Supreme Court Rules

Supreme Court Rules

These rules are all the codified Nebraska Supreme Court Rules.

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CHAPTER 1: ADMINISTRATIVE OPERATIONS

CHAPTER 1: ADMINISTRATIVE OPERATIONS

(cite as Neb. Ct. R. §, unless otherwise noted)

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Article 1: Adoption, Amendment, and Repeal of Supreme Court Rules.

Article 1: Adoption, Amendment, and Repeal of Supreme Court Rules. unanimous

§ 1-101. Statement of purpose.

§ 1-101. Statement of purpose.

   These guidelines are intended to aid the Supreme Court in the process of evaluation and enactment of Supreme Court rules and other necessary rules covering the practice of law and the administration of the judicial system.

§ 1-101 amended February 11, 2009, effective March 1, 2009.

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§ 1-102. Definitions.

§ 1-102. Definitions.

   In this rule, unless the context or subject matter otherwise requires:

   (A) "Official Supreme Court Rules" refer to the codified Nebraska Court Rules, Chapters 1 through 6, and amendments thereto.

   (B) "Miscellaneous Supreme Court Rules" refer to Supreme Court rules, other than the codified Nebraska Court Rules referred to above, guidelines, policies, and best practices and amendments thereto, which are of general application relating to the operation of the judicial system and subject to the approval of the Nebraska Supreme Court.

   (C) "External Rules" refer to rules and rule amendments of other courts, commissions, or entities which are subject to the approval of the Nebraska Supreme Court.

Rule II(A) and (B) amended October 14, 1999. Renumbered and codified as § 1-102, effective July 18, 2008; § 1-102(A) to (C) amended February 11, 2009, effective March 1, 2009.

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§ 1-103. Rules consideration.

§ 1-103. Rules consideration.

   (A) Requests to consider the creation, amendment, or repeal of any rule as defined by § 1-102(A), (B), or (C) may be initiated by action of the Supreme Court or by any interested party, unless an existing rule contains specific language providing for procedure for amendment. Such request shall be submitted to the Clerk of the Supreme Court. The new rule or amendment shall be submitted, as a document separate from the request, both in writing and in an electronic format as an attachment to the following e-mail address, NSC.RULES@nejudicial.gov, and shall be in a Microsoft Word compatible format. Any language that creates a rule or is to be added to a rule shall be underscored, and any language to be deleted from a rule shall be overstruck. Any request submitted to the Clerk shall be rejected by that office and returned to the requesting party if it fails to comply with the requirements set forth above.

   (B) The Supreme Court may:

   (1) accept or approve the request and send it to the Reporter of Decisions for editing and formatting and subsequent resubmission to the Court for approval or adoption,

   (2) deny the request, or

   (3) defer action pending:

   (a) additional comment from requestor,

   (b) comment from staff or committee, or

   (c) a formal written comment period.

   (C) In the case of deferral pending a formal written comment period, notification of the pending rule amendments and solicitation of comment may be made on the Supreme Court's website and in any other publication(s) deemed advisable by the Supreme Court and notification of the pending rules requests and solicitations for comments may also be provided, as directed by the Court, to those identified as having a potential interest.

   Any formal written comment period shall be for the period of time specified by the Court in such notification. Ordinarily, the comment period shall include at least 1 full calendar month and shall end on the first business day of a succeeding calendar month.

   (D) At the completion of the comment period established above, the Court may accept, reject, or modify the rules request under discussion; the Court may request further written comment as provided in § 1-103(C) of this rule; or the Court may on its own motion or on the request of an interested party hold a public hearing on the rule amendment sought.

   (E) If the Supreme Court determines to hold a public hearing on a proposed rule amendment, notification shall be given in the same manner as specified by § 1-103(C) of this rule. Such notification shall also contain the time and place scheduled for the hearing and the method by which the entire proposed rule amendment can be secured.

   (F) Upon completion of the procedures set forth in above § 1-103(C), (D), and (E), and prior to Supreme Court consideration for initial acceptance or approval, such rule or amendment shall, unless otherwise directed by the Court, be reviewed by the Supreme Court Staff Attorney for any comments or recommendations to the Court. Upon report by the Staff Attorney and consideration of all other relevant materials, the Court shall accept, approve, or deny the requested rule or amendment or take further action as it deems appropriate.

   After Court approval of a new rule or amendment to the "Official Supreme Court Rules," the approved rule or revision shall be forwarded to the Reporter of Decisions Office for editing and formatting. The Reporter shall thereafter return the edited and formatted version of the rule or amendment to the Court for final adoption.

   After Court acceptance of any new rule or amendment to any "Miscellaneous Supreme Court Rules" or "External Rules," the accepted version shall be forwarded to the Reporter of Decisions Office for editing and formatting. The Reporter of Decisions shall thereafter return the edited and formatted version of the rule or amendment to the Court for final approval.

Rule III(A), (B), and (C) amended October 14, 1999; Rule III(F) adopted October 14, 1999; Rule III(A) amended June 5, 2002.  Renumbered and codified as § 1-103, effective July 18, 2008; § 1-103(A) to (F) amended February 11, 2009, effective March 1, 2009; § 1-103(C) amended November 9, 2022.

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§ 1-104. Rules publication and distribution.

§ 1-104. Rules publication and distribution.

   (A) After adoption or approval by the Court of any new rule or amendment in the "Official Supreme Court Rules," "Miscellaneous Supreme Court Rules," or "External Rules," the Reporter of Decisions Office shall make changes to the rules as maintained on the Supreme Court's website. "Official Supreme Court Rules," as well as local court rules and Workers' Compensation Court rules within the "External Rules," recent amendments to such rules, and proposed amendments pending for comment, shall be available on the Supreme Court's website at http://www.supremecourt.ne.gov/rules/. Any person requesting a paper copy of the Court's rules from the Clerk of the Supreme Court may be charged a fee as established by the Supreme Court and postage required for mailing such rules.

   (B) All new rules or amendments to the "Official Supreme Court Rules," except for minor grammatical or editorial changes, shall be published on the Supreme Court's website for 2 consecutive weeks. All new rules or amendments to "External Rules" shall be published on the Supreme Court's website for 1 week. New rules or amendments to any "Miscellaneous Supreme Court Rules" may be published as directed by the Court.

Rule IV amended October 14, 1999; Rule IV amended June 5, 2002. Renumbered and codified as § 1-104, effective July 18, 2008; § 1-104(A) and (B) amended February 11, 2009, effective March 1, 2009; § 1-104 amended June 9, 2021, effective January 1, 2022.

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§ 1-105. Limitations.

§ 1-105. Limitations.

   Nothing in this rule shall act to limit the Supreme Court from enacting such rules or adopting such orders as it deems necessary on an emergency basis.

Rule V amended October 14, 1999. Renumbered and codified as § 1-105, effective July 18, 2008; § 1-105 repealed and § 1-106 renumbered to § 1-105 on February 11, 2009, effective March 1, 2009.

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Article 2: Court Reporting Personnel.

Article 2: Court Reporting Personnel.

(Rules Relating to Official Court Reporters amended Feb. 1, 1995. Renumbered and codified as Neb. Ct. R. §§ 1-201 to 1-218, effective July 18, 2008. Neb. Ct. R. §§ 1-201 to 1-219 amended June 9, 2010.)

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§ 1-201. Purpose; hiring and appointment or contracting of court reporting personnel; mandatory registration.

§ 1-201. Purpose; hiring and appointment or contracting of court reporting personnel; mandatory registration.

   (A) The purpose of §§ 1-201 through 1-218 is to provide for the hiring and appointment of court reporting personnel, as defined in § 1-204(A)(1), to perform the duties required by Nebraska Supreme Court rules for the recording and preservation of evidence and if applicable preparation of bills of exceptions in all cases in the district, separate juvenile, and county courts. As set forth below, court reporting personnel shall be hired and appointed, or contracted with, in accordance with these rules and approved by the Nebraska Supreme Court, by a judge of the district, separate juvenile, or county court to perform the duties required by these rules and all other Nebraska Supreme Court rules relating to the making, preserving, transcribing, and delivery of court records.

   (1) Hiring and appointment of official court reporters. Except as otherwise ordered or directed by the Nebraska Supreme Court, a judge of the district and separate juvenile court may hire and appoint an official court reporter with approval from the Nebraska Supreme Court to make, preserve, transcribe, and deliver the record of the trial and other proceedings over which said judge presides. Such official court reporter is subject to the general administrative authority of the Nebraska Supreme Court pursuant to art. V, § 1, of the Nebraska Constitution, works under the direction of the appointing judge and the Nebraska Supreme Court, and is subject to the Nebraska Supreme Court Personnel Policies and Procedures unless otherwise discharged from employment as provided in § 1-204(E).

   (2) Hiring and appointment of courtroom clerks. A judge of the district court, separate juvenile court, and county court may hire and appoint a courtroom clerk with the approval of the Nebraska Supreme Court, to make, preserve, and deliver a digital recording of the trial and other proceedings over which said judge presides using multichannel digital recording equipment provided by the Administrative Office of the Courts and Probation. Such courtroom clerk is subject to the general administrative authority of the Nebraska Supreme Court pursuant to art. V, § 1, of the Nebraska Constitution, works under the direction of the appointing judge and the Nebraska Supreme Court, and is subject to the Nebraska Supreme Court Personnel Policies and Procedures unless otherwise discharged from employment as provided in § 1-204(G). The provisions of § 1-201(A)(2) do not prohibit a judge, in his or her discretion, from contracting with a court reporter having the qualifications of an official court reporter if extenuating circumstances or a specific case so require.

   (3) Designating other court personnel to act as court reporting personnel. In his or her discretion, a judge opting to use multichannel digital recording equipment in his or her courtroom to make and preserve the record of a trial and other proceedings may, temporarily under § 1-213 or in lieu of appointing a courtroom clerk under § 1-201(A)(2), designate other court personnel as defined in § 1-204(A)(4) to perform the duties of a courtroom clerk. The provisions of § 1-201(A)(3) do not prohibit a judge, in his or her discretion, from contracting with a court reporter having the qualifications of an official court reporter if extenuating circumstances or a specific case so require.

   (4) Contracting of official court reporters.  Except as otherwise ordered or directed by the Nebraska Supreme Court, a judge of the district, separate juvenile, or county court may contract with an official court reporter with the approval of the Nebraska Supreme Court to make, preserve, transcribe, and deliver the record of the trial and other proceedings over which said judge presides. Such an offical court reporter is subject to the general administrative authority of the Nebraska Supreme Court pursuant to art. V, § 1, of the Nebraska Constitution, works under the direction of the appointing judge and the Nebraska Supreme Court, and shall comply with any Nebraska Supreme Court rules applicable to performing the duties of an official court reporter. 

   (B) Court reporting personnel as defined in § 1-204 shall register with the court-authorized service provider. Those persons who create, compile, and/or file a verbatim record of court proceedings as provided by Neb. Ct. R. App. P. § 2-105 or Neb. Ct. R. § 6-1452(B) shall use the court-authorized service provider for filing such record with any court.

   (1) Court reporting personnel who are judicial branch employees shall not be required to pay a registration fee with the court-authorized service provider.

   (2) Contracted transcriptionists may be required to pay a registration fee with the court-authorized service provider.

   (3) Email addresses. Court reporting personnel employed by the judicial branch shall use the State of Nebraska email address for registration with the court-authorized service provider. Contracted transcriptionists shall use an email address that does not exceed 50 characters.

   (4) No court shall accept or file a paper or physical copy of the bill of exceptions as the official record in the proceeding, except for the media exhibits volume(s) as allowed in Neb. Ct. R. § 2-105.02. Court reporting personnel shall not be paid for preparing the official record of the proceeding unless the bill of exceptions is prepared and filed pursuant to Neb. Ct. R. App. P. §§ 2-105, 2-105.01, and 2-105.02, or, if applicable, Neb. Ct. R. § 6-1452.

Rule 1(A) through (C) amended February 28, 1996; Rule (A) amended June 5, 2002. Renumbered and codified as § 1-201, effective July 18, 2008; § 1-201 amended June 9, 2010; § 1-201 amended June 9, 2021, effective January 1, 2022; § 1-201 amended June 16, effective January 1, 2022.

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§ 1-202. Oath of office.

§ 1-202. Oath of office.

   Court reporting personnel shall take the oath of office provided in Neb. Const. art. XV, § 1.

§ 1-202 amended June 9, 2010; amended June 16, 2021, effective January 1, 2022.

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§ 1-203. Duties of court reporting personnel.

§ 1-203. Duties of court reporting personnel.

   Court reporting personnel are charged with the duty to comply with any Nebraska Supreme Court rules relating to official court reporters and courtroom clerks and, in accordance with the specific terms of such employment and qualifications, with the duty of making, preserving, transcribing, and/or delivering a verbatim record of all proceedings in the court to which they are appointed in accordance with this section and Neb. Ct. R. App. P. § 2-105. Except as otherwise directed by the Nebraska Supreme Court, all digital recordings made by courtroom clerks or other court personnel as defined in § 1-204(A)(4) shall be outsourced for transcription to an official court reporter or privately contracted court transcribers who shall meet the minimum qualifications set forth in § 1-204(B), (C), or (D). Failure to comply with court rules may result in disciplinary action, including but not limited to termination, by the hiring and appointing judge, or the Nebraska Supreme Court. In addition, court reporting personnel shall perform any other duties assigned by the hiring and appointing judge or the Nebraska Supreme Court and shall, in accordance with the specific terms of such employment and qualifications:

   (A) On order of the trial judge, make or have made and file in the clerk's office a transcription of any trial or proceedings, or any part thereof, without expense to any party to the suit; such transcription shall be a part of the records in the case. An official court reporter or privately contracted court transcriber shall receive from the appropriate governmental unit the compensation specified below in § 1-218 for any such transcription ordered by a judge.

   (B) Upon request of counsel or any party to a suit, furnish to such counsel or party, as expeditiously as possible, a transcription of any trial or proceedings, or any portion thereof. An official court reporter or privately contracted court transcriber shall receive the compensation specified below in § 1-218 for any such transcription. Counsel or any party shall make satisfactory arrangements with the official court reporter or privately contracted court transcriber for payment. The time spent at such transcription shall not interfere with any other duties of the court reporting personnel.

   (C) Upon request of any person not a party to a suit, if so approved by the trial judge, furnish to such person or have prepared for such person, as expeditiously as possible, a transcription of any trial or proceedings, or any portion thereof. The time spent at such transcription shall not interfere with any other duties of the court reporting personnel. The compensation and payment therefor shall be as prescribed in § 1-203(B).

   (D) All verbatim transcriptions shall be certified by the person responsible for preparation of the verbatim transcription or the presiding judge to be true and correct.

   (E) The procedure for requesting and preparation of a transcription of any trial or proceeding in the district court shall be regulated and governed by these rules. Shorthand notes, audio recordings, log sheets, or any other material used in making the record in district court shall not be provided to the public except upon motion to the trial judge assigned to the case with a showing of good cause.

Rule 3(A), (B), and (C) amended June 19, 1996; Rule 3 amended June 5, 2002; Rule 3(A) and (B) amended June 22, 2005; Rule 3(B) amended February 15, 2006. Renumbered and codified as § 1-203, effective July 18, 2008; § 1-203 amended June 9, 2010; § 1-203(A)-(C) amended June 9, 2021, effective January 1, 2022; § 1-203 amended June 16, 2021, effective January 1, 2022; § 1-203(B) amended November 10, 2021, effective January 1, 2022; § 1-203 amended January 19, 2022.

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§ 1-204. General qualifications and definitions.

§ 1-204. General qualifications and definitions.

   (A)(1) Court reporting personnel. Court reporting personnel shall include official court reporters, courtroom clerks, and other court personnel as defined in § 1-204(A)(4) who, in whole or in part according to the terms of their employment, make, preserve, transcribe, and deliver the record of any trial and other proceeding in any district, separate juvenile, and county court of Nebraska.

   (2) Official court reporter. An official court reporter shall be an individual employed by the court and be competent in the making, preserving, transcribing, and delivering a verbatim record of trial and other proceedings through the use of machine shorthand or the use of multichannel digital recorders supplemented by logging procedures. An official court reporter shall meet either the qualifications set forth in § 1-204(B) or the qualifications in § 1-204(C).

   (3) Courtroom clerk. A courtroom clerk shall be an individual employed by the court to record testimony by the use of multichannel digital recording equipment supplemented by logging procedures. A courtroom clerk shall be competent in the making and preserving of a verbatim record of a trial and other proceedings and shall meet the qualifications set forth in § 1-204(F).

   (4) Other court personnel. For purposes of these rules, "other court personnel" shall mean persons employed within the Nebraska court system who are under the control or supervision of the Nebraska Supreme Court or the designating judge and who have been trained in the use of multichannel digital recording equipment and meet the qualifications set forth in § 1-204(F).

   (B) One's professional competence to serve as a machine shorthand official court reporter shall be demonstrated by having passed an examination conducted by such entities as the Nebraska Supreme Court may from time to time designate, which tests one's reporting skills and knowledge of spelling, grammar, and the reporting craft. The skills portion of the examination shall require the reporter to report and transcribe each of three items of dictation consisting of (i) literary material, (ii) jury instructions, and (iii) two-voice testimony. Each dictation segment shall be of 5 minutes duration. The literary material must be reported at a rate of not less than 180 words per minute, the jury charge at not less than 200 words per minute, and the two-voice testimony at not less than 225 words per minute.

   All of the dictated material must be transcribed with 95 percent accuracy in a period of not more than 3½ hours, during which time a dictionary may be used. In grading this portion of the test, a maximum of 45 errors is permitted on the literary material, a maximum of 50 errors is permitted on the jury charge, and a maximum of 57 errors is permitted on the two-voice testimony. The knowledge portion of the examination shall consist of not less than 100 written multiple-choice questions and must be passed with a score of not less than 70 percent in a period of time as determined by the examiner, but no more than 90 minutes per 100 questions. A dictionary may not be used during this portion of the examination.

   (C) One’s professional competence to serve as an official court reporter using a multichannel digital recorder to record and transcribe shall include creating a transcript from a mock court proceeding recorded on, at a minimum, a four channel digital software. To be classified as an official court reporter using a multichannel digital recorder the American Association of Electronic Reporters and Transcribers (AAERT):

   (1) Certified Electronic Court Reporter (CER) knowledge examination must be passed with a score of 80 percent or higher;

   (2) Certified Electronic Transcriber (CET) knowledge examination must be passed with a score of 80 percent or higher; and

   (3) CET practical examination must demonstrate 95 percent accuracy.

   (D) The Nebraska Supreme Court may approve an individual to be classified as an official court reporter under subsection (B) or (C) if the individual has an equivalent test or similar certification or prior court experience.

   (E) After employment, an official court reporter may be required to undergo reexamination through testing substantially similar to that described in § 1-204(B) or (C) any time upon the request of the appointing judge, the Nebraska Court of Appeals, or the Nebraska Supreme Court. Failure to pass the reexamination shall constitute cause for the immediate discharge of the official court reporter from employment.

   (F) One's professional competence to serve as a courtroom clerk shall be demonstrated by the following minimum criteria and competency requirements:

   (1) successful completion of training on use and maintenance of multichannel digital recording equipment;

   (2) ability to promptly diagnose and correct routine malfunctions;

   (3) proficiency in note taking and logging procedures;

   (4) knowledge of courtroom procedures and legal vocabulary; 

   (5) knowledge of the proper admission of exhibits to be included in the bill of exceptions; and

   (6) ability to accurately type on a computer while simultaneously monitoring a proceeding.

   (G) After employment, the courtroom clerk may be required to undergo a competency evaluation based on the criteria found in § 1-204(F) at any time upon the request of the judge, the Nebraska Court of Appeals, or the Nebraska Supreme Court. Failure to meet such competency criteria shall constitute cause for action pursuant to the Nebraska Supreme Court Personnel Policies & Procedures.

Rule 4(B) amended February 23, 2006. Renumbered and codified as § 1-204, effective July 18, 2008; § 1-204 amended June 9, 2010; § 1-204 amended June 12, 2019; § 1-204 amended June 16, 2021, effective January 1, 2022; § 1-204(C) amended June 29, 2022.

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§ 1-205. Duties of official court reporters.

§ 1-205. Duties of official court reporters.

   (A) Official court reporters who meet the qualifications set forth in  § 1-204(B):

   (1) Official court reporters shall only use stenography software programs approved by the Administrative Office of the Courts and Probation.

   (2) Official court reporters shall create an audio file of all court proceedings as a backup for producing transcripts, bills of exceptions and for validating notes.

   (3) Upon being appointed and by July 1 of each year, each official court reporter shall file a copy of the official court reporter's dictionary on the statewide electronic repository identified by the Administrative Office of the Courts and Probation.

   (4) Each official court reporter shall upload copies of all electronic files generated to capture the court record to the Administrative Office of the Courts and Probation centralized repository as provided for in the technology standards.

   (5) Official court reporters shall follow all technology standards approved by the Nebraska Supreme Court governing the capturing, storage, and retention of electronic files generated to capture the court record.

   (B) Official court reporters who meet the qualifications set forth in § 1-204(C):

   (1) Official court reporters shall only use digital recording software approved by the Administrative Office of the Court and Probation.

   (2) Each official court reporter shall upload copies of all electronic files generated to capture the court record to the Administrative Office of the Courts and Probation centralized repository as provided for in the technology standards.

   (3) Official court reporters shall follow all technology standards approved by the Nebraska Supreme Court governing the capturing, storage, and retention of electronic files generated to capture the court record.

   (C) Contracting official court reporters shall comply with all technology standards approved by the Nebraska Supreme Court governing the capturing, storage, and retention of electronic files generated to capture the court record.

§ 1-205 amended June 9, 2010; § 1-205 amended June 16, 2021, effective January 1, 2022.

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§ 1-206. Principal office location of court reporting personnel.

§ 1-206. Principal office location of court reporting personnel.

   In a multicounty district, the Nebraska Supreme Court will determine a courthouse in the judicial district to serve as the principal office location for the court reporting personnel.

§ 1-206 amended June 9, 2010; § 1-206 amended June 16, 2021, effective January 1, 2022.

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§ 1-207. Assignment of court reporting personnel.

§ 1-207. Assignment of court reporting personnel.

   (A) All court reporting personnel may be assigned by the Nebraska Supreme Court to perform duties on a temporary basis in any court in the state.

   (B) Any court reporting personnel assigned on a temporary basis pursuant to § 1-207(A) shall receive, in addition to a regular salary, reimbursement in accordance with the travel policies of the Administrative Office of the Courts and Probation.

§ 1-207 amended June 9, 2010; § 1-207 amended June 16, 2021, effective January 1, 2022.

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§ 1-208. Court reporting personnel acting when temporary judge presides.

§ 1-208. Court reporting personnel acting when temporary judge presides.

   In all matters heard by a temporary judge when acting in place of the appointing judge, the judges, in consultation with each other, will determine what court reporting personnel shall serve and perform in relation to such matters all duties required by law or these rules.

§ 1-208 amended June 9, 2010; § 1-208 amended June 16, 2021, effective January 1, 2022.

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§ 1-209. Reimbursement for travel expenses.

§ 1-209. Reimbursement for travel expenses.

   Court reporting personnel shall be reimbursed in accordance with the travel policies of the Administrative Office of the Courts and Probation.

§ 1-209 amended June 9, 2010; § 1-209 amended June 16, 2021, effective January 1, 2022.

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§ 1-210. Custody of trial records and documents.

§ 1-210. Custody of trial records and documents.

   (A) In addition to the requirements of § 1-205, all shorthand notes, audio recordings, log sheets, or any other material used in making the record in court shall be the property of the trial court. The originals shall remain in the custody of the court reporting personnel responsible for making such record until such time as that person leaves employment, that person's employment is terminated, or until that person is disabled or incapacitated. Upon the occurrence of any of the above, control of all such materials shall then be transferred to the clerk of the district court. All notes of court reporting personnel shall be marked on the first page with the name of court reporting personnel, date(s) of proceedings, case title(s), docket number(s), and "Criminal" if criminal cases were reported. Notes which contain criminal cases are to be separated and stored in separate filing equipment or storage boxes. Containers for permanent storage shall be marked with the year, type of notes (criminal or civil), and name of the court reporting personnel responsible for making such record. Court reporting personnel may, with the approval of the clerk of the district court, transfer permanent storage containers to the clerk of the district court at any time. Responsibility for the retrieval, research, and refiling of the notes contained in the storage files shall lie with such court reporting personnel or successor(s). Custody of any such materials may be assumed at any time by the judge in the event of failure on the part of the court reporting personnel to properly carry out duties as required by law, court rule, or direction of the appointing judge.

   (B) Except as it shall become necessary to include exhibits in bills of exceptions being prepared in connection with appeals to the Nebraska Supreme Court or Nebraska Court of Appeals, all exhibits shall be retained by the court reporting personnel responsible for custody of the record until a matter is terminated, at which time responsibility for the safekeeping of such exhibits shall pass to the clerk of the district court, unless otherwise ordered by a district or separate juvenile court judge pursuant to law. Likewise, the responsibility for the safekeeping of all exhibits shall pass to the clerk of the district court at such time the court reporting personnel leaves employment, is terminated, or becomes disabled or incapacitated.

   (C) Upon the transfer of responsibility for the safekeeping of exhibits from the court reporting personnel to the clerk of the district court, the court reporting personnel shall ensure that all exhibits in each case are grouped together and shall state thereon the caption of the case, docket and page or case number, the date or dates of the trial or proceedings, and the name of the reporter or courtroom clerk. The court reporting personnel shall prepare in each case, for the signature of the clerk of the district court, a receipt acknowledging responsibility for the safekeeping of such materials. The original of the receipt shall be retained by the clerk.

   (D) Court reporting personnel in county courts shall refer to the Uniform County Court Rules of Practice and Procedure.

§ 1-210 amended June 9, 2010; § 1-210 amended June 16, 2021, effective January 1, 2022.

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§ 1-211. Freelance activities of court reporting personnel.

§ 1-211. Freelance activities of court reporting personnel.

   (A) Freelance reporting activities shall mean the reporting or transcription by court reporting personnel of oral statements from, including but not limited to: depositions; arbitrations; grand juries; mental health board hearings; any non-Judicial Branch public or private agency or organization hearing or meeting; or proceedings of any nature whatsoever, other than those required by these rules.

   (B) Except as provided for by these rules, court reporting personnel may engage in freelance reporting activities during normal working hours only if the court reporting personnel takes approved accrued leave and said activities are determined by the judge who appointed the court reporting personnel to be in the interest of the public, provided, however:

   (1) The taking of approved accrued leave shall not be required if the freelance activity occurs outside the court's normal working hours, while the court reporting personnel is on vacation leave, or while the court reporting personnel is taking compensatory time off.

   (2) Freelance reporting activities shall not be performed during any period in which the court reporting personnel is granted an extension to complete and file a bill of exceptions except for those activities related to the specific bill of exceptions for which the extension has been granted.

   (3) Freelance reporting activities shall not be performed when the presence of the court reporting personnel is required by these rules, by the judge who appointed the court reporting personnel, by said judge's substitute, by a judge to whom the court reporting personnel has been assigned by the Nebraska Supreme Court, or by the Nebraska Supreme Court.

   (C) All other outside employment during normal working hours is prohibited.

   (D) Court reporting personnel shall neither provide nor cause to be provided any public office space to any of the court reporting personnel's employees or associates.

   (E) Court reporting personnel shall not use any publicly-owned supplies or equipment in connection with any freelance reporting activity. Provided, however, that permission to utilize state-owned equipment for purposes outside the scope of court reporting personnel duties may be given by the Nebraska Supreme Court if: (1) the equipment is to be used for purposes of recording proceedings of other public entities; and (2) operation of the recording equipment by the court reporting personnel will not be during working hours nor in any other way interfere with the court reporting personnel's official responsibilities.

   (F) All approved accrued leave taken for the purpose of engaging in freelance activity shall be pre-approved by the supervising judge and in accordance with the leave policies of the Nebraska Supreme Court Personnel Policies and Procedures and recorded on the monthly timesheet. 

   (G) Court reporting personnel shall not be eligible for injury leave or workers' compensation benefits for injury sustained while on approved accrued leave.

   (H) Court reporting personnel shall not evade the provisions of this rule by contracting with substitute court reporting personnel to perform their official duty.

Rule 11(A), (B), and (F) amended June 19, 1996. Renumbered and codified as § 1-211, effective July 18, 2008; § 1-211 amended June 9, 2010; § 1-211(F) amended January 30, 2014; § 1-211 amended June 16, 2021, effective January 1, 2022.

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§ 1-212. Use of substitute reporter; alternative substitute.

§ 1-212. Use of substitute reporter; alternative substitute.

   (A) In the event an official court reporter voluntarily leaves employment; is terminated; is unavailable because of illness, disability, or incapacity; or is unavailable for any other reason, and where it would appear to not be practical or feasible to reassign another official court reporter on a temporary basis, the judge of such reporter, with the approval of the Nebraska Supreme Court, may designate or contract with a reporter having passed an examination at least as stringent as that described in § 1-204(B) or (C) or received approval from the Nebraska Supreme Court as described in § 1-204(D) to act as a substitute reporter.

   (B) The preparation of any bill of exceptions or transcript by any such substitute reporter shall be subject to the same rules and regulations as those governing permanently employed official reporters.

   (C) Payment to such contracted substitute reporter shall be on a contract basis at a rate determined by the Nebraska Supreme Court, and payment will be made only for the actual days such substitute reporter was required by the judge to be in attendance upon the court.

   (D) No contracted substitute reporter shall be entitled to any benefits ordinarily available to the official court reporter for whom he or she is substituting.

    (E) As an alternative to the provisions of § 1-212(A) through (D), the appointing judge of an official court reporter may also, on a temporary basis, either request from the Nebraska Supreme Court or designate with approval from the Nebraska Supreme Court other court personnel, as defined by § 1-204(A)(4), to operate multichannel digital recording equipment in his or her courtroom for the purpose of making the record of proceedings, so long as the court personnel meets the competency requirements of § 1-204(F).

§ 1-212 amended June 9, 2010; § 1-212(A) amended June 12, 2019; § 1-212 amended June 16, 2021, effective January 1, 2022.

unanimous

§ 1-213. Assignment of substitute courtroom clerk.

§ 1-213. Assignment of substitute courtroom clerk.

   In the event of the absence of a courtroom clerk, the appointing judge of such courtroom clerk may request from the Nebraska Supreme Court, any Nebraska Supreme Court employee meeting the competency requirements of § 1-204(F) to act as subtitute courtroom clerk. If such employee is not available, and where it would appear to not be practical or feasible to reassign an official court reporter on a temporary basis, the judge may designate or contract with a substitute reporter under the provisions of § 1-212 or, pursuant to § 1-201(A)(3), designate other court personnel as defined in § 1-204(A)(4) to perform the duties of the courtroom clerk.

§ 1-213 amended June 16, 2021, effective January 1, 2022.

unanimous

§ 1-214. Leave applicable to court reporting personnel.

§ 1-214. Leave applicable to court reporting personnel.

   All leave, including holiday leave, vacation leave, sick leave, funeral leave, family leave, military leave, civil leave, injury leave, and workers' compensation disability leave, shall be taken as provided in the authorized leave policies of the Nebraska Supreme Court Personnel Policies and Procedures. Provided, however, that court reporting personnel shall take vacation at the same time as or at the discretion of the appointing judge. If the court reporting personnel is permitted to take vacation at a time other than when the appointing judge takes vacation and the services of substitute court reporting personnel are required by such judge, the court reporting personnel shall work with the Nebraska Supreme Court to find substitute court reporting personnel. The substitute court reporting personnel must have passed an examination at least as stringent as that described in § 1-204(B), (C) or (F) or received approval from the Nebraska Supreme Court as described in § 1-204(D). The arrangement may not be implemented unless first approved by the Nebraska Supreme Court.

§ 1-213 renumbered to § 1-214 and amended June 9, 2010; § 1-214 amended June 16, 2021, effective January 1, 2022.

unanimous

§ 1-215. Overtime applicable to official court reporters.

§ 1-215. Overtime applicable to official court reporters.

   (A) Overtime for official court reporters shall be earned and compensated for as provided in the overtime policies in the Nebraska Supreme Court Personnel Policies and Procedures, except as otherwise provided by the Court Reporter Fair Labor Amendments of 1995, 29 U.S.C. § 207(o)(6) and these rules. Except in cases of emergency, no overtime shall be approved during a workweek in which the reporter has engaged in freelance transcription under § 1-211(A).

   (B) Any hours spent performing transcription of court proceedings shall not be counted as "hours worked" for purposes of the overtime provisions of the Fair Labor Standards Act if:

   (1) The reporter is being paid not less than maximum per page rate established by § 1-218, or the per page rate freely negotiated between the reporter and the party requesting the transcript (other than the judge who presided over the proceedings), and

   (2) The hours spent performing such duties are outside the hours such reporter performs other work (including hours for which the court requires the reporter's attendance) pursuant to the employment relationship with the court; e.g., outside the court's normal working hours, vacation leave, compensatory time off, or official leave of absence.

Rule 14 adopted June 19, 1996; Rule 14(1) amended June 22, 2005. Renumbered and codified as § 1-214, effective July 18, 2008; § 1-214 renumbered to § 1-215 and amended June 9, 2010; § 1-215 amended June 16, 2021, effective January 1, 2022.

unanimous

§ 1-216. Preparation and delivery of bill of exceptions or transcription by another official court reporter.

§ 1-216. Preparation and delivery of bill of exceptions or transcription by another official court reporter.

   (A) In the event a bill of exceptions or transcription of a trial or proceeding is required after the official court reporter who reported the same has voluntarily left his or her position; has been terminated; is temporarily ill, disabled, or incapacitated; or for any other reason is unable to prepare the bill of exceptions or transcription, such bill of exceptions or transcription shall be prepared by a reporter as assigned by the Nebraska Supreme Court in consultation with the judge and may be the official court reporter who prepared the record, the successor, or a substitute.

   (B) In cases where a bill of exceptions or transcription is prepared by an official court reporter who did not make the actual record in court, the certificate shall set forth that the bill of exceptions or transcription was prepared from the record made by the unavailable reporter, and that the bill of exceptions or transcription is full, true, and correct to the best of the preparing reporter's ability to compile such bill of exceptions or transcription.

Rule 15 renumbered to Rule 16 June 19, 1996. Renumbered and codified as § 1-216, effective July 18, 2008; § 1-216 renumbered to § 1-217 and amended June 9, 2010; § 1-217 renumbered to § 1-216 and amended June 16, 2021, effective January 1, 2022.

 

unanimous

§ 1-217. Other related policies.

§ 1-217. Other related policies.

   The workplace harassment policy, the drug-free workplace policy, and the travel, furlough, use of social media, and information systems and security policies apply to all court reporting personnel. Copies of these policies are available through the Administrative Office of the Courts and Probation and are also printed in the Nebraska Supreme Court Personnel Policies and Procedures manual.

Rule 18 adopted February 10, 1999; Rule 17 deleted and Rule 18 renumbered to Rule 17 November 22, 2000. Renumbered and codified as § 1-217, effective July 18, 2008; § 1-217 renumbered to § 1-218 and amended on June 9, 2010; § 1-218 renumbered to § 1-217 and amended June 16, 2021, effective January 1, 2022.

unanimous

§ 1-218. Per-page compensation.

§ 1-218. Per-page compensation.

   The per-page fee to which an official court reporter or privately contracted court transcriber is entitled, as prescribed by the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 25-1140.09, shall be according to the fee schedule as recommended by the State Court Administrator and approved by the Nebraska Supreme Court on an annual basis.

Rule 18 adopted June 22, 2005. Renumbered and codified as § 1-218, effective July 18, 2008; § 1-218 renumbered to § 1-219 and amended June 9, 2010; § 1-219 renumbered to § 1-218 and amended June 16, 2021, effective January 1, 2022.

unanimous

Article 3: Digital Signatures by Court Personnel.

Article 3: Digital Signatures by Court Personnel.

(Rule Governing Use of Digital Signatures by Authorized Court Personnel adopted July 19, 2006. Renumbered and codified as Neb. Ct. R. §§ 1-301 to 1-308, effective July 18, 2008.)

unanimous

§ 1-301. Statutory authority.

§ 1-301. Statutory authority.

   This rule is promulgated under the authority of Neb. Rev. Stat. § 86-611(3).

unanimous

§ 1-302. Purpose.

§ 1-302. Purpose.

   The purpose of this rule is to establish standards for use of digital signatures by authorized personnel of the Nebraska Courts.

unanimous

§ 1-303. Scope.

§ 1-303. Scope.

   This rule shall apply to all Nebraska judges and court personnel authorized to use digital signatures. The use of digital signatures is not mandated by this rule but is required when utilizing applications through JUSTICE, SCCALES, or a court's authorized case management system.

§ 1-303 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 1-304. Authorized court personnel.

§ 1-304. Authorized court personnel.

   For purposes of this rule governing the use of digital signatures, authorized court personnel shall be defined as, and limited to, the following persons only:

   (A) Chief Justice and judges of the Nebraska Supreme Court,

   (B) judges of the Nebraska Court of Appeals,

   (C) district court judges,

   (D) separate juvenile court judges,

   (E) county court judges,

   (F) workers' compensation court judges,

   (G) clerk of the Nebraska Supreme Court and Court of Appeals,

   (H) clerks of the district court,

   (I) clerk magistrates,

   (J) clerk of the workers' compensation court, 

   (K) judicial administrators, and

   (L) court reporting personnel as defined elsewhere in these rules.

§ 1-304 amended February 2, 2012; § 1-304(K) and (L) amended June 9, 2021, effective January 1, 2022.

unanimous

§ 1-305. Acceptable technology and practices.

§ 1-305. Acceptable technology and practices.

   For a digital signature to be valid for use under this rule, it must be created by technologies and practices that are accepted for use by the Nebraska Supreme Court and conform to the definitions set forth below:

   (A) unique to the person using it;

   (B) capable of verification;

   (C) under the sole control of the person using it;

   (D) linked to data in such a manner that if the data is changed, the digital signature is invalidated; and

   (E) conforms to the rules governing use of digital signatures adopted and promulgated by the Nebraska Supreme Court.

unanimous

§ 1-306. Terms of use.

§ 1-306. Terms of use.

   Digital signatures may be used by authorized court personnel in the issuance of all documents produced:

   (A) By the JUSTICE system or automated Docket application under the control of the JUSTICE system, including, but not limited to, orders and warrants.

   (1) The JUSTICE system and the Docket application are maintained by the Nebraska Supreme Court for exclusive use by authorized court personnel.

   (2) JUSTICE is the Nebraska Supreme Court's Case and Financial Management System for Nebraska trial courts.

   (3) Docket is a JUSTICE system application which provides interactive programs designed to record judicial proceedings in the courtroom thereby creating a printed record for a judge to digitally sign and issue an official document.

   (B) By the Nebraska Workers' Compensation Court Case Management System under the control of the Nebraska Workers' Compensation Court, including, but not limited to, orders.

   (1) The Nebraska Workers' Compensation Court Case Management System provides interactive programs designed to support the court's adjudicatory and administrative functions.

   (2) The Nebraska Workers' Compensation Court Case Management System is maintained by the Nebraska Workers' Compensation Court for exclusive use by authorized court personnel.

   (C) By SCCALES, the Appellate Courts Case Management System under the control of the Nebraska Supreme Court, including, but not limited, to orders. SCCALES is maintained by the Nebraska Supreme Court for exclusive use by authorized court personnel of the Nebraska Supreme Court and the Nebraska Court of Appeals.

   (D) For all procedural and statutory purposes, a document with a digital signature by authorized court personnel shall have the same force and effect as a document with a manual or handwritten signature by the same authorized court personnel.

   (E) Unauthorized use of any court's case management system will invalidate the document which was issued through the unauthorized application.

   (F) The designated original of any document is the case file copy with the digital signature affixed by the authorized court personnel and file stamped by the clerk.

§ 1-306(A)(2) and (C) amended February 2, 2012; § 1-306(C) amended June 9, 2021, effective January 1, 2022.

 

unanimous

§ 1-307. Authority.

§ 1-307. Authority.

   Only the Nebraska Supreme Court may promulgate rules governing the use of digital signatures for authorized court personnel. Any other rule, regulation, or policy now in effect purporting to govern the use of digital signatures by authorized court personnel is superseded by this rule.

unanimous

§ 1-308. Local rules.

§ 1-308. Local rules.

   Each county court, district court, and the Nebraska Workers' Compensation Court, by action of a majority of its judges, may from time to time recommend a local rule governing the use of digital signatures by authorized court personnel in each applicable judicial district and Nebraska Workers' Compensation Court which is not inconsistent with this rule or inconsistent with any directive of the Supreme Court or statutes of the State of Nebraska. Such recommended rule shall be submitted in a Microsoft Word compatible format. Any such recommended rule shall not become effective until approved by the Supreme Court. Such local rule shall be posted on the Supreme Court website.

§ 1-308 amended June 9, 2021, effective January 1, 2022.

unanimous

Article 4: Disability Grievance Procedure.

Article 4: Disability Grievance Procedure.

(ADA Grievance Procedure adopted Oct. 15, 1992. Renumbered and codified as Neb. Ct. R. §§ 1-401 to 1-407, effective July 18, 2008.)

unanimous

§ 1-401. Scope and limitations.

§ 1-401. Scope and limitations.

   Any person claiming to have been discriminated against by the Nebraska Court System on the basis of disability may use this grievance procedure. Use of this grievance procedure does not prohibit an employee of the Supreme Court from using the existing grievance procedures established in the Nebraska Supreme Court Personnel Policies and Procedures. Persons who use the grievance procedures set out in this policy should be aware that it may not extend the time limits for filing a complaint with the appropriate federal agency regarding their grievance. Use of this grievance procedure does not prohibit any person from filing a complaint with an appropriate federal entity or pursuing available remedies in court.

unanimous

§ 1-402. Notice of incident or policy.

§ 1-402. Notice of incident or policy.

   Any person aggrieved by an action of the Nebraska Court System relating to a disability should send a brief description of the incident or policy involved to:

Deputy Administrator (ADA Coordinator)
State Court Administrator's Office
P.O. Box 98910
State Capitol
Lincoln, NE 68509-8910

within 45 days of the action given rise to the grievance.

§ 1-402 amended September 11, 2019.

unanimous

§ 1-403. Acknowledging receipt of notice.

§ 1-403. Acknowledging receipt of notice.

   Upon receipt of the written complaint, the ADA coordinator will acknowledge in writing receipt of the complaint as soon as possible.

unanimous

§ 1-404. Complaint; review; informal resolution.

§ 1-404. Complaint; review; informal resolution.

   The ADA coordinator, or his/her designee, will initially review issues involved in the complaint to determine whether or not an informal resolution of the complaint is possible, and if so, to arrange such a resolution. If an informal resolution is not possible, the complaint will be investigated to determine its validity. Within forty-five days of the receipt of the written complaint, a report of the conclusion reached will be prepared. This will include the options available to the Nebraska Court System to resolve the issues raised for the consideration of the State Court Administrator's Office.

unanimous

§ 1-405. State Court Administrator's decision.

§ 1-405. State Court Administrator's decision.

   The State Court Administrator will initiate appropriate steps to implement decisions reached through this process. A written decision will be sent to the individual filing the complaint by the State Court Administrator detailing any actions or proposed actions taken by the agency. The written decision will be sent to the individual within 60 days of the agency's receipt of the individual's complaint.

unanimous

§ 1-406. Additional remedies.

§ 1-406. Additional remedies.

   Nothing in this policy prevents any individual claiming to have a grievance under the ADA from contacting the Nebraska Court System ADA coordinator for assistance and informally pursuing resolution of problems that may arise.

unanimous

§ 1-407. Deadlines; waiver by consent.

§ 1-407. Deadlines; waiver by consent.

   Any deadlines established in these procedures may be waived by written mutual consent.

unanimous

Article 5: Mandatory Continuing Judicial Education; Advisory Committee Provisions.

Article 5: Mandatory Continuing Judicial Education; Advisory Committee Provisions. unanimous

§ 1-501. Introduction.

§ 1-501. Introduction.

   It is essential to the public that judges and judicial branch employees continue their education in order to maintain and increase their professional competence, to fulfill their obligations under the Nebraska Revised Code of Judicial Conduct, and to ensure the delivery of quality judicial services to the people of the State of Nebraska. These rules establish minimum requirements for judicial branch education for all Nebraska judges and judicial branch employees and allow for the education of those serving the courts as directed by the Supreme Court and Judicial Branch Education Advisory Committee.

   Nothing in these rules shall impinge upon judicial independence. The content of educational programs and presentations is advisory only and not binding on the judiciary.

§ 1-501 amended December 22, 2010, effective January 1, 2011; § 1-501 amended March 13, 2013;  1-501 amended September 5, 2018.

unanimous

§ 1-502. Administration and monitoring.

§ 1-502. Administration and monitoring.

   The Director of Judicial Branch Education (Director) shall administer the program of mandatory judicial branch education established by these rules. The Nebraska Judicial Branch Advisory Education Committee (Committee) shall formulate rules and regulations and may modify or amend the same subject to approval by the Supreme Court. All rules and regulations shall clearly state an effective date.

Rule 2 amended December 13, 2006. Renumbered and codified as § 1-502, effective July 18, 2008.

unanimous

§ 1-503. Required continuing judicial branch education.

§ 1-503. Required continuing judicial branch education.

   (A) Subject to § 1-503(C) and (D), all judges of the State of Nebraska, including judges of the Workers' Compensation Court, shall earn a minimum of 10 judicial branch education credits in each annual reporting period. Judges' education must include five hours of education each year in a live setting, with faculty in the room, as long as Judicial Branch Education resources are sufficient to provide live educational programming. The balance of the annual hours may be obtained through qualifying distance learning. Clerk magistrates, probation officers, and official court reporters shall earn a minimum of eight judicial branch education credits in each annual reporting period.  All other judicial branch employees shall attend judicial branch education programs as directed by the Supreme Court or the Committee. The Administrative Office of the Courts and Probation may require employees to attend educational programs in excess of the hours established above.

   (B) Judicial branch education credits for each employee shall be reported to the Director in such form and manner as the Committee shall prescribe.

   (C) A retired judge working 60 days or more (whether part or full days) per year in a judicial capacity shall be required to fulfill the judicial branch education requirements; lodging and mileage costs incurred for attendance in state at approved education shall be paid by judicial branch education. A retired judge working less than 60 days per year in a judicial capacity, or a retired judge who has not consented to be recalled for temporary judicial service but who has not engaged in the practice of law for at least 1 year, may attend judicial branch education programs; however, lodging and mileage shall be at the retired judge's expense. A retired judge engaged in the practice of law shall not attend judicial branch education, unless invited as a speaker or as otherwise expressly approved by the advisory committee..

   (D) The Committee may grant extensions of time to complete judicial branch education requirements for good cause shown. The press of business shall not be considered good cause.

Rule 3(B) amended February 1, 2006; Rule 3(A) amended; Rule 3(B), 3(C)-(E) renumbered, and 3(C) amended May 23, 2007. Renumbered and codified as § 1-503, effective July 18, 2008; § 1-503(A) amended June 26, 2013; § 1-503(C) amended June 6, 2018.

unanimous

§ 1-504. Requirements for individual course approval.

§ 1-504. Requirements for individual course approval.

   (A) The primary objective of judicial branch education is to increase the professional competence of judicial branch employees and to assist the employees in providing appropriate judicial branch services. Judicial branch education credits will be granted for a particular activity if the Committee determines that the activity meets the following standards:

   (1) It constitutes an organized program of learning, including a lecture, workshop, or symposium, which contributes directly to the professional competency of the judicial branch employee;

   (2) It pertains to subject matter having significant intellectual or practical content relating to the administration of justice or to the education of judges with respect to their professional or ethical obligations; and

   (3) It is conducted or taught by individuals who have appropriate academic or practical skills to conduct the course effectively and who have special education, training, or experience. It provides each attendee with written course materials which substantively pertain to the subject matter of the program. The materials shall be of a quality and quantity which indicate that adequate time has been devoted to their preparation and will be of value to the attendees in their employment.

   (B) During all courses, including those presented by telecommunications or utilizing other educational technologies, there should be an opportunity to ask questions of the course faculty. If a faculty member is not available either in person or via telephone, then a qualified commentator should be available to offer comment and answer questions in writing or via e-mail.

   (C) Programs, seminars, or activities that cross professional lines, such as medical-legal programs or humanity programs, may be approved if the committee determines that the standards set forth herein are satisfied.

   (D) The Principles and Standards of Nebraska Judicial Education are hereby adopted.

§ 1-504(B) amended April 13, 2011.

unanimous

§ 1-505. Accreditation of sponsors and approval of programs.

§ 1-505. Accreditation of sponsors and approval of programs.

   (A) If the Committee is satisfied that a sponsor's program meets the requirements set forth in § 1-504, the Committee may accredit such sponsor and its program without formal application from such sponsor as required in § 1-505(B).

   (B) An organization or person desiring accreditation as a sponsor of courses, programs, or other judicial branch education activities, not otherwise accredited by the Committee, may apply for accreditation to the Committee. The Committee shall accredit a sponsor if it is satisfied that the sponsor's program will meet the standards set forth in § 1-504.

   (C) A sponsor wishing to apply for accredited-sponsor status shall submit to the Committee, on a form approved for that purpose, information on other judicial branch education programs offered during the 2 years immediately preceding the request for accredited sponsor status. If the sponsor has been offering judicial branch education courses for 5 years or less, the Committee may, at its discretion, request submission of course materials for inspection.

   (D) The Committee may at any time reevaluate an accredited sponsor. If after such reevaluation the Committee finds there is cause for revocation of the accreditation of a sponsor, the Committee shall issue a show cause order why such accreditation should not be revoked and the Committee may, at its discretion, hold a hearing thereafter and may revoke the accreditation of the sponsor. If the Committee in its judgment concludes that a course fails to meet the standards for approval, it may deny or withhold approval for the course even though offered by an accredited sponsor.

   (E) An organization or person, other than an accredited sponsor, desiring prior approval of a course, program, or other judicial branch education activity, or a judge or judicial branch employee of this State who desires to have such activity approved for judicial education branch credit prior to attendance, shall apply for approval to the Committee at least 45 days before the activity. The Committee shall approve or deny such application in writing within 30 days of receiving the application.

   (F) A judge or judicial branch employee seeking credit for participation in an education activity for which credits were not approved in advance by the Committee shall, before or after the activity, submit to the Committee a written report which includes a brief resume of the activity; its dates, subjects, and instructors and their qualifications; and a copy of the program outline, brochure, or other documentation upon which the Committee can make a determination as to the credits to which the applicant is entitled. Within a reasonable time after receipt of the written report and accompanying materials, not to exceed 90 days, the Committee shall advise the judge or judicial branch employee in writing of the number of credits, if any, being granted.

   (G) Credit will be given on a reciprocal basis to programs approved by continuing judicial education committees or continuing legal education committees of other jurisdictions on an hour-by-hour basis.

   (H) During all courses, including those presented by telecommunications or utilizing other educational technologies, there must be an opportunity to ask questions of the course faculty. If a faculty member is not available either in person or via telephone, then a qualified commentator must be available to offer comment and answer questions directly, in writing, or via e-mail.

   (I) Sponsors of courses who have been approved may announce in information brochures or registration materials: "Subject to the Nebraska Supreme Court Judicial Branch Education Rules, this course has been approved by the Judicial Branch Education Committee for a maximum of ___ credits." Sponsors of courses for which approval has been sought, but not yet received, may announce: "Application for judicial branch education credit approval of this activity in Nebraska is currently pending."

unanimous

§ 1-506. Credit for participation.

§ 1-506. Credit for participation.

   (A) Judicial branch employees shall not be required to fulfill their mandatory education requirement until the end of their first full year of employment.

   (B) Upon application, the Committee may award such credit as it determines for authorship of legal articles or books.

   (C) The Committee may award up to 6 credits annually for preparation and speaking at an approved program or for preparing written materials which are distributed at an approved judicial branch education program. The credits shall be in addition to credits for attendance at the judicial branch education program.

   (D) Questions regarding the appropriateness of awarding judicial branch education credit for attendance at judicial education programs not sponsored by Nebraska Judicial Branch Education, or requests for funding to attend such programs, shall be initially submitted to and resolved by the Judicial Branch Education Director. Denial of such credits or requests for funding by the Director may be reviewed by the Judicial Branch Education Advisory Committee.

   (E) Judicial Branch Education credits shall not be given to judges for attendance at programs not sponsored by Nebraska Judicial Branch Education which do not adhere to ethical standards of the Nebraska Revised Code of Judicial Conduct, including, but not limited to, § 5-303.14. It is the responsibility of the individual judge who seeks to participate in a nonsponsored judicial branch education activity to ensure that the program agenda is appropriately balanced and that attendance at such program complies with the Nebraska Revised Code of Judicial Conduct.

