up to and including a desktop computer, should employ its device encryp- Complexity doesn’t hurt, certainly, so if you can mix in tion (or disk encryption) function. This is a feature of modern capitals, numbers or symbols without needing to write things Windows and Mac operating systems and should be turned on. down, by all means go ahead. But it’s much better to use a 13-15 character minimum passphrase of memorable nonsense Apple phones and tablets do this by default if you select a with no complexity requirements, than a short, needlessly strong password, thumbprint security or FaceID. If you’re an complex password. Android user, you may have to manually access your phone’s security settings. There is also very little evidence that it’s better to reset passwords on a set schedule, and then impose the ridiculous Once this is done, only someone with authorized access your cycling requirements that will inevitably lead to sticky notes device can read the data on it - even if they try to take it apart. with passwords. If you don’t suspect you’ve been hacked, you Modernize Your Approach to Passwords probably don’t need to change your passwords. Better: Try a Password Manager The Old Way We’ve got a ton of passwords to remember, and it's risky to For years, my people (the geeks) have insisted that the only have the same or very similar passwords for every site you own. way to have a good password is what you now instinctively If somebody who guesses your Facebook password now knows know as the magic formula - eight characters, four character THE NEBRASKA LAWYER 42 JANUARY/FEBRUARY 2020 TECH CORNER

your banking password as well, you’ve got problems. But we’re The same lesson applies to us. It’s irritating when our back to the same issue - if we have to remember dozens of dif- devices notify us that they need to be updated. Often these ferent passwords, we're likely to write them down, and what's updates are for security purposes: to keep the bad guys out. As written down can be stolen. Equifax learned, if you don’t do your updates, your computer Password managers can help with this. A password man- can be brainwashed into doing the bidding of an attacker - this ager keeps a heavily encrypted directory of your passwords. is called a “remote code execution” exploit. Some of them, such as LastPass, offer browser extensions that The best practice is to turn on every auto-update feature will automatically fill password fields so you don’t even have to available on almost every device, and always-on devices like do much copying and pasting. phones and tablets will update themselves while they charge In order to access a password manager, you'll need to use and you sleep. Larger organizations should use patch-manage- a super-secure password, as all of your eggs will now be in ment approaches to test updates in advance one basket. I use a password manager that offers multi-factor It’s fair to be exasperated that operating systems will authentication, which means that even someone who guesses become obsolete and the makers of those operating systems my password can’t get access to the vault without knowing a have a financial interest in making you buy new software. code that is stored on a different secure app on my phone. Unless you’re too sophisticated to be reading this article, however, there’s not much you can do. On that note, you should Do the Updates, All the Time upgrade or replace any Windows 7 PCs, as Windows 7 will not In 2017, the Equifax credit bureau announced that it suf- be updated after January 2020. fered perhaps the most damaging security breach in history, Conclusion losing the sensitive financial and identity data of millions of people. The origins of this breach can be traced to Equifax’s Your duty of tech competence may seem overwhelming, failure to apply a security update for one of the components of but paying attention to the simple things will go a long way in its website. Painfully, that update was free and had been pub- preventing avoidable disruption, headache, and danger to your licly available for some time - Equifax simply didn’t act. clients. Similarly, the UK Health Service suffered a massive black- out owing to a malware attack because it ran on Windows XP well after Microsoft stopped providing security updates for that product.

THE NEBRASKA LAWYER 43 JANUARY/FEBRUARY 2020 wellness brief

Making the Case for a Culture Shift By Chris Aupperle, NLAP Director

When I present CLEs or other NLAP outreach programs A good legal mind can solve many problems for many to lawyers, judges, and law students, I talk about the fact that people. However, when a lawyer is affected by chronic stress, depression, alcohol use disorders, and suicide hit the legal pro- depression, anxiety, or an alcohol use disorder, the lawyer often fession at rates two to three times the level you would see in approaches the situation as if it’s a legal issue rather than a the general adult population. The obvious follow-up question health issue. The lawyer worries about creating a paper trail from the audience is “why?” and is concerned that asking for help will be used against him While there is no definitive research to date that fully or her by their employer, competition, or counsel for discipline. answers this question, there are several theories. Some believe The approach is often rooted in covering things up rather than that the legal profession attracts a certain type of personality acknowledging and seeking treatment for the problem. The susceptible to these disorders, others theorize that it’s the rig- most common of the mental health challenges facing lawyers orous demands of the profession, and still others believe that are highly treatable, but if left untreated they will often get we simply have not adequately prepared our lawyers and/or we worse, not better over time. don’t provide the right mental health support to our lawyers Not a Generational Issue once they enter the profession. All these theories may have some validity. However, I believe there is an underlying factor The detrimental attributes of the legal profession culture that may carry even greater influence on the mental health of are not new; in fact, many of these cultural aspects have per- our lawyers—the culture of the legal profession. petuated for decades. Like the high occurrence rates of mental health and substance use disorders, these attitudes exist within Challenging Our Legal Profession all demographics of our profession. This is not something we Culture can blame on one generation of lawyers, a particular area of practice, or type of legal employer. The culture of the legal profession teaches lawyers to never show anything that could be perceived as a weakness. This We should also acknowledge the work that has been under- likely stems from the adversarial nature of our profession or the taken by many within our profession to shift our culture to ben- fact that our profession rarely values humility as a core value. efit the mental health of our lawyers. The law schools, courts, Lawyers focus on perpetuating the image of what they want legal regulators, bar association, and NLAP have dedicated others to believe. support and resources behind this initiative. However, we are trying to turn a very large ship, and that takes time and energy. Our culture also perpetuates the misguided belief that if Those trying to effectuate change are also working against the we can solve everyone else’s problems, then we must be able waves created by those who resist change. to solve our own personal struggles—without any assistance. Studies demonstrate that lawyers do not ask for help when they Some may argue that we are just making excuses for lawyers need it. If they do eventually seek assistance from professionals, and law students. That if a law student or lawyer encounters it’s typically after a long period of struggles and only after much a mental health or substance use struggle, they are “just not damage is done to their personal and professional lives. Rather cut out for the profession.” I would ask those making that than ask for help, lawyers far too often look to external quick argument whether they would say the same about a lawyer fixes to deal with stress and discontentment—further driving combating cancer or suffering a heart attack? When we begin the profession’s disparate rates of alcohol, drug (prescription or treating mental health with the same openness, compassion, otherwise), gambling, and other addiction disorders. and willingness to help as we do with physical health, then we will begin making true progress in changing the legal culture.

Nebraska Lawyers Assistance Program (888) 584-6527 Confidential Help for all Nebraska Lawyers, Judges and Law Students

THE NEBRASKA LAWYER 44 JANUARY/FEBRUARY 2020 WELLNESS BRIEF

A Path Forward If you are a legal employer, adopt policies and offer confidential resources not only to deal with mental health disorders So, where do we go from here? What role can you play but also to promote good mental health. Don’t treat mental in shifting our culture? First, educate yourself on the issue. health differently than physical health. As law firms adopt There are many excellent resources on discussing this issue. a cultural shift toward good mental health, both the firm Learn how to recognize the warning signs, encourage others to (through productivity and retention) and the lawyer benefit. seek help and to adopt policies that shift us from help adverse to help seeking. Once armed with information, show leader- If you or someone you know needs assistance from NLAP, ship—within your firm or organization and within the profes- please give us a call. Also, if you want to learn more about this sion. Don’t just talk about the issue, but model good behavior. issue, please contact NLAP. And remember, conversations Our actions must match our words. with NLAP are confidential. Pencil yourself in.

Where do you fit into this schedule? The Nebraska Lawyers Assistance Program (NLAP) understands the competition, constant stress, and high Nebraska Lawyers expectations you face as a lawyer. Dealing with these Assistance Program Helping you win life’s trials. demands and other issues can be overwhelming. The Nebraska Lawyers Assistance Program offers free 24 hours • 7days (888) 584-NLAP (6527) and confidential support, because sometimes, the most difficult trials happen outside the courtroom. T H A N K

Micaela Hopkins Jason S. Doele Frank J. Mihulka Thomas M. Locher Camille R. Hawk Fiserv Stratton DeLay Doele Carlson Woods Aitken LLP Locher Pavelka Dostal Braddy Walentine O'Toole, LLP Buettner & Stover, PC, LLO & Hammes, LLC Annual Meeting Barristers’ Ball Budget and Planning, Client Assistance Education Investment Fund

James L. Nelson Hon. PaTricia Freeman Joshua L. Christolear Catherine L. Stegman Robert E. McEwen Nelson, Clark & Timan, PC Second Judicial District Christolear & Wheeler, LLC Sodoro Daly Shomaker, Nebraska Appleseed Center PC LLO Elections Judicial Resources Legal Forms Legal Forms Legal Services

James H. Truell Angela L. Burmeister Kathryn A. Olson Trev E. Peterson Clinton Cadwallader Truell Murray & Associates Berkshire & Burmeister Lincoln Knudsen Berkheimer McGrath North Mullin & Richardson & Endacott, LLP Kratz, PC LLO Legal Services Legislation Member Grievance Membership Support Nebraska Find-a-Lawyer

THE NEBRASKA LAWYER 46 JANUARY/FEBRUARY 2020 Y O U !

Joseph C. Dowding Jon L. Jabenis Julie E. Bear Dwyer Arce Patrick S. Cooper Dowding, Dowding, Dowding Schaefer Shapiro, LLP Reinsch, Slattery, Bear, Kutak Rock LLP Fraser Stryker PC LLO & Urbom Minahan & Prickett, PC, LLO Nebraska Lawyers Nebraska Lawyers Nominations Practice & Procedure Professional Assistance Program Assistance Program Enhancement

P. Brian Bartels Lily A. Robert T. Cannella Tana M. Fye Jeffrey C. Jarecki Kutak Rock LLP Richardson-Severn Fitzgerald Schorr Barmettler & Fye Law Office Jarecki Maul, PC LLO Richardson-Severn Law, PLLC Brennan, PC LLO Publications Real Estate Practice Rules and/or Bylaws Rural Practice Rural Practice Guidelines Initiative Initiative

Thank you to the 2020 NSBA Committee Chairs for your service to advancing the mission of the Nebraska State Bar Association.

THE NEBRASKA LAWYER 47 JANUARY/FEBRUARY 2020 court news

Nontraditional Students Attend Arguments in South Sioux by Janet Bancroft, Nebraska Supreme Court Public Information Officer

Unique to the Supreme Court traveling argument session South Sioux City were a group of students who were notably nontraditional in nature: a group of adult learners working on their interpretation skills. The Court session, held November 1, 2019, is part of the Supreme Court Justice’s outreach and education programming, which generally attracts high school students, community dignitaries, and some members of the general public. The students who attended the South Sioux arguments are participants in a court interpreter training course that meets at Northeast Community College in Norfolk. The college also Judge Kurt Rager provides context for arguments prior to the start has a satellite office in South Sioux City. Julie Clark, who of the Court session. teaches the course and attended with her class noted, “The students were partially in awe of the governmental processes Before the event, Principal Ashley O’Dell remarked, “South we enjoy in our country and partially overwhelmed at all they Sioux City High School is very honored to host the Nebraska feel they need to learn.” According to Clark, the students, who Supreme Court in our school district. We are grateful for the are all non-native speakers, had reviewed the case files before partnership with the Nebraska State Bar Foundation as it pro- attending arguments but “didn’t truly appreciate the magnitude vides our students, community members, and local dignitaries of the day until they saw and heard the process.” with an opportunity to witness an event of this magnitude. We recognize the importance that civics and court decisions have Arguments in two cases began with an educational program on our current reality and on our future.” at 10:00 a.m. led by County Court Judge Kurt Rager, a graduate of South Sioux High School. An open question and answer Interpreter educator, Clark, recalled that her adult-learners session with students followed the arguments. were “very overwhelmed” with some of the vocabulary – including references to the Indian Child Welfare Act that was casu- The visit marks the first time that the Supreme Court has ally referred to as ICWA throughout arguments. “We have heard arguments in South Sioux City. worked very hard on vocabulary, but as an instructor, it was just a wonderful learning experience and one I am grateful we had prior to their (certified interpreter) test on November 15.”

Supreme Court with student interpreter group after arguments in South Sioux.

THE NEBRASKA LAWYER 48 JANUARY/FEBRUARY 2020 COURT NEWS Tribal Consortium Travels State on Public Engagement Tour

The Nebraska Consortium of Tribal, State, and Federal Jenny Walter assists tribes, courts, local governments, and Courts, co-chaired by Judge Patrick Runge (Winnebago and organizations on social reform issues. Ms. Walter’s experience Ponca Tribe Chief Judge) and Judge Andrea Miller (District includes over twenty-year career as a lawyer for the California 12) traveled to four locations around the state to engage in Judicial Council where she led a statewide tribal needs assess- initial conversations with Nebraska’s Native American comment; obtained funding for and launched a unit focused on munities. Various Consortium members as well as Chief Justice tribal/state relations; initiated and consulted on the documen- Michael Heavican joined facilitators Ret. Judge Bill Thorne tary, Tribal Justice; served as lead counsel to the California and Jenny Walter for sessions in Omaha, Niobrara, Macy, and Tribal Court-State Court Forum; and developed statewide Winnebago in early November. policies relating to children, youth, families, and concurrent jurisdiction of tribal and state courts. Attendance was robust, with the conversation reaching over 200 members of Nebraska’s Native American communities over the four locations. Jonathan Seagrass of Legal Aid of Nebraska provided a ‘Know Your Rights’ presentation, Runge and Miller presented on the purposes of the Consortium, and Thorne and Walter led participants through an open dialogue regarding feelings about the court system. Participants filled out surveys to measure their trust and confidence in the court system and the hope is that by engaging in sessions like these, community members will grow greater confidence in the sys- Judge Andrea Miller addresses participants in November public tem. At each location, participants and Consortium members engagement session. shared a meal and were welcomed by a local community leader Photo by Tarik Abdel Monem- UNL Public Policy Center, Senior through a traditional prayer. Research Specialist Attendees aired grievances and frustrations with state, federal, and tribal courts as they have experienced them. The Judge William A. Thorne, Jr., a Pomo/Coast Miwok exchange also included information and possible shortfalls of Indian from northern California, was formerly a judge on the Indian Child Welfare Act and jurisdictional issues. This is the State of Utah Court of Appeals and in the Third District the first of two planned engagement tours and other activities Court. He has served as a tribal court judge in 10 states and to involve Native peoples in the conversation to help improve is the former president of the National Indian Justice Center, relations between tribal, state, and federal courts and the com- a non-profit that trains tribal court personnel around the munities they serve. country. Nationally known as a leading expert on policies and programs to support children, particularly Native American This public engagement tour was funded by a grant from children and their families, Judge Thorne is currently chair of the National Center for State Courts and is being evaluated by the Board of Directors for Child Trends, Inc., a non-profit, the UNL Public Policy Center. Another public engagement child-centered research group. event is being planned for the Scottsbluff area at the time of publishing.

