In re Petition for Rule to Create Vol. State Bar Assn.

Nebraska Advance Sheets
1018 286 NEBRASKA REPORTS
In re P etition for a Rule Change to Create a Voluntary
State Bar of Nebraska: to Abolish Neb. Ct. R. Chapter 3,
Article 8, and to Make Whatever Other Rule Changes
Are Necessary to Transition From a Mandatory
to a Voluntary State Bar Association.
___ N.W.2d ___
Filed December 6, 2013. No. S-36-120001.
1. Constitutional Law: Attorneys at Law. A state may constitutionally require a
lawyer to be a member of a mandatory or unified bar to which compulsory dues
are paid.
2. Attorneys at Law. The compelled association of an integrated bar is justified by
the state’s interest in regulating the legal profession and improving the quality of
legal services.
3. Constitutional Law: Attorneys at Law. A state may constitutionally fund ger-
mane activities out of the mandatory dues of all members.
4. ____: ____. The Nebraska Constitution does not expressly vest the power
to define and regulate the practice of law in any of the three branches of
government.
5. Constitutional Law. In the absence of an express grant of power to any of the
three branches of government, the power must be exercised by the branch to
which it naturally belongs.
6. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
has the inherent power to promulgate rules providing for an integrated bar.
7. Constitutional Law: Attorneys at Law. The practice of law is so intimately
connected and bound up with the exercise of judicial power in the administration
of justice that the right to define and regulate its practice naturally and logically
belongs to the judicial department of our state government.
8. Constitutional Law. Compulsory subsidies for private speech are subject to
exacting First Amendment scrutiny and cannot be sustained unless two criteria
are met. First, there must be a comprehensive regulatory scheme involving a
mandated association among those who are required to pay the subsidy. Second,
compulsory fees can be levied only insofar as they are a necessary incident of the
larger regulatory purpose which justified the required association.
Petition to create voluntary state bar association. Petition
granted in part, and in part denied.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
Scott Lautenbaugh, a Nebraska attorney (petitioner), filed a
petition with this court, asking that we abolish, strike, or repeal
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1019
Cite as 286 Neb. 1018chapter 3, article 8, of the Nebraska Supreme Court Rules, and
make whatever other rule changes are necessary to remove any
requirement that attorneys licensed in Nebraska be members
of the Nebraska State Bar Association (Bar Association). We
invited public comment on the petition and, on September 30,
2013, heard oral presentations on behalf of petitioner and the
Bar Association.
We deny the petition to create a purely voluntary bar, but
we determine that the rules creating and establishing the Bar
Association should be amended in the light of developments in
compelled-speech jurisprudence from the U.S. Supreme Court
since integration of the Bar Association in 1937. In the sections
that follow, we (1) recognize the continuing constitutional
legitimacy of mandatory or unified state bar associations, (2)
recall the constitutional basis for and reasons justifying inte-
gration of the bar in 1937, (3) summarize the experience in
other jurisdictions, (4) examine the evolution of compelled-
speech jurisprudence, and (5) focus on the relevance of “ger-
maneness.” Finally, we adopt the administrative changes we
deem necessary to serve the important purposes of an inte-
grated bar while both (1) ensuring that the Bar Association
remains clearly within the permitted scope of constitutional
jurisprudence and (2) avoiding the protracted litigation experi-
enced elsewhere.
MANDATORY STATE BAR
ASSOCIATIONS
[1] Petitioner does not challenge the constitutionality of
mandatory state bar associations. Analogizing state bar associa-
tions to “union-shop” arrangements, the U.S. Supreme Court
established long ago that a state may constitutionally require a
lawyer to be a member of a mandatory or unified bar to which
compulsory dues are paid.1
[2,3] The core of petitioner’s grievance in this matter
arises out of the 1990 holding of the Supreme Court in
1
Lathrop v. Donohue, 367 U.S. 820, 842, 81 S. Ct. 1826, 6 L. Ed. 2d 1191(1961).
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1020 286 NEBRASKA REPORTS
Keller v. State Bar of California,2 where it took up the ques-
tion of “permissible expenditures” of mandatory bar dues.
Relying on Abood v. Detroit Board of Education,3 a govern-
mental employee union case, the Court delineated the First
Amendment boundaries of a bar association’s expenditures of
compulsory dues.
Abood held that a union could not expend a dissent-
ing individual’s dues for ideological activities not “ger-
mane” to the purpose for which compelled association
was justified: collective bargaining. Here the compelled
association and integrated bar are justified by the State’s
interest in regulating the legal profession and improving
the quality of legal services. The State Bar may therefore
constitutionally fund activities germane to those goals
out of the mandatory dues of all members. It may not,
however, in such manner fund activities of an ideological
nature which fall outside of those areas of activity. The
difficult question, of course, is to define the latter class
of activities.4
Thus, the Court held, “the guiding standard must be whether
the challenged expenditures are necessarily or reasonably
incurred for the purpose of regulating the legal profession or
‘improving the quality of the legal service available to the
people of the State.’”5
It is that “difficult question” of the use of mandatory bar
dues for “germane” versus “nongermane” activities which,
as in some other states, forms the basis for the challenge to
Nebraska’s mandatory bar which is before us today.
2
Keller v. State Bar of California, 496 U.S. 1, 14, 110 S. Ct. 2228, 110 L.
Ed. 2d 1 (1990).
3
Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L.
Ed. 2d 261 (1977).
4
Keller v. State Bar of California, supra note 2, 496 U.S. at 13-14.
5
Id., 496 U.S. at 14.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1021
Cite as 286 Neb. 1018INTEGRATION OF BAR
ASSOCIATION
In 1937, this court granted a petition to integrate the bar of
the State of Nebraska.6 At that time, the petitioners felt that
the majority of the members of the bar favored integration by
Supreme Court rule to provide better service to the public by
the legal profession, to combat the unauthorized practice of
law, and to improve the ethical standards of the profession.7 In
general, the 1937 petition sought rules of this court providing
for the regulation of the bar of this state.
[4-7] In that proceeding, this court for the first time pon-
dered its power to integrate the bar by rule of the court, not-
ing that the Nebraska Constitution did not expressly vest the
power to define and regulate the practice of law in any of
the three branches of government. We reasoned that in the
absence of an express grant of power to any of the branches,
the power must be exercised by the branch to which it natu-
rally belonged. In concluding that this court had the inherent
power to promulgate rules providing for an integrated bar,
we explained that we had the exclusive power to regulate the
conduct and qualifications of attorneys as officers of the court,
that the proper administration of justice was the main business
of a court, and that “[t]he practice of law is so intimately con-
nected and bound up with the exercise of judicial power in the
administration of justice that the right to define and regulate its
practice naturally and logically belongs to the judicial depart-
ment of our state government.”8 Because the bench and bar
were so intimately related, we concluded that the problems of
one were the problems of the other.
In our 1937 opinion, this court set forth the initial rules
creating, controlling, and regulating the Bar Association.
We formed the Bar Association “[f]or the advancement of
the administration of justice according to law, and for the
6
See In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 275
N.W. 265 (1937).
7
Id.8
Id. at 289, 275 N.W. at 268.
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1022 286 NEBRASKA REPORTS
advancement of the honor and dignity of the legal profession,
and encouragement of cordial intercourse among the members
thereof, for the improvement of the service rendered the public
by the Bench and Bar . . . .”9 At that time, those persons who
were residents of Nebraska licensed to practice law in the state
constituted the membership of the Bar Association. All mem-
bers were compelled to pay dues.
In that same opinion, we also observed that our inherent
power to integrate the bar included the authority to rescind the
rules providing for integration. We stated, “In the event of a
failure of the plan to function as hoped, it can be corrected or
abandoned by the amendment or revocation of the rule by the
court in the exercise of its sound judicial discretion.”10 This
petition presents the first attempt before this court to eliminate
the mandatory bar in Nebraska.
ACTIONS ELSEWHERE TO ELIMINATE
MANDATORY BAR
Other jurisdictions have been confronted with actions to
abolish the mandatory bar. Thirty-two states and the District
of Columbia require attorneys to become members of a bar
and to pay dues as a condition of practicing law in that juris-
diction.11 Aside from the temporary suspension of mandatory
bar membership by the Wisconsin Supreme Court from 1988
to 1992, discussed in more detail below, no state association
has converted from mandatory to voluntary status.12 We note
that the mandatory status of the Puerto Rico Bar Association
was eliminated in 2009 by an act of the legislature,13 and the
9
Id. at 291, 275 N.W. at 269. See, also, Neb. Ct. R. § 3-802(A).
10
Id. at 290, 275 N.W. at 269.
11
Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey of Unified
Bar Compliance with Hudson and Keller, 1 Tex. Tech J. Tex. Admin. L.
23 (2000); ABA Division for Bar Services, 2011 State and Local Bar
Membership, Administration and Finance Survey (2012).
12
The Strategic Planning Committee of the State Bar of Wisconsin, Future
of the State Bar: Mandatory/ Voluntary Membership Report (February
2010), http://www.wicourts.gov/supreme/docs/ 1101petitionreport.pdf (last
visited Dec. 2, 2013).
13
See 2009 P.R. Laws 121, § 2, and 2009 P.R. Laws 135, § 2.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1023
Cite as 286 Neb. 1018law in Puerto Rico now provides for voluntary membership.14
However, in September 2013, legislation was filed to return to
mandatory bar membership.15
We briefly recount recent efforts in Wisconsin, New Mexico,
and New Hampshire to eliminate the mandatory state bar.
Wisconsin Bar Association
Integration of the bar in Wisconsin has been a contentious
matter from the beginning. Upon the first motion seeking inte-
gration, the Supreme Court of Wisconsin postponed the matter
to a time after the lawyers in military service returned home
from World War II.16 When the matter of integration next came
before the Supreme Court of Wisconsin, the court concluded
that a voluntary bar was preferable and that the bar should not
be integrated.17 But upon the third motion for integration, the
Supreme Court of Wisconsin determined that the bar should
be integrated when proper rules and procedures had been
adopted by further order of the court.18 Thus, the Wisconsin bar
became an integrated bar on January 1, 1957, under rules and
bylaws promulgated by the court.19 The U.S. Supreme Court
later upheld a constitutional challenge to integration of the
bar’s membership.20
The Supreme Court of Wisconsin had further opportunities
to consider whether the bar should remain integrated. In 197721
and again in 1980,22 the court approved continuation of the
integrated bar.
14
P.R. Laws Ann. tit. 4, § 774 (2013).
15
See P.R. S.B. PS 729 (Sept. 6, 2013).
16
See Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604 (1943).
17
See In re Integration of Bar, 249 Wis. 523, 25 N.W.2d 500 (1946),
overruled in part, In re Integration of Bar, 5 Wis. 2d 618, 93 N.W.2d 601(1958).
