In re Application of McDonnell

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04/20/2018 08:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
In re A pplication of William M. McDonnell for
A dmission to the Nebraska State Bar.
___ N.W.2d ___
Filed March 9, 2018. No. S-17-668.
1. Rules of the Supreme Court: Attorneys at Law: Appeal and Error.
Under Neb. Ct. R. § 3-126 (rev. 2013), the Nebraska Supreme Court
considers the appeal of an applicant from a final ruling of the Nebraska
State Bar Commission de novo on the record made at the hearing before
the commission.
2. Rules of the Supreme Court: Attorneys at Law. The Nebraska
Supreme Court is vested with the sole power to admit persons to the
practice of law in this state and to fix qualifications for admission to the
Nebraska bar.
3. ____: ____. The Nebraska Supreme Court has the responsibility to adopt
and implement systems to protect the public and to safeguard the justice
system by assuring that those admitted to the bar are of such character
and fitness as to be worthy of the trust and confidence such admis-
sion implies.
4. Attorneys at Law. Lawyers are essential to the primary governmental
function of administering justice and have historically been officers of
the courts.
5. Rules of the Supreme Court: Attorneys at Law. The Nebraska
Supreme Court has delegated administrative responsibility for bar
admissions solely to the Nebraska State Bar Commission.
6. Attorneys at Law: Proof. The burden of demonstrating that an appli-
cant is qualified for admission to the Nebraska State Bar is on the
applicant.
7. Rules of the Supreme Court: Attorneys at Law. Bar admission rules
are intended to weed out unqualified applicants, not to deny admission
to a qualified applicant.
Original action. Application granted.
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299 Nebraska R eports
IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
William M. McDonnell, pro se.
Douglas J. Peterson, Attorney General, and Timothy R. Ertz
for Nebraska State Bar Commission.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Funke, J.
William M. McDonnell is a physician and health law special-
ist seeking admission to the Nebraska bar. He filed an applica-
tion with the Nebraska State Bar Commission (Commission)
seeking admission without examination as a Class 1-B appli-
cant.1 The Commission denied McDonnell’s application on the
basis that he failed to show he was “substantially engaged in
the practice of law” for 3 of the 5 years preceding his applica-
tion.2 The Commission granted McDonnell’s request for a hear-
ing, reviewed the evidence, and again denied his application.
McDonnell appeals.
Based on our de novo review of the record, we find
McDonnell has carried his burden to establish that he was
“substantially engaged in the practice of law” preceding his
application, as required under § 3-119(B)(1). We therefore
grant McDonnell’s Class 1-B application.
BACKGROUND
McDonnell graduated from the University of Virginia
School of Law in 1987. After completing a judicial clerk-
ship with the U.S. District Court for the Eastern District
of Virginia in 1988, he was admitted to the Virginia State
Bar by examination. In 1989, McDonnell was admitted by
motion to the District of Columbia bar and began practic-
ing at a private law firm in Washington, D.C. From 1989
1
See Neb. Ct. R. § 3-119(B) (rev. 2016).
2
See § 3-119(B)(1).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
to 1994, McDonnell held various legal positions, including
positions with the U.S. Securities and Exchange Commission
and the U.S. Department of Treasury. In 1995, McDonnell
commenced medical school at the University of Arkansas,
and in 1999, he began employment as a physician. From 1999
through 2006, McDonnell worked as a resident physician,
emergency department physician, and pediatric emergency
medicine fellow physician.
In 2006, McDonnell began employment with the University
of Utah, with dual appointments in the university’s S.J. Quinney
College of Law and the school of medicine. McDonnell worked
as an adjunct professor of law as well as a pediatric emer-
gency department physician. He held these positions through
May 2014.
While employed at the University of Utah, McDonnell
devoted 25 percent of his time and activities to his appoint-
ment at the college of law and 75 percent of his time to his
appointment at the school of medicine. McDonnell’s posi-
tion as an attending physician required him to work between
18 and 21 hours each week in the emergency department at
the university’s primary children’s medical center. McDonnell
asserted that he worked an average of 60 hours per week in his
dual position, and devoted 15 hours per week to working as a
law professor.
As a law professor, McDonnell served as a course director,
developed curricula for health law courses, conducted schol-
arly research, published writings on health law and policy
topics, and provided continuing education lectures to medical
professionals and attorneys. McDonnell taught one 3-credit-
hour law school course for one semester each academic year.
His relevant course work included preparing and presenting
104 class lectures of approximately 90 minutes in length.
McDonnell attended faculty research meetings and met with
student interest groups throughout the year. Additionally, he
served as a faculty research supervisor for a law student con-
ducting independent health law research.