THE NEBRASKA LAWYER 49 JANUARY/FEBRUARY 2020 COURT NEWS Nebraska Supreme Court 2020 Mary “Peg” Stevens appointed to the Traveling Dates Scheduled Separate Juvenile Court of Douglas

The Nebraska Supreme Court has set its 2020 winter and County spring calendar of traveling arguments. Travel sessions are Governor Pete Ricketts appointed Mary scheduled: “Peg” Stevens of Elkhorn to the Separate • February 6, 2020: University of Nebraska College Juvenile Court of Douglas County. Stevens, of Law in Lincoln 58, has been a partner at Carlson & Burnett LLP in Omaha since 2008. At the firm, she • March 5, 2020: Creighton University School of specialized in juvenile and family law, rep- Law followed by Omaha Northwest High School resenting clients in dissolution of marriage, – National Judicial Outreach Week session custody and child support modifications, • May 4, 2020: McCook High School in McCook paternity actions, adoptions, guardianships, and juvenile law – Law Day session matters. Previously, she served as a Deputy County Attorney For the past 35 years, the justices of the Nebraska Supreme in Sarpy County and as Special Prosecutor for Douglas County. Court have traveled to each of Nebraska’s law schools for Stevens holds a Bachelor of Arts in Criminal Justice, with the purpose of making the Court’s business accessible to stu- an emphasis in Juvenile Delinquency, from the University of dents on their campuses. Each year visits are made to both Nebraska-Kearney and a Juris Doctor from the Creighton the University of Nebraska College of Law in Lincoln and University School of Law. She is a member of the Nebraska Creighton University School of Law in Omaha. Following Bar Association, Omaha Bar Association, and the Nebraska the argument session at Creighton’s Law School, the Court Juvenile Justice Association. Stevens is also active in the com- reconvenes for an afternoon session at an Omaha-area high munity, serving on the board of nonprofit organizations such school. An additional high school session is held in May of as Release Inc., Rejuvenating Women, and The Omaha Home each year in honor of Law Day (May 1). Cases argued at the for Boys, among others. schools are selected to demonstrate the variety of legal argu- She fills one of two vacancies created by the retirement ments that face the court system on a regular basis. Students of Judge Douglas F. Johnson and the resignation of Judge are furnished with case descriptions, case briefs, and a variety Elizabeth G. Crnkovich. of informational resources regarding Nebraska’s appellate and trial courts. Following each argument session, justices spend time talking to students about the appellate process and career opportunities as lawyers.

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

THE NEBRASKA LAWYER 50 JANUARY/FEBRUARY 2020 legal community news

Duchesne Academy Wins 2019 Judge Lyle Strom High School Mock Trial Nebraska Competition

Duchesne Academy of the Sacred Heart in Omaha placed annual Judge Lyle Strom High School Mock Trial State first Tuesday in the 2019 Judge Lyle Strom High School Mock Championship is administered by the Law-Related Education Trial State Championship. Committee of the Nebraska State Bar Foundation with sup- Duchesne will represent Nebraska May 6-9 at the National port of the legal community and Nebraska’s judges. High School Mock Trial Championship in Evansville, Indiana. This is the 31st year for Mock Trial, the longest running Members of the winning team are Juliana Angel, Sophie of the Foundation’s LRE programs. The program is named in Geis, Raleigh Kreis, Sofia Martinez-Thibodeau, Joslyn Panzer, honor of Retired Senior Judge Lyle Strom of the U.S. District Dorothy Roland, and Sabrina Sulaymanova. Teacher coach for Court for the District of Nebraska. The competition began in the winning team is Brenda Thoene, and the volunteer attor- 1983, and it originated with the Nebraska Supreme Court. ney coaches are Judge Stefanie Martinez and Gerald Laughlin. “Congratulations to all 12 teams competing in the 2019 Taking second place was Creighton Preparatory of Omaha. State Championship here in Lincoln. You are here tonight The teacher who coached the team is Lisa Cook, and the because of your outstanding work ethic, your dedication, volunteer attorney coaches are Mark Laughlin and Patrick your understanding of the legal system and your development Cooper. Members of the of courtroom trial skills,” team are William Harper, said Steve Guenzel of Benjamin Kramer, Lincoln, president of the Ryan Laughlin, Mason Bar Foundation, at an Mandolfo, Matthew awards banquet Monday Mandolfo, Dominic night at Embassy Suites. Mendlik and Christopher “The High School Nubel. Mock Trial Program is Damon Bennett of a sterling example of the Northwest High School kinds of efforts needed in Grand Island was for each of us to live out named the winner of our civic responsibilities. the Mock Trial Student Mock Trial participants News Reporter Contest, demonstrate the high- an educational componet est standards of conduct, added to the Mock Trial including civility, empa- competition. Six stu- Duchesne Academy Mock Trial team with coaches and Cheryl Zwart, U.S. thy, and professionalism,” dents entered the second Magistrate Judge for the District of Nebraska. Guenzel said. The Bar annual contest as part of Foundation’s theme for their Mock Trial teams. The contest was developed by the its Law-Related Education Programs in 2020 is “Educate to Foundation’s Bench Media Committee in cooperation with the Engage: Citizenship through Civics.” Nebraska Broadcasters Association. Guenzel told the students that Mock Trial is more than Third place in the Mock Trial competition went to Scotus winning the state title. “It is about understanding the legal Central Catholic in Columbus and the team’s teacher coach, system, practicing civility in our discourse and our behavior and Alison Timoney, and attorney coaches, Jason Mielak and Erik upholding the strong tradition of fairness, equality, and deco- Klutman. Fourth place went to Wayne High School and Josh rum that is the underpinning of the American judicial system.” Johnson, teacher coach, and retired Judge Bob Ensz, attorney Coordinators for Region 10, the host of this year’s State coaches. Championship competition, were Lancaster District Court In all, 12 teams from schools across Nebraska took part Judge John Colborn and Lancaster County Judge Laurie in the two-day competition. Teams advanced to the State Yardley. The coordinator for Region 11/12 in the Omaha area was Douglas County Judge Tom Harmon., who recently Championship by winning their regional competitions. The  THE NEBRASKA LAWYER 51 JANUARY/FEBRUARY 2020 LEGAL COMMUNITY NEWS

received the Supreme Court Chief Justice’s Distinguished Region 7 Judge Award for his role as regional coordinator in the Mock Columbus Scotus Central Catholic - Alison Trial Program. Timoney, teacher; Jason Mielak and Erik Klutman, Teams competing in the State Championship and their teacher coaches. teacher coaches and attorney coaches include the following: Region 6 Region 11/12 Wayne High School - Josh Johnson, teacher; ret. Duchesne Academy, Omaha - Brenda Thoene, Judge Bob Ensz, attorney coach. teacher; Hon. Stefanie Martinez and Gerald Region 5 Laughlin, attorney coaches. Grand Island Northwest High School - Brian Creighton Prep High School, Omaha - Lisa Cook, Gibson, teacher; Jennifer Kearney, attorney coach. teacher; Mark Laughlin and Patrick Cooper, attorney coaches. Region 4 Region 10 Ainsworth High School - Mary Rau, teacher. York High School - Jane Brogan, teacher; Kent Region 3 Rauert, Kelly Thomas and Steve Fillman, attorney Dundy County Stratton High School - Tracy coaches. Peckham, teacher; Ashley Spahn, attorney coach. Region 9 Region 2 Fillmore Central High School - Coby Smith, Ogallala High School - Chrissa Schlake, teacher; teacher; Lucas Swartzendruber, attorney coach. Robert Harvoy, attorney coach. Region 8 Region 1 Bellevue West High School - Megan Flynn, teach- Gering High School - Andy Stobel, teacher; Bell er; Todd West, attorney coach. Island and Brandon Panattoni, attorney coaches.

Judges, Lawyers, Media to Review Nebraska’s 50-year-old Bar-Press Guidelines

Nebraska Bar-Press Guidelines, written almost 50 years ago, will be reviewed by a committee of the Nebraska State Bar Foundation to see if they need to be revised or if they remain relevant in today’s news environment. Nebraska Supreme Court Justice Jeffrey Funke said work will begin in 2020 on a thorough review and update, if necessary, of the Nebraska Bar-Press Guidelines. The Bar Foundation’s Bench Media Committee will focus on this action item, he said. The Bench Media Committee was created in 2016 as a subcommittee of the Bar Foundation’s Public Education Outreach Promoting Law and Equity (PEOPLE) Committee. The Bench Media Committee is made up of members of the news media and the judicial community. The Guidelines are voluntary and reflect standards that Nebraska lawyers and news media representatives believe are a reasonable means to accommodate the right of free speech and free press and the right of an accused to a fair trial. They can be found on the State of Nebraska Judicial Branch website at https://supremecourt.nebraska.gov/media/reporter_guide/guidelines. In announcing the need for review, Justice Funke noted the original Guidelines were issued in June 1970 and have stood the test of time on a philosophical level. “The Guidelines have functioned well for the past 50 years, but technology has gotten ahead of both journalists and courts,” he said. The work group undertaking the review includes working journalists from print and broadcast, judges and attorneys from a wide range of law practice areas. “Our committee hopes to have revised Guidelines before the 50-year anniversary of Nebraska’s inaugural set of Guidelines,” Justice Funke said. The original Guidelines called for “continued joint efforts” between Nebraska lawyers and the news media to resolve any areas of differences “that may arise in their mutual objective of assuring to all Americans both the correlative constitutional rights to freedom of speech and press and to a fair trial.”

THE NEBRASKA LAWYER 52 JANUARY/FEBRUARY 2020 Thank you to the following law firms, corporate sponsors and NSBA sections for their support of the 2020 Barristers’ Ball.

Gold Sponsors • Houghton Bradford Whitted PC, LLO • Mercer Insurance • Kasaby & Nicholls • Kiewit Corporation • Mueller Robak LLC • KSB School Law • Pinnacle Bank • Lamson Dugan & Murray, LLP • Fidelity National Title • Locher Pavelka Dostal Braddy & Hammes, LLC • Mattoon Martens & Strommen • Millard Benefits • McGrath North Mullin & Kratz, PC LLO Silver Sponsors • Mick Law PC • Baird Holm LLP • Minnesota Lawyers Mutual Insurance Company • Baylor Evnen, LLP • Rembolt Ludtke LLP • Blue Cross Blue Shield • Stratton, DeLay, Doele, Carlson, Buettner & Stover, PC, • Cassem Tierney Adams Gotch & Douglas LLO • Cline Williams Wright Johnson & Oldfather, LLP • Suiter • Swantz, PC, LLO • Creighton University School of Law • University of Nebraska College of Law • Dornan, Troia, Howard, Breitkreutz & Conway PC LLO • Walentine O’Toole L.L.P • Dvorak Law Group LLC • West Gate Bank • Hauptman O'Brien Wolf & Lathrop PC • Young Lawyers Section

THE NEBRASKA LAWYER 53 JANUARY/FEBRUARY 2020 Forty Years and Still Loving Life in Law: A Conversation with Howard Duncan by Susan Ann Koenig I sat down with bankruptcy attorney Howard Duncan to hear his reflections on 40 years in the practice of law. Wearing both my lawyer and my life coach hats, I was curious. Edits have been made for clarity and conciseness.

Your first career was teaching junior high. What did that teach you about practicing law? I learned how to listen well, how to really pay attention. I learned the importance of teaching my students the need for personal responsibility in their work and behavior. I learned in my first year of teaching that being overly “nice” at the outset does not work well with 7th graders. More importantly, I got a lesson in turning my mistakes into learning opportunities and had a much better second year. You can always count on Howard for consistency: both in how he represents clients and in his Did you limit your practice to bankruptcy facial hair. from the very start of your legal career? of an “adversary proceeding,” a separate lawsuit filed within a Like many of us back then (you included) I started out as a bankruptcy to resolve disputed issues. Litigation has long been general practitioner and I did everything from wills and pro- a routine part of my practice. bate to divorce and workers’ compensation. Among the courts I practiced in was the Omaha Municipal Court, which had nine You have a reputation for handling the “messiest cases” with judges at the time. a lot of challenging issues. What do you enjoy about handling such complex matters? What major changes in the bankruptcy law have you seen? I love to strategize. First, I really listen to the client, longer than I The Bankruptcy Reform Act of 1978 made sweeping changes know many other lawyers would. Then I set about creating a plan. to the law, forming what we have since called “the Bankruptcy I’ve handled some unbelievable cases when it comes the facts Code.” While Congress had passed the legislation, the case law and the issues. How does a rancher with no money get the peo- had not yet been developed. I’ve been watching it unfold over ple and trucks to move his cattle out of tribal land before the the decades. A second big change occurred in 2005 when the law gates are locked up? How do you resolve who has control of a was overhauled, especially impacting those filing for Chapter 7. family business when you can only represent one party, the cash In the beginning, there were no forms for any of the work we isn’t flowing, and there’s a dispute about an inheritance of stock did. Everything had to be created. Of course, technology contin- in the company? How do you determine where jurisdiction lies ues to change everything for attorneys everywhere. when your client lives in one state, operations are in a second, and assets are in a third? Some lawyers see bankruptcy as primarily a transactional One case involved a business that produced grain alcohol. The practice, even though it involves court filings. Do you agree? company was collapsing. The officers of the corporation were When the Code was first passed, there was a lot of litigation be- being sued, and no other attorney wanted to touch the case. We cause the law had not been interpreted by the courts and there were successful in avoiding a nearly $200,000 claim. was no case law to rely upon. I practiced before Nebraska’s first bankruptcy judge, the Honorable David Crawford. Some law- Do you have a favorite courtroom story? yers disliked his insistence that any relief sought needed to be There was one case in which the opposing counsel was a sea- specifically included in the pleadings, but I respected his rigor. soned trial attorney. He persisted in repeatedly asking objec- Today, many bankruptcies conclude without litigation. How- tional questions. The court consistently sustained my objections. ever, the more complex the case, the greater the probability

THE NEBRASKA LAWYER 54 JANUARY/FEBRUARY 2020 NSBA MEMBER SPOTLIGHT

Eventually the judge grew weary of what appeared to be pure I am accepting of people with problems. People come to us in posturing rather than the making of a record. He addressed the large part because they need our help. Regardless of the attitude other attorney: or demeanor of the client, I don’t let it get into my head or my Counselor. Look to your right. He did. heart. I don’t condemn them. I simply disagree. Now look to your left. He did. We’ve all experienced the client who shops around hoping to You’ll see the jury box. The lawyer looked confused. find the lawyer who will tell them what they want to hear. If You’ll notice it’s empty. such a client argues that another lawyer has given them advice The court made its point that the lawyer’s performance had no contrary to my counsel, I tell them “Well then the attorney who audience. said that is the one you’ll have to have represent you.”