18
See In re Integration of Bar, 273 Wis. 281, 77 N.W.2d 602 (1956).
19
See Lathrop v. Donohue, supra note 1.
20
See id.21
See In re Regulation of the Bar of Wisconsin, 81 Wis. 2d xxxv (1977).
22
Matter of Discontinuation of Wis. State Bar, 93 Wis. 2d 385, 286 N.W.2d
601 (1980).
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1024 286 NEBRASKA REPORTS
A challenge to the constitutionality of the integrated bar
led to a temporary suspension of mandatory membership.
In Levine v. Supreme Court of Wisconsin,23 a federal district
court found that the mandatory membership requirement vio-
lated the litigant’s First Amendment rights of free speech
and free association and was not justified by a compelling
state interest. As a result, the Supreme Court of Wisconsin
suspended enforcement of its mandatory bar membership
rules.24 On appeal, the Seventh Circuit reversed, concluding
that Lathrop v. Donohue25—which upheld the constitutional-
ity of integration—was binding precedent.26 The Supreme
Court of Wisconsin reinstated the integrated bar effective July
1, 1992.27
The bar in Wisconsin remains mandatory amid unrest. A
member satisfaction survey conducted for the bar in 2008
revealed that a majority of the respondents—57 percent—
would vote for a voluntary association if given the opportunity
to do so.28 In July 2011, two attorneys filed a petition renew-
ing their request that the Supreme Court of Wisconsin abolish
the integrated bar.29 The court, with three justices dissenting,
denied the petition without a public hearing.30
State Bar of New Mexico
In 2003, two petitioners sought to modify a New Mexico
Supreme Court rule31 to change the bar from a mandatory bar
to a voluntary bar. In response to the petition, the Board of
23
Levine v. Supreme Court of Wisconsin, 679 F. Supp. 1478 (W.D. Wis.
1988).
24
In Matter of State Bar of Wisconsin, 169 Wis. 2d 21, 485 N.W.2d 225(1992).
25
Lathrop v. Donohue, supra note 1.
26
Levine v. Heffernan, 864 F.2d 457 (7th Cir. 1988).
27
In Matter of State Bar of Wisconsin, supra note 24.
28
The Strategic Planning Committee of the State Bar of Wisconsin, supra
note 12.
29
Wis. S. Ct. Order 11-04 (June 6, 2012).
30
Id.
31
Rule 24-101 NMRA.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1025
Cite as 286 Neb. 1018Bar Commissioners of the State Bar of New Mexico identi-
fied policy supporting a mandatory bar, such as a mandatory
bar’s being more able to promote justice and the legal system’s
ability to make justice obtainable. The board also identified
policies supporting a voluntary bar, including the freedom of
association and a voluntary bar’s freedom and independence
from the court. The New Mexico Supreme Court denied the
petition without a public hearing.
New Hampshire Bar
Association
In New Hampshire, the bar was first unified in 1968
for a trial period of 3 years.32 The Supreme Court of New
Hampshire reasoned that mandatory membership was “an
integral part of the inherent power of this court to regulate the
practice of law and to supervise” those engaging in the prac-
tice.33 In 1972, the court reexamined unification, concluded
that the New Hampshire Bar Association had benefited from
the trial experience, and ordered the bar unified on a perma-
nent basis.34
During the 2003 legislative session, the New Hampshire
General Court enacted legislation which purported to require
the bar association to place on the ballot with the election of
the association’s officers the question of whether membership
in the bar association should be required.35 The bar association
brought an original action challenging the constitutionality of
the legislative act, and the Supreme Court of New Hampshire
declared the statute to be unconstitutional.36 The court rea-
soned that “because we have elected to regulate the practice
of law through unification, [the statute at issue], which permits
de-unification without our involvement and contrary to our
32
In re Unification of the New Hampshire Bar, 109 N.H. 260, 248 A.2d 709(1968).
33
Id. at 264, 248 A.2d at 712.
34
In re Unified New Hampshire Bar, 112 N.H. 204, 291 A.2d 600 (1972).
35
See In re Petition of New Hampshire Bar Ass’n, 151 N.H. 112, 855 A.2d
450 (2004).
36
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specific order, encroaches upon inherent judicial authority.”37
The bar remains unified.38
FIRST AMENDMENT
COMPELLED-SPEECH
JURISPRUDENCE
Mandatory bars present issues under the First Amendment to
the U.S. Constitution because members are required to join the
group—and pay dues—in order to practice law. “These require-
ments implicate the First Amendment freedom of association,
which includes the freedom to choose not to associate, and the
First Amendment freedom of speech, which also includes the
freedom to remain silent or to avoid subsidizing group speech
with which a person disagrees.”39
Since the integration and creation of our Bar Association
in 1937, the legal landscape concerning compelled speech
has evolved. As discussed below, the U.S. Supreme Court
has determined that some mandatory associations, such as
some unions and state bar associations, do not violate the
First Amendment, because the forced speech serves legitimate
purposes for the benefit of its entire membership. The critical
inquiry in forced speech cases is whether the speech or activity
being “forced” on the dissenting member is “germane” to the
“group’s constitutionally permissible purposes.”40 In Lathrop,41
a Wisconsin attorney argued that his compelled membership
in the state bar violated his rights under the 14th Amendment
to the U.S. Constitution because the bar engaged in political
activities which he opposed. The U.S. Supreme Court reasoned
that the bulk of the bar’s activities served the function of ele-
vating the educational and ethical standards of the bar in order
to improve the quality of legal services available to the citizens
of the state. The Court stated:
37
Id., 151 N.H. at 119, 855 A.2d at 456.
38
ABA Division for Bar Services, supra note 11.
39
Kingstad v. State Bar of Wis., 622 F.3d 708, 712-13 (7th Cir. 2010).
40
1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 4:26
(2013), available at Westlaw FREESPEECH.
41
Lathrop v. Donohue, supra note 1.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1027
Cite as 286 Neb. 1018We think that the Supreme Court of Wisconsin, in order to
further the State’s legitimate interests in raising the qual-
ity of professional services, may constitutionally require
that the costs of improving the profession in this fashion
should be shared by the subjects and beneficiaries of the
regulatory program, the lawyers, even though the organi-
zation created to attain the objective also engages in some
legislative activity.42
The Court found no violation of the 14th Amendment by the
requirement that lawyers practicing in the state become mem-
bers of the state bar and pay reasonable annual dues, but the
Court reserved judgment on the attorney’s claim that his free
speech rights were violated by the bar’s use of his mandatory
dues to support political activities.
In Abood v. Detroit Board of Education,43 every local gov-
ernmental employee represented by a union, even though not a
union member, was required to pay to the union, as a condition
of employment, a service fee equal in amount to union dues.
The U.S. Supreme Court considered whether that arrangement
violated the constitutional rights of employees who object to
public-sector unions or to various union activities financed by
the compulsory service fees. The Court reasoned:
We do not hold that a union cannot constitutionally
spend funds for the expression of political views, on
behalf of political candidates, or toward the advance-
ment of other ideological causes not germane to its
duties as ­ collective-bargaining representative. Rather,
the Constitution requires only that such expenditures be
financed from charges, dues, or assessments paid by
employees who do not object to advancing those ideas
and who are not coerced into doing so against their will
by the threat of loss of governmental employment.44
Thus, the Court held that the agency-shop clause was valid
insofar as the service fees were used to finance expenditures
42
Id., 367 U.S. at 843.
43
Abood v. Detroit Board of Education, supra note 3.
44
Id., 431 U.S. at 235-36.
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by the union for purposes of collective bargaining, contract
administration, and grievance adjustment.
In Teachers v. Hudson,45 employees who did not belong
to a union challenged the procedure used to determine the
proportionate share that they were required to contribute to
support the union as a collective bargaining agent, alleg-
ing that it violated their 1st and 14th Amendment rights and
permitted the use of their proportionate shares for impermis-
sible purposes. The U.S. Supreme Court held that “the con-
stitutional requirements for the Union’s collection of agency
fees include an adequate explanation of the basis for the fee,
a reasonably prompt opportunity to challenge the amount of
the fee before an impartial decisionmaker, and an escrow
for the amounts reasonably in dispute while such challenges
are pending.”46
As noted at the outset of our opinion, it is the seminal and
oft-cited case of Keller v. State Bar of California47 which is
the foundation of this petition and, indeed, most claims chal-
lenging mandatory state bar associations. In Keller, members
of the State Bar of California sued the bar, alleging that it
violated their rights under the First Amendment by using their
membership dues to finance certain ideological or political
activities to which they were opposed. The Supreme Court
observed that the relationship of a state bar and its members
was analogous to the relationship of employee unions and
their members and that agency-shop laws were enacted to
prevent those who receive the benefit of union negotiation
but who do not join the union and pay dues from avoiding
paying their fair share of the cost of a process from which
they benefit.
Furthermore, the Court stated that it was appropriate that
all of the lawyers who derive benefits from being admitted
45
Teachers v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232(1986).
46
Id., 475 U.S. at 310.
47
Keller v. State Bar of California, supra note 2.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1029
Cite as 286 Neb. 1018to practice law “should be called upon to pay a fair share of
the cost of the professional involvement in this effort.”48 The
Supreme Court determined:
[T]he compelled association and integrated bar are justi-
fied by the State’s interest in regulating the legal profes-
sion and improving the quality of legal services. The
State Bar may therefore constitutionally fund activities
germane to those goals out of the mandatory dues of
all members. It may not, however, in such manner fund
activities of an ideological nature which fall outside of
those areas of activity.49
In order to define activities not germane to the bar associa-
tion’s goals, the guiding standard is “whether the challenged
expenditures are necessarily or reasonably incurred for the pur-
pose of regulating the legal profession or ‘improving the qual-
ity of the legal service available to the people of the State.’”50
The Court declared that “an integrated bar could certainly
meet its Abood obligation by adopting the sort of procedures
described in Hudson.”51
United States v. United Foods, Inc.52 teaches that the test
to determine what group speech is constitutionally permis-
sible is not whether the speech is political or ideological
in nature, but, rather, whether the speech is germane. The
Supreme Court iterated that “speech need not be characterized
as political before it receives First Amendment protection”53
and that “[l]awyers could be required to pay moneys in sup-
port of activities that were germane to the reason justifying
the compelled association in the first place, for example,
48
Id., 496 U.S. at 12.
49
Id., 496 U.S. at 13-14.
50
Id., 496 U.S. at 14.
51
Id., 496 U.S. at 17.
52
United States v. United Foods, Inc., 533 U.S. 405, 121 S. Ct. 2334, 150 L.
Ed. 2d 438 (2001).
53
Id., 533 U.S. at 413.