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
In 2014, McDonnell relocated to Omaha, Nebraska, where
he accepted a position as chief of the division of pediat-
ric emergency medicine and medical director of the chil-
dren’s emergency department at the University of Nebraska
Medical Center and Children’s Hospital and Medical Center. In
March 2016, McDonnell applied for admission to the Nebraska
bar. McDonnell maintained an active membership in the
Washington, D.C., bar at the time of his application.
After considering McDonnell’s application for admis-
sion, the Commission issued a written letter on February 2,
2017, denying his request. The Commission determined that
McDonnell’s experience did not fulfill the requirement of being
“‘actively’ and ‘substantially’ engag[ed] in the practice of law”
for 3 of the 5 years preceding his application. McDonnell then
requested a hearing before the Commission, which was held
on April 14, 2017. At the hearing, McDonnell testified and
provided exhibits, including his employment contract with
the University of Utah and course materials he produced as a
law professor. After the hearing, the Commission affirmed its
denial of McDonnell’s application for admission. McDonnell
appealed to this court.
ASSIGNMENT OF ERROR
McDonnell assigns, restated, that the Commission erred in
denying his application seeking admission to the Nebraska
bar.
STANDARD OF REVIEW
[1] The Nebraska Supreme Court considers the appeal of
an applicant from a final ruling of the Nebraska State Bar
Commission de novo on the record made at the hearing before
the Commission.3
3
Neb. Ct. R. § 3-126 (rev. 2013); In re Application of Collins, 288 Neb.
519, 849 N.W.2d 131 (2014).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
ANALYSIS
[2,3] The Nebraska Supreme Court is vested with the sole
power to admit persons to the practice of law in this state and
to fix qualifications for admission to the Nebraska bar.4 This
court thus has the responsibility to adopt and implement sys-
tems to protect the public and to safeguard the justice system
by assuring that those admitted to the bar are of such char-
acter and fitness as to be worthy of the trust and confidence
such admission implies.5 The bar admission practices of other
states, and the policies behind those practices, do not govern
admission practices in Nebraska.6
[4] Lawyers are essential to the primary governmental func-
tion of administering justice and have historically been officers
of the courts.7 Our decisions in disciplinary cases demonstrate
the continued necessity of regulating the bar and ensuring that
ethical rules for lawyers are maintained and enforced.8 The
practice of law in this state is a privilege.
[5,6] This court has delegated administrative responsibility
for bar admissions solely to the Commission.9 The burden of
demonstrating that an applicant is qualified for admission is
on the applicant.10
A pplicable A dmission Rules
Section 3-119 sets forth three processes by which an attor-
ney admitted to the bar of another state may apply for
admission to the Nebraska bar without first undergoing the
4
In re Application of O’Siochain, 287 Neb. 445, 842 N.W.2d 763 (2014).
See Neb. Const. art. II, § 1, and art. V. §§ 1 and 25.
5
In re Appeal of Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996).
6
Id.
7
See id.
8
See In re Petition for Rule to Create Vol. State Bar Assn., 286 Neb. 1018,
841 N.W.2d 167 (2013).
9
In re Application of Collins, supra note 3.
10
Neb. Ct. R. § 3-125 (rev. 2013).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
Nebraska bar examination. Section 3-119(B), applicable to
“Class 1-B applicants,” provides:
Class 1-B applicants who may be admitted to practice
in Nebraska upon approval of a proper application are
those:
(1) who have been licensed and are active and in good
standing before the highest court of another state, terri-
tory, or district of the United States preceding application
for admission to the bar of Nebraska and have actively
and substantially engaged in the practice of law in another
state, territory, or district of the United States for 3 of
the 5 years immediately preceding application for admis-
sion; and
(2) who, at the time of their admission, had attained
educational qualifications at least equal to those required
at the time of application for admission by examination to
the bar of Nebraska.
The plain language of § 3-119(B)(1) contains two “active”
requirements: an active license requirement and an active
practice of law requirement. The first clause of § 3-119(B)(1)
requires that a Class 1-B applicant be licensed, active, and
in good standing in another state’s bar. Our rules define the
“active and in good standing” requirement:
An applicant who is “active and in good standing”
means an applicant who is admitted to the bar of another
state and is not disbarred, is not under disciplinary sus-
pension, has not resigned from the bar of such other
state while under disciplinary suspension or while under
disciplinary proceedings, or is not the subject of current
or pending disciplinary proceedings, or who, having
been disbarred or suspended, has been duly and fully
reinstated.11
The second clause of § 3-119(B)(1) requires that a Class
1-B applicant have “actively and substantially engaged in the
11
Neb. Ct. R. § 3-101(Q) (rev. 2016).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
practice of law” for 3 of the 5 years preceding the application
for admission. Our rules do not define the terms “actively and
substantially engaged” as utilized in the active practice of law
requirement of § 3-119(B)(1).