Rule 6(A) amended February 1, 2006; Rule 6(D) and (E) amended December 13, 2006. Renumbered and codified as § 1-506, effective July 18, 2008; § 1-506(C) amended March 25, 2009; § 1-506(E) amended December 22, 2010, effective January 1, 2011.

 

unanimous

§ 1-507. Sanctions for failure to comply with mandatory education rules.

§ 1-507. Sanctions for failure to comply with mandatory education rules.

   (A) A judge who submits a false report for judicial branch education credits or who fails to correct an erroneous transcript of judicial branch education credits shall be reported to the Judicial Qualifications Commission for disciplinary proceedings. Other judicial branch employees who shall submit a false report for judicial branch education credits or who fail to correct an erroneous transcript of judicial branch education credits shall be subject to dismissal from employment or such other sanctions as believed appropriate by the Supreme Court pursuant to the Nebraska Supreme Court Personnel Policies and Procedures Manual.

   (B) In the event a judge fails to comply with these rules, the Committee shall promptly notify the judge of the noncompliance by sending a notice thereof to the judge at the judge's principal place of office. The statement of noncompliance shall advise the judge that within 30 days a plan to correct the noncompliance must be submitted to the Committee for its consideration and approval. Should the judge fail to correct the noncompliance within a reasonable period of time, the Committee shall report the noncompliance to the Nebraska Judicial Qualifications Commission as a possible violation of § 5-302.0, Canon 2, of the Nebraska Revised Code of Judicial Conduct. Furthermore, the Supreme Court may enter an order requiring the judge to appear and show cause why sanctions should not be imposed by the Court against the judge for willful failure to comply with these rules of the Court.

   (C) Should any judicial branch employee fail to comply with these rules for judicial branch education, the Committee shall promptly notify the individual of the noncompliance by sending a notice thereof to the individual at the individual's work address. The employee's supervisor shall also be notified of the noncompliance. The statement shall advise the individual that the noncompliance must be corrected within 30 days or a written plan to correct the noncompliance must be submitted to the Committee for its approval within 30 days. Failure of the individual to correct the noncompliance shall subject the individual to such sanctions as are permissible in the Supreme Court Personnel Policies and Procedures Manual including the possible termination of employment.

   (D) Unless otherwise directed by the Supreme Court, the files, records, and proceedings of the Committee, as they may relate to or arise out of the failure of an individual to satisfy the minimum judicial branch education requirements established by these rules, shall be confidential and shall not be disclosed except in furtherance of the Committee's duties or upon request of the individual affected.

§ 5-107(B) amended December 22, 2010, effective January 1, 2011.

unanimous

§ 1-508. Annual reporting.

§ 1-508. Annual reporting.

   The annual reporting period is a period of 1 year with the first period beginning on the first day of January after an individual becomes an employee of the judicial branch and continuing until the last day of December of each year.

unanimous

§ 1-509. Computation of judicial branch education credit.

§ 1-509. Computation of judicial branch education credit.

   Credits for approved programs shall be awarded on the basis of 1 credit for each hour actually spent in attendance at approved or accredited judicial branch education activities. Partial credit may be earned on a 1/10 hour basis.

Rule 9 amended February 1, 2006. Renumbered and codified as § 1-509, effective July 18, 2008.

unanimous

§ 1-510. Effective date.

§ 1-510. Effective date.

   These rules shall be effective on or after July 1, 2004. An implementation schedule for specific groups of judicial branch employees has been developed by the Director and will be followed in implementing the terms of this rule. Full implementation of mandatory judicial branch education is anticipated by fiscal year 2007-08, if resources permit.

unanimous

§ 1-511. Judicial Branch Education Advisory Committee; composition; selection.

§ 1-511. Judicial Branch Education Advisory Committee; composition; selection.

   The Nebraska Supreme Court shall appoint a Judicial Branch Education Advisory Committee consisting of 14 members:

COMPOSITION:

Chief Justice, or his/her delegate (ex officio)
Court of Appeals Judge
District Court Judge
County Court Judge
Separate Juvenile Court Judge
Clerk Magistrate
Clerk of the District Court
Probation Officer
Court Reporter
Workers' Compensation Court designee
State Court Administrator (ex officio)
State Probation Administrator (ex officio)
Director of Judicial Branch Education (ex officio)
Deputy CIO of the Judicial Branch (ex officio)

SELECTION:

Appointment by Chief Justice with the recommendation of the individual education committees.

   The Supreme Court shall designate one of the members as chair and one member as vice chair who may serve in the event of disqualification or unavailability of the chair. Members serve staggered, renewable 3-year terms. The Committee shall convene not less than two times per year.

§ 1-511 amended April 14, 2010; § 1-511 amended June 18, 2025.

unanimous

§ 1-512. Judicial Branch Education Advisory Committee; authority.

§ 1-512. Judicial Branch Education Advisory Committee; authority.

   The Nebraska Supreme Court Judicial Branch Education Advisory Committee shall have authority to:

   (A) Develop and review standards and administrative rules addressing such issues as the criteria for mandatory education for judges, criteria for approval of qualified activities, reporting requirements, sanctions for noncompliance, exemptions, and confidentiality of records for approval of the Court and incorporation into this rule. (See Appendix A.)

   (B) Develop and review standards and administrative policies for education of all non-judge judicial branch employees including criteria for approval of qualified activities, reporting requirements, sanctions for noncompliance, and exemptions for the approval of the Court and incorporation into this rule. (See Appendix A.)

   (C) Make recommendations to the State Court Administrator regarding budget requests and pursue grant funding.

   (D) Develop policies regarding funding for travel and other related education expenses for all employees both in-state and out-of-state.

   (E) Serve as a liaison to the various employee groups in the development of curriculum and participate in the design of specialized programming.

   (F) Develop and host education for those serving the courts as directed by the Supreme Court and Judicial Branch Education Advisory Committee, and collect fees for such education to offset development costs.

   (G) Participate in additional activities as assigned by the Supreme Court in order to promote excellence in the administration of justice through quality education.

Click here to view members of the Committee.

§ 1-512(F) and (G) amended March 13, 2013; § 1-512(A) and (B) amended April 10, 2013.

unanimous

§ 1-513. Public access to Judicial Branch Education (JBE) records.

§ 1-513. Public access to Judicial Branch Education (JBE) records.

   (A) Unless otherwise provided in this section, JBE records shall be deemed to be public records within the meaning of Neb. Rev. Stat. § 84-712.01 and shall be available to the public in accordance with the Nebraska Public Records Act.

   (B) JBE public records shall include the following:

   (1) Records showing the agenda for education or training programs or presentations.

   (2) Records showing the identity of presenters at education or training programs or presentations.

   (3) Contracts or records for payment for the provision of education or training programs or presentations.

   (4) Records showing the content of education or training programs or presentations given by outside or private presenters, including all handouts, presentations, and recordings, except such portions of any recordings governed by subsection (C)(7) below, and as long as express written consent is granted by the author for the release of the materials.

   (C) For purposes of this section, all other JBE records not identified in subsection (B) above shall be deemed confidential and not public records, including but not limited to:

   (1) Records that may be withheld from the public pursuant to Neb. Rev. Stat. § 84-712.05.

   (2) Records showing persons who registered or attended education or training programs or presentations.

   (3) Records showing the content of education or training programs or presentations, including all handouts, presentations, and recordings when the presenter is an officer or employee of the Nebraska judicial branch.

   (4) Examinations, worksheets, evaluations, or other material completed by persons attending education or training programs or presentations.

   (5) Notes taken by persons attending education or training programs or presentations.

   (6) Communications, including emails, regarding the selection and hiring of presenters, and the content to be presented.

   (7) Questions or comments by the persons attending education or training programs or presentations, whether in written form or as part of a recording.

   (8) Records showing credits or hours received or claimed by persons attending education or training programs or presentations.

   (9) Files, records, and proceedings as set forth in § 1-507(D).

   (D) Portions of a record that qualify as a JBE public record may nonetheless be given confidential treatment if the State Court Administrator finds that keeping such portions confidential is necessary to preserve the essential functions of the judicial branch.

   (E) In no event shall this section be construed to infringe upon the judicial deliberations privilege, which covers a judge's mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials. The privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.

§ 1-513 adopted September 5, 2018.

unanimous

Article 6: Judicial Nominating Commissions.

Article 6: Judicial Nominating Commissions. unanimous

§ 1-601. Application process.

§ 1-601. Application process.

   (A) Upon request to the judge chairperson of the appropriate Judicial Nominating Commission, the Clerk of the Supreme Court, or the State Court Administrator, an applicant for judicial appointment will receive a Judicial Vacancy Application Package which consists of instructions to the applicant, an application for judicial vacancy form, a copy of the Nebraska Revised Code of Judicial Conduct, a personal data sheet, and a copy of these rules. Such documents, which include "Fill-in" versions of necessary forms, may also be found at and downloaded from the Nebraska Judicial Branch Web site at http://supremecourt.ne.gov/forms.

   (B) The application, including attachments, and the personal data sheet must be filed by mail or electronically by e-mail with the commission chairperson not later than 21 days prior to the date of the public hearing. The Fair Credit Reporting Act Disclosure Statement and the Waiver of Confidentiality form attached to the application must be signed and sworn to before a notary public. Such notarized documents may be electronically submitted as a scanned document, provided that the applicant retains possession of the original bearing the required signatures and notary stamps. An applicant for any judicial vacancy may be investigated to, among other things, verify the accuracy of information provided.

   (C) Submission of the documents referred to above may be by regular mail to Nebraska Supreme Court, P.O. Box 98910, Lincoln, Nebraska 68509. In the alternative, such documents may be electronically submitted by scanning the Application (which includes the Fair Credit Reporting Act Disclosure Statement and the Waiver of Confidentiality form), the personal data sheet, and the legal writing sample; saving each document as a separate PDF file; and attaching each PDF file to an e-mail sent to nsc.jnc@nejudicial.gov. It is recommended that the e-mail transmitting these documents requests acknowledgment of receipt.

   (D) The personal data sheet is a confidential communication between the commission, its staff, and the applicant. However, any applicant's name forwarded to the Governor shall be accompanied by the application, personal data sheet, and results of any investigation conducted on behalf of the commission.

Rule 1(B) amended December 21, 1994. Renumbered and codified as § 1-601, effective July 18, 2008; § 1-601(A) amended December 22, 2010, effective January 1, 2011; § 1-601(A)-(D) amended November 14, 2012.

 

unanimous

§ 1-602. Disqualification process.

§ 1-602. Disqualification process.

   (A) If a relationship between a commission member, or the Supreme Court member who chairs the commission, and an applicant falls into one of the following four categories, the commission member or chairperson shall recuse himself or herself from the commission:

   (1) Any relationship to the applicant by blood or marriage by virtue of being the applicant's spouse, child, or spouse of a child. The commission member shall not be related to the applicant under the third degree of relationship test. The third degree of relationship test is defined as being the applicant's or the applicant's spouse's parent, grandparent, aunt, uncle, sibling, nephew, or niece, or spouse of any of these relatives. Additionally, the commission member shall recuse himself or herself in situations where the applicant and commission member are sharing or have shared a residence during the past 5 years.

   (2) Any arrangement involving the practice of law or an employment relationship including, but not limited to, partnership, professional corporation, or office sharing within the past 5 years.

   (3) Any relationship in which the commission member and applicant are actively engaged in managing a common profitmaking business or venture.

   (4) Any instance in which the member of the commission would cast his or her vote on a basis other than an applicant's qualification for the office.

   (B) If the person recusing himself or herself is the Supreme Court member who chairs the commission, the Chief Justice or the next senior judge shall request the Governor to appoint another member of the Court to chair such commission meeting.

   (C) Any person may challenge the impartiality of a member or the chairperson of a judicial nominating commission. The challenge shall be in writing and directed to the Supreme Court member chairing such commission. If a challenge is raised regarding the impartiality of a member or the chairperson and the person so challenged declines to disqualify himself or herself, the unchallenged members of the commission shall rule on the challenge by a majority vote. Any such decision shall be attached to the information forwarded to the Governor and attached to the report submitted to the State Court Administrator.

   (D) A violation of § 1-602(A) by a commission member will not constitute cause for rescission of a judicial nomination or reopening of the commission process.

unanimous

§ 1-603. Commission deliberation.

§ 1-603. Commission deliberation.

   (A) Each commission member will execute the official oath and a statement of understanding, attached hereto as exhibit A.

   (B) Each commission member will be provided a Nebraska Judicial Nominating Commissioner's Handbook, the contents of which shall include the American Bar Association's Guidelines for Reviewing Qualifications of Candidates for State Judicial Office and a checklist of qualifications. The qualifications checklist will be used as a guide to provide uniformity in evaluating candidates.

   (C) The commission is encouraged to hold private interviews with candidates prior to or following the public hearing.

   (D) The list of applicants determined to be sufficiently qualified to hold the judicial position in question shall be submitted to the Governor in alphabetical order.

unanimous

Exhibit A - Statement of Understanding of Ethical Considerations

Exhibit A - Statement of Understanding of Ethical Considerations

Statement of Understanding of Ethical Considerations

   In the performance of their duties, the judicial nominating commission members shall be ever mindful that they hold positions of public trust. No commission member shall conduct himself or herself in a manner which reflects discredit upon the judicial selection process or discloses partisanship or partiality in the consideration of applicants. Consideration of applicants shall be made impartially, discreetly, and objectively. A commission member shall disclose to the commission all personal and business relationships with a prospective applicant that may directly or indirectly influence his or her decision. After certification of a list of sufficiently qualified applicants to the Governor, no commission member shall attempt, directly or indirectly, to further influence the ultimate decision of the Governor. No attempt shall be made to rank such nominees whose names are made public or to otherwise disclose a preference of the commission.

   In accordance with the above ethical considerations, I will accept the following responsibilities:

   1. I will disclose any conflict of interest that I may have with any of the applicants.

   2. I will avoid preselection of nominees, "hidden agenda," or consideration of factors other than the merit of the applicants.

   3. I agree not to discriminate against any applicant because of the applicant's race, religion, gender, political affiliation, age, or national origin.

   4. I will not divulge any of the applicants' confidential information or the commission's deliberations except as provided by the Judicial Nominating Commission rules.

Exhibit A amended December 21, 1994.

unanimous

Article 7: Office of Dispute Resolution.

Article 7: Office of Dispute Resolution. unanimous

§ 1-701. Appointment of advisory council.

§ 1-701. Appointment of advisory council.

   Procedures for filling yearly advisory council vacancies shall be set forth in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-702. Meetings of the advisory council.

§ 1-702. Meetings of the advisory council.

   Procedures for regular council meetings and task force meetings shall be defined in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-703. Responsibilities of the director.

§ 1-703. Responsibilities of the director.

   The director's responsibilities regarding such areas as center information development, application, and reporting, as well as the general areas of program budgeting, sliding scale fees, public awareness, and training, shall be defined in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-704. Application for center approval of funding.

§ 1-704. Application for center approval of funding.

   An application for funding by a center must include all the statutory requirements: plan of operation, objec­tives, population served, administrative organization, record-keeping procedures, mediator ­qualifications, annual budget, and proof of nonprofit status. Specific application requirements are set forth in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-705. Procedures for approved centers.

§ 1-705. Procedures for approved centers.

   All centers must have clearly established procedures in the following areas: permanent files, numbered case files, center forms and records, mediation training, mediation payment, center fees, accounting system, compliant procedures, and divorce policies. Specific procedure requirements are defined in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-706. Center reports.

§ 1-706. Center reports.

   The center will report quarterly to the Office of Dispute Resolution. The annual report will be a summation of the quarterly reports in that year. Reporting forms may be supplied by the Office. Information for the reports should include the following: referral source, outcomes of cases, types of cases, participant evaluations, cost of sessions, and outreach. These areas are defined in the policy manual of the Office of Dispute Resolution.

unanimous

§ 1-707. Grievance procedures.

§ 1-707. Grievance procedures.

   Complaints may be made directly to a center or to the Office of Dispute Resolution. Grievance procedures pursuant to the policy manual of the Office of Dispute Resolution shall be followed.

unanimous

Article 8: Public Access to Electronic Court Records and Information.

Article 8: Public Access to Electronic Court Records and Information.

(Interim Policy on Public Access to Court Information adopted November 13, 2003. Renumbered and codified as Neb. Ct. R. §§ 1-801 to 1-810, effective July 18, 2008. Revised and adopted as permanent policy on May 15, 2013.)

unanimous

§ 1-801. Purpose of policy.

§ 1-801. Purpose of policy.

   The purpose of this policy is to set forth the method to access electronic court records and information, which shall be allowed only by means of Public Access through JUSTICE or SCCALES, Remote Access through the court-authorized provider, and Compiled Information Requests through the Administrative Office of the Courts, as set forth below.

§ 1-801 amended May 15, 2013; § 1-801 amended June 6, 2018.

unanimous

§ 1-802. Definitions.

§ 1-802. Definitions.

   (A) Trial Courts are District Courts, County Courts, and Separate Juvenile Courts. For purposes of this Rule, this definition does not include the Nebraska Workers' Compensation Court.

   (B) Appellate Courts are the Nebraska Supreme Court and Court of Appeals.

   (C) Case Management System (CMS) is computer system designed to monitor and track court filings and events, and to account for all financial information in that case. JUSTICE is the case management system for the trial courts and SCCALES is the case management system for the appellate courts developed and maintained by the Nebraska State Court Administrator's Office.

   (D) Public includes:

   (1) any person and any business or non-profit entity, organization, or association;

   (2) any governmental agency for which there is no existing policy or statute defining the agency's access to court records;

   (3) media organizations; and

   (4) entities which gather and disseminate information for whatever reason, and regardless of whether it is done with the intent of making a profit, without distinction as to the nature or extent of access.

   (E) Public does not include:

   (1) court or clerk of court employees;

   (2) people or entities, private or governmental, who assist the court in providing court services;

   (3) public agencies whose access to court records is defined by another statute, rule, order, or policy; and

   (4) the parties to a case or their lawyers regarding access to the court record in their case, or a different case in which the lawyer's client may be involved.

   (F) Public Access means the public can inspect and obtain a copy of the information in an electronic court record.

   (G) Remote Access means the ability to electronically search records or information, inspect records, or copy information in a court record.

   (H) Data means the quantities, characters, or symbols stored in the fields or files of an electronic database for the case management system. Data can only be distributed when purposefully extracted from the database and placed into an external text file and organized into recognizable values.

   (I) Information means data that has undergone processing by a computer program to be displayed as an alphanumeric recognizable component of an electronic court record.

   (J) Electronic Court Record means case management system information or images of documents related to an individual case, accessed in its entirety via a developed user interface through the court-authorized service provider or the case management system.

   (K) Bulk records means all, or a significant subset of the Electronic Court Records maintained in the case management system.

   (L) Bulk data means all, or a significant subset of the data maintained in the case management system, with or without modification or customized compilation.

   (M) Bulk Distribution means the distribution of all, or a significant subset, of electronic court records or data with or without modification or compilation.

   (N) Compiled Information means non-confidential information derived from the selection, aggregation, or reformulation of selected data from more than one individual court record. Compiled information may be presented in statistical form without unique case identifiers.

§ 1-802(D) and (E) amended May 15, 2013; § 1-802 amended June 6, 2018.

unanimous

§ 1-803. Public access to court records and information.

§ 1-803. Public access to court records and information.

   Every member of the public may access the same information from the same records except as otherwise specifically provided. Stated differently, every public user will see the same information.

§ 1-803 amended June 6, 2018.

unanimous

§ 1-804. General access rule.

§ 1-804. General access rule.

   Information in an electronic court record is accessible to the public through remote access with the court-authorized service provider or through public access terminals at a courthouse unless prohibited by this policy or applicable laws.

§ 1-804 amended June 6, 2018.

unanimous

§ 1-805. Public access to electronic court records and information.

§ 1-805. Public access to electronic court records and information.

   The following information in a court Case Management System may be accessed electronically unless public access is restricted by law, court rule, or this policy.

   (A) Litigant/party indexes to cases filed with the court;

   (B) Summary information about each case including the names of the parties;

   (C) Registers of actions describing the documents filed in a case along with an image of the filing if available;

   (D) Calendars of court proceedings, including the case number, caption, date, time, and location of scheduled hearings;

   (E) Summary information about judgments, orders, or decrees in a case.

§ 1-805 amended June 6, 2018.

unanimous

§ 1-806. Bulk distribution or collection of court records and information.

§ 1-806. Bulk distribution or collection of court records and information.

   (A) The Supreme Court will not distribute electronic court records, data, or information in bulk except in the following circumstances:

   (1) to preserve records and comply with courts' records retention schedules;

   (2) in accordance with data sharing agreements with other governmental entities/agencies to create operational efficiencies or fulfill statutory obligations;

   (3) for certain scholarly purposes such as research, evaluative, or statistical activities sponsored or approved by the Nebraska Supreme Court or Court Administrator;

   (4) to facilitate better access to court information and data via the court-authorized service provider as designated by the Nebraska Supreme Court or Court Administrator.

   (B) Bulk collection and distribution of court records and data is prohibited except as specifically authorized by this Rule. Any person or entity collecting and/or distributing court records, data, or information in violation of this Rule, or any state statute, federal law, or regulation, shall have access to the court-authorized service provider terminated.

§ 1-806 amended June 6, 2018.

unanimous

§ 1-807. Requests to compile court record information and data.

§ 1-807. Requests to compile court record information and data.

   Requests to compile court record information will be considered only when the public interest will be served through significant scholarly, governmental, research, evaluation, or statistical purposes. Applications should be directed to the Administrative Office of the Courts.

Director of Research and Data
521 South 14th Street
Lincoln, NE 68508
(531)739-8100
nsc.researchanddatarequests@nejudicial.gov

   Requests shall be considered and fulfilled on a schedule which does not disrupt normal court business.

§ 1-807 amended June 6, 2018.

unanimous

§ 1-808. Court records and information excluded from public access; duty not to disclose.

§ 1-808. Court records and information excluded from public access; duty not to disclose.

   The following information in a court record may not be accessed by the public:

   (A) Information enumerated in Neb. Rev. Stat. § 84-712.05.

   (B) Information or records not accessible to the public pursuant to state law, court rule, or case law, including, but not limited to, the following:

   (1) Criminal History Information as set forth in the Security, Privacy, and Dissemination of Criminal History Information Act. See Neb. Rev. Stat. § 29-3501.

   (2) Adoption case records. See Neb. Rev. Stat. § 43-113.

   (3) Court records sealed pursuant to statute or by court order.

   (C) If a public entity or person, as defined in § 1-802(D), obtains court record(s) via access with the court-authorized service provider and furnishes that record to third parties either for or not for profit, the public entity or person who obtained court record(s) via the court-authorized service provider has a duty to periodically update any court record(s) to determine if the court record(s) and any information therein have been sealed pursuant to statute and/or court order. If such court record(s) have been sealed, the public entity or person who obtained the record(s) shall not further disclose the sealed court record(s) for any purpose and shall remove such sealed record(s) from further access. Disclosure of sealed court records and information therein may result in civil or criminal penalties as provided for by law.

   (D) A lawyer or party as defined under § 1-802(E)(4) who has possession of a sealed court record that was filed in a court case prior to the record being sealed does not violate this rule if the lawyer or party does not make new or further disclosures of the sealed record. Unlawful disclosure of sealed court records and information therein may result in civil or criminal penalties as provided for by law.

§ 1-808(B)(3) amended May 15, 2013; § 1-808(B)(4) deleted May 15, 2013; § 1-808(B)(3) deleted June 11, 2014, effective October 15, 2015; § 1-808 amended June 6, 2018.

unanimous

§ 1-809. When electronic court records and information are available.

§ 1-809. When electronic court records and information are available.

   (A) Electronic court records and information accessed at courthouse public access terminals will be available for public access in the courthouse during regular office hours.

   (B) Electronic court records and information which can be accessed remotely will be available for access at least during the hours established by the court for courthouse access, subject to unexpected technical failures or normal system maintenance.

§ 1-809 amended June 6, 2018.

unanimous

§ 1-810. Fees for access.

§ 1-810. Fees for access.

   The Nebraska Supreme Court may establish fees for:

   (A) Remote access to JUSTICE and SCCALES;

   (B) photocopies of court records; and

   (C) requests made under § 1-807.

§ 1-810 amended June 6, 2018.

unanimous

Article 9: State Library.

Article 9: State Library. unanimous

§ 1-901. General use.

§ 1-901. General use.

   The general public may use at the library premises and during regular library hours the material housed in the Nebraska State Library and may, at the user's expense, photocopy library materials in accordance with the copyright laws, utilizing photocopy equipment located on the library premises.

Rule 1 amended February 26, 2003. Renumbered and codified as § 1-901, effective July 18, 2008.

unanimous

§ 1-902. Special use.

§ 1-902. Special use.

   (A) State Senators, Justices of the Supreme Court, Judges of the Court of Appeals, Directors of State agencies, and the Attorney General, and members of their respective staffs, may check out and use away from the library premises for a period of no more than 10 days any material required in the performance of their duties; provided, however, that the librarian shall call for its return sooner if the material checked out is needed by a State Senator, Justice of the Supreme Court, or Judge of the Court of Appeals.

   (B) Unless return is requested sooner by the librarian, the following material may be checked out from the library and used away from the library premises by members of the Nebraska State Bar Association for a period of not more than 5 days:

American Jurisprudence Proof of Facts
American Jurisprudence Trials
Bound Periodicals
Bound Federal Register
Nebraska Continuing Legal Education Seminar Manuals
Advance Sheets (retired)
State Reports, Nebraska excluded
Code of Federal Regulations (retired)
Treatises
U.S. Government Publications, not otherwise designated

   (C) Members of the Nebraska State Bar Association may check out the following materials for no more than 1 day:

American Jurisprudence 2d
American Jurisprudence Pleading and Practice Forms
American Law Reports
BNA Tax Management Portfolios
Code of Federal Regulations (current)
Corpus Juris Secondum
Legal Forms Books
Looseleaf Services (BNA & CCH)
Nebraska Briefs
Nebraska How to Practice Manuals
Nebraska Jury Instructions
Personal Injury Valuation Handbooks
State and Federal Court Rules
State Jury Instructions
U.S. Code Service
Unbound Periodicals
State Statutes, Session Laws, Nebraska excluded
Unbound Federal Register
Words and Phrases

   (D) Materials not specified in § 1-902(B) and (C) may not be checked out by anyone other than those users specified in § 1-902(A).

Rule 2 amended January 19, 1995; Rule  2 amended February 26, 2003. Renumbered and codified as § 1-902, effective July 18, 2008.

unanimous

§ 1-903. Checkout procedures.

§ 1-903. Checkout procedures.

   The librarian shall devise a checkout system which ensures that the identity of the material checked out and the name, address, and telephone number of the user who checked it out are known at all times.

Rule 3 amended February 26, 2003. Renumbered and codified as § 1-903, effective July 18, 2008.

unanimous

§ 1-904. Renewals.

§ 1-904. Renewals.

   Checkout of materials specified in § 1-902(B) may be renewed for one additional 5-day period, unless the material is called for by the librarian. Checkout of materials specified in § 1-902(C) may not be renewed.

Rule 4 adopted February 26, 2003. Renumbered and codified as § 1-904, effective July 18, 2008.

unanimous

§ 1-905. Timely return in good condition.

§ 1-905. Timely return in good condition.

   Failure to make timely return of items in good condition may result in the loss of checkout privileges.

Rule 5 (previously numbered 4) amended February 26, 2003. Renumbered and codified as § 1-905, effective July 18, 2008.

unanimous

§ 1-906. Public computers and internet access.

§ 1-906. Public computers and internet access.

   (A) Purpose. The Nebraska State Library provides current, comprehensive, and efficient resources for legal information, allowable within its budget, to the Nebraska Judiciary, the legal community, and the public. The purpose of this rule is to ensure that Nebraska State Library users have reasonable access to the library's electronic resources while respecting the rights of others.

   (B) Disclaimer. Patrons access Nebraska State Library computers at their own risk.  Legal information may be inaccurate, out of date, or incomplete. Users of the computers are encouraged to exercise caution and critical judgment in evaluating the validity of information accessed via the Internet. Users of the library computers shall have no expectation of privacy while using the resources. The Nebraska State Library assumes no responsibility for damages, direct or indirect, arising from the use of the computers.

   (C) Acceptable uses.

   (1) Nebraska State Library public computers and Internet access are provided to conduct legal research or to retrieve federal, state, or local government documents.

   (2) E-mail accounts may be used to send legal research results to the user's home or office.

   (3) More than one person may share a computer terminal as long as it is by mutual agreement and their behavior and conversation do not disturb other library users or library staff.

   (4) Children under the age of 18 may use the computers to research a legal issue only with the permission of library staff.

   (D) Unacceptable uses.

   (1) Nebraska State Library computers may not be used for any purpose that violates federal, state, or local laws, including violation of applicable laws pertaining to intellectual property.

   (2) Nebraska State Library computers may not be used to add, modify, change, alter, damage, download, save, upload, evade, or otherwise interfere or change any established computer hardware, software, security, or other computer system.

   (3) Nebraska State Library computers may not be used for non-research purposes, such as e-mail, chat rooms, games, pornography, commercial activities, solicitation of funds, or product sales.

   (4) Nebraska State Library computers may not be used to engage in any illegal purpose, including, but not limited to, hacking, misrepresentation, harassment, slander, or the intimidation or threatening of another person or entity.

   (5) Nebraska State Library computers may not be shut off or restarted by users.

   (E) Time. Terminals are available on a first come, first serve basis. Research periods are limited to 30 minutes if someone is waiting to use the terminal. Users are requested to be considerate of the patrons waiting to use the terminal.

   (F) Right to Privacy. All library users are expected to respect the privacy of those using the Nebraska State Library public computers and not interfere with their use. Public computer workstations are located in open areas where others may see words or images that appear on the computer monitors.  Users must be aware that this public environment precludes any guarantee of privacy.

   (G) Printing. Printing costs 10 cents per printed page. Printed materials may be picked up and paid for at the library's front desk.

   (H) Enforcement of Policy. Users who engage in illegal activities on the Internet will be reported to the appropriate authorities. Failure to use Nebraska State Library public computers and Internet access appropriately and in accordance with this rule may result in:

   (1) Suspension of equipment use privileges; and/or

   (2) Suspension of access to the Nebraska State Library.

   Each Library staff person has the authority and responsibility to enforce this rule.

Rule 6 adopted November 30, 2005. Renumbered and codified as § 1-906, effective July 18, 2008.

unanimous

§ 1-907. Social media.

§ 1-907. Social media.

   The state librarian or his or her designee may maintain social media accounts for information purposes related to the Nebraska Supreme Court or State Library. The state librarian or his or her designee shall abide by the policies approved by the Supreme Court regarding social media use.

Rule § 1-907 adopted April 10, 2019.

unanimous

Article 10: Uniform Definitions of Recidivism for Nebraska State Probation and Nebraska Problem-Solving Courts.

Article 10: Uniform Definitions of Recidivism for Nebraska State Probation and Nebraska Problem-Solving Courts. unanimous

§ 1-1001. Uniform definitions of recidivism for Nebraska State Probation and Nebraska Problem-Solving Courts.

§ 1-1001. Uniform definitions of recidivism for Nebraska State Probation and Nebraska Problem-Solving Courts.

   For the purpose of accurately assessing post-program recidivism across justice programs, Nebraska State Probation and Nebraska Problem-Solving Courts shall utilize the following uniform definitions of recidivism for all adults and juveniles within their respective programs.

   (A) Adults:

   As applied to adults, recidivism shall mean a final conviction of a Class I or II misdemeanor, a Class IV felony or above, or a Class W misdemeanor based on a violation of state law or an ordinance of any city or village enacted in conformance with state law, within 3 years of being successfully released.

   (B) Juveniles:

   (1) As applied to juveniles, recidivism shall mean that within 1 year of being successfully released from a probation or problem-solving court program the juvenile has:

   (a) an adjudication pursuant to Neb. Rev. Stat. § 43-247(1) or (2).

   (b) for a juvenile 14 years or older, a final conviction for a Class W misdemeanor based on a violation of state traffic laws or ordinances of any city or village enacted in conformance with state law; or

   (c) a prosecution and final conviction as an adult for any crimes set forth in subsection (A) above.

   (2) For juveniles that age out of the juvenile system within 1 year of program exit and who did not recidivate post-program as juveniles, the adult definition of post-program recidivism, including any drug-related or alcohol-related conviction, shall apply.

§ 1-1001 adopted September 25, 2013.

unanimous

Article 11: Emergency Actions and Orders.

Article 11: Emergency Actions and Orders. unanimous

§ 1-1101. Emergency document delivery for filing in Nebraska courts.

§ 1-1101. Emergency document delivery for filing in Nebraska courts.

   (A) In the event of a disaster or emergency declared by order of the Nebraska Supreme Court that causes difficulty in accessing the counter staff of any clerk’s office of any district, separate juvenile, county court, Workers’ Compensation Court, or the appellate courts, the Nebraska Supreme Court may issue an order designating an alternate method for document delivery, including, but not limited to:

   (1) delivering documents for filing to court staff, whether in person or via U.S. Mail, at an alternate facility designated by the Supreme Court;

   (2) delivering documents for filing by email to the appropriate court clerk with the necessary document attached in a PDF format to an email address designated by the Supreme Court; and/or

   (3) providing an alternate fax machine number as designated by the Supreme Court and Court of Appeals, district, separate juvenile, county court, or Workers’ Compensation Court by which to accept fax filings pursuant to Neb. Ct. R. § 6-601 et seq.

   (B) Limitations. Nebraska attorneys are prohibited from using email as provided in subsection (A)(2) above as a document delivery method for filing with any court unless specifically allowed by the Supreme Court’s order. Nebraska attorneys shall utilize the E-Filing services as outlined in Neb. Ct. R. § 6-401 et seq. and Neb. Ct. R. App. P. § 2-200 et seq. to accomplish filings that cannot be delivered in person, by U.S. Mail, or fax machine.

   (C) Email transmission of documents for filing.

   (1) Electronic transmission of a document by email does not constitute filing; filing is complete only after the receiving clerk’s acceptance of the document for filing in compliance with applicable statutes and court rules. The clerk’s endorsement, or a JUSTICE-generated endorsement, on the document of the date of filing shall be presumed to be the date of acceptance, and such presumption shall not be rebutted except by clear and convincing evidence.

   (2) Risk of loss in transmission is upon the party transmitting the documents by email.

   (3) Fees are still required to be paid to the clerk for any pleading or filing transmitted by email that statutorily requires a filing or docket fee. The clerk may wait for the statutorily required fee before filing the document.

   (D) Any order entered by the Supreme Court pursuant to this rule shall remain in effect until such time as the Supreme Court declares.

§ 1-1101 adopted April 22, 2020.

unanimous

Article 12: Technology.

Article 12: Technology. dbrown-butterfield

§ 1-1201. Information Systems and Security Rule.

§ 1-1201. Information Systems and Security Rule.

   (A) The Nebraska Supreme Court, pursuant to the general administrative authority over all courts in the state set forth in Neb. Const. art. V, § 1, and by adoption of this rule, authorizes creation and implementation of an Acceptable Use of Information Technology Resources Policy (found as Appendix 1) to outline the acceptable use of information and information technology resources by Branch users. This rule further provides clarification as to applicability of Appendix 1 to users of Judicial Branch information technology systems.

   (B) Applicability and Scope.

   (1) The rule shall apply to all Judicial Branch users of information technology systems. Judicial Branch users are defined as persons who have access to and utilize any Judicial Branch information technology systems, networks, hardware, and/or software, regardless of title, employment, volunteer position, or contract status. This includes, but is not limited to, judges, judicial branch employees covered by and those who are excepted from the Nebraska Supreme Court Personnel Policies and Procedures, elected clerks of the district court, county court employees who are Branch users, contract workers, interns, volunteers, and business partners.

   (2) All Judicial Branch users shall, to the fullest extent reasonably possible, comply with all requirements of Appendix 1 or face potential disciplinary and/or remedial action as determined by the Nebraska Supreme Court and set forth in section (D).

   (3) This rule and Appendices 1 and 2 shall not apply to the Nebraska Workers’ Compensation Court.

   (C) Acceptable Usage. Appendix 1 shall outline the acceptable use of information technology systems, networks, hardware, and/or software by Branch users. The Nebraska Supreme Court requires all Branch users to sign an acknowledgment that the user has received and read this rule and Appendix 1 as a condition of access to any Branch information system. This Acknowledgment of the Policy is set forth in Appendix 2.

   (D) Disciplinary and Remedial Action. Violations of this rule by willful noncompliance with Appendix 1 may result in disciplinary action; loss of access to information technology systems, networks, hardware, and/or software by the violator; or other remedial or corrective action as determined by the Nebraska Supreme Court. Specific disciplinary and remedial authority is set out as follows: 

   (1) The ultimate disciplinary authority for judges in the State of Nebraska rests in the provisions of Neb. Const. art. III, § 17, and art. V, § 30.

   (2) Disciplinary authority for judicial branch employees covered by the Nebraska Supreme Court Personnel Policies and Procedures rests in the disciplinary provisions contained therein. Willful noncompliance with Appendix 1 may be cause for disciplinary action as provided by the Personnel Policies and Procedures.

   (3) For Judicial Branch employees excepted from the Nebraska Supreme Court Personnel Policies and Procedures, willful noncompliance with Appendix 1 may be cause for remedial or corrective action as determined by the Nebraska Supreme Court.

   (4) For elected clerks of the district court and county employees who are Judicial Branch users in the district courts of the state, willful noncompliance with Appendix 1 may be cause for loss of access to information technology systems, networks, hardware, and/or software by the violator.

   (5) For contract workers, interns, volunteers, and business partners, willful noncompliance with Appendix 1 may be cause for loss of access to information technology systems, networks, hardware, and/or software by the violator, may be a breach of contract, or may result in early termination of the internship or volunteer opportunity as determined by the Nebraska Supreme Court or the Administrative Office of the Courts and Probation.

   (E) Any violation of Appendix 1 that gives rise to potential criminal activity shall be reported to the appropriate authorities.

   (F) Administration of Appendices 1 and 2 shall be by the Nebraska Judicial Branch Chief Information Officer as directed by the Nebraska Supreme Court.

   (G) The Nebraska Supreme Court may require Judicial Branch Education for all Judicial Branch users on information systems and security. Specific education shall be provided by Judicial Branch Education as directed by the Nebraska Supreme Court.

   (H) The Supreme Court authorizes the Judicial Branch Chief Information Officer to develop and maintain, in consultation with the Supreme Court, an Information Systems and Security Policy. This policy shall be confidential and shall be reviewed annually by the Chief Information Officer in consultation with the Supreme Court.

§ 1-1201 adopted April 17, 2024.

dbrown-butterfield

§ 1-1202. Interim rule on exceptions and implementation period.

§ 1-1202. Interim rule on exceptions and implementation period.

  (A) All Branch users are required to fully comply with Neb. Ct. R. § 1-1201 unless specifically granted a waiver by the Nebraska Supreme Court for specific sections of the rule or Appendix 1 based on the following:

  (1) The request shall be in writing and shall outline the specific rule sections and/or Appendix 1 provisions that the requestor is seeking a waiver from. The request shall be submitted on behalf of an office, division, county, or district and shall be signed by a presiding Judge, the Chief Probation Officer, Clerk of the District Court, Court Administrator, or similar supervisory position. No request for an exception may be made by an individual employee or user.

  (2) The request must show a compelling need for a waiver of the rule section(s) or Appendix 1 provisions as enforcement would otherwise hinder the functions and duties of the office should a waiver not be granted by the Supreme Court.

  (3) The request shall be submitted to and evaluated by the Judicial Branch Chief Information Officer, who shall submit a report to the Supreme Court regarding the request for waiver with a recommendation.

  (B) The request and recommendation shall be reviewed by the Supreme Court. The Court may grant a waiver for those requested sections and provisions if a compelling need is determined. The Court may direct the waiver to be for a certain period of time or until further notice by the Court. The Judicial Branch Chief Information Officer shall coordinate the waiver and provide assistance as directed by the Court.

  (C) If a waiver is granted for a specific section(s) of § 1-1201 or an Appendix 1 provision, compliance with all other sections and provisions shall be required, and violations of the nonwaived sections and provisions shall be as provided in § 1-1201(D).

  (D) Section 1-1202 shall be in effect upon adoption and shall sunset on June 30, 2027, unless advanced or extended by the Supreme Court.

Approved May 15, 2024.

dbrown-butterfield

CHAPTER 2: APPEALS

CHAPTER 2: APPEALS unanimous

Article 1: Nebraska Court Rules of Appellate Practice.

Article 1: Nebraska Court Rules of Appellate Practice.

(cite as Neb. Ct. R. App. P. §)

Explanation of Comments

Throughout these rules are various "comments" which are intended to be helpful information only and are not intended to be, nor are they, a part of the official rules of this court.

Appendix 1 - Motion for 30-day extension of brief - non-advanced cases

Appendix 2 - Stipulation

Appendix 3 - Motion to dismiss

Appendix 4 - Summary to accompany application for leave to file appeal by county attorney

Appendix 5 - Motion for 30-day extension of brief - advanced cases

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§ 2-101. Docketing the case, and electronic filing in the appellate courts.

§ 2-101. Docketing the case, and electronic filing in the appellate courts.

   (A) Perfecting the Appeal.

   (1) Every appeal shall be deemed perfected when the notice of appeal as provided in § 2-101(B)(1)(a) and the docket fee required by Neb. Rev. Stat. § 33-103 or an application to proceed in forma pauperis and a poverty affidavit pursuant to Neb. Rev. Stat. § 29-2306 or Neb. Rev. Stat. § 25-2301 et seq. have been filed in the office of the clerk of the court from which the appeal is taken and such application has been granted by that court.

   (2) In cases where the punishment is capital, no notice of appeal shall be required to be filed in the district court and no payment of a docket fee shall be required, as set forth in Neb. Rev. Stat. § 29-2525. If a notice of appeal is filed, the trial court clerk shall transmit it pursuant to § 2-101(B). The appeal shall be docketed in the Supreme Court upon receipt of a notice of appeal or, if none is filed, upon receipt of the transcript from the trial court clerk. See § 2-104(A)(5).

   (3) Throughout these rules, “Clerk” shall mean “Clerk of the Supreme Court and Court of Appeals.”

   (B) Forwarding to Appellate Court. The clerk of the court from which the appeal is taken shall within 2 business days of receipt of a notice of appeal send the following items to the Clerk through System-to-System Transfer using JUSTICE procedures, or for the Workers' Compensation Court or tribunals authorized to transmit appeals directly to the appellate courts, another approved transfer method:

   (1)(a) Notice of appeal. The notice of appeal shall be deemed made to the Court of Appeals unless the notice contains language specifically requesting appeal to the Supreme Court along with citation to the statutory authority directing such appeal to the Supreme Court.

   (b) If a notice of appeal filed in a case involving termination of parental rights is not signed by the parent whose parental rights were terminated, the appeal shall be subject to summary affirmance pursuant to § 2-107(A) unless, following issuance of an order to show cause and a 15-day response time, the before-mentioned parent files an affidavit with the appellate court stating his or her intention to proceed with the appeal or other good cause is shown. This subsection shall not apply to a child's guardian ad litem taking an appeal in such cases.

   (2) Request for transcript; see § 2-104(A);

   (3) Request for bill of exceptions; see § 2-105(B);

   (4) Payment from the clerk of the court from which the appeal is taken for the docket fee which shall be processed as an ACH payment to the Clerk, or IBT from the Workers' Compensation Court or tribunals authorized to transmit payment directly to the appellate courts, or a copy of the application to proceed in forma pauperis and accompanying poverty affidavit which has been executed no more than 45 days prior to the filing of notice of appeal; and

   (5) A certificate, prepared by the clerk of the court from which the appeal is taken (using JUSTICE procedures where applicable), which shall contain the following information:

   (a) The caption of the case, including the names and adversary relationship of all the parties, as the case was filed in the court from which the appeal is taken;

   (b) The name, address, city, state, zip code, telephone number, email address, and Nebraska attorney identification number of each Nebraska attorney, and the name of the party or parties the attorney represents, or, if a party or parties represent themselves, the above information except for the identification number;

   (c) Whether the case is a civil case or a criminal case; if a civil case, whether the case is law (general) or equity, if applicable; if a criminal case, whether there was a trial to a jury or judge, or whether a guilty or nolo contendere plea was accepted by the court, whether a plea in bar was entered, and whether the case is a felony, misdemeanor, or postconviction; and

   (d) If the notice of appeal is to the Supreme Court, whether the appeal involves a sentence of death or life imprisonment, constitutionality of a statute, or other statutory authorization therefor.

   (e) The date the notice of appeal was filed in the court from which the appeal is taken and the date the docket fee was paid to the clerk of that court.

    (f) Whether the requirements of Neb. Rev. Stat. § 25-1914 with regard to cost bond, cash in lieu of cost bond, or supersedeas bond or poverty affidavit have been met and the date filed.

   (g) Whether a motion for new trial, or, if applicable, a motion to alter or amend the judgment or a motion to set aside the verdict or judgment, was filed in the court from which the appeal is taken and the date of disposition of any such motion.

   (C) Method of Docketing Case; Multiple Appeals from Same Case Prohibited. Upon receipt of the material required by § 2-101(B), the Clerk shall thereupon docket the case designating as appellant or appellants the party or parties first having filed the notice of appeal in the court from which the appeal is taken. All other parties shall be designated as appellees, and any attempt to appeal thereafter made by any party to the action shall be filed in the existing case and not separately docketed.

   (D) Appeal from Special Tribunals. In an appeal from an order of the Nebraska Department of Natural Resources or other tribunal from which an appeal can be taken directly to the Court of Appeals or to the Supreme Court, the procedure shall be that provided for in appeals from the district court, except as otherwise provided by statute.

   (E) Cross-Appeal. The proper filing of an appeal shall vest in an appellee the right to a cross-appeal against any other party to the appeal. The cross-appeal need only be asserted in the appellee's brief as provided by § 2-109(D)(4). The right of cross-appeal does not apply to a petition for further review under § 2-102(F), to additional briefing under § 2-102(H), or to a motion for rehearing under § 2-113.

   (F) Attorneys of Record, Court-Appointed Counsel in Criminal Cases, and Self-Represented Litigants; withdrawal.

   (1) Criminal defendant representation on appeal. Counsel appointed in a trial court to represent a defendant in a criminal case other than a postconviction action shall, upon request by the defendant after judgment, file a notice of appeal and continue to represent the defendant unless permitted to withdraw by the appellate court. See § 2-106(F) for motion to withdraw.

   (2) Other attorneys and guardians ad litem of record. The attorneys of record and guardians ad litem of the respective parties in the court below shall be deemed the attorneys and guardians ad litem of the same parties in the appellate court, as certified to the appellate court by the trial court, until a motion for withdrawal has been filed and granted by the appellate court. See § 2-106F for motion to withdraw.

   (3) Substitution of counsel. When there is a substitution of counsel within the same firm or public office, the new attorney shall file an entry of appearance. The entry of appearance shall include the new attorney’s information as set forth in § 2-101(B)(5)(b), and the name and Bar number of the attorney being replaced. A copy of the entry of appearance shall be served on the adverse party’s attorney of record or on the party, if self-represented. In the event of a substitution of counsel, the former counsel is not required to file a motion to withdraw.

   (4) Effect of withdrawal or discharge of attorney. Withdrawal or discharge of an attorney shall not, in and of itself, result in an extension of brief date or continuance of oral argument. Extension of brief date shall be as provided in § 2-106(E). Oral argument shall only be continued upon permission of the court. See § 2-111(C) and (D).

   (5) All attorneys of record and self-represented litigants are required to keep the Clerk advised in writing of their current physical and email addresses during the pendency of an appeal in the Supreme Court or Court of Appeals for use in notification of all court orders.

   (6) Once counsel is appointed by any court, or enters an appearance on behalf of a party, all filings with the appellate court shall be through counsel, unless the court permits otherwise. Any documents or communications submitted to the appellate court by a party who has counsel may be (a) returned unfiled to the sending party or (b) forwarded unfiled to the sending party’s counsel.

   (G) Costs and Security for Costs.

   (1) Docket fees shall be paid in advance as required by Neb. Rev. Stat. § 33-103, except in the following categories of cases:

   (a) Docket fees are waived in cases brought under the Nebraska Workers' Compensation Act and the employment security law.

   (b) Where an application to proceed in forma pauperis and a timely affidavit of poverty has been filed pursuant to Neb. Rev. Stat. § 29-2306 or Neb. Rev. Stat. § 25-2301 et seq., advance payment of docket fees is not required.

   (c) Docket fees in habeas corpus proceedings and disciplinary actions against members of the Nebraska bar are not required in advance. Fees in these cases will be collected at the conclusion of the proceeding.

   (2) All cases must comply with Neb. Rev. Stat. § 25-1914, unless specific statutory exceptions exist. A case will be dismissed for failure to comply with § 25-1914 if a motion is filed in accordance with § 2-106. Additional time for compliance with the statute may be requested by motion and a showing of good cause.

   (H) Documents in proceedings before the Nebraska Supreme Court and the Nebraska Court of Appeals shall be filed, served, noticed, and preserved in an electronic format in lieu of the traditional paper format unless otherwise specifically excepted by court rule, or the attorney is exempt under § 2-202(B).

   (I) For purposes of these rules, the definitions provided in § 2-201 et seq. shall apply.

Rule 1(A), (B)(1), (B)(4), (B)(5)(c) - (B)(5)(g), (C), (E), (F)(2), (G)(1)(b) and (G)(2) amended May 28, 1992; Rule 1(F)(1) amended March 31, 1993; Rule 1(A) amended May 29, 1997; Rule 1(A), (B), (B)(4), and (G)(1)(a) and (b) amended October 14, 1999; Rule 1(F)(2) amended October 16, 2003; Rule 1(B)(1) amended September 13, 2006. Renumbered and codified as § 2-101, effective July 18 2008; § 2-101(D) amended December 22, 2010; § 2-101(B)(5)(b) amended September 24, 2014, effective January 1, 2015; § 2-101(E) amended May 12, 2021; § 2-101 amended June 9, 2021, effective January 1, 2022.

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§ 2-102. Court of Appeals.

§ 2-102. Court of Appeals.

   (A) Nebraska Supreme Court Rules to Apply. Unless otherwise specified, the Nebraska Court Rules of Appellate Practice shall apply to the Nebraska Court of Appeals.

   (B) Petition to Bypass. Any party to a case appealed to the Court of Appeals may file with the Supreme Court a petition to transfer the appeal to the Supreme Court and to bypass review by the Court of Appeals. The petition to bypass shall be filed simultaneously with the initial brief of the party. Such petition shall set forth the basis for the petition, including one or more of the factors set out in Neb. Rev. Stat. § 24-1106(2).

   (1) Form, Filing, and Service of Petition to Bypass. The form of the petition shall be as provided in § 2-103(A). A petition to bypass shall not exceed 1,800 words, and shall be filed with the Clerk. Service and proof of service shall be in accordance with Neb. Ct. R. Pldg. §§ 6-1105(b), 6-1106(e), and Neb. Ct. R. § 2-205.

   (2) Response. Any response to the petition to bypass shall be due when the brief of the responding party is filed or, when no reply brief is filed, before the expiration of the time prescribed for such filing as provided by § 2-109(A)(3). Such response shall not exceed 1,800 words. The response shall be filed with the Clerk and served in accordance with Neb. Ct. R. Pldg. §§ 6-1105(b)6-1106(e), and Neb. Ct. R. § 2-205. Any response by a party shall respond to the petition to bypass and not to a response filed by another party. No response by the petitioning party shall be allowed to a response filed by any other party.

   (3) Oral Argument. No oral argument is permitted on the petition to bypass except as may be ordered by the Supreme Court; in such event, oral argument shall be limited to 5 minutes per side.

   (4) Submission. All petitions to bypass shall be submitted for decision to the Supreme Court on the filing of appellant's reply brief or the expiration of the time prescribed for such filing as provided by § 2-109(A)(3).

   (5) Briefs Not Required. No separate brief in support or opposition is required for a petition to bypass or response to a petition to bypass. If any such brief is filed, the brief in support or opposition shall be included within the word count set forth in § 2-102(B)(1) or (2).

   (C) Removal of Case From Court of Appeals. At any time during the pendency of a case, upon recommendation of the Court of Appeals or by the Supreme Court's own motion, the Supreme Court may order removal of a case from the Court of Appeals and its transfer to the Supreme Court docket.