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1030 286 NEBRASKA REPORTS
expenditures . . . that related to ‘activities connected with dis-
ciplining members of the Bar or proposing ethical codes for
the profession.’”54
The germaneness of an expenditure by a mandatory bar for
a nonideological activity was considered in Romero v. Colegio
de Abogados de Puerto Rico.55 In that case, the mandatory bar
in Puerto Rico required members to purchase life insurance
from its group life insurance program. There was no provision
which would allow a member to refuse the life insurance and
retain the portion of the member’s dues that would otherwise
have been spent on life insurance premiums. The First Circuit
determined that the required payment for group life insurance
was unconstitutional, because it was not germane to the bar
association’s purpose of regulating the legal profession and
improving the quality of legal services. As the First Circuit
stated, “[T]hat an individual may be compelled to associate
and financially contribute for some purposes does not mean
she may be compelled to associate and financially contribute
for all purposes.”56
Likewise, in Kingstad v. State Bar of Wis.,57 three Wisconsin
attorneys objected to the state bar’s use of a portion of their
mandatory dues to fund a public image campaign. The Seventh
Circuit held that in order to withstand scrutiny under the First
Amendment, expenditures by the state bar which are funded
by mandatory dues must be germane to legitimate purposes
of the bar, regardless of the ideological and political nature
of the activity. In other words, a bar member may not, under
Kingstad, be compelled to subsidize “nongermane” activities
of any type. The Seventh Circuit determined, however, that
the disputed public image campaign—which had the goal of
improving the public’s perception of Wisconsin lawyers—was
germane to the legitimate purposes of the bar, because the
54
Id., 533 U.S. at 414.
55
Romero v. Colegio de Abogados de Puerto Rico, 204 F.3d 291 (1st Cir.
2000).
56
Id. at 301.
57
Kingstad v. State Bar of Wis., supra note 39.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1031
Cite as 286 Neb. 1018expenditure was reasonably related to the purpose of improv-
ing the quality of legal services.
Most recently, the legal landscape was again altered to
some degree with Knox v. Service Employees Intern. Union,58
wherein the U.S. Supreme Court considered whether a union
could require objecting nonmembers to pay a special fee for
the purpose of financing the union’s political and ideologi-
cal activities without running afoul of the First Amendment.
The Supreme Court recalled that it had held “[t]he First
Amendment . . . does not permit a public-sector union to
adopt procedures that have the effect of requiring objecting
nonmembers to lend the union money to be used for politi-
cal, ideological, and other purposes not germane to collec-
tive bargaining.”59
The Knox Court cast doubt on the constitutional validity
of opt-out systems for dissenting members. The Court stated,
“By authorizing a union to collect fees from nonmembers and
permitting the use of an opt-out system for the collec­ion of
t
fees levied to cover nonchargeable expenses, our prior deci-
sions approach, if they do not cross, the limit of what the First
Amendment can tolerate.”60 The Knox Court further stated,
“Our cases have tolerated a substantial impingement on First
Amendment rights by allowing unions to impose an opt-out
requirement at all.”61 With regard to the collection of spe-
cial assessment dues at issue in Knox, the Court determined
that “the union should have sent out a new notice allowing
nonmembers to opt in to the special fee rather than requiring
them to opt out.”62 We note that the Knox Court did not strike
down the use of an opt-out system altogether, but the concur-
rence points out that its continued viability is in doubt, stating
that “while the majority’s novel rule is, on its face, limited to
58
Knox v. Service Employees Intern. Union, ___ U.S. ___, 132 S. Ct. 2277,
183 L. Ed. 2d 281 (2012).
59
Id., 132 S. Ct. at 2284-85.
60
Id., 132 S. Ct. at 2291.
61
Id., 132 S. Ct. at 2293.
62
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1032 286 NEBRASKA REPORTS
special assessments and dues increases, the majority strongly
hints that this line may not long endure.”63
RELEVANCE OF “GERMANENESS”
The proponents and opponents of the mandatory bar dis-
agree on the relevance of germaneness under Keller64 and
Kingstad.65 The Bar Association contends that Keller and its
progeny require only that objecting members not be required
to pay for nongermane political and ideological lobbying.
Contrarily, an opponent of the mandatory bar argues that under
Kingstad, it is no longer enough that an objecting member’s
mandatory dues not be used for ideological and political activ-
ities by the Bar Association; rather, the mandatory dues must
be used only for germane purposes, regardless of the nature of
the activity.66
One commentator and supporter of the mandatory bar, who
submitted comments on behalf of the Bar Association, con-
cedes that Kingstad is a “partially contrary opinion” to the
bar’s view that Keller focuses primarily on the political or
ideological nature of the bar’s activities, not its germaneness.67
In other words, the Bar Association believes that it can use
mandatory dues to finance “nongermane” activities so long as
the activities are not “political and ideological.”68 It is urged
that Kingstad is a misinterpretation of Keller and its progeny.
That argument is premised on the view that the U.S. Supreme
Court’s “characterization of Keller” in United Foods, Inc.,69
63
Id., 132 S. Ct. at 2299 (Sotomayor, J., concurring in the judgment;
Ginsburg, J., joins).
64
Keller v. State Bar of California, supra note 2.
65
Kingstad v. State Bar of Wis., supra note 39.
66
See comment letter from James C. Creigh to Clerk of the Nebraska
Supreme Court and Court of Appeals (May 29, 2012) (on file in case
No. S-36-120001).
67
Letter from Prof. Michael Fenner, Creighton Univ. School of Law, to Jane
Schoenike, Exec. Dir., Nebraska State Bar Assn. (Feb. 15, 2012) (on file
in case No. S-36-120001).
68
Id.
69
United States v. United Foods, Inc., supra note 52.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1033
Cite as 286 Neb. 1018the principal foundation of the Kingstad holding, cannot be
used to support a “limitation on non-ideological and non-
political speech expenditures” of a bar association because it
takes that characterization “out of context and tries to make it
stand for too much.”70
[8] However, the Kingstad analysis and its reliance on
United Foods, Inc. appear to be reinforced by the U.S. Supreme
Court’s recent Knox opinion. The Knox Court explained its
decision in United Foods, Inc. as follows:
We made it clear that compulsory subsidies for private
speech are subject to exacting First Amendment scru-
tiny and cannot be sustained unless two criteria are met.
First, there must be a comprehensive regulatory scheme
involving a “mandated association” among those who
are required to pay the subsidy. . . . Such situations are
exceedingly rare because, as we have stated elsewhere,
mandatory associations are permissible only when they
serve a “compelling state interes[t] . . . that cannot be
achieved through means significantly less restrictive of
associational freedoms.” . . . Second, even in the rare case
where a mandatory association can be justified, compul-
sory fees can be levied only insofar as they are a “neces-
sary incident” of the “larger regulatory purpose which
justified the required association.”71
That second criterion set forth in Knox reinforces the Kingstad
“germaneness” analysis and the significance of that factor
in protecting “associational freedoms.” The two-part Knox
test focuses directly on the United Foods, Inc. characteriza-
tion of Keller despite the “mundane commercial nature of
[the] speech.”72
Thus, there appears to be ample support for the view
expressed in Kingstad that germaneness is central to a modern
view of Keller.
70
Fenner, supra note 67.
71
Knox v. Service Employees Intern. Union, supra note 58, 132 S. Ct. at
2289 (citations omitted).
72
Id.Nebraska Advance Sheets
1034 286 NEBRASKA REPORTS
ADMINISTRATIVE
RESOLUTION
Having said all that, however, we need not today decide
the precise boundaries of First Amendment compelled-speech
jurisprudence in 2013. The nature of the proceeding before
this court, i.e., a petition for a rule change under the court’s
inherent authority, does not require us to resolve a case or
controversy between two parties as would a proceeding under
this court’s appellate or original action jurisdiction. The present
petition requires this court to assess the future and the structure
of the mandatory bar in Nebraska at an administrative level and
determine, based on trends in the law since 1937, how to best
meet the needs of the judicial system, Nebraska attorneys, and
the citizens of this state.
As noted at the outset, there were several important reasons
underlying our 1937 decision to integrate the bar in Nebraska.73
Those reasons still exist and remain valid justifications for a
mandatory bar to this day. This court recognized in 1937 that
“a few unethical practitioners ha[d] degraded the public esteem
of the bar as a whole.”74 Our decisions in disciplinary cases
since 1937 demonstrate the continued necessity of regulating
the bar and ensuring that ethical rules for lawyers are main-
tained and enforced. This court also observed in 1937 that
informed public opinion
favor[ed] bar integration by supreme court rule as a
means of providing better service to the public by the
legal profession, of effectively combating the unautho­
rized practice of law, and of improving the ethical stan-
dards of the profession and giving to it the high public
esteem that it should enjoy.75
The demand for additional legal services has grown exponen-
tially since 1937. In this age of instantaneous communications
reaching to virtually every household, the need to combat the
unauthorized practice of law presents new challenges. And
73
In re Integration of Nebraska State Bar Ass’n, supra note 6.
74
Id. at 290, 275 N.W. at 268.
75
Id. at 284, 275 N.W. at 266.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1035
Cite as 286 Neb. 1018justifying the public’s favorable view of the practicing bar
remains a vital reason for an integrated bar.
Furthermore, the laws enacted by our Legislature and consti-
tutional provisions adopted by the citizens of this state indicate
that the people of Nebraska have come to rely on the existence
of the Bar Association and depend upon this court’s oversight
of that association and the practice of law.76
In our view, the best solution is to modify the court’s rules
creating and establishing the Bar Association (and other related
rules) to limit the use of mandatory dues, or assessments, to
the regulation of the legal profession. This purpose clearly
includes the functions of (1) admitting qualified applicants to
membership in the Bar Association, (2) maintaining the records
of membership, (3) enforcing the ethical rules governing the
Bar Association’s members, (4) regulating the mandate of con-
tinuing legal education, (5) maintaining records of trust fund
requirements for lawyers, and (6) pursuing those who engage
in the unauthorized practice of law. The mandatory Supreme
Court assessments supporting these functions will be paid to
the Bar Association on behalf of the Nebraska Supreme Court
in much the same way that the existing disciplinary assessment
is administered. By limiting the use of mandatory assessments
to the arena of regulation of the legal profession, we ensure
that the Bar Association remains well within the limits of the
compelled-speech jurisprudence of the U.S. Supreme Court
and avoid embroiling this court and the legal profession in
unending quarrels and litigation over the germaneness of an
activity in whole or in part, the constitutional adequacy of a
76
See, Neb. Const. art. V, § 21(4) (members of “bar of the state” on judi-
cial nominating commissions); Neb. Const. art. V, § 28 (membership
of Commission on Judicial Qualifications); Neb. Rev. Stat. §§ 7-204(Reissue 2012); 20-506 (Supp. 2013); 23-3407 (Reissue 2012); 24-229
(Cum. Supp. 2012); 24-715 (Reissue 2008); 24-806 (Reissue 2008);
24-809 (Reissue 2008); 24-1201 (Reissue 2008); 25-2905 (Reissue 2008);
29-3924 (Reissue 2008); 43-3318 (Reissue 2008); 43-3342.05 (Supp.