You grew your knowledge of bankruptcy law in a time when You represented a lot of farmers and ranchers during the the statutes were the only law. What advice would you have farm crisis of the 1980s when interest rates soared, land val- for newer lawyers wanting to develop expertise in an emerg- ues dropped, and many Midwest farmers were facing fore- ing practice area? closure. What are you seeing today when it comes to finances I was a keen student of the law long after passing the bar. I read and farmers? every bankruptcy opinion that was handed down. At one point These are difficult times. Climate change has meant unpredict- I asked the sitting bankruptcy judge if I could borrow or “check able weather patterns and more flooding. The trade tariffs with out” all of his opinions. Mind you, this was pre-digital age, pre- China have meant lost markets. All of the uncertainty has made internet. I copied all of them and studied them. financing more difficult, too, as bankers consider the possibility of an economic downturn. I bought three books on bankruptcy and I read them over and over again. I started doing the simpler Chapter 7 and Chapter 13 A fellow bankruptcy attorney referred to you as a “tough bankruptcies for individuals. Eventually I moved on to Chapter guy.” What’s the difference between being a tough guy and 11s for businesses and Chapter 12s for family farmers. It was a being a bully? process built on keeping abreast of all available information and I hate bullying. Early in my career an attorney tried to bully me using the experience gained with each client. into a decision by being especially insulting and nasty. I said three words, “That’ll be enough.” He fell silent. Has your bankruptcy practice been limited to Nebraska? I expanded my practice to Iowa because I saw an opportunity A tough guy doesn’t wince and doesn’t back down. If you’re go- for growth, and I’ve handled bankruptcy matters throughout ing to stand up, I’m going to stand up. You can’t intimidate me. the Midwest, and, of course, in Delaware because of so many If you make a threat, I’ll consider my next move. businesses being incorporated there. A tough guy will investigate the rules and use them to advocate for the client. He’ll recognize his own weaknesses and isn’t What advice do you have for handling clients who are unco- afraid to turn down a case he can’t handle. operative or behaving badly? It’s not unusual to have clients who are arrogant, insulting, or Which qualities of a lawyer do you think have served you best? manipulative. I have a great capacity to hear the flak and not My duty as an attorney is to not be involved in anything illegal, take it personally. I can see the situation from their view—what unethical, or immoral. I’m clear about this with my clients from frustrates them, what motivates them. They may hate attorneys, our very first conversation. I don’t make promises about the fu- the system, the government, or the world, but that’s not what I ture, and I don’t predict the outcome. focus on. I go the extra mile for a client because I want everything to be handled well for them. I know that for clients, there is often something more at stake than the money, like their family heritage or their reputation. If they feel they have touched rock bottom, my job is to see that they are not pulverized. Then I’m happy. My job is helping people. I don’t give up and I don’t quit.

How has the business side of your practice changed throughout the years? I started as a sole practitioner and grew my practice over time, adding an associate and paralegals. I was in a space sharing ar- rangement at the start of my career, then, as the practice grew, I was able to design offices that uniquely suited my law practice and my employees. Nothing has changed! You can still find Howard at his desk just like this photo in 1985.  THE NEBRASKA LAWYER 55 JANUARY/FEBRUARY 2020 NSBA MEMBER SPOTLIGHT

Now I have an office with Koenig Dunne in Little Bohemia. This You often represent successful people who own millions of came about after my son-in-law, Patrick Patino, joined me. We dollars in assets yet find themselves in a stressful financial saw the advantage of a larger firm for the support and manage- crisis. That can’t be easy. What helps to keep your own anxiety ment of the practice. and stress at bay? I wanted to keep my focus on practicing bankruptcy law with- I’ve developed a lifestyle that keeps me healthy and happy. out worrying about operations. I’d known you (Susan) for over Although I’m an introvert, I enjoy working out with others. I 30 years. Our firms shared the values of excellence, support and go to the gym three or four times a week, participating in six integrity. Merging with Koenig|Dunne looked like a great fit, classes each week. I try to maintain a healthy diet. and, indeed, it has been. What are your joys outside of the practice of law? What do you know now about practicing law that you wish Time with my family is at the top of the list. My wife, Jennifer, you’d known sooner? and I have been married almost as long as I’ve been practicing I wish I’d known the importance of enjoying life more along the law. I have two daughters—Sarah and Amy—and four incred- way, including the learning. I wish I’d know the value of allow- ible grandchildren who give me a chance to play with toy trains, ing others to help me. I wish I’d been more forgiving of myself among other fun. My daughter Amy is married to Patrick Pa- for my mistakes. Being human, we all make them. tino who practices bankruptcy with me at Koenig| Dunne. I enjoy walks with Jennifer and our dog, Skye. I also help Jen- nifer in her work as a volunteer gardener in the Midtown area. I remain an avid reader, and enjoy biographies and books about history, government, science, economics, religion, and politics.

Susan Ann Koenig is of counsel and coach at Koenig|Dunne, a divorce and debt resolution firm located in Little Bohemia in Omaha. Susan enjoys an encore career as an executive coach, speaker, and writer. She is on the faculty of the NSBA Leadership Academy and has coached lawyers and leaders for over 15 years. You can find Howard still leads an exceptional bankruptcy legal team 40 years into Susan’s blog NEXT at www.koenig- practice alongside attorney (and son-in-law) Patrick Patino and paralegal Kylie Clayton at Koenig|Dunne, PC, LLO dunne.com.

THE NEBRASKA LAWYER 56 JANUARY/FEBRUARY 2020 Thank you to Susan Koenig for her assistance with the Member Spotlight this issue! Here are some of our other members we are featuring this month. Roxana Cortes Reyes Brian J. Blackford Immigrant Legal Center Blackford Law LLC

What is your practice area? What is your practice area? I primarily practice immigration law, Immigration law specializing in removal/ but I end up doing a fair amount of deportation defense, family-based visas, family law. I make appearances in both victim-based and humanitarian visas, immigration and state courts. asylum, and citizenship/naturalization

Did you limit your practice to that area of law from the very What advice would you have for newer lawyers wanting to start of your legal career? develop expertise in a practice area? Yes. I have always wanted to be an immigration attorney and Find a good mentor and be a sponge absorbing the wisdom they that is what my practice has been devoted to since day one. The impart on you. This was invaluable to me. There are no stupid only thing that has changed is that I work for a non-profit law questions, and keep asking and researching them until the light firm now, which allows me to focus on education and advocacy bulb clicks. as well as direct representation. My three passions. What do you know now about practicing law that you wish What advice would you have for newer lawyers wanting to you’d known sooner? develop expertise in a practice area? Nothing is more valuable than practical and real-world expe- Find yourself a mentor in the area you want to become an ex- rience. Get into court. Jump into a case. Do not be a passive pert in, invest in resources (i.e. books, webinars, etc.), and don’t observer when your skillset is essential to somebody's life and/ be afraid to pick up the phone to ask questions from the ex- or livelihood. perts. You’ll be surprised about how enthusiastic they are to share their knowledge. What advice do you have for handling clients who are unco- operative or behaving badly? What do you know now about practicing law that you wish In my experience, 99% of these problems can be solved by hon- you’d known sooner? esty and better communication. But don't let your staff handle You are not always going to find the perfect case law or prover- these problems exclusively. The attorney needs to address them bial smoking gun to win your case, but that doesn’t mean you personally so the client knows there is mutual respect and that should stop trying. You have to allow yourself to be creative you are listening to their concerns. within the bounds of the law and never stop being the zealous advocate you promised to be when you took your oath. Which qualities of a lawyer do you think have served you best? The three most essential skills in this - and probably all - areas of What major changes in the law have you seen in your practice law are honesty, communication, and passion. There can never area since the start of your career? be enough of any that and if you focus on perfecting and main- There have been over 700 changes to the practice of immigra- taining those qualities you will serve your clients well. tion law in the last three years. Continuing legal education is the key here. How has the business side of your practice changed throughout the years? Which qualities of a lawyer do you think have served you best? We are busier than ever so my time management and organiza- Remaining grounded and never forgetting that my clients are tional skills have to be polished. HR and bookkeeping obliga- people, not numbers that I need to push through. Of course tions are time-consuming and are often difficult to juggle with strong legal writing and critical thinking skills have come in the actual legal work. handy as well. What helps to keep your own anxiety and stress at bay? What helps to keep your own anxiety and stress at bay? I've taken up distance running and ran my first half-marathon Engaging in non-legal activities once I leave the office like cook- this fall! Running helps to clear my head and alleviate stress. ing with my husband or watching documentaries.

THE NEBRASKA LAWYER 57 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project

Knowing the Need and Acknowledging the Assistance: 2019 Pro Bono Summit by Laurie Heer Dale and Shannon Seim, Volunteer Lawyers Project

In October, the Nebraska Pro Bono Collaborative hosted anteed to all of us in the Constitution and the Bill of Rights. the 2019 Pro Bono Summit during the Nebraska State Bar Invest your time, talent, and treasure to help us defend people’s Association Annual Meeting. Judge Frankie Moore, Chief rights. Here are some ideas to get you started: Donate, start a Judge of the Court of Appeals, Sixth Judicial District, and fundraiser, become a member, take action, join the board of Judge James Doyle II, of the Eleventh Judicial District’s directors and/or board committees, serve as a volunteer lawyer. District Court, spoke about their work on the Self Represented The ACLU of NE is always in need of additional volunteer Litigation Committee and ways legal professionals can better lawyers with a passion for civil liberties and civil rights to help serve low-income Nebraskans. Subsequently, Jim Calloway, us screen cases, consult on strategy, serve as cooperating coun- Director of the Oklahoma Bar Association’s Management sel, facilitate amicus briefs, participate in moot courts, conduct Assistance Program, presented ways attorneys can make their court watching, and other matters to expand capacity and effi- practice more accessible to low-income individuals by utilizing cacy of our legal program. tools such as limited scope representation. More information at: https://www.aclunebraska.org/en/ After Calloway’s presentation, representatives from about/how-you-can-help Creighton University School of Law, University of Nebraska Legal Aid of Nebraska College of Law, Disability Rights Nebraska, Immigrant Legal Center, the Nebraska Coalition to End Sexual and Domestic Legal Aid of Nebraska “makes equal justice happen” for Violence, Women’s Center for Advancement, Nebraska low-income Nebraskans each year as the only non-profit law Appleseed, Legal Aid of Nebraska, and the Nebraska State firm providing free civil legal services across the entire state. Bar Association’s Volunteer Lawyers Project hosted a panel Focusing on four areas (Children and Families; Debt and discussion on each of their organizations. Finance; Housing; Income and Benefits), in 2018 Legal Aid received approximately 18,000 requests and provided legal help The Summit wrapped up with Nebraska Supreme Court in over 12,000 cases. Pro bono participation is a key part of this Chief Justice Heavican and Justice Stacy acknowledging and crucial civil legal assistance, so important to the health, safety thanking Nebraska attorneys who engaged in pro bono work and stability of low-income children and families statewide. throughout the past year. Legal Aid appreciates and welcomes pro bono involvement The NSBA also announced “Thankful Thursdays” at the from attorneys and law firms across the state. Opportunities Summit. Follow NSBA social media every Thursday to see range from providing advice and forms in a clinic setting to legal professionals who are making significant contributions to full representation. With malpractice insurance, training and pro bono work in Nebraska. mentoring to facilitate the best attorney/client interaction, and Many interested attorneys could not attend the Summit. focus on outcomes, volunteering with Legal Aid is a highly Therefore, we asked member organizations of the Nebraska rewarding experience. Pro Bono Collaborative: For more information, please contact Christine Stolarskyj What do you wish legal professionals knew about volun- at [email protected]. teering with your organization? Nebraska Coalition to End Sexual and Domestic Violence Here are answers from some of the organizations in need Volunteering with the Nebraska Coalition to End Sexual of pro bono volunteers: and Domestic Violence will be emotionally challenging. That ACLU challenge is rewarded with the realization that you have helped to bring the scales of justice back into balance for some of the Free expression, racial justice, immigration, voting rights, most vulnerable people in our state and through that you gain LGBTQ equality, reproductive freedom, police practices, the opportunity and privilege to see someone begin to flourish prison reform. Every day in Nebraska, the ACLU is called when the representation is complete. upon to defend all the individual liberties and freedoms guar- THE NEBRASKA LAWYER 58 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project