   (D) Briefs. Briefs to be filed in the Court of Appeals shall be governed by §§ 2-103 and 2-109.

   (E) Opinions.

   (1) Release of Written Opinions. The Court of Appeals will prepare a written opinion in cases where the court believes explanation of its decision is required or that the case is of value as a precedent. Opinions shall be released as ordered by the court.

   (2) A copy of each opinion shall be provided to the parties as set forth in § 2-112(B).

   (3) Official Version.

   (a) Official opinions of the Court of Appeals approved for publication in a permanent bound volume shall be the final, edited version which appears in bound Volumes 1 through 15 of the Nebraska Appellate Reports.

   (b) Official opinions of the Court of Appeals approved for publication shall be the final, edited version which appear as certified on the Nebraska Appellate Courts Online Library for Volume 16 and all volumes thereafter of the Nebraska Appellate Reports.

   (c) Official opinions of the Court of Appeals not designated for permanent publication shall be the final version which is filed with the Clerk.

   (4) Opinions of the Court of Appeals which the deciding panel has designated as "For Permanent Publication" may be cited in all courts and tribunals in the State of Nebraska. Other opinions and memorandum opinions of the Court of Appeals may be cited only if the opinion has persuasive value on a material issue and no published opinion of the Court of Appeals or another court would serve as well or when such case is related, by identity between the parties or the causes of action, to the case then before the court. When citing an unpublished opinion of the Court of Appeals, a party shall indicate the opinion's unpublished status.

   (5) Opinions of the Court of Appeals which the deciding panel has designated as "For Permanent Publication" shall be followed as precedent by the courts and tribunals inferior to the Court of Appeals until such opinion is modified, overruled, or disapproved by the Nebraska Supreme Court.

   (6) The panel of the Court of Appeals deciding a case may designate its opinion as "For Permanent Publication" only when one or more of the criteria set in Neb. Rev. Stat. § 24-1104(2) is satisfied.

   (F) Petition for Further Review by Supreme Court.

   (1) Time and Filing Fee. A petition for further review and memorandum brief in support must be filed within 30 days after the release of the opinion of the Court of Appeals or the entry of the order of the Court of Appeals finally disposing of the appeal, whichever occurs later. For purposes of this subsection, an order of the Court of Appeals finally disposing of an appeal includes an order on a motion for rehearing or a motion for attorney fees. Pursuant to Neb. Rev. Stat. § 33-103.01, a docket fee of $50 shall be paid to the Clerk at the time of the filing of the petition for further review. Such docket fee shall be required for each appellate case number in which further review is sought, regardless of consolidation of cases for opinion by the Court of Appeals, and by each party filing for further review. This docket fee shall be waived for an indigent person who has been granted leave to proceed in forma pauperis on appeal by the trial court.

   (2) Form. The petition for further review and memorandum brief in support shall follow the procedure for preparation of briefs as set forth in § 2-103(A) and  (C), and § 2-109(B), and shall not exceed 3,500 words.

   (3) Contents. The petition for further review and supporting memorandum brief shall set forth a separate, concise statement of each error alleged to have been made by the Court of Appeals, all of which must be annotated to the record as required by § 2-109(C). Each assignment of error shall be separately numbered and paragraphed, and grouped in a separate section, as required by § 2-109(D)(1). The memorandum brief must discuss the errors assigned.

   (4) Response. Parties to the case not filing a petition for further review may respond to the petition within 10 days after the petition for further review and supporting brief are filed. The response and supporting brief shall not exceed 3,500 words. If no response will be filed, parties may notify the Clerk in writing, and the petition will be submitted immediately. A response to a petition for further review, or brief in support, may not assert a cross-appeal, but a party may separately petition for further review as provided under this rule.

   (5) Filing and Service. Petitions for further review, accompanying briefs in support, and responses thereto shall be filed and served as provided in § 2-103(B).

   (6) Submission. Oral argument is not permitted on a petition for further review. All petitions for further review will be submitted after a response is filed, if any, or immediately after the time for filing a response has passed.

   (7) Mandate. No mandate will issue in any case during the time allowed for the filing of a petition for further review or pending the consideration thereof by the Supreme Court. If the petition is sustained, the mandate will not issue during the pendency of the appeal in the Supreme Court as provided for in § 2-114.

   (G) Scope of Review. Further review by the Supreme Court is not a matter of right, but of judicial discretion. If the Supreme Court grants review of a Court of Appeals decision, the Supreme Court will review only the errors assigned in the petition for further review and discussed in the supporting memorandum brief. The Supreme Court may limit the issues to one or more of those raised by the parties and may notice plain error at its discretion.

   (H) Briefs and Oral Argument on Further Review by Supreme Court. The Supreme Court may order that the parties file supplemental briefs and may order that oral argument be heard. Even without an order from the Supreme Court for briefs, each party may file additional briefs in compliance with § 2-103 and § 2-109 when further review by the Supreme Court is ordered. The petitioning party's supplemental or additional brief, together with proof of service, shall be filed in the Supreme Court within 20 days after the order for further review is entered; all nonpetitioning parties' supplemental or additional briefs must be served and filed within 20 days after petitioner has served and filed briefs. A nonpetitioning party's supplemental or additional brief may not assert a cross-appeal. For purposes of oral argument on further review, unless otherwise ordered by the Supreme Court on motion or stipulation of the parties or upon the Supreme Court's own motion, the party filing the initial petition for further review shall be entitled to open and close the argument, regardless of whether any other petitions for further review are filed in the case. Where there are multiple petitions for further review granted, all petitions shall be argued together as one case.

Rule 2, (A), and (C) - (H) amended May 28, 1992; Rule 2(E)(4) amended June 16, 1993; Rule 2(G)(1) amended June 15, 1994; Rule 2(E)(4) amended April 30, 1997; Rule 2(E)(5) and (6) adopted April 30, 1997; Rule 2(F)(4) amended May 29, 1997; Rule 2(G) adopted and Rule 2(H) amended March 24, 1999; Rule 2(F)(1) amended December 15, 1999; Rule 2(F)(3) amended November 15, 2001; Rule 2(H) amended January 24, 2002; Rule 2(F)(1) amended June 15, 2005; Rule 2(F)(1) amended January 19, 2006; Rule 2(F)(2) amended March 22, 2006. Renumbered and codified as § 2-102, effective July 18, 2008. § 2-102(B)(1) amended August 27, 2008; §§ 2-102(B)(1)-(2), (D), (F)(1) and (5), and (H) amended June 6, 2012; §§ 2-102(E)(2) and (E)(3)(a)-(c) amended October 21, 2015; § 2-102(F) and (H) amended May 12, 2021; § 2-102 amended June 9, 2021, effective January 1, 2022.

 

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§ 2-103. General formatting and service rules.

§ 2-103. General formatting and service rules.

   This rule governs the standard form for all documents filed in the appellate courts and sets forth service requirements for motions and briefs. Form and formatting requirements for bills of exceptions are found in § 2-105.01. Except as otherwise required to comply with the Americans with Disabilities Act (ADA), and except for any Nebraska Supreme Court forms promulgated or last amended prior to the effective date of this rule, the following rules apply:

   (A) Motions, petitions, briefs, and other documents, except bills of exceptions. The standard form for all documents, including motions, petitions, and briefs shall be as follows:

   (1) All documents shall be on a page size measuring 8 ½ by 11 inches, in portrait mode. Electronically filed documents shall be in a converted PDF (fully text searchable), rather than only a scanned image PDF format. All electronically filed documents shall be easily readable. Documents that are not easily readable may be stricken by the appellate court.

   (2) Documents permitted to be filed in paper form shall follow the same formatting set forth in this rule.

   (3) Text shall be aligned to the left side and not justified. Margins shall be set to 1.5 inches on all sides, and lines shall be spaced at 1.15 or 1.2. Extra line spacing is allowed before headings and between paragraphs. Footnotes are not permitted.

   (4) Preferred fonts shall be Century or Century Schoolbook. Other allowed fonts are Times New Roman, Baskerville Old Face, Book Antiqua, or Palatino, and shall be set no less than 12 nor more than 13 point. Type shall not be underscored, but may be italicized or boldfaced for emphasis.

   (5) Except as specifically allowed below in (a) through (g), hyperlinking in appellate court documents is prohibited. Hyperlinking is allowed and encouraged as follows:

   (a) The use of internal hyperlinks and bookmarks;

   (b) To the official Transcript filed in the appellate court;

   (c) To the official Bill of Exceptions of the trial court or lower appellate court;

   (d) To the official Nebraska Reports or Nebraska Appellate Reports. The user shall hyperlink to the official Nebraska Judicial Branch website for Nebraska Reports or Nebraska Appellate Reports (https://www.nebraska.gov/apps-courts-epub/);

   (e) To the official Nebraska Laws, Bills, and legislative history. The user shall hyperlink to the official Nebraska Legislative website for Nebraska Laws, Bills, and legislative history (https://nebraskalegislature.gov/);

   (f) To the official rules of the Nebraska Supreme Court. The user shall hyperlink to the official Nebraska Judicial Branch website for court rules (https://supremecourt.nebraska.gov/supreme-court-rules).

   (g) Hyperlinking shall not detract from the content.

   (6) For additional formatting specific to briefs filed in a case or with a motion, see subsection (C) below.

   (B) General Filing and Service of Motions and Briefs.

   (1) The motion and proof of service shall be filed with the appellate court and a copy shall be served upon the opposing party or the attorney of record. Service and proof of service shall be made as provided in Neb. Ct. R. Pldg. §§ 6-1105(b) and 6-1106(e), and Neb. Ct. R. § 2-205.

   (2) Service of a copy of the brief shall be made either on the opposing party or the attorney of record for the party and upon all other parties participating in the appeal. Service and proof of service shall be made as provided in Neb. Ct. R. Pldg. §§ 6-1105(b)and 6-1106(e), and Neb. Ct. R. § 2-205.

   (3) Service requirements for other filings are found in the specific rule section governing such filings.

   (C) Briefs. The standard form for all briefs shall be as set forth in subsection (A) above with the following additions:

   (1) Cover. The cover on all briefs shall show the appellate court case number; the case caption listing the plaintiff first (regardless of who is appellant); the county from which the case was brought; the name of the trial judge; the name, address, city, state, zip code, telephone number, email address, and Nebraska attorney identification number of the attorney filing the brief (the name of the law firm, if any, may also appear); and the name of the party for whom the brief is filed. If a party or parties represent themselves, it shall contain the above information except for the attorney and firm information. The cover of the brief shall serve as the title page, and no additional title page may be contained within the brief.

   (2) Page numbering for briefs. Page numbering shall begin with the cover page as page one. Numbering shall be displayed in the bottom margin on every page except the cover page.

   (3) Word and page limitations for briefs.

   (a) Briefs may not exceed the following word limitations: original submission, 15,000 words. For appellant, this includes a combined total of appellant’s brief, reply brief, and answer brief to cross-appeal. For appellees and cross-appellants, this includes a combined total of appellee’s brief, brief on cross-appeal, and reply brief to answer brief on cross-appeal. If the appellee asserts a cross-appeal as provided in § 2-109(D), the word count limits per party shall be increased to 18,000.

   (b) For briefs in support for motions for rehearing, other briefs in support of motions, and briefs of amicus curiae, 3,800 words.

   (c) All portions of the brief, including the cover page, table of contents, and table of authorities, as well as signature blocks, count toward the maximum word count.

   (4) Certificate. The final page of all briefs shall include a certificate that the brief complies with the word count as required by this rule. The person preparing the certificate may rely on the word count of the word-processing software used to prepare the brief. The certificate must state the name and version of the word processing software used to prepare the brief, state that the brief complies with the typeface requirements of this rule, and state the total number of words in the brief. The certificate shall not count toward word limits.

   (5) Paper filed briefs may only be filed when the self-represented party is not a registered user of the court-authorized service provider. Paper briefs shall be bound by a single paper clip or binder clip in the upper left-hand corner only and shall not be stapled. Paper briefs shall comply with all formatting requirements of § 2-103(A) unless typewritten. If typewritten, paper briefs shall not exceed 50 pages total on original submission, and 15 pages on briefs in support of a motion for rehearing. Typewritten briefs shall be in nothing smaller than 12-point type and lines shall be double spaced, and pages shall be sequentially numbered as provided in § 2-103(C)(2) above. Service and proof of service of paper filed briefs shall be as provided in § 2-103(B)(2).

   (6) All briefs, together with proof of service, shall be filed with the appellate court on or before the date the brief is due.

   (7) General rules for preparation and content of briefs are found at § 2-109(C) and (D).

Rule 3(B) amended February 22, 2001. Renumbered and codified as § 2-103, effective July 18, 2008; § 2-103 amended June 9, 2021, effective January 1, 2022; § 2-103 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 2-104. Transcript.

§ 2-104. Transcript.

   (A) How Ordered; Contents.

   (1) Upon filing the notice of appeal with the clerk of the court from which the appeal is taken, the appellant shall also file with that court a request directing the clerk to prepare a transcript. The request shall designate the pleading or document to be included in the transcript by listing the name of the pleading or document and its date of filing. Attempts by parties to circumvent this section by making generalized requests for all documents filed in the lower court or attaching a pre-printed list from the Register of Actions in JUSTICE shall not be allowed.

   (2) The transcript shall contain the following:

   (a) The judgment, decree, or final order sought to be reversed, vacated, or modified, and the lower court’s memorandum opinion, if any;

   (b) The pleadings upon which the case was tried, as designated by the appellant in the request. In the absence of specification or lack of request by appellant, these shall include: in criminal cases, the charging instrument and document or docket entry showing the plea entered; in civil cases, a copy of the last amended petition or complaint and last amended answer; and

   (c) A copy of the supersedeas bond, if any, given in the trial court, or, if none has been given, a recital of the fact that a bond for costs was given and approved in the trial court, or a deposit made as required by Neb. Rev. Stat. § 25-1914.

   (d) In cases where an application to proceed in forma pauperis has been filed, a copy of the order of the court granting or denying such. If an order has not been signed prior to the 10-day time period to submit the transcript to the Clerk provided in subsection (B) below, the trial court clerk shall submit the order in a supplemental transcript.

   (e) Where an appeal is taken from a district court acting as an intermediate appellate court, the transcript shall contain, at a minimum, the transcript from the county court or other tribunal inferior to the district court, any statement of errors filed in the district court, and all orders of the district court disposing of the appeal heard in the district court.

   (3) If the appellant is of the opinion that other parts of the record are necessary for the proper presentation of the errors assigned in this court, he or she shall further direct the clerk to include in the transcript such additional parts of the record as he or she shall specify in the request. The appellant shall limit his or her request for such additional material to only those portions of the record which are material to the assignments of error. In no instance shall parties request, or the trial court clerk include, any exhibit that may be listed on the trial court register of actions. Inclusion of exhibits in the record shall be as provided in § 2-105(B)(2)(b). In juvenile cases, parties shall not request, and the trial court clerk shall not include, documents that are part of the social file and not part of the public court record.

   (4) If request is made for documents not present in the record of the case, the lower court clerk shall certify that absence to the Clerk using JUSTICE procedures. The lower court clerk may not include, without specific written request, a copy of any document not required under this rule. The lower court clerk shall, upon request, certify that the record does not contain a described document.

   (5) In cases where the punishment is capital, no request for a transcript shall be required. The trial court clerk shall prepare a transcript of the record of the proceedings and shall submit the transcript to the Clerk by System-To-System Transfer. Unless directed otherwise, the trial court clerk shall include in the transcript all filings made in the trial court. Upon receipt of the transcript, the Clerk shall docket the appeal in the Supreme Court unless the appeal has already been docketed based upon a filed notice of appeal.

   (6) A party must raise the absence of a mandatory document prior to submission of the case to the appellate court, unless the court orders otherwise.

   (B) Form. The transcript shall be electronically prepared by the clerk of the court from which the appeal is taken, using JUSTICE procedures. Except as otherwise provided by § 2-104(A)(2)(a) through (e), the clerk of the court from which the appeal is taken shall select only the documents identified on the request for preparation of the transcript. For documents certified and transmitted to the Clerk pursuant to § 2-101(B), such documents shall also be included in the electronic transcript. The transcript shall be submitted from the lower court to the Clerk by System-To-System Transfer as soon as possible but no more than 10 days after the request is received.

   (C) Supplemental Transcript. After the original transcript is filed with the Clerk, any party may, without leave of court, request from the clerk of the court from which the appeal is taken a supplemental transcript containing matters omitted from the original transcript and necessary to the proper presentation of the case in the appellate court. Supplemental transcripts shall be submitted by the lower court in the same form as electronic transcripts using JUSTICE procedures. After filing, no change in the original or supplemental transcript shall be made without leave of court. All supplemental transcripts must be filed prior to the day the case is submitted to the court, unless leave of court is obtained in advance to file later.

   (D) Cases Previously Before the Court. If a case has been appealed previously and a transcript filed in the appellate court in the earlier case, the electronic transcript in the new appeal may contain documents found in any transcript in the previous appeal.

COMMENT

   The court specifically intends to eliminate requests for subpoenas, subpoenas, requests for summonses, summonses, interrogatories, appearances of counsel, notices, and other documents not relevant to the appeal. Opinions of the appellate courts appear in the Nebraska Reports and the Nebraska Appellate Reports and should never be included as part of a transcript.

Rule 4(A)(1)(a) - (c) amended May 28, 1992; Rule (A)(1)(d) adopted October 14, 1999. Renumbered and codified as § 2-104, effective July 18, 2008; § 2-104 amended June 9, 2021, effective January 1, 2022.

 

unanimous

§ 2-105. Bill of exceptions; making, preserving, requesting, and delivery of the record of trial or other proceeding.

§ 2-105. Bill of exceptions; making, preserving, requesting, and delivery of the record of trial or other proceeding.

   (A) Making and Preserving the Record; Duty.

   (1) "Court reporting personnel," as defined in Neb. Ct. R. § 1-204(A)(1), shall in all instances make a verbatim record of the evidence offered at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral motions, and stipulations by the parties. This record may not be waived.

   (2) Upon the request of the court or of any party, either through counsel or by the party if appearing in a self-represented capacity, the court reporting personnel shall make or have made a verbatim record of anything and everything said or done by anyone in the course of trial or any other proceeding, including, but not limited to, any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court's proposed instructions or to instructions tendered by any party, together with the court's rulings thereon, and any posttrial proceeding.

   (3) In the absence of a request pursuant to subsection (2) above, any party may request the court reporting personnel to make or have made a verbatim record of any particular part or portion of the proceedings not required by subsection (1) above, and the court reporting personnel shall comply with such request.

   (4) Any request under subsections (2) or (3) above shall be made either in a writing filed with the clerk of the trial court or on the record in open court. If filed with the trial court clerk, the trial court clerk shall provide a copy to the court reporting personnel. In the absence of a request in such manner, it shall be conclusively presumed that no such request was made.

   (B) Requesting a Bill of Exceptions; Payment.

   (1) Automatic Direct Appeals. In criminal cases where the sentence is capital punishment, no request for preparation of the bill of exceptions is required. The clerk of the district court in which the conviction was had shall notify the court reporting personnel, who shall prepare the bill of exceptions as expeditiously as possible, but in no event to exceed the time limitations prescribed in § 2-105.01, unless an extension for such later filing is granted by the Supreme Court. Unless directed otherwise, the court reporting personnel shall include in the bill of exceptions the verbatim record of all hearings, trials, or proceedings in the trial court.

   (2) Requests for Bill of Exceptions; Appeals From Trial Court.

   (a) Request by Appellant. Appellant shall file a request to prepare a bill of exceptions in the office of the clerk of the court from which the appeal is taken at the same time the notice of appeal is filed. Failure to file such request at the same time the notice of appeal is filed shall be deemed as a waiver of appellant of the right to request a bill of exceptions, unless pursuant to subsection (f) below the appellate court grants appellant leave to request a bill of exceptions out of time.

   (b) Specification. The request shall specifically identify each portion of the evidence and exhibits offered at any hearing which the party appealing believes material to issues to be presented to the appellate court for review. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the bill of exceptions must include all evidence relevant to the finding or conclusion.

   (c) Direction of Request. The request filed with the clerk of the court from which the appeal is taken shall be directed to the court reporting personnel responsible for the verbatim record of the proceedings, or if unknown, the name of the trial judge who heard the matter. The appellant shall serve a copy of the request upon the appellee.

   (d) If the request is filed with the notice of appeal, or appellee files a timely request under subsection (f), the clerk of the court from which the appeal is taken shall send the request to prepare a bill of exceptions, along with the notice of appeal to

   (i) the court reporting personnel listed on the request,

   (ii) the court reporting personnel known by the trial court clerk to be responsible for responding to the request,

   (iii) the judge who heard the matter if no court reporting personnel is listed or known, or

   (iv) if court staff is tasked with assigning transcription of the record, to such court staff. The clerk of the trial court shall record such action on the register of actions.

   (e) Supplemental Request by Appellee. If the appellee believes additional evidence should be included in the bill of exceptions, the appellee shall, within 10 days after timely service of the request for bill of exceptions filed by the appellant, file a supplemental request for preparation of bill of exceptions. The request shall be filed with the clerk of the court from which the appeal is taken. A copy of the request shall be sent to the court reporting personnel by the trial court clerk, who shall record such action on the register of actions.

   (f) Failure to Request. If appellant fails to file a request to prepare the bill of exceptions at the same time the notice of appeal is filed, the Clerk shall notify the parties of the failure. In such event, appellee shall have 10 days from the date of filing of the notice of appeal to file a request for a bill of exceptions. The clerk of the court from which the appeal is taken shall process appellee's timely request in the same manner as a request made by appellant at the same time the notice of appeal is filed. Thereafter, no request for a bill of exceptions may be filed without leave of the appellate court for good cause shown, which cause shall not be within a party’s reasonable control. Where the request to prepare a bill of exceptions was not filed at the same time the notice of appeal is filed by appellant, the clerk shall not forward the request to the court reporting personnel. In such event, court reporting personnel shall not provide an estimate or begin preparation of the bill of exceptions until appellant has been granted leave to file the request out of time by the appellate court, and such leave has been filed with the clerk of the court from which the appeal is taken, or appellee has filed a timely request.

   (g) Copy of Request to Appellate Court. A copy of each request for preparation of a bill of exceptions filed in the trial court, together with a copy of the notice of appeal, shall be transmitted by the trial court clerk to the Clerk by System-To-System Transfer.

   (3) District Court as Intermediate Appellate Court.

   (a) Where an appeal is taken from a district court acting as an intermediate appellate court, the clerk of the district court shall transmit to the Clerk without a request by appellant:

   (i) the bill of exceptions of the county court or other tribunal inferior to the district court which is the official record of the county court or other tribunal proceeding, and

   (ii) any supplemental bills of exceptions from the county court or inferior tribunal which were reviewed by the district court.

   (b) No specific request for the transmission of the official record of the county court or inferior tribunal bills of exceptions shall be required by appellant, and such bills of exceptions shall not be included as an exhibit in any bill of exceptions in the district court.

   (c) A request by a party for preparation of a bill of exceptions of the district court proceedings shall be in the same manner as a request for a bill of exceptions upon direct appeal from the district court. See § 2-105(B)(2).

   (4) Fee for preparation of a bill of exceptions on appeal.

   (a) Per-Page Rate. The per-page fee to which an official court reporter or privately contracted court transcriber is entitled, as prescribed by the Supreme Court pursuant to Neb. Rev. Stat. § 25-1140.09, is set forth in Neb. Ct. R. § 1-218.

   (b) Estimate of Cost and Deposit. Except in those cases where payment is to be made by a governmental agency, the State of Nebraska, or any political or governmental subdivision thereof, the court reporting personnel responsible for making the record shall advise the requesting party of the approximate cost of the bill of exceptions within 7 days of receipt of the notice of appeal and request to prepare the bill of exceptions, or after receipt of granting of leave to file a request out of time by the appellate court, or after receipt of appellee’s timely request. Court reporting personnel shall not provide an estimate of cost when the request to prepare a bill of exceptions is not filed with the notice of appeal, or timely filed by appellee. The requesting party shall deposit the estimated cost with the clerk of the trial court within 7 days after receipt of the estimate. The trial court clerk shall notify the Clerk and the court reporting personnel when the deposit is made. The trial court clerk shall retain the deposit in a trust account until the bill of exceptions is filed with the clerk of the trial court. When the bill of exceptions is filed by the court reporting personnel responsible for making the record, the clerk of the trial court shall immediately pay the court reporting personnel the amount of the cost of preparing the bill of exceptions as certified by the court reporting personnel, and refund any excess payment to the appellant. If additional compensation is due, the requesting party shall pay the additional amount to the clerk of the trial court within 10 days after receipt of a statement for the additional amount. A similar procedure shall be followed if an appellee requests a supplemental bill of exceptions, with the appellee being responsible for payments. Costs for a bill of exceptions shall be taxed only upon compliance with this rule.

   (c) Failure to Make Deposit. If the requesting party fails to timely make the required deposit of the estimated cost of preparation, the clerk of the trial court shall transmit a notice thereof to the Clerk and to the court reporting personnel responsible for making the record. Thereafter, unless leave of the appellate court for an extension of time to make the deposit is granted for good cause shown, the appeal shall proceed as if no bill of exceptions had been requested.

   (d) Settlement of Case. The party requesting the preparation of the bill of exceptions may, at any time before the bill of exceptions is completed, file with the trial court clerk a written notice advising the court that settlement has been reached. Upon receipt of the notice, the trial court clerk shall provide the notice to the court reporting personnel and to the Clerk. The trial court clerk shall record such action on the register of actions. Upon receipt of such notice, court reporting personnel shall cease any further work upon the bill of exceptions or, if applicable, immediately notify the private transcriber to cease further work upon the bill. Court reporting personnel shall be entitled to payment by the party ordering such bill of exceptions for the work performed up to the time that such notice was sent to the court reporting personnel and rules with regard to payment of the fees to the official court reporter or privately contracted court transcriber for the bill of exceptions, as otherwise provided herein, shall apply.

   (C) Request by Court Reporting Personnel for Extension of Time for Preparation of Bill of Exceptions.

   (1) Where a bill of exceptions has been ordered according to law and these rules by the timely filing of a request, and the court reporting personnel are unable to prepare (or have prepared) and file the bill of exceptions with the clerk of the court from which the appeal is taken within the times fixed by § 2-105.01(B), the appellate court may grant additional time for preparation of the bill of exceptions upon request of the court reporting personnel authorized by the trial judge.

   (2) A request by court reporting personnel for extension must be made not later than 7 days prior to the expiration of the time originally prescribed, or not later than 7 days prior to the expiration of an extension previously granted. The request, which must specify the length of extension sought and be authorized by the trial court judge currently assigned to the trial court case, shall be submitted to the trial court judge using the electronic filing system for court reporting personnel. The electronic filing system for court reporting personnel will require the court reporting personnel to certify to the following information:

   (a) the number of hours of work performed in court, including any hours spent in travel during court hours for court-related duties, since the receipt of the request on which extension is being requested;

   (b) the number of pending requests for bills of exceptions at the time of receipt of the request for which extension is being sought;

   (c) the estimated total pages comprising the bill of exceptions, together with the number of pages completed as of the date the extension is requested;

   (d) the number of hours spent on work-related duties other than the taking and transcribing of court proceedings since the receipt of the request on which extension is being sought;

   (e) the hours and dates spent in the performance of work for other than the assigned judge;

   (f) any illnesses or family emergencies contributing to the need for the requested extension;

   (g) any vacation time used since the receipt of the request on which extension is being requested; and

   (h) the method of preparing the bill of exceptions; e.g., prepared by the official court reporter, note-reader used, dictated by the reporter and prepared by a typist, or prepared by a privately contracted court transcriber.

   (3) Upon authorization, the trial court judge shall electronically transmit the request to the trial court clerk who shall file the request in the trial court and submit the request to the appellate court via System-To-System Transfer. 

   (4) If such extension is granted, in whole or in part, by the appellate court, appellant’s brief date shall be adjusted accordingly. A first extension will not be routinely granted. Except for exceptional cause, no more than one extension will be granted.

   (5) If no bill of exceptions has been filed by the date on which it is due under these rules, the Clerk, using SCCALES procedures, shall notify the trial court and parties that the appellate court has not received either the bill of exceptions or a request for extension of time. The Clerk shall not issue a notice of default to a party for failure to file a brief until the bill of exceptions has been filed.

   (D) Applicability to Appeals From Tribunals Other Than County, Juvenile, or District Court.

   (1) These rules shall apply to all appeals and error proceedings where specific provision is not made by law for a bill of exceptions.

   (2) Any court reporting personnel approved by the court, board, or tribunal from which the appeal or error proceedings is taken may attend and record the trial or proceedings and prepare a bill of exceptions in an electronic format as set forth in § 2-105.01. No paper bound volumes of a bill of exceptions shall be prepared as the official record of the proceedings.

   (3) The court reporting personnel shall certify the bill of exceptions to be true and complete, and file the same with the chief clerical officer of such court, board, or tribunal in an electronic format within the time provided by law or rule.

   (4) Proposed amendments not agreed to shall be heard and determined by such court, board, or tribunal as provided in § 2-105(G).

   (5) The completed bill of exceptions shall be filed in electronic format in the appellate court within the time provided by law and, if no time be fixed, before the case is submitted to the appellate court.

   (E) Alternate Preparation in Lower Court. If the court reporting personnel is unable to prepare and certify a bill of exceptions, or if a bill of exceptions cannot be prepared and certified under provisions contained elsewhere in these rules, the bill of exceptions shall be prepared and certified electronically under the direction and supervision of the trial judge and shall be filed electronically with the clerk of the court from which the appeal is taken.

   (F) Delivery of the Completed Bill of Exceptions. The completed bill of exceptions shall be filed in the trial court by court reporting personnel using the Electronic filing system portal for court reporting personnel. Upon acceptance and filing thereof by the trial court clerk, the bill of exceptions shall be transmitted to the Clerk via System-To-System Transfer, and the Clerk shall give notice to the parties that the bill of exceptions was filed.

   (G) Amendments to the Bill of Exceptions. The parties in the case may amend the bill of exceptions by written agreement at any time prior to the time the case is submitted to the Supreme Court or Court of Appeals.

   (1) An amended bill of exceptions shall be prepared and transmitted in electronic format as provided by this rule, and the agreement shall be included with the amended bill of exceptions.

   (2) If proposed amendments are not agreed to by all the parties to the case, the matter shall be heard and decided by the trial court after such notice as the court shall direct. Hearings with respect to proposed amendments to a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have ceased to hold office, or shall be prevented by disability from holding the hearing, or shall be absent from the state, such proposed amendments shall be heard by the successor judge, or by another district judge in the district, or by a district judge in an adjoining judicial district.

   (3) The order of the trial court shall be transmitted by supplemental transcript to the Clerk prior to the time the case is submitted to the Supreme Court or Court of Appeals.

Rule 5(C)(1) and (K) amended May 28, 1992; Rule 5(F)(3) amended November 25, 1992; Rule 5(A)(2) amended February 18, 1993; Rule 5(F)(3) amended May 26, 1993; Rule 5(J), (K), (L), and (M) amended September 14, 1994; Rule 5 amended in its entirety February 1, 1995; Rule 5(B)(6)(c) amended September 25, 1996; Rule 5(B)(3)(b) amended September 20, 2000; Rule 5(B)(3)(b)(i) amended June 5, 2002; Rule 5(B)(3)(d) amended Dec. 22, 2004; Rule 5(B)(1)(e) and (B)(12) amended June 22, 2005; Rule 5(B)(3)(b) and (B)(7) amended October 26, 2005; Rule 5(B)(3)b(i) amended January 19, 2006; Rule 5(B)(3)b(i) amended February 23, 2006; Rule 5(B)(6)(c) amended March 22, 2006; Rule 5(B)(1)(e) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 2-105, effective July 18, 2008; § 2-105(B)(3)(b)(i) amended December 10, 2008; § 2-105 amended June 9, 2010; § 2-105(B)(3)(a) amended August 4, 2017, effective August 24, 2017; § 2-105(B)(1)(a) amended May 9, 2018; § 2-105 amended June 9, 2021, effective January 1, 2022; § 2-105(B)(4)(c) amended November 17, 2021, effective January 1, 2022; § 2-105(B)(2)(a), (d)- (f), (B)(4)(b) and (c) and (F) amended May 17, 2023.

unanimous

§ 2-105.01. Bill of exceptions; preparation and form of record.

§ 2-105.01. Bill of exceptions; preparation and form of record.

   (A) Preparation of the bill of exceptions shall commence from the date the request to prepare the bill of exceptions and notice of appeal is filed with the clerk of the court from which the appeal is taken, or if the request to prepare the bill of exceptions was not filed with the notice of appeal, upon order of the appellate court granting appellant leave to file the request to prepare the bill of exceptions out of time, or upon timely filing of such request by appellee. Upon filing the notice of appeal and request for preparation of the bill of exceptions, the clerk of the lower court shall forthwith notify the court reporting personnel of the filing. If the request  to prepare the bill of exceptions is not filed with the notice of appeal, the clerk of the lower court shall follow § 2-105(B)(2)(f), and the court reporting personnel shall not begin preparation of the bill of exceptions until leave of the appellate court is granted. The court reporting personnel shall prepare only those portions specified in the request for preparation of the bill of exceptions.

   (B) The bill of exceptions shall be filed in the court from which the appeal is taken within the following time limits unless an extension of time is approved by the Supreme Court or Court of Appeals as set forth in § 2-105(C) above. The time period begins on the date the estimate of cost is due to be paid by the requesting party:

Civil cases or criminal trials                    7 weeks
Guilty or nolo contendere pleas           3 weeks
Juvenile transfer appeals                        3 weeks

   (C) All bills of exceptions prepared for a case on appeal shall be filed in the court from which the appeal is taken, or where applicable, in the appellate court, in electronic form, as the official record, notwithstanding any format requested by any party or counsel. Where there is an electronic bill of exceptions, no printed bound volumes of the bill of exceptions shall be filed with the court.

   (D) Form of the Bill of Exceptions.

   (1) Index. The bill of exceptions shall have an index, which shall be the first item in the first volume. The index shall show:

   (a) each witness in the order called, and for whom called, and the initial page of the direct, cross, redirect, and recross examination,

   (b) motions to dismiss or to instruct a verdict and any other motions of major import, and stipulations, together with the rulings of the court thereon, and the page or pages where made and ruled on, and

   (c) all exhibits, with a description, and the initial page where marked, offered, ruled on, and found.

   (2) Bookmarks. The bill of exceptions shall contain bookmarks, linking to a specific page or section in the bill of exceptions. Bookmarks shall correspond with the index.

   (E) Format. Each page of the bill of exceptions shall be formatted to accommodate printing on 8 ½ inches by 11 inches of paper and shall have line and page numbers and be portrait orientation. The bill of exceptions shall be in a converted PDF (fully text searchable), rather than a scanned image PDF format. The text shall be in not smaller than 12 point font, double spaced, with not less than 12 points of leading. Preferred fonts shall be Century or Century Schoolbook. Other allowed fonts are Times New Roman, Baskerville Old Face, Book Antiqua, or Palatino. The pages shall be numbered consecutively. Each page of the bill of exceptions shall have line numbers in the left-hand margin from 1 to 25, inclusive, and the lines of typing shall be placed to correspond therewith. No margin line shall exceed ½ inch from the righthand edge of the page. The full name of each witness and whether the examination is direct, cross, or further examination shall be stated at the top of each page of the witness’ testimony. Each volume of the bill of exceptions shall not exceed 50 MB in size. The bill of exceptions shall be visually neat.

   (F) Certificate. The certificate of the court reporting personnel or contracted court transcriber shall be found as the last page in the verbatim bill of exceptions, or as the last page in the last volume of the bill of exceptions, if there are multiple verbatim volumes. The certificate shall not be found in any exhibits volume, whether documentary or media. The certificate of the official court reporter or transcriber shall include a statement of the cost of the bill of exceptions and a showing that such amount is one permitted to be charged by § 2-105(B)(4) and Neb. Ct. R. § 1-218.

   (G) Any request for preparation of a bill of exceptions or supplemental bill of exceptions filed after January 1, 2022, shall be governed by these rules regardless if the matter was held, heard, or determined prior to January 1, 2022.

§ 2-105.01 adopted June 9, 2021, effective January 1, 2022; § 2-105.01 amended November 17, 2021, effective January 1, 2022; § 2-105.01(A) and (B) amended May 17, 2023.

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§ 2-105.02. Bill of exceptions; exhibits.

§ 2-105.02. Bill of exceptions; exhibits.

   (A) Separate Volume. Exhibits volumes shall be divided into two types: documentary exhibits volumes and media exhibits volumes, as further defined below. All exhibits shall be placed in the appropriate, separate exhibits volume and shall not be made a part of any verbatim transcription volume.

   (B) Marking and Numbering. All exhibits are to be marked in numerical order, irrespective of the party producing them, and shall show the date on which they were marked. The sequential numbering of exhibits shall begin with the first hearing held in the case and continue until final disposition. The same number shall not be given to more than one exhibit in any case. If the pages of a multipage exhibit are not otherwise numbered, the court reporting personnel shall number the pages in sequence and shall in all instances mark such an exhibit so as to indicate the number of pages it contains. All exhibits should be properly identified as part of the record in the official court reporter’s or private transcriber’s certificate.

   (C) Documentary Exhibits; Offered at Trial; Electronic Exhibits Volume on Appeal. Documentary exhibits include all exhibits except physical exhibits in their original form and media exhibits.

   (1) A documentary item of evidence offered in paper form to a trial court may remain in paper form unless the matter is appealed. If the matter is appealed, the party who offered the exhibit shall submit to the court reporting personnel an electronic version, converted or scanned into PDF format. All exhibits shall be marked and numbered as provided in subsection (B) above.

   (2) For purposes of an appeal, if the party offering a documentary exhibit fails to provide a PDF to the court reporting personnel, the court reporting personnel shall create one by scanning or converting into PDF format at the offering party’s expense.

   (3) The court reporting personnel shall compile all documentary exhibits (including images of physical exhibits converted to PDF) into an electronic exhibits volume(s) and shall organize all exhibits by using bookmarks with the exhibit number identified. Each documentary exhibits volume shall not exceed 50 MB in size. Each documentary exhibits volume shall be filed in the trial court by court reporting personnel using the Electronic filing system portal for court reporting personnel.

   (D) Media Exhibits; File Formats; Physical Volume of Media Exhibits on Appeal. Media exhibits include digital data files not readily convertible to PDF, digital audio files, digital video files, analog audio tapes, and analog video tapes.

   (1) A media exhibit offered in an original format to a trial court may remain in the original format unless the matter is appealed. If the matter is appealed, the party who offered the exhibit shall provide to the court reporting personnel a copy of the exhibit in a format as provided in subsection (3) or (4) below. All exhibits shall be marked and numbered as provided in subsection (B) above.

   (2) For purposes of an appeal, if the party offering a media exhibit fails to provide a copy to the court reporting personnel in the format required by subsection (3) or (4) below, the court reporting personnel shall create one at the offering party’s expense.

   (3) Digital video exhibits shall be submitted to the appellate court in a format compatible for viewing on standard editions of Windows Media Player and/or VLC Media Player. If any other type of video exhibit is presented to the trial court which cannot be viewed on Windows Media Player and/or VLC Media Player, the video exhibit shall be submitted with any necessary additional player application software that allows the exhibit to be easily viewed by the appellate court. Video exhibits shall not be submitted to the appellate court via the Electronic filing system portal for court reporting personnel but may be provided to court reporting personnel on the following media storage devices: CD, DVD, or flash drive. The storage device shall contain only the exhibit(s) and any required player application software and no other files.

   (4) Digital audio exhibits shall be submitted to the appellate court in a format capable for playback on standard editions of Windows Media Player and/or VLC Media Player. If any other type of audio recording is presented to the court which cannot be played back on Windows Media Player and/or VLC Media Player, the party submitting the audio recording shall provide at his or her own expense the appropriate player application software for playback. Audio exhibits shall not be submitted to the appellate court via the Electronic filing system portal for court reporting personnel but may be provided to court reporting personnel on the following media storage devices: CD, DVD, or flash drive. The storage device shall contain only the exhibit(s) and any required player application software and no other files.

   (5) Analog exhibits shall not be provided to the appellate court on appeal. Analog exhibits shall be converted to an appropriate digital file format for viewing or playback as provided in subsection (3) or (4) above at the expense of the party offering the exhibit.

   (6) A separate media exhibits volume shall be created by court reporting personnel containing all media exhibits and shall be separate from the documentary exhibits volume. All exhibits in the separate media exhibits volume shall be listed and described in the index required by § 2-105.01(D)(1). The separate media exhibits volume shall be filed in the trial court and transmitted to the appellate court immediately upon the filing thereof.

   (7) In the event that the appellate court is unable to playback any media exhibit, the court reporting personnel shall provide support to the appellate court. If the court reporting personnel are unable to resolve the problem, the party offering the exhibit shall be responsible to provide any necessary support.

   (E) Physical Exhibits.

   (1) The exhibits volume shall contain no item of physical evidence. The term “physical evidence” means any nondocumentary items and includes, but is not limited to, items such as weapons, contraband, wearing apparel, cell phones, models, money, body fluids, or any other physical item.

   (2) The party offering any nondocumentary item of physical evidence shall substitute for purposes of appeal a photograph, not larger than 8½ by 11 inches, converted or scanned to a PDF image file, which fairly and accurately depicts the item. If the party offering an item of nondocumentary evidence fails to provide a suitable substitute PDF image file for a case being appealed, the court reporting personnel shall cause one to be made at the offering party’s expense. The court reporting personnel shall in all instances preserve the item of physical evidence in its original form and shall make it available to the Supreme Court or Court of Appeals upon request.

   (3) Large physical exhibits or any physical exhibit of any size shall not be sent to the appellate courts except upon request of the appellate court. If a request for such an exhibit is made by the Supreme Court or Court of Appeals, the party who offered the exhibit in the trial court shall arrange and pay for transporting the exhibit to the Clerk of the Supreme Court and Court of Appeals and to arrange and pay for return thereof to the clerk of the trial court. Under no circumstances shall the clerk of the trial court send to the Clerk contraband, drugs, firearms, or other weapons, unless specifically requested to do so by the Supreme Court or Court of Appeals.

   (F) No exhibits constituting visual depiction of sexually explicit conduct involving a child shall be scanned or electronically reproduced or transmitted. See § 2-116(B).

    (G) Parties shall retain a copy of all exhibits to be included in the bill of exceptions on appeal.

§ 2-105.02 adopted June 9, 2021, effective January 1, 2022; § 2-105.02 amended November 17, 2021, effective January 1, 2022.

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§ 2-105.03. Bill of exceptions; documentary exhibits volume exception; implementation period.

§ 2-105.03. Bill of exceptions; documentary exhibits volume exception; implementation period.

   (A) Upon an exception allowed by the Clerk, during the implementation period, the trial court clerk may accept for filing a paper documentary exhibits volume(s). In other words, the Clerk may, during the implementation period, grant an exception from the requirements of § 2-105.02(C)(3). The paper documentary exhibits volume shall otherwise be prepared in accordance § 2-105.02. In the event of such allowance of the exception, such paper volume(s) shall be deemed the official record of exhibits. The trial court clerk shall forward the paper volume(s) to the Clerk by U.S. mail and shall not convert or scan the volume(s) into JUSTICE.

   (B) The implementation period shall expire on September 1, 2022, unless otherwise advanced or extended by the Nebraska Supreme Court.

§ 2-105.03 adopted February 23, 2022.

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§ 2-106. Motions generally; specific motions.

§ 2-106. Motions generally; specific motions.

   (A) General rules of form and service for motions are set forth in § 2-103.

   (B) Content; response and submission.

   (1) A motion shall set forth the relief requested and the grounds therefor.

   (2) A response shall be filed within 10 days of the filing of the motion. Any response by a party shall respond to the motion of the moving party and not to a response filed by another party. No response by a moving party shall be allowed to a response filed by any other party.

   (3) A motion shall be submitted for decision:

   (a) upon agreement of all parties in the form of a stipulation; or

   (b) upon receiving a response of all parties; or

   (c) at the conclusion of the 10-day response period, including any time period added for service, if necessary.

   (4) The court is not bound by stipulations of parties.

   (C) Waiver Acceptable. By a properly filed waiver, opposing counsel may waive notice, hearing, and response to a motion.

   (D) Oral Argument. No oral argument is permitted on any motion except as may be ordered by the appellate court; in such event, oral argument shall be limited to 5 minutes per side.

   (E) Motions for Extension of Brief Date.

   (1) Where an extension is sought due to failure of preparation of a bill of exceptions by court reporting personnel, see § 2-105(C) for instructions.

   (2) Except for juvenile cases or juvenile transfer cases, first requests for extension of brief date shall be supported by a general showing of need for additional time, regardless of case categorization per § 2-111(B)(2). First extensions of no more than 30 days may be immediately granted.

  (3) First requests for extension of brief date in juvenile cases, juvenile transfer cases, and second requests for extension of brief date, regardless of case categorization per § 2-111(B)(2), shall be supported by a showing of good cause. Extensions under this subpart shall not be immediately granted. Good cause includes, but is not limited to,

  (a) unavailability of required appellate records through no fault of the requestor;

  (b) a showing that a case involves complex and unusual facts or legal issues requiring additional research and preparation time;

  (c) specifically listed conflicts with the schedule of another court. Neither the stipulation of the parties nor mere conclusory statements, such as “the press of other business,” constitutes good cause; or

  (d) recent change in appellate counsel and/or appointment or hiring of new counsel who is unfamiliar with the appeal.

   (4) Second requests for extension of brief date in juvenile cases, juvenile transfer cases, and third or subsequent requests for extension of brief date, regardless of categorization per § 2-111(B)(2), will only be allowed upon a showing of exceptional cause. Extensions under this subpart shall not be immediately granted. Exceptional cause includes, but is not limited to,

   (a) the intervention of something beyond the control of the requestor and/or

   (b) unexpected illness, incapacity, or unforeseeable absence of the person preparing the brief. 

   (5) Motions for extension of brief date shall be submitted immediately and may be granted immediately only for a period not to exceed 30 days, subject to reconsideration if a timely response is filed.

See appendices 12, and 5 for form.

   (F) Motion to Withdraw. A motion for withdrawal of any counsel of record, including court-appointed counsel, or a guardian ad litem shall state good cause for withdrawal and shall certify that a copy of such motion has been sent to the client’s or ward’s last-known mailing address, which address shall be included in the motion. Service of the motion shall be as set forth in § 2-103(B)(1) to the adverse party’s attorney of record or, if self-represented, to the party.

   (G) Motion for Attorney Fees.

   (1) Civil Cases; Motion and Affidavit. Any person who claims the right under the law or a uniform course of practice to an attorney fee in a civil case appealed to the Supreme Court or the Court of Appeals must file a motion for the allowance of such a fee, citing to the law or uniform course of practice for the allowance of such fee and supported by an affidavit which justifies the amount of the fee sought for services in the appellate court. Any motion failing to cite such law or uniform course of practice will be summarily overruled notwithstanding § 2-106(B)(3).

   (2) Time for Filing. Such a motion must be filed within 10 days after the release of the opinion of the court or the entry of the order of the court disposing of the appeal, unless otherwise provided by statute. Any person filing a motion for attorney fees beyond the 10-day time limit must include within the motion a citation to the statutory authority permitting a filing beyond the time limit prescribed by this rule. For purposes of the subsection, an order of the court disposing of the appeal shall include an order disposing of a motion for rehearing.

   (3) Tolling. A motion for attorney fees which is timely filed in the Court of Appeals shall toll the time for filing a petition for further review. See § 2-102(F).

   (4) The motion and proof of service shall be filed with the court, and a copy shall be served upon the opposing parties or attorneys of record.

   (5) Court-Appointed Counsel. A court-appointed attorney in a criminal or juvenile case, appealed to the Supreme Court or the Court of Appeals, may, after issuance of a mandate by the appellate court, apply to the appointing court for an attorney fee regarding services in the appeal.

   (H) Briefs. Complex motions may be accompanied by a brief. The brief may be in memorandum form and shall be filed with the motion. Format and preparation of briefs shall be as provided in § 2-103(A) and § 2-109(C) and (D).

   (I) Motions Not Covered. Motions for summary disposition and motions for rehearing are covered in §§ 2-107 and 2-113, respectively, and are not covered by this rule.

Rule 6(D) amended May 28, 1992; Rule 6(D) amended May 29, 1997; Rule 6(B) amended March 22, 2006. Renumbered and codified as § 2-106, effective July 18, 2008. § 2-106(D) amended August 27, 2008; § 2-106(H) amended June 6, 2012; § 2-106 amended June 9, 2021, effective January 1, 2022; § 2-106(E)(4) amended November 17, 2021, effective January 1, 2022; § 2-106(G)(1) amended February 14, 2024; § 2-106(E) amended May 8, 2024; § 2-106(E) amended August 20, 2025.

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§ 2-107. Summary Dispositions.

§ 2-107. Summary Dispositions.

   (A) Summary Disposition on the Court's Own Motion.

COMMENT
   Parties may not request disposition under this section of this rule.

   (1) When the court determines it lacks jurisdiction, the appeal will be dismissed in the following manner: “APPEAL DISMISSED. See Neb. Ct. R. App. P. § 2-107(A)(1).”

   (2) When the court determines that any one or more of the following circumstances exist and are dispositive of the case submitted to the court for decision:

   (a) the judgment is based on findings of fact which are not clearly erroneous;

   (b) the evidence in support of a jury verdict is not insufficient;

   (c) the judgment or order is supported by substantial evidence in the record as a whole; or

   (d) no error of law appears;

and the court also determines that a detailed opinion would have no precedential value, the judgment or order will be affirmed in the following manner: "AFFIRMED. See Neb. Ct. R. App. P. § 2-107(A)(2)."

    (3) When the court determines that grounds may exist for summary reversal of the order or judgment appealed from, such as a prior controlling appellate decision which is dispositive of the appeal or a clear error of law exists, the court may summarily reverse or reverse and remand. Such disposition may occur only after an order to show cause has issued, citing the appellate decision or law deemed controlling, and the parties have been provided an adequate opportunity to respond.

   (B) Motions for Summary Dismissal or Affirmance.

   (1) A motion to dismiss for lack of jurisdiction may be filed at any time after an appeal has been docketed. Such a motion shall document the claimed lack of jurisdiction by citations to the dispositive portions of the record and to the controlling statutory and case law.

   (2) A motion to affirm on the ground that the questions presented for review are so unsubstantial as not to require argument may be filed after the appellant's brief has been filed or the time for filing has expired. Such a motion shall document the claimed lack of substance of the questions presented by citations to the dispositive portions of the record and to the controlling statutory and case law.

   (3) Where appropriate, a motion to affirm may be joined, in the alternative, with a motion to dismiss.

   (4) The appellant may file a written response opposing or supporting the motion within 10 days from the date of service of the motion.

   (5) Upon the filing of objections or the expiration of time allowed therefor, or express waiver of the right to file, a motion for summary disposition shall be considered submitted.

   (6) Motions for summary dismissal or affirmance shall be in the format set forth in § 2-103(A).

   (7) The motion and proof of service shall be as set forth in § 2-103(B).

   (8) The time for filing briefs under § 2-109 is not extended by the filing of a motion for summary dismissal or affirmance.

See appendix 3 for form.

   (C) Stipulation of Parties for Summary Reversal.

   (1) At any time after an appeal has been docketed the parties may file a stipulation that grounds exist for summary reversal of the order or judgment appealed from, such as a prior controlling appellate decision which is dispositive of the appeal or the existence of a clear error of law. The stipulation must cite the appellate decision or law deemed to be controlling and must be executed by all the parties to the appeal.

   (2) Stipulations for summary reversal shall conform to the requirements set forth in § 2-107(B)(6), (7), and (8) above.

   (D) Suggestion of Mootness in Prison Disciplinary, Postconviction Relief, and Habeas Corpus Appeals.

   (1) Type of Action. It is the duty of all parties to an appeal of a prison disciplinary procedure governed by Neb. Rev. Stat. § 83-4,109 et seq., a postconviction relief action governed by Neb. Rev. Stat. § 29-3001 et seq., or a habeas corpus action, at all times during the course of an appeal, to inform the appellate court that the subject is no longer in custody, under sentence or otherwise, and that, therefore, the issues presented in the appeal could be moot.

   (2) Form.

   (a) If any party determines that the issue of the prison disciplinary procedure, postconviction relief, or habeas corpus action has been rendered moot, the party shall so advise the court by filing a "suggestion of mootness" in the form of a motion to dismiss on the ground that the question presented is moot.

   (b) The opposing party or parties may file written responses opposing or supporting the motion within 10 days from the date of service of the motion.