2013); 55-422 (Reissue 2010); 76-557 (Reissue 2009); 76-1003 (Reissue
2009); 76-2802 (Reissue 2009); 76-2805 (Reissue 2009); 83-4,124 (Supp.
2013); and 84-1503 (Supp. 2013).
Nebraska Advance Sheets
1036 286 NEBRASKA REPORTS
particular opt-in or opt-out system, or the appropriateness of a
given grievance procedure.
The remaining activities of the Bar Association will be
financed solely by revenues other than mandatory assessments.
Obviously, voluntary dues would be a significant portion of
those revenues. Voluntary bar dues fall outside the realm of
the compelled-speech jurisprudence. Many members of the Bar
Association may well elect to pay the voluntary dues assess-
ment—particularly if the Bar Association strictly adheres to
the use of such funds for purposes clearly benefiting the bar
as a whole and avoids entanglement in ideological or political
issues or legislation. The Bar Association has, over the years,
developed and administered many laudable and worthwhile
programs which have served the legal profession well. The
Volunteer Lawyers Project with its legal self-help desks, the
Nebraska Lawyers Assistance Program, the Casemaker Digest,
its continuing legal education programs, and the SCOPE men-
toring program are but a few of the worthy services offered by
the Bar Association. Such services and programs and others
like them can continue to thrive with the aid of voluntary dues,
grants, and gifts from those who choose to support the volun-
tary components of the Bar Association.
We disagree with the parade of horrors predicted by both
petitioner and the Bar Association regarding such an arrange-
ment. Petitioner cautioned during his oral presentation that
such a bar would be “cumbersome” compared to a purely
voluntary bar. But petitioner’s approach fails to preserve the
regulatory structure erected beginning in 1937 and would aban-
don the public’s reliance upon the existence of a mandatory
bar. And our prior segregation of a bar-disciplinary assessment
clearly demonstrates that administrative issues can be managed
easily. Thus, we conclude that petitioner’s fear is unfounded.
The Bar Association, on the other hand, asserted that having
to perform an item-by-item germaneness analysis would be
“not workable” and “way too expensive.” But our approach
entirely avoids any such difficulty. We recognize that we have
intentionally chosen to draw the line in a manner that forgoes
the opportunity to expend mandatory assessments for some
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1037
Cite as 286 Neb. 1018purposes that might well be adjudged as germane. By drawing
the line for use of mandatory bar assessments well within the
bounds of the compelled-speech jurisprudence, we ensure that
the assessments—which will be administered by the Supreme
Court—will be used only for activities that are clearly ger-
mane. Here again, our experience with the disciplinary assess-
ment shows that this separation between mandatory and vol-
untary dues can be readily accomplished. And by drawing the
line in this way, we will clearly avoid the morass of continuing
litigation experienced in other jurisdictions.
CONCLUSION
Although we reject petitioner’s request for complete deuni-
fication of the Bar Association, we sustain the petition to
the extent that we amend this court’s rules to limit the use
of mandatory bar dues, now to be referred to as “mandatory
membership assessments,” to the regulation of the legal pro-
fession. The Bar Association may collect voluntary dues to
finance nonregulatory activities which may benefit the legal
profession as a whole. We attach to this opinion the necessary
rule changes in chapter 3, “Attorneys and the Practice of Law,”
of the Nebraska Supreme Court Rules, which include amend-
ments to the following articles thereof:
•  rticle 1: Admission Requirements for the Practice of Law;
A
•  rticle 3: Discipline Procedures for Lawyers;
A
•  rticle 8: State Bar Association; Creation; Control; and
A
Regulation;
•  rticle 9: Trust Fund Requirements for Lawyers; and
A
•  rticle 10: Unauthorized Practice of Law.
A
•  ebraska Commission on Unauthorized Practice of Law
N
Administrative Rules, Regulations, and Procedures.
The amendments to articles 3 and 8, and the amendments to
Neb. Ct. R. §§ 3-100 and 3-1010, shall be effective on January
1, 2014. In order to ensure an orderly transition of adminis-
trative functions regarding admissions, trust funds, and the
unauthorized practice of law, all other amendments to the rules,
regulations, and procedures identified above shall be effective
on April 1, 2014.
Nebraska Advance Sheets
1038 286 NEBRASKA REPORTS
And we reiterate that the need for further amendments may
arise. We have already quoted the recognition in our 1937
opinion that correction or abandonment of a rule may be
accomplished by amendment or revocation in the exercise of
our sound judicial discretion.77 While abandonment and revo-
cation are unlikely, correction by amendment may be required
as the implementation of these changes progresses.
We recognize that as of the date of issuance of this opin-
ion, the billing statements for bar dues for 2014 have been
distributed. Indeed, this court just recently approved the rates
for bar dues and the disciplinary assessment required for 2014.
Therefore, in order to effectuate the directive of this court
based on this opinion and ensure an orderly transition in the
structure of the financing of the Bar Association, we direct that
the Bar Association conduct, as soon as practicable, a special
mailing advising each of its members that (1) the member
must pay mandatory membership assessments established by
the Supreme Court in the amount appropriate to the member’s
class of membership as set forth below:
Membership § 3-100(B) § 3-301(E) § 3-1010(B)
Class (Adm.) (Discipline) (UPL) Total
Regular Active $25.00 $60.00 $13.00 $98.00
Junior Active $25.00 $60.00 $13.00 $98.00
Senior Active $25.00 $60.00 $13.00 $98.00
Judicial Active $25.00 $60.00 $13.00 $98.00
Military Active 0 0 0 0
Regular Inactive $12.50 $30.00 $  6.50 $49.00
Emeritus Inactive 0 0 0 0
(2) the member may elect to pay the voluntary dues component
of the Bar Association by paying such voluntary dues in an
amount to be established by the Bar Association for the 2014
calendar year, with credit for any amount previously paid in
excess of the mandatory membership assessments; and (3)
if the member elects not to pay the voluntary dues compo-
nent, the member shall be entitled to a refund of any amounts
77
See In re Integration of Nebraska State Bar Ass’n, supra note 6.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1039
Cite as 286 Neb. 1018previously paid by the member for the 2014 calendar year in
excess of the mandatory membership assessments.
Thus, we grant the petition in part and, in part, deny
the petition.
P etition granted in part, and in part denied.
ATTACHMENT TO CASE NO. S-36-120001
CHAPTER 3
ATTORNEYS AND THE PRACTICE OF LAW
ARTICLE 1
ADMISSION REQUIREMENTS FOR
THE PRACTICE OF LAW
Preamble.
....
§ 3-100. Supreme Court jurisdiction.
(A) The Supreme Court exercises jurisdiction over all mat-
ters involving the licensing of persons to practice law in
the State of Nebraska. Accordingly, the Supreme Court has
adopted the following rules governing admission to the prac-
tice of law.
(B) Every attorney admitted to practice in the State of
Nebraska shall pay a bar admissions assessment for each cal-
endar year from January 1 to December 31, payable in advance
on or before January 1 of each year, in such amount as may
be fixed by the Court. The first bar admissions assessment
shall be due on or before January 1, 2014. In accordance with
Neb. Ct. R. § 3-803(D), such assessment shall be paid to the
Treasurer of the Nebraska State Bar Association and shall be
used to defray the costs of bar admissions administration and
enforcement as established by these rules. Different classifica-
tions of bar admissions assessments may be established for
Active Jr., Active Sr., Active, Inactive, Military, and Emeritus
members as those membership classes are defined in Neb. Ct.
R. § 3-803. Members newly admitted to the practice of law in
Nebraska Advance Sheets
1040 286 NEBRASKA REPORTS
the State of Nebraska shall not pay a bar admissions assess-
ment for the remainder of the calendar year in which they
are admitted.
(C) Members who fail to pay the bar admissions assessment
shall be subject to suspension from the practice of law as pro-
vided in Neb. Ct. R. § 3-803(E).
....
§ 3-103. Director of admissions.
The Supreme Court’s shall appoint a director of admissions
(director), employed by the Court pursuant to Neb. Ct. R.
§ 3-803(A)(2), who shall serve under the supervision of the
Court and perform such duties for the Commission as these
rules may require. The director of admissions shall not be a
member of the Commission, but shall, for purposes of these
rules, act as the director of the Bar Commission.
....
§ 3-106. Communications in official confidence; immunity.
The records, papers, applications, and other documents con-
taining information collected and compiled by the Commission,
its members, its the director, Commission employees, agents, or
representatives are held in official confidence for all purposes
other than cooperation with another bar licensing authority.
Provided, however, that an applicant’s appeal to the Supreme
Court may result in such communications becoming public
record. The Commission, its members, its the director, and all
Commission employees, agents, or representatives are immune
from all civil liability for damages for conduct and communi-
cations occurring in the performance of and within the scope of
the Commission’s duties relating to the examination, character
and fitness qualification, and licensing of persons seeking to be
admitted to the practice of law. Records, statements of opinion,
and other information regarding an applicant communicated to
the Commission by any person or entity, firm, governmental
authority, or institution, are privileged, and civil suits for dam-
ages predicated thereon may not be instituted.
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1041
Cite as 286 Neb. 1018§ 3-115. Reasonable accommodation.
....
(E) Forms. All forms necessary to complete a request for
special testing accommodations will be available at no charge
from the Ddirector of the Nebraska State Bar Commission. The
applicant may file any additional documentation in support of
the request.
....
APPENDIX C
POLICY ON APPLICANTS WITH A DISABILITY
....
IV. COMMISSION DECISIONS
A. Procedures for Review of Requests
....
2. In reviewing a request, the commission will follow these
procedures.
(a) The commission will make a determination, and the sec-
retary director of the commission will send notification of the
determination to the applicant, no fewer than 25 days before
the examination.
....
APPENDIX D
NEBRASKA STATE BAR COMMISSION
EMERGENCY PREPAREDNESS PLAN
....
Policies and Procedures to Be Followed in
Case of Emergencies
During the examination, the Site Supervisor and staff members
will be wearing radios so they can be immediately contacted in
the event of an emergency. The Site Supervisor must rapidly
go to the site of any incident or emergency and quickly assess
the situation. If the situation requires it, 911 should be called
Nebraska Advance Sheets
1042 286 NEBRASKA REPORTS
immediately. The safety of the applicants, proctors, and staff is
always of primary concern. The Executive Director director of
admissions must be contacted promptly and given a report of
the incident or emergency. If 911 is called, the Site Supervisor
should immediately notify facility staff so that they can assist
in meeting the emergency personnel and directing them to the
appropriate location.
In any situation where a dispute arises, the Site Supervisor or
staff member should attempt to calm the applicant and inform
the applicant that the matter is being reported to the Executive
Director director of admissions so that a decision can be made
on how to proceed. As with any incident, the “Emergency
Report” form (Form A) should be completed by the Site
Supervisor as soon as possible.