The Veterans Legal Support Network tional, vocational, treatment needs, and the ability to receive Veterans come from our society and return to it after disability compensation. More broadly, Veterans often trust their service, be it four or 24 years later. It should be no other Veterans to answer questions and provide advice. This is surprise that they, like all other Nebraskans, have legal needs the other part of what VLSN tries to do. We find resources, that often cannot be met. Veterans Legal Support Network legal and otherwise, for Veterans that are having problems that (VLSN) tries to meet a niche need for upgrading less than may or may not be legal but usually have a legal tinge to them. honorable discharges Veterans received following their ser- More information at: https://www.vlsn.org/ vice. Those discharges severely limit options, such as educa- Pro Bono Current Events

National Pro Bono Month & Week Answers” questions. Much of that work would not have been possible without CLIA’s amazing Spanish and Arabic interpret- October is National Pro Bono Month, and National Pro ers, as several applicants spoke other languages. A paralegal team Bono Week was celebrated the week of October 21 this year. also volunteered and helped uncounted individuals by explaining Legal Professionals celebrated in a variety of ways. the questions they had were not civil legal matters and often Husch Blackwell Nebraska Free Legal Answers Clinic pointing them in the correct direction to receive help. On October 23, Attorneys from Omaha’s Husch Blackwell OUTNebraska and The Nebraska Commission for the Deaf invited the Volunteer Lawyers Project to host a Nebraska and Hard of Hearing were also present to ensure appropriate Free Legal Answers Clinic at their offices. Volunteer attor- services for the communities they serve. neys enjoyed pizza, learned about pro bono opportunities in Legal Aid of Nebraska Set-Aside Clinic Nebraska, and registered for and answered questions submitted through ne.freelegalanswers.org . If you would like to host For National Pro Bono Week, Legal Aid of Nebraska hosted a Nebraska Free Legal Answers Clinic for a group of attorneys a “Set-Aside & Record Sealing Clinic” on Saturday, October 26 or have questions, please contact Laurie Heer Dale at lheer- in Omaha. The clinic sought to reduce the impact criminal and [email protected]. juvenile records have for individuals seeking employment, education, housing, and other opportunities. Thirty-three people came Nebraska College of Law seeking help. Seventy-five petitions were drafted, 63 of which During National Pro Bono Month, Nebraska College of were filed and 50 of which have already been granted. Law celebrated in a variety of ways. The Career Development Legal Aid of Nebraska Name Change Clinic Office and Equal Justice Society hosted a “Justice Jam” where area pro bono and public interest leaders answered the ques- On Thursday, November 21, Legal Aid of Nebraska and tion “Why I fight for Justice”. The Nebraska Coalition to partnering organizations served 23 individuals through a “Name End Sexual and Domestic Violence, the Volunteer Lawyers Change Clinic”. Joan Watke Stacy kicked off the clinic by teach- Project, and Leadership Lincoln all came to campus to pres- ing a class on legal procedures and common issues transgendered ent on their work. Students, Faculty, and Staff engaged in a individuals face when they seek to legally change their names. “Community Conversations” lunch regarding immigration. Then, individuals met with attorney and law student volunteers Finally, students celebrated public interest and pro bono work to complete the proper legal forms and for an overview of the at a pot luck event at Professor Anthony Schutz’s home. process. Lawyers in the City in Lincoln Creighton University School of Law Presentation To culminate National Pro Bono Week, The Center On November 11, Laurie Heer Dale, Volunteer Lawyers for Legal Immigration Assistance (“CLIA”), Lincoln Project Director, presented to Creighton University School of Commission on Human Rights, Legal Aid of Nebraska, Law students on how and why pro bono work is essential to a Nebraska Appleseed, University of Nebraska College of Law, successful career and community. The presentation covered the and the NSBA’s Volunteer Lawyers Project hosted the first Nebraska Rules of Professional Conduct as well as practical tips ever Lawyers in the City event in Lincoln at Lutheran Family and guidance on ways students can continue incorporating pro Service’s Health 360. Fourteen attorneys, 12 law students, and bono in their legal practice. five other legal professionals served 23 individuals at Health 360. Volunteers also answered twenty “Nebraska Free Legal

THE NEBRASKA LAWYER 59 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Training to Support Pro Bono Practice

Getting Started with Pro Bono Just the Basics CLE

Representation CLE Legal Aid of Nebraska and The Volunteer Lawyers Project On October 9, representatives from the NSBA Limited partnered to host five free CLEs across Nebraska this fall to Scope section, Public Interest Law section, and Volunteer help attorneys learn how to incorporate pro bono, particularly Lawyers Project provided a presentation on how to initiate and through legal clinics, into their practice. The “Just the Basics” carry out pro bono representation in the areas of highest unmet CLE focused on areas where people often need pro bono legal legal need in Nebraska. It included a walk-through of relevant services, including: family law, protection orders, consumer law, Supreme Court forms, general pro bono practice advice, a landlord tenant issues, and FEMA benefit appeals. The CLEs refresher on limited scope representation, and information on were in Omaha, Lincoln, Norfolk, Grand Island, and North resources available to support pro bono legal assistance. The pur- Platte. Approximately 150 attorneys attended. The CLE will be pose of this presentation was to equip attorneys interested in pro- hosted in the Scottsbluff area in the spring of 2020. viding pro bono services with the tools they need to get started. VLP News

VLP offers a “Low Bono” Opportunity only a few hours, to larger projects that may last an entire semes- to Nebraska Lawyers through Program ter. Research fellows work directly with the pro bono attorney Aimed at Assisting Victims of Crime and may assist beyond research in some circumstances. For new assignments, a member of the College of Law Library Faculty The Nebraska State Bar Association Volunteer Lawyers will provide one-on-one research guidance at the beginning of the Project (VLP) was awarded federal Victim of Crime Act assignment, as well as on-going support, as needed. Attorneys (VOCA) funding to implement the EVOLVES (Essential may apply for research assistance by completing an online appli- Volunteers Offering Legal Services to Victims Ensuring Safety) cation located at: https://law.unl.edu/ProBonoResearch/ project. Through this project, VLP aims to increase legal ser- For questions about the program, contact Kala Mueller, vices to Nebraska rural, minority, and elder victims of abuse, Director of Public Interest Programs, [email protected]. domestic violence, sexual assault, stalking, and human trafficking by referring cases to volunteer attorneys to represent victims in Heart Ministry Center Expands Its family law, consumer, and immigration matters on a reduced fee Services to Offer a Free Legal Clinic basis ($60 per hour). This project is similar to VLP’s former Heart Ministry Center, located at 2222 Binney Street, Omaha, LAPTOP program. provides food, clothing, and health care to persons severely For more information, or if you are interested in providing affected by poverty in the Omaha area. Through the efforts of legal assistance to victims on a reduced-fee basis, contact Laurie volunteer attorneys and law students at Creighton University Heer Dale at (402) 742-8133 or [email protected]. School of Law, they also offer free legal advice, limited scope le- University of Nebraska College of Law gal services. and referrals on Wednesdays from 10:00 am – 12:30 pm. Legal services provided are intended to be brief and gener- Pro Bono Research Fellow Program ally include family, landlord-tenant, and consumer law matters. The University of Nebraska College of Law’s Pro Bono If you are interested in volunteering to assist at the Heart Minis- Research Fellows Program is a free service to private attorneys try Center’s legal clinic, contact David Ernst, partner at Pansing in need of research assistance on pro bono legal matters. The Hogan Ernst & Bachman LLP, for more information about program matches interested law students with pro bono attorneys the clinic and how to register. You may reach him at dernst@ on research projects that range from small assignments taking pheblaw.com or (402) 397-5500.

THE NEBRASKA LAWYER 60 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project

Volunteers at the Lawyers in the City event in Lincoln.

Jeff Eastman presenting at the Just the Basics CLE in Lea Wroblewski presenting at the Just the Basics CLE in North Platte. Lincoln.

Mindy Rush Chipman volunteers at the Name Change Alex Lierz volunteers at the Name Change Clinic. Clinic.

Volunteers at the Legal Aid of Nebraska Set-Aside Clinic

THE NEBRASKA LAWYER 61 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Pro Bono Partners Volunteers make access to justice a reality for those of limited means. VLP extends it gratitude to the following pro bono partners who provided pro bono services in 2019. Nebraska Free Legal Answers Set-Aside and Record Sealing Clinics (April 2019) Sydney C. Aase, Lincoln Alex M. Lierz, Lincoln Eric J. Adams, Omaha Christin P. Lovegrove, Geneva Mae Adkins, Omaha, Paralegal Student Erin M. Aitcheson, Champaign IL Catherine M. Mahern, Omaha Sapphire Andersen, Omaha, Law Student Dwyer Arce, Omaha Amie C. Martinez, Lincoln John Bergstresser, Omaha, Law Student Audrey A. Bellew, North Platte Hollie M. Mason, Washington DC Heather Bernt, Lincoln, Paralegal Lindsay R. Belmont, Omaha Nicholas B. McGrath, Omaha Mark T. Bestul, Lincoln Larry W. Beucke, Kearney Brent A. Meyer, Omaha Brigitta Bogue, Lincoln, Law Student Kristen M. Blankley, Lincoln Jessica D. Meyer, Tecumseh Katelyn Cherney, Omaha Trevor A. Brass, Sioux City Ashley A. Moore, Manning IA Annie Christenson, Lincoln, Law Student Timothy P. Brouillette, North Platte Jerad A. Murphy, Kearney Montana Crow, Omaha, Law Student Angela Burmeister, Omaha Katherine H. Owen, Omaha Katie Davis, Omaha, Law Student Elizabeth R. Cano, Lincoln Julia K. Palzer, Omaha Bridget DeLeo, Omaha, Paralegal Katherine R. Chadek, Lincoln Patrick M. Patino, Omaha Katie Delmonico, Omaha, Law Student Katelyn Cherney, Omaha Zachary D. Petersen, Omaha Quinn R. Eaton, Omaha Mary E. Choate, Lincoln Andrew Portis, Omaha Scott M. Eckel, Omaha Joshua L. Christolear, Syracuse Sarah E. Preisinger, Papillion Jennifer L. Gaughan, Lincoln Jaclyn N. Daake, Alma Thomas D. Prickett, Plattsmouth Jessica Gilgor, Omaha, Law Student Kelly R. Davis, Omaha Michael A. Ramirez, Omaha Rose Godinez, Lincoln Carla J. DeVelder, LaVista Jamie L. Reyes, Lincoln Kamron T. Hasan, Omaha Sallie V. Dietrich, Lincoln Nathaniel V. Romano, Patrick Hayford, Lincoln, Law Student Quinn R. Eaton, Omaha University Heights OH Marian G. Heaney, Omaha Timothy R. Engler, Lincoln Danielle L. Rowley, Grand Island Laurie Heer Dale, Omaha Whitney A. Estwick, Omaha Kevin L. Ruser, Lincoln Talia Hughes, Omaha, Paralegal Ashley L. Faier, Omaha Emily M. Sands, Lincoln Marnie A. Jensen, Omaha Adam R. Feeney, Omaha Megan M. Schutt, Lincoln Tannaz Kouhpainezhad, Omaha Irina V. Fox, Omaha Dale M. Shotkoski, Lincoln Grant D. Leach, Omaha Thomas J. Freeman, Lincoln Heather L. Sikyta, Ord Alix Mahoro, Omaha, Paralegal Maureen E. Fulton, Omaha Blake K. Simpson, Lincoln Brent A. Meyer, Omaha Tana M. Fye, Holdrege Peter Sitzmann, Lincoln Claire Monroe, Lincoln, Law Student Ryann A. Glenn, Omaha Kenneth M. Smith, Lincoln Ellen Prochaska, Omaha, Law Student Brenna M. Grasz, Lincoln Rachael A. Smith, Omaha Noah Rasmussen, Lincoln, Law Student John T. Haarala, Omaha Meagan K. Spomer, Omaha Scout Richters, Lincoln Catrina K. Harris, Ashland Ryan P. Sullivan, Lincoln Samantha Robb, Omaha, Law Student Kamron Hasan, Omaha Richard W. Tast, Jr., Lincoln Justice Simanek, Omaha, Law Student Kelsey L. Helget, Hastings Anthony D. Todero, Minneapolis MN Sami Schmit, Lincoln, Law Student Miranda Hobelman, Lincoln James H. Truell, Grand Island Ryan P. Sullivan, Lincoln Ryan Holsten, Lincoln Christina L. Usher, Lincoln Amy E. Swoboda, Lincoln Crystal D. Hunt, Kearney Brandon M. Warrington, Omaha Kaitlin Logan Wimmer, Omaha, Christa B. Israel, Lincoln Nicholas M. Weil, Omaha Law Student Jack W. Lafleur, Madison Kathryn E. Welsh, Omaha Lea Wroblewski, Lincoln Peng Li, Omaha Erin E. Wetzel, Omaha Jane F. Langan Mach, Lincoln Matthew J. Wurstner, Omaha