   (c) Upon the filing of responses or the expiration of time allowed therefor, or express waiver of the right to file, a motion for summary disposition on the grounds of mootness shall be considered submitted.

   (d) Motions for summary disposition on the grounds of mootness shall be in the format set forth in § 2-103(A) and otherwise conform to filing requirements.

   (e) The motion and proof of service shall as provided in § 2-103(B).

   (f) The time for filing briefs under § 2-109 is not extended by the filing of a motion for summary disposition on the grounds of mootness.

Rule 7(B)(1) amended August 25, 1993; Rule 7(C) adopted January 23, 1997; Rule 7(B)(7) amended May 29, 1997; Rule 7(A)(3) adopted September 19, 2001; Rule 7(C) amended to (7)(D) September 19, 2001; Rule 7(C) adopted September 19, 2001. Renumbered and codified as § 2-107, effective July 18, 2008. §§ 2-107(B)(7) and (D)(2)(e) amended August 27, 2008; § 2-107(B)(7) and (D)(2)(e) amended June 6, 2012; § 2-107(D) amended June 1, 2017; § 2-107 amended June 9, 2021, effective January 1, 2022.

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§ 2-108. Dismissal of appeal.

§ 2-108. Dismissal of appeal.

   (A) Parties. An appeal may be dismissed by the appellant or appellants.

   (B) Form. The motion to dismiss must be in such form as provided in § 2-103(A).

   (C) Service. A motion to dismiss must be served upon the attorney or attorneys of record for all other parties, and must contain proof of such service as required by § 2-103(B).

See appendix 3 for form.

   (D) Submission. A motion to dismiss filed by appellant will be submitted to the court 10 days after it is filed with the appellate court or after service upon opposing counsel or a self-represented party, whichever is later.

   (E) Time for Response of Appellees. Appellee's response to the motion shall be made within 10 days after the motion is filed with the appellate court. Any party having a right of cross-appeal at the time the motion to dismiss is filed may, within the 10-day period provided in this rule, file a notice of intention to cross-appeal. Upon the filing of such notice, the court shall deny the motion to dismiss and shall fix a brief day for the cross-appellant. The cause shall then proceed as if the appeal had originally been perfected by the appellee who has cross-appealed.

   (F) Dismissal by Agreement. All parties may agree to the dismissal of the appeal. In that event, appellees may waive response to the motion to dismiss, or a stipulation may be filed instead of a motion.

Renumbered and codified as § 2-108, effective July 18, 2008. § 2-108 amended June 9, 2021, effective January 1, 2022.

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§ 2-109. Briefs; constitutional questions.

§ 2-109. Briefs; constitutional questions.

   (A) Time for Filing. The briefs listed below must be filed within the times stated in these rules. Briefs in support of motions are described in §§ 2-1062-107, and 2-113. Requests for additional time to file briefs must be made in accordance with the provisions of § 2-106(E). NO EXTENSIONS OF TIME WILL BE ALLOWED IN ADVANCED CASES EXCEPT UPON A SHOWING OF EXCEPTIONAL CAUSE.

   (1) Appellant's briefs must be served and filed as follows:

   (a) No request for preparation of bill of exceptions filed: 30 days from the date the transcript is filed in the appellate court, unless the court directs otherwise.

   (b) Request for preparation of bill of exceptions filed: 30 days after the date the bill of exceptions is due to be filed.

   (2) Appellee's brief must be served and filed within 30 days after appellant has served and filed briefs. If service of appellant's brief is by mail, 3 days are added to allow for delivery time. (See Neb. Ct. R. Pldg. § 6-1106(e).)

   (3) Appellant's reply brief must be served and filed within 10 days after appellee has served and filed briefs; 3 days are added if service of appellee's brief is by mail.

   (4) Briefs of amicus curiae may not be filed without leave of court. See § 2-106 for general requirements for motions. 

   (a) If granting leave to file a brief would result in recusal of a member of the court due to the proposed amicus curiae, the law firm or attorney(s) representing the proposed amicus curiae, or any other reason, leave to file brief of amicus curiae may be denied.

   (b) A motion for leave to file an amicus brief shall be sought no later than 30 days prior to oral argument. A motion for leave to file an amicus curiae brief shall include either a copy of the proposed brief as an attachment or include a concise summary of the brief the amicus curiae intends to file. If leave is granted, amicus curiae shall file the brief as ordered by the court, but no later than 10 days prior to oral argument.

   (c) Oral argument by amicus curiae is controlled by § 2-111(E)(4) and not by this rule. 

   (5) A motion for rehearing and brief in support is governed by § 2-113.

   (6) If rehearing is granted in a case, the parties may file additional briefs at least 1 week prior to reargument or other submission to the court. See § 2-113(L).

   (7) Briefs in advanced cases are due as provided by these rules or as ordered by the court.

   (B) Format and service of briefs are governed by § 2-103.

   (C) General Rules for Preparation of Briefs. In the preparation of the brief, the following general rules shall be observed:

   (1) References to the transcript shall be made by setting forth in parentheses the capital letter "T" followed by the page of the transcript, as, for example, (T26). For supplemental or confidential transcripts, the reference shall be made by setting forth in parentheses either "Supp. T" or "Conf. T," followed by the page of the transcript. In original actions, references shall be made to the pleading and page thereof.

   (2) References to questions, answers, objections, motions, rulings, or any other matters found in the bill of exceptions shall be made by setting forth in parentheses the numbered page and line in the bill of exceptions where found, as, for example, (156:12). The number preceding the colon should represent the page of the bill of exceptions where found, and the number following the colon, the line.

   (3) References to exhibits in the bill of exceptions shall be made by setting forth in parentheses the capital letter E, followed by the number of the exhibit, followed by a comma and the page of the exhibit on which the material to which reference is made appears, as, for example, (E5, p. 95). The bill of exceptions index shall show where the exhibit was offered and received or refused, and does not need citation in the brief. References to documents not in the bill of exceptions but nonetheless subject to review by the appellate court, such as a presentence investigation report, shall identify the document, followed by a comma and the page on which the material to which reference is made appears, as, for example, (Presentence Investigation Report, p. 75).

   (4) Every reference to a reported case shall set forth the title thereof, the volume and page where found, the tribunal deciding the case, and the year decided. If the cited opinion is long, it shall also refer to the page where the pertinent portion of the opinion is found. Nebraska cases shall be cited by the Nebraska Reports and/or Nebraska Appellate Reports, but may include citation to such other reports as may contain such cases. A citation may be hyperlinked to the official Nebraska Reports or Nebraska Appellate Reports. See § 2-103(A)(5).

   (5) If a current statute is relied upon, it must be cited from the last published revision or compilation of the statutes, or supplement thereto, if contained therein; if not contained therein, to the session laws wherein contained, or the legislative bill as enacted. Statutes may also be hyperlinked to the official Nebraska Legislature website. See § 2-103(A)(5).

   (6) Citations to textbooks, encyclopedias, and other works shall give the title, edition, year of publication, volume number, section, and page where found.

   (D) Content of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute, rule of the Supreme Court, or order of a court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.

   (1) The brief of appellant, or plaintiff in an original action, shall contain the following sections, under appropriate headings, and in the order indicated:

   (a) The title page, which is the cover;

   (b) A table of contents with page references, and an alphabetically arranged table of cases, statutes, and other authorities cited, with references to the pages of the brief where cited;

   (c) A statement of the basis of jurisdiction of the appellate court. The jurisdictional statement must identify the statute, court rule, or case law believed to confer jurisdiction on the Supreme Court or Court of Appeals, state relevant facts establishing why the judgment or order sought to be reviewed is an appealable order, and further must include the following information:

   (i) the date of entry of the judgment or order sought to be reviewed;

   (ii) the date of filing of any motion claimed to toll the time within which to appeal, the disposition of such motion, and the date of entry of the order disposing of it;

   (iii) the date of filing of the notice of appeal, and the date of depositing of the docket fee or date of the granting of the order to proceed in forma pauperis, and;

   (iv) if the order sought to be reviewed adjudicates fewer than all the claims, or the rights and liabilities of fewer than all the parties, the jurisdictional statement must recite the language of the order of the court from which the appeal is taken providing the basis for such interlocutory appeal or otherwise identify the statute, court rule, or case law authorizing such interlocutory appeal.

   (d) A statement of the case, which, in original actions, shall state the issues before the court. Except in original actions, the statement of the case shall contain the following, in the order indicated: (1) The kind of action or nature of the case; (2) the issues actually tried in the court below; (3) how the issues were decided and what judgment or decree was entered by the trial court; and (4) the scope of the appellate court's review;

   (e) A separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed. Consideration of the case will be limited to errors assigned and discussed in the brief. The court may, at its option, notice a plain error not assigned;

   (f) Propositions of law shall be contained in separate, numbered paragraphs, and shall state concisely and without argument or elaboration the legal propositions urged as controlling. Only propositions discussed in the argument shall be stated. Each proposition of law shall be followed by a list of supporting authorities. Preference in citation shall be given to those authorities deemed most important. Authorities cited under any proposition must be quoted or otherwise discussed in the argument;

   (g) The statement of facts shall be made in narrative form, and shall consist of so much of the substance of the record as is necessary to present the case. Each and every recitation of fact, whether in the statement of facts or elsewhere in the brief, shall be annotated to the record in the manner set forth in § 2-109(C);

   (h)The appellant's brief must contain, under appropriate headings, a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief and which must not merely repeat the argument headings. The appellee's brief may contain such summary; and

   (i) The argument shall present each question separately, and shall present each proposition of law as best sets forth the contentions of the party. Authorities relied upon shall be quoted or otherwise discussed. A party may make such further statements of fact or quotations from the record as deemed necessary to properly present the question, supporting such facts by appropriate references to the record.

   (2) The brief of appellee, or defendant in an original action, shall contain the following matters, in the order indicated:

   (a) Table of contents and table of cases cited;

   (b) A statement of the basis of jurisdiction of the appellate court, if appellant's statement is not accepted as correct;

   (c) Statement of the case, if appellant's statement thereof is not accepted as correct;

   (d) Propositions of law;

   (e) Statement of facts, if appellant's statement is not accepted as correct or is amplified. Each and every recitation of fact shall be annotated to the record in the manner set forth in § 2-109(C), no matter where in appellee's brief such recitation is made; and

   (f) Argument.

   (3) If a party wishes to avail himself or herself of the provisions of the statute with reference to remittitur, a special assignment of error may be made in the brief of appellee, or a cross-appeal may be taken.

   (4) Cross-Appeal. Where the brief of appellee also presents a cross-appeal, it shall be clearly noted on the cover of the brief. Within the appellee's brief, the cross-appeal shall be set forth in a separate section of the brief. This separate section shall be headed "Brief on Cross-Appeal" and shall be prepared in the same manner and under the same rules as the brief of appellant. See § 2-109(D)(1). Where an appellee submits a brief purporting to be a brief of appellant, which complies with the rules regarding an appellant’s brief, and the appellee’s brief does not take issue with any errors asserted by the appellant, the appellate court may, in its discretion, treat the brief of such appellee as a brief on cross-appeal.

   (5) Reply Briefs. The reply brief shall be prepared in the same manner as the brief of appellee. The answer of appellant to any cross-appeal shall be set forth in a separate division of the reply brief and shall be headed "Answer to Brief on Cross-Appeal," and shall be noted on the cover of the brief.

   (E) Cases Involving Constitutional Questions. A party who asserts that a Nebraska statute is unconstitutional under the Nebraska Constitution or the U.S. Constitution must file and serve notice thereof with the Clerk. This notice requirement applies to an appellant, appellee, cross-appellant, or cross-appellee if it is the party asserting that a Nebraska statute is unconstitutional. Such notice may not be filed until the appeal is docketed. Such notice shall be filed by the party and accepted by the Clerk before the filing of the party’s brief. If the Attorney General is not already a party or representing a party to the action, upon acceptance of the notice filed by the party, the Clerk shall add the Attorney General to the case and provide notice of the filing to the Attorney General.

   If the Attorney General is not already a party to an action or representing a party to an action where the constitutionality of the statute is in issue, the brief asserting unconstitutionality must be served on the Attorney General, and the Attorney General shall be entitled to file a response and may be heard at oral argument upon seeking leave to do so, which may be granted at the Supreme Court’s discretion. Proof of such service shall be filed with the Clerk. In the absence of such notice pertaining to a constitutional question, the Supreme Court will not consider any constitutional question except by special order of the Supreme Court, which may be issued at its discretion.

   (F) Replacement briefs. The appellate courts reserve the right to issue a replacement brief order. If a court orders a party to submit a replacement brief, the original brief shall be stricken upon entry of the replacement brief order. If the replacement brief order identifies a failure to comply with specific requirements of these rules, then the ordered party shall correct only the rule deficiencies outlined in the order and make no other changes. An order setting a date for filing a replacement brief shall automatically extend the filing date for any responsive brief as follows:

   (1) for a replacement appellant’s brief, the appellee’s brief date is extended to 30 days after the date the replacement brief is due;

   (2) for a replacement appellee’s brief, with or without cross-appeal, the appellant’s reply brief date is extended to 10 days after the date the replacement brief is due.

Rule 9(B)(1), (B)(2)(e), and (B)(5) amended March 25, 1992; Rule 9(B)(2)e amended April 22, 1992; Rule 9(A)(5) amended April 29, 1992; Rule 9(A)(2) amended May 28, 1992; Rule 9(F) amended July 1, 1992; Rule 9(F) amended November 25, 1992; Rule 9(B)(7) amended June 15, 1994; Rule 9(A)(5) and (B)(7) amended October 17, 1995; Rule 9(B) amended September 25, 1996; Rule 9(B)(1) amended November 20, 1996;  Rule 9(A) and (B)(6) amended May 29, 1997; Rule 9(A)(4) amended March 17, 1999; Rule 9(D)(1) and (2) amended October 27, 1999, effective December 6, 1999;  Rule 9(F) amended December 15, 1999; Rule 9(B)(3) amended June 6, 2001; Rule 9(F) amended November 15, 2001; Rule 9(B)(2)(b) amended March 22, 2006; Rule 9(E) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 2-109, effective July 18, 2008. § 2-109(A)(2) amended August 27, 2008; § 2-109(D)(1)(h)-(i) amended September 10, 2008, effective January 1, 2009; § 2-109(D) amended November 19, 2008; §§ 2-109(A)(5), (B)(2) and (6)-(7) amended June 6, 2012; § 2-109(C)(1) amended July 2, 2014; § 2-109(D)(4) and (5) amended May 12, 2021; § 2-109 amended June 9, 2021, effective January 1, 2022; § 2-109(A)(4)(a)-(c) amended April 6, 2022; § 2-109(E) amended November 15, 2023; Rule § 2-109(E) amended September 11, 2024; § 2-109(F) amended June 18, 2025.

unanimous

§ 2-110. Default in filing briefs.

§ 2-110. Default in filing briefs.

   (A) Appellant in Default - Failure to File a Brief. If appellant fails to file its brief within the time allowed and no extension of brief date has been granted, the Clerk shall provide notice to all self-represented litigants and all attorneys of record that appellant is in default for failure to file a brief and is required to file a brief within 10 days after receipt of such notice. Appellant's failure to file a brief within the 10-day period subjects the appeal to dismissal. If appellant has sought and obtained an extension of brief date and the court’s order granting the extension subjects the appeal to dismissal without further notice, failure to file the brief within the extended time allowed may result in dismissal of the appeal without further notice. Under no circumstances shall more than one notice of default be required.

   (B) Appellee in Default. Where the appellant's brief has been properly served and filed, even if not within time, and an appellee's brief has not been filed, appellee will be considered in default and appellant may proceed ex parte. If the appellee is in default, and after notice to the appellee, the case will be placed on the proposed call according to the original brief date of the appellee.

   (C) Hearing Not Delayed. The hearing of a case will not be delayed by default of either party in serving or filing briefs, unless, for good cause shown, it is otherwise ordered.

Rule 10(A) amended May 28, 1992. Renumbered and codified as § 2-110, effective July 18, 2008;; § 2-110 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 2-111. Scheduling, argument, and submission.

§ 2-111. Scheduling, argument, and submission.

   (A) General. Cases are eligible for submission at any time after the appellee's brief has been filed. This rule sets out the methods of scheduling cases for submission, the various submission methods, and rules relating to oral argument.

   (B) Methods of Submission on the Merits.

   (1)(a) The court may order the submission of any case without oral argument. Cases to be submitted without argument may be submitted at any time after the time for filing the appellant's reply brief has expired. The Clerk will notify parties when the order that the case be submitted without argument is entered.

   (b) A party may file a motion requesting oral argument upon notice of the court's order that a case is submitted without oral argument. The motion shall be filed within 7 days after the date of the minute entry submitting the case without oral argument and shall state the reasons for the request. The nonmoving party shall have 7 days after the filing of the motion to respond, at which time the motion shall be submitted to the court for consideration. The granting of the motion shall be at the court's discretion.

   (2) Cases which are advanced are scheduled for oral argument as soon as the appellee's brief is due to be filed. The following categories of cases will be advanced without motion:

   (a) Criminal cases;

   (b) Workers' compensation cases;

   (c) Unemployment compensation cases;

   (d) Questions certified by other courts;

   (e) Original actions;

   (f) Appeals involving custody of minor children;

   (g) Appeals within original concurrent jurisdiction of the court;

   (h) Appeals from the Tax Equalization and Review Commission; 

   (i) Appeals from the Department of Natural Resources; 

   (j) Appeals involving guardianship and/or conservatorship; and

   (k) All juvenile cases, including orders granting or denying juvenile transfers.

   (3) In all other cases, either party may file a motion with the court requesting that the case be advanced for argument. A party seeking an advancement of oral argument shall file a showing in support of said motion setting out the reasons said case should be advanced for oral argument. To ensure proper scheduling, attorneys are requested to notify the Clerk in writing if the case should be advanced and advancement is not obvious.

   (4) Cases which are not advanced are scheduled in the order in which the briefs of the appellee are filed, not in the order in which the cases were docketed. Nonadvanced cases are scheduled in the argument slots remaining after scheduling advanced cases.

   (C) Proposed Call. The proposed call is a list of cases ready for argument and likely to be scheduled for argument during the argument session shown. All advanced cases will be scheduled unless continued, and most nonadvanced cases are scheduled. The proposed call is prepared to allow attorneys to set aside time on their schedules for argument.

   (1) Continuance. Cases on the proposed call may not be continued unless leave is granted by the court. A party may file a motion to continue oral argument, which must be accompanied by a showing of exceptional cause. See § 2-106 for format of the motion.

   (2) Conflicts. If a party has a conflict on a date listed on the proposed call, the party shall file a notice of conflict and serve all parties. Conflict notice must be received by the date listed on the proposed call and will be strictly enforced. If a party cannot argue at any time during the session, a stipulation or motion to continue as provided in § 2-111(C)(1) shall be filed.

   (D) Call. The call is the final schedule of oral arguments for a specified session of the court. Cases are heard in the order listed. Cases will not be continued to another session of the court after scheduling on the call unless leave is granted by the court. A party may file a motion to continue oral argument, which must be accompanied by a showing of exceptional cause. See § 2-106 for the format of the motion.

   (E) Oral Argument. The Supreme Court and Court of Appeals will hear oral argument as scheduled.

   (1) Unless otherwise ordered by the court, oral argument shall not exceed 10 minutes per side in any civil or criminal case; provided, however, that where a criminal defendant has been convicted of first or second degree murder and the case at issue is a direct appeal from such conviction, oral argument shall not exceed 20 minutes per side.

   (2) On the court's own motion or on motion by a party, additional time may be granted. A motion, in the format prescribed by § 2-106, must be filed within 10 days after the proposed call is issued. Such motion must be accompanied by a showing of good cause.

   (3) The court may further limit oral argument in any case. In such event, the Clerk shall notify the parties of the time limit at the time the order is entered.

   (4) No party will be permitted oral argument unless he or she has a brief on file. An amicus curiae may, with the consent of a party, request leave to present oral argument on the side of that party within the time allowed to that party for argument.

   (5) Except where the penalty prescribed by law is life imprisonment or death, or unless ordered by the court, no oral argument is allowed in any criminal case:

   (a) Where the accused entered a plea of guilty or no contest; or

   (b) Where the sole allegation of error is that the sentence imposed was excessive or excessively lenient or the trial court refused to reduce the sentence upon application of the defendant.

   (c) Where the penalty prescribed by law is life imprisonment or death, and § 2-111(E)(5)(a) and/or (b) applies, oral argument shall not exceed 10 minutes per side unless otherwise ordered by the court.

   (6) Unless otherwise directed by the court, the parties may elect to waive oral argument and submit a case solely on the briefs. Such notice to waive oral agrument shall be filed with the Clerk.

   (7) On the motion of any party or on the court’s own motion, the court may allow oral arguments to be held by telephonic or video conferencing methods, or by a combination of telephonic or video conferencing methods and in-person appearances. The Clerk shall notify parties of any allowance for telephonic or video conferencing appearance at arguments and provide information as to submitting requests for parties to appear by such alternate method. In such instances, the court may allow a party to appear by an alternate method without regard to the form of appearance by any other party.

   (8) Courtroom decorum.

   (a) Attorneys or self-represented litigants shall be present in the courtroom and prepared to proceed at the hour set for argument by the court. Unjustified failure to appear may subject the case to dismissal or disciplinary action to the attorneys concerned.

   (b) All persons entering the courtroom shall be seated immediately and shall conduct themselves in a quiet and orderly manner. No person shall eat, drink beverages, or engage in other distracting conduct in the courtroom while court is in session.

   (c) No person shall possess any firearm or other dangerous weapon in the Supreme Court or Court of Appeals courtrooms without the permission of the court. Upon order of the court, any person may be subjected to a search of his or her person and possessions for any weapons, destructive device, or components thereof.

   (F) Court of Appeals Oral Argument. Except in exigent circumstances, the Court of Appeals will hear oral arguments in panels of three judges, as scheduled, in the Court of Appeals courtroom located in the State Capitol Building, or at other locations throughout the state as designated by the Chief Judge. Whenever any member of a panel is not able to be present at the scheduled oral argument of a case, the case shall be deemed submitted to that member on the record and briefs. If a member of a panel is unable for any reason to participate after the case is submitted for decision, the Chief Judge shall appoint a substitute judge from the Court of Appeals or, at the request of the Chief Judge, the Chief Justice may call an active or retired district court judge to serve as a substitute judge, and the case shall be deemed submitted to the new member on the record and briefs. The rules relating to oral argument shall be the same as provided in § 2-111(E), except as may be modified by the Court of Appeals.

   (G) Bankruptcy. In a pending civil action before the appellate court, involving a party named as a debtor in a bankruptcy petition:

   (1) The party named as such debtor in bankruptcy, or any other party to the pending civil action having knowledge of bankruptcy proceedings involving another party to the action pending before the appellate court, shall, as soon as reasonably possible, notify the Clerk concerning the proceedings in bankruptcy. The Clerk will attempt to confirm the existence of such bankruptcy proceedings. On confirmed existence of such bankruptcy proceedings, the proceedings in the appellate court involving such named debtor in bankruptcy shall be suspended immediately. The Clerk shall notify the parties that the action has been suspended. An action so suspended shall be removed from the active docket of the appellate court and shall remain suspended until order of the court restoring the action to the active docket of the court. If the Clerk is unable to confirm existence of the alleged proceeding in bankruptcy, the parties shall be so informed, and compliance with § 2-111(G)(2) is then required.

   (2) If the Clerk is unable to confirm the existence of a bankruptcy proceeding, as provided in § 2-111(G)(1), the party named as a debtor in a bankruptcy petition, or any party to the action having knowledge of the bankruptcy proceedings involving another party to an action pending before the appellate court, shall file with the Clerk a suggestion of bankruptcy and either a certified copy of the bankruptcy petition or a copy of the caption sheet of the bankruptcy petition showing the case number, the names of the parties, and the filing stamp affixed by the clerk of the bankruptcy court.

   (3) An action before the appellate court which involves a party as a named debtor in a bankruptcy petition shall remain suspended as the result of the automatic stay imposed by 11 U.S.C. § 362 (1982) until some party shows that relief from the automatic stay has been granted. A showing regarding relief from the automatic stay shall include a detailed order, signed by the bankruptcy judge, which shall outline the relief granted by the bankruptcy court and shall state that the action, involving a subject matter otherwise within the jurisdiction of the bankruptcy court, may be prosecuted in the courts of the State of Nebraska. Such showing in the appellate court shall be made by motion under § 2-106.

   (4) If a debtor in bankruptcy is a party to a proposed compromise involving an appeal in the appellate court, any party to such compromise shall provide the appellate court with a certified copy of the bankruptcy judge's approval of the compromise, which order of approval shall state that the procedures of Fed. Bankr. R. 2002(a)(3) have been satisfied. After proof of such approval by the bankruptcy court, the appellate court may take appropriate action regarding the matter which is the subject of the compromise involving the debtor in bankruptcy as a party to an action pending in the appellate court.

Rule 11(E) and (F) amended May 28, 1992; Rule 11(F) amended March 31, 1999; Rule 11(B)(2)(i) amended May 17, 2000; Rule 11(B)(2) and (3), (E)(1), (5), and (5)(a) amended March 16, 2005; Rule 11(E)(5)(c) adopted March 16, 2005; Rule 11(B)(2)(j) amended November 22, 2006. Renumbered and codified as § 2-111, effective July 18, 2008; § 2-111(B)(1) amended November 19, 2008; § 2-111(B)(1) amended March 26, 2014; § 2-111(B)(2) amended October 22, 2014; § 2-111(B)(2) amended August 4, 2017, effective August 24, 2017; § 2-111(E)(7)-(8) adopted May 12, 2021; § 2-111 amended June 9, 2021, effective January 1, 2022; § 2-111(B)(2) amended November 17, 2021, effective January 1, 2022; § 2-111(E)(7) amended December 7, 2022.

unanimous

§ 2-112. Opinions.

§ 2-112. Opinions.

   (A) Release of Written Opinions. The court will prepare a written opinion in cases where the court believes explanation of its decision is required or that the case is of value as a precedent. Opinions are released as ordered by the court.

   (B) A copy of each opinion shall be sent electronically to all attorneys of record in a case and self-represented parties who have provided a valid email address to the Clerk. Paper copies of opinions shall be sent by U.S. mail only to self-represented parties who do not have a valid email address. Paper copies of opinions shall not be sent by U.S. mail to nonparties or interested persons in a case. A certified copy of each opinion shall be sent electronically by the Clerk via SCCALES to JUSTICE to the clerk of the trial court from which the appeal was taken.

   (C) Official Version. The official opinion of the court shall be the final, edited version which appears in bound Volumes 1 through 274 of the Nebraska Reports.

   For Volume 275 and all volumes thereafter of the Nebraska Reports, the official opinion of the court shall be the final, edited version which appears as certified on the Nebraska Appellate Courts Online Library.

§§ 2-112(B) and (C)(1)-(2) amended October 21, 2015; § 2-112 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 2-113. Motions for rehearing.

§ 2-113. Motions for rehearing.

   (A) Time. A motion for rehearing and brief in support must be filed within 10 days after the release of the opinion of the court or the entry of the order of the court disposing of the appeal. A motion for rehearing is not permitted following an order of the Supreme Court denying a petition for further review. A motion for rehearing which is timely filed in the Court of Appeals shall toll the time for filing a petition for further review. See § 2-102(F). The motion for rehearing and a brief in support are required to be filed. A motion to extend time to file the brief in support of the motion for rehearing may be requested by following the procedure set out in § 2-106(E), except that every request must be accompanied by a showing of good cause.

   (B) Form of Motion. The form of the motion for rehearing shall be as provided in § 2-103(A).

   (C) Contents of Motion. The motion for rehearing need only notify the court that the party filing the motion asks for a rehearing.

   (D) Contents of Brief. The brief in support of the motion for rehearing shall contain the following divisions, in the order indicated:

   (1) tables;

   (2) assignments of error;

   (3) propositions of law; and

   (4) argument.

   The assignments of error shall be set out in separate, numbered paragraphs, pointing out specifically any claimed mistakes or inaccuracies in statements of fact or law in the opinion, and any questions involved which the court is claimed to have failed to consider on the appeal.

   (E) Form of Brief. The brief in support of the motion for rehearing shall be in the same form as provided for all briefs in § 2-103(A) and (C). Briefs in response to the motion for rehearing shall generally follow the form of the brief in support of the motion for rehearing.

   (F) Response. Parties to the case not filing a motion for rehearing may respond to the motion for rehearing and brief in support of the motion within 10 days after the motion for rehearing is filed. A response to a motion for rehearing, or a brief in support, shall not assert a cross-appeal, but a party may separately move for rehearing within the original 10-day period as provided under this rule. If no response will be filed, parties may notify the Clerk in writing, and the motion will be submitted immediately.

   (G) Filing and Service. Motions for rehearing shall be filed and served as provided in § 2-103(B).

   (H) Submission. Oral argument is not permitted on a motion for rehearing. All motions for rehearing will be submitted after a response has been filed, if any, or after the time for filing a response has passed, except as provided in § 2-113(F).

   (I) Mandate. The mandate will not issue until the motion for rehearing has been acted upon, if briefs have been filed, or until the date for filing briefs in support of the motion for rehearing has passed.

   (J) Penalty for Delay. Any party filing a motion for rehearing who does not file the briefs in support of the motion for rehearing by the due date may be assessed all costs of the action.

   (K) Original Actions. This rule shall apply to original actions.

   (L) Briefs on Reargument. Either party may file additional briefs when reargument is ordered by the court. A brief so prepared and served, together with proof of service, shall be filed in the appellate court not less than 1 week before the case is submitted. Except as ordered by the court, no additional assigments of error or cross-appeals may be asserted.

Rule 13 amended May 28, 1992; Rule 13(G) amended October 17, 1995; Rule 13(A) amended May 29, 1997; Rule 13(A) amended September 23, 1998; Rule 13(A) amended December 15, 1999; Rule 13(B) amended March 22, 2006. Renumbered and codified as § 2-113, effective July 18, 2008; § 2-113(K) amended November 10, 2010;  §§ 2-113(A), (G), and (L) amended June 6, 2012; § 2-113(F) amended May 12, 2021; § 2-113 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 2-114. Mandates and taxation of costs.

§ 2-114. Mandates and taxation of costs.

   (A) Mandates.

   (1) Unless agreed by the parties and ordered by the court, no mandate will issue in any case during the time allowed for the filing of a motion for rehearing or petition for further review, or pending the consideration thereof.

   (2) Parties desiring to prosecute proceedings to the United States Supreme Court, and desiring an order staying the mandate, must make application within 7 days from the date of the filing of the opinion or other dispositive entry. The application must be accompanied by a written showing that a federal question is involved. If a motion for rehearing is filed, the application and showing shall be filed with the motion. If the application is granted, the court may require the giving of bond as a condition therefor.

   (3) A motion to recall a mandate must be filed in accordance with the provisions of § 2-106. The motion must be accompanied by a showing that no action has been taken on the mandate by the trial court. The opposing party may file objections to the motion to recall the mandate on or before the date of submission of the motion.

   (B) Costs.

   (1) The following costs are taxed in the Supreme Court and are itemized on the mandate:

   (a) Fees (Neb. Rev. Stat. §§ 33-103 and 33-103.01);

   (b) Transcript preparation fees (only in cases where appellant prevails);

   (c) Attorney fees; and

   (d) Other fees and costs as awarded by the court.

    (2) When unnecessary costs have been made by either party, the court may order the same to be taxed to the party making them, without reference to the disposition of the case.

   (3) At the time the mandate is issued, the Supreme Court Clerk shall send a statement to counsel for the costs which are due to the other party. Payment for costs due is to be made in accordance with Neb. Rev. Stat. § 25-1915.

COMMENT
   Costs which are to be paid to the opposing party must be paid to the clerk of the district court or originating tribunal, who then makes payment to the appropriate party.

   (4) A motion to retax costs may be filed in accordance with the provisions of § 2-106 if a party disagrees with the taxation of costs in a case.

Rule 14(A)(1), 14B(1)(a), and (B)(4) amended May 28, 1992. Renumbered and codified as § 2-114, effective July 18, 2008; § 2-114 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 2-115. Original actions; applications for leave to docket appeal filed by prosecuting attorney pursuant to § 29-2315.01; initial statutory proceedings for review in appellate courts.

§ 2-115. Original actions; applications for leave to docket appeal filed by prosecuting attorney pursuant to § 29-2315.01; initial statutory proceedings for review in appellate courts.

   (A) Original actions; how commenced.

   (1) An original action may not be commenced except by leave of court.

   (2) Application for leave to commence an original action shall be made by filing with the Supreme Court Clerk a verified petition setting forth the action. Applicant must also file with the Clerk a statement setting forth the basis of the court's jurisdiction and the reasons which make it necessary to commence the action here. No oral argument will be permitted except as may be ordered by the court.

   (B) Original actions; docketing the case.

   (1) All applications for leave of court to file an original action shall be recorded with an application status in SCCALES.

   (2) The docket fee provisions of Neb. Rev. Stat. § 33-103 and § 2-101(G) shall apply.

   (3) If the court accepts the application as an original action, the case status shall be changed to reflect the granting of the application. A second filing fee shall not be required.

   (4) Except where an action is filed electronically, upon the acceptance of the original action, the party making such application shall provide to the Clerk sufficient copies of the verified petition and any attachments for service with the summons. For electronically filed cases, see Neb. Ct. R. § 2-204(B) and (C).

   (C) Exception proceedings pursuant to § 29-2315.01.

   (1) For applications for leave to file an appeal pursuant to Neb. Rev. Stat. § 29-2315.01, the prosecuting attorney shall file the application with the Clerk of the Supreme Court and Court of Appeals as required by the statute, along with the Summary to Accompany the Application.  See appendix 4. The docket fee provisions  of Neb. Rev. Stat. § 33-103 and § 2-101(G) shall apply.

   (2) If the appellate court grants the State’s application for leave to file an appeal pursuant to Neb. Rev. Stat. § 29-2315.01, the provisions of Neb. Rev. Stat. § 25-1912 requiring a notice of appeal and docket fee shall thereafter apply.

   (D) Proceedings for review in appellate courts. Whenever a statute allows an aggrieved party to initiate a proceeding for review directly in one of the appellate courts, the party filing such petition shall provide to the Clerk sufficient copies of the petition and any attachments for service with the summons. For electronically filed cases, see Neb. Ct. R. § 2-204(B) and (C).

Rule 15(B)(2) amended May 28, 1992. Renumbered and codified as § 2-115, effective July 18, 2008; § 2-115(A)(2) amended June 6, 2012; § 2-115 amended June 12, 2019; § 2-115 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 2-116. Records.

§ 2-116. Records.

   (A) Records; Inspect in Person. All records available electronically through SCCALES may also be viewed at a device in the Clerk’s office. Appellate court records shall not be stored in paper form unless specifically provided for in this rule.

   (1) Transcripts and bills of exceptions. Any person is entitled to inspect the electronic transcript and bill of exceptions in the office of the Clerk at the computer terminal provided. Paper copies of a transcript or bill of exceptions shall not be prepared by the court staff unless the requestor pays for a copy of the requested record.

   (2) Exhibits.

   (a) Unless exhibits are included in an electronic bill of exceptions, court reporting personnel shall create a separate paper exhibits volume of the bill of exceptions as provided in § 2-105.02 for appellate court use on appeal. The paper exhibits volume may be inspected in the office of the Clerk but shall not be checked out or removed from the office.

   (b) Parties shall retain a copy of all exhibits to be included in the bill of exceptions on appeal.

   (c) Confidential or sealed exhibits shall not be inspected except by leave of the court.

   (3) Presentence Report. In all cases where a presentence report may be material on appeal, the defendant, his or her counsel, or counsel for the State may request the presentence report to be transmitted to the Clerk. The presentence report to be transmitted shall include the report prepared by probation, all materials submitted to the sentencing judge at or before sentencing, and any materials ordered by the sentencing judge to be included in the report at or before sentencing. In each instance, the trial court clerk shall notify probation with the appropriate trial court case number and appellate court case number. Probation shall then transmit the presentence report to the Clerk. Each page shall be consecutively numbered, with the number at the bottom of the page. The defendant, his or her counsel, or counsel for the State may examine the report at a computer terminal located in and provided by the office of the Clerk. For electronic access to the report by counsel, see Neb. Ct. R. § 6-1906(G).

   (B) Neb. Rev. Stat. § 27-1301 Child Pornography Exhibits. In all cases where exhibits constituting visual depiction of sexually explicit conduct involving a child, as defined by § 27-1301, may be material on appeal, such evidence shall be handled on appeal and controlled by the provisions of Neb. Ct. R. § 6-1801.

   (C) Return of Records to Trial Court. Exhibits volume(s) and Neb. Rev. Stat. § 27-1301 child pornography evidence shall be returned to the clerk of the trial court after the issuance of the mandate in a case. The Clerk may retain records in certain criminal homicide cases to facilitate microfilming of the records.

   (D) Records as Exhibits. Original Supreme Court or Court of Appeals records shall not be introduced as exhibits in any proceeding.

   (E) Microfilm and Scanned Records. Certain records which this court is keeping pursuant to Neb. Rev. Stat. § 29-2521.02 et seq. have been photographed on microfilm. Those records may be converted and stored as PDF or another durable medium as defined by Neb. Ct. R. § 2-201(D) and approved by the Nebraska Supreme Court. Future records shall be scanned and stored as a PDF or another durable medium as defined by Neb. Ct. R. § 2-201(D) and approved by the Nebraska Supreme Court. These records may be checked out or viewed by Nebraska District Court judges. These records shall not be introduced as evidence.

Rule 16(E) amended May 28, 1992; Rule 16(A) amended September 27, 2000; Rule 16(A) and (B) amended May 21, 2003. Renumbered and codified as § 2-116, effective July 18, 2008; § 2-116(B)(1)-(2) and (C) amended January 27, 2010; § 2-116(B)(1) amended June 6, 2012; § 2-116(B)(1) amended September 19, 2013; § 2-116 amended June 9, 2021, effective January 1, 2022; § 2-116(E) amended April 13, 2022.

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§ 2-117. Media coverage of proceedings before the Nebraska Supreme Court and the Nebraska Court of Appeals.

§ 2-117. Media coverage of proceedings before the Nebraska Supreme Court and the Nebraska Court of Appeals.

   (A) Definitions.

   (1) “Judicial proceeding” or “proceeding” as referred to in these rules shall include all public trials, hearings, or other proceedings in the Supreme Court and the Court of Appeals, except those specifically excluded by these rules.

   (2) “Expanded media coverage” includes broadcasting, televising, electronic recording, or photographing of judicial proceedings for the purpose of gathering and disseminating news to the public.

   (3) “Supreme Court” shall mean the Supreme Court of Nebraska.

   (4) “Chief Justice” shall mean the Chief Justice of the Supreme Court of Nebraska.

   (5) “Court of Appeals” shall mean the Nebraska Court of Appeals.

   (6) “Chief Judge” shall mean the Chief Judge of the Nebraska Court of Appeals.

   (B) General. Except as provided below, broadcasting, televising, recording, and photographing will be permitted in all judicial proceedings in the courtroom during sessions of the Supreme Court and the Court of Appeals, including recesses between sessions, under the following conditions:

   (1) There shall be no audio pickup or broadcast of conferences in a court proceeding between attorneys and their clients, between cocounsel, or between judges.

   (2) The quantity and types of equipment permitted in the courtroom shall be subject to the discretion of the Chief Justice within the guidelines set out in the accompanying rules.

   (3) Notwithstanding the provisions of any of these procedural or technical rules, the Chief Justice, or the Chief Judge as to the Court of Appeals, upon application, may permit the use of equipment or techniques at variance therewith, provided the application for variance is made at least 10 days prior to the scheduled hearing. Ruling upon such a variance application shall be in the sole discretion of the Chief Justice or the Chief Judge, as the case may be. Such variances may be allowed by the Chief Justice or the Chief Judge without advance application or notice if all counsel and parties consent.

   (4) The rights provided for herein may be exercised only by persons or organizations which are part of the news media.

   (5) These rules are designed primarily to provide guidance to media and courtroom participants and are subject to withdrawal or amendment by the Supreme Court at any time.

   (C) Preservation of Rights. Expanded media coverage of a proceeding shall be permitted in all judicial proceedings unless the court concludes, after objection and showing of good cause, that under the circumstances of the particular proceeding such coverage would materially interfere with the rights of the parties to a fair trial. The Chief Justice or the Chief Judge, when applicable, may, as to any or all media participants, limit or terminate photographic or electronic media coverage at any time during the proceeding in the event the Chief Justice or Chief Judge finds

   (1) that rules established under this order or additional rules imposed by the Chief Justice or Chief Judge have been violated or

   (2) that substantial rights of individual participants or rights to a fair trial will be prejudiced by such manner of coverage if it is allowed to continue.

   (D) Objections. A party to a proceeding objecting to expanded media coverage under these rules shall file a written objection, stating the grounds therefor, at least 3 days before commencement of the proceeding. All objections shall be heard and determined by the Chief Justice, or the Chief Judge as to the Court of Appeals, prior to commencement of the proceeding. Time for filing of objections may be extended or reduced in the discretion of the Chief Justice, or the Chief Judge as to the Court of Appeals, who may also in appropriate circumstances extend the right of objection to persons not specifically provided for in these rules.

   (E) Technical.

   (1) Equipment to be used by the media in the courtrooms during the proceeding must be unobtrusive and must not produce distracting sound. In addition, such equipment must satisfy the following criteria:

   (a) Still cameras are to be standard, professional quality, single-lens reflex or rangefinder 35 mm cameras, or twin-lens reflex 120 mm cameras in good repair. Motor-driven film advances and autowinders on still cameras are not allowed.

   (b) Television cameras are to be electronic and, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, and without distracting sound or light. Television cameras are to be designed or modified so that participants in the proceeding being covered are unable to determine when recording is occurring.

   (c) Microphones, wiring, and audio recording equipment shall be unobtrusive and of adequate technical quality to prevent interference with the proceeding being covered. No modifications of existing systems shall be made without approval by the Supreme Court after submission of a specific written proposal which shall include technical specifications and details of the proposed changes. Microphones for use of counsel and judges shall be equipped with off/on switches.

   (2) Other than light sources already existing in the courtroom, no flashbulbs or other artificial lighting device of any kind shall be employed in the courtroom.

   (3) The following limitations on the amount of equipment and number of photographic and broadcast media personnel in the courtroom shall apply:

   (a) At any one time, not more than one still photographer, using not more than two camera bodies and two lenses, shall be permitted in the courtroom during a proceeding.

   (b) Not more than one television camera, operated by not more than one person knowledgeable in its use, shall be permitted in the courtroom during any proceeding. Where possible, recording and broadcasting equipment which is not a component part of a television camera shall be located outside the courtroom.

   (c) Not more than one audio system shall be set up in the courtroom for broadcast coverage of a proceeding. Audio pickup for broadcast coverage shall be accomplished from any existing audio system present in the courtroom, if such pickup would be technically suitable for broadcast. Where possible, electronic audio recording equipment and any operating personnel shall be located outside the courtroom, except that an audio recorder which is a component part of the television camera operating in the courtroom may be used for audio pickup.

   (d) Where the above limitations on equipment and personnel make it necessary, the media shall be required to pool equipment and personnel. Pooling arrangements shall be the sole responsibility of the media, and neither the Supreme Court or the Court of Appeals nor their employees shall be called upon to mediate any dispute as to the appropriate media representatives authorized to cover a particular proceeding.

   (4) Equipment and operating personnel shall be located in, and coverage of the proceeding shall take place from, an area or areas within the courtroom designated by the Chief Justice or Chief Judge.

   (5) Television cameras and audio equipment may be installed in or removed from the courtroom only when court is not in session. In addition, such equipment shall at all times be operated from a fixed position. Still photographers and broadcast media personnel shall not move about the courtroom while a proceeding is in session, nor shall they engage in any movement which attracts undue attention. Still photographers shall not assume body positions inappropriate for spectators.

   (6) All still photographers and broadcast media personnel shall be properly attired and shall maintain proper courtroom decorum at all times while covering the proceeding.

Recodified effective July 18, 2008.

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§ 2-118. Waiver of time requirements.

§ 2-118. Waiver of time requirements.

   For good cause, the Supreme Court and the Court of Appeals may shorten the time within which any filing must be made or act must be done.

Rule 19 adopted March 1, 1995. Renumbered and codified as § 2-119, effective July 18, 2008; § 2-119 renumbered to § 2-118 June 9, 2021, effective January 1, 2022.

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Article 2: Electronic Filing, Service, and Notice System in Nebraska Trial and Appellate Courts.

Article 2: Electronic Filing, Service, and Notice System in Nebraska Trial and Appellate Courts.

[This Rule, adopted June 9, 2021 and effective January 1, 2022, contains all new language and replaces the former chapter 2, article 2.]

Appendix 1 - Certificate of depositing original, authenticated or certified documents

Appendix 2 - Motion to seal documents pursuant to Neb. Ct. R. § 2-210(C)

Appendix 3 - Confidential cover sheet

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§ 2-201. Definitions.

§ 2-201. Definitions.

   (A) Electronic Filing. Electronic filing is the transmission of pleadings, motions, and other documents (collectively documents) to the clerk of the trial or appellate court via the internet through the court-authorized service provider. Unless stated otherwise, reference to “filing” in any Nebraska Supreme Court or local court rule shall be presumed to mean electronic filing.

   (B) Electronic Service. Electronic service is the electronic transmission of documents filed in a case from the court-authorized service provider to a Nebraska attorney representing a party in a case, or where authorized, to a user who is not an attorney.

   (C) Electronic Notice. Electronic notice is the electronic transmission of notices, opinions, court entries, and any other dispositional orders or information from the court to all users.

   (D) Durable Medium. Durable medium shall be any information storage medium that is created by a durable process. A process shall be the combination of hardware, software, storage media, techniques, and procedures used to manage, create, store, retrieve, and delete information belonging to the party required to maintain the record. A process shall be durable if it meets the following criteria:

   (1) The process is capable of creating and storing information for the required records retention period.

   (2) The process can be migrated to a successor process when necessary and will retain all information available in the original process after migration to the successor process.

   (3) The process maintains the integrity of information in a readily accessible manner, makes it retrievable, makes it processable through an established usual or routine set of procedures using available hardware and software, and makes it accurately reproducible in a human-readable form.

   (4) The process provides for disaster recovery backups, which are periodically, depending on a retention schedule, verified for restorability and readability, and can be stored in a separate geographical location from the original information.

   (5) The process is demonstrated to create and maintain information for the retention period as specified, in an accurate, reliable, trustworthy, dependable, and incorruptible manner.

   (6) The process allows the removal of information when it reaches the end of its required retention period.

   (7) The process is documented so as to demonstrate to a reasonable person compliance with these criteria.

   (E) Portable Document Format. Documents to be filed must be generated from their electronic source documents (such as word processing files) in portable document format (PDF) that shall have the characteristics required by the court-authorized service provider. Stated another way, a user must convert the word processing document into a PDF using the appropriate software. All documents shall be easily readable. Any document that is not easily readable may be stricken by the court.

   (F) JUSTICE. Judicial User System To Improve Court Efficiency (JUSTICE) is the Nebraska Supreme Court’s Case and Financial Management System for Nebraska trial courts.

   (G) SCCALES. Supreme Court and Court of Appeals Legal Entries System (SCCALES) is the Nebraska Supreme Court’s Case and Financial Management System for Nebraska appellate courts.

   (H) System-To-System Transfer. System-To-System Transfer is the transfer by courts of information and documents within JUSTICE or SCCALES or between JUSTICE and SCCALES. At the discretion of the Chief Justice, System-To-System Transfers may be suspended in certain courts that are experiencing technical difficulties. Upon development of software and upon implementation and approval by the Nebraska Supreme Court, reference to JUSTICE herein may include other case-management systems maintained by any other court, commission, or tribunal in the State of Nebraska.

   (I) User. A user is a person or entity who is required to make use of one or more of the electronic services as defined in § 2-201. Any user who is not a Nebraska attorney may use electronic services only as expressly authorized by these rules.

   (J) Terminology. Reference in any Supreme Court or local rule to “filing”, “service”, or “notice” shall respectively mean electronic filing, electronic service, and electronic notice as defined by these rules as of the date of these rules.

   (K) Court-authorized service provider. The court-authorized service provider for the electronic filing and service system for Nebraska trial and appellate courts is Nebraska.gov.

   (L) Trial court. Under these rules, trial court shall include Nebraska county courts, district courts, and separate juvenile courts, but shall not include the Nebraska Workers’ Compensation Court, a state agency, commission, tribunal, or board, unless specifically referenced in a rule.

   (M) Signature for electronic filings. A filing made through a user’s electronic filing account with the court-authorized service provider and authorized by that user, together with that user’s name on a signature block, constitutes the user’s signature. A user is responsible for all filings made on his or her account, absent clear and convincing evidence of unauthorized use of the account.

§ 2-201 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-202. Mandatory electronic filing, electronic service and electronic notice.

§ 2-202. Mandatory electronic filing, electronic service and electronic notice.

   (A) Electronic Filing, Service, and Notice is mandatory for all Nebraska attorneys in all Nebraska trial and appellate courts unless specifically exempted pursuant to these rules. Electronic filing and service rules apply to non-attorneys only as provided by these rules.

   (B) Exemptions.

   (1) Until the electronic filing and service system is modified to permit initial electronic filing of an entry of appearance by new counsel representing a party to an adoption case, such new counsel shall be permitted to file an entry of appearance in such adoption case in paper form, by fax filing, or alternative electronic means. No other filings shall be permitted in such form or by such means at the same time as the filing of the entry of appearance, and all filings thereafter shall be through the electronic filing and service system. At such time as the electronic filing and service system is modified to permit initial electronic filing of such entry of appearances, this exemption shall have no further force or effect.

   (2) An attorney who is not otherwise required to register under these rules, but who is representing a party on a pro bono basis, may request exemption from the mandatory requirements on a case by case basis. A court may grant the request on a case by case basis and such order granting the request shall be made part of the record in each case where the exemption is allowed. No more than three such exemptions may be requested or granted in any calendar year.

   (3) An attorney who certifies that he or she solely provides pro bono legal services to others may request a no-cost, pro bono attorney account from the court-authorized service provider. Authorization shall be for the calendar year and may be renewable upon recertification by the attorney. Users with a pro bono attorney account shall comply with all other mandatory requirements under these rules.

   (C) These electronic filing, service, and notice rules recognize that documents in proceedings before the Nebraska trial and appellate courts shall be filed, served, noticed, and preserved in an electronic format in lieu of the traditional paper format and prescribe the practices and procedures for authorized users that shall be followed in connection with the filing and service of electronic documents and notices.

   (D) To the extent these rules are inconsistent with any other Nebraska Supreme Court or local rule, the rules in this article govern cases filed electronically on or after the effective date(s) of these rules. Stated another way, if another court rule permits a paper filing, or references a paper filing, the provisions of these rules still apply and require electronic filing and service by Nebraska attorneys and electronic notice by courts unless otherwise specifically excepted by these rules.

§ 2-202 amendments adopted June 9, 2021, effective January 1, 2022; § 2-202(B)(1) amended December 13, 2023.

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§ 2-203. Mandatory registration; authorized users; email addresses.

§ 2-203. Mandatory registration; authorized users; email addresses.

   (A) Any Nebraska attorney making any filing or appearance in a Nebraska trial or appellate court shall be required to register with the court-authorized service provider. Registration with the court-authorized service provider requires a separate annual maintenance fee as determined by the court-authorized service provider.

   (B) On and after the effective date of these rules, an attorney who has not registered under § 2-203(A) shall be deemed to have withdrawn as an attorney of record in each case for which an appearance was previously entered. Unregistered attorneys who are required to register under § 2-203(A) shall be required to comply with § 2-203(A) in order to proceed as attorney of record in any case.

   (C) Other Users. Non-attorney users may only file documents that do not require an attorney signature. As of the effective date of these rules, and when the technology is available, those listed in this subsection shall electronically file and serve all documents and receive notice from the courts electronically. These users include:

   (1) Pro Hac Vice. Attorneys admitted pro hac vice in a particular case pursuant to Neb. Ct. R. § 3-122. All electronic filings shall be done exclusively by Nebraska counsel with whom the attorney is associated.

   (2) Governmental Agencies. Governmental agencies approved by the Nebraska Supreme Court after registration with the court-authorized service provider.

   (3) Process Servers. Those ordered by statute or by court order to serve process.

   (4) Judicial Branch Officers. Probation officers and associate public guardians not licensed to practice law, unless the document requires an attorney’s signature.