....
Delayed Starting Time
While there may be very good reasons for delaying the exami-
nation, every attempt should be made to start the examination
on time. If time permits, the Site Supervisor should contact the
Executive Director director of admissions to report the delay
and get instructions on when to begin the afternoon session.
The Executive Director director of admissions will advise of
the correct action to take, but in any event, the afternoon ses-
sion should not begin less than 1 hour after the applicants have
been dismissed from the morning session.
In the event of a natural disaster, the Executive Director direc-
tor of admissions should be contacted prior to the start of the
examination, as soon as the problem is identified. If the deci-
sion is made to give all applicants extra time, the Speaker will
be directed to make such an announcement. If a decision is
made to give individual applicants extra time, a board staff
member will advise each affected applicant that he/she has
been granted a certain amount of extra time. The applicant
will be instructed to continue the examination after the other
applicants have been dismissed. The applicant will be stopped
individually when the extra time is up.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1043
Cite as 286 Neb. 1018Extended Time
Generally, extended time to complete an examination ses-
sion by the amount of time lost due to a personal incident is
not given.
If it is determined that a Major Disruption has occurred or that
a small number of applicants have been negatively affected
by a circumstance beyond their control and that it is possible
to maintain the integrity of the testing environment, then the
examination can be stopped for up to 11⁄2 hours if the test site
can accommodate the extended time. The Speaker should begin
to read the disruption text that is attached as Appendix A to this
Emergency Preparedness Plan. This should only be read after
receiving instructions from the Executive Director director of
admissions to do so.
....
Restart or Dismiss
After a determination to stop an examination has been made,
the Executive Director director of admissions needs to deter-
mine whether to restart the examination or dismiss the exam-
inees for the session. An examination can be restarted after the
following criteria have been considered:
....
Disputed Time Announcements
The Site Supervisor is responsible for the accuracy of time
announcements. The Site Supervisor will stand at the podium
to ensure the announcements are the correct time and given at
the appropriate time. If an applicant disputes a time announce-
ment, the Site Supervisor should be contacted immediately. The
Site Supervisor should report any such dispute to the Executive
Director director of admissions and complete a “Record of
Irregularity” form (Form B).
Flooding, Etc., at Facility
As soon as such an incident is determined, the Site Supervisor
must contact the Executive Director director of admissions
immediately. Several proctors should be assigned to the
Nebraska Advance Sheets
1044 286 NEBRASKA REPORTS
entrances of the examination room to advise the applicants that
the situation is being assessed and further information will be
provided as soon as it becomes available. Facility staff should
be contacted immediately to determine what can be done to
rectify the situation and make whatever arrangements are nec-
essary to start the examination on time or as close to on time
as possible.
Fire Drills
The Site Supervisor should immediately determine if the fire
alarm is a drill or an actual alarm. If it is a drill, the Site
Supervisor should immediately contact facility staff and have
the alarm shut off. The Executive Director director of admis-
sions should then be contacted to determine if the disruption
was significant enough to warrant the granting of additional
testing time. If the alarm is valid, the procedures for the evac­
uation of the facility, stated below, should be followed.
Evacuation of Facility
Before the examination, you should review the set-up dia-
gram of the facility to familiarize yourself with the location
of all exits. If time permits, the Executive Director director
of admissions should be contacted immediately and evacua­
tion procedures should be followed. The examination must
be stopped and the time noted. The proctors should begin to
move the applicants out of the building. The applicants may
resist all efforts to be “herded.” However, sufficient pres-
ence should be displayed to avoid panic. A calm, solicitous
approach, suggesting that the orderly and rapid exit and
reassembly is to the applicant’s personal advantage is much
more likely to result in a successful emergency exit than is
an attitude on the part of the proctors which tends to demand
military precision or gives the impression of such demands.
If there is time, proctors should collect all examination mate-
rials. If there is a threat of fire, the last person out should
close the doors. If there is a bomb threat, the doors should be
left open.
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1045
Cite as 286 Neb. 1018Noise From Another Group Using Facility
The Site Supervisor must go directly to the facility staff
and demand that the noise he stopped. If the facility staff
does comply with the demand, the Executive Director direc-
tor of admissions should be contacted as soon as the prob-
lem has been resolved with the action that was taken. If the
facility staff refused to comply with the demand, the Site
Supervisor must contact the Executive Director director of
admissions immediately.
When noise problems occur outside of the facility, the Site
Supervisor must immediately go to the source of the noise and
attempt to get the noise stopped. The Site Supervisor should
then return to the room and make notes regarding the problem.
An exact diagram of the room should be drawn so that the
Executive Director director of admissions will know exactly
which of the applicants were affected by the noise problem.
Make sure proctors in the area write a detailed incident report
on the “Record of Irregularity” form (Form B). If the Site
Supervisor is unsuccessful in stopping the noise, the Executive
Director director of admissions should be contacted to deter-
mine a course of action. Any of the Applicants who complain
should be moved to another area if there is space available. It
may be determined that the examination will be stopped until
the noise ceases; however, the Executive Director director of
admissions can only make that decision.
Electrical Problems
....
In the event of a power outage, the exact time of the outage
and the length of time of the outage should be documented.
The Site Supervisor should notify the Executive Director direc-
tor of admissions immediately of any such outage. The appli-
cants should be given additional time that is equal to the length
of time of the outage.
Please note: The Site Supervisor should first check to see if
the electrical problem may have been caused by plugs being
kicked out of wall or floor outlets.
Nebraska Advance Sheets
1046 286 NEBRASKA REPORTS
Applicants Leaving Examination Room
Any applicant who leaves the examination room prior to com-
pleting the session should not be readmitted. If he/she objects,
the Executive Director director of admissions should be con-
tacted immediately to report the situation and ask for guidance.
....
MBE Answer Sheet
If an applicant marks circles (M/C) in their question book, con-
tact the Executive Director director of admissions for guidance.
....
People Wanting to Learn Whereabouts of Applicants
All applicant information is confidential, and no staff mem-
ber or proctor is to release any information regarding the
whereabouts of an applicant. If the inquirer states that it is an
emergency, the information should be taken and the Executive
Director director of admissions must be contacted immediately
for further guidance. No indication is to be given regarding
whether or not an applicant is present. These instructions relate
to the media and law enforcement personnel as well.
Possible Imposters
In the possibility that an imposter is suspected of taking the
examination for someone else, the incident must be well
documented. The Site Supervisor and the Section Supervisor
must provide a detailed description of the applicant; carefully
observe the applicant involved and state, in detail, the reason
for suspecting that the applicant is an imposter. Do not inter-
rupt the applicant or otherwise disturb him/her. During the
roll call portion of the examination, the Section Supervisor
should pay extra attention that the photo identification pro-
vided is valid. The Executive Director director of admis-
sions should be contacted immediately to report the suspected
imposter. The Site Supervisor should clandestinely take the
suspected imposter’s photograph with the digital camera (at
each test site).
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1047
Cite as 286 Neb. 1018Complaints of Harassment by Proctors
The Site Supervisor should go to the spot and observe the sit­
uation. After the session is complete, he/she should interview
the complaining applicant. The Site Supervisor should not get
involved with an argument or take either side. It is his/her pri-
mary responsibility to calm both parties and gather facts.
The Site Supervisor should advise the complaining applicant
that the matter will be reported in detail to the Executive
Director director of admissions and that if he/she wishes to
file an additional statement, it should be forwarded to the
Executive Director director of admissions. The Site Supervisor
should offer to move the applicant to a vacant seat in another
section. The Site Supervisor should get a detailed account of
the incident from the proctor and submit it in conjunction with
his/her report of the incident.
Unruly Applicants
The Site Supervisor and security personnel should observe the
applicant and immediately determine if the applicant should
be moved to another area of the testing room, or escorted out
of the testing room. The Site Supervisor should contact the
Executive Director director of admissions prior to having the
applicant leave the testing room.
....
Typographical Errors
If such an error is reported, the Executive Director director of
admissions should be contacted immediately. Make no com-
ment to any proctor or applicant regarding the error. Advise
anyone inquiring about the error that the matter is being
reported and that they should answer the question as stated.
If the applicant feels there is an issue, the applicant should
submit a detailed written description to the Executive Director
director of admissions immediately after the bar examination
has concluded.
Receipt of Threat to Safety
Notice of the possibility of a condition that might require
the emergency exit from an examination site can arrive from
Nebraska Advance Sheets
1048 286 NEBRASKA REPORTS
a variety of sources. Possibly an applicant may return from
lunch with a rumor of a planned disruption which he or she
has overheard. A member of the facility staff may report some
reference to an emergency. A bomb threat might be incoming
on the telephone. Irrespective of the source and nature of the
information received, the recipient should gain all possible
information. The “Response to Personally Delivered Threat
Information” form (From D) should be made available in all
sections. Upon rapid, thorough, and accurate completion of
the form, it should be quickly hand-delivered to either the
Executive Director director of admissions or Site Supervisor,
whoever happens to be the most readily available.
In the event the threat is such that the site will probably be
uninhabitable preventing reentry, a dismissal exit should occur,
but must first be approved by the Executive Director director
of admissions. The time remaining in the session would also be
a consideration. If there is only the threat of unknown validity,
the emergency should be thoroughly analyzed before the exit
is ordered.
Death or Serious Injury Notification
....
The Executive Director director of admissions must be advised
before any action is taken or the applicant is notified. The
Executive Director director of admissions or, if delegated, the
Site Supervisor will personally make the notification. . . .
Media Coverage (TV, Newspapers, Magazines, Etc.)
If media personnel, such as reporters or camera men, are pres-
ent at the bar examination site, the Site Supervisor or his/her
designee must notify the Executive Director director of admis-
sions as soon as possible. Only the Site Supervisor is autho-
rized to speak to the media and then, can ONLY discuss topics
regarding general bar examination information that could be
found on the Board’s Web site. It must be remembered that
ALL applicant information, including their identity, is confi-
dential. . . .
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1049
Cite as 286 Neb. 1018NEBRASKA STATE BAR COMMISSION
EMERGENCY REPORT
Name of Emergency: _________________________________
___________________________________________________
___________________________________________________
Number of Applicants affected: _________________________
Location of Test Site: _________________________________
Proximity of Emergency to Other Applicants: ______________
Did Applicants leave their seats?: ______________ If so, how
many?: ________________
Examination numbers of applicants who left their seat: ________
Did other Applicants assist?: ____________________________
Examination numbers of applicants who assisted: __________
___________________________________________________
What time did it occur?: __________________ How much
time was left in the session?: ___________________
What portion of the examination was being administered (PT,
Essay, MBE)?: ______________________________________
Was there excessive noise?: ________________ If so, describe
in detail: ___________________________________________
___________________________________________________
Other relevant details?: ______________________________
___________________________________________________
___________________________________________________
Time Executive Director director of admissions was called:
_______________________
Time Executive Director director of admissions returned call
with instructions on how to proceed: _____________________
Decision was: _______________________________________
___________________________________________________
___________________________________________________
FORM A
(Emergency Preparedness Plan)
....