THE NEBRASKA LAWYER 62 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Pro Bono Partners No Fee Pro Bono Cases Rebecca S. Abell-Brown, Fremont Rhonda R. Flower, Scottsbluff Daniel D. McMahon, Hastings Jill M. Abrahamson, Omaha Stephanie N. Flynn, Lincoln Joseph McNally, Neligh Roxanne M. Alhejaj, Omaha Julie Fowler, Omaha Deziree N. Medina, Lincoln Cathleen H. Allen, Grand Island Ronald E. Frank, Omaha Jerad A. Murphy, Kearney Jennifer L. Atwood, Lincoln Tana M. Fye, Holdrege Gregory M. Neuhaus, Grand Island Alissa M. Baier, Norfolk Dustin A. Garrison, Beatrice Melissa M. Oestmann, Omaha Christina L. Ball, Lincoln William D. Gilner, Omaha Kimberly D. Olivera, Lincoln Frederick T. Bartell, Norfolk Lucinda C. Glen, Hastings Rodney J. Palmer, Ainsworth Mark S. Bertolini, Bellevue Stacie A. Goding, Grand Island Jeffrey T. Palzer, Omaha Christopher F. Blomenberg, Lincoln Vanessa J. Gorden, Lincoln Daniel C. Pape, Omaha Sara J. Bockstadter, Hastings Charles L. Grimes, Omaha Stephanie A. Payne, Lincoln James C. Bocott, North Platte Jodie Haferbier McGill, Omaha David W. Pederson, North Platte Nichole S. Bogen, Lincoln Michael J. Haller, Jr., Omaha Jeffery T. Peetz, Lincoln Kimberly A. Booth, Omaha Andrew D. Hanquist, Grand Island Michael J. Plambeck, Bellevue D.C. “Woody” Bradford III, Omaha Jamie C. Hermanson, Omaha Ellen P. Prochaska, Blair; Law Student Robert M. Brenner, Gering Emilee Higgins, Columbus Michael J. Plambeck, Bellevue Michael T. Brogan, Norfolk Adam A. Hoesing, Scottsbluff Richard B. Register, Fremont Kara E. Brostrom, Lincoln James H. Hoppe, Lincoln Katy A. Reichert, Scottsbluff Timothy J. Buckley, Papillion Alexandra J. Hubbard, Omaha Katy A. Reichert, Scottsbluff Lucrece H. Bundy, Omaha Kimberley A. Hughes, Elkhorn James E. Reisinger, Omaha Angela J. Burmeister, Omaha Kenneth F. Jacobs, Omaha Sean P. Rensch, Omaha Mona “Molly” L. Burton, Lincoln Mark F. Jacobs, Omaha Mindy M. Rush Chipman, Lincoln James A. Cada, Lincoln Michael D. Jones, Omaha John L. Selzer, Scottsbluff Thomas O. Campbell, Omaha Dean J. Jungers, Bellevue Katherine E. Sharp, Columbus Matt M. Catlett, Lincoln Jessica Kallstrom-Schreckengost, Omaha Katherine E. Sharp, Columbus Katelyn Cherney, Omaha Colin M. Kastrick, Omaha Justin A. Sheldon, Lincoln David V. Chipman, Lincoln Jennifer D. Kearney, Grand Island Meagan K. Spomer, Omaha Leslie A. Christensen, Omaha Casey W. Kidwell, Omaha Mitchell C. Stehlik, Grand Island Brian W. Copley, Lexington Frederick R. King, Lincoln Elizabeth A. Stobel, Scottsbluff Jeff T. Courtney, Omaha John A. Kinney, Omaha Ryan J. Stover, Norfolk Brian J. Davis, Cozad Nathan J. Kinport, Gering Steffi A. Swanson, Bellevue Jeffery W. Davis, Beatrice Melanie A. Kirk, Lincoln Catherine N. Swiniarski, Omaha Jason S. Doele, Norfolk Steffanie J. Kotik, Lincoln Jason R. Thomas, Omaha Charles E. Dorwart, Omaha Jane F. Langan Mach, Lincoln Ben W. Thompson, Omaha Vincent L. Dowding, Grand Island Dayna L. Langdon, Lincoln Jim R. Titus, Lincoln Michael R. Dunn, Falls City Peng Li, Omaha Sovida I. Tran, Lincoln Quinn R. Eaton, Omaha Joseph Lopez-Wilson, Omaha Nicolas C. Viavant, Omaha Audrey M. Elliott, Gering William E. Madelung, Scottsbluff Joan Watke, Omaha Timothy R. Engler, Lincoln Kate M. Manuel, Lincoln David R. Webb, Lincoln David H. Fisher, Hastings Amie C. Martinez, Lincoln Elise M. White, Lincoln Kyle J. Flentje, Bellevue Gretchen L. McGill, Omaha Abbie J. Widger, Lincoln Stefanie S. Flodman, Lincoln Mark R. McKeone, Cozad Megan M. Zobel, Lincoln

THE NEBRASKA LAWYER 63 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Pro Bono Partners Self-Help Centers Reduced Fee Pro Bono Cases Buffalo Douglas/Creighton Audrey A. Bellew, North Platte Melodie T. Bellamy, Coordinator Larry W. Beucke Diane L. Berger, Omaha Michael W. Baldwin Molly M. Blazek Krista M. Carlson, Lincoln Jack W. Besse Katelyn Cherney Aisha Carr, Valentine Larry W. Beucke Karen Hicks James M. Dake, Ames Brandon J. Dugan Martha J. Lemar William J. Erickson, Broken Bow Marsha E. Fangmeyer Catherine “Kate” Mahern Kyle J. Flentje, Bellevue John D. Icenogle Christopher A. Mihalo Leah J. Gleason, Holdrege Elizabeth J. Klingelhoefer Jennifer N. Rowling Angela H. Heimes, Omaha Nicole J. Luhm Margaret R. Jackson, North Platte Hall Nicole M. Mailahn Mark F. Jacobs, Omaha Shawn J. Farritor, Coordinator Nicholas R. Norton Jeanelle S. Kleveland, Lincoln Kevin A. Brostrom Michael J. Synek Alex M. Lierz, Lincoln Brandon J. Dugan Thomas W. Tye II Samantha F. Miller, Omaha Grady C. Erickson Steven R. Voigt Jason R. Mitchell, Omaha Stacie A. Goding Luke E. Zinnell Brad J. Montag, Norfolk Andrew D. Hanquist John V. Morgan, Nance Douglas Jonathan M. Hendricks Kay S. Prather, Beloit, KS Christina Thornton, Coordinator Karisa D. Johnson Wendy Ridder, West Point David A. Blagg Jennifer Kearney Gregory A. Rosen, Lewellen James F. Busse Susan M. Koenig Audrey A. Rowley, Grand Island Kelly R. Davis Charles R. Maser Katie M. Samples Dean, Bridgeport Joseph S. Dreesen John B. McDermott Lyle E. Wheeler Jr., Lincoln Richard A. Drews Michelle Mitchell Brandi J. Yosten, Albion Ronald E. Frank Mark T. Porto Michael J. Haller Jr Kane M. Ramsey Heart Ministry Center Karisa D. Johnson Audrey A. Rowley David D. Ernst, Coordinator Kendall K. Krajicek Keith Smith Andrew M. Collins Stephen J. Lefler Mitchell C. Stehlik William P. Crawford Lori E. Lee James H. Truell Richard A. Drews Craig F. Martin Erin M. Urbom Andrew D. Sibbernsen Tyler A. Masterson Kevin P. Walsh Creighton Will Clinic Ceci N. Menjivar Madison (March 2019) Michael P. Moran Ryan J. Stover, Coordinator Katelyn Cherney Melany S. O’Brien Timothy E. Brogan Lexie Fleming, Law Student Ralph E. Peppard Joel E. Carlson Nathan Kinport, Law Student Arturo Perez Jason S. Doele Nicholas Le, Law Student Kathryn D. Putnam Luke P. Henderson Christopher A. Mihalo Justin A. Quinn Jack W. LaFleur Kali Roundy, Law Student Danielle L. Rowley Lori E. Lee Nicole Wilson, Law Student Michael F. Scahill Allison K. Rockey Alan C. Schroeder Ronald E. Temple Judith A. Schweikart Karine E. Sokpoh Scotts Bluff David Sommers Stacy C. Bach, Coordinator J.G. “Gerry” Sullivan Adam A. Hoesing Kenneth M. Wentz III Maren L. Chaloupka Astrid G. Munn

THE NEBRASKA LAWYER 64 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Pro Bono Partners

Lawyers on the Prairie (April 2019) Lawyers on Main Street Legal Aid Name Change Clinic (Fremont, Sept. 2019) (Nov. 2019) Vincent L. Dowding Laurie Heer Dale Avis R. Andrews Logan Bartz, Law Student Nathan Kinport, Law Student Andrew Bedell, Law Student Trevor A. Brass Susan M. Koenig William L. Biggs David V. Chipman Daniel McDowell, Law Student Linsey M. Bryant Brianna Duda, Law Student Michelle M. Mitchell Katelyn Cherney Shailana Dunn-Wall, Law Student Jazmin Ross, Paralegal Bridget DeLeo, Paralegal Jared Holzhauser, Law Student Melissa Robinson, Paralegal Jodee Dixon, Law Student Shannon Konkol, Law Student Audrey A. Rowley Bassel F. El-Kasaby Alex M. Lierz Emily Santa-Rodriguez Jennifer L. Gaughan Mindy M. Rush Chipman Keith Smith Laurie Heer Dale Joan W. Stacy Nichole Sklare, Law Student Jayme Krejci, Law Student Ryan P. Sullivan Charity Thomas, Timothy J. Lenaghan Jr. Lauren Ziegenbein, Law Student Cecilia Ortiz, Paralegal Department of Justice Accredited Legal Aid Set-Aside and Record Shirley Peng Representative Sealing Clinic James H. Truell John T. Rogers (Oct. 2019) Annie Waxman Lopez Regina Ann Smith, Law Student Allison Adadi, Law Student Steven J. Twohig Nicole Wilson, Law Student Mae Adkins, Paralegal Student Spencer B. Wilson Jon-Thomas Boemmick, Law Student Lawyers in the City Lea Wroblewski (Omaha, Aug. 2019) Tarah Earle, Paralegal Mae Adkins, Paralegal Lawyers in the City Quinn R. Eaton (Lincoln, Oct. 2019) Nicole Albers, Paralegal Jessica Gilgor, Law Student Sapphire Andersen, Law Student Katherine R. Chadek Talia Hughes, Paralegal Maggie Brokaw, Law Student Mary E. Choate Casey Kidwell Angela L. Burmeister Shailana Dunn-Wall, Law Student Grant Leach Katelyn Cherney Brig Jensen, Law Student Ellen Prochaska, Law Student Patrick Cohoon Mary Kay Hansen Brandon Warrington Roxana Cortes Reyes Kelli M. Hauptman Jamaica Young, Paralegal Anna D. Deal April I.Kirkendall Caitlin J. Ellis Jane F. Langan Mach Amanda J. Fray Alex M. Lierz Jennifer L. Gaughan Kasey D. Ogle Marian G. Heaney Brianna Poppert, Law Student Denise A. Hill Noah Rasmussen, Law Student Isabella Hunt, Law Student Shelby Rowan, Law Student Callie Kanthack, Law Student Allison Seiler, Paralegal Steven J. Lefler Brittany Shultz, Law Student Peng Li Nichole Sklare, Law Student Cristina Lopez, Paralegal Gail Steen Brooke Lowis, Paralegal Ryan P. Sullivan Catherine M. Mahern Alex Sycher, Law Student Patrick Patino Lauren Ziegenbein, Law Student Eileen E. Reilly Megan M. Zobel Tatiana Shaefer, Paralegal Jamel Walker, Law Student Kenneth M. Wentz III Jamaica Young, Paralegal

THE NEBRASKA LAWYER 65 JANUARY/FEBRUARY 2020 Volunteer Lawyers Project Pro Bono Partners The following Creighton University School of Law and the University of Nebraska Law College students provided free legal assistance for low income individuals in 2019. We are grateful for students’ commitment to improving access to justice through contributions to law-related pro bono services. Creighton University School of Law Allison Adachi Alexandra Fleming Katelyn Lawrence Kali Roundy Sapphire Andersen Bethany Foster Nicholas Le Helen Russell Adeline Baker Jose Galvan Kristin Lindgren Amber Schlote John Bergstresser Anthony Galvvez Kaitlin Logan Wimmer Mark Shimizu Abigale Brohard Jessica Gilgor Jeffrey Lyons John Sigmon Maggie Brokaw Kenneth Glodo III Daniel McDowell Justice Simanek Lauren Camp Francisco Gomez-Mancillas Hattie Miller Regina Smith Montana Crow Emily Grude Nick Mizaur Miriam Tucker Katie Davis Eric Hagen Ashley Palma Jamel Walker Kathryn Delmonico Stephen Hueber Amanda Palmer Patrick Wier Katherine Devney Callie Kanthack Ellen Prochaska Nicole Wilson Edward Diaz Nathan Kinport Candace Roach Kristyn Wong John Farrell John Landrie Sammantha Robb Christopher Felts Juliann Lauphier-Wilson Savannah Robertson

University of Nebraska College of Law Kelsey Arends Christopher Giitter Maureen Larsen Mauricio Murga Rios Dylan Bakken Stewart Kane Guderian Eric Leise Shelby Rowan Arielle Bloemer Melani Hagge Tessa Lengeling Sami Schmit Janell Bock James Hannon Beth Levine Shannon Seim Therese Bohaty Elise Harris Abigayle Lindgren David Shea Shannon Bond Payton Harris Samantha Lowery Arpi Siyahian Andrew Broadfoot Megan Heinzinger Michaela Lutz Nichole Costanzo Sklare Burke Brown III Brianne Hellstrom Daniel Martin Jackson Slechta Brett Bruneteau Paul Henderson Nicholas McGrath Rachael Snyder Angela Choe Deanna Hobbs Tyler McKeone Caroline Sojka Taylor Christopher Jordan Hohwieler Brett McNea Matt Soltys Coy Clark Madison Huber Claire Monroe BriAnn Straub Carey Collingham Damon Hudson Tyson Moodie Alexander Sycher Graham Conlon Andy Huynh Gabriela Navarro Cady Troester Paloma Contreras Nicole Iraola Lauren Nichols Andrew Vinton Ryan Coufal Cierra Jackman Erin Olsen Amanda Wall Katie Curtiss Brig Jensen Adam Onken Vincent Ware Brianna Duda Nick Khihnisky Jackson Osborn Adam Werner Addison Fairchild Nathan Klein Brian Paden Jared West Melissa Figueroa Hunter Knight Deanna Piña Leigha Wichelt Becca Fischer Adam Kost Jordan Pitcher Anne Wurth Thomas Gage Abby Kuntz Joseph Price Lauren Ziegenbein Ellen Geisler Rachel Kunz Sam Raybine

THE NEBRASKA LAWYER 66 JANUARY/FEBRUARY 2020 THE NEBRASKA LAWYER 67 JANUARY/FEBRUARY 2020 nsba section connection

A big thank you to this year’s new Section Chairs. Their hard work and dedication to advancing the legal profession is appreciated. We look forward to all the great events the Sections will host this year! Thank You!