   (5) Indian Child Welfare Act tribal representatives. For cases under the Indian Child Welfare Act, tribal representatives after registration with the court-authorized service provider.

   (6) Court reporting personnel. Court reporting personnel as defined by § 1-204 shall register with the court-authorized service provider. Those persons who create a verbatim record of judicial or quasi-judicial proceedings shall use the court-authorized service provider portal for filing a verbatim record with any court.

   (7) Mediation centers and online dispute resolution platforms approved by the Nebraska Supreme Court.

   (D) Email addresses.

   (1) Email addresses for all electronic services as defined herein offered by the court or its authorized service provider cannot exceed 50 characters. Only one email address per user will be permitted for notices sent by the court.

   (2) Notices from the court shall be sent electronically from the following email address: nsc.noreplycourtnotice@nebraska.gov. User email accounts should be set up to receive all emails from that email address. Do not reply to the above email address. No user may transmit documents to nsc.noreplycourtnotice@nebraska.gov.

   (3) Service correspondence shall be sent electronically from the following email address: ne- support@egov.com. User email accounts should be set up to receive all emails from that email address. Do not reply to the above email address. No user may transmit documents to ne-support@egov.com.

   (4) Until such time as a Nebraska attorney registers as required in subsection (A), notices from the court will be sent to the initial email address provided to the Nebraska Supreme Court Attorney Services Division pursuant to Neb. Ct. R. § 3-803(C). After registration with the court-authorized service provider, all email addresses for all electronic services shall be maintained through the attorney’s account with the court-authorized service provider.

   (5) Emails transmitted to a registered email address are presumed to have been delivered. The presumption may be rebutted only by clear and convincing evidence. 

   (E) Contact Information. Users are responsible for maintaining valid and up-to-date contact  information. When a user’s email address changes, the user shall promptly update all email addresses provided for all electronic services as defined in these rules offered by the court or its service providers. Service or notice upon an obsolete email address shall constitute valid service where the user has not updated his or her email address. Mere usage of a new or different email address in a filed document does not satisfy the requirements of this subsection for an update to the user’s email. No court staff may update contact information upon user request except as otherwise provided in these rules.

   (F) Failure to Register or maintain contact information. Failure by a required attorney to register for electronic services as provided in these rules, or to maintain valid and up-to-date contact information as provided for in subsection (E), may be enforced by any appropriate sanction or order of the trial court or appellate court, or by appropriate disciplinary procedure.

§ 2-203 amendments adopted June 9, 2021, effective January 1, 2022; § 2-203 amended November 17, 2021, effective January 1, 2022.

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§ 2-204. Electronic filing; initial pleading and summons; appearance of counsel.

§ 2-204. Electronic filing; initial pleading and summons; appearance of counsel.

   (A) Cases shall be commenced in the trial courts under Neb. Rev. Stat. § 25-501 through an electronic filing; however, service of the initial pleading and the summons shall not be made electronically.

   (B) Original actions shall be commenced in the Supreme Court through an electronic filing. Applications for leave to docket appeal filed by a prosecuting attorney pursuant to Neb. Rev. Stat. § 29-2315.01 shall be electronically filed by attorneys in the appellate court. Statutory proceedings for review by petition in the appellate courts shall be initiated through an electronic filing. Service of the initial filing and the summons shall not be made electronically.

   (C) The electronic filing of a complaint or other initial pleading from which printed copies can be made shall be deemed compliant with the requirement of Neb. Rev. Stat. § 25-504.01 for the plaintiff to supply copies of a complaint, and the plaintiff shall have consented to pay the reasonable expense of printing such copies. For electronically filed cases, the clerk shall print copies of the initial pleading for service with the summons, or shall return the summons electronically to the filing party for attachment of copies for service.

   (D) Appearance. Attorneys shall make an entry of appearance by filing a notice of appearance. If an attorney initially appears at a proceeding in open court and orally enters an appearance, he or she shall file an entry of appearance by the close of the next business day. An oral entry of appearance captured by the courtroom clerk which generates a journal entry showing such entry of appearance satisfies this requirement.

   (E) Users shall not submit documents or self-addressed, stamped envelopes for the purpose of receiving signed orders or file-stamped copies of documents back from the court in active cases. Clerks shall use electronic notice to notify parties of such court orders and filings. Nebraska attorneys may also utilize the court-authorized service provider account to find recent filings made in a particular case.

§ 2-204 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-205. Electronic service; certificate of service.

§ 2-205. Electronic service; certificate of service.

   (A) Electronic Service as defined in § 2-201(B) shall be used by Nebraska attorneys and other authorized non-attorney users for any electronically filed document, except for the initial pleading and summons.

   (B) All users shall use the system-generated Certificate of Service and not separately attach a Certificate of Service document to the filing. This system-generated certificate shall be deemed to comply with all applicable statutes.

   (C) If the system-generated Certificate of Service would be inaccurate, misleading, or incomplete, then the user shall file a supplemental Certificate to explain or reconcile the inaccuracy or to provide the missing information. The supplemental Certificate must be attached to the filing unless the filing has already occurred and shall not repeat accurate information from the system-generated Certificate.

§ 2-205 amendments adopted June 9, 2021, effective January 1, 2022; § 2-205 amended November 13, 2024, effective January 1, 2025.

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§ 2-206. Time of filing and time of service.

§ 2-206. Time of filing and time of service.

   (A) Time of Filing. All documents electronically received by the clerk by 11:59:59 p.m. in the local time zone where the court is located shall be deemed to have been filed on that date.

   (B) Time of Service. All documents electronically received by the court-authorized service provider for electronic service by 11:59:59 p.m. in the local time zone where the court is located shall be deemed to have been served on that date.

   (C) The location of the Clerk of the Supreme Court and Court of Appeals is at Lincoln, Lancaster County, Nebraska.

   (D) For all county court and district courts, the location of the court is deemed to be at the county seat of the county where the action or proceeding is filed.

§ 2-206 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-207. Electronically filing original documents.

§ 2-207. Electronically filing original documents.

   (A) Courts shall accept an accurate copy (duplicate) of an original, certified, or authenticated paper document through electronic filing.

   (B) For cases where a statute requires the original, certified, or authenticated paper document to be filed with the clerk, the filer shall make the duplicate PDF of the original, certified, or authenticated paper document as outlined in subsection (C) below, and submit the original, certified, or authenticated paper document to the clerk within the time prescribed by statute.

   (C) The filer shall scan the original, certified, or authenticated paper document into a PDF and electronically file the scanned PDF duplicate along with the relevant pleadings. The filer shall include a certificate with the scanned PDF duplicate stating the filer has or had physical possession of the original, certified, or authenticated paper document, and will separately deliver the original, certified, or authenticated paper document to the clerk of the court within the time prescribed by statute. See Appendix 1. If a statute allows a certification to be included in the application commencing the action, that certification satisfies the requirements of this rule.

   (D) Upon receipt of the original, certified, or authenticated paper document, the clerk of the court shall make an entry in JUSTICE or SCCALES noting receipt of the original, certified, or authenticated paper document. If the clerk receives the original, certified, or authenticated paper document before commencement of the case, the clerk shall make the JUSTICE or SCCALES entry for the paper document noting the actual date of receipt of the original, certified, or authenticated paper document upon receipt of the duplicate electronic document.

   (E) The clerk shall hold the original, certified, or authenticated paper document in a secure location for as long as required by the records retention schedule, other applicable statute, or court order.

   (F) Any person may request, and shall be granted permission to inspect the original, certified, or authenticated paper document in the office of the clerk of the court.

§ 2-207 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-208. Electronic notice; court documents served on registered attorneys, pro hac vice attorneys, and non-attorney users.

§ 2-208. Electronic notice; court documents served on registered attorneys, pro hac vice attorneys, and non-attorney users.

   (A) Clerks of court shall transmit orders, notices, and other court entries via electronic notice to all attorneys, attorneys admitted pro hac vice, and non-attorney users who have provided email addresses pursuant to this subsection to the clerk of the court unless other law, statute, or court rule requires transmittal by another method.

   (B) Clerks of court shall comply with the system-generated certificate of service attached to the court-issued document. Where a document is required by statute or rule to be served by an attorney or party on another party, court staff shall not serve any such document.

   (C) Non-attorney user notice from a court.

   (1) Non-attorney users who are not registered with the court-authorized service provider and have email capability shall register with a court to receive notice from the court in any case involving that non-attorney user. Such registration shall be completed prior to the filing of any document by the user or within 10 days after receipt of a notice from the court providing the email registration form, whichever occurs first. The user shall submit the form to the court where the case is filed or the appellate court where the appeal is pending.

   (2) If a non-attorney user claims to lack email capability, such user shall demonstrate to the court why it is unreasonable to expect the user to obtain such capability.

   (D) Pro Hac Vice notice from a court. Attorneys admitted pro hac vice in a particular case pursuant to Neb. Ct. R. § 3-122 shall receive notice from the clerk of the court in which he or she is appearing.

   (E) Email addresses shall be in compliance with § 2-203(D). Any change to an email address by a non-attorney user must be made in writing to the clerk of the court where the case is filed or the appeal is pending. An attorney shall update any change in email address through his or her account with the court-authorized service provider.

§ 2-208 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-209. Maintaining originals.

§ 2-209. Maintaining originals.

   Where a document contains original signatures other than the signature of the attorney filing the document, the document shall be maintained by the filer. Where these rules require a party to maintain a document, the filer is required to maintain the document for a period of 2 years after the final resolution of the action, including the final resolution of all appeals.

§ 2-209 amendments adopted June 9, 2021, effective January 1, 2022.

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§ 2-210. Protected information; redacted documents; and documents filed under seal.

§ 2-210. Protected information; redacted documents; and documents filed under seal.

   (A) Protected information in court records governed by any statute or court rule, including, but not limited to, Neb. Ct. R. §§ 6-1464, 6-1466, 6-1521, 6-1524, and 6-1701, shall not be included in any public filing. By filing protected information in a public document without redaction or failing to request sealing under subsection (C) below, a filer waives the protections set forth in statutes or rules.

   (B) Documents that contain redacted information shall be filed in redacted form. If the filing is unable to be understood with the redacted information, then the filer may proceed under subsection (C) below.

   (C) Where the filer seeks to have the documents, other than those in subsections (A) or (B) above, filed under seal pursuant to an order of the court, the filer shall first file a “motion to seal documents” with the court that contains a description of the document or information sought to be sealed and the rationale for sealing such document or information. See Appendix 2. After the court has entered an order granting the motion and provided a confidential cover page, the filer shall file the document, including the required confidential cover page. No such documents shall be submitted for filing until the court rules on the motion to seal.

   (D) A filer shall file a separate motion for each document or information sought to be sealed, and shall not request multiple documents be sealed within a single motion.

§ 2-210 amendments adopted June 9, 2021, effective January 1, 2022; § 2-210(C) and (D) amended November 17, 2021, effective January 1, 2022.

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§ 2-211. Signatures on electronic filings and electronic notary stamp.

§ 2-211. Signatures on electronic filings and electronic notary stamp.

   (A) How made.

   (1) An electronically filed document which requires a user’s signature shall be as provided in § 2- 201(M). A non-attorney user shall place only his or her signature on an electronically filed document and shall not purport to sign on behalf of anyone else.

   (2) A notary stamp on a document to be electronically filed may be depicted by using the format “seal, notary public, State of [state name],” and commission expiration date. Signatures and electronic notary stamps shall satisfy signature and certification requirements set out by statute or court rule. If the notarial commission of the particular notary public whose seal is being depicted is limited by county, the filing party shall use the electronic stamp format “seal, notary public, State of [state name], County of [county name].”

   (3) Other seals or stamps, such as those of courts, public bodies, agencies, or officials, or corporations, may be depicted in an electronic filing by using the format “seal, [alphanumeric content of seal].”

   (4) Signatures of parties, witnesses, and notaries, and notary stamps or other seals, shall not be typed or otherwise depicted on filed documents unless the filing party has possession of the original document or documents bearing such signatures and stamps.

   (B) Signatures on documents by court officials shall be as provided by Neb. Ct. R. § 1-301 et seq., Digital Signatures by Court Personnel.

   (C) When a signature is affixed to a document or is deemed to be affixed to a document, that signature shall have the same effect as a handwritten signature of the person whose name appears or is deemed to appear thereon.

   (D) In the event a document is filed by an attorney who has not previously appeared in the proceeding in which said document is filed, the document shall be accompanied by a notice of appearance by the filer for the party on whose behalf the document was filed.

   (E) If a document requires multiple signatures, the filer of the document shall list thereon the names of all signatories, which shall serve as the filer’s attestation that each of the other signatories has concurred  in the filing of the document. In addition to the names of all signatories, the filer shall list each signatory’s email address, mailing address, and telephone number.

   (F) Signatures on documents filed electronically shall be subject to all other requirements and consequences of Neb. Ct. R. Pldg. § 6-1111 and Neb. Rev. Stat. § 25-824 et seq.

   (G) A document that requires the signatures of opposing parties or counsel (such as a stipulation) may be electronically filed by typing the names of each signing party or counsel, but the filer is required to first obtain the original signatures of all opposing parties or counsel on a document, or obtain approval of all opposing parties or counsel in writing.

§ 2-211 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

§ 2-212. Rejection of document or record; emailing and faxing documents not allowed.

§ 2-212. Rejection of document or record; emailing and faxing documents not allowed.

   (A) Rejection of document or record.

   (1) If a court rejects or declines a document due to noncompliance with an applicable rule, the clerk shall notify the user of the reasons for the rejection. The user may file and serve, where applicable, a corrected document. Rejection due to noncompliance with an applicable rule shall not extend the mandatory or statutory time for the filing of such document.

   (2) If a court rejects or declines a document transmitted through System-To-System-Transfer from another court due to noncompliance with an applicable rule, the clerk of the receiving court shall notify the clerk of the transmitting court of the reasons for the rejection.

   (B) It is the responsibility of the user to keep a record of the notice of rejection to verify the date and time of the original submission.

   (C) Emailing a document to the clerk of court or court staff shall not constitute a court filing and will not generate a file stamp.

   (D) Faxing a document to the court, except as provided by §§ 2-213(C) or 6-601(B), shall not constitute a court filing and will not generate a file stamp.

   (E) Expanded news media requests made by the media pursuant to Neb. Ct. R. § 6-2004(B)(1) are excepted from the prohibition against emailing and faxing documents to the court clerks.

§ 2-212 amendments adopted June 9, 2021, effective January 1, 2022; § 2-212(D) amended May 4, 2022.

unanimous

§ 2-213. Transmission technical problems; corrective order.

§ 2-213. Transmission technical problems; corrective order.

   (A) Upon satisfactory proof that filing, service, or notice sent by a court of a document is not completed because of

   (1) an error in the transmission of the document to the court-authorized service provider which was unknown to the sending party or

   (2) a failure to process the electronic filing when received by the clerk, the court may enter an order permitting the document to be filed as of the date it was first attempted to be sent electronically.

   (B) No order may be entered under these rules which expands the statutory time period for perfecting an appeal or other terminating motion unless there is an affirmative showing by clear and convincing evidence that the failure to make a timely filing was due solely to internal transmission error by the court-authorized service provider or a processing error by the clerk.

   (C) Extended system unavailability. Only in the event of an extended period longer than twenty-four hours where the system is not available, may the user take a paper document to the clerk of the court during regular business hours for filing. If the court maintains a fax machine, the user may make such filing by fax machine. In such instances, the user is responsible for service of the document on parties entitled to service. This subsection does not apply to unavailability of any user’s internet service or computer equipment.

§ 2-213 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

§ 2-214. Good faith compliance; waiver of certain defects.

§ 2-214. Good faith compliance; waiver of certain defects.

   Upon a showing of substantial good faith compliance with these rules, the court may waive nonjurisdictional defects in filing or service if it finds that no harm has occurred to any party as a result of the defect.

§ 2-214 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

§ 2-215. Records; public view.

§ 2-215. Records; public view.

   (A) All filings in Nebraska trial or appellate courts are public unless restricted by law, court rule, or court order. See, also, Chapter 1, Article 8, Public Access to Electronic Court Records and Information.

   (B) Presentence or predisposition report. Use of the electronic presentence or predisposition report shall be governed by Neb. Ct. R. § 6-1906.

   (C) Neb. Rev. Stat. § 27-1301 Child Pornography Exhibits. In all cases where exhibits constituting visual depiction of sexually explicit conduct involving a child, as defined by § 27-1301, such evidence shall be handled and controlled by the provisions of Neb. Ct. R. § 6-1801 and shall not be electronically filed or transmitted electronically to or from any court.

   (D) Record review. Any person is entitled to inspect court records in electronic form at the public terminal or device in the office of the clerk of the trial court, or for appeals, at the public terminal or device in the office of the Clerk of the Supreme Court and Court of Appeals. Court records may also be inspected at the Nebraska State Library located in the Nebraska State Capitol, at the public terminal or device. Paper copies of a court record shall not be prepared by court staff unless the requestor pays for a copy of the record or a portion of the requested record. This subsection does not apply to confidential records or records ordered by the court to be sealed.

   (E) Court records maintained in paper form that are not yet converted to electronic form are not covered under these rules.

§ 2-215 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

§ 2-216. Optional non-attorney users.

§ 2-216. Optional non-attorney users.

   (A) Once technology allows and upon approval by the Nebraska Supreme Court, non-attorney users may register with the court-authorized service provider and pay the registration fee upon the following conditions:

   (1) The non-attorney user does not claim in forma pauperis status pursuant to Neb. Rev. Stat. § 25-2301 et seq. Registration fees with the court-authorized service provider shall not be waived and docket or filing fees shall be paid by the non-attorney user;

   (2) The non-attorney user has access to the internet and a valid email address.

   (B) Upon registration with the court-authorized service provider, the non-attorney user shall electronically file all documents with Nebraska courts, and shall receive electronic service and notice as provided under these rules.

   (C) Termination of registration. To terminate registration and revert to paper filings, the non-attorney user shall notify in writing the court-authorized service provider and the clerk of every court where filings were made.

   (D) Non-attorney users are held to the same standards as a licensed attorney regarding registration with the court-authorized service provider and use of the electronic filing, service, and notice systems.

   (E) Nothing in these rules authorizes a non-attorney user to engage in the practice of law as defined in Neb. Ct. R. § 3-1001.

   (F) These rules shall not be construed to prohibit filings submitted to the court-authorized service provider by means of a portal approved by the Nebraska Supreme Court for self-represented litigants.

§ 2-216 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

§ 2-217. Certifications and certificates by licensed attorneys.

§ 2-217. Certifications and certificates by licensed attorneys.

   (A) Wherever consistent with applicable statutes, these rules contemplate that instead of providing an affidavit, an attorney shall provide a certificate or be required to certify to the truth or accuracy of a statement or filing. Wherever any court rule requires a certificate of an attorney or requires an attorney to certify to the truth or accuracy of any statement or filing, the duty imposed by Neb. Ct. R. of Prof. Cond. § 3-503.3(A)(1) applies to such certificate or certification.

   (B) Before making such certificate or certification, the attorney shall use due diligence to determine the truth or accuracy of the matter certified.

§ 2-217 amendments adopted June 9, 2021, effective January 1, 2022.

unanimous

Article 3: Interim Rules on Electronic Exhibits System in Nebraska Courts.

Article 3: Interim Rules on Electronic Exhibits System in Nebraska Courts. unanimous

§ 2-301. Purpose and scope.

§ 2-301. Purpose and scope.

   (A) It is the intent of the Nebraska Supreme Court that where possible and when technology is available, exhibits used as evidence at trial and other evidentiary proceedings in the State of Nebraska shall be submitted, offered, viewed, presented, published, and stored in electronic format.

   (B) The Nebraska Supreme Court hereby creates and authorizes the official Nebraska Electronic Exhibits System for use by parties, court staff, and judges to stage, submit, mark, offer, receive, and store electronic exhibits for use in trial and other evidentiary proceedings. No other platform, website, application, or portal may be referred to as the Electronic Exhibits System (E-Exhibits System). This rule recognizes that some Nebraska trial courts are receiving, offering, viewing, presenting, publishing, and storing exhibits in electronic format. This interim rule does not prohibit those courts from using other electronic means to facilitate the use of electronic exhibits.

   (C) Scope. The E-Exhibits System is limited to Nebraska trial courts and is not available, nor do these rules apply, to any board, commission, quasi-judicial entity, or the Nebraska Workers’ Compensation Court.

§ 2-301 adopted September 26, 2023.

unanimous

§ 2-302. Authority.

§ 2-302. Authority.

   Use of the E-Exhibits System in evidentiary and trial proceedings is limited to a pilot project beginning on the date of adoption of this rule, in trial courts where the technology is available, and as authorized by the Nebraska Supreme Court. A schedule shall be implemented by the Administrative Office of the Courts and Probation and shall inform the public of the trial courts where the E-Exhibits System may be used.

§ 2-302 adopted September 26, 2023.

unanimous

§ 2-303. Limitations.

§ 2-303. Limitations.

   (A) Child Pornography. Use of the E-Exhibits System is strictly prohibited where any proposed exhibit falls within Neb. Rev. Stat. § 27-1301. Such evidence and exhibits shall be controlled by the provisions of Neb. Ct. R. § 6-1801 et seq.

   (B) Use of the E-Exhibits System in trial and other evidentiary proceedings when authorized by the Nebraska Supreme Court is left to the discretion of the trial judge for specific use in specific cases.

§ 2-303 adopted September 26, 2023.

unanimous

§ 2-304. Trial court procedure.

§ 2-304. Trial court procedure.

   (A) The parties, court staff, and judge shall be provided with specific training, instructions, and access to the E-Exhibits System when an authorized court is allowed to use the E-Exhibits System.

   (B) The authorized court shall notify all parties prior to requiring use of the E-Exhibits System in any evidentiary proceeding or trial. Any objection to the use shall be heard and considered by the judge, taking into account access to equipment, internet capabilities, lack of technical expertise, and the interests of justice.

   (C) An authorized court may require parties to provide paper or other physical media copies of exhibits simultaneously with use of the E-Exhibits System.

   (D) The authorized court at any time during a trial or evidentiary proceeding may halt the required use of the E-Exhibits System for malfunction, for lack of sufficient internet or other technology, or when halting the use serves the interests of justice.

§ 2-304 adopted September 26, 2023.

unanimous

CHAPTER 3: ATTORNEYS AND THE PRACTICE OF LAW

CHAPTER 3: ATTORNEYS AND THE PRACTICE OF LAW

(cite as Neb. Ct. R. §, unless otherwise noted)

unanimous

Article 1: Admission Rules for the Practice of Law.

Article 1: Admission Rules for the Practice of Law. unanimous

Preamble.

Preamble.

   These Admission requirements provide guidance to applicants on the procedures for the admission to the practice of law in Nebraska.

Preamble amended February 12, 2020.

unanimous

§ 3-100. Supreme Court jurisdiction.

§ 3-100. Supreme Court jurisdiction.

   (A) The Supreme Court exercises jurisdiction over all matters 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 practice of law.

   (B) Every attorney admitted to practice in the State of Nebraska shall pay a bar admissions assessment for each calendar year from January 1 to December 31, payable in advance and subject to a late fee if paid after January 20 of each year, in such amount as may be fixed by the Court. Such assessment shall be used to defray the costs of bar admissions  administration and enforcement as established by these rules. The annual assessment  shall be paid to the Attorney Services Division of the Nebraska Supreme Court through the Court's online system. Different classifications 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 the State of Nebraska shall not pay a bar admissions assessment 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 provided in Neb. Ct. R. § 3-803(E).

§ 3-100 amended December 3, 2013, effective January 1, 2014; § 3-100(B) amended March 19, 2014; § 3-100(B) amended February 12, 2020.

unanimous

§ 3-101. Definitions.

§ 3-101. Definitions.

   (A) Approved law school. "Approved law school" is one which, at the time of the applicant's graduation, is approved by the American Bar Association pursuant to its Standards and Rules of Procedure for Approval of Law Schools.

   (B) Adverse decision. "Adverse decision" means 

   (1) a denial by the Bar Commission of an applicant’s request for admission or permission to sit for a bar examination; or

   (2) a denial by the Bar Commission of a request for special testing accommodation; or

   (3) a failure to meet the required character and fitness as determined by the Bar Commission upon an application:

   (a) for reinstatement after an administrative suspension under § 3-803(F)(2),

   (b) for reinstatement after resignation under § 3-119(E), or

   (c) to move from inactive membership to active membership status under § 3-803(B)(2).

   (4) An adverse decision does not include a failure to achieve a passing score on the bar examination, denial of waiver of application requirements, administrative withdrawal, or rejection by the director of an application for admission by examination under § 3-114.

   (C) Applicant. "Applicant" means either a motion applicant or an examination applicant.

   (D) Motion applicant. "Motion applicant" means any person who is licensed and is active and in good standing before the highest court of another state, territory, or district of the United State preceding application for admission to the bar of Nebraska and satisfies the requirements of Neb. Ct. R. § 3-119 at the time of filing his or her application for admission to practice law in this state. 

   (E) Examination applicant. "Examination applicant" means any person who has graduated from an approved law school other than a motion applicant.

   (F) Court or Supreme Court. "Court" or "Supreme Court" means the Supreme Court of the State of Nebraska.

   (G) State. "State" means State of Nebraska.

   (H) Commission. "Commission" means the Nebraska State Bar Commission.

   (I) MBE. "MBE" means the Multistate Bar Examination provided by the National Conference of Bar Examiners.

   (J) MEE. "MEE" means the Multistate Essay Examination provided by the National Conference of Bar Examiners.

   (K) MPRE. "MPRE" means the Multistate Professional Responsibility Examination provided by American College Testing.

   (L) MPT. "MPT" means the Multistate Performance Test provided by the National Conference of Bar Examiners.

   (M) UBE. "UBE" means the Uniform Bar Examination provided by the National Conference of Bar Examiners. The UBE is composed of the MEE, MPT, and MBE.

   (N) NCBE. "NCBE" means the National Conference of Bar Examiners.

   (O) Rules or These Rules. "Rules" or "These Rules" means §§ 3-100 through 3-129 of the Rules Relating to Admissions.

   (P) Transcript. "Transcript" means a duly authenticated copy of courses and credits earned demonstrating the completion of educational qualifications for admission to the practice of law in the State of Nebraska.

   (Q) Substantially engaged in the practice of law. "Substantially engaged in the practice of law" means primarily engaged in legal work performing any combination of the following:

   (1) The private practice of law as a sole practitioner or as an attorney employee of, or partner or shareholder in, a law firm, professional corporation, legal clinic, legal services office, or similar entity; or

   (2) Employment as an attorney for a corporation, partnership, trust, individual, or other entity with the primary duties of:

   (a) Furnishing legal counsel, drafting documents and pleadings, and interpreting and giving advice with respect to the law; or

   (b) Preparing cases for presentation to or trying before courts, executive departments, or administrative bureaus or agencies;

   (3) Employment as an attorney in the law offices of the executive, legislative, or judicial departments of the United States, including the independent agencies thereof, or of any state, political subdivision of a state, territory, special district, or municipality of the United States, with the primary duties of:

   (a) Furnishing legal counsel, drafting documents and pleadings, and interpreting and giving advice with respect to the law; or

   (b) Preparing cases for presentation to or trying cases before courts, executive departments, or administrative bureaus or agencies;

   (4) Employment as a judge, magistrate, hearing examiner, administrative law judge, law clerk, or similar official of the United States, including the independent agencies thereof, or of any state, territory, or municipality of the United States, with the duties of hearing and deciding cases and controversies in judicial or administrative proceedings, provided such employment is available only to an attorney; or

   (5) Employment as a teacher of law at a law school approved by the American Bar Association throughout the applicant's employment; or

   (6) In the event that the applicant has not served for a full 3 of the last 5 years with any of the entities listed in subsections (1) through (5) above, for purposes of this section, the applicant may use any combination of subsections (1) through (5) above.

   (R) Active and in good standing. An applicant who is "active and in good standing" means an applicant who is admitted to the bar of another state and is not disbarred, is not under disciplinary suspension, has not resigned from the bar of such other state while under disciplinary suspension or while under disciplinary proceedings, or is not the subject of current or pending disciplinary proceedings, or who, having been disbarred or suspended, has been duly and fully reinstated.

   (S) Director. "Director" shall mean the director of the Bar Commission and director of admissions. The director is the Clerk of the Nebraska Supreme Court.

Rule 1 amended February 10, 1993. Renumbered and codified as § 3-101, effective July 18, 2008; § 3-101 amended January 11, 2012, effective January 1, 2013; § 3-101 amended July 25, 2013, effective August 1, 2013; § 3-101(P) amended January 14, 2015; § 3-101(P)(6) amended November 30, 2016; § 3-101(C), (D), (P), and (R)  amended February 12, 2020; § 3-101(B) amended October 28, 2020; § 3-101(R) amended April 17, 2024; § 3-101 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-102. Nebraska State Bar Commission; terms; duties.

§ 3-102. Nebraska State Bar Commission; terms; duties.

   (A) The Supreme Court shall appoint a commission composed of six lawyers who are members of the Nebraska State Bar Association to make recommendations to the Court regarding applicants for admission to practice law in the State of Nebraska. One commissioner is selected from each Supreme Court judicial district. Each commissioner is appointed for a term of 6 years. Each commissioner may serve two full terms. In the event of a vacancy, the Supreme Court may appoint a commissioner to fill any unexpired term. A commissioner from each Supreme Court judicial district shall be appointed every 6 years beginning with the following schedule:

First Judicial District

2021

Second Judicial District

2020

Third Judicial District

2019

Fourth Judicial District

2022

Fifth Judicial District

2018

Sixth Judicial District

2023

A Commissioner appointed to fill a vacancy is not precluded from serving two additional full terms.

   (B) The Commission so appointed will, following application for admission by motion, or following an application for admission by examination, examine proofs for qualification filed in accordance with these rules and may direct the director of admissions to make further investigation as to the qualifications of any applicant as it deems necessary. The Commission shall make the final recommendation to the Supreme Court as to admission. The Commission will examine examination applicants upon the subjects selected by the NCBE for the Multistate Essay Examination (MEE), the Multistate Performance Test (MPT), and the Multistate Bar Examination (MBE). The method of conducting the examinations shall be determined by the Commission in its discretion, consistent with the procedures established by the NCBE. The purpose of the examination will be to determine whether an individual examination applicant is qualified and competent to be permitted to practice law in the State of Nebraska. The scores for passing the examination will be established by the Supreme Court.

   (C) The Supreme Court will select one of the Commission members as chair, who shall preside at meetings of the Commission and who shall be entitled to vote on any matter before the Commission. The Commission may select a vice-chair to preside at the meetings in the absence of the chair.

   (D) Commissioners may recuse themselves for any conflict of interest involving an applicant. Commissioners shall inform the chair and the director of the existence of any conflict of interest.

   (E) Each member of the Commission is authorized to administer oaths in any proceeding before the Commission on matters relative thereto and has the power in such matters to subpoena witnesses, to subpoena documents, and to take depositions.

   (F) The Commission may employ counsel in connection with any matter pertaining to an applicant and, as provided herein, may employ consultants who may provide the Commission with advice on matters involving specialized knowledge bearing on an applicant.

Rule 2 amended December 29, 1993; effective March 1, 1994. Renumbered and codified as § 3-102, effective July 18, 2008; § 3-102 amended July 25, 2013, effective August 1, 2013; § 3-102(A) and (B) amended February 12, 2020.

unanimous

§ 3-103. Director of admissions; duties.

§ 3-103. Director of admissions; duties.

   (A) The Director of Admissions shall be the Clerk of the Nebraska Supreme Court. The director shall serve under the supervision of the Court and perform such duties for the Commission as these Rules may require. The director shall not be a member of the Commission, but shall, for purposes of these Rules, act as the director of the Bar Commission and director of admissions (director).

   (B) The director shall be responsible for the administrative functions of the Commission as directed.

   (C) As directed and delegated by the Commission, the director may make the initial determination as to whether an application for admission meets the admission requirements established in Neb. Ct. R. §§ 3-113, 3-114, and 3-119.

Rule 3 amended July 28, 1998; Rule 3(C) amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-103, effective July 18, 2008; § 3-103 amended July 25, 2013, effective August 1, 2013; § 3-103 amended December 3, 2013, effective April 1, 2014; § 3-103 amended February 12, 2020; § 3-103(A) and (B) amended April 17, 2024; § 3-103 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-104. Meetings of Commission.

§ 3-104. Meetings of Commission.

   The Commission shall hold regular and special meetings at times and places to be fixed by the Commission and shall provide notice to each Commissioner. The presence at a meeting of four or more Commissioners shall constitute a quorum. Commissioners may appear by telephone or by other electronic means, and such appearance shall constitute attendance at a meeting for purposes of establishing a quorum.

§ 3-104 amended July 25, 2013, effective August 1, 2013.

unanimous

§ 3-105. Records.

§ 3-105. Records.

   (A) The director shall have general charge of the records and files of the Commission and of all property of the Commission. The director shall keep a permanent, complete digital file containing all applications for admission to the bar.

   (B) Fingerprint reports supplied by the Nebraska State Patrol shall be retained only until a final decision is rendered on admission of an applicant at which time the record shall be destroyed. In no event should the fingerprint report be electronically stored.

   (C) The director shall keep minutes of the proceedings of the Commission.

Rule 5(B)(3) eliminated February 10, 1993; Rule 5(C) amended May 22, 1996; Rule 5(D) and (E) amended July 28, 1998; Rule 5(E) amended May 23, 2001; Rule 5(C) amended January 29, 2003; Rule 5(A)(1) amended May 13, 2004; Rule 5(A)(5) adopted February 9, 2005. Renumbered and codified as § 3-105, effective July 18, 2008; §§ 3-105(A)(3)(a)-(c), and (4)-(7) amended January 11, 2012, effective January 1, 2013; § 3-105 amended July 25, 2013, effective August 1, 2013; § 3-105 amended February 12, 2020.

unanimous

§ 3-106. Communications in official confidence; immunity.

§ 3-106. Communications in official confidence; immunity.

   The records, papers, applications, and other documents containing information collected and compiled by the Commission, its members, 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, the director, and all Commission employees, agents, or representatives, and the director, employees, agents, or representatives of the Nebraska Lawyers Assistance Program are immune from all civil liability for damages for conduct and communications occurring in the performance of and within the scope of the Commission's and the Nebraska Lawyers Assistance Program'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 and the Nebraska Lawyers Assistance Program by any person or entity, firm, governmental authority, or institution, are privileged, and civil suits for damages predicated thereon may not be instituted.

§ 3-106 amended April 13, 2011, effective July 1, 2011; § 3-106(F) amended July 13, 2011; § 3-106 amended July 25, 2013, effective August 1, 2013'; § 3-106 amended December 3, 2013, effective April 1, 2014; § 3-106 amended September 3, 2025.

unanimous

§ 3-107. Fees; per diem and reimbursement of expenses of Commission.

§ 3-107. Fees; per diem and reimbursement of expenses of Commission.

   (A) Each applicant, with the filing of the application, must pay the fee prescribed by the Nebraska Supreme Court. Application fees will be used for administrative expenses and costs incurred by the Commission in carrying out its duties.

   (B) Commissioners are entitled to receive reimbursement for all reasonable expenses incurred in the performance of their duties, and a per diem allowance in an amount to be fixed by the Supreme Court.

   (C) The Commission may request a change in the per diem amount and shall submit such request to the Supreme Court for approval.

§ 3-107 amended July 25, 2013, effective August 1, 2013; § 3-107 amended February 12, 2020.

unanimous

§ 3-108. Commission finances.

§ 3-108. Commission finances.

   The Commission shall be informed by the director twice per year of the status of the Commission's finances. Based on the Commission's finanical status, it may recommend to the Supreme Court changes to application fee amounts.

§ 3-108 amended January 11, 2012, effective January 1, 2013; § 3-108 amended July 25, 2013, effective August 1, 2013; § 3-108 amended May 4, 2016; § 3-108 amended February 12, 2020.

unanimous

§ 3-109. Disaster preparation.

§ 3-109. Disaster preparation.

   The Commission shall adopt a disaster preparation plan to determine the appropriate procedures to conduct ongoing operations in the event of a natural or manmade disaster. (Appendix D).

§ 3-109 amended January 11, 2012, effective January 1, 2013.

unanimous

§ 3-110. Forms and regulations.

§ 3-110. Forms and regulations.

   The Commission may make such regulations and adopt such forms as it deems necessary to implement these Rules. Regulations shall be approved by the Supreme Court.

Rule 10 amended May 22, 1996. Renumbered and codified as § 3-110, effective July 18, 2008; § 3-110 amended January 11, 2012, effective January 1, 2013; § 3-110 amended July 25, 2013, effective August 1, 2013; § 3-110 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-111. Commission reports.

§ 3-111. Commission reports.

   (A) As soon as practicable after the conclusion of the examination, the Commission will make a written report to the Court of its recommendations for the admission of examination applicants.

   (B) As soon as practicable after review of an application for admission by motion pursuant to § 3-119(A) through (E), the Commission will make a written report to the Court of its recommendations for the admission of motion applicants.

   (C) The director shall annually report to the Court the number of motion applications for the previous year, including the date of application, and the date a recommendation was made to the Court for admission.

§ 3-111 amended July 25, 2013, effective August 1, 2013; § 3-111 amended February 12, 2020.

unanimous

§ 3-112. Essential eligibility requirements for practice of law.

§ 3-112. Essential eligibility requirements for practice of law.

   In addition to the admission requirements otherwise established by these rules, the essential eligibility requirements for admission to the practice of law in Nebraska are:

   (A) the ability to conduct oneself with a high degree of honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations;

   (B) the ability to conduct oneself diligently and reliably in fulfilling all obligations to clients, attorneys, courts, and others;

   (C) the ability to conduct oneself with respect for and in accordance with the law and the Nebraska Rules of Professional Conduct;

   (D) the ability to communicate clearly with clients, attorneys, courts, and others;

   (E) the ability to reason, analyze, and recall complex factual information and to integrate such information with complex legal theories;

   (F) the ability to exercise good judgment in conducting one's professional business;

   (G) the ability to avoid acts that exhibit disregard for the health, safety, and welfare of others;

   (H) the ability to use honesty and good judgment in financial dealings on behalf of oneself, clients, and others;

   (I) the ability to comply with deadlines and time constraints; and

   (J) the ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.

   In the event the application and investigation process indicates a question of whether the applicant meets the eligibility requirements for the practice of law contained in this section, the Commission shall take up the matter and determine whether the applicant may be admitted. The Commission shall conduct further investigation under these rules if needed to determine eligibility for admission.

§ 3-112 amended July 25, 2013, effective August 1, 2013; § 3-112 amended February 12, 2020.

unanimous

§ 3-113. Examination and motion applicants; minimum qualifications; refund.

§ 3-113. Examination and motion applicants; minimum qualifications; refund.

   An application must show the director that such applicant has received at the time of the examination or motion application the applicant's first professional degree, either a JD or LLB degree from an ABA-approved law school. The director shall not accept an application that on its face indicates the candidate lacks a professional degree from an ABA-approved law school or the required years of practice time pursuant to § 3-119(B)(1). If an application is not accepted, all fees shall be refunded to the applicant.

§ 3-113 amended July 25, 2013, effective August 1, 2013; § 3-113 amended February 12, 2020.

unanimous

§ 3-114. Application for admission by examination applicants.

§ 3-114. Application for admission by examination applicants.

   Each applicant shall execute under oath a thorough application and sign an authorization and release form that extends to the Commission and to any persons or institutions supplying information thereto. The director shall reject any incomplete application or any application filed after the deadlines provided in § 3-114(B). Such rejection shall not constitute an adverse decision as defined in § 3-101(B). The applicant will be informed of the consequences of failing to produce information requested by the Commission and of making material omissions or misrepresentations. (Appendix A).

   (A) Form and content of application. All applications must be made through the Court's online application system and in the manner prescribed by the Commission as outlined in the application. The Commission may modify or amend the forms as deemed necessary. 

   (B) Time for filing application. All dates and times referred to herein are based on central time. The deadline for submission of any examination application is 11:59 p.m. on the dates listed below. Deadlines are strictly enforced. No extensions are permitted.

   (1) First-time examination applications. Applicants that were not seated for the immediate prior examination, may submit a completed application no earlier than September 1 and no later than October 15 preceding the February examination and no earlier than January 2 and no later than March 1 preceding the July examination.

   (2) Second or subsequent exam applications. Applicants who did not obtain a passing score on the immediate prior examination may submit an application for the next examination no later than May 15 for the next July examination and no later than October 15 for the next February examination.

   (C) Fees. No application shall be accepted by the director of admissions unless such application is accompanied by the full amount of examination, investigation, and administrative fees required by these Rules. (Appendix E).

   The application fee shall be paid electronically through the Admissions application website at the time the application is submitted. A laptop fee for the MEE and MPT portion of the examination must be paid directly to the examination software vendor selected by the Commission.

   (D) Refund policy. Refunds are allowed upon written or electronic mail request to the director, subject to the following:

   (1) If the request is made between October 15 and December 1 for the February examination, and between March 1 and May 1 for the July examination, the examination fee, minus the cost of the fingerprint application, will be refunded.

  (2) If the request is made between December 2 and February 1 before the February examination, or between May 2 and July 1 before the July examination, one-half the examination fee will be refunded, minus the cost of the fingerprint application. 

  (3) Emergency requests for refunds after the dates listed in (2) are at the discretion of the Director. If such refunds are granted, only the portion of the fee charged for the UBE test documents will be refunded.

   (E) Failure to appear for examination. If the applicant has registered for the bar examination and fails to appear for the examination, no refund or deferment of fees is permitted.

   (F) Deferment. Registration fees which have been paid for a bar examination may be held over and applied toward the next available bar examination provided the request for deferment is made on or before February 1 for the February exam and on or before July 1 for the July exam. Emergency requests for deferment after the dates listed in this section are at the discretion of the director. Only one deferment is permitted per applicant. Additional deferments are not permitted.

   (G) Multistate Professional Responsibility Examination (MPRE) scores. MPRE scores must be on file by the application deadline of October 15 for the following February examination and March 1 for the following July examination. Scores submitted after these dates are subject to the MPRE late submission fee. The scaled score of 85 is required for a passing grade. An applicant who has passed the bar examination in Nebraska but who has not submitted a passing MPRE score within 1 year after passing the bar examination shall not be admitted in Nebraska. The Commission will not accept an MPRE score that is more than 5 years old.

   (H) Fingerprints. Applicants must submit two complete sets of fingerprints with the applicant's bar application on a form designated by the Commission as provided under Neb. Rev. Stat. § 7-102(2), or have their fingerprints scanned by an authorized agency. Scanned fingerprints will be processed electronically. Fingerprints obtained by the inking and rolling method must be contained on a Federal Form FD-258 (REV. 5-11-99), which is also known as the "APPLICANT" fingerprinting card. The applicant must have his or her fingerprints rolled or scanned at an authorized agency (police or sheriff's department or highway patrol office), and applicants must complete all applicable identifying information on two fingerprinting cards. The applicant must sign the cards and have the authorized official rolling the applicant's fingerprints also sign and date the cards, with that official printing his or her ON number on the back of the card. Failure to complete all the personal information requested on the top portion of the fingerprint card will cause an application to be delayed and/or rejected. The Commission will forward the fingerprints of all such applicants to the Nebraska State Patrol for a national criminal history record information check by the Identification Division of the Federal Bureau of Investigation. The Supreme Court may, at any time, order the Commission to discontinue requesting, or to thereafter resume requesting, fingerprint record checks on all applicants that are fingerprinted pursuant to Neb. Rev. Stat. § 7-102(2).

   (I) Limitation on repeated attempts. In no event shall an applicant apply to sit for the Nebraska State Bar Examination after having failed to pass a bar examination on four previous attempts total in any jurisdiction, or a combination of jurisdictions.

§ 3-114 amended July 25, 2013, effective August 1, 2013; § 3-114(I) deleted January 14, 2015; § 3-114(A)-(C) and (F) amended March 11, 2015; § 3-114(B) and (H) amended June 22, 2016; § 3-114(G) amended November 30, 2016; § 3-114 amended February 12, 2020; § 3-114 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-115. Reasonable accommodation.

§ 3-115. Reasonable accommodation.

   (A) Policy. It is the policy of the Nebraska State Bar Commission to administer the bar examination in a manner that does not discriminate on the basis of disability and is in accordance with the Americans with Disabilities Act, as amended (ADA). An applicant who is otherwise eligible to take the bar examination may file a request for special testing accommodations. (Appendix C).

   (B) Definitions. For the purpose of this policy, the following definitions shall apply:

   (1) "Disability" means any of the following:

   (a) A physical or mental impairment that substantially limits one or more of the major life activities of the applicant and that substantially limits the ability of the applicant to demonstrate, under standard testing conditions, that the applicant possesses the essential skills, level of achievement, and aptitudes that the Nebraska Supreme Court and the Commission require for admission to the practice of law in Nebraska;

   (b) A record of having such an impairment; or

   (c) Being regarded as having such an impairment.

   (2) "Qualified applicant with a disability" means an applicant with a disability who, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meets the essential eligibility requirements for admission to the practice of law in Nebraska.

   (3) "Reasonable accommodation" means an adjustment or modification of the standard testing conditions that ameliorates the impact of the applicant's disability without doing any of the following:

   (a) Fundamentally altering the nature of the examination or the Commission's ability to determine through the bar examination whether the applicant possesses the essential skills, level of achievement, and aptitudes that are among the essential eligibility requirements set forth in § 3-112, that the Nebraska Supreme Court and the Commission have determined are required for admission to the practice of law in Nebraska;

   (b) Imposing an undue burden on the Commission;

   (c) Compromising the security of the examination; or

   (d) Compromising the integrity, the reliability, or the validity of the examination.

   (4) "Release" means an authorization to make records available to the State Bar Commission.

   (C) Requests. A Request for special testing accommodation will be submitted on forms prescribed by the Commission.

   (D) Filing of requests. A request for special testing accommodations for an examination must be filed with the applicant's Application to take the bar examination and by the deadline in § 3-114(B).

   (E) Review. The Commission will review all requests for special testing accommodations that are properly filed in accordance with this Rule. Requests that are not timely filed, incomplete, or otherwise do not comply with the requirements of this Rule may be rejected by the Commission.

   (F) Additional professional assistance. The Commission and/or director may seek the assistance of a medical, psychological, or other expert of the Commission's selection in reviewing a request for accommodation when in the opinion of the Commission, the application is not clear that an accommodation should be granted. (Appendix C).

   (G) Independent evaluations. The Commission may ask the applicant to submit to an independent evaluation conducted by an appropriate health care professional selected by the Commission. The cost of the independent evaluation shall be paid by the Commission.

   (H) Disability after initial application. If an applicant becomes disabled after the timely submission of an application for examination and admission and such applicant seeks reasonable accommodation in testing on account of such disability, the applicant shall file an emergency request for reasonable testing accommodation on forms prescribed by the Commission.

   (I) Review of requests. The Commission shall review all requests for special testing accommodations that are properly filed in accordance with this Rule. The Commission may ask an applicant to submit additional information to support the applicant's request. (Appendix C). In reviewing a request, the Commission will follow these procedures.

   (1) The Commission will make a determination, and the director will send notification of the determination to the applicant in writing by email to the address provided by the applicant, no fewer than 90 days before the examination.

   (2) The Commission's denial will include an explanation for the basis of the denial. The Commission will also provide the applicant with a copy of the written report of any expert it has consulted in reviewing the request.

   (3) The applicant may appeal the denial of a request to the Supreme Court in accordance with § 3-126.

   (J) Standards for decision on merits. The Commission will grant a request and provide special testing accommodations to an applicant if it finds all of the following:

   (1) the applicant has a disability and is otherwise eligible to take the bar examination;

   (2) the special testing accommodations are necessary to ameliorate the impact of the applicant's disability; and

   (3) the special testing accommodations are reasonable accommodations.

   (K) Determination by Commission. The Commission will have sole discretion to determine what special testing accommodations are reasonable accommodations. The Commission may provide accommodations different than those requested by the applicant if the Commission determines that the accommodations provided will effectively ameliorate the impact of the applicant's disability.

   (L) Confidentiality. All requests for special testing accommodations, supporting documentation, and information developed by the Commission with respect to the requests will remain confidential; however, the Commission may reveal the contents of an application to its experts in assessing and commenting on the matters contained in the application. (Appendix C).

§ 3-115 amended July 25, 2013, effective August 1, 2013; § 3-115(E) amended December 3, 2013, effective April 1, 2014; § 3-115(G) amended February 12, 2020; § 3-115 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-116. Investigation of applicants.

§ 3-116. Investigation of applicants.

   (A) Purpose. The purpose of character and fitness screening before admission to the practice of law in Nebraska is to ensure the protection of the public and to safeguard the justice system. The attorney licensing practice is incomplete if only testing for minimal competence is undertaken. The public is adequately protected only by a system that evaluates character and fitness as those elements relate to the practice of law. The public interest requires that the public be secure in its expectation that those who are admitted to the practice of law are worthy of the trust and confidence clients may reasonably place in their attorneys. (Appendix A).

   (B) Authority to investigate. The Commission has the authority to investigate and make determinations as to character and fitness to practice law. The Commission may allow its director to make such investigation of each applicant’s moral character and fitness to practice law when the application shows issues of character and fitness to practice law. The director shall report to the Commission the names of applicants that required investigation and the results of such investigation.

   (1) If the investigation as to character and fitness of an applicant is completed prior to the bar examination and the Commission determines the applicant should not be approved for admission, the Commission may deny the applicant permission to take the examination. In the event an applicant has been denied admission due to character and fitness, he or she shall be prohibited from filing another application for admission for a period of 3 years unless the Commission or Court’s order denying admission provides the applicant an alternative period of time to reapply.

   (2) For applicants that have been granted permission to sit for the examination, the final determination of character and fitness shall be reserved until after the bar examination. The conduct of the applicant through the application and examination process shall be considered by the Commission when determining the character and fitness of the applicant. Such permission to sit for the bar examination does not constitute approval or evidence of approval of the applicant's character or fitness.

   (C) Appearance before Commission. An applicant may be required to appear before the Commission upon reasonable notice and submit to an interview touching upon any matter the Commission deems relevant to the consideration of the pending application.

   (D) Failure to appear. Failure to appear before the Commission as directed shall be sufficient reason for denial of the application.

   (E) Certificate permitting or denying examination.

   (1) Permitting examination. The director of admissions shall provide the applicant a certificate permitting him or her to sit for the bar examination. The certificate shall indicate a reservation of the character and fitness determination until the completion of the bar examination.

   (2) Denying examination. If the applicant fails to meet the examination and admission requirements, written notice thereof shall be given to the applicant as provided in § 3-126.

   (F) Referral to NLAP. The Commission may refer applicants to the Nebraska Lawyers Assistance Program (NLAP) in the event the application or investigation indicates criminal alcohol or illegal substance offenses or other information indicating an actual or potential impairment related to a substance use disorder or information indicating a cognitive impairment or mental health impairment that impacts fitness to practice law.

   (1) When a referral is made to NLAP, the Commission shall provide to NLAP facts and documentation related to the referral.

   (2) NLAP may:

   (a) recommend the Commission order an evaluation for a substance use disorder, cognitive impairment, or mental health impairment, or

   (b) formulate a recommendation to the Commission regarding the existence of a substance use disorder, cognitive impairment, or mental health impairment and whether NLAP monitoring would be a beneficial condition of admission under § 3-120.

   (3) After the NLAP recommendation, the Commission may make such further investigation as it deems necessary to inform itself concerning the character and fitness of the applicant.

   (4) If additional evaluations are ordered by the Commission, that information shall be made available to NLAP if necessary.

   (G) Further inquiry. The revelation or discovery of any of the following may be treated as cause for further inquiry before the Commission determines whether the applicant possesses the character and fitness to practice law:

   (1) misconduct in employment;

   (2) acts involving dishonesty, fraud, deceit, or misrepresentation;

   (3) abuse of legal process, including the filing of vexatious or frivolous lawsuits;

   (4) neglect of financial responsibilities;

   (5) neglect of professional obligations;

   (6) violation of an order of a court, including child support orders;

   (7) evidence of mental or emotional instability;

   (8) evidence of drug or alcohol dependence or abuse;

   (9) denial of admission to the bar in another jurisdiction on character and fitness grounds;

   (10) disciplinary action by an attorney disciplinary agency or other professional disciplinary agency of any jurisdiction (Appendix A); or

   (11) citation, arrest, charge, or conviction for any criminal offense.

   The Commission may seek the assistance of a medical, psychological, or other expert of the Commission’s selection in determining the character and fitness of the applicant, and may require the applicant to submit to an independent evaluation conducted by an appropriate health care professional selected by the Commission. The cost of the independent evaluation shall be paid by the Commission unless otherwise ordered.