Nebraska Advance Sheets
1050 286 NEBRASKA REPORTS
NEBRASKA BAR COMMISSION
DISRUPTION TEXT
(To be used in instances where a disruption has occurred and
stopping of the examination is required.)
Stop writing (typing) now. I repeat, stop writing (typing) now.
Put your pencils (pens) down and do not make any further
marks on your examination papers until you are told to begin
writing (typing). Please do not converse with other applicants
or leave your seat. A disruption has occurred at this examina-
tion site. It is the decision of the Executive Director director
of admissions that this examination session be temporarily
stopped until the disruption is dealt with. I repeat, it is the
direction of the Executive Director director of admissions that
this examination session be temporarily stopped until the dis-
ruption is dealt with.
(Describe the disruption if appropriate.)
Again, do not converse with other applicants or leave your
seat. I will keep you updated regarding the situation as infor-
mation is relayed to me.
(Keep repeating sequences advising them not to write (type),
talk or leave their seats, if you are advised to evacuate the test
site, refer to the exit text.)
(If you are advised to restart the examination.)
(Describe how the disruption has been dealt with.)
(Announce)
Due to the disruption, applicants at this test site will receive
_______________________________ of extra time to com-
plete this session of the examination. You have exactly
__________________________ minutes to finish this session
of the examination after I tell you to begin.
BEGIN.
APPENDIX A
(Emergency Preparedness Plan)
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1051
Cite as 286 Neb. 1018APPENDIX E
FEES
Examination Fee: An application fee of $490 payable by
bank cashier’s check or money order,
payable to the Director Secretary, Nebraska
State Bar Commission, must accompany
your application. The Nebraska State Bar
Commission does not accept cash, per-
sonal checks, or firm checks.
....
Motion Fee: The required $925 for a Class I-A,
Class I-B, and Class I-C applicant must
be paid in bank cashier’s check or
money order only, made payable to the
Director Secretary, Nebraska State Bar
Commission. The Nebraska State Bar
Commission does not accept cash, per-
sonal checks, or firm checks.
Late Application Fee: $150 for applications received no more
than 30 days past the filing deadline.
....
CHAPTER 3
ATTORNEYS AND THE PRACTICE OF LAW
ARTICLE 3
DISCIPLINE PROCEDURES FOR LAWYERS
§ 3-301. Jurisdiction.
....
(E) Every attorney admitted to practice in the State of
Nebraska shall pay a disciplinary assessment for each calen-
dar year from January 1 to December 31, payable in advance
on or before January 1 of each year, in such amount as may
be fixed by the Court. The first disciplinary assessment shall
Nebraska Advance Sheets
1052 286 NEBRASKA REPORTS
be due on or before January 1, 2001. The disciplinary assess-
ment shall be paid to the Treasurer of the Association and
shall be used to defray the costs of disciplinary administration
and enforcement as established by these rules. Different clas-
sifications of disciplinary assessments may be established for
Active Jr., Active Sr., Active, Inactive, Military, and Emeritus
members as those membership classes are defined in Neb. Ct.
R. § 3-803. Members newly admitted to the practice of law
in the State of Nebraska shall not pay a disciplinary assess-
ment for the remainder of the calendar year in which they
are admitted.
....
§ 3-310. Procedure: Nebraska Supreme Court.
....
(N) The Court may disbar, suspend, censure, or reprimand
the Respondent, place him or her on probation, or take such
other action as shall by the Court be deemed appropriate. All
orders of public discipline shall be forwarded by the Clerk to
the Supreme Court’s Director of Admissions membership sec-
retary of the Nebraska State Bar Association.
....
§ 3-311. Disability inactive status:
Incompetency or incapacity.
....
(D) If, upon due consideration of the matter, the Court con-
cludes the member is incapacitated from continuing to practice
law, it shall enter an order placing the member on disability
inactive status on the grounds of such disability until further
order of the Court, and any pending disciplinary proceeding
against the member shall be held in abeyance. Members on
disability inactive status shall not be required to pay annual
dues or disciplinary mandatory membership assessments to
the Nebraska State Bar Association required by Neb. Ct. R.
§ 3-803(D).
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1053
Cite as 286 Neb. 1018CHAPTER 3
ATTORNEYS AND THE PRACTICE OF LAW
ARTICLE 8
STATE BAR ASSOCIATION; CREATION;
CONTROL; AND REGULATION
....
§ 3-802. Purpose and authority.
(A) Purpose. The purposes of this Association are to assist
in the collection and distribution of Nebraska Supreme Court
mandatory membership assessments used to pay all costs asso-
ciated with the Court’s regulation of the practice of law;
improve the administration of justice; to foster and maintain
high standards of conduct, integrity, confidence, and public
service on the part of those engaged in the practice of law; to
safeguard and promote the proper professional interests of the
members of the Bar; to provide improvements in the education
and qualifications required for admission to the Bar, the study
of the science of jurisprudence and law reform, and the con-
tinuing legal education of the members of the Bar; to improve
the relations of the Bar with the public; to carry on a continu-
ing program of legal research; and to encourage cordial rela-
tions among the members of the Bar. All of these purposes are
to the end that the public responsibilities of the legal profession
may be more effectively discharged.
(B) Government. Subject to the inherent authority of the
Nebraska Supreme Court, Tthe supreme authority of this
Association shall be vested in the membership thereof through
the exercise of the power of Initiative and Referendum in
such manner as may be prescribed in the bylaws. Subject
thereto, and except as otherwise provided by the rules of the
Supreme Court, the control over the business and affairs of this
Association shall be vested in a House of Delegates, as pro-
vided in § 3-805. Subject to the overall control of the House of
Delegates, the Executive Council shall function as the admin-
istrative and executive organ of the Association as provided
in § 3-806. The officers of the Association, as hereinafter
Nebraska Advance Sheets
1054 286 NEBRASKA REPORTS
enumerated, shall have the prerogatives, responsibilities, and
qualifications and shall perform the duties of the respective
offices, all as provided in § 3-804.
§ 3-803. Membership.
(A) Requirements and Records of Membership.
(1) All persons who, on the date that these rules go into
effect, are admitted to the practice of law in this State, by order
of the Nebraska Supreme Court, shall constitute the members
of this Association, subject to due compliance with the require-
ments for membership hereinafter set forth, including payment
of mandatory membership assessments as may be fixed by the
Nebraska Supreme Court.
(2) The Director of Admissions, who shall be an employee
of the Nebraska Supreme Court, shall maintain all records
of membership of the Association and perform all other
duties and responsibilities required by the Supreme Court and
these rules.
(B) Classes. Members of this Association shall be divided
into four classes, namely: Active members, Inactive members,
Law Student members, and Emeritus members.
(1) All members who are licensed to engage in the active
practice of law in the State of Nebraska, who do not qualify for
and apply for Inactive membership status, and who are not Law
Student members, shall be Active members.
(2) Any member who is not actively engaged in the practice
of law in the State of Nebraska, or who is a nonresident of the
State of Nebraska and not actively engaged in the practice of
law in Nebraska, and who is not an Emeritus member, may, if
he or she so elects, be placed in Inactive membership status.
A member desiring to be placed in Inactive membership
status shall file written application therefor with the Secretary
Director of Admissions and, if otherwise qualified, shall be
placed in such inactive status classification. No Inactive mem-
bers shall practice law in Nebraska, or vote or hold office in this
Association. Any Inactive member may, on filing application
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1055
Cite as 286 Neb. 1018with the Secretary Director of Admissions and upon payment
of the required dues, and compliance with such requirements
as may be imposed by the Supreme Court to show fitness to
engage in the active practice of law in this State, become an
Active member.
(3) Any member who attained the age of 75 years of
age during the dues year being billed or has been actively
engaged in the practice of law in the State of Nebraska for
50 years or more during the dues year being billed may, if
he or she so elects, be placed in an Emeritus membership
status. A member desiring to be placed in an Emeritus mem-
bership status shall file written application therefor with the
Secretary Director of Admissions and, if otherwise qualified,
shall be placed in the Emeritus status classification. A member
electing Emeritus classification shall not be required to pay
membership dues to this Association. No Emeritus member
shall practice law in Nebraska, or vote or hold office in this
Association. Any Emeritus member may, on filing application
with the Secretary Director of Admissions and upon payment
of the required dues and compliance with the requirements
as may be imposed by the Supreme Court to show fitness to
engage in the active practice of law in this State, become an
Active member.
....
(6) In order to make information available to the public
about the financial responsibility of each active member of
this Association for professional liability claims, each such
member shall, upon admission to the Bar, and with as part of
each application for renewal thereof, submit the certification
required by this rule. For purposes of this rule, professional
liability insurance means:
....
Each active member shall certify to this Association the
Nebraska Supreme Court, through its Director of Admissions,
on or before January 1 of each year: 1) whether or not
such member is currently covered by professional liability
insurance, other than an extended reporting endorsement;
Nebraska Advance Sheets
1056 286 NEBRASKA REPORTS
2) whether or not such member is engaged in the private
practice of law involving representation of clients drawn from
the public; 3) whether or not such member is a partner, share-
holder, or member in a domestic professional organization as
defined by the rule governing Limited Liability Professional
Organizations, and 4) whether or not the active member is
exempt from the provisions of this rule because he or she is
engaged in the practice of law as a full-time government attor-
ney or in-house counsel and does not represent clients outside
that capacity.
The foregoing shall be certified by each active member
of this Association in on such form as may be prescribed by
the Nebraska Supreme Court this Association which shall be
included within the Association’s annual mandatory assessment
and voluntary dues statement. and Such certifications shall be
made available to the public by such any means as may be
designated by the House of Delegates Supreme Court. Failure
to comply with this rule shall result in suspension from the
active practice of law until such certification is received. An
untruthful certification shall subject the member to appropri-
ate disciplinary action. All members shall notify the Secretary
Director of Admissions in writing within 30 days if 1) profes-
sional liability insurance providing coverage to the member has
lapsed or is not in effect, or 2) the member acquires profes-
sional liability coverage as defined by this rule.
All certifications not received by April 1 of the current
calendar year shall be considered delinquent. The Secretary
Director of Admissions shall send written notice, by certi-
fied mail, to each member then delinquent in the reporting of
professional liability insurance status, which notice shall be
addressed to such member at his or her last reported address,
and shall notify such member of such delinquency. All mem-
bers who shall fail to provide the certification within 30 days
thereafter shall be reported to the Supreme Court by the
Secretary Director of Admissions, and the Supreme Court shall
enter an order to show cause why such member shall not be
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1057
Cite as 286 Neb. 1018suspended from membership in this Association. The Supreme
Court shall enter such an order as it may deem appropriate. If
an order of suspension shall be entered, such party shall not
practice law until restored to good standing.