James R. Nygren Amy L. Van Horne Hon. Riko E. Bishop Cathy S. Trent-Vilim Alexis L. Davidson Farm Credit Services of Kutak Rock LLP Nebraska Court of Appeals Lamson Dugan & Murray Goodwin Siegfried, LLP America LLP Agricultural Law Alternative Dispute Appellate Practice Appellate Practice Bank Attorneys Resolution

Nicholas A. Buda Bradley D. Holbrook Lindsay K. Lundholm Scott P. Moore Joan Watke Baird Holm LLP Jacobsen, Orr, Lindstrom & Baird Holm LLP Baird Holm LLP Watke, Polk & Sena, LLP Holbrook PC, LLO Bankruptcy Business Law Corporate Counsel Diversity Diversity

Rachel A. Truhlsen Kathryn D. Putnam Krista M. Eckhoff Leah J. Gleason Nichole U. Mulcahy Rachel A. Truhlsen Law Astley Putnam, PC, LLO Baird Holm LLP Fye Law Office Nebraska Public Service Office, PC, LLO Commission Elder Law Family Law Federal Law General Practice Government & Administrative Practice

THE NEBRASKA LAWYER 68 JANUARY/FEBRUARY 2020 SECTION CONNECTION

Richard D. Vroman Mindy Rush Chipman Lisa M. DeCora Cheryl L. Horst Amanda M. Speichert Koley Jessen PC, LLO City of Lincoln Commission Big Fire Law & Policy NUtech Ventures Lindemeier Law Office on Human Rights Group LLP Health Law Immigration Law Indian Law Intellectual Property Juvenile Law

Pamela J. Bourne Susan Reff Jamie C. Hermanson Stephani M. Bennett Benjamin E. Busboom Woods Aitken LLP Hightower Reff Law LLC Hermanson Law & Berry Law Firm Baird Holm LLP Mediation Labor Relations and Law Practice Limited Scope Military & Natural Resources & Employment Law Management Representation Veterans Law Environmental Law

Kenneth M. Smith Kara E. Brostrom Justin M. Yates William L. Biggs Jeffery R. Schaffart Nebraska Appleseed Center Ball, Loudon, Ebert, & Orion Advisor Solutions, Gross & Welch, PC, LLO Koley Jessen PC, LLO Brostrom, LLC LLC Public Interest Law Real Estate, Probate Securities Law Senior Lawyers Taxation & Trust Law

Erin E. Wetzel Brody J. Ockander Christin P. Lovegrove If you’re interested in any of the NSBA Hightower Reff Law LLC Shasteen & Morris, Heinisch & Lovegrove Law Sections or have questions, please contact PC LLO Office, PC LLO NSBA Section Facilitator Jennifer Hiatt Women and the Law Workers’ Young Lawyers at 402-475-7091 or [email protected]. Compensation

THE NEBRASKA LAWYER 69 JANUARY/FEBRUARY 2020 practice manual promo

From Nebraska Title Standards (2019). This edition is updated to reflect the current statutes and practices for the examination of title to real property. For example: 1.6 ANCIENT ACKNOWLEDGMENTS – INSTRUMENTS RECORDED 10 YEARS With respect to any instrument recorded for 10 years or more, it shall not be necessary for an abstract to show or make any reference concerning the acknowledgment. It is not negligence for a title examiner to refrain from showing defects, irregularities, and omissions in an acknowledgment of an instrument recorded 10 years or more. COMMENT: Neb. Rev. Stat. §§ 76-257, 76-258, and 76-259. It is not to be inferred from the standard that an abstract is to show all acknowledgments on instruments recorded within the current 10-year period. An abstracter may make a specific showing or may, in the abstracter’s certificate, make a general showing regarding acknowledgments. The abstracter may state in the certificate: “All acknowledgments of instruments of record are in approved form unless otherwise shown.” Approved October 19, 1995 Reapproved October 10, 2019

Family Law Practice Manual (2019) NSBA Publications The new manual covers a wide range of topics, including extensive con- See the NSBA Store for more details, tables of contents, tent on divorce. or to order online: www.nebar.com/store Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (print copy) 2016 Appellate Practice Handbook The Appellate Practice Handbook includes: civil and criminal appeals Nebraska Criminal Offense Penalties List generally, motion practice in the Nebraska Supreme Court and Court of This list is created by University of Nebraska Law Professor Steven J. Appeals, and special appeals topics. Schmidt and includes: felony penalties, sentencing enhancement, and Voluntary Dues-Paying Member Discounted Price: more misdemeanor and infraction penalties. $95 (electronic) $110 (print copy) Voluntary Dues-Paying Member Discounted Price: FREE (electronic) $12 (laminated copy) 2016 Nebraska Civil Practice & Procedure Manual The Civil Practice and Procedure Manual covers all aspects of civil prac- Nebraska Evidence Handbook tice from case analysis through appeals. The Nebraska Evidence Handbook includes the Nebraska Evidence Voluntary Dues-Paying Member Discounted Price: Rules with cases that apply and/or interpret the rules. (Cases updated $95 (electronic) $110 (print copy) through June 2019) Voluntary Dues-Paying Member Discounted Price: 2017 Nebraska Real Estate Practice Manual $40 (electronic) $60 (print copy) The Nebraska Real Estate Practice Manual, commonly called the Red Book, includes detailed discussions on buying, financing, leasing, and Nebraska Statutes of Limitations Reference (2019) selling real estate and primers on many special topics. This reference collects the thousands of limitations in the Nebraska Re- Voluntary Dues-Paying Member Discounted Price: vised Statutes. $285 (electronic) $345 (print copy) Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy) 2018 Nebraska Probate Manual Planning for Your Unexpected Absence, Disability or This manual covers the probate process from the initial engagement through the final distribution and estate closing. Death This manual outlines how to protect clients, practice and a lawyer’s family Voluntary Dues-Paying Member Discounted Price: in the event of a lawyer’s unexpected absence, disability or death. In- $190 (electronic) $230 (print copy) cluded is a detailed discussion of file closing, retention and destruction. Closing A Practice $25 (electronic) $35 (print copy) This manual addresses process steps and considerations, including ethical issues, for a lawyer voluntarily closing a practice. Understanding Adoption Procedures in Nebraska This manual includes detailed instructions and forms for every aspect of $25 (electronic) $35 (print copy) adoption practice. Nebraska Title Standards (2019) Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy) $95 (electronic) $110 (print copy)

THE NEBRASKA LAWYER 70 JANUARY/FEBRUARY 2020 Upcoming CLE Programs

January 23 March 6 April 17 Drug Court 101 2020 Annual Estate Planning and Lawyers as Whistleblowers Syracuse Country Club Probate Seminar Embassy Suites, La Vista Live only Embassy Suites, La Vista May 1 3 CLE hours March 13 2020 Family Law Seminar February 21 YLS Best Practices Seminar Embassy Suites, La Vista Rural Practice Initiative CLE Creigton University School of Law, Prairie Arts Center, North Platte Omaha New seminars are added to this list Live only March 27 weekly. Visit the NSBA Calendar at February 26 Ethics CLE with Judge Doyle www.nebar.com for the most up-to-date Pregnancy Accommodations Lexington listing of seminars being offered. Webcast

THE NEBRASKA LAWYER 71 JANUARY/FEBRUARY 2020 Cameron Arch Robert B. Creager Carole Levitt Blue Cross Blue Shield of Nebraska Anderson, Creager and Wittstruck, PC, LLO Internet for Lawyers Laura Arp Catherine Demes Maydew Sue Loerts Nebraska Department of Insurance CDMCPA Consultant Jackson Lewis P.C. Chris Aupperle Grayson Derrick David Miers, PhD, LIPC Nebraska Lawyers Assistance Program Baird Holm LLP Bryan Medical Center Dr. Sunil Bansal, MD Leondra A. Dodd-Arnold Michelle Muirhead Judy Barbe, MS, RDN, LD United States Department of Labor Physicians Mutual Employee Benefits Security Administration Christopher Bedient Pamela Olsen HBE Wealth Management LLC Britt Ehlers Cline Williams Wright Johnson & Oldfather, Arbor Day Foundation LLP Sheila A. Bentzen Rembolt Ludtke LLP Tim Engler Joel Oster Rembolt Ludtke LLP Comedian of Law Hon. Dirk V. Block Nebraska Workers' Compensation Court Hon. J. Michael Fitzgerald Jaydon Pence Nebraska Workers' Compensation Court Rembolt Ludtke LLP Jonathan R. Breuning Baird Holm LLP Caitlyn Francois Prof. Harvey Perlman Medica University of Nebraska College of Law Eric Brown Atwood, Holsten, Brown, Deaver & Spier, Matthew Garlinghouse, PhD Paul Prentiss P.C., L.L.O. UNMC Prentiss Grant LLC Steve Clausen AriAnna Goldstein Peggy Reisher, MSW Aon Baird Holm LLP Brain Injury Alliance Dennis W. Collins Tom Green John T. Rogers Jewell & Collins Nebraska Legislature Volunteer Lawyers Project, NSBA Russ Collins Nancy Harms Mark Rosch Blue Cross Blue Shield of Nebraska Nebraska State Bar Association Internet for Lawyers Laurel Heer Dale William G. Schiffbauer Volunteer Lawyers Project, NSBA Schiffbauer Law Office Justin High Shannon Seim High & Younes, LLC Volunteer Lawyers Project, NSBA Anne Hindery Michelle Sitorius Nonprofit Association of the Midlands Cline Williams Wright Johnson & Oldfather, (NAM) LLP Hon. John R. Hoffert Meghan Stoppel Nebraska Workers' Compensation Court Nebraska Attorney General’s Office Edward Hoffman Joyful Stoves Concordia University NDHHS-Division of Developmental CLE Faculty Tim Hruza Disabilities November - December 2019 Mueller Robak LLC Martin Swanson Jennifer A. Huxoll Nebraska Department of Insurance Nebraska Attorney General’s Office Hon. Thomas E. Stine Dallas Jones Nebraska Workers' Compensation Court Baylor Evnen, LLP Kiley Wiechman Dan Klaus HBE LLP THANK YOU! Rembolt Ludtke LLP Our appreciation for volunteering your time Molly Kocialski and expertise to NSBA's CLE programs. Rocky Mountain Regional United States Patent and Trademark Office Marty E. Latz Latz Negotiation Institute transitions To submit a career change and/or relocation to the Transitions section of The Nebraska Lawyer, email your announcement to Allyson Felt, Editor, [email protected]. Career Changes...... and Relocations

ERICKSON | SEDERSTROM is pleased to CROSBY GUENZEL LLP is pleased to announce that BLAKE SCHNEIDERWIND announce the addition of JAY LINTON as an has joined the Firm as an associate represent- attorney of the firm. Linton joined the firm ing primarily corporate clients in all aspects as a law clerk in 2018 and received his J.D. of business, from formation and start-up to from the University of Nebraska College of mergers and acquisitions, and general counsel Law. Linton’s practice will focus on com- matters. Blake also aids clients in the health mercial law, civil litigation, entity formation Blake Jay Linton Schneiderwind care field in the areas of licensure disputes, and governance, cooperative law, creditor’s health care compliance, and data privacy rights, and wills and probate. Linton is a native of Dalton, and security. Blake graduated magna cum laude in 2019 from NE, and resides in Lincoln with his wife, Nicole. Creighton University School of Law. While at Creighton, he was Jeana Goosmann, CEO & Managing Partner a member of Creighton’s International Trademark Association of the GOOSMANN LAW FIRM, is pleased Moot Court Team. He received the Cali Excellence for the to announce that PATRICK MCNAMARA Future Award for Business Associations, Business Planning, has joined the law firm at their Omaha loca- Health Care Organizations, and HIPAA Privacy and Security. tion. As a business and estate planning attor- ENDACOTT PEETZ AND TIMMER is announcing the addi- ney, McNamara works with his clients to tion of ADAM KAUFFMAN and ELIZABETH WORKENTINE anticipate issues before they arise and imple- Patrick to the law firm. ment efficient plans to help them progress McNamara and grow. McNamara has over 10 years of Kauffman, a native of Gretna, graduated experience and has helped dozens of clients form new busi- from the University of Nebraska College of nesses – helping to guide them through entity formation, busi- Law in 2017, where he served as research edi- ness planning, financing, hiring employees, obtaining commer- tor for the Nebraska Law Review. While in cial space, marketing, and more. His areas of practice include law school, Adam clerked for the Nebraska business advising, contracts, estate planning, employment, and Department of Justice’s Consumer Protection commercial/breach of contract litigation. McNamara received Division as the Janet D. Steiger Fellow. Adam Kauffman his Juris Doctor from Touro College Jacob D. Fuchsberg From 2017-2019 he served as a judicial clerk Law Center in Central Islip, New York, and his Bachelor of to Chief Judge Frankie J. Moore on the Nebraska Court of Arts in Political Science at Catholic University of America in Appeals. He will practice in the areas of estate and trust litiga- Washington DC. tion and resolution, commercial litigation and employment law. ELLISON, KOVARIK, AND TURMAN LAW Workentine, a native of Geneva, gradu- FIRM is pleased to announce the addition ated with distinction from the University of of NATHAN KINPORT as an Associate. Nebraska College of Law in 2019 and will Nathan will be working at the Gering and practice in the areas of estate and trust plan- Kimball office. Nathan received his J.D. from ning, banking, business and succession plan- Creighton University School of Law and ning and real estate. In law school, Elizabeth his B.S. in Criminal Justice from Chadron earned the CALI Excellence for the Future Nathan Kinport Elizabeth State College. Nathan was a member of Award® in farm and ranch tax and in part- Workentine Inns of Court, Creighton Moot Court Board, and Creighton nership tax. The CALI award is given International and Comparative Law Journal while attending to the highest scoring student in the class. Elizabeth joined Creighton. His area of practice is Civil Litigation includ- Endacott Peetz & Timmer in 2018 as a law clerk and became ing Personal Injury, Worker’s Compensation, Family Law, an Associate in 2019. Business Planning, and Commercial Law.  THE NEBRASKA LAWYER 73 JANUARY/FEBRUARY 2020 TRANSITIONS