   (H) Factors. The Commission will determine whether the present character and fitness of an applicant qualifies the applicant for admission. In making this determination through the processes described above, the following factors should be considered in assigning weight and significance to prior conduct:

   (1) the applicant's age at the time of the conduct;

   (2) the recency of the conduct;

   (3) the reliability of the information concerning the conduct;

   (4) the factors underlying the conduct;

   (5) the seriousness of the conduct;

   (6) the cumulative effect of the conduct or information;

   (7) the evidence of rehabilitation;

   (8) the applicant's positive social contributions since the conduct;

   (9) the applicant's candor in the admissions process; and

   (10) the materiality of any omissions or representations.

   (I) Early application for purposes of character and fitness review.

   (1) Any prospective applicant for admission to the Nebraska State Bar who is currently matriculating in an approved law school may file an early application solely for the purpose of receiving a determination of that person's character and fitness for admission. An early application will not substitute for any portion of the regular bar application process, and any person filing such an early application shall still be required to complete all application materials at the time of regular application.

   (2) Decision. After due consideration of an early application, the Commission may:

   (a) Approve the application, with conditions where appropriate, provided that the applicant shall remain subject to all other qualifications for admission to practice;

   (b) Deny the application; or

   (c) Determine that the application is not ripe for consideration and decline to rule on the application.

   (3) A decision to approve the application pursuant to subsection (2)(a) above shall be binding only as to the facts and circumstances under consideration at the time and shall not prevent consideration of undisclosed conduct, subsequent conduct prior to admission or consideration of past facts and circumstances (including those already reviewed as part of an early application) which relate to subsequent conduct either directly or indirectly.

   (4) A denial issued pursuant to subsection (2)(b) shall not prevent a person from filing an application for admission at a later date.

   (5) Subject to approval by the Court, the Commission shall establish a nonrefundable early application fee.

Rule 16 adopted May 22, 1996; Rule 16 amended May 13, 2004. Renumbered and codified as § 3-116, effective July 18, 2008; § 3-116 amended January 11, 2012, effective January 1, 2013; § 3-116(A) and (B) amended December 19, 2012, effective January 1, 2013; amended July 25, 2013, effective August 1, 2013; § 3-116 amended February 12, 2020; § 3-116(F) amended June 16, 2021; § 3-116(F) amended September 3, 2025.

unanimous

§ 3-117. Examination.

§ 3-117. Examination.

   (A) Examination. Examination applicants are required to pass the MPRE and are required to pass by a combined score the MEE, MPT, and MBE. The MEE, MPT, and MBE must be taken at a single administration of the UBE.

   (B) MPRE. The MPRE passing score will be established from time to time by the Court. The MPRE may be taken at any location approved for administration by NCBE. A passing MPRE score must be obtained prior to the Commission approving a candidate for admission.

   (C) UBE. The UBE will be administered on consecutive days twice each year at times and places to be set by the Commission, consistent with the dates established by the NCBE. The first day of the examination will be devoted to the MEE and MPT prepared by the NCBE, and the second day will be devoted to the MBE prepared by the NCBE. The MBE is generally administered over a 6-hour interval, and the MEE and MPT are each administered over a 3-hour interval.

   (D) Conduct of examinations. Bar examinations shall be administered under the supervision of the Commission. The director may appoint such proctors as are necessary to assist in conducting the examinations.

   (E) Mode of examination.

   (1) Identification. The Commission shall utilize an identification procedure that ensures the anonymity of the examinees throughout the examination and grading process.

   (2) Conduct of examinees. Applicants shall not bring into the test site or use any unauthorized material or devices to assist them in answering questions. All questions shall be answered solely from the applicant's own knowledge and without assistance from any other source. No questions, answer sheets, or other materials relating to the MBE or MEE shall be copied or removed from the examination room. Examinees shall conduct themselves respectfully toward examination officials, proctors, and fellow candidates. Disruptive behavior, including excessive noise or use of electronic devices without permission will be considered a violation of this subsection.

   (3) Anonymity of grading. Applicants shall not in any manner attempt to influence the grading of their examinations Applicants shall not identify (or attempt to identify) themselves, their identification numbers, or their answers to any member of the Commission or any other person.

   (4) Penalty for violation. If an applicant violates or attempts to violate § 3-117(E)(1) through (3), the applicant shall be given an automatic failing grade on the entire examination. The circumstances may be considered by the Commission as grounds for barring the applicant from retaking the Nebraska State Bar Examination at a later session.

   (5) Handling of examination papers. At the beginning of each examination session, the examiner shall deliver to the applicants a copy of the questions to be answered at that session. The MBE, MPT, and the MEE shall be administered in the manner prescribed therefor. No questions, answer sheets, or other materials relating to the MBE or MEE shall be copied or removed from the examination room. Answers to the essay questions shall be typed or written on paper supplied by the Board. The applicant shall write all answers legibly in ink or by computer. The applicant must label and number his or her answers to correspond with the subject matter and numbers of that part of the examination and shall consecutively number each page of his or her answers to each part of the examination.

   (6) Proctors. Proctors shall perform such duties as are assigned to them by the director of admissions. Their purpose shall be to facilitate the conduct of the examination and to ensure its integrity. Proctors shall not discuss, under any circumstances, the content of the examination with an applicant. The Commission may employ law enforcement officers to ensure safety and security of the examination site. Officers shall not discuss, under any circumstances, the content of the examination with an applicant.

   (F) UBE passing score. The passing score will be established from time to time by the Nebraska Supreme Court. The passing score for the bar examination is currently a score of 270 on a single administration of the examination, determined by the scaled score on the MBE (multiple choice) weighted at 50 percent, the scaled score on the MPT weighted at 20 percent, and the scaled score on the MEE weighted at 30 percent. The passing score for the MPRE is currently 85.

  (G) Examination results/Commission reports. As soon as practicable after the conclusion of the examination, the Commission will make a written report to the Court of its recommendations. Upon a determination by the Commission that an applicant possesses all of the requirements of eligibility for admission to the bar and that he or she has successfully passed the UBE and MPRE, the Commission shall recommend to the Court that such applicant is eligible for admission.

   (H) Notice to applicant. The Court shall notify, in writing, each applicant whether he or she has passed or failed the examination. All applicants who are approved by the Court will be admitted to practice upon taking the oath prescribed by law and by filing an executed oath card with the Attorney Services Division of the Nebraska Supreme Court. No applicant shall be admitted as a licensed attorney in Nebraska until he or she has returned an executed oath card to the Attorney Services Division of the Nebraska Supreme Court within 120 days of being given the oath card.

   (I) Destruction of examinations. Unless otherwise directed by the Court or the Commission, or as provided in § 3-121, all test questions and answers will be destroyed in accordance with procedures established by NCBE.

Rule 17 adopted May 22, 1996; Rule 17 amended July 28, 1998. Renumbered and codified as § 3-117, effective July 18, 2008; § 3-117 amended July 25, 2013, effective August 1, 2013; § 3-117(G) and (I) amended November 30, 2016; § 3-117(B), (G), and (I) amended February 12, 2020; § 3-117(G) amended September 7, 2022; § 3-117 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-118. Applicant's failure of examination.

§ 3-118. Applicant's failure of examination.

   (A) Examination inspection by applicant. The director will retain, subject to these rules, the examination papers (excluding any Multistate Bar Examination papers) of all applicants who fail the examination. Within 10 days after the examination results have been announced, any applicant who fails may personally inspect his or her paper in the presence of the director or person designated by the director. Review of materials are subject to examination security procedures established by the NCBE.

   (B) Examination appeals. A failing score on the UBE is not appealable.

Rule 18 adopted July 28, 1998. Renumbered and codified as § 3-118, effective July 18, 2008; § 3-118 amended July 25, 2013, effective August 1, 2013.

unanimous

§ 3-119. Application for admission by motion.

§ 3-119. Application for admission by motion.

   Each applicant will be required to execute under oath a thorough application and to sign an authorization and release form that extends to the Commission and to any persons or institutions supplying information thereto. The applicant will be informed of the consequences of failing to produce information requested by the application and of making material omissions or misrepresentations (Appendix A).

   For applicants seeking admission under subsections (A) or (B) of this section, passing scores on the UBE, non-UBE qualifying bar examinations, and the MPRE will not be accepted for admission in Nebraska if more than 5 years have passed after the release of the passing score. For applicants seeking admission under subsection (C) of this section, passing scores on the UBE, non-UBE qualifying bar examinations, and the MPRE will be accepted for admission in Nebraska regardless of the date of release of the passing score.

  All motion applicants, as defined in § 3-101(D), must meet the minimum requirements set forth in § 3-113 in addition to those listed below.

   (A) UBE Motion Applicants. "UBE Motion Applicants" are motion applicants who 

   (1) have taken the UBE in another state or jurisdiction and earned at least the minimum score established by the Court and set forth in § 3-117(F); and

   (2) have passed the MPRE with the minimum score established by the Court and set forth in § 3-117(F).

   (B) Non-UBE Motion Applicants. "Non-UBE Motion Applicants" are applicants who

   (1) have taken a non-UBE examination and obtained a score which is at least equivalent to the UBE passing score established by the Court and set forth in § 3-117(F); and

   (2) have passed the MPRE with the minimum score established by the Court and set forth in § 3-117(F).

   (C) Practice Time Motion Applicants. "Practice Time Motion Applicants" are motion applicants who

   (1) have taken either a UBE or non-UBE examination and obtained the passing score established by the state or jurisdiction where licensed;

   (2)  have either actively and substantially engaged in the practice of law in another state, territory, or district of the United States or who have properly registered as in-house counsel in Nebraska under Neb. Ct. R. §§ 3-1201 to 3-1204 for 3 of the 5 years immediately preceding application for admission; and

   (3) have passed the MPRE with the minimum score established by the state or jurisdiction where licensed.

   (D) Military Spouse Motion Applicants. "Military Spouse Motion Applicants" are motion applicants who may be admitted to practice in Nebraska upon approval of a proper application under subsection (D).

   (1) Requirements. An applicant under subsection (D) must:

   (a) have been admitted to practice law in another U.S. state, territory, or the District of Columbia;

   (b) hold a J.D. or LL.B. degree from an approved law school;

   (c) establish that the applicant is currently a member in good standing in all jurisdictions where admitted;

   (d) establish that the applicant has never been suspended, disbarred, or otherwise lost a license to practice law as the result of a disciplinary action in any other jurisdiction; is not currently subject to attorney discipline in any other jurisdiction; nor is the subject of a pending disciplinary matter in any other jurisdiction;

   (e) establish that the applicant possesses the character and fitness to practice law in Nebraska;

   (f) reside or work, or intend within the next 6 months to reside or work, in Nebraska;

   (g) be the spouse of an active duty member of the U.S. Armed Forces, who is assigned to a duty station in Nebraska;

   (h) not have failed Nebraska's bar examination within 5 years of the date of filing an application under subsection (D);

   (i) not have been previously denied admission to the practice of law in Nebraska; and

   (j) certify that the applicant has read and is familiar with the Nebraska Rules of Professional Conduct.

   (2) Application and Reduced Fee. The Commission will make best efforts to expedite applications submitted under subsection (D). The requisite application fee charged for motion application in Nebraska (see Appendix E) shall be reduced by 50 percent for those qualified for admission under subsection (D).

   (3) Termination. The license to practice law under subsection (D) shall remain in full force and effect until the attorney resigns according to the procedure established under Neb. Ct. R. § 3-803(H) or until further order of the Court. Notwithstanding any other provision of these Rules, when an attorney licensed under subsection (D) seeks resignation, the Court may waive any unpaid mandatory membership assessments for the year of resignation.

   (E) Except as provided in subsection (D), applications for admission on motion and the required fees shall be submitted as provided under § 3-114(A) and (C).

   (F) Fingerprints. All applicants are required to submit fingerprints as provided under § 3-114(H).

   (G) Each applicant will be required to complete and file an application and to sign an authorization and release form that extends to the Commission and to any persons or institutions supplying information thereto.

   (H) If, after review of a filed motion application, additional information is needed by the Commission, the director or Commission may request specific information with a specified due date. If the applicant fails to respond and submit the additional requested information by the due date, then that application may be administratively withdrawn.

Rule 19 adopted April 24, 2002. Renumbered and codified as § 3-119, effective July 18, 2008; § 3-119 amended July 25, 2013, effective August 1, 2013; § 3-119 amended January 14, 2015; § 3-119 amended November 30, 2016; § 3-119 amended March 21, 2018; § 3-119 amended January 2, 2019; § 3-119(E) amended June 23, 2021; § 3-119(B)(1) amended November 10, 2021; § 3-119(B)(1) amended January 12, 2022; § 3-119(B) amended September 7, 2022; § 3-119 amended March 12, 2025, effective April 1, 2025; § 3-119 amended September 3, 2025.

unanimous

§ 3-120. Conditional admission.

§ 3-120. Conditional admission.

   (A) The Commission may recommend to the Court such conditions for admission as it deems necessary upon its consideration of an application.

   (B) Upon recommendation from the Commission to the Court, an applicant may be granted conditional admission under these rules when it is determined that the protection of the public requires the imposition of conditions and the temporary monitoring of the applicant in question for compliance with the conditions.

   (C) Violation of any condition imposed under this rule shall be self-reported to the Commission by the applicant. Any material violation shall be a prima facie basis for immediate revocation of conditional admission.

   (D) Although the fact of conditional admission is confidential, the applicant may disclose the conditions of admission to any other admitting authority, and the Commission may also do so.

§ 3-120 adopted July 25, 2013, effective August 1, 2013.

unanimous

§ 3-121. Application for waiver of provisions.

§ 3-121. Application for waiver of provisions.

  (A) An applicant seeking waiver of any provision of these Rules must first file an application for waiver with the Commission and may not directly petition the Court for a waiver of any provision of these Rules.

  (B) Upon receipt of an application for waiver, the Commission may request additional documentation, including information that would be provided in an application for admission.

  (C) After reviewing the application and any supporting documentation, the Commission shall provide the Court with its recommendation as to whether to grant or deny the waiver application. Such recommendation by the Commission shall set forth the applicant’s qualifications, character and fitness, and other relevant information relied upon by the Commission in reaching its recommendation. The recommendation shall include the application and any supporting documents used in the Commission’s decision.

  (D) The Court, upon receipt of a recommendation from the Commission, may in its discretion vary the application or waive any provision of these Rules for an applicant.

  (E) A recommendation to deny an application for waiver by the Commission or a denial of the waiver requested in the application shall not constitute an adverse decision under § 3-101(B). There is no further right of review of the Court’s decision.

§ 3-121 adopted July 25, 2013, effective August 1, 2013; amended October 28, 2020; § 3-121 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-122. Pro hac vice admission.

§ 3-122. Pro hac vice admission.

   Any attorney of good moral character who is admitted to and engaged in the practice of law in the courts of record of another state, the District of Columbia, or a U.S. territory, having professional business in the courts of this state, or before an administrative agency, department, board, or commission (agency) in this state, may, in the discretion of the court, the hearing officer, or presiding officer of the agency, be admitted for the purpose of transacting such business. In order to be admitted, associated counsel licensed in the State of Nebraska shall file with the court or agency where the case is pending as soon as possible, but no later than the date the applicant files any pleading or appears personally, a motion for admission pro hac vice, see Appendix B for courts of the state, or Appendix F for agencies, departments, boards, or commissions. A separate motion shall be filed in each case. For cases consolidated by order of the court, hearing officer, or presiding office of the agency, one motion is allowed. Along with the motion filed by the Nebraska attorney, the applicant shall execute an application with the following:

   (A) A statement identifying the party or parties being represented in the case.

   (B) A list of all jurisdictions where the applicant for admission pro hac vice is licensed to practice law, together with applicable bar or registration numbers.

   (C) An affirmative statement that the applicant is in good standing and eligible to practice law in the aforementioned jurisdictions and is not the subject of a disciplinary action or investigation. If the applicant is the subject of a disciplinary action or investigation, the name and address of the disciplinary authority for the jurisdiction and a brief description of the nature and status of the action or investigation shall be provided.

   (D) An affirmative statement that the applicant is subject to the Rules of Professional Conduct, Neb. Ct. R. of Prof. Cond. §§ 3-501.0 to 3-508.5, upon admission pro hac vice.

   (E) Unless exempted by Neb. Rev. Stat. § 7-103, a statement, including contact information, that the applicant has associated and is appearing with an attorney who is a resident of Nebraska, duly and regularly admitted to practice in the courts of record of this state, and upon whom service may be had in all matters connected with the action with the same force and effect as if personally made on such foreign attorney within this state. The associating attorney, or his or her designee, shall sign the motion for admission pro hac vice, all pleadings, motions, and papers filed in the case, as well as personally appear at all proceedings before the court or agency, unless excused by the court.

   (F) Fee. A $250 fee payable to the clerk of each court or agency in which the attorney is appearing or making any filing, for each case the attorney is appearing or making any filing. For cases consolidated by order of the court or agency, one $250 fee shall be required for all consolidated cases. No refund shall be allowed on cases subsequently consolidated by order of the court or agency. Attorneys initially admitted pro hac vice by the Nebraska Court of Appeals on appeal need not file a second motion and pay another fee in the Nebraska Supreme Court if that same appeal is later docketed in the Court for any reason. The Clerk of the Court or agency shall remit the fee to the State Treasurer for credit to the Nebraska Supreme Court's Counsel for Discipline Cash Fund not later than the 15th day of the month following the calendar month in which the fee was received. If the motion for pro hac vice admission is not granted, the Clerk of the Court or agency shall refund the $250 fee. A court or agency may, in its discretion and upon written motion, waive the fee for applicants who are representing governmental entities or providing pro bono representation of an indigent client.

   Once the motion is granted, the applicant shall take and subscribe the oath required to be taken by individuals regularly practicing before the courts of this state as set forth in Neb. Rev. Stat. § 7-104, and the subscribed oath shall be filed by the applicant with the Clerk of the Court or agency in which the applicant is appearing. The subscribed oath shall be made part of the court or agency record. See Appendix B or F. Counsel representing an Indian child's tribe or tribes in a child custody proceeding under the Nebraska Indian Child Welfare Act, Neb. Rev. Stat. § 43-1501 et seq., shall be exempt from all requirements of § 3-122. Counsel appearing before the Nebraska Workers' Compensation Court shall comply with all requirements of § 3-122.

§ 3-122 adopted July 25, 2013, effective August 1, 2013; § 3-122 amended July 2, 2014; § 3-122(F) amended February 10, 2016; § 3-122 amended March 9, 2016; § 3-122 amended June 26, 2019; § 3-122 amended February 12, 2025.

unanimous

§ 3-123. Review by Commission.

§ 3-123. Review by Commission.

   (A) Any applicant who has had an adverse decision, as defined in § 3-101(B), may within 30 days after the email notice of the adverse decision request a hearing before the Commission. The Nebraska Rules of Evidence do not apply to hearings before the Commission under these Rules.

   (B) Hearing Procedure. The Commission shall set the matter for hearing as soon as practicable. The Commission may set additional hearings as necessary. The following shall be allowed:

   (1) the applicant may have an attorney present at the hearing and 

   (2) the applicant may submit a concise written brief 7 days prior to the hearing setting forth the reasons why the adverse decision or other challenged ruling of the Commission should be altered.

   (C) The Commission or applicant may, at either the Commission's or the applicant's expense, arrange to have the proceeding recorded and transcribed.

   (D) Both the Commission and the applicant may present evidence in the form of witnesses and documents. The Commission may limit argument, request briefing on specific matters and subpoena documents or witnesses. Without waiving any rules of confidentiality stated in these Rules, the Commission may, in its discretion, provide to the applicant copies of any of its documentary evidence in advance of the hearing.

   (E) The Commission will advise the applicant of its decision in writing. In the event that the applicant is dissatisfied with the decision of the Commission, the applicant may, within 30 days from the date of the written decision of the Commission, appeal the decision to the Supreme Court as provided in § 3-126.

§ 3-123 adopted July 25, 2013, effective August 1, 2013; § 3-123(D) amended January 14, 2015; § 3-123(B) and (E) amended October 28, 2020; § 3-123 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-124. Administration of oaths; power of subpoena.

§ 3-124. Administration of oaths; power of subpoena.

   Each member of the Commission is hereby authorized to administer oaths in any proceeding before the Commission on matters relative thereto and has power in such matters to subpoena witnesses and documents and take depositions.

§ 3-124 adopted July 25, 2013, effective August 1, 2013; § 3-124 amended March 12, 2025, effective April 1, 2025.

unanimous

§ 3-125. Burden of proof on applicants.

§ 3-125. Burden of proof on applicants.

   The practice of law in this state is a privilege. The burden of demonstrating that an applicant is qualified for admission under any of these rules, the burden of demonstrating compliance with these rules, and the burden on review under § 3-123 is on the applicant.

§ 3-125 adopted July 25, 2013, effective August 1, 2013.

unanimous

§ 3-126. Appeal to Supreme Court; procedure.

§ 3-126. Appeal to Supreme Court; procedure.

   (A) Any applicant entitled to appeal from a final adverse decision of the Commission in accordance with § 3-123 must file a notice of appeal with the Clerk of the Supreme Court within 30 days following the date notice of the decision was mailed to the applicant at the address given to the Commission by the applicant at the time of the hearing before the Commission.

   (B) The notice of appeal shall be accompanied by a written statement setting forth the nature of the case, the reason for the appeal, and the facts and pertinent authorities upon which the applicant relies. No fee will be charged for filing the appeal.

   (C) The Supreme Court may appoint a master, who, after hearing the arguments of the applicant and the Commission, shall make findings and report them to the Court, together with a recommended disposition. A copy of such report shall be forwarded to the applicant on the same day the report is filed with the Court. The applicant shall have 14 days from the filing of the report within which to file a response, if any, as the applicant may wish to make.

   (D) If no hearing before a master occurs, the Supreme Court shall consider the matter de novo on the record made at the hearing before the Commission, including such proceedings as may have been recorded pursuant to § 3-123.

§ 3-126 adopted July 25, 2013, effective August 1, 2013; § 3-126 amended February 12, 2020; § 3-126 amended October 28, 2020.

unanimous

§ 3-127. Confidentiality.

§ 3-127. Confidentiality.

   (A) All documents and files concerning applications for permission to take the bar examination and for admission by motion to the practice of law shall be confidential.

   (B) All proceedings provided for herein shall be kept confidential until and unless the applicant waives his or her right to confidentiality either by written waiver or by conduct.

   (C) Information provided to the director or Commission during the investigation of the character and fitness of an applicant shall be confidential and not be subject to disclosure until a review by the Commission pursuant to § 3-123.

   (D) Any person who seeks admission to practice law in the State of Nebraska shall agree to waive all rights of privacy with reference to any and all documentary material filed or secured in connection with the applicant's application. The applicant shall also agree that any such documentary material, including the application, may be offered into evidence, without objection by the applicant in any proceeding in regard to the applicant's admission to the practice of law.

   (E) Nebraska law schools shall be provided information indicating pass rates and scores per area of law and lists of those candidates who passed and failed the bar examination. Out-of-state law schools will be provided names of those passing and failing the bar examination. The law schools shall not publicly disseminate performance information other than overall pass rates and pass rates per number of times taking the examination, except as may be required by law or accreditation rules, and shall not disclose any identifiable information about an examinee.

§ 3-127 adopted July 25, 2013, effective August 1, 2013; § 3-127(C) amended January 14, 2015; § 3-127(C) and (E) amended February 12, 2020; § 3-127(E) amended June 16, 2021.

unanimous

§ 3-128. Swearing in of applicants.

§ 3-128. Swearing in of applicants.

   (A) Admission/oath or affirmation. The oath or affirmation upon admission is as follows: "You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability." 

   (B) Swearing in ceremonies. Examination applicants shall be sworn in at the Supreme Court sponsored ceremonies held in April (for February applicants) and September (for July applicants).

   (1) No examination applicant may be sworn in before the date of the Supreme Court ceremony that corresponds to the bar exam taken by the applicant. Examination applicants who are not able to attend the Supreme Court ceremonies may be sworn in by a judge or clerk of any federal, state, or county court within any jurisdiction of the United States.

   (2) Applicants admitted on motion may be sworn in by a judge or clerk of any federal, state, or county court within any jurisdiction of the United States.

   (C) Time limit.

   (1)  Oath or affirmation. No applicant shall be permitted to take the oath or affirmation required for licensing more than 120 days after the date the Supreme Court approved the applicant for admission. After 120 days, an applicant is required to re-apply for admission by submitting full payment, fingerprints, a new application, and all required documents as provided in this rule.

   (2) Executed oath card. No applicant shall be admitted as a licensed attorney in Nebraska until he or she has timely returned an executed oath card to the Attorney Services Division of the Nebraska Supreme Court. Executed oath cards must be returned to the Attorney Services Division within 120 days of the card being supplied to the applicant or the applicant shall not be admitted in Nebraska without a new application and examination.

   (D) Duty to supplement. All applicants have a continuous duty to disclose any change in information reported on the application for admission when he or she discovers the initial response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

§ 3-128 adopted July 25, 2013, effective August 1, 2013; § 3-128 amended November 30, 2016; § 3-128 amended February 12, 2020.

unanimous

§ 3-129. Resignation; readmission.

§ 3-129. Resignation; readmission.

   Any attorney admitted to practice law in the State of Nebraska who resigns membership in the Nebraska State Bar Association will no longer be permitted to practice law in the State of Nebraska until readmitted under these Rules. The Commission shall conduct character and fitness investigations of any attorney seeking readmission under these Rules before an attorney may be readmitted.

§ 3-129 adopted July 25, 2013, effective August 1, 2013; § 3-129 amended March 12, 2025, effective April 1, 2025.

unanimous

Article 2: Limited Liability Professional Organizations.

Article 2: Limited Liability Professional Organizations. unanimous

§ 3-201. Permissible business organizations; name restrictions; membership professional liability; insurance required; dissolution.

§ 3-201. Permissible business organizations; name restrictions; membership professional liability; insurance required; dissolution.

   (A) As of December 1, 1999, attorneys who are licensed to practice law in Nebraska may do so in the form of professional corporations, limited liability companies, or limited liability partnerships (herein referred to as "domestic professional organizations") permitted by the laws of Nebraska to conduct the practice of law, provided that such professional organizations maintain the mandatory minimum levels of professional liability insurance set forth at § 3-201(C)(7) and are established and operated in accordance with the provisions of this rule and the Nebraska Rules of Professional Conduct, and provided that a certificate of authority is granted by the Nebraska Supreme Court pursuant to § 3-202(A). For purposes of these rules, "organizing document" shall mean articles of incorporation, articles of organization, certificate of organization, statement of qualification, or parternship agreement for domestic professional organizations.

   (B) As of December 1, 1999, attorneys may practice law in Nebraska in forms similar to domestic professional organizations formed pursuant to the laws of a jurisdiction other than Nebraska (herein referred to as "foreign professional organizations"), and the laws of such other jurisdiction shall govern (i) the organization, (ii) internal affairs, and (iii) all its other corporate aspects, provided that such foreign professional organization is operated in accordance with the applicable provisions of this rule, including the mandatory minimum professional liability insurance requirement and liability provisions of § 3-201(C)(7). Whether or not such provisions are set forth in the organizational documents of a foreign professional organization, they are applicable and binding by operation of this rule.

   (C) The provisions of this rule shall apply to all foreign and domestic professional organizations (hereinafter collectively referred to as "professional organizations") having as shareholders, officers, directors, partners, employees, members, or managers one or more attorneys who engage in the practice of law in Nebraska, whether such professional organizations are formed under Nebraska law or under laws of another state or jurisdiction. All professional organizations conducting the practice of law in Nebraska shall comply with the following requirements, and the organizing document of any domestic professional organization shall contain provisions complying with the following requirements:

   (1) The name of the professional organization organized under this rule shall contain the words "professional corporation," "limited liability company," or "limited liability partnership," or abbreviations thereof such as "P.C.," "L.L.C.," or "L.L.P." In addition, any professional corporation organized under this rule shall have as a part of its firm name the words "A Limited Liability Organization," or an abbreviation thereof such as "L.L.O.," following its designation as a professional corporation or P.C. The name of the professional organization shall meet the ethical standards established for the names of law firms according to the standards of professional conduct promulgated by the Supreme Court and the Nebraska Rules of Professional Conduct;

   (2) All members of the professional organization who engage in the practice of law within the State of Nebraska shall be persons duly licensed by the Nebraska Supreme Court to practice law in the State of Nebraska, and at all times own their own interest in their own right, and all members of the professional organization who engage in the practice of law outside this state shall be persons duly licensed by the states, territories, or other jurisdictions in which such persons engage in the practice of law, and at all times own their own interest in their own right;

   (3) Provisions shall be made requiring any member who ceases to be eligible to be a member to dispose of all of his or her interest in the professional organization forthwith, either to the professional organization or to a person having the qualifications described in § 3-201(C)(2);

   (4) The management of the professional organization shall have the qualifications of the persons described in § 3-201(C)(2);

   (5) The professional organization shall be organized solely for the purpose of conducting the practice of law, and only through persons qualified to practice law in the State of Nebraska if such persons engage in the practice of law within this state, or through persons qualified to practice law in the states, territories, or other jurisdictions in which such persons engage in the practice of law;

   (6) No professional organization may engage in the practice of law except by and through the person or persons of its licensed member or members or licensed professional employees, all of whom shall retain their professional licenses in good standing and shall be subject to all rules, regulations, standards, and requirements pertaining to their professional activities. The provisions of this rule shall not be construed to abolish, repeal, modify, restrict, or limit the standards for professional conduct or the law now in effect applicable to the professional relationship and liabilities between the person furnishing the professional services and the person receiving such professional services;

   (7)(a) A member or professional employee of a professional organization shall remain personally and fully liable and accountable for any negligent or wrongful acts or misconduct committed by him or her, or by any person under his or her direct supervision and control, while rendering professional services on behalf of the professional organization to the person for whom the professional services were being rendered.

   (b) All professional organizations operating under this rule shall maintain professional liability insurance as set forth herein. The organizing document shall provide that any shareholder, partner, or member who has not directly and actively participated in the act, error, or omission for which liability is claimed shall not be liable, except as provided in § 3-201(C)(7)(b)(v), for any of the damages caused if at the time the act, error, or omission occurs the professional organization has professional liability insurance which meets the following minimum standards:

   (i) The insurance shall insure the professional organization against liability imposed upon it arising out of the practice of law by attorneys employed by the professional organization in their capacities as attorneys.

   (ii) Such insurance shall insure the professional organization against liability imposed upon it by law for damages arising out of the professional acts, errors, and omissions of all nonprofessional employees.

   (iii) The policy may contain reasonable provisions with respect to policy periods, territory, claims, conditions, exclusions, and other matters.

   (iv) The insurance shall be in an amount for each claim of at least $250,000 multiplied by the number of attorneys employed by the professional organization, and if the policy provides for an aggregate top limit of liability per year for all claims, the limit shall not be less than $500,000 multiplied by the number of attorneys employed by the professional organization; provided, however, that no professional organization shall be required to carry total limits of insurance in excess of $1,000,000 for each claim or be required to carry an aggregate top limit of liability for all claims per year of more than $5,000,000.

   (v) The policy may provide for a deductible or self-insured retained amount and may provide for the payment of defense or other costs out of the stated limits of the policy. In either or both such events, the liability assumed by the shareholders, partners, or members of the professional organization shall include the amount of such deductible or retained self-insurance and shall include the amount, if any, by which the payment of defense costs may reduce the insurance remaining available for the payment of claims below the minimum limits of insurance required by this rule if the ultimate liability for the claim exceeds the amount of insurance remaining to pay for it.

   (vi) A professional act, error, or omission is considered to be covered by professional liability insurance for the purpose of this rule if the policy includes such act, error, or omission as a covered activity, regardless of whether claims previously made against the policy have exhausted the aggregate top limit for the applicable time period or whether the individual claimed amount or ultimate liability exceeds either the per claim or aggregate top limit.

   (c) The organizing document shall also provide, and each shareholder, partner, or member shall be deemed to agree, that if it is determined that the mandatory professional liability insurance as set forth above has lapsed or is otherwise not in effect at the time of the commission of any professional act, error, or omission by any of the shareholders, officers, directors, partners, members, managers, or employees of the professional organization, each of the shareholders, partners, or members of the professional organization at the time of the commission of any such professional act, error, or omission shall be jointly and severally liable to the extent that the assets of the organization are insufficient to satisfy any liability incurred by the corporation for the acts, errors, and omissions of the shareholder, partner, or member and other employees of the organization while they are shareholders, partners, or members, to the same extent as if the shareholder, partner, or member were practicing in the form of a general partnership.

   (8) Except as provided by § 3-201(C)(7), the relevant states' rules of liability applicable to the particular foreign professional organization shall apply to limited liability organizations organized hereunder.

   (9) The liability assumed by the shareholders, partners, or members of the professional organization pursuant to § 3-201(C)(7) is limited to liability for professional acts, errors, or omissions which constitute the practice of law and shall not extend to actions or undertakings that do not constitute the practice of law. Liability, if any, for any and all actions or undertakings, other than professional acts, errors, or omissions, shall be as generally provided by law and shall not be changed, affected, limited, or extended by this rule.

   (10) A professional organization that discontinues the practice of law may nevertheless continue in operation for an additional period of up to 2 years for the purpose of dissolving and winding up the administrative business of the professional organization.

Rule IC(1) amended January 12, 2000; Rule IA and IC(1) amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-201, effective July 18, 2008; §§ 3-201(A), (C), and (C)(7)(b)-(c) amended December 22, 2010.

 

unanimous

§ 3-202. Requests for Certificates of Authority; electronic submission of document requirements; ethical obligations; attorney-client privilege.

§ 3-202. Requests for Certificates of Authority; electronic submission of document requirements; ethical obligations; attorney-client privilege.

   (A) Beginning July 1, 2023, all professional organizations, both domestic and foreign, shall electronically submit all required documents to obtain a Certificate of Authority from the Nebraska Supreme Court to operate in this state, and electronically pay the $25 issuance fee as required by statute or this rule through the online portal. All documents shall be submitted electronically to the Clerk of the Supreme Court to the email address certauthority@nejudicial.gov with the firm name in the subject line. All Certificates of Authority shall be issued electronically to the email address provided by the requestor. No paper Certificates shall be issued by the Clerk.

   (1)  New professional entities. For new professional entities, the professional organization shall electronically submit the following: (a) a cover letter requesting the Certificate of Authority signed by a licensed attorney; (b) the required professional organization form, found as Appendices to this rule which shall list the names and residence addresses of each shareholder, member, or partner, and the names and residence addresses of all persons who are employees of the organization licensed to practice law; (c) a signed copy of the organizing document of such organization; and (d) the $25 issuance fee paid through the online portal. If such accompanying documents meet with the Supreme Court's approval, the Supreme Court will issue a Certificate of Authority to the domestic professional organization to operate under this rule. Applications by foreign professional organizations shall be submitted as set forth at § 3-202(C).

   (2) Expiration and subsequent Certificates. The Certificate of Authority issued by the Supreme Court under this rule shall expire 1 year from its date of issuance. All professional organizations operating under this rule, both domestic and foreign, shall annually electronically request a Certificate of Authority from the Supreme Court to continue to operate in this state. Beginning July 1, 2023, such request shall be submitted in electronic form to the email address in § 3-202(A). The professional organization shall annually electronically submit:  (a) a cover letter requesting the Certificate of Authority signed by a shareholder, member, or partner of the professional organization; (b) the required professional organization form found as an Appendix to this rule which lists the names and residence addresses of shareholders, members, or partners and the names and residence addresses of professional employees authorized to practice law; (c) if not previously submitted, any file-stamped copies required to be submitted pursuant to § 3-202(B); and (d) a $25 issuance fee payable through the online portal.

   (B) A file-stamped copy by the Secretary of State of the organizing document of any domestic professional organization formed pursuant to this rule shall be submitted to the Clerk of the Supreme Court, together with a file-stamped copy of all amendments thereto. Such document or documents shall be submitted electronically prior to any subsequent request for a Certificate of Authority, or the Clerk shall not proceed to issue a subsequent Certificate of Authority.

   (C) Foreign Professional Organizations. Foreign professional organizations shall electronically submit to the Clerk of the Supreme Court all required documents to obtain a Certificate of Authority from the Nebraska Supreme Court to operate in this state as provided in (A) above. The foreign professional organization's application for a Certificate of Authority shall be in the form of a cover letter and executed by a shareholder, partner, or member of the foreign professional organization, and shall set forth or include the following:

   (1) The name of the foreign professional organization;

   (2) The state or other jurisdiction or country where organized, the date of its organization, and a file-stamped or certified statement or certificate issued by an appropriate authority in that jurisdiction that the foreign professional organization exists in good standing under the laws of the jurisdiction of its organization;

   (3) The nature of the business or purposes to be conducted or promoted in Nebraska;

   (4) The address of the registered office and the name and address of the resident agent for service of process in Nebraska;

   (5) An affirmative statement that the foreign professional organization will operate within the purview of this rule and the Nebraska Rules of Professional Conduct;

   (6) Such additional information as may be necessary or appropriate in order to enable the Supreme Court to determine whether such foreign professional organization is entitled to a certificate of authority to transact business in this state; and

   (7) The application shall be accompanied by the foreign professional organization Certificate of Authority form found as an Appendix to this rule, and the foreign professional organization shall also pay the $25 issuance fee through the online portal.

   (D) The professional organization shall do nothing which if done by an attorney employed by it would violate the standards of professional conduct established for such attorney by the Supreme Court. The professional organization shall at all times comply with the standards of professional conduct and the provisions of this rule. Any violation of this rule by the professional organization shall be grounds for the Supreme Court to terminate or suspend its right to practice law or to revoke the professional organization's certificate of authority to practice under this rule.

   (E) Nothing in this rule shall be deemed to diminish or change the obligation of each attorney employed by the professional organization to conduct his or her practice in accordance with the standards of professional conduct; any attorney who by act or omission causes the professional organization to act, or fail to act, in a way which violates such standards of professional conduct, including any provision of this rule, shall be deemed personally responsible for such act or omission and shall be subject to discipline therefor.

   (F) Nothing in this rule shall be deemed to modify the attorney-client privilege specified by statute, nor any comparable common-law privilege.

Rule IIA and IIB amended January 12, 2000; Rule IID(5) amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-202, effective July 18, 2008; §§ 3-202(A), (B), and (C) amended December 22, 2010; §§ 3-202(A) and (D) amended April 17, 2013; § 3-202 amended May 10, 2023.

unanimous

§ 3-203. Employee benefits.

§ 3-203. Employee benefits.

   Any such professional organization may adopt a pension, profit-sharing (whether cash or deferred), health and accident, insurance, or welfare plan for all or part of its employees including lay employees, provided that such plan does not require or result in the sharing of any specific or identifiable fees with lay employees and that any payments made to lay employees or into any such plan on behalf of lay employees are based upon their compensation or length of service or both rather than the amount of fees or income received.

unanimous

§ 3-204. Professional organization practice of law prohibited; exceptions.

§ 3-204. Professional organization practice of law prohibited; exceptions.

   Except as provided by this rule, professional organizations shall not practice law.

   This rule shall not apply to organizations offering prepaid legal services to a defined and limited class of clients, to nonprofit charitable or benevolent organizations organized and operating primarily for a purpose other than the provision of legal services and which furnish legal services as an incidental activity in furtherance of their primary purpose, or to nonprofit organizations which have as their primary purpose the furnishing of legal services to indigent persons, provided that (1) the legal work serves the intended beneficiaries of the organizational purpose, (2) the staff attorney responsible for the matter signs all papers prepared by the organization, and (3) the relationship between the staff attorney and client meets the attorney's professional responsibilities to the client and is not subject to interference, control, or direction by the organization's board or employees except those of a supervising attorney licensed to practice law in Nebraska.

Rule IV amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-204, effective July 18, 2008.

unanimous

Article 3: Discipline Procedures for Lawyers.

Article 3: Discipline Procedures for Lawyers.

(Disciplinary Rules amended September 27, 1995; Disciplinary Rules amended October 17, 2000, effective January 1, 2001. Renumbered and codified as § 3-301 to 3-328, effective July 18, 2008.)

unanimous

Preface.

Preface.

   The Nebraska Supreme Court has the inherent power and duty to prescribe standards of conduct for attorneys admitted to practice law in Nebraska; to determine what constitutes grounds for the discipline of attorneys: to disbar, suspend, censure, or reprimand for cause attorneys whose failure to comply with the obligations of a member of the bar has been duly established.

   Attorneys are a part of the judicial system of the State and are officers of its courts. A license to practice law confers no vested right, but is a conditional privilege, revocable for cause.

   The discipline of attorneys is for the protection of the public, the profession, and the administration of justice.

unanimous

Definitions.

Definitions.

   The following definitions shall apply wherever used in these rules:

ASSOCIATION
   The Nebraska State Bar Association.

ATTORNEY
   A person duly admitted to the practice of law in the State of Nebraska by the Court, under the laws of the State of Nebraska, and who is by his or her oath required to abide by its laws, including the laws of its subdivisions and the Nebraska Rules of Professional Conduct.
Amended July 13, 2005, effective September 1, 2005.

CLERK
   The Clerk of the Supreme Court and Court of Appeals of the State of Nebraska.

COMPLAINANT
   Any person who makes a Grievance.

COMPLAINT
   A written statement prepared by the Counsel for Discipline as a result of an investigation of a Grievance and filed with the appropriate Committee on Inquiry.

CONDITIONAL ADMISSION OF GUILT
   A process whereby a member charged can conditionally admit his or her guilt pending final approval by the Court.

COUNSEL FOR DISCIPLINE
   The person employed by the Nebraska Supreme Court to fulfill the duties and responsibilities set out in these rules, and it shall include that person's staff to whom he or she shall have the power to delegate the authority to make the required investigations and such other duties as he or she may assign to the staff. It shall also include the person appointed by the Court to serve as special prosecutor in a disciplinary case.
Amended December 13, 1995.

COURT
   The Supreme Court of the State of Nebraska.

DISABILITY INACTIVE STATUS
   Suspension from the practice of law due to a disability or substance abuse problem.

EXECUTIVE COUNCIL
   The Executive Council of the Nebraska State Bar Association.

FORMAL CHARGE
   A written statement prepared by the Counsel for Discipline at the direction of the Committee on Inquiry or the Disciplinary Review Board.

GRIEVANCE
   Any written statement made by any person alleging conduct on the part of a member which appears, in the judgment of the Counsel for Discipline, to have merit, and, if true, would constitute a violation of the member's oath, the Nebraska Rules of Professional Conduct, or these rules; allegations of misconduct not appearing in the judgment of the Counsel for Discipline to have merit are not deemed a Grievance under these rules.
Amended February 28, 2001; amended July 13, 2005, effective September 1, 2005.

INQUIRY
   A review of the investigative file of the Counsel for Discipline by a Committee on Inquiry Panel subsequent to the filing of a Complaint. An Inquiry is not a hearing and witnesses shall not be called and evidence shall not be introduced. At the request of the Inquiry Panel, the Counsel for Discipline may appear and participate in the proceeding.

MEMBER
   A member of the Nebraska State Bar Association of any class of membership.

OATH
   The oath of office taken by an attorney or member at the time of his or her admission to practice as provided by Neb. Rev. Stat. § 7-104, or as the same may be hereafter amended.

PRIVATE REPRIMAND
   A reprimand of a member by the Committee on Inquiry of the appropriate Judicial District or the Disciplinary Review Board which shall be in writing, signed by the Chairperson and Vice Chairperson, and directed to the member by United States certified mail, return receipt requested, but shall not be made public.

RELATOR
   The Counsel for Discipline of the Nebraska Supreme Court.

RESPONDENT
   A member charged with a violation of his or her oath, or the Nebraska Rules of Professional Conduct, or these rules.
Amended July 13, 2005, effective September 1, 2005.

RULES
   These rules as adopted by the Court or as the same may be hereafter amended.

RULES OF PROFESSIONAL CONDUCT
   The Nebraska Rules of Professional Conduct as adopted by the Court, together with such amendments thereto as may from time to time be approved by the Court.
Adopted July 13, 2005, effective September 1, 2005.

SERIOUS CRIME
   Any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

unanimous

§ 3-301. Jurisdiction.

§ 3-301. Jurisdiction.

   (A) Every attorney admitted to practice in the State of Nebraska, or required to register pursuant to Neb. Ct. R. §§ 3-1201 to 3-1204, is subject to the exclusive disciplinary jurisdiction of the Court.

   (B) Nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt.

   (C) Time limitations for the Committees on Inquiry and Disciplinary Review Board as set forth herein are directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator but does not justify abatement of any discipline or disability investigation or proceeding.

   (D) Incumbent judges shall not be subject to the jurisdiction of the Counsel for Discipline.

   (E) Every attorney admitted to practice in the State of Nebraska shall pay a disciplinary assessment for each calendar year from January 1 to December 31, payable in advance and subject to a late fee if paid after January 20 of each year, in such amount as may be fixed by the Court. For 2014, the disciplinary assessment 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. For subsequent years, such assessments shall be paid through the Court's on-line system. Different classifications 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 assessment for the remainder of the calendar year in which they are admitted.

   (F) Members who fail to pay the disciplinary assessment shall be subject to suspension from the practice of law as provided in Neb. Ct. R. § 3-803(E).

§ 3-301 amended October 26, 2011, effective January 1, 2012; § 3-301(E) amended December 3, 2013, effective January 1, 2014; § 3-301(E) amended March 19, 2014.

unanimous

§ 3-302. Jurisdiction of disciplinary districts.

§ 3-302. Jurisdiction of disciplinary districts.

   The Disciplinary District which shall have jurisdiction over a member shall be any District, as defined in § 3-307, in which the member maintains an office, or the District in which his or her conduct under investigation occurred. If the member resides in Nebraska but does not maintain an office in Nebraska, jurisdiction shall be in the District of the member's residence. If the member does not maintain an office or a residence in Nebraska and the conduct under investigation did not occur in Nebraska, the Disciplinary Review Board shall determine which District shall have jurisdiction and shall assign the investigation to the Counsel for Discipline.

unanimous

§ 3-303. Grounds for discipline.

§ 3-303. Grounds for discipline.

   (A) The license to practice law in this State is a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of the conditional privilege to practice law to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members as conditions for that privilege.

   (B) Acts or omissions by a member, individually or in concert with any other person or persons, which violate the Nebraska Rules of Professional Conduct as adopted by the Court, the oath, or the provisions of these rules, shall be grounds for discipline whether the act or omission occurred in the course of an attorney-client relationship or otherwise.

Rule 3(B)(1) amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-303, effective July 18, 2008.

unanimous

§ 3-304. Types of discipline.

§ 3-304. Types of discipline.

   (A) Misconduct shall be grounds for:

   (1) Disbarment by the Court; or

   (2) Suspension by the Court; or

   (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or

   (4) Censure and reprimand by the Court; or

   (5) Temporary suspension by the Court; or

   (6) Private reprimand by the Committee on Inquiry or Disciplinary Review Board.

   (B) The Court may, in its discretion, impose one or more of the disciplinary sanctions set forth above.

Rule 4(A)(3) and (B) amended June 16, 2004. Renumbered and codified as § 3-304, effective July 18, 2008.

unanimous

§ 3-305. Advisory Committee.

§ 3-305. Advisory Committee.

   (A) The Court shall appoint a committee to be known as the Advisory Committee which shall consist of one member from each Supreme Court Judicial District in effect at the time of the adoption of these rules and as may hereafter be changed, a member at large to be Chairperson, and a member at large to be Vice Chairperson.

   (B) When the Advisory Committee is first appointed, one member shall be appointed for a term of one year, one member for two years, one member for three years, one member for four years, one member for five years, one member for six years, and one member for seven years. The first person appointed Vice Chairperson shall serve for seven years. Thereafter the full regular term of each member of the Committee shall be for seven years and no member shall serve full regular consecutive terms, but may be reappointed after a lapse of one year; provided, however, that at no time shall the terms of the Chairperson and Vice Chairperson expire at the same time.

   (C) In the interest of continuity and efficiency of operation the Court may deviate from time to time from the above designated terms of membership. Members of the Advisory Committee shall not receive compensation for their services but may be reimbursed for travel and other expenses incidental to the performance of their duties.

   (D) The Advisory Committee shall have the following powers and duties:

   (1) In its discretion, render to a member upon his or her written request an advisory opinion or an interpretation of the Nebraska Rules of Professional Conduct regarding anticipatory conduct on the part of the member. A member requesting an opinion from the Advisory Committee shall prepare and submit with his or her request a statement of the specific facts upon which the opinion is requested and a memorandum directing the attention of the Committee to the pertinent Nebraska Rules of Professional Conduct and relevant case authority. The Chairperson of the Advisory Committee may waive this requirement in appropriate cases.

   (2) Make appropriate arrangements, through its Chairperson, for publication and dissemination of such advisory opinions as the Committee deems of general interest to the members.

Rule 5(D)(1) amended February 22, 1996; Rule 5(A) and (B) amended July 23, 1997; Rule 5(D)(1) amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-305, effective July 18, 2008.

unanimous

§ 3-306. Disciplinary Review Board.

§ 3-306. Disciplinary Review Board.

   (A) The Court shall appoint a committee to be known as the Disciplinary Review Board which shall consist of one member from each Supreme Court Judicial District in effect at the time of the adoption of these rules and as may hereafter be changed, one member of which shall be designated as Vice Chairperson; a member at large to be Chairperson; and three residents of Nebraska, not members, representing the public at large. The Vice Chairperson shall act as Chairperson if the designated Chairperson is absent or disqualified from acting in a particular proceeding. Neither the Chairperson nor the Vice Chairperson shall be nonlawyers.

   (B) When the Disciplinary Review Board is first appointed, one member shall be appointed for a term of one year, one member for two years, one member for three years, one member for four years, one member for five years, one member for six years, and one member for seven years. Thereafter the full regular term shall be for seven years and no member shall serve full regular consecutive terms, but may be reappointed after a lapse of one year. Initially, one representative of the public shall be appointed for a term of two years, one for a term of three years, and one for a term of four years. Thereafter the full regular term of the representative of the public shall be for three years. Representatives of the public may serve full regular consecutive terms.

   (C) In the interest of continuity and efficiency of operation the Court may deviate from time to time from the above designated terms of membership. Any member who is participating in a disciplinary proceeding which is pending at the time the member's term expires shall continue to serve as a member of the Board, with respect to such proceeding, until final disposition of that proceeding. Such a member will serve in addition to the seven regular members of that Board. Members of the Disciplinary Review Board shall not receive compensation for their services but may be reimbursed for travel and other expenses incidental to the performance of their duties.

   (D) The Disciplinary Review Board shall have the following powers and duties:

   (1) If necessary, because of disqualification or unavailability, to direct that the Complaint be referred to some other Committee on Inquiry, in which case the Committee on Inquiry to which it is so referred shall have full power and jurisdiction to the same extent and in like manner as the Committee which had original jurisdiction.

   (2) Assume jurisdiction of and determine a matter to the same extent and with like power as a Committee on Inquiry when directed by the Court.

   (3) Review motions to quash subpoenas.

   (4) Review a dismissal of a Grievance by the Counsel for Discipline upon application of the Complainant filed within thirty days of receipt of notice of the dismissal. After review of the investigative file of the Counsel for Discipline, the Disciplinary Review Board may affirm the dismissal of the Grievance, direct the Counsel for Discipline to further investigate, or direct the Counsel for Discipline to file a Complaint with the appropriate Committee on Inquiry. Should the Disciplinary Review Board reverse the Counsel for Discipline's decision to dismiss a Grievance, a special prosecutor shall be appointed to prosecute the action.

   (5) Review the private reprimand issued by the Committee on Inquiry in conformity to § 3-309(H) upon written application of the member against whom the reprimand was issued or the Counsel for Discipline filed within thirty days of issuance of the reprimand. After review of the investigative file of the Counsel for Discipline, the Disciplinary Review Board may affirm the issuance of the private reprimand, reverse the issuance of the private reprimand and dismiss the complaint, or determine that there are reasonable grounds for discipline of the Respondent and that a public interest would be served by the filing of a Formal Charge.

   (6) Review a dismissal of a Complaint by the Committee on Inquiry in conformity with § 3-309(H) upon written application of the Counsel for Discipline filed within thirty days of receipt of the notice of dismissal. After review of the investigative file of the Counsel for Discipline, the Disciplinary Review Board may affirm the dismissal of the Complaint; determine that there are reasonable grounds for discipline of the Respondent but that no public interest would be served by the filing of a Formal Charge and, thereupon, prepare and issue a private reprimand; or determine that there are reasonable grounds for discipline of the Respondent and that a public interest would be served by the filing of a Formal Charge. If the Disciplinary Review Board determines that a Formal Charge is warranted, the Board shall direct the Counsel for Discipline to file the same with the Clerk.