....
(C) Registration. All members not already registered with
the Secretary of this Association Director of Admissions shall,
within 60 days after being admitted to the practice of law by the
Supreme Court of this State, register with the Secretary of this
Association Director of Admissions by setting forth the mem-
ber’s full name, business address, and signature. All members
shall promptly notify the Secretary Director of Admissions, in
writing, of any change in such address.
(D) Dues Mandatory Membership Assessments.
(1) Payment of Assessments Dues. Each member shall pay
mandatory membership assessments dues to this Association
for each calendar year from January 1 to December 31 fol-
lowing, payable in advance on or before January 1 of each
year, in such amounts as may be fixed by the Supreme Court
pursuant to Neb. Ct. R. §§ 3-100(B), 3-301(E). and 3-1010(B).
All dues such assessments shall be paid to the Treasurer of
this Association and shall constitute the funds for furthering
the purposes of this Association, remitted to the Nebraska
Supreme Court and shall be used for the administration and
enforcement of the regulation of the practice of law by the
Court. Different classifications of dues assessments may be
established for Active, Inactive, and Law Student members and
for those members who have been admitted to the Bar of any
State or other jurisdiction for a period of less than 5 years and
for those members who are serving in the Armed Forces of the
United States, while so serving. Members newly admitted to
this Association shall receive a complimentary membership for
the remainder of the current calendar year. The Aannual man-
datory membership assessments dues beginning calendar year
2009 2014 shall be as follows:
Nebraska Advance Sheets
1058 286 NEBRASKA REPORTS
Membership § 3-100(B) § 3-301(E) § 3-1010(B)
Class (Adm.) (Discipline) (UPL) Total
Regular Active* $25.00 $60.00 $13.00 $98.00
Junior Active** $25.00 $60.00 $13.00 $98.00
Senior Active*** $25.00 $60.00 $13.00 $98.00
Judicial Active $25.00 $60.00 $13.00 $98.00
Military Active**** 0 0 0 0
Regular Inactive $12.50 $30.00 $ 6.50 $49.00
Emeritus Inactive 0 0 0 0
* (Members who have been admitted to the Bar of any State or
other jurisdiction for more than 4 calendar years following the
calendar year of admission.)
** (Members who have been admitted to the Bar of any State
or other jurisdiction for 4 or fewer calendar years following the
calendar year of admission.)
*** (Members 75 years of age or older during the assessments
year being billed.)
**** (A member actively engaged in the Armed Forces of
the United States at the beginning of any calendar year shall
be exempt from payment of assessments for such year upon
submitting to the Director of Admissions, prior to the date
of delinquency provided for in this Article, satisfactory proof
that he or she is so engaged; upon receipt of such proof, the
Director of Admissions shall issue a membership card to the
member under the classification held by the member prior to
his or her induction in the service and shall cause the records
of this Association to show that such card was issued without
payment of dues.)
Active
(Members who have been admitted to the Bar of any
$275
State or other jurisdiction for more than 4 calendar
years following the calendar year of admission.)
Junior Active
(Members who have been admitted to the bar of any
$160
State or other jurisdiction for 4 or fewer calendar
years following the calendar year of admission.)
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1059
Cite as 286 Neb. 1018Senior Active
(Members 75 years of age or older during the dues $ 70
year being billed.)
Inactive $ 65
Military
(A member actively engaged in the Armed Forces
of the United States at the beginning of any calen-
dar year shall be exempt from payment of dues for
such year upon submitting to the Secretary, prior to
the date of delinquency provided for in this Article,
satisfactory proof that he or she is so engaged; upon $  0
receipt of such proof, the Secretary shall issue a
membership card to the member under the classifi-
cation held by the member prior to his or her induc-
tion in the service and shall cause the records of
this Association to show that such card was issued
without payment of dues.)
Emeritus $  0
Effective January 1, 1999, and each year thereafter, a (2)
A late fee of $25 shall be assessed each Active or Inactive
member whose dues mandatory assessments are received after
January 1, a late fee of $50 shall be assessed on dues manda-
tory assessments received on or after February 1, and a late
fee of $75 shall be assessed on dues mandatory assessments
received on or after March 1.
(3) Funds collected by mandatory assessments pursuant
to Neb. Ct. R. §§ 3-100(B) and 3-1010(B) shall be used by
the Nebraska Supreme Court’s Director of Admissions and
Counsel on Unauthorized Practice of Law for regulatory man-
agement and oversight as required by the Court under its con-
stitutional and inherent authority.
(2) Lobbying and Related Activities.
(a) This Association may use dues to analyze and dissemi-
nate to its members information on proposed or pending legis-
lative proposals.
Nebraska Advance Sheets
1060 286 NEBRASKA REPORTS
(b) All lobbying activities shall be subject to the following
restrictions: The annual dues notice shall offer the members
of the Bar an opportunity to direct that the stated amount of
their dues intended for lobbying activities be placed instead
in a restricted account. Funds from this account shall be
budgeted by the Executive Council for activities which will
promote the administration of justice or improvements of
the legal system. The established budget for lobbying activi-
ties shall be reduced by the amount that is directed to the
restricted account.
(E) Delinquency and Reinstatement. All dues and mandatory
membership assessments not paid by April 1 of the current
calendar year shall be considered delinquent; and the Secretary
Director of Admissions shall send written notice, by certified
mail, to each member then delinquent in the payment of his
or her dues and assessments, which notice shall be addressed
to such member at his or her last reported address, and shall
notify such member of such delinquency. All members who
shall fail to pay delinquent dues and assessments within 30
days thereafter shall be reported to the Supreme Court by the
Secretary Director of Admissions, and the Supreme Court shall
enter an order to show cause why such member shall not be
suspended from membership in this Association. The Supreme
Court shall, after hearing thereon, enter such an order as it may
deem appropriate. If an order of suspension shall be entered,
such party shall not practice law until restored to good stand-
ing. Whenever a member suspended for nonpayment of dues
and/or mandatory membership assessments shall make pay-
ment of all arrears, and shall satisfy the Supreme Court of his
or her qualification to then return to the active practice of law,
such member shall be entitled to reinstatement upon request.
The Secretary Director of Admissions shall keep a complete
record of all suspensions and reinstatements. No person, while
his or her membership is suspended, shall be entitled to
exercise or receive any of the privileges of membership in
this Association.
(F) Suspension or Disbarment. Any member who shall be
suspended or disbarred from the practice of law by the Supreme
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1061
Cite as 286 Neb. 1018Court shall, during the period of such suspension or disbar-
ment, be likewise suspended or barred from membership in
this Association. On reinstatement to practice by the Supreme
Court, such party shall, on written request and upon payment
of the requisite fees and/or mandatory assessments, be restored
to membership in this Association.
(G) Fees. Nothing herein contained shall be construed to
limit the power of this Association, or of any of its sections or
committees, to assess voluntary registration fees or attendance
fees for meetings, institutes, or continuing legal education ses-
sions as may be approved or determined from time to time by
the House of Delegates or the Executive Council.
(H) Resignation. Any member may resign either active or
inactive membership in this Association by tendering his or
her written resignation to the Clerk of the Supreme Court of
Nebraska on a form to be provided. This form shall include
an affidavit to be completed by the member seeking to resign,
stating that the member has not been suspended or disbarred
in any other state or by any court; that the member has not
voluntarily surrendered his or her license to practice law in any
other state or to any court in connection with any investiga-
tion or disciplinary proceeding against the member; that to the
member’s knowledge he or she is not then under investigation,
nor has a complaint or charges pending against him or her with
reference to any alleged violation of professional responsibili-
ties as a lawyer; and that the member agrees to be subject to
the jurisdiction of the Supreme Court for a period of 3 years
from the date his or her resignation is accepted for the purpose
of disciplinary proceedings for any alleged violation of his
or her professional responsibilities as a lawyer. During this
3-year period, the acceptance of his or her resignation may be
set aside by the Supreme Court upon application filed in the
Supreme Court by the Counsel for Discipline. If the affidavit
is completed, the Supreme Court may accept the resignation,
provided the resigning member’s dues mandatory membership
assessments are not delinquent, or may accept it upon payment
of any such delinquent dues assessments, unless the member
Nebraska Advance Sheets
1062 286 NEBRASKA REPORTS
seeking to resign has been suspended for the nonpayment of
dues assessments as provided for in § 3-803(E), in which event
the submitted resignation shall not be acted upon until the
member seeking resignation has been reinstated as provided
for in said section. In the event the affidavit is not fully com-
pleted, or any exception is taken to it, the tendered resignation
shall be rejected. The Clerk shall keep a complete record of all
requests for resignation and all resignations and shall report to
the Secretary Director of Admissions the names and addresses
of members whose resignations have been accepted by the
Supreme Court.
(I) Reinstatement Following Resignation. Whenever a for-
mer member of this Association who resigned is readmitted
to the practice of law in Nebraska by the Supreme Court, the
member shall pay dues mandatory membership assessments for
the year in which he or she is readmitted and be reinstated as a
member of this Association.
(J) Voluntary Dues for Lobbying and Related Activities.
This Association may establish, collect, and use voluntary
membership dues to analyze and disseminate to its members
information on proposed or pending legislative proposals and
any other nonregulatory activity intended to improve the qual-
ity of legal services to the public and promote the purposes of
the Association as set forth in § 3-802.
§ 3-804. Officers.
....
(G) Duties and Powers.
....
(5) The Secretary shall be the custodian of the records and
archives of this Association; shall maintain the membership
and all other records of this Association; shall report the min-
utes of all meetings of this Association, the Executive Council,
and the House of Delegates; and shall perform such other
duties and responsibilities as may be provided by the bylaws
and these rules.
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1063
Cite as 286 Neb. 1018(6) The Treasurer shall be the custodian of and shall super-
vise the collection and disbursement of all funds and properties
of this Association, shall disburse the funds of this Association
as provided in §§ 3-803(D) and 3-809, and shall have such
other duties and responsibilities as may be provided by the
bylaws and these rules.
(7) The Executive Director shall have such responsibilities
and perform such duties as shall be delegated to him or her
by the Nebraska Supreme Court, Executive Council, and the
House of Delegates and shall perform such other duties and
responsibilities as may be provided by the bylaws.
....
§ 3-805. House of delegates.
(A) Duties and Powers. Except as otherwise provided by
the Nebraska Supreme Court, Tthe House of Delegates shall
be the governing body of this Association; shall exercise
overall jurisdiction over the affairs of this Association; shall
determine and implement the policies and objectives of this
Association; shall, consistent with these rules and the purposes
of this Association, prepare, adopt, and amend bylaws for the
government and operation of this Association, including the
provisions for an annual meeting of this Association; and shall
perform such other functions as are provided by these rules and
the bylaws.