FRIEDMAN LAW OFFICES, P.C., L.L.O HUSCH BLACKWELL is pleased to welcome JENNIFER is pleased to announce MEAGHAN A. ATWOOD, DAVID LOPEZ and BRANDON WARRINGTON GERAGHTY joined the firm this fall, mov- as associates in its Omaha office. ing back from practicing law in Bozeman, Atwood, a commercial litigator, assists cli- Montana. Ms. Geraghty received her ents and legal teams with pretrial matters of Bachelor of Arts in English Literature and due diligence and discovery. She obtained her Political Science, cum laude, from Bowling Meaghan A. J. D. with distinction from the University of Green State University. Upon graduation she Geraghty Nebraska College of Law and her B.A. from was awarded a U.S. Fulbright Fellowship to University of Miami, and served a clerk- Hong Kong. Following her return, she worked as a case manager ship under The Hon. Cheryl R. Zwart, U.S. for the mental health community. This experience prompted Jennifer Atwood District Court, District of Nebraska. her to become a Registered Nurse, graduating from Kent State University. Upon graduation she worked at the bedside for sev- Lopez, a member of the firm’s Real Estate, eral years, caring for diverse patient populations. Ms. Geraghty’s Development & Construction group, comes passion for advocacy led her to obtain her Juris Doctor from the to the firm after serving as Nebraska’s assis- University of Nebraska College of Law. While at Nebraska Law, tant attorney general and deputy solici- she was a member of the trial team, chosen as a member of the tor general. He maintains a robust appel- Order of the Barristers, and awarded the Pat Gies Memorial late practice, counseling clients through Award and Clinical Legal Educators Outstanding Clinical all stages of appeals including briefing and David Lopez Student Award. She also received CALI awards for public oral argument. In addition to the firm’s health law and Civil Clinic. Ms. Geraghty maintains her nursing Appellate practice, he is also a member of the Environmental, license and is a member of the American Nurses Association, the Government Compliance, Investigations & Litigation, American Association for Justice, and Nebraska Association of Government Solutions, Litigation and Public Law practices. Trial Attorneys. Her practice focuses on medical malpractice and He earned his J.D. from University of Nebraska College of negligence, personal injury, birth injury, wrongful death, nursing Law and his B.A. from University of Nebraska – Omaha. home abuse, civil rights litigation, and catastrophic injuries. Warrington is member of the firm’s KOENIG|DUNNE welcomes attorney KATIE Corporate, Mergers & Acquisitions, VOGEL to our family law practice. Before Securities & Corporate Governance and joining Koenig|Dunne, Katie practiced in the Startups teams. He assists clients rang- areas of probate and estate planning. Katie is ing from emerging-growth companies and active in the Nebraska State Bar Association startups to established national and interna- and is past chair of the Women and the Law tional corporations with a variety of due dili- Brandon section, and is currently the secretary for the gence provisions and commercial contracts. Katie Vogel Warrington Real Estate, Trust and Probate section. He earned his J.D. magna cum laude from University of Michigan Law School and his B.A. summa cum WALENTINE O’TOOLE, LLP is pleased to laude from Creighton University. announce that BRAD C.S. ENTWISTLE has HIGHTOWER REFF LAW joined the firm as an associate in its commer- is pleased to wel- KELSEY DEABLER cial litigation practice group. Brad holds a come to the team as asso- J.D. from the University of Iowa and received ciate attorney. Kelsey attended the University his undergraduate degree, magna cum laude, of Nebraska College of Law. Kelsey’s pursuit from Gustavus Adolphus College. Prior to of making the legal system more accessible to Brad C.S. all clients led her to a position as a staff attor- Entwistle joining Walentine O’Toole, Brad served as a law clerk in Iowa Judicial District 1B in ney with Iowa Legal Aid. Kelsey’s primary Kelsey Deabler Waterloo, Iowa. He is admitted to practice in both Nebraska practice has always been in family law, but and Iowa. while at Legal Aid, she assisted crime victims with a variety of legal issues including landlord/tenant and disability law. While in law school, Kelsey participated in moot court competitions and the school’s trial team. At graduation, Kelsey was awarded membership in the Order of the Barristers for her oral advocacy achievement.

THE NEBRASKA LAWYER 74 JANUARY/FEBRUARY 2020 AWARDS AND RECOGNITION

Awards and Recognition advocate for the groundwater industry. He was instrumental in the formation of NGWA’s Government Affairs Committee LEE ORTON, J.D., President of ORTON MANAGEMENT ASSOCIATION as well as organizing the first Washington, D.C. Fly-In which i n allowed NGWA members to directly lobby their lawmak- Lincoln, received the ROSS L. OLIVER AWARD ers. Orton remains one of NGWA’s strongest advocates in from the National Ground Water state and federal government affairs. Orton also received the Association (NGWA). The Ross L. Oliver Maurice Kremer Groundwater Achievement Award from the Award is NGWA’s most prestigious award Groundwater Foundation in 2011. and is presented to those who have made Lee Orton outstanding contributions to the ground- Former United States Attorney for DEBORAH R. GILG water industry. After graduating law school, Orton began his Nebraska , was elected career in the natural resources and groundwater industry by to the national board of directors for the NATIONAL ASSOCIATION OF FORMER developing the State Water Plan of Nebraska in 1969. Shortly UNITED STATES ATTORNEYS after, he became the first Executive Director of the Nebraska at the annu- Association of Resources Districts (NARD) where he success- al meeting held in San Francisco, California in September. The National Association of fully managed the merging of 153 local government groups Deborah R. Gilg into 24 natural resource districts. After a decade with NARD, Former United States Attorneys was estab- Orton began his private law practice where he played a piv- lished in 1979 for the purpose of promoting, defending and otal role in Nebraska's well drilling industry. Working with the preserving the litigating authority and independence of the Nebraska Well Drillers Association, Orton would draft and office of the United States Attorney. Approximately 400 for- help pass a new law through the Nebraska Legislature which mer U.S. Attorneys are members of the association, with the created a well professional’s license and a state level govern- more notable members including Robert Mueller and Rudy ing board to oversee the licensing process. Orton would go on Giuliani. Gilg has also joined the adjunct faculty of the Sandra to become the first Executive Director of the Nebraska Well Day O’Connor College of Law at Arizona State University Drillers Association where he would be hired by the state gov- in Phoenix, Arizona. The ASU Law College is ranked 27th ernment to draft new rules and regulations of well drilling licen- nationally by U.S. News and Reports. She will teach Trial sure. Orton has long proved to be an invaluable resource and Advocacy courses.

2020 NSBA Election Notices

Nominations for NSBA President-Elect Designate The nominee for President-Elect Designate for 2022-2023 will be selected from the members who reside in Douglas or Sarpy counties. If you are interested in serving, please send your name and a short statement of interest (300 words) to Liz Neeley, NSBA Executive Director, at [email protected], no later than April 3, 2020. The Executive Council will meet in April to nominate one individual for the position of President-Elect Designate. When the nominee has been selected by the Executive Council, an announcement will be disseminated to all active members of the NSBA. Any member from the designated counties may submit a petition (signed by 25 active bar members) to run against the nominee of the Executive Council. If no petition is filed within 30 days of the announcement of the nominee, he or she is declared as President- Elect Designate for 2022-2023. If a petition is filed, electronic ballots will be sent. This is a four-year term. The President-Elect Designate automatically succeeds to the position of President-elect, and then President. They then serve on the Executive Council for a year as Past President. NSBA Executive Council- 5th and 6th Districts Notifications and petitions will be sent to the 5th and 6th Supreme Court Districts on April 27, 2020 for the Executive Council vacancies. The deadline for returning a petition will be June 1, 2020. Executive Council terms are four years. Electronic Elections In October of 2016, the NSBA’s House of Delegates amended the NSBA By-Laws to allow for electronic elections. The 2020 elections for President-Elect Designate and Executive Council will be conducted electronically. Electronic ballots will be disseminated on July 1, 2020.

THE NEBRASKA LAWYER 75 JANUARY/FEBRUARY 2020 5th Annual

Proceeds benefit the Nebraska Lawyers Foundation

Co-Sponsored by: March 13, 2020 Real Estate, Probate & Trust Law Section Cunningham’s Pub and Grill Senior Lawyers Section 10904 W Dodge Rd., Omaha Young Lawyers Section 6:00 pm - 8:00 pm Appetizers & cocktails provided.

Firm/Company Name:______Number of team members (*maximum of 6 members per team): ______1. Team Captain:______4. ______2. ______5. ______3. ______6. ______Team Captain’s Phone:______Team Captain’s Email:______I can not attend but would like to make a donation to The Nebraska Lawyers Foundation: $______Check enclosed OR Charge to _____ MasterCard ______Visa ______Discover ______AMEX Amount enclosed or to be charged ($50 per team member): $______Card number: ______Card Expiration (Mo/Yr):______CVV Code:______Name as it appears on credit card: ______Credit card billing address: ______City: ______State: ______Zip: ______Signature: ______Make checks payable to Nebraska Lawyers Foundation. Return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or Sam Clinch at [email protected]. in memoriam

FRANK J. BARRETT, 87, was born March and the Merryman Performing Arts Center Board of Directors. 2, 1932, and passed away on Oct. 13, 2019. Larry enjoyed spending time with his family. He was an early He is survived by children, Patrick J. Barrett riser and loved making breakfast for his family when everyone (Laurie), Mary K. Barrett, Anne E. Steiner was back home. He also loved to play cards and five-point (Dwight), Karen A. Jeffrey (Phillip), Thomas pitch was a regular game he and his family would play. Larry S. Barrett (Sally); grandchildren, Elisabeth was great in the kitchen and was always finding new recipes Barrett, Benjamin Barrett, John Barrett, to try. Larry helped people. He helped his clients, he helped Frank J. Barrett Molly Steiner, Maren Steiner, Jack Jeffrey, his friends and he helped his family. Surviving relatives include Stella Barrett, Ruthanne Barrett, and Elsa Francis Barrett; his wife, Barbara of Kearney; sons, Andrew of Grand Island special friend, Jan Grisinger. and Robert of Kearney; sisters, Barbara Bly of Arkansas, Linda (Delbert) Gooder of Kearney. Sister-in-law, Carol (John) LARRY E. BUTLER, 69, of Kearney, passed Knorr of Hickman, Nebraska. The beloved pets in his life Lola away December 2, 2019, in Las Vegas, NV. and Hamilton. As well as nieces, nephews, extended family and Larry was born on June 18, 1950 in Kearney, friends. Larry was preceded in death by his parents; parents-in- NE to James R. and Mildred L. (Sorensen) law, Ray and Sarah Falconer; nephew, Jimmy Carrico. Larry is Butler. He attended Kearney High School a special person and will be missed. and graduated with the class of 1968. Larry then attended Kearney State College, gradu- DAVID BENGTSON DOWNING, 90, passed Larry E. Butler ating in 1973, and later Creighton University peacefully on November 19, 2019 surrounded School of Law, graduating in 1977. He was united in marriage by his kids at the Country House in Lincoln. to Barbara L. Falconer on June 7, 1982 in Tahoe. Larry was a Downing lived a full life practicing law in lifelong resident of Kearney. He was very active in the com- Superior, Nebraska, from 1959-2014. He munity and enjoyed seeing the city grow. Larry was a practic- was the only attorney to serve as president of ing attorney in Kearney and recently slowed down his practice all three state legal organizations: Nebraska and became of counsel at the Tye & Rowling Law Firm. Larry David B. Association of Trial Attorneys, 1973-74; Downing practiced in Kearney for 40 plus years with the majority of time Nebraska State Bar Association, 1987-88; and with the law firm of Butler, Voigt & Stewart. He was a mem- the Nebraska Criminal Defense Attorneys Association, 1992- ber of the Buffalo County Bar Association serving as president 93. His president’s newsletters usually focused on his hunting from 1989 to 1990, the Nebraska State Bar Association, and a and fishing adventures rather than arcane association business. member of the Nebraska State Bar Association Member Dues And for that they were memorable and much appreciated by Grievance Committee. He also previously served on the House his constituents. Downing was a trial lawyer. He loved the of Delegates for the 9th Judicial District and was a former courtroom and thrived in the adversarial climate. He practiced member of the Committee on Inquiry for the Supreme Court of civil and criminal law. He defended clients as a court-appointed Nebraska 6th District. Larry was involved with numerous orga- attorney, including a few murder cases. He was a strong believer nizations across Kearney. He attended Sertoma regularly. He in the U.S. Constitution, civil liberties, and the right to a fair served on many different boards of directors for the last thirty trial. He was paid whatever clients could afford, including in- plus years for Good Samaritan Health Systems and Catholic kind contributions of lawn mowing, babysitting, cleaning and Health Initiative (CHI). He previously served on the Boards of home repairs. At his retirement party in 2014, district court Directors for Good Samaritan Health Systems, CHI-Nebraska, judge Vicki Johnson said it was her fervent wish that every Richard H. Young Hospital, Buffalo County Community attorney who appeared before her exhibited the same decorum, Health Partners, and Sentinel Health Care. Larry has also been dignity and knowledge of the law which Mr. Downing displayed involved in the Kearney baseball scene previously serving on the when he was in the courtroom. Orville Coady, retired district board of directors for Kearney Little League and the Kearney court judge, noted that under Downing’s dignified demeanor Knights Legion Baseball Program. Larry was also involved with was a razor sharp mind and a steel sense of determination. the Buffalo County Agricultural Association for 40 years. Most Downing appreciated the outdoor recreation available around recent, Larry was serving on the CHI Health Regional Board Superior. Ten years ago he told a reporter, “I’m lucky to have of Directors, the Kearney Catholic High School Foundation the life I’ve had, in this town with all my friends. I can hunt Board of Directors, Town & Country Bank Board of Directors, and fish five minutes from my front door.” At the University of Five Points Bank Board of Directors, the University of Nebraska Nebraska-Lincoln, Downing met and fell head over heels for at Kearney University Village Development Corporation, the Nancy Louise Jensen of Fremont, who dropped out to put him Community Redevelopment Authority of the City of Kearney  THE NEBRASKA LAWYER 77 JANUARY/FEBRUARY 2020 IN MEMORIAM