   (7) A review provided for in § 3-306(D)(4), (5), or (6) shall be completed within sixty days after it is received by the Disciplinary Review Board unless the Chairperson of the Disciplinary Review Board, because of the extent of the record or the complexity of the issues, determines that additional time is necessary.

   (E) Reviews provided for in § 3-306(D)(4), (5), or (6) shall be conducted by a panel appointed by the Chairperson of the Board. The panel shall be composed of three members of the Disciplinary Review Board. One member of each panel shall be a nonlawyer. The Chairperson of the Board shall appoint one lawyer member of the panel to serve as Chairperson of the panel.

Rule 6(A) amended November 14, 1996; Rule 6(D)(4) amended November 22, 2000. Renumbered and codified as § 3-306, effective July 18, 2008.

unanimous

§ 3-307. District Committee on Inquiry.

§ 3-307. District Committee on Inquiry.

   (A)(1) The Court shall appoint a Committee on Inquiry in each of six districts. For the purposes of these rules, such districts shall be coterminous with the Supreme Court Judicial District of the same number in effect at the time of the adoption of these rules, and as hereafter may be changed. The Committees on Inquiry shall contain the following number of members, one-third of whom shall be nonlawyers: districts 1 and 2 shall contain 12 members and districts 3, 4, 5, and 6 shall contain 6 members.

   (2) The members of each committee shall be residents of, or have their principal law office in, the district in which they serve as herein described; provided, however, that members of the Committee on Inquiry for district 4 may reside in any part of Douglas County, and members of the Committee on Inquiry for district 2 may reside in Sarpy County.

   (3) Members of the Committees on Inquiry as they exist as of the date of adoption of this rule amendment shall continue to serve our their terms on such committees; however, when those terms expire, replacement for such members shall be in accordance with the boundaries and residence requirements of these rules.

   (B) The Court shall designate one member as Chairperson and two members as Vice Chairpersons, either of whom may serve as Chairperson in the event of the disqualification or unavailability of the Chairperson. Neither the Chairperson nor the Vice Chairpersons shall be nonlawyers.

   (C) When a Committee on Inquiry is first appointed, one-sixth of its members shall be appointed for a term of one year, one-sixth for a term of two years, one-sixth for a term of three years, one-sixth for a term of four years, one-sixth for a term of five years, and one-sixth for a term of six years and thereafter all regular terms shall be six years. No member of the Committee shall serve consecutive terms but may, however, be reappointed after a lapse of one year.

   (D) In the interest of continuity and efficiency of operation the Court may deviate from time to time from the above designated terms of membership. Any member who is participating in a disciplinary proceeding which is pending at the time the member's term expires shall continue to serve as a member of the Committee, with respect to such proceeding, until final disposition of that proceeding. Such a member will serve in addition to the regular members of that Committee. Members of the Committee shall not receive compensation for their services but may be reimbursed for travel and other expenses incidental to performance of their duties.

   (E) The Committee on Inquiry shall have the following powers and duties:

   (1) Review the investigations and Complaint presented to it by the Counsel for Discipline.

   (2) Dismiss the Complaint upon being satisfied it is without foundation and merit.

   (3) Issue a private reprimand if the Complaint indicates a matter not appropriate for a Formal Charge.

   (4) Make application to the Court requesting that a member be placed on disability inactive status or for an immediate temporary suspension of a member in conformity with §§ 3-311 or 3-312.

   (5) Serve as an Arbitration Panel as provided by the Nebraska State Bar Association (NSBA) Fee Arbitration Plan.

   (F) An Inquiry regarding a Complaint filed with a Committee on Inquiry by the Counsel for Discipline or a Matter submitted  for Fee Arbitration to the NSBA Fee Arbitration Panel shall be conducted by an Inquiry Panel or Arbitration Panel composed of three members of the Committee appointed by the Chairperson of the Committee, one of whom shall be the Chairperson or a Vice Chairperson of the Committee, who shall serve as Chairperson of the Inquiry Panel or Arbitration Panel. One member of each Inquiry Panel or Arbitration Panel shall be a nonlawyer.

Rule 7(A)(2) amended November 23, 1994; Rule 7(A)(2) amended May 30, 1996; Rule 7(A)(2) amended November 12, 1998; Rule 7(A)(1)-(3) amended March 24, 2004. Renumbered and codified as § 3-307, effective July 18, 2008; § 3-307(E)(5) adopted and § 3-307(F) amended April 6, 2016.

unanimous

§ 3-308. Counsel for Discipline.

§ 3-308. Counsel for Discipline.

   (A) The Counsel for Discipline shall be appointed by the Nebraska Supreme Court and his or her appointment and tenure of office shall be on such terms and for such period as may be designated by the Court. The Counsel for Discipline shall not be permitted to engage in the private practice of law except the Court may agree to a reasonable period of transition after his or her appointment.

   (B) The Counsel for Discipline shall have the following powers and duties.

   (1) Review, investigate, or refer for investigation all matters of alleged misconduct called to his or her attention by Grievance or otherwise. The Counsel for Discipline may initiate Grievances.

   (2) Notify a member in writing that he or she is the subject of a Grievance and furnish the member a copy thereof within fifteen days of receipt of the Grievance.

   (3) Dismiss a Grievance if, in his or her judgment, it is without foundation and merit.

   (4) Refer members to Attorney Assistance Programs under appropriate circumstances.

   (5) Prepare a Complaint and file it with the appropriate Committee on Inquiry if, in his or her judgment, there is sufficient evidence to substantiate such Complaint.

   (6) Confer with any Committee on Inquiry prior to dismissal of a Grievance or preparation of a Complaint if he or she is in doubt as to the proper disposition of the matter.

   (7) Provide research services for the Advisory Committee.

   (8) Maintain records as follows:

   (a) Records of correspondence received by the Counsel for Discipline but not classified as a Grievance shall be maintained for a period of three years, after which time they may be destroyed.

   (b) Records of Grievances which have resulted in referral to Attorney Assistance Programs shall be maintained for a period of three years, after which time they may be destroyed.

   (c) Records of Grievances which have been dismissed by the Counsel for Discipline for lack of foundation and merit shall be maintained for a period of three years, after which time they may be destroyed.

   (d) Records of Grievances in which Complaints have been filed and then dismissed shall be maintained for a period of five years after final disposition of the complaint, after which time they may be destroyed.

   (e) Records of Grievances against attorneys that have resulted in a reprimand by the Committee on Inquiry or the Disciplinary Review Board or probation, a reprimand, censure, suspension, or disbarment of the attorney shall be maintained until the death of the attorney, after which time they may be destroyed.

   (9) Make a semiannual summary report to the Court of all disciplinary matters for each six-month period. Such report shall include the following information:

   (a) Number of members complained against.

   (b) The general nature of the Grievances.

   (c) The disposition or status thereof and such other matters as the Court may, from time to time, request.

   (d) A copy of the portion of the report relating to each Committee on Inquiry shall be submitted to the Chairperson of that Committee on Inquiry.

   (10) Assist the Court in any disciplinary matter then pending before the Court, if requested.

unanimous

§ 3-309. Procedure: Committee on Inquiry; Counsel for Discipline; Disciplinary Review Board.

§ 3-309. Procedure: Committee on Inquiry; Counsel for Discipline; Disciplinary Review Board.

   (A) All allegations of misconduct must be filed with the office of the Counsel for Discipline. All allegations of misconduct received by any other person shall be transmitted forthwith to the Counsel for Discipline.

   (1) Upon receipt of information indicating an abuse of alcohol or drugs by a member or the existence of a mental health or gambling problem, the Counsel for Discipline shall release such information to the Nebraska Lawyers Assistance Program. The release of this information shall not be a violation of the confidentiality requirements of § 3-318.

   (2) Upon receipt of a grievance against a member arising out of conduct in a pending or closed federal case, including civil, criminal, bankruptcy, grand jury, or  federal proceeding in which the lawyer may be a witness, Counsel for Discipline shall disclose and refer such grievance to the federal judge assigned to the case for consideration of discipline under the federal attorney discipline rules. Any investigation of such grievance by Counsel for Discipline shall be held in abeyance until the federal court resolves the matter, provided, however, that if the federal court fails to resolve the grievance in a timely manner, Counsel for Discipline may take further action without regard to the referral to the federal court. Discipline by the federal court under its disciplinary rules does not preclude discipline under these rules pursuant to the Nebraska Rules of Professional Conduct. Referral under this subsection shall not be a violation of the confidentiality requirements of § 3-318.

   (B) All investigations, whether upon allegations of misconduct or otherwise, shall normally be initiated by the Counsel for Discipline.

   (C) When it appears to the Counsel for Discipline that allegations of misconduct do not have merit or that the allegations, if true, would not constitute grounds for discipline, he or she may decline to investigate and shall so advise the Complainant in writing with a proper explanation. In making a determination, the Counsel for Discipline may make such preliminary inquiry regarding the underlying facts as he or she deems appropriate. This may include requests for information from the Complainant and the member. All doubts shall be resolved in favor of an investigation. The Counsel for Discipline shall decline to investigate allegations of misconduct against current court-appointed attorneys in active criminal and juvenile cases. Such allegations and allegations of conflict of interest and ineffective assistance of counsel should be considered within the context of the underlying case. A declination by the Counsel for Discipline to investigate and dismissal pursuant to this rule are not appealable to the Committee on Inquiry or the Disciplinary Review Board.

   (D) If it appears to the Counsel for Discipline that allegations of misconduct may have merit and, if true, would constitute grounds for discipline, he or she shall notify the member against whom the allegations are directed that the member is the subject of a Grievance, and within fifteen days of its receipt furnish the member a copy thereof by certified mail, return receipt requested, at the member's last known address.

   (E) Upon receipt of notice of a Grievance from the Counsel for Discipline, the member against whom the Grievance is directed shall prepare and submit to the Counsel for Discipline, in writing, within fifteen working days of receipt of such notice, an appropriate response to the Grievance, or a response stating that the member refuses to answer substantively and explicitly asserting constitutional or other grounds therefor. For good cause, the Counsel for Discipline may grant additional time for the filing of a response.

   (F) If, upon conclusion of any investigation, the Counsel for Discipline determines there are not reasonable grounds for discipline of a member against whom a Grievance is directed, he or she shall dismiss the Grievance and shall so advise the Complainant in writing with a proper explanation. The Counsel for Discipline shall further advise such Complainant that an appeal may be taken to the Disciplinary Review Board pursuant to § 3-314(A).

   (G) If, upon conclusion of any investigation, the Counsel for Discipline determines there are reasonable grounds for discipline of a member against whom a Grievance is made, he or she shall reduce the Grievance to a Complaint specifying with particularity the facts which constitute the basis thereof and the grounds for discipline which appear to have been violated. The Complaint shall be forwarded by the Counsel for Discipline to the member by regular mail at the member's last known address. The member shall have ten working days from the date the Complaint is mailed to submit an additional written explanation of the facts or circumstances for inclusion in the Counsel for Discipline's investigative file. The Complaint and either the investigation file, or a copy thereof, shall then be immediately forwarded to the proper Committee on Inquiry.

   (H) Upon receipt of the Complaint and file from the Counsel for Discipline, the Chairperson of the Committee on Inquiry shall appoint an Inquiry Panel pursuant to § 3-307(F) which shall within thirty days review the Complaint and either:

   (1) Determine that the Complaint, if true, would not constitute grounds for discipline and dismiss the Complaint.

   (2) Determine that there are not reasonable grounds for discipline of the Respondent, and dismiss the Complaint.

   (3) Determine that there are reasonable grounds for discipline of the Respondent but that no public interest would be served by the institution of a Formal Charge. The Panel thereupon shall prepare and issue to the Respondent a private reprimand which shall be made a permanent part of the file in the office of the Counsel for Discipline, and this reprimand shall be received as evidence in any subsequent disciplinary proceeding against the Respondent only after a finding of misconduct in the subsequent disciplinary proceeding.

   (4) Determine that there are reasonable grounds for discipline of the Respondent and that a public interest would be served by the filing of a Formal Charge. The Counsel for Discipline shall thereafter prepare and sign Formal Charges for filing with the Court. The Formal Charge shall be made in the name of the State of Nebraska on the relation of the Counsel for Discipline of the Nebraska Supreme Court.

   (I) The Respondent or the Counsel for Discipline may appeal the actions of the Inquiry Panel to the Disciplinary Review Board in conformity with §§ 3-306(D)(5) and (6), and 3-314(D).

Rule 9(C) and (D) amended March 13, 1998; Rule 9(A) and (B) amended February 28, 2001; Rule 9(C) amended June 25, 2008, effective July 9, 2008. Renumbered and codified as § 3-309, effective July 18, 2008; § 3-309(A)(1)-(2) amended March 16, 2011.

unanimous

§ 3-310. Procedure: Nebraska Supreme Court.

§ 3-310. Procedure: Nebraska Supreme Court.

   (A) Proceedings for discipline of members shall be considered civil in their nature and for the purpose of protecting the public and the good name of the members, and may be instituted against any person who has been licensed to practice in the courts of the State of Nebraska.

   (B) Proceedings for discipline of members may be instituted and prosecuted in the name of the State of Nebraska on the relation of the Counsel for Discipline of the Nebraska Supreme Court without leave of court.

   (C) Proceedings shall be initiated by the Counsel for Discipline filing a Formal Charge setting forth the grounds thereof with reasonable definiteness. The Formal Charge shall be filed with the Clerk who shall then docket the cause as an original proceeding in the Court. No initial filing fee shall be charged in these actions.

   (D) Upon the filing in the Court of a Formal Charge as contemplated and provided for by these rules against any member, Counsel for Discipline shall prosecute the Formal Charge against the Respondent. If the Court is advised by Counsel for Discipline by written notice or by a motion filed by the Respondent that, for reasons specified therein, a conflict exists or Counsel for Discipline cannot otherwise carry out such duty, the Court within ten days, in its discretion, may appoint any member to prosecute the Formal Charge.

   (E) The Counsel for Discipline or any member so appointed may within thirty days, in his or her discretion, prepare and file an amended Formal Charge. Within five days after the time fixed for filing an amended Formal Charge, service shall be made upon the Respondent as provided for in § 3-310(G).

   (F) If the Counsel for Discipline or the member so appointed has in his or her possession evidence which, in his or her opinion, warrants any additional Charge or Charges, the Counsel for Discipline or the member so appointed may incorporate such additional Charge or Charges in the Formal Charge and prosecute the same, despite the fact that they may not have been presented to the Committee on Inquiry or the Disciplinary Review Board.

   (G) Service upon the Respondent may be had by serving upon him or her a copy of the Formal Charge or any amended Formal Charge and notice of the time for answer in the same manner as service of summons is had in civil proceedings in the district courts of the State, in which case it shall be proved by the official return of the officer making such service. Service shall be deemed to have been waived if the Respondent shall sign a written receipt for a copy of the Formal Charge and notice. Service may likewise be had by the mailing by the Clerk of a certified copy of said Formal Charge and notice by certified mail, return receipt requested, to the Respondent at his or her last known address; and in that event the official return card of the United States mail, signed by the Respondent, acknowledging receipt of the envelope containing the copy of said Formal Charge and notice, shall be deemed sufficient proof of service. In the event that it shall appear by affidavit that personal service cannot be had upon the Respondent and that letters to the Respondent's last known address are returned unclaimed, service may be had upon the Respondent by publication of notice for two successive weeks in some legal newspaper published in the county wherein the Respondent last resided. Such notice shall state that Formal Charge for disciplinary action has been filed in the Court against the Respondent and shall give the date of filing and the time within which Respondent is required to answer.

   (H) The answer of the Respondent shall be filed within thirty days after service of summons and a copy of the Formal Charge or within thirty days after service by publication, as herein provided, shall have been completed. For good cause shown the Court may extend the time to answer.

   (I) If no answer be filed within the time limited therefor, or if the answer raises no issue of fact or of law, the matter may be disposed of by the Court on its own motion or on a motion for judgment on the pleadings, but in either case there shall be an opportunity for oral argument prior to entry of an order of disbarment by the Court.

   (J) Upon the filing of an answer raising an issue of fact, the Court shall refer the matter to a member as referee. It shall be the duty of such referee to fix an early date for hearing, notify the relator and the Respondent or their respective attorneys of record, and without delay to hear such testimony as may be introduced under the pleadings. The referee shall have all powers of a referee in civil actions in the courts of Nebraska. The referee shall observe the rules of evidence, discovery rules, and motion practice applicable in civil actions in the district courts of the State of Nebraska. The standard of proof in hearings before the referee shall be clear and convincing. The referee shall have a competent reporter present who shall take in shorthand or by any mechanical device and transcribe in typewriting all oral evidence adduced at the hearing had before the referee. The referee may continue the hearing from time to time as circumstances may require, but shall not delay his or her proceedings unless justice and equity so require. The referee shall make a written report within four months of the referee's appointment, unless extended by order of the Court, stating his or her findings of fact and recommendations. The typewritten record of the proceedings shall have attached to it all of the exhibits offered at the hearing, and shall be certified by the referee. The referee shall promptly transmit to the Court the referee's report, together with such record so certified, and shall transmit a copy of the report to the Respondent.

   (1) When the transcription of oral evidence, exclusive of exhibits, exceeds 250 pages in length, the reporter shall prepare one or more write-protected 3½-inch computer disks containing the transcription of proceedings. Such disks shall be formatted in Microsoft Word, or, if such formatting cannot be accomplished, in ASCII text. An adhesive label shall be affixed to each disk legibly identifying the case caption, docket and page or case numbers, disk number (1 of 2, etc.), the format utilized, and the name of the reporter. The first line of the label shall be left blank. Such disk(s) shall be transmitted to the Court by the referee at the same time that the typewritten record of proceedings and any attached exhibits are filed in the Court. Such disk(s) shall be for the exclusive use of the Supreme Court and authorized court personnel. Any reporter who lacks the technological capability to comply with this requirement shall include in the transcription of oral evidence a separate certificate so stating.

   (2) In addition to the written report of the referee, he or she shall also prepare one or more write-protected 3½-inch computer disks, DVD's, or CD's containing the report. Such disks shall be formatted in Microsoft Word, or, if such formatting cannot be accomplished, in ASCII text. An adhesive label shall be affixed to each disk legibly identifying the case caption, docket and page or case numbers, disk number (1 of 2, etc.), the format utilized, and the name of the referee. The first line of the label shall be left blank. The referee shall transmit such disk(s) to the Court at the same time that the referee's written report is filed in the Court. Such disk(s) shall be for the exclusive use of the Supreme Court and authorized court personnel. Any referee who lacks the technological capability to comply with this requirement shall include in the report a separate certificate so stating.

   (K) Upon the filing of an answer raising an issue of law only, the Court may, in its discretion, refer the matter to a member as referee for such action in relation thereto as the Court may by its order of reference direct.

   (L) Within ten days after the filing of the report of the referee, any party thereto may file written exceptions to such report. If no exceptions are filed, the Court, in its discretion, may consider the findings final and conclusive, and on motion shall enter such order as the evidence and law require.

   (M) If exceptions be filed to the findings or report of the referee, briefs and arguments shall be filed and oral arguments made in the Court as required by the rules of the Court in civil cases. The party filing exceptions to the findings and report of the referee shall serve and file his or her brief within thirty days after the filing of such report and the brief of the adverse party shall be served and filed within thirty days thereafter. The case shall thereupon be placed upon the Court call for hearing.

   (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 Administrator of Attoney Services Division.

   (O) Any party thereto may file a motion for rehearing at any time within twenty days from the filing of the opinion or rendition of the judgment of the Court.

   (P) Costs of these actions may be taxed by the Court as the Court shall see fit.

   (Q) The Counsel for Discipline shall prosecute any case referred to him or her by the Court for prosecution.

   (R) No application for modification of judgment pursuant to § 3-304 shall be made prior to the expiration of one year after the final order in such proceedings shall have been entered except in cases where the only service upon Respondent has been by publication, and no appearance has been made by Respondent, and except where the application is made under the terms of Neb. Rev. Stat. §§ 25-2001 to 25-2009.

   (S) No application for reinstatement from an order of suspension shall be made prior to the expiration of the period of suspension unless otherwise provided by the Court in said order. The member shall undergo a character and fitness evaluation as part of the application for reinstatement. See Neb. Ct. R. § 3-803(F).

   (T) No application for reinstatement from an order of disbarment shall be made prior to the expiration of 5 years after the final order in such proceedings shall have been entered.  All applications for reinstatement from an order of disbarment shall include a character and fitness evaluation pursuant to Neb. Ct. R. § 3-803(F).

   (U) A member seeking reinstatement must inform the Counsel for Discipline of all prior discipline taken against him or her in any jurisdiction. The disciplinary information shall be supplied as part of the application for reinstatement as provided for in section (V) below.

   (V) Procedure for reinstatement.

   (1) Applications for reinstatement shall be completed by the member seeking reinstatement and shall be on a form(s) supplied by the Attorney Services Division. The application shall be filed in the Supreme Court in the case number of the disciplinary proceeding by the Administrator of Attorney Services.

   (2) Copies of every such application shall be  served on the Counsel for Discipline, the current Chairperson of the Committee on Inquiry for the District which exercised original jurisdiction, and the Chairperson of the Disciplinary Review Board, any one or more of whom may appear and resist such application. Any other persons may likewise appear upon obtaining leave of the Court and make such resistance.

   (3) Within 20 days after filing the application for reinstatement, the Counsel for Discipline and the District Committee on Inquiry, by its Chairperson, shall each file a written statement recommending the application be granted or denied and the reasons therefor. The Court may deny such application without a hearing if justice and equity require it.

   (4) If the application is allowed to proceed, the Court shall direct the matter to the Nebraska State Bar Commission for a character and fitness evaluation as provided for in Neb. Ct. R. § 3-803(F). Upon completion of the character and fitness evaluation, the Commission shall make a recommendation to the Supreme Court concerning the member’s character and fitness to practice law. If the Commission believes that conditional reinstatement is necessary for the protection of the public, it may recommend conditions for reinstatement, including, but not limited to, temporary monitoring. At the time of the submission to the Court, the applicant shall be notified of the Commission’s recommendation.

   (5) The Court will consider written objections that are filed by any party within fourteen (14) days of the Commission’s recommendations being submitted to the Court, and there shall be no hearing on written objections. After review of the Commission’s recommendations and any written objections, in its discretion, the Court may:

   (a) Grant the applicant’s request for reinstatement without condition;

   (b) Deny the applicant’s request for reinstatement;

   (c) Grant conditional reinstatement when the Court determines that the protection of the public requires reinstatement subject to conditions. Such conditions may include any, all, or none of the conditions recommended by the Commission, and such additional or different conditions deemed necessary by the Court.

   (6) Unless otherwise provided, the Court will not consider any motions not authorized by this subsection.

Rule 10(H) amended October 30, 1996; Rule 10(D) amended September 11, 2002; Rule 10(J) amended November 14, 2002; Rule 10(B), (C), (I) and (P) amended August 27, 2003; Rule 10(J) amended August 31, 2005. Renumbered and codified as § 3-310, effective July 18, 2008. § 3-310(N) amended December 3, 2013, effective January 1, 2014; § 3-310(N) amended March 19, 2014; § 3-310(S)-(V) amended September 4, 2019; § 3-310(S) and (V)(4) amended January 19, 2022; § 3-310(V) amended November 8, 2023.

unanimous

§ 3-311. Disability inactive status: Incompetency or incapacity.

§ 3-311. Disability inactive status: Incompetency or incapacity.

   (A) Status requested by Committee on Inquiry. Upon a Grievance or other information indicating that a member is incapacitated from continuing the practice of law by reason of physical or mental illness, or because of addiction to drugs or intoxicants, the appropriate Committee on Inquiry, with the assistance of the Counsel for Discipline, may prepare and submit to the Court an application requesting that the member be placed on disability inactive status. Such application shall be signed by the Chairperson of such Committee, and shall set forth grounds clearly indicating a temporary suspension of the member is necessary and proper.

   (B) Upon the filing of such application the Court shall provide for notice to the member who shall have the right of representation by counsel selected by the member or appointed by the Court, if it should appear to the Court the member may not be competent to do so. Notice shall be by service of the application by any means permitted with respect to service of formal charges under § 3-310(G), except that service may not be accomplished by publication.

   (C) Status requested by a member. A member who is incapacitated from continuing the practice of law by reason of physical or mental illness, or because of addiction to drugs or intoxicants, may request that the member be placed on disability inactive status. Such application shall be signed by the member and shall set forth grounds clearly indicating that the member should be placed on disability inactive status. The application and any documents shall be submitted by the member to the Attorney Services Divison as provided in Neb. Ct. R. § 3-803(B)(2). The Administrator of Attorney Services shall provide notice of the application to the Counsel for Discipline and thereafter submit the application and all documents to the Clerk of the Supreme Court and Court of Appeals for filing. The member shall have the same rights of representation as set forth in § 3-311(B).

   (D) The Court shall take or direct, consistent with fundamental fairness and due process, such action as it deems necessary and proper to determine whether the member is incapacitated from continuing the practice of law, including a direction for an examination of the member by such qualified medical experts as the Court shall designate at the cost of the member.

   (E) If, upon due consideration of the matter, the Court concludes 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 mandatory membership assessments required by Neb. Ct. R. § 3-803(D).

   (F) If, in the course of a proceeding under this rule, the Court shall determine the member is not incapacitated from practicing law, it shall take such action as it deems proper and advisable, including a direction for the resumption of any disciplinary proceedings being held in abeyance.

   (G) Any member on disability inactive status under the provisions of this rule shall be entitled to apply for reinstatement by submitting to the Attorney Services Division an application supported by clear and convincing evidence the member's disability has been removed and the member is capable of resuming the practice of law. The Administrator of Attorney Services shall provide notice of the application to the Counsel for Discipline and thereafter submit the application and supporting documents to the Clerk of the Supreme Court and Court of Appeals for filing. Upon such application, the Court may take or direct such actions as its deems necessary and proper to determine if the disability of such member has been removed, including a direction for an examination of the member by such qualified medical experts as the Court shall designate. The Court may direct the expense of such an examination shall be paid by the member.

   (H) The filing of an application for reinstatement by a member placed on disability inactive status under this rule shall be deemed to constitute a waiver of any physician-patient privilege with respect to any treatment of the member during the period of his or her disability. The member shall be required to disclose the name of every psychiatrist, psychologist, physician, and hospital or institution by whom, or in which, the member has been examined or treated since his or her placement on disability inactive status, and the member shall furnish to the Court written consent and waiver to each such person and institution to furnish such information and records as requested by court-appointed medical experts.

Rule 11(B) amended September 11, 2002; Rule 11(H) deleted September 11, 2002. Renumbered and codified as § 3-311, effective July 18, 2008. § 3-311(D) amended December 3, 2013, effective January 1, 2014; § 3-311 amended July 2, 2014; § 3-311(A), (C), (G), (H) amended March 25, 2020.

unanimous

§ 3-312. Temporary suspension: Continuing damage to the public and members, nonpayment of support orders, or conviction of a crime.

§ 3-312. Temporary suspension: Continuing damage to the public and members, nonpayment of support orders, or conviction of a crime.

   (A) Upon a Grievance that a member is engaging in conduct that, if allowed to continue until final disposition of disciplinary proceedings, will cause serious damage to the public and members, or upon certification or notice that a member is delinquent on or is failing to pay a court-ordered obligation under a support order, or when a member has been convicted of a serious crime, the appropriate Committee on Inquiry with the assistance of the Counsel for Discipline may prepare and submit to the Court an application for the temporary suspension of the member from the practice of law until final disposition of any pending disciplinary proceedings. Such application shall be signed by the Chairperson of the Committee and shall set forth grounds clearly indicating that a temporary suspension of the member is necessary and proper.

   (B) Upon the filing of such application for temporary suspension, the Court shall provide for notice to the member who shall have the right of representation by counsel selected by the member or appointed by the Court, if it should appear to the Court the member may not be competent to do so. Notice shall be by service of the application by any means permitted with respect to service of formal charges under § 3-310(G).

   (C) The Court shall take or direct, consistent with fundamental fairness and due process, such action as it deems necessary and proper to determine if the member should be suspended pending the final disposition of the disciplinary proceedings.

   (D) If, upon due consideration of the matter, the Court concludes the member should be suspended pending final disposition of the disciplinary proceedings, it shall enter an order suspending the member until the further order of the Court.

   (E) Any member suspended under the provisions of this rule shall be entitled to apply for termination of the temporary suspension by filing with the Court an application supported by clear and convincing evidence that the member is no longer engaging in conduct which, if allowed to continue until final disposition of any disciplinary proceedings, would cause serious continuing damage to the public and members, and that there is no reasonable likelihood that such conduct will recur.

   (F) Any temporary suspension order issued under this rule shall automatically terminate at the final disposition of the disciplinary proceedings or upon application to and order of the Court that the reason for the temporary suspension of the member no longer exists.

Rule 12 amended September 9, 1999; Rule 12(B) amended September 11, 2002. Renumbered and codified as § 3-312, effective July 18, 2008.

unanimous

§ 3-313. Conditional admission of grievance, complaint, or formal charge.

§ 3-313. Conditional admission of grievance, complaint, or formal charge.

   (A) At any time prior to the Clerk's entering a Formal Charge against a Respondent on the docket of the Court, the Respondent may file with the Clerk a conditional admission of a Grievance or of a Complaint in exchange for a stated form of consent judgment of discipline as to all or a part of the Grievance or Complaint pending against him or her as determined to be appropriate by the Counsel for Discipline and the appropriate Committee on Inquiry; such conditional admission is subject to approval by the Court. The conditional admission shall include a written statement that the Respondent knowingly admits or knowingly does not challenge or contest the truth of the matter or matters conditionally admitted and waives all proceedings against him or her in connection therewith. If a tendered conditional admission is not finally approved as above provided, it may not be used as evidence against the Respondent in any way.

   (B) At any time after the Clerk has entered a Formal Charge against a Respondent on the docket of the Court, the Respondent may file with the Clerk a conditional admission of the Formal Charge in exchange for a stated form of consent judgment of discipline as to all or part of the Formal Charge pending against him or her as determined to be appropriate by the Counsel for Discipline or any member appointed to prosecute on behalf of the Counsel for Discipline; such conditional admission is subject to approval by the Court. The conditional admission shall include a written statement that the Respondent knowingly admits or knowingly does not challenge or contest the truth of the matter or matters conditionally admitted and waives all proceedings against him or her in connection therewith. If a tendered conditional admission is not finally approved as above provided, it may not be used as evidence against the Respondent in any way.

   (C) No publicity will be given to any such conditional admission of a Grievance, Complaint, or Formal Charge described in § 3-313(A) and (B) until approval of the conditional admission by the Court.

Rule 13(A) - (C)  amended January 24, 2002. Renumbered and codified as § 3-313, effective July 18, 2008.

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§ 3-314. Right of appeal.

§ 3-314. Right of appeal.

   (A) Complainant may appeal to the Disciplinary Review Board a dismissal of the Grievance by the Counsel for Discipline. Allegations of misconduct dismissed by the Counsel for Discipline pursuant to § 3-309(C) are not appealable to the Committee on Inquiry or the Disciplinary Review Board. Except on a showing of good cause, notice of appeal shall be made in writing to the Chairperson of the Disciplinary Review Board within thirty days after notification of such dismissal. Said Board may then take such action as it deems appropriate.

   (B) In cases where the Counsel for Discipline prepares a Complaint and files it with the appropriate Committee on Inquiry pursuant to § 3-309(G), the Counsel for Discipline shall notify the Complainant by mail of the findings of the Committee on Inquiry.

   (C) If the Committee on Inquiry Panel dismisses the Complaint pursuant to § 3-309(H), the Counsel for Discipline may appeal the decision to the Disciplinary Review Board. Except on a showing of good cause, notice of appeal shall be made in writing to the Chairperson of the Disciplinary Review Board within thirty days after notification of the dismissal of the Complaint by the Committee on Inquiry. In the event of an appeal, the Chairperson of the Disciplinary Review Board shall obtain from such Committee on Inquiry the Complaint, investigative file of the Counsel for Discipline, and any report prepared by the Committee.

   (D) Either the Respondent or the Counsel for Discipline may appeal to the Disciplinary Review Board a reprimand issued to the Respondent by the Committee on Inquiry upon written application filed with the Chairperson of the Disciplinary Review Board within thirty days of issuance of the reprimand. 

   (E) If the Disciplinary Review Board has issued a private reprimand to the Respondent, then the Respondent may file an appeal with the Clerk within thirty days of the Disciplinary Review Board decision. Counsel for Discipline may not appeal to the Court the issuance of a private reprimand from the Disciplinary Review Board. In the event that the Respondent files an appeal of a private reprimand to the Court, then the Counsel for Discipline shall file formal charges as provided in § 3-310 and the procedures outlined in § 3-310 shall be followed.

Rule 14(A), (C), and (D) amended Dec. 13, 1995; Rule 14(A) amended February 28, 2001. Renumbered and codified as § 3-314, effective July 18, 2008; § 30314(D) and (E) amended September 7, 2022.

unanimous

§ 3-315. Voluntary surrender of license.

§ 3-315. Voluntary surrender of license.

   (A) Once a Grievance, a Complaint, or a Formal Charge has been filed, suggested, or indicated against a member, the member may voluntarily surrender his or her license.

   (1) The voluntary surrender of license shall state in writing that the member knowingly admits or knowingly does not challenge or contest the truth of the suggested or indicated Grievance, Complaint, or Formal Charge and waives all proceedings against him or her in connection therewith.

   (2) A voluntary surrender of license shall not terminate such Grievance, Complaint, or Formal Charge unless an appropriate order is entered by the Court.

Rule 15 amended March 14, 2001. Renumbered and codified as § 3-315, effective July 18, 2008.

unanimous

§ 3-316. Notification requirements by disbarred or suspended members.

§ 3-316. Notification requirements by disbarred or suspended members.

   (A) Whenever a member is disbarred or suspended from the practice of law or surrenders his or her license under § 3-315, such member shall:

   (1) Notify in writing all of the member's present clients of such fact, and

   (2) Assist each client in obtaining a member of the client's choice to complete all matters being handled by him or her, and

   (3) Promptly refund all client funds and close all attorney trust accounts if the imposed sanction is greater than a 30-day suspension. A trust account may remain open if, after a reasonable search, the client or clients eligible to receive funds cannot be located, and

   (4) Notify in writing all members and nonresident attorneys involved in pending legal or other matters being handled by the member of his or her altered status, and

   (5) Return to the Clerk the member's Nebraska State Bar Association membership card if any such card remains in the possession of the member at the time of being disbarred or suspended.

   (6) Within thirty days from the date of said disbarment, suspension, or voluntary surrender, file an affidavit with the Court, stating full compliance with the requirements of this rule and shall simultaneously submit evidence of full compliance.

   (7) Every order (judgment) of disbarment or suspension shall direct the Respondent to comply with § 3-316.

   (8) The Clerk shall notify the Court, in writing, of the compliance or noncompliance of the Respondent with § 3-316. Noncompliance shall be contempt of court.

Rule 16 amended November 10, 2004. Renumbered and codified as § 3-316, effective July 18, 2008. § 3-316(A)(5) amended March 19, 2014.

unanimous

§ 3-317. Subpoena power.

§ 3-317. Subpoena power.

   (A) For investigative purposes, the Counsel for Discipline shall be empowered to issue writs of subpoena, including subpoena duces tecum, in the name of the State of Nebraska requiring the attendance and testimony of witnesses and parties and the production of records, books, and documents; to administer oaths to parties and witnesses; to take their sworn testimony or their unsworn statements; and to certify to the Court for appropriate action by the Court any refusal of a witness or party to comply with the requirements of a subpoena or subpoena duces tecum to testify, answer questions, or produce  records, books, or documents.

   (B) Such subpoena, including subpoena duces tecum described in this rule, may be served by certified mail, return receipt requested, by the Sheriff of any County of the State of Nebraska or by any person authorized by the Counsel for Discipline to do so.

   (C) Any Respondent shall have the right to request writs of subpoena, including subpoena duces tecum, in the name of the State of Nebraska, by a written request therefor to the Referee, prior to ten days of any hearing. The Referee, with the assistance of the Clerk, shall, immediately, issue such subpoena or subpoena duces tecum and cause the same to be served in the same manner as provided in § 3-317(B); provided the testimony and evidence to be produced as a result of said subpoena or subpoena duces tecum shall be reasonably relevant and material to the matters on hearing. With said request the Respondent shall submit the last known address of the witnesses together with the witness and mileage fees for such witnesses in the same amount as are paid for witnesses in the district courts of Nebraska.

   (D) Prior to the appointment of a Referee, the Disciplinary Review Board may quash or modify the subpoena if it is unreasonable or oppressive. The Referee, upon appointment, shall assume such authority.

Rule 17(B) amended November 12, 1997. Renumbered and codified as § 3-317, effective July 18, 2008.

 
unanimous

§ 3-318. Publicity of disciplinary proceedings and sequestration of witnesses.

§ 3-318. Publicity of disciplinary proceedings and sequestration of witnesses.

   (A) The hearings, records, or proceedings of the Counsel for Discipline, the Committee on Inquiry, and the Disciplinary Review Board are confidential and shall not be made public except that the pendency, subject matter, and status of an investigation may be disclosed by the Committee on Inquiry involved or the Disciplinary Review Board if

   (1) the Respondent has waived confidentiality, either in writing or by public disclosure of information regarding the proceeding; or

   (2) the proceeding is based upon conviction of a crime.

   (B) Unless the Respondent has waived confidentiality, either in writing or by public disclosure of information regarding the proceedings, willful violation of this rule shall be grounds for discipline.

   (C) This rule is not intended to prohibit the exchange of confidential information with other agencies authorized by the Court to receive such information.

   (D) The following provisions regarding the confidentiality of various disciplinary pleadings filed in the Supreme Court shall apply:

TYPE OF PLEADING FILED

BECOMES PUBLIC RECORD

(1) Formal Charges.

Upon filing.

(2) Application for Disability Inactive Status based upon competency or incapacity pursuant to § 3-803(B)(2) or § 3-311.

Shall not be made public until status is entered by the Court. If Application is denied, the case remains confidential.

(3) Application for Reinstatement pursuant to § 3-311.

Upon filing.

(4) Application for Temporary Suspension based upon continuing damage to the public or conviction of a serious crime.

Upon filing.

(5) Application for Reinstatement after Temporary Suspension due to § 3-312.

Upon filing.

(6) Conditional Admission of Complaint or Formal Charges.

Remains confidential until the Court approves the Conditional Admission.

(7) Appeal of Disciplinary Review Board decision to issue Private reprimand.

Upon filing by the Respondent.

(8) Voluntary Surrender of License.

Upon filing.

(9) Application for Reinstatement after Suspension or Disbarment.

Upon filing.

   (E) The Counsel for Discipline may release confidential information to the Client Assistance Fund Claims Board of the Nebraska State Bar Association as needed to further the work of the Claims Board. Such information shall not be made public other than as necessary to discharge the duties of the Claims Board.

Rule 18(E) amended October 31, 2001. Renumbered and codified as § 3-318, effective July 18, 2008; § 3-318(D)(2) amended March 13, 2019; § 3-318(D) amended September 7, 2022.

 

unanimous

§ 3-319. Termination of disciplinary proceedings.

§ 3-319. Termination of disciplinary proceedings.

   Neither unwillingness nor neglect of the Complainant to sign a Grievance or to assist in the prosecution of the Complaint, nor settlement, compromise, or restitution, shall, in itself, justify termination of any disciplinary proceedings.

unanimous

§ 3-320. Related civil or criminal litigation.

§ 3-320. Related civil or criminal litigation.

   (A) Similarity of the substance of a Grievance, Complaint, or Formal Charge to the material allegations of pending criminal or civil litigation shall not in itself prevent or delay disciplinary proceedings against the member involved in such litigation.

   (B) The acquittal of the member on criminal charges or a verdict or judgment in the member's favor in civil litigation involving material allegations similar in substance to a Grievance, Complaint, or Formal Charge shall not in and of itself justify termination of disciplinary proceedings predicated upon the same or substantially the same material allegations.

unanimous

§ 3-321. Reciprocal discipline.

§ 3-321. Reciprocal discipline.

   (A) Upon being disciplined in another jurisdiction, a member shall promptly inform the Counsel for Discipline of the discipline imposed. Upon receipt by the Court of appropriate notice that a member has been disciplined in another jurisdiction, the Court may enter an order imposing the identical discipline, or greater or lesser discipline as the Court deems appropriate, or, in its discretion, suspend the member pending the imposition of final discipline in such other jurisdiction.

   (B) In the event the discipline imposed in the other jurisdiction has been stayed, the entry of an order pursuant to the provisions of § 3-321(A) shall be deferred until such stay expires.

unanimous

§ 3-322. Immunity and privileges.

§ 3-322. Immunity and privileges.

   (A) Reports of alleged misconduct and Grievances submitted to the Counsel for Discipline, Committees on Inquiry, and the Disciplinary Review Board or testimony with respect thereto are confidential and shall be absolutely privileged and no lawsuit predicated thereon may be instituted.

   (B) The Counsel for Discipline, his or her representatives, and members of the Disciplinary Review Board, Committees on Inquiry, and Advisory Committee; the director and any members of the Nebraska Lawyer's Assistance Program; and all others (whether or not members of the Association) whose assistance is requested by any of the foregoing in connection with the enforcement of these rules shall be immune from suit for any conduct in the course of their official duties under these rules.

   (C) The Complainant and all witnesses shall be immune from suit for any testimony given in the course of any proceedings under these rules.

unanimous

§ 3-323. Expenses.

§ 3-323. Expenses.

   (A) Actual costs and expenses necessarily incurred by the Counsel for Discipline, his or her representatives, the Committee on Inquiry or the Disciplinary Review Board in connection with any investigations or Inquiries, as provided by these rules and incurred prior to the filing of the Formal Charge in the Court, shall be paid by the Office of the Counsel for Discipline. If a private reprimand is issued to a member, the Court may enter judgment in favor of the Office of the Counsel for Discipline, for such costs and expenses upon request of and proof by the Counsel for Discipline.

   (B) Upon request of and proof by the Counsel for Discipline, a disciplined member shall be required to reimburse the Office of the Counsel for Discipline for the actual costs and expenses necessarily incurred by the Counsel for Discipline, his or her representatives, the Committee on Inquiry, or the Disciplinary Review Board in connection with any investigations, hearings, or proceedings leading to the imposition of a sanction, if the disciplinary action is heard by the Nebraska Supreme Court. The Court may enter judgment for court costs and costs and expenses approved by the Court.

unanimous

§ 3-324. Rules are cumulative.

§ 3-324. Rules are cumulative.

   These rules shall be cumulative and not exclusive.

unanimous

§ 3-325. Eligibility to serve on board or committee.

§ 3-325. Eligibility to serve on board or committee.

   In determining eligibility to serve on any board or committee under these rules, an individual may be considered a resident of the district in which the individual either lives or maintains law offices. Provided, however, such offices must be the principal office for such individual and not merely a satellite office.

Rule 25 adopted November 23, 1994. Renumbered and codified as § 3-325, effective July 18, 2008.

unanimous

§ 3-326. Lawyers convicted of a crime.

§ 3-326. Lawyers convicted of a crime.

   (A) For the purposes of Inquiry of a Complaint or Formal Charges filed as a result of a finding of guilt of a crime, a certified copy of a judgment of conviction constitutes conclusive evidence that the attorney committed the crime, and the sole issue in any such Inquiry should be the nature and extent of the discipline to be imposed.

   (B) A lawyer shall promptly notify the Counsel for Discipline if he or she is found guilty of a serious crime and must provide proof of that adjudication.

Rule 26 adopted September 13, 1995. Renumbered and codified as § 3-326, effective July 18, 2008.

unanimous

§ 3-327. Effective date.

§ 3-327. Effective date.

   The amendments to these rules shall become effective on January 1, 2001. Formal Charges under review by the Disciplinary Review Board on the above-mentioned date shall be immediately forwarded and filed with the Clerk. Charges pending before the Committees on Inquiry on the above-mentioned date that have not been the subject of an Inquiry shall proceed in accordance with these rules. Appeals pending before the Committees on Inquiry on the above-mentioned date shall proceed as if under the former rules with the exception that there shall not be an additional appeal to the Disciplinary Review Board.

unanimous

§ 3-328. Appointment of a trustee.

§ 3-328. Appointment of a trustee.

   In addition to any of the foregoing procedures within these rules relating to disability inactive status, disbarment, or suspension of an attorney, the following measures may be taken for the protection of client interests:

   (A) Appointment of a Trustee. If an attorney (i) has been suspended by an order of the Court placing the member on disability inactive status pursuant to § 3-311; (ii) is shown to be unable to properly discharge his or her responsibilities to clients due to disability, disappearance, death, or abandonment of a law practice and there is no showing that an arrangement has been made for another lawyer to discharge the responsibilities; or (iii) has been disbarred or suspended pursuant to §§ 3-310 or 3-312 or has surrendered his or her license under § 3-315 and there has been a failure to comply with § 3-316 client notification requirements, the Court may appoint a lawyer to serve as trustee to inventory the files, sequester client funds, and take whatever other action seems indicated to protect the interests of the clients and other affected parties.

   (1) Trustee Bound by Lawyer-Client Privilege. The trustee should be bound by the lawyer-client privilege with respect to the records of individual clients, except to the extent necessary to carry out the order of the Court.

   (2) The trustee shall notify in writing all of the present clients of the disbarred or suspended member of the fact of such disbarment or suspension and shall also notify in writing all members and nonresident attorneys involved in pending legal or other matters being handled by the disbarred or suspended member of his or her altered status.

   (3) The trustee shall receive compensation for his or her services as established by the Court and may be reimbursed for travel and other expenses incidental to the performance of his or her duties.

Rule 28 adopted September 11, 2002. Renumbered and codified as § 3-328, effective July 18, 2008.

unanimous

Article 4: Mandatory Continuing Legal Education for Lawyers.

Article 4: Mandatory Continuing Legal Education for Lawyers. unanimous

Section 1: Mandatory Continuing Legal Education for Lawyers Rules

Section 1: Mandatory Continuing Legal Education for Lawyers Rules unanimous

§ 3-401.1. Purpose and application.

§ 3-401.1. Purpose and application.

   By continuing their legal education throughout the period of their practice of law, attorneys can enhance their competence to serve their clients. Chapter 3, article 4, of the Nebraska Supreme Court Rules establishes minimum requirements for such continuing legal education (CLE) and the means by which the requirements shall be enforced. The mandatory CLE requirements of these rules shall apply to all active members of the Nebraska State Bar Association, unless otherwise provided herein. These rules shall become effective on July 1, 2009, except that those provisions mandating attorney compliance with the CLE requirements of the rules shall not become operative until January 1, 2010. Attendance at any accredited or approved CLE program, as approved by the Director of Judicial Branch Education (Director) as set forth in these rules, in the three (3) months preceding January 1, 2010, may apply toward CLE requirements for the first reporting period upon application of the attorney and approval of the Director.

unanimous

§ 3-401.2. Definitions.

§ 3-401.2. Definitions.

   For purposes of Neb. Ct. R. §§ 3-401.1 through 3-402.3, the following definitions shall apply:

   (A) Reporting period: The initial reporting period shall begin January 1, 2010. The reporting period shall be an annual period, based on a calendar year, in which attorneys shall complete the required hours of CLE.

   (B) Commission: Nebraska Supreme Court Continuing Legal Education Commission.

   (C) Credit hour: Sixty (60) minutes spent by an attorney in an accredited or approved instructional program designed for CLE. Credit may be claimed for less than one (1) credit hour.

   (D) In-house activity: A CLE program given by, for, or to a select private audience, such as a law firm, corporation, government agency, or governmental entity, not open for admission to other members of the legal community generally. When determining whether a program is in-house activity, the Director shall consider the attendees and programming literature, not the sponsor of the education.

   (E) Active member: An attorney as defined by Neb. Ct. R. § 3-803(B)(1).

   (F) Inactive member: An attorney as defined by Neb. Ct. R. § 3-803(B)(2).

   (G) Program sponsor: Any person or organization presenting or offering to present one or more individual CLE programs.

   (H) Accredited CLE sponsor: A person or organization whose entire CLE program has been accredited pursuant to these rules.

   (I) Faculty member: A person qualified by practical or academic experience to teach or present at a CLE program.

   (J) Professional responsibility: As used herein, professional responsibility includes instruction in the following areas: legal ethics; professionalism; diversity in the legal profession; malpractice prevention; recognizing and addressing substance abuse and mental health issues in the legal profession; wellness; Nebraska Supreme Court Rules Relating to Discipline of Attorneys; ethical standards as they relate directly to law firm management; the benefits and risks associated with relevant technology; information security; the effects of technology on client confidentiality and other ethical issues; and duties of attorneys to the judicial system, public, clients, and other attorneys. In order for a program to qualify for professional responsibility credit, the program must focus on professional responsibility as defined in this rule. Practical instruction on the use of certain technology may be considered for professional responsibility credit if it is directly related to the ethical issues related to technology as defined by this rule.

   (K) In-person credits are CLE credits earned in a setting in which the presenter is physically present with the attendees in the same room or in which video is simultaneously broadcast to an overflow room at a location in which a presenter is in the same room as other attendees.

   (L) Distance-learning credits are CLE credits earned in programs in which the presenter is not physically present in the same room as the attendees, including, but not limited to, archived video or audio programs, presentations made via Zoom, WebEx, or similar videoconferencing platforms, live webcasts, telephone broadcasts, or simultaneous broadcasts, unless the video broadcast is directed to an overflow room at a location in which the presenter is in the same room as other attendees.

§ 3-401.2(C) amended November 16, 2011; § 3-401.2(J) amended June 28, 2017; § 3-401.2(J) amended June 17, 2020; § 3-401.2(K) and (L) amended September 13, 2023.

unanimous

§ 3-401.3. CLE commission; administration.

§ 3-401.3. CLE commission; administration.

   (A) There is hereby established the Nebraska Supreme Court Continuing Legal Education Commission consisting of seven members. The Nebraska Supreme Court shall appoint to the commission six resident members of this state who are active members of the Nebraska State Bar Association licensed to engage in the practice of law in Nebraska. There shall be one such attorney member appointed from each of the six Nebraska Supreme Court judicial districts. The attorney members shall serve a term of three (3) years each. Of the six members initially appointed, two members shall serve for one (1) year, two members shall serve for two (2) years, and two members shall serve for three (3) years. The seventh member shall be a justice of the Nebraska Supreme Court appointed by the Chief Justice. No attorney member shall serve more than two consecutive terms as a member of the commission.

   (B) The commission shall meet at such places and times as it determines. The members shall be entitled to reimbursement for reasonable travel, lodging, and other reasonable expenses incurred in the performance of duties relating to the commission.

   (C) The Nebraska Supreme Court shall adopt rules governing the operations and activities of the commission.

   (D) The administrator of the commission shall be the Director.

   (E) The Director, on behalf of the commission, shall have the following duties with respect to CLE for attorneys:

   (1) To exercise general administrative authority over the Nebraska Supreme Court program for CLE established by these rules;

   (2) To accredit program sponsors, courses, programs, and other educational activities that will satisfy the educational requirements of these rules;

   (3) To approve CLE activities other than accredited courses for credit toward the requirements of these rules;

   (4) To establish and maintain a system for recording and monitoring attorney legal education credits required by these rules;

   (5) To review and rule on attorney applications for waivers and extensions of time to the requirements of these rules;

   (6) To notify attorneys pursuant to § 3-401.11 of their failure to comply with the requirements of these rules;

   (7) To report promptly to the commission concerning any violation of these rules by any active member of the Nebraska State Bar Association;

   (8) To set fees for sharing U.S. Postal mailing lists with CLE sponsors for correspondence with Nebraska attorneys.

   (F) The Director, his or her representatives, and members of the CLE commission, and all others whose assistance is requested by any of the foregoing in connection with the enforcement of these rules, shall be immune from suit for any conduct in the course of their official duties under these rules.

unanimous

§ 3-401.4. CLE requirement.

§ 3-401.4. CLE requirement.

   (A) Active members of the Nebraska State Bar Association admitted to engage in the active practice of law in this state shall complete a minimum of ten (10) hours of accredited or approved CLE in each annual reporting period. Of the ten (10) hours, at least two (2) hours shall be in the area of professional responsibility.

   (B) CLE credit hours for each attorney shall be reported to the Director as set forth in these rules and in the manner prescribed by the Nebraska Supreme Court. Reporting shall be completed in electronic form using the MCLE on-line system.