Section 3-101(P)(5) defines “practice of law” to include
“[e]mployment as a teacher of law at a law school approved
by the American Bar Association throughout the applicant’s
employment.”
In addition to § 3-119, our admission rules include Neb. Ct.
R. § 3-112 (rev. 2013), the “Essential eligibility requirements
for practice of law.” The additional requirements for the prac-
tice of law under § 3-112, as relevant here, include:
(A) the ability to conduct oneself with a high degree
of honesty, integrity, and trustworthiness in all pro-
fessional relationships and with respect to all legal
obligations;
(B) the ability to conduct oneself diligently and reli-
ably in fulfilling all obligations to clients, attorneys,
courts, and others;
....
(E) the ability to reason, analyze, and recall complex
factual information and to integrate such information with
complex legal theories;
....
(J) the ability to conduct oneself professionally and
in a manner that engenders respect for the law and the
profession.
McDonnell’s A pplication Satisfies
First Clause of § 3-119(B)(1)
The undisputed evidence before us indicates that at the time
of his Nebraska application, McDonnell possessed an active
law license in the District of Columbia and was in good stand-
ing. As a result, McDonnell meets the requirement of being
licensed, active, and in good standing in another state, terri-
tory, or district of the United States.
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
The evidence also indicates that from March 2011 through
May 2014, McDonnell was employed as a law professor at the
S.J. Quinney College of Law, University of Utah. McDonnell
completed regular and routine duties as a law professor, includ-
ing lecturing, researching, and publishing.
At oral argument in this matter, the Commission agreed that
McDonnell had shown he was “actively” engaged in the prac-
tice of law as a law professor in Utah. As a result, we conclude
that McDonnell met the “practice of law” requirement, because
he was employed as a law professor, and that his employer, the
S.J. Quinney College of Law, is accredited by the American
Bar Association.
Therefore, the only disputed issue in considering
McDonnell’s Class 1-B application is whether McDonnell was
“substantially engaged in the practice of law” as a law profes-
sor at the S.J. Quinney College of Law.
McDonnell Meets “[S]ubstantially
[E]ngaged in the [P]ractice of
[L]aw” R equirement
The relevant time period for evaluating whether McDonnell
was “substantially engaged in the practice of law” is from
March 2011 through March 2016.
McDonnell argues his application satisfies the “substantially
engaged in the practice of law” requirement, because the plain
language of our rules does not require exclusive or full-time
employment as a law professor. McDonnell further argues
that under a reasonable interpretation of this court’s admis-
sion rules, he meets the “substantially engaged” requirement,
because he showed that he fulfilled his employment obligations
by designing health law courses, presenting lectures, grading
examinations, providing student mentorship, and producing
law-related scholarly research. He also claims that he meets the
“substantially engaged” requirement, because he worked as a
law professor for 8 consecutive years, including 39 consecutive
months during the relevant 5-year period.
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
McDonnell also asserts that the “substantial” requirement is
best understood as excluding certain categories of applicants
who clearly do not maintain an active practice. For example,
McDonnell argues an applicant who is an emeritus or honor-
ary professor, or a retired partner of a law office, would not
satisfy the “substantially engaged” test, because the fact that
an applicant holds a distinguished title is not an indication of
that individual’s competency immediately prior to the time
of application.
The Commission concedes the rules do not require full-time
employment but contends that the rules require “substantial”
experience and that this requirement is designed to protect the
public. The Commission does not attempt to define the param-
eters of the “substantial” experience requirement in quantita-
tive terms and claims this court need not prescribe a fixed
threshold to the word “substantially.” The Commission does
argue that the “substantially engaged” requirement is a means
of assessing that an applicant has maintained the competency,
skill, and fitness required to practice law12 and should generally
require that attorneys devote more than one-quarter of their
employment activities to the practice of law. The Commission
further argues that McDonnell’s work as an adjunct law pro-
fessor was not significant enough to meet the “substantially
engaged” requirement.
We agree with the Commission that our analysis of whether
McDonnell has met the “substantially engaged in the practice
of law” requirement should focus on whether McDonnell pos-
sesses the competency, skill, and fitness required to practice
law and whether he poses a threat to the public. In doing so,
we consider our admission rules as a whole.