....
(H) Personnel and Publications. Except as otherwise pro-
vided by the Nebraska Supreme Court and these rules, Tthe
House of Delegates shall have the power and the duty to fully
administer this Article, including the power to employ neces-
sary personnel and to establish the policies of this Association
relating to official publications thereof.
....
§ 3-808. Meetings.
(A) Annual Meeting. This Association shall may have one
regular meeting annually at a time and place to be fixed by the
Nebraska Advance Sheets
1064 286 NEBRASKA REPORTS
Executive Council. Each member of this Association shall be
notified thereof by the Secretary by mail.
....
(D) Emergency Meetings. In case of extreme emergency, the
Executive Council, with the approval of the Supreme Court,
may dispense with the calling of the Annual Meeting, but in
such event shall call, in lieu thereof, a special session of the
House of Delegates. In the case of extreme emergency, the
Executive Council may call a special meeting, in such manner
as may be determined by such Council, of all persons licensed
to practice law in Nebraska.
§ 3-809. Budget and audit.
(A) Budget Preparation and Approval. The Budget and
Planning Committee of this Association, consisting of not more
than 13 members, shall study the income and expenses of
this Association, based on its collection and expenditure of
its annual voluntary dues, and shall prepare and submit to the
Executive Council a proposed budget for each fiscal year of this
Association. The Executive Council shall, upon receipt of such
proposed budget, pass upon the same, and shall thereupon pre-
pare and submit an annual budget of this Association’s receipts
and expenditures to the House of Delegates for its consideration
and approval. Such proposed budget shall not be effective until
30 days after it shall be approved by a majority vote of the
House of Delegates at a meeting for which at least 30 days’
notice, including a copy of the proposed budget, has been given.
The House of Delegates by majority vote thereof may amend or
modify the proposed budget prior to its final adoption.
....
(D) Circulation of Budget and Audit. The Executive Council,
prior to the Annual Meeting of this Association, shall file with
the Clerk of the Supreme Court and shall cause to be distrib-
uted to the voluntary members of this Association a copy of the
current annual budget, the proposed budget for the succeeding
year, and an annual statement showing a balance sheet and
operating statement for the last preceding fiscal year.
....
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1065
Cite as 286 Neb. 1018§ 3-811. Bylaws.
Suitable bylaws, not inconsistent with these rules, shall
be adopted by the House of Delegates and shall be amended
as necessary to reflect all Supreme Court amendments to
these rules.
....
§ 3-813. Enabling rules.
....
(B) Effective Date. These rules shall become effective on
January 1, 1971 2014.
....
§ 3-814. Filing bylaws and rules.
The Nebraska State Bar Association shall at all times keep
on file with the Clerk of the Nebraska Supreme Court and
Court of Appeals a current copy of its bylaws and all rules
under which its House of Delegates, Executive Council, and
various committees and sections operate.
CHAPTER 3
ATTORNEYS AND THE PRACTICE OF LAW
ARTICLE 9
TRUST FUND REQUIREMENTS FOR LAWYERS
....
§ 3-905. Trust account affidavit rules.
....
(E) Until otherwise directed by the Supreme Court, the affi-
davits and any other information required by § 3-905 shall be
collected and maintained by the Bar Association on behalf of
the Nebraska Supreme Court.
....
Nebraska Advance Sheets
1066 286 NEBRASKA REPORTS
CHAPTER 3
ATTORNEYS AND THE PRACTICE OF LAW
ARTICLE 10
UNAUTHORIZED PRACTICE OF LAW
....
§ 3-1010. Jurisdiction.
(A) Except as otherwise provided by § 3-1012(B), the
Supreme Court, in the exercise of its inherent jurisdiction
to define the practice of law and to prohibit the unautho­
rized practice of law within the State of Nebraska, adopts
the following procedures, which shall govern proceedings
under these rules concerning the unauthorized practice of
law (UPL).
(B) Every attorney admitted to practice in the State of
Nebraska shall pay a UPL assessment for each calendar year
from January 1 to December 31, payable in advance on or
before January 1 of each year, in such amount as may be
fixed by the Court. The first UPL assessment shall be due on
or before January 1, 2014. In accordance with Neb. Ct. R.
§ 3-803(D), such assessment shall be paid to the Treasurer
of the Nebraska State Bar Association and shall be used to
defray the costs of the administration and enforcement of the
unauthorized practice of law as established by these rules.
Different classifications of UPL assessments may be estab-
lished for Active Jr., Active Sr., Active, Inactive, Military, and
Emeritus members as those membership classes are defined in
Neb. Ct. R. § 3-803. Members newly admitted to the practice
of law in the State of Nebraska shall not pay a UPL assess-
ment for the remainder of the calendar year in which they
are admitted.
(C) Members who fail to pay the UPL assessment shall be
subject to suspension from the practice of law as provided in
Neb. Ct. R. § 3-803(E).
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1067
Cite as 286 Neb. 1018§ 3-1011. Commission; creation.
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(C) The Chief Justice shall appoint one member to chair
the Commission and one member as the secretary of the
Commission.
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§ 3-1012. Commission; jurisdiction and duties.
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(E) The Supreme Court hereby appoints the Executive
Director of the Nebraska State Bar Association as Secretary of
the Commission.
§ 3-1013. Counsel; appointment and duties.
(A) There shall be a Counsel on Unauthorized Practice of
Law (CUPL), who shall be a member of the Nebraska State
Bar Association.
(B) The CUPL shall be an employee of the Nebraska Supreme
Court State Bar Association, which shall fund the operations of
the office of the CUPL from the mandatory Supreme Court
assessment established pursuant to § 3-1010(B).
(C) The CUPL shall perform for the Nebraska Supreme
Court and the Commission all duties as required by these rules.
(D) The CUPL shall investigate all matters within the juris-
diction of the Commission in accordance with procedures
adopted by the Commission and approved by the Supreme
Court and shall perform the following duties:
(1) Maintain records of all matters coming within the juris-
diction of the Commission.
(2) Secure facilities for the administration of proceedings
under these rules and receive and file all requests for investiga-
tion and complaints concerning matters within the jurisdiction
of the Commission.
(3) Employ such staff, including investigative and cleri-
cal personnel, subject to the approval of the Supreme Court
Nebraska Advance Sheets
1068 286 NEBRASKA REPORTS
Commission, as may be necessary to carry out the duties of
the office.
(4) Perform such other duties as the Commission or the
Supreme Court or the Commission may require.
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NEBRASKA COMMISSION ON UNAUTHORIZED
PRACTICE OF LAW
ADMINISTRATIVE RULES, REGULATIONS,
AND PROCEDURES
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III. Officers.
a. Chairperson. The Chief Justice of the Supreme Court shall
annually designate a chairperson from among the Commission
members. Neb. Ct. R. § 3-1011(C).
b. Vice Chairperson and Other Officers. The Commission
shall elect a vice chairperson each year, and such other offi-
cers as it may deem necessary to carry out the purposes of the
Commission. Neb. Ct. R. § 3-1011(E).
c. Secretary. The Secretary of the Commission shall be the
custodian of all records of the Commission and shall keep min-
utes of all meetings held by the Commission, or its designated
committees or panels. All such records and minutes shall be
kept at the offices of the Counsel on the Unauthorized Practice
of Law, who shall be the custodian of such records NSBA.
Neb. Ct. R. § 3-1012(E)13.
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VI. Administration of Commission.
a. Counsel on Unauthorized Practice of Law. Neb. Ct. R.
§ 3-1013.
i. The Counsel on Unauthorized Practice of Law (CUPL)
will shall be hired by the Executive Director of the NSBA
Nebraska Supreme Court and shall be an employee of the
NSBA Court. The NSBA Court shall provide to the CUPL any
Nebraska Advance Sheets
IN RE PETITION FOR RULE TO CREATE VOL. STATE BAR ASSN. 1069
Cite as 286 Neb. 1018additional staff support as designated by the Executive Director
approved by the Court. Neb. Ct. R. § 3-1013(BD)(3).
ii. The CUPL shall not be entitled to a vote on Commission
matters.
iii. The CUPL shall be responsible for the duties prescribed
in the Court Rules, Neb. Ct. R. § 3-1013, and other duties
as assigned by the Supreme Court, or the Commission, or
Executive Director of the NSBA.
iv. The CUPL shall send out notices of meetings of the
Commission and prepare the preliminary agenda for each
meeting.
b. Budget. The Executive Director of the NSBA and the
CUPL, with the input of the Commission, shall prepare an
annual budget for the performance of the Commission’s activi-
ties. The Commission’s budget will be part of the full NSBA
budget and will be subject to the same process for approval.
NSBA The Nebraska Supreme Court shall pay, from the
UPL assessment mandated by Neb. Ct. R. §§ 3-1010(B) and
3-803(D), all expenses reasonably and necessarily incurred by
the Commission pursuant to the budget and the expense policy
of the NSBA. Members of the Commission shall be entitled
to reimbursement for reasonable expenses incurred in the per­
formance of their official duties.
c. Letterhead. Use of Commission letterhead shall be lim-
ited to official business of the Commission and specifically
shall not be used in connection with any political campaign or
to support or oppose any public issue, or for personal or chari-
table purposes.
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VIII. Advisory Opinions.
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g. Publication of Advisory Opinions. The Commission
may arrange for the publication of advisory opinions in the
Nebraska Lawyer magazine, on the NSBA Web site, on the
Nebraska Supreme Court Web site, or elsewhere as it deems
Nebraska Advance Sheets
1070 286 NEBRASKA REPORTS
appropriate. Opinions so published shall not, insofar as prac-
ticable, identify the party or parties making the inquiry, the
complainant, or the respondent without the written permission
of the party or parties making the request.
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X. Investigation.
The complainant and the respondent may be interviewed,
and such other and further review or investigation may be
conducted as is deemed appropriate. The complainant may
submit additional information. During the course of the inves-
tigation, the CUPL and/or the Commission may use its power,
as provided in the Court Rules, to subpoena witnesses, com-
pel production of documentary evidence, swear witnesses,
take testimony, and cause transcripts to be made. Neb. Ct. R.
§ 3-1014(B) through (D).
a. Methods of Investigation. The CUPL may use such
methods and means of conducting the investigation as the
Commission shall deem appropriate, including written corre-
spondence, electronic correspondence, telephone calls, telecon-
ferences, personal meetings, consultation with law enforcement
and government officials, hiring outside investigators, online
research, or other legal organizations, and any other NSBA
resources. All communications shall strictly comply with the
Court Rules regarding confidentiality., Neb. Ct. R. § 3-1020(C)
through (G),; however, CUPL may disclose basic information
that is essential to the conduct of the investigation.
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