through school. They married in 1951. He graduated UNL MARTIN GARDNER, 75, of Lincoln, died College of Law in 1953 and entered the Army from ROTC, November 27, 2019, in Lincoln, following a serving in the Judge Advocate General’s (JAG) corps at the brief illness. He was surrounded by friends United States Army disciplinary barracks at Ft. Leavenworth. and family. Born in Salt Lake City, Utah, Upon his separation from the Army in 1956, he practiced in Marty was a retired member of the Utah and Denver. In 1959 he moved his family home to Superior to Nebraska National Guard Bands with twen- join his father Robert forming the Downing & Downing law ty years of service on clarinet. He attended Martin Gardner firm. In 1981, he partnered with Randall Alexander to form the University of Utah, receiving his BS in Downing and Alexander. Practicing for more than 60 years, 1969 and his JD in 1972, where he was editor for the Utah Downing served as a mentor and inspiration to generations of Law Review. He was an Instructor at the Indiana University Nebraska attorneys. His one foray into seeking public office was School of Law 1972-73, and on the faculty of the University unsuccessful when he was the Democratic nominee for attorney of Alabama School of Law from 1973-77. During the 1975- general in 1964. Campaigning with Governor Frank Morrison, 76 academic year Marty was a Fellow of Law at Harvard he was advertised as a vigorous, able young candidate. Hoping University. Marty joined the faculty at the University of to ride the coattails of LBJ, the last Democrat to win the presi- Nebraska College of Law in 1977 as an Assistant Professor of dential vote in Nebraska, he lost to the Republican incumbent Law, becoming an Associate Professor in 1978 and Professor in 92 counties, but won his home Nuckolls County. One of his in 1980. While at Nebraska he taught Family Law, Juvenile proudest accomplishments did not take place in a courtroom but Law, Criminal Law and Criminal Procedure. In 1987 he was rather in the fields near Broken Bow. In 1971, then Governor JJ named the Steinhart Foundation Professor of Law and in 2002 Exon invited Downing to be his guest at the Nebraska one box the Cline Williams-Flavel A. Wright Professor of Law. His pheasant hunt. The Nebraska team roster was full, but Exon, time at UNL and Alabama resulted in the publication of many in a gesture of altruistic generosity, offered Downing to the articles and books, including; Understanding Juvenile Law, Oklahoma team which was short a hunter. Downing proceeded which is in its 5th edition. Marty also taught Family Law at to lead the Oklahoma team to victory which earned him an hon- Downing College, Cambridge University, UK in 2006 and orary colonelcy in the Oklahoma Governor’s Office. Governor 2013. Marty cherished his family and his students. He loved Exon quipped, “The Oklahoma victory was all arranged ahead the music of Ralph Vaughn Williams, Edward Elgar, Gustav of time for Oklahoma to win. We even gave them a hunter par Mahler, and the Bach B minor Mass. He was a fan of golf excellence in David Downing. Hopefully, Oklahoma will be as and Husker football and basketball. An active member of the kind to us when we see them on Thanksgiving Day.” Of course, Church of Jesus of Latter-day Saints, he was an avid reader Nebraska went on to defeat Oklahoma in the game of the cen- of church history and the Holy scriptures. He attended every tury the following week. [Thanks to reporter Marty Pohlman event or game of his grandchildren. He loved attending the and publisher Bill Blauvelt of The Superior Express for per- Winter Quarters Temple with his wife and eternal companion, mission to borrow from their 2014 feature story.] He was pre- Anne. He is survived by his wife, Anne Sheedy; children, Joshua ceded in death by wife, Nancy (1929-1999). Survivors include (Paula) Gardner, Erin Gardner, Bryn Gardner (Miles Kos), children, Dave Jr. (Candy), Brooke Downing (former husband Lynsey (Alex) Stewart, Jacob Gardner, stepson Max Yeston; John Lehman), Jeff (Diane), Lincoln; Tim (Pam), Yankton; sisters, Janice Ruth Tabish and Sharon Gardner Howes; his grandchildren, Maggie Brokaw (Jeff), Bellevue; Kelsey Birchley nine grandchildren and former spouse, Jane Murdoch. Marty (Karl) and great-granddaughter Isla Mae; Spencer, Hudson and is preceded in death by his parents, Ralph and Elaine Gardner. Gracie Downing, Lincoln; Knox Downing, Omaha; Hannah HUGH L. KENNY, 71, passed away October 3, 2019 at Poudre Carda (Tyler) and great-grandson Beck, Yankton; long-time Valley Hospital in Fort Collins. He was born Feb. 18, 1948, companion and caregiver Roslyn Aden, Superior. in Chicago. Hugh had a distinguished law career, was a life- WILLIAM J. DUNN, passed away September long motorcycle enthusiast, avid hunter and a devoted hus- 29, 2019. Preceded in death by parents, band, father and grandfather. He served his country in the William and Lucy Dunn; and brother, James U.S. Marine Corps Reserve during the Vietnam era. Hugh Dunn. Survived by wife, Jane Dunn; children, worked his way through Creighton Law School as a motor- Steven Dunn, Patrick Dunn, Terri (Casey) cycle mechanic. After graduation, Hugh began his career in Latta, Daniel (Emily) Dunn, and Martha Scottsbluff, Neb., where he was the elected public defender. (Marc) Wharton; grandchildren, Paige, Hugh accepted a position with the Wyoming Attorney General William J. Dunn Grace, William, Noah, Scarlett, Max, Maeve, in 1987, where he served in various capacities including con- Nora, and Bridget; great-grandchildren, Leio and Paisley; sis- sumer protection, tort litigation and insurance commission ter, Mary Stelloh; and numerous nieces and nephews. activities. He completed his professional career as a prosecuting

THE NEBRASKA LAWYER 78 JANUARY/FEBRUARY 2020 IN MEMORIAM

attorney with the Laramie County District Attorney’s Office, CLAUDINE K. THORNE, 52, of Lincoln, for- retiring in 2008. After retirement, Hugh volunteered his legal merly Nebraska City and North Platte, passed expertise assisting Legal Aid of Wyoming. Hugh was passion- away on November 2, 2019, at the Nebraska ate about motorcycles. Riding with his wife and best friend Medical Center in Omaha. She was born on of 50 years, Marilyn, his son, John, and friends brought him Oct. 5, 1967, in Nebraska City; the daughter immense joy. Memorable rides included Top O’ the Rockies of Claude Junior and Judith Katherine (Oelke) Rally, the White Rim Trail and the Pikes Peak Hill Climb. Thorne. She grew up and attended school in Claudine K. He once rode solo to the Arctic Circle, designing the gear he Nebraska City, graduating from Nebraska Thorne used to keep warm in the harsh conditions himself. Hugh was City High School with the class of 1985. proud of the commendation for marksmanship he received in She attended college at Nebraska Wesleyan and graduated in the Marine Corps. He used that skill and his knowledge of the 1989. She went on to the College of Law at the University local environment to become an incredibly successful hunter. of Nebraska - Lincoln, where she obtained her Juris Doctor And he ate what he shot. His antelope kebobs and smoked (JD) degree in 1992. She began her law career and practiced ribs were legendary among his family and friends. Hugh is sur- in Nebraska City from 1992 to 1997. Claudine then moved to vived by his wife and best friend of 50 years, Marilyn; daugh- North Platte, where she worked as the Deputy County Attorney ter, Bridget (Aaron Berthold); John (Charissa); grandchildren, from November of 1997 to December of 2018. She then moved Kaya, Hailey, Veda and Marley; and siblings, Daniel (Crazy to Lincoln, where she worked at the Department of Health Dog), Mary, Jack and Anne. and Human Services as an Administrative Appeals Officer. She was a member of the Nebraska State Bar Association. Those FRANCIS WETHERILL MERCER, 75, passed left to cherish her memory include her mom, Judy Thorne of away September 16, 2019. Better known as Nebraska City; sister Paula Penney and her son Marek Penney Mark, he died after a year long battle with of Gretna; brother Cyrus Thorne of Lincoln; aunts and uncles: cancer. He was born in Omaha in 1943 to Phil Oelke and wife Dorie of Lincoln, Rex Oelke and wife Samuel D. Mercer and Agnes (Mason) Clark, Janet of Unadilla, Ted Oelke and wife Diane of Unadilla, Mary who both preceded him in death. An artist Bossung and husband William of Weeping Water, Joyce Oelke and Omaha icon, Mark was highly regarded Francis W. of Nebraska City, Kevin Thorne and wife Sharon of Nebraska for his dedication to the development and Mercer City, and Roger Balfour of Nehawka; other family and friends. preservation of the Old Market as a cultural Claudine was preceded in death by her dad, Claude Thorne destination and neighborhood. He was very much beloved for and her brother-in-law, Mark Penney. his natural intellect and quiet demeanor. He is survived by Vera Mercer, his wife of 50 years; cousin, Nicholas Bonham Carter; The memory of your colleagues may be honored with a memorial to and a community of supporters, loved ones, artists and dear NSBA’s Nebraska Lawyers Foundation, 635 S 14th St. #200, Lincoln, NE 68508. old friends. GEORGE S. SELDERS JR. Note: If you hear of the death of a bar member, please feel free to contact passed away on September 20, 2019. The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. Your assistance is appreciated in sharing this important information with your colleagues.

THE NEBRASKA LAWYER 79 JANUARY/FEBRUARY 2020 classified ads

CITY ATTORNEY: The City of Grand Island, Nebraska, a ATTORNEY: Growing firm with offices in Lincoln and community of approximately 50,000 residents, is seeking a highly Omaha seeks lawyer(s) with transactional or litigation practice ethical leader and manager with proven successful experience in divergent from firm's established liability and workers' municipal law to serve as the next City Attorney. The City compensation practice. If interested, inquire confidentially to Attorney, plans, directs, and participates in the provision of Travis Spier at [email protected] or Eric Brown at complex professional legal services to the Mayor, City Council, [email protected] or call 402.476.4400. City Administrator, City departments and various boards and commissions. Must have a Juris Doctorate from an accredited law school and be admitted as a licensed attorney in Nebraska. NORTHERN PLAINS WEATHER SERVICES: Dr. Residency is required. Salary range: $106,460.85-$147,834.75 Matthew Bunkers of Northern Plains Weather Services is annually plus great benefits. a certified consulting meteorologist (CCM) and forensic meteorologist with over 25 years of weather analysis and Candidates are subject to a background check and post-offer/ forecasting experience. He can provide reports, depositions, pre-employment physical and drug screen. For more detailed and testimony in the areas of weather and forecasting, severe information and to apply visit www.grand-island.com/jobs. summer and winter storms, flooding, applied climatology and Position will remain open until filled. EEO/AAE/M/F/D/V/G. meteorology, agriculture meteorology, and statistics. More information is provided at http://npweather.com, and you can ESTATE PLANNING AND ADMINISTRATION contact Matt at [email protected] or 605.390.7243. PARALEGAL: Endacott, Peetz & Timmer PC has a position available for an estate planning and administration paralegal in its estate and trust practice group. Qualified candidates should possess skills in drafting estate planning documents, pleadings in estate and trust litigation, strong organizational and analytical NSBA CAREER CENTER Find a Job. Fill a Position. It’s that Easy. skills, experience in using legal data base software and ability to meet deadlines. Our paralegals have significant client contact and Many job seekers and employers are discovering the advantages of searching online for legal jobs and qualified candidates to fill them. applicants must have excellent verbal and written communication When it comes to making career connections in the legal industry, skills. Firm is willing to provide training if necessary for the right the mass market approach of the mega job boards may not be the candidate. best way to find what you need. The Nebraska State Bar Association created the NSBA Career Center to give legal employers and job Benefits include: seeking professionals a better way to find each other and make that perfect fit. Health insurance Dental and vision insurance Employer Benefits: • Targeted advertising exposure 401(k) with employer match • Easy online job listing management 2 weeks vacation, 1 week sick leave, 7 paid holidays annually • Resume search included with job posting • Automatic email notifications when job seekers Life and accidental death insurance match YOUR criteria For consideration, please submit resume with a cover letter. • Member discounts available https://careers.nebar.com/jobs/13154694/estate-planning-and- Job Seeker Benefits: administration-paralegal • Free and confidential resume postings • Automatic email notifications when new jobs match YOUR criteria • Save up to 100 jobs to a folder in your account • Upload up to 5 career-related documents • Access to our diverse suite of career resources

Visit us today to post your job or resume!

careers.nebar.com

THE NEBRASKA LAWYER 80 JANUARY/FEBRUARY 2020 OUR TRUSTED EXPERTISE WITHOUT BOUNDARIES

Offices in Nebraska and South Dakota

BridgesTrust.com

Trust services provided through Bridges Trust Company (Nebraska) and Bridges Trust Company of South Dakota.

BRI-2566_NebLawyerAd_v2.indd 1 11/26/19 3:16 PM Medical Malpractice Greg Garland has 40+ complete jury trials as plaintiff ’s lead counsel—from voir dire through submission— more than half of them medical malpractice trials for patients. From Scottsbluff to the Quad Cities, referring attorneys know that the jury trial experience of plaintiff ’s lead counsel matters; not only in court, but in settlement value. How many complete jury trials does your plaintiff ’s medmal lawyer have as lead counsel? (Second chair doesn’t count.) Why not ask them? You may be surprised at how few, if any.

Greg Garland Garland MedMal, LLC 14301 FNB Pkwy, Suite 100 Omaha, NE 68154 402-330-7000 GarlandMedMal.com American Board of Trial Attorneys (ABOTA) Admission requires independent vetting of 20 complete jury trials as lead counsel.