[7] This court has stated that it will not require a strict
application of our admission rules if, in doing so, it would
operate in such a manner as to deny admission to a qualified
12
See, Spencer v. Utah State Bar, 293 P.3d 360 (Utah 2012); In re Conner,
181 Vt. 555, 917 A.2d 442 (2006).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
applicant for a reason unrelated to the essential purpose of
our rules.13 The rules are intended to weed out unqualified
applicants.14
Under § 3-119(B)(2), an applicant for admission must
have, at the time of his or her admission, attained educa-
tional qualifications at least equal to those required at the
time of application for admission by examination to the bar
of Nebraska.
In In re Appeal of Dundee,15 we held the education require-
ment contained in § 3-119(B)(2) meant that Class 1-B appli-
cants must hold a juris doctor degree from a law school
approved by the American Bar Association. We have recog-
nized that requiring applicants to hold a juris doctor guar-
antees to Nebraska clients that Nebraska lawyers possess a
certain minimum understanding of the law, because they have
taken basic, core legal courses deemed “‘minimally necessary
to be a properly-trained attorney.’”16 We have also found an
applicant’s proof of education is relevant to determining the
applicant’s abilities as an attorney.17
In this matter, the record shows that McDonnell obtained
a juris doctor from the University of Virginia School of Law,
a law school accredited by the American Bar Association. In
addition, the Commission concedes that McDonnell satisfied
the education requirement for bar admission.
13
In re Application of Budman, 272 Neb. 829, 724 N.W.2d 819 (2006); In
re Application of Brown, 270 Neb. 891, 708 N.W.2d 251 (2006); In re
Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005).
14
In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998).
15
In re Appeal of Dundee, supra note 5.
16
Id. at 811, 545 N.W.2d at 759 (quoting Florida Bd. of Bar Examiners in re
Hale, 433 So. 2d 969 (Fla. 1983)). See, In re Application of O’Siochain,
supra note 4; In re Application of Budman, supra note 13; In re Application
of Brown, supra note 13; In re Application of Collins-Bazant, supra
note 14.
17
See, In re Application of Brown, supra note 13; In re Application of
Collins-Bazant, supra note 14.
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IN RE APPLICATION OF McDONNELL
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In addition to the education requirement, we have adopted
the “Essential eligibility requirements for practice of law,”
which set out the standards for conduct and fitness against
which all applicants are measured.18 Also, the Legislature has
enacted Neb. Rev. Stat. § 7-102(1) (Reissue 2012) which states
that “[n]o person shall be admitted . . . unless it is shown to
the satisfaction of the Supreme Court that such person is of
good moral character.” Our rules state that “[t]he purpose of
character and fitness screening before admission to the practice
of law in Nebraska is to ensure the protection of the public and
to safeguard the justice system.”19
McDonnell’s application indicates that he is a person of
good moral character and that he meets the essential eligibil-
ity requirements for the practice of law as set out in § 3-112.
In addition, the Commission concedes that McDonnell satis-
fied the character and fitness requirement for bar admission,
and at oral argument before this court, it did not contend that
McDonnell would pose a threat to the public.
McDonnell also presented evidence to demonstrate his
abilities as an attorney. He has been a licensed attorney since
1988, he practiced law until 1995, and he resumed the practice
of law through his employment as a law professor in 2006.
As a law professor, he taught a law school course, devel-
oped curricula for health law courses, conducted scholarly
research, published writings on health law and policy topics,
provided continuing education lectures to medical profession-
als and attorneys, attended faculty research meetings, met
with student interest groups, and served as a faculty research
supervisor for a law student conducting independent health
law research.
Based upon McDonnell’s education, character, fitness, and
employment history, we find that he maintains the compe-
tency, skill, and fitness required to practice law. As a result,
18
See § 3-112.
19
Neb. Ct. R. § 3-116 (rev. 2013).
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IN RE APPLICATION OF McDONNELL
Cite as 299 Neb. 289
McDonnell carried his burden of proving that he was “substan-
tially engaged” in his employment as a law professor for an
appropriate amount of time preceding his application.
Our admission rules do not define the “substantially engaged
in the practice of law” requirement, and we need not endorse a
particular definition to decide this case. Rather, our admission
rules dictate a qualitative analysis as opposed to a quantita-
tive analysis. This decision should not be viewed as setting a
threshold requirement for Class 1-B applications.
CONCLUSION
Based upon our de novo review of the record, we conclude
that McDonnell has carried his burden of proving that he met
the application requirements for a Class 1-B applicant. As a
result, McDonnell’s application for admission to the Nebraska
bar is granted.
A pplication granted.
K elch, J., not participating in the decision.
Wright, J., not participating.