   (C) Effective for CLE credits earned on or before December 31, 2023, an attorney completing more than ten (10) CLE credit hours during the annual reporting period may receive credit in the next succeeding annual reporting period for the CLE credit hours earned in excess of ten (10) hours if the proposed carryover consists of in-person credits, and provided that the excess CLE credit hours carried over into the next succeeding annual reporting period may not exceed five (5) hours. CLE credit hours in the area of professional responsibility are an annual requirement, and those credit hours shall not roll over.

   (D) Effective for CLE credits earned on or after January 1, 2024, an attorney completing more than ten (10) CLE credit hours during the annual reporting period may receive credit in the next succeeding annual reporting period for the CLE credit hours earned in excess of ten (10) hours, provided the excess CLE credit hours carried over into the next succeeding annual reporting period may not exceed the annual MCLE requirement for the following year. Credits that are carried over shall maintain the class type for which they were originally earned (in-person or distance learning credit). CLE credit hours in the area of professional responsibility are an annual requirement, and those credit hours shall not roll over.

§ 3-401.4(C) amended November 12, 2009; § 3-401.4(B) amended November 16, 2011; § 3-401.4(C) amended March 28, 2012; § 3-401.4(C) amended September 13, 2023; §3-401.4(C) and (D) amended February 14, 2024.

unanimous

§ 3-401.5. Exemptions.

§ 3-401.5. Exemptions.

   The following attorneys are exempt from CLE requirements as set forth by these rules:

   (A) Attorneys during the time they are on inactive status pursuant to Neb. Ct. R. § 3-803(B)(2).

   (B) Members of the U.S. Armed Forces under the following circumstances:

   (1) Attorneys who are on continuous Active Military Service under title 10 or title 32 of the U.S. Code or State Active Duty under the jurisdiction of any state or territory of the United States for a period of at least six (6) months during the annual reporting period.

   (2) Active component members or members of the reserve forces of the U.S. Military who are serving in excess of thirty (30) days but less than six (6) months of continuous active duty military service under title 10 or title 32 of the U.S. Code or State Active Duty under the jurisdiction of any state or territory of the United States. Upon release or discharge from service as described in this paragraph, said attorneys shall have either six (6) months or until the end of the annual reporting period, whichever is longer, to obtain the required CLE credits.

   (C) All persons subject to mandatory judicial branch education pursuant to Neb. Ct. R.§ 1-501 et seq., including judges and attorneys.

   (D) Attorneys who have been disbarred from the practice of law by order of the Nebraska Supreme Court.

   (E) Newly admitted attorneys shall be subject to this article beginning January 1 of the year following admission to the Nebraska State Bar Association. However, up to 5 in-person credits earned in the year of admission may be carried over into the subsequent reporting period.

§ 3-401.5(F) adopted January 12, 2011; § 3-401.5(E) amended December 12, 2012; § 3-401.5(D) amended October 15, 2014; § 3-401.5(E) amended September 6, 2017; § 3-401.5(F) deleted June 28, 2017, effective January 1, 2018; § 3-401.5(E) amended September 13, 2023.

unanimous

§ 3-401.6. Accredited CLE sponsors: procedure for accreditation of sponsors.

§ 3-401.6. Accredited CLE sponsors: procedure for accreditation of sponsors.

   An accredited CLE sponsor is a person or organization who has qualified as such under this rule. The programs of an accredited CLE sponsor shall be automatically approved for CLE credit so long as its status as an accredited CLE sponsor remains active, the $25 fee required by § 3-401.6(D) has been received by the Director no later than ten (10) days prior to the program being offered, the reporting requirements of § 3-401.9 have been agreed to by the sponsor, and there has been no revocation by the Director.

   (A) An organization or person desiring to become an accredited CLE sponsor may apply for accreditation to the Director. Such application shall be submitted at least sixty (60) days prior to any educational activity. An accredited CLE sponsor's programs shall meet the educational standards of § 3-401.7. The Director may grant an application for accreditation as an accredited CLE sponsor if he or she is satisfied that the applicant's programs meet the standards set forth in § 3-401.7 and provided the applicant complies with the following:

   (1) The person or organization submits to the Director, on a form approved for that purpose, information on CLE programs offered during the two (2) years immediately preceding the request for accredited CLE sponsor status. If the person or organization has been offering CLE courses for five (5) years or less, the Director may, at his or her discretion, request submission of course materials for inspection.

   (2) The sponsor pays a one-time nonrefundable accreditation fee of $200.

   (B) Accreditation is not approved until the sponsor is notified in writing by the Director.

   (C) The Director may, at any time, reevaluate the programs being presented by an accredited CLE sponsor. If, after such reevaluation, the Director finds there is cause for revocation of the accreditation of a sponsor, he or she shall provide written notice of such cause to the sponsor and shall allow the sponsor fifteen (15) days to show cause to the Director why such accreditation should not be revoked. If such sponsor fails to adequately show cause why the accreditation should not be revoked, the Director may revoke the accreditation and shall promptly notify the sponsor of such decision. In addition, if the Director in his or her judgment concludes that a course fails to meet the educational standards for approval set forth in § 3-401.7, he or she may deny or withdraw approval for the course even though offered by an accredited sponsor.

   (D) An accredited CLE sponsor shall pay a nonrefundable fee of $25 for each occasion a course or program is offered by that sponsor under these rules.

§ 3-401.6 amended November 12, 2009.

unanimous

§ 3-401.7. Educational standards for CLE courses; application for approval of individual course by program sponsors other than accredited CLE sponsor.

§ 3-401.7. Educational standards for CLE courses; application for approval of individual course by program sponsors other than accredited CLE sponsor.

   (A) An individual CLE course offered by a program sponsor other than an accredited CLE sponsor may be approved for credit if the $50 application fee required by § 3-401.7(D) has been received by the Director, the reporting requirements of § 3-401.9 have been agreed to by the program sponsor, and the course meets the following educational standards:

   (1) It has as its goal the teaching of a subject matter primarily related to the practice of law or to a discipline in which further education of attorneys would be beneficial to the practice of law.

   (2) It constitutes an organized program of learning, including lectures, workshops, or symposiums, which contributes directly to the professional competency of an attorney.

   (3) It pertains to legal subjects or other subject matters having significant intellectual or practical content relating to the practice of law or to the education of attorneys with respect to professional responsibility.

   (4) It is conducted or taught by attorneys or other persons who have the necessary academic or practical skills to conduct the course effectively and who have special education, training, and experience by reason of which they should be considered knowledgeable concerning the subject matter of the program.

   (5) Each attendee must be provided with written or electronic course materials that substantively pertain to the subject matter of the program and are of a quality and quantity that indicate adequate time has been devoted to their preparation and they will be of value to the attendees in the course of the practice of law.

   (6) Distance-learning credits shall be subject to the 5-hour annual cap set forth in § 3-401.8(A). Further, those not physically attending must have the opportunity for interaction with those teaching the course. In the case of archived courses, the interaction component may be satisfied by the sponsor providing contact information for faculty. No credit will be given for archived video or audio programs whose content is more than two (2) years old.

   (B) An organization or person, other than an accredited sponsor, desiring prior accreditation of a course or program shall apply for accreditation or approval to the Director at least forty-five (45) days before the activity. The application shall include a brief resume of the activity; its dates, subjects, and instructors and their qualifications; and a copy of the program outline, brochure, or other documentation upon which the Director can make a determination as to the credits. The Director shall approve or deny such application in writing within thirty (30) days of receiving the application.

   (C) An attorney seeking credit for participation in an education course or program for which credits were not approved in advance by the Director shall submit the course for approval subsequent to attendance through the on-line system and include in the submission information from the sponsor outlining a brief resume of the activity; its dates, subjects, and instructors and their qualifications; and a copy of the sponsor's program outline, brochure, or other documentation upon which the Director can make a determination as to the credits to which the applicant is entitled. Within a reasonable time after receipt of the approval request and accompanying materials, not to exceed thirty (30) days, the Director shall assign the number of credits, if any, being granted through the on-line system. Attorneys affiliated with the education sponsor or serving as faculty for the education event cannot submit the sponsor's activities for approval using their attorney user account credentials for the on-line system.

   (D) A person or organization seeking accreditation of a course or program as a program sponsor under this section shall pay a nonrefundable application fee of $50 at the time of submitting the application to the Director. No application fee shall be required of an attorney who applies for accreditation solely as an attendee. The nonrefundable fee of $50 shall be submitted along with an approval request each occasion a course or program is offered by the sponsor under these rules.

§ 3-401.7(B) amended September 9, 2009; § 3-401.7(A)(6) amended December 8, 2010, effective January 1, 2011; § 3-401.7(A)(6) amended February 24, 2011; § 3-401.7(C) amended November 16, 2011; § 3-401.7(C) and (D) amended December 12, 2012; §§ 3-401.7(A)(6) and (C) amended June 28, 2017; § 3-401.7(A)(6) amended September 13, 2023.

unanimous

§ 3-401.8. Limitations on credits based on class type and credit for activities other than attending accredited or approved courses.

§ 3-401.8. Limitations on credits based on class type and credit for activities other than attending accredited or approved courses.

   Subject to the annual credit number limitations set forth below, which apply to all CLE activities, an attorney may receive CLE credit for activities other than attendance at courses offered by accredited CLE sponsors or individual courses approved under § 3-401.7

   (A) Up to five (5) hours in the annual reporting period may be obtained through completion of computer-based legal education accredited by the Director. Effective for CLE credits earned on or after January 1, 2024, credits earned in excess of the annual limit for this class type will carry over into the following year up to the annual credit limitation.

   (B) Up to five (5) hours in the annual reporting period may be obtained for approved "in-house" CLE programs as defined by § 3-401.2(D). “In-house” CLE must be approved by the Director and application for credit shall be in the manner prescribed by the Nebraska Supreme Court. In order for an in-house CLE program to be approved, the Director must approve it on application of the sponsor no fewer than thirty (30) days before the commencement of the program. The application must include a description of the dates, times, places, faculty members, and the subject matter of the program and an explanation of how the program meets the educational standards of § 3-401.7. In addition, the "in-house" program sponsor must agree to the reporting requirements of § 3-401.9, including payment of the sponsor's fee of $1 per approved credit hour for each attorney. Credits earned in excess of the annual limit for this class type will not carry over into the following year.

   (C) Up to five (5) hours in the annual reporting period may be obtained for teaching pre-approved CLE programs. An attorney seeking credit for teaching approved CLE programs must make written application to the Director with an explanation of time spent in preparation of teaching the CLE materials. This credit shall be in addition to credit for attending the approved CLE program. No credit shall be given for teaching directed primarily to candidates for a law degree. No credit shall be given for teaching the same course on more than one occasion in a reporting period. Credits earned in excess of the annual limit for this class type will not carry over into the following year.

   (D) Attendance at J.D.- or graduate-level law courses offered by American Bar Association (ABA)-accredited law schools, subject to the following conditions:

   (1) Credit may be awarded for courses initiated and completed after admission to practice in Nebraska.

   (2) Credit toward MCLE requirements shall be for the actual number of class hours attended, but the maximum number of credits that may be earned during any annual reporting period by attending courses offered by ABA-accredited law schools shall be the maximum annual CLE hours required by Neb. Ct. R. § 3-401.4.

   (3) The course need not be taken for law school credit toward a degree; auditing a course is permitted. However, the attorney must comply with all law school rules for attendance, participation, and examination, if any, and complete the course to receive CLE credit.

   (4) The law school shall give each attorney a written certification evincing that the attorney has complied with requirements for the course and has completed the course.

   (5) Credits earned in excess of the annual limit for this class type will not carry over into the following year.

   (E) Subject to the limitations listed above, for attendance at educational activities that are not approved in advance, provided that the attorney seeking credit submits to the Director a written report which shall include a brief resume of the activity; its dates, subjects, and instructors, and their qualifications; a copy of the program outline or brochure; and an explanation of how the activity meets the educational standards of § 3-401.7, and that the Director approves the credit.

§ 3-401.8(D) and (E) amended February 3, 2010; § 3-401.8 amended June 9, 2010; § 3-401.8(C) amended December 8, 2010, effective January 1, 2011; § 3-401.8 and (E) amended March 28, 2012; § 3-401.8(C) amended October 15, 2014; § 3-401.8(C) amended May 10, 2023; § 3-401.8 amended February 14, 2024.

unanimous

§ 3-401.9. CLE sponsor reporting of attorney attendance; course promotional material requirements; attorney self-reporting of course completion.

§ 3-401.9. CLE sponsor reporting of attorney attendance; course promotional material requirements; attorney self-reporting of course completion.

   (A) As a condition of accreditation pursuant to § 3-401.6 or program approval pursuant to § 3-401.7 or § 3-401.8(B), sponsors of CLE programs shall agree to remit to the Director an alphabetical list of Nebraska attorney attendees and shall pay to the Director a fee of $1 per approved credit hour for each Nebraska attorney who attends the program. This sponsor's fee, along with the list of attendees, shall be submitted to the Director in the manner provided by the Nebraska Supreme Court within thirty (30) days after the program is held.

   (B) All accredited CLE sponsors qualified under § 3-401.6 and program sponsors of individual courses or programs approved under § 3-401.7 shall agree to the following as a condition of accreditation or program approval:

   (1) An official record verifying all Nebraska attorneys' attendance at the activity shall be maintained by the sponsor for at least three (3) years after the completion date of the program.

   (2) The sponsor shall include the attorney's name on the official record only if such attorney attended the program and there is verifiable proof of attendance at the educational activity.

   (3) The official record of attendance shall state the name and bar number of the attorney, the date and location of the activity, and the title of the program attended along with the amount of CLE credit obtained from attendance at the activity.
   (4) Sponsors shall provide a certificate of attendance to all attorneys attending CLE programming provided by the sponsor. The certificate of attendance shall state the date, location, title of the program, and the amount of CLE credit obtained from attendance at the activity.

   (5) Accredited CLE sponsors and approved program sponsors shall include a statement in any materials promoting their approved educational activity, certifying that the sponsor is an accredited CLE sponsor or approved program sponsor under these rules. Examples: "[Sponsor] is an accredited CLE sponsor in the State of Nebraska" or "[Sponsor] certifies that this activity has been approved for CLE credit in the State of Nebraska."

   (6) Sponsors shall not provide promotional material or other information to Nebraska attorneys that provides credit totals that differ from the credit total approved by the Nebraska MCLE Commission. In the case of programs offering distace-learning credits or in-house programs lasting longer than five (5) hours, the course promotional material shall indicate the cap imposed upon such programs contained in §§ 3-401.8(A) and 3-401.8(B).

§§ 3-401.9(B)(6) and (C) amended February 24, 2011; § 3-401.9(C) deleted June 28, 2017; § 3-401.9(B)(6) amended September 13, 2023.

unanimous

§ 3-401.10. Report by attorneys to Director.

§ 3-401.10. Report by attorneys to Director.

   (A) On or before October 1 of each annual reporting period, the Director shall provide e-mail notification to all active attorneys to review their on-line accounts and make sure all education is reported in order to facilitate the timely filing of annual reports beginning December 1.

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

   (C) Once an annual report is submitted through the on-line system, the CLE record for the attorney becomes final and cannot be modified.  In the event an attorney chooses to rescind an annual report and refile for the year, the request to do so must be received by the MCLE Commission no later than January 31 following the end of the reporting period. A request to rescind and refile a report can only be processed upon the payment of a $25 fee to the MCLE Commission.

   (D) All attorneys who file the report after January 20 following the end of the annual reporting period shall pay a penalty of $25. A penalty of $50 shall be assessed on reports received on or after February 1, and a penalty of $75 shall be assessed on reports received on or after March 1. All penalties shall be paid through the on-line system.

   (E) An attorney who fails to file an annual report shall not be allowed to transfer to inactive status pursuant to Neb. Ct. R. § 3-803(B) until a compliant report is filed.

§ 3-401.10(A) and (C) amended and (D) deleted November 16, 2011; § 3-401.10(B) and (C) amended and (D) adopted March 28, 2012; § 3-401.10(D) amended May 16, 2018.

unanimous

§ 3-401.11. Sanction for failure to satisfy CLE requirements.

§ 3-401.11. Sanction for failure to satisfy CLE requirements.

   (A) Any attorney who fails to comply with the provisions of this rule may have his or her right to practice law suspended by the Nebraska Supreme Court, provided that at least forty-five (45) days prior to such suspension, the Director shall provide notice of noncompliance to the attorney by e-mail and regular U.S mail addressed to the attorney at his or her last known address. The attorney shall be given forty-five (45) days to file with the Director such information, documents, sums, and penalties which, if accepted, would cure the delinquency.

   (B) If compliance does not occur within forty-five (45) days as stated in § 3-401.11(A), a statement of noncompliance shall be filed by the Director with the commission. The commission shall enter an order to show cause why the attorney should not be suspended from the practice of law for failure to comply with these rules. A hearing may be requested by the attorney as set forth in § 3-402.3.

   (C) If the commission finds that cause was not shown, a recommendation of suspension from the practice of law for failure to comply with these rules shall be made to the Nebraska Supreme Court by submission of the same to the Office of the Clerk of the Nebraska Supreme Court.

   (D) The Nebraska Supreme Court shall enter an order to show cause why such attorney should not be suspended from the practice of law as an active member of the Nebraska State Bar Association. Such order shall be sent to the attorney by regular mail and email and notify the attorney that a response to the order to show cause may be submitted by affidavit to the commission which shall provide the same to the Nebraska Supreme Court. The Nebraska Supreme Court shall, after consideration of the matter, enter such an order as it may deem appropriate. If an order of suspension shall be entered, such attorney shall not practice law until restored to active status as set forth below.

§ 3-401.11(A) amended December 11, 2013; § 3-401.11(A) amended June 28, 2017; § 3-401.11(D) amended December 8, 2021.

unanimous

§ 3-401.12. Reinstatement for inactive, resigned, retired, or suspended attorneys.

§ 3-401.12. Reinstatement for inactive, resigned, retired, or suspended attorneys.

   (A) Attorneys on inactive status as defined by § 3-401.2(F) and attorneys who have resigned or retired from the NSBA as of December 31 of any year who apply for reinstatement to active status pursuant to Neb. Ct. R. § 3-119(E) during any subsequent calendar year shall be required to complete ten (10) hours of approved CLE in the twelve (12) months immediately preceding the application as a condition of reinstatement. Such hours of credit required shall include two (2) hours of professional responsibility education as defined by § 3-401.2(J) and shall be subject to the limitations based on class type as defined by § 3-401.8. In addition if the attorney transferred to an inactive status or resigned while not in compliance with MCLE requirements, the attorney must cure the noncompliance and pay any late fees for the delinquent report. Only those credits earned in the calendar year of reinstatement exceeding the required hours for reinstatement shall be counted toward the credit requirement for the year of reinstatement to active status.

   (B) Attorneys suspended from the practice of law for more than 12 months for reasons other than those listed in § 3-401.12(C) shall be required to complete ten (10) hours of approved CLE in the twelve (12) months immediately preceding the application for reinstatement as a condition of reinstatement. Such hours of credit required shall include two (2) hours of professional responsibility education as defined by § 3-401.2(J) and shall be subject to the limitations based on class type as defined by § 3-401.8. Only those credits earned in the calendar year of reinstatement exceeding the ten (10) hours of credit required for reinstatement shall be counted toward the credit requirement for the year of reinstatement to active status.

   (C) Attorneys suspended from the practice of law due to the failure to file a report of MCLE or for failing to pay mandatory assessments, prior to reinstatement to the practice of law in Nebraska, shall submit to the Nebraska Supreme Court Attorney Services Division a written request for reinstatement upon the form provided. The Administrator of Attorney Services shall submit the application to the Supreme Court, together with a written statement evidencing the payment of any penalties as established by these rules and the making up of any deficiency in the CLE requirements incurred prior to suspension or, if applicable, during the suspension. In no event shall the hours required for reinstatement exceed a total of 20 hours.

§ 3-401.12(A) amended April 21, 2011; § 3-401.12(A) and (B) amended December 12, 2012; § 3-401.12(C) deleted December 12, 2012; § 3-401.12 amended October 15, 2014; § 3-401.12(A) amended April 13, 2016; § 3-401.12(A) amended January 2, 2019; § 3-401.12(C) amended September 4, 2019.

unanimous

§ 3-401.13. Extension of time; waivers.

§ 3-401.13. Extension of time; waivers.

   (A) If, due to disability, hardship, or extenuating circumstances, an attorney is unable to complete the hours of accredited CLE during the preceding reporting period as required by § 3-401.4, the attorney may apply to the Director for an extension of time in which to complete the hours. Such request for extension of time shall be filed with the Director by December 1 of the annual reporting period. No extension of time to complete CLE shall be granted unless written application for the extension is made via the Nebraska Supreme Court Attorney Services website. An extension of time shall not exceed a period of six (6) months immediately following the last day of the year in which the requirements were not met.

   (B) If, due to disability, hardship, or extenuating circumstances, an attorney is unable to meet the minimum required hours for CLE during the annual reporting period as required by § 3-401.4, or is unable to meet the minimum required hours for CLE without exceeding the limit on distance-learning credit as set for the § 3-401.8, the attorney may apply to the Director for a waiver of the minimum education requirements.  Such request for waiver shall be filed with the Director by December 1 of the annual reporting period. No waiver shall be granted unless application is made via the Nebraska Supreme Court Attorney Division website. A waiver of the minimum educational requirements shall not exceed one (1) year or ten (10) credit hours. After one (1) year, the attorney may reapply for an extension of the waiver if such disability, hardship, or extenuating circumstances still exist.

   (C) The press of business shall not be considered a disability, hardship, or extenuating circumstance.

§ 3-401.13(A) and (B) amended September 13, 2023.

unanimous

§ 3-401.14. Confidentiality.

§ 3-401.14. Confidentiality.

   Unless otherwise directed by the Nebraska Supreme Court, the files, records, and proceedings of the Director and the commission, as they relate to the requirements of this article, shall be deemed confidential and shall not be disclosed, except in furtherance of the Director's or commission's duties or upon the request of the attorney affected, or as they may be introduced in evidence or otherwise produced in proceedings taken in accordance with these rules or as the records may relate to U.S. Postal mailing lists used exclusively to provide information on CLE programs to attorneys licensed in the State of Nebraska.

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§ 3-401.15. Financing; purpose.

§ 3-401.15. Financing; purpose.

   Funds collected pursuant to §§ 3-401.6 through 3-401.11 of these rules shall be used by the Director for the purpose of management and oversight of CLE as required by the Nebraska Supreme Court under its constitutional and inherent authority.

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Section 2: Nebraska Supreme Court Continuing Legal Education Commission Rules

Section 2: Nebraska Supreme Court Continuing Legal Education Commission Rules unanimous

§ 3-402.1. Authority of commission.

§ 3-402.1. Authority of commission.

   The commission shall have the authority to:

   (A) Grant and hold hearings, upon request, regarding the issues set forth in §§ 3-402.2 and 3-402.3.

   (B) Propose amendments to this article, § 3-401.1 et seq.

   (C) Issue orders to show cause relating to attorney noncompliance under § 3-401.11.

   (D) Determine issues of noncompliance and recommend suspension from the practice of law to the Nebraska Supreme Court.

   (E) In addition to the authority granted above, the commission shall perform any other duties as directed by the Nebraska Supreme Court.

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§ 3-402.2. Review hearings before commission.

§ 3-402.2. Review hearings before commission.

   (A) If so requested by a sponsor, faculty, or sumbitting attorney within fifteen (15) days of the notice of course approval or denial, the commission shall grant a review hearing on the following issues relating to § 3-401.1 et seq. listed below. If a review hearing is requested by only a submitting attorney, no hearing shall be granted in situations where the resolution will have no impact on the record of the attorney such as when an attorney has met or exceeded the annual requirements for CLE under these rules:

   (1) The Director's denial of accredited CLE Sponsor status to a person or organization pursuant to § 3-401.6.

   (2) The Director's denial of individual course approval to a person, organization, or attorney as set forth in § 3-401.6(C) and § 3-401.7.

   (3) The Director's denial of an attorney's request for credit for activities other than attending accredited or approved courses as set forth in § 3-401.8.

   (4) The Director's denial of an attorney's request pursuant to § 3-401.10(D) to obtain an extension of time to file the written reports required by § 3-401.10.

   (5) The Director's denial of an attorney's application pursuant to § 3-401.13 to obtain an extension of time to complete or obtain a waiver of the minimum educational requirements as set forth in these rules.

   (B) Upon granting a review hearing, the commission shall serve notice of the time and place of the hearing on the parties by certified mail, return receipt requested, at the last known address of the party requesting such hearing.

   (C) The hearing shall be held upon not less than twenty (20) days' notice nor later than thirty (30) days after granting such request for hearing.

   (D) The parties shall be permitted to be represented by counsel, shall be permitted to examine and cross-examine witnesses, and may file with the commission any statement, answer, affidavit, document, exhibit, or any such other evidence as may be relevant to the issue at hand.

   (E) The commission shall have the right to receive any type of evidence it deems relevant and material. The hearing need not be conducted in accordance with the Nebraska Evidence Rules.

   (F) At the conclusion of the hearing, the commission shall make written findings of fact and conclusions of law and order appropriate corrective action. A copy of the findings, conclusions, and order shall be sent to all parties to the hearing.

   (G) A minimum of four (4) appointed commission members and the Nebraska Supreme Court Justice commission member must be present at any hearing.

   (H) An effort shall be made to hold all hearings required under these rules with distance technology to avoid the burdens of travel.

   (I) A majority vote of the commission members in attendance at the hearing is required in order to grant or deny relief. The Nebraska Supreme Court Justice commission member shall vote only in the event of a tie.

   (J) In the event there is more than one appeal of a course approval or denial, the matters shall be consolidated for appeal.

§ 3-402.2(A), (H), and (I) amended June 28, 2017; § 3-402.2(A), (A)(2), and (J) amended May 5, 2021.

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§ 3-402.3. Hearings before commission pursuant to § 3-401.11(B).

§ 3-402.3. Hearings before commission pursuant to § 3-401.11(B).

   (A) When the commission has issued an order to show cause pursuant to § 3-401.11(B) based on a finding by the Director of noncompliance with these rules, an attorney may request and shall be entitled to a hearing before the commission.

   (B) Upon request for such hearing, the commission shall serve notice of the time and place of the hearing on the parties by certified mail, return receipt requested, at the last known address of the party requesting such hearing.

   (C) The hearing shall be held upon not less than twenty (20) days' notice nor later than thirty (30) days after the request for hearing.

   (D) The parties shall be permitted to be represented by counsel, shall be permitted to examine and cross-examine witnesses, and may file with the commission any statement, answer, affidavit, document, exhibit, or any such other evidence as may be relevant to the issue of noncompliance.

   (E) The commission shall have the right to receive any type of evidence it deems relevant and material. The hearing need not be conducted in accordance with the Nebraska Evidence Rules.

   (F) At the conclusion of the hearing, the commission shall make written findings of fact and conclusions of law and a determination of whether or not cause has been shown. A copy of the findings, conclusions, and order shall be sent to all parties to the hearing.

   (G) A minimum of four appointed commission members and the Nebraska Supreme Court Justice commission member must be present at any hearing.

   (H) If the commission determines that cause was not shown, a recommendation of suspension from the practice of law for failure to comply with these rules shall be made to the Nebraska Supreme Court.

   (I) A majority vote of the commission members in attendance at the hearing is required in order to grant or deny relief. The Nebraska Supreme Court Justice commission member shall vote only in the event of a tie.

Adopted November 26, 2008.

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Article 5: Nebraska Rules of Professional Conduct.

Article 5: Nebraska Rules of Professional Conduct.

(cite as Neb. Ct. R. of Prof. Cond. §)

(Adopted June 8, 2005, effective September 1, 2005. Renumbered and codified as §§ 3-501.0 to 3-508.5, effective July 18, 2008.)

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Revisor's note.

Revisor's note.

   The Nebraska Rules of Professional Conduct are placed in the Nebraska Court Rules at Chapter 3, Attorneys and the Practice of Law, Article 5, Nebraska Rules of Professional Conduct. Section numbers have replaced the Chapter and Article numbers, but retain the 1.0 through 8.5 numbering system used in the original rule. Rule 1.0 thus becomes Neb. Ct. R. of Prof. Cond. § 3-501.0, and Rule 8.5 thus becomes § 3-508.5. References within the rule remain unchanged so, for example, the reader may interpret a reference to Rule 2.3 and find it at Neb. Ct. R. of Prof. Cond. § 3-502.3. Main divisions and subdivisions in the original rule remain as before.

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Preamble: A lawyer's responsibilities.

Preamble: A lawyer's responsibilities.

   [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

   [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

   [3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

   [4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

   [5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

   [6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

   [7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

   [8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

   [9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

   [10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

   [11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

   [12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

   [13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct when properly applied, serve to define that relationship.

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Scope.

Scope.

   [14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.

   [15] The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.

   [16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

   [17] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.

   [18] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.

   [19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

   [20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

   [21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

   [22] A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

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§ 3-501.0. Terminology.

§ 3-501.0. Terminology.

   (a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.

   (b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

   (c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

   (d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

   (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

   (f) "Knowingly," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

   (g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation or a member of an association authorized to practice law.
   (h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

   (i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

   (j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

   (k) "Screened" denotes the isolation of a lawyer or support person from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer or support person is obligated to protect under these Rules or other law.

   (l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.

   (m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

   (n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

COMMENT

 

Confirmed in Writing

   [1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

 

Firm

   [2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

 

   [3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

 

   [4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

 

Fraud

   [5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

 

Informed Consent

   [6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(b)1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.

 

   [7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph (n).

 

Screened

   [8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.111.12 or 1.18. The definition, as well as Comments [9] and [10] to this rule, also generally apply to the screening of support persons pursuant to Rule 1.9(e)(2).

 

   [9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.

 

   [10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.

 

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§§ 3-501.1 to 3-501.18: Client-Lawyer Relationship

§§ 3-501.1 to 3-501.18: Client-Lawyer Relationship

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-501.1. Competence.

§ 3-501.1. Competence.

   A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.

COMMENT

 

Legal Knowledge and Skill

   [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

 

   [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

 

   [3] In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

 

   [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

 

Thoroughness and Preparation

   [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(b).

 

Maintaining Competence

    [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

§ 3-501.1 Comment 6 amended June 28, 2017.

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§ 3-501.2. Scope of representation and allocation of authority between client and lawyer.

§ 3-501.2. Scope of representation and allocation of authority between client and lawyer.

   (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

   (b) A lawyer may limit the scope of his or her representation of a client if the limitation is reasonable in the lawyer's judgment under the circumstances and the client gives informed consent to such limited representation.

   (c) A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are "Prepared By" and the name, business address, and bar number of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as "pro se," but shall not be signed by the lawyer preparing the filing.

   (d) If, after consultation, the client consents in writing, a lawyer may enter a "Limited Appearance" on behalf of an otherwise unrepresented party involved in a court proceeding, and such appearance shall clearly define the scope of the lawyer's limited representation.

   (e) Upon completion of the "Limited Representation," the lawyer shall within 10 days file a "Certificate of Completion of Limited Representation" with the court. Copies shall be provided to the client and opposing counsel or opposing party if unrepresented. After such filing, the lawyer shall not have any continuing obligation to represent the client. The filing of such certificate shall be deemed to be the lawyer's withdrawal of appearance which shall not require court approval.

   (f) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

§ 3-501.2(a) through (f) amended August 28, 2008; § 3-501.2(c) amended October 21, 2008.

COMMENT

 

Allocation of Authority Between Client and Lawyer

   [1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

 

   [2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

 

   [3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

 

   [4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

 

Agreements Limiting Scope of Representation

   [5] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

 

   [6] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

 

   [7] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.11.8 and 5.6.

 

Criminal, Fraudulent and Prohibited Transactions

   [8] Paragraph (f) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

 

   [9] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

 

   [10] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

 

   [11] Paragraph (f) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (c) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (f) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

 

   [12] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).

Comment [8] and [11] amended September 7, 2016.

 

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§ 3-501.3. Diligence.

§ 3-501.3. Diligence.

   A lawyer shall act with reasonable diligence and promptness in representing a client.

COMMENT

 

   [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

 

   [2] A lawyer's work load must be controlled so that each matter can be handled competently.

 

   [3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

 

   [4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

 

   [5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

 

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§ 3-501.4. Communications.

§ 3-501.4. Communications.

   (a) A lawyer shall:

   (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

   (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

   (3) keep the client reasonably informed about the status of the matter;

   (4) promptly comply with reasonable requests for information; and

   (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

   (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

COMMENT

 

   [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

 

Communicating With Client

   [2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

 

   [3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations - depending on both the importance of the action under consideration and the feasibility of consulting with the client - this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

 

   [4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.

 

Explaining Matters

   [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

 

   [6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

 

Withholding Information

   [7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

 

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§ 3-501.5. Fees.

§ 3-501.5. Fees.

   (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

   (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

   (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

   (3) the fee customarily charged in the locality for similar legal services;

   (4) the amount involved and the results obtained;

   (5) the time limitations imposed by the client or by the circumstances;

   (6) the nature and length of the professional relationship with the client;

   (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

   (8) whether the fee is fixed or contingent.

   (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

   (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

   (d) A lawyer shall not enter into an arrangement for, charge, or collect:

   (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

   (2) a contingent fee for representing a defendant in a criminal case.

   (e) A division of a fee between lawyers who are not in the same firm may be made only if:

   (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

   (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

   (3) the total fee is reasonable.

   (f) Upon reasonable and timely request by the client, a lawyer shall provide, without charge, an accounting for fees and costs claimed or previously collected. Such an accounting shall include at least the following information:

   (1) Itemization of all hourly charges, costs, interest assessments, and past due balances.

   (2) For hourly rate charges, a description of the services performed and a notation of the person who performed those services. The description shall be of sufficient detail to generally apprise the client of the nature of the work performed.

COMMENT

 

Reasonableness of Fee and Expenses

   [1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

 

Basis or Rate of Fee

   [2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.

 

   [3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

 

Terms of Payment

   [4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

 

   [5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

 

Prohibited Contingent Fees

   [6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.

 

Division of Fee

   [7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

 

   [8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.

 

Disputes Over Fees

   [9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

 

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§ 3-501.6. Confidentiality of information.

§ 3-501.6. Confidentiality of information.

   (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

   (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

   (1) to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily harm;

   (2) to secure legal advice about the lawyer's compliance with these Rules;

   (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

   (4) to comply with other law or a court order.

   (c) The relationship between a member of the Nebraska State Bar Association Committee on the Nebraska Lawyers Assistance Program or an employee of the Nebraska Lawyers Assistance Program and a lawyer, judge, law student, or prospective lawyer who seeks or receives assistance through that committee or that program shall be the same as that of lawyer and client for the purposes of the application of Rule 1.6.

COMMENT

   [1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients.

   [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

   [3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

   [4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

   [5] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

   [6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. A lawyer may disclose information relating to the representation necessary to prevent a client from committing a crime. Paragraph (b)(1) also recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. For example, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

   [7] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(2) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.

   [8] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

   [9] A lawyer entitled to a fee is permitted by paragraph (b)(3) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

   [10] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(4) permits the lawyer to make such disclosures as are necessary to comply with the law.

   [11] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(4) permits the lawyer to comply with the court's order.

   [12] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

   [13] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(4). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the nature of the future crime, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(f)4.1(b)8.1 and 8.3Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Withdrawal

   [14] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1). After withdrawal, the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise permitted by Rule 1.6. Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).

Acting Competently to Preserve Confidentiality

[15] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.15.1 and 5.3.

   [16] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Former Client

   [17] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

Comment [13] amended September 7, 2016; § 3-501.6(c) amended September 11, 2019.

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

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

   (a) Except as provided in paragraphs (b) and (c), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

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

   (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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

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

   (2) the representation is not prohibited by law;

   (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

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

   (c) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer associated in a firm with another lawyer who is serving as a county attorney in a county where the county attorney is not required to devote his or her full time to the legal work of the county may represent a client with adverse interests to the State of Nebraska in a matter or other proceeding before a tribunal in a separate county if:

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

   (2) the representation is not prohibited by law;

   (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same matter or other proceeding before a tribunal;

   (4) the affected client, or if the affected client is a minor, his or her parent or guardian, gives informed consent, confirmed in writing, subject to the following restrictions:

   (i) for appointment of a guardian ad litem pursuant to Neb. Rev. Stat. § 43-272(2), the juvenile court, on behalf of the juvenile, shall provide provisional informed consent upon the guardian ad litem’s appointment, and, at the time of the first appearance, the juvenile court shall determine whether the provisional informed consent is appropriate, upon consultation with the parties. For appointment of counsel under § 43-272(1)(a), the parent or guardian of the juvenile shall provide written informed consent; and

   (ii) the State of Nebraska shall not be required to provide informed consent; and

   (5) the member of the lawyer’s firm who serves as county attorney:

   (i) is timely screened from any participation in the matter;

   (ii) is apportioned no part of the fee therefrom; and

   (6) the lawyer representing the affected client provides prompt written notice to the tribunal before which the matter is pending.

COMMENT

General Principles

   [1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed in writing," see Rule 1.0(e) and (b).

   [2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict of interest exists; (3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).

   [3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

   [4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also Comments [5] and [29].

   [5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

   [6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

   [7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.

Identifying Conflicts of Interest: Material Limitation

   [8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Lawyer's Responsibilities to Former Clients and Other Third Persons

   [9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director.

Personal Interest Conflicts

   [10] The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

   [11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.

   [12] A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. See Rule 1.8(j).

Interest of Person Paying for a Lawyer's Service

   [13] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

Prohibited Representations

   [14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.

   [15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

   [16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest.

   [17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).

Informed Consent

   [18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

   [19] Under some circumstances, it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases, the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client's interests.

Content Confirmed in Writing

   [20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Revoking Consent

   [21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

Consent to Future Conflict

   [22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

Conflicts in Litigation

   [23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

   [24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

   [25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Nonlitigation Conflicts

   [26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7]. Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. See Comment [8].

   [27] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved.

   [28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

Special Considerations in Common Representation

   [29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients' interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.

   [30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

   [31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

   [32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(b).

   [33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.

Organizational Clients

   [34] A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client.

   [35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.

Special Considerations for County Attorneys in Small Counties

   [36] Rule 1.7(c) is designed to address the problem faced by county attorneys and lawyers who associate in private practice with county attorneys in rural Nebraska counties. The State has a strong interest in ensuring that attorneys remain willing to serve in the role of county attorney, and Rule 1.7(c) seeks to avoid situations where attorneys avoid serving in such role due to conflicts of interest that would otherwise be imputed to attorneys associated in private practice with the county attorney. This rule provides factors that must be taken into consideration by the attorney associated with the county attorney before undertaking representation of a client with interests adverse to the State, and the Rule provides for safeguards in such situations, including informed consent, screening, and notification to the tribunal. This rule is intended to promote the long-term viability of the practice of law in rural areas of the State, without eviscerating traditional conflict of interest principles expressed elsewhere throughout these Rules.

§ 3-501.7(a) amended January 16, 2019; § 3-501.7(c) and Comment 36 adopted January 16, 2019.

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§ 3-501.8. Conflict of interest; current clients; specific rules.

§ 3-501.8. Conflict of interest; current clients; specific rules.

   (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

   (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

   (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

   (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

   (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

   (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

   (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

   (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

   (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

   (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

   (f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

   (1) the client gives informed consent;

   (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

   (3) information relating to representation of a client is protected as required by Rule 1.6.

   (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

   (h) A lawyer shall not:

   (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

   (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

   (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

   (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

   (2) contract with a client for a reasonable contingent fee in a civil case.

   (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

   (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

COMMENT

 

Business Transactions Between Client and Lawyer

   [1] A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee. In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

 

   [2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its essential terms be communicated to the client, in writing, in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the desirability of seeking the advice of independent legal counsel. It also requires that the client be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer obtain the client's informed consent, in a writing signed by the client, both to the essential terms of the transaction and to the lawyer's role. When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer's involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable. See Rule 1.0(e) (definition of informed consent).

 

   [3] The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer's financial interest otherwise poses a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's financial interest in the transaction. Here the lawyer's role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer's dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will structure the transaction or give legal advice in a way that favors the lawyer's interests at the expense of the client. Moreover, the lawyer must obtain the client's informed consent. In some cases, the lawyer's interest may be such that Rule 1.7 will preclude the lawyer from seeking the client's consent to the transaction.

 

   [4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction or by the client's independent counsel. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires.

 

Use of Information Related to Representation

   [5] Use of information relating to the representation to the disadvantage of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules. See Rules 1.2(f)1.61.9(c)3.34.1(b)8.1 and 8.3.

 

Gifts to Lawyers

   [6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c).

 

   [7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance the client should have the detached advice that another lawyer can provide. The sole exception to this Rule is where the client is a relative of the donee.

 

   [8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client's informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of alternative candidates for the position.

 

Literary Rights

   [9] An agreement by which a lawyer    acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).

 

Financial Assistance

   [10] Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation. These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses, including the expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts. Similarly, an exception allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

 

Person Paying for a Lawyer's Services

   [11] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer's professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).

 

   [12] Sometimes, it will be sufficient for the lawyer to obtain the client's informed consent regarding the fact of the payment and the identity of the third-party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interest exists if there is significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in the fee arrangement or by the lawyer's responsibilities to the third-party payer (for example, when the third-party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed consent of each affected client, unless the conflict is nonconsentable under that paragraph. Under Rule 1.7(b), the informed consent must be confirmed in writing.

 

Aggregate Settlements

   [13] Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.

 

Limiting Liability and Settling Malpractice Claims

   [14] Agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any conditions required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

 

   [15] Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.

 

Acquiring Proprietary Interest in Litigation

   [16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer's fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include liens granted by statute, liens originating in common law and liens acquired by contract with the client. When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer's efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5.

 

Client-Lawyer Sexual Relationships

   [17] The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.

 

   [18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2).

 

   [19] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters.

 

Imputation of Prohibitions

   [20] Under paragraph (k), a prohibition on conduct by an individual lawyer in paragraphs (a) through (i) also applies to all lawyers associated in a firm with the personally prohibited lawyer. For example, one lawyer in a firm may not enter into a business transaction with a client of another member of the firm without complying with paragraph (a), even if the first lawyer is not personally involved in the representation of the client. The prohibition set forth in paragraph (j) is personal and is not applied to associated lawyers.

Comment [5] amended September 7, 2016.

 

 

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§ 3-501.9. Duties to former clients.

§ 3-501.9. Duties to former clients.

    (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

    (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

    (1) whose interests are materially adverse to that person; and

    (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

    (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

    (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

    (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

    (d) A lawyer shall not knowingly allow a support person to participate or assist in the representation of a current client in the same or a substantially related matter in which another lawyer or firm with which the support person formerly was associated had previously represented a client:

    (1) whose interests are materially adverse to the current client; and

    (2) about whom the support person has acquired confidential information that is material to the matter, unless the former client gives informed consent, confirmed in writing.

    (e) If a support person, who has worked on a matter, is personally prohibited from working on a particular matter under Rule 1.9(d), the lawyer or firm with which that person is presently associated will not be prohibited from representing the current client in that matter if:

    (1) the former client gives informed consent, confirmed in writing, or

    (2) the support person is screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the support person and the firm have a legal duty to protect.

    (f) For purposes of Rules 1.9(d) and (e), a support person shall mean any person, other than a lawyer, who is associated with a lawyer or a law firm and shall include but is not necessarily limited to the following: law clerks, paralegals, legal assistants, secretaries, messengers and other support personnel employed by the law firm. Whether one is a support person is to be determined by the status of the person at the time of the participation in the representation of the client.

COMMENT

 

   [1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.

 

   [2] The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

 

   [3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

 

Lawyers Moving Between Firms

   [4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

 

   [5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and paragraph (c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.

 

   [6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought. As to the application of paragraph (d), the support person shall be considered to have acquired confidential information that is material to the matter unless the support person demonstrates otherwise.

 

   [7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and paragraph (c).

 

   [8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

 

   [9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.

 

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

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

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

   (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

   (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

   (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

   (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

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

COMMENT

 

Definition of "Firm"

   [1] For purposes of the Rules of Professional Conduct the term "firm" denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments [2] - [4].

 

Principles of Imputed Disqualification

   [2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and paragraph (b).

 

   [3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

 

   [4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. See Rule 1.9(d) through (f). Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.

 

   [5] Paragraph (b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).

 

   [6] Paragraph (c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).

 

   [7] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.

 

   [8] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8(k), and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.

 

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

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

   (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

   (1) is subject to Rule 1.9(c); and

   (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

   (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

   (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

   (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

   (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

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

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

   (2) shall not:

   (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or

   (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

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

   (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

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

COMMENT

 

   [1] A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct including the prohibition against concurrent conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 1.0(e) for the definition of informed consent.

 

   [2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

 

   [3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1)Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

 

   [4] This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

 

   [5] When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment [6].

 

   [6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(k) (requirements for screening procedures). These paragraphs do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.

 

   [7] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

 

   [8] Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.

 

   [9] Paragraphs (a) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

 

   [10] For purposes of paragraph (e) of this Rule, a "matter" may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

 

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§ 3-501.12. Former judge, arbitrator, mediator, or other third-party neutral.

§ 3-501.12. Former judge, arbitrator, mediator, or other third-party neutral.

   (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

   (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

   (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

   (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

   (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.

   (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

COMMENT

 

   [1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto." Although phrased differently from this Rule, those Rules correspond in meaning.

 

   [2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 1.0(e) and (b). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.3.

 

   [3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met.

 

   [4] Requirements for screening procedures are stated in Rule 1.0(k)Paragraph (c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

 

   [5] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

 

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§ 3-501.13. Organization as client.

§ 3-501.13. Organization as client.

   (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

   (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

   (c) Except as provided in paragraph (d), if

   (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and

   (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

   (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

   (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

   (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

   (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

COMMENT

 

The Entity as the Client

   [1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. "Other constituents" as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.

 

   [2] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.

 

   [3] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. Paragraph (b) makes clear, however, that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0(f), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.

 

   [4] In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Often, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter or get another legal opinion; for example, if the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer's advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization. Even in circumstances where a lawyer is not obligated by this Rule to proceed, a lawyer may bring to the attention of an organizational client, including its highest authority, matters that the lawyer reasonably believes to be of sufficient importance to warrant doing so in the best interest of the organization.

 

   [5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer must refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation.

 

Relation to Other Rules

   [6] The authority and responsibility provided in this Rule are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rules 1.81.163.3 or 4.1Paragraph (c) of this Rule supplements Rule 1.6(b) by providing an additional basis upon which the lawyer may reveal information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6(b)(1)-(4). Under paragraph (c), the lawyer may reveal such information only when the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law, and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. It is not necessary that the lawyer's services be used in furtherance of the violation, but it is required that the matter be related to the lawyer's representation of the organization. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rule 1.6(b)(1) may permit the lawyer to disclose confidential information. In such circumstances, Rule 1.2(f) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required.

 

   [7] Paragraph (d) makes clear that the authority of a lawyer to disclose information relating to a representation in circumstances described in paragraph (c) does not apply with respect to information relating to a lawyer's engagement by an organization to investigate an alleged violation of law or to defend the organization or an officer, employee or other person associated with the organization against a claim arising out of an alleged violation of law. This is necessary in order to enable organizational clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim.

 

   [8] A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraph (b) or (c), or who withdraws in circumstances that require or permit the lawyer to take action under either of these paragraphs, must proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

 

Government Agency

   [9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This Rule does not limit that authority. See Scope.

 

Clarifying the Lawyer's Role

   [10] There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances, the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

 

  [11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.

 

Dual Representation

   [12] Paragraph (g) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.

 

Derivative Actions

   [13] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.

 

   [14] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer's client does not alone resolve the issue. Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.

Comment [6] amended September 7, 2016.

 

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§ 3-501.14. Client with diminished capacity.

§ 3-501.14. Client with diminished capacity.

   (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

   (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

   (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

COMMENT

 

   [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as 5 or 6 years of age, and certainly those of 10 or 12, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

 

   [2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

 

   [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client's behalf.

 

   [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(f).

 

Taking Protective Action

   [5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.

 

   [6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

 

   [7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

 

Disclosure of the Client's Condition

   [8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.

 

Emergency Legal Assistance

   [9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client.

 

   [10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.

Comment [4] amended September 7, 2016.

 

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§ 3-501.15. Safekeeping property.

§ 3-501.15. Safekeeping property.

   (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of 5 years after termination of the representation.

   (b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.

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

   (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

   (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

COMMENT

 

   [1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property that is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer's business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities. A lawyer should maintain on a current basis books and records in accordance with generally accepted accounting practice and comply with any recordkeeping rules established by law or court order. See, e.g., ABA Model Financial Recordkeeping Rule.

 

   [2] While normally it is impermissible to commingle the lawyer's own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay bank service charges on that account. Accurate records must be kept regarding which part of the funds are the lawyer's.

 

   [3] Lawyers often receive funds from which the lawyer's fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.

 

   [4] Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer's custody, such as a client's creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

 

   [5] The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this Rule.

 

   [6] A lawyers' fund for client protection provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer. Where such a fund has been established, a lawyer must participate where it is mandatory, and, even when it is voluntary, the lawyer should participate.

 

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§ 3-501.16. Declining or terminating representation.

§ 3-501.16. Declining or terminating representation.

   (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

   (1) the representation will result in violation of the Rules of Professional Conduct or other law;

   (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

   (3) the lawyer is discharged.

   (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

   (1) withdrawal can be accomplished without material adverse effect on the interests of the client;

   (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

   (3) the client has used the lawyer's services to perpetrate a crime or fraud;

   (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

   (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

   (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

   (7) other good cause for withdrawal exists.

   (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

   (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

COMMENT

 

   [1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(b) and 6.5. See also Rule 1.3, Comment [4].

 

Mandatory Withdrawal

   [2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

 

   [3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

 

Discharge

   [4] A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

 

   [5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

 

   [6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

 

Optional Withdrawal

   [7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

 

   [8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

 

Assisting the Client Upon Withdrawal

   [9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15.

 

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§ 3-501.17. Sale of law practice.

§ 3-501.17. Sale of law practice.

   A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:

   (a) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;

   (b) The seller gives written notice to each of the seller's clients regarding:

   (1) the proposed sale;

   (2) the client's right to retain other counsel or to take possession of the file; and

   (3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.

If a client cannot be given notice, that matter shall not be included in the sale and the sale otherwise shall be unaffected and the seller shall comply with the requirements of Rule 1.16 for withdrawal from representation.

   (c) The fees charged clients shall not be increased by reason of the sale.

COMMENT

 

   [1] The practice of law is a profession, not merely a business. Clients are not commodities that can be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to practice, or ceases to practice in an area of law, and other lawyers or firms take over the representation, the selling lawyer or firm may obtain compensation for the reasonable value of the practice as may withdrawing partners of law firms. See Rules 5.4 and 5.6.

 

Sale of Entire Practice or Entire Area of Practice

   [2] The Rule requires that the seller's entire practice, or an entire area of practice, be sold. The prohibition against sale of less than an entire practice area protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if a sale could be limited to substantial fee-generating matters. The purchasers are required to undertake all client matters in the practice or practice area, subject to client consent. This requirement is satisfied, however, even if a purchaser is unable to undertake a particular client matter because of a conflict of interest.

 

Client Confidences, Consent and Notice

   [3] Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Model Rule 1.6 than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to client-specific information relating to the representation and to the file, however, requires client consent. The Rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale, including the identity of the purchaser, and must be told that the decision to consent or make other arrangements must be made within 90 days. If nothing is heard from the client within that time, consent to the sale is presumed.

 

   [4] All elements of client autonomy, including the client's absolute right to discharge a lawyer and transfer the representation to another, survive the sale of the practice or area of practice.

 

Fee Arrangements Between Client and Purchaser

   [5] The sale may not be financed by increases in fees charged the clients of the practice. Existing arrangements between the seller and the client as to fees and the scope of the work must be honored by the purchaser.

 

Other Applicable Ethical Standards

   [6] Lawyers participating in the sale of a law practice or a practice area are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to exercise competence in identifying a purchaser qualified to assume the practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1); the obligation to avoid disqualifying conflicts, and to secure the client's informed consent for those conflicts that can be agreed to (see Rule 1.7 regarding conflicts and Rule 1.0(e) for the definition of informed consent); and the obligation to protect information relating to the representation (see Rules 1.6 and 1.9).

 

   [7] If approval of the substitution of the purchasing lawyer for the selling lawyer is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale (see Rule 1.16).

 

Applicability of the Rule

   [8] This Rule applies to the sale of a law practice of a deceased, disabled, retiring or disappeared lawyer. Thus, the seller may be represented by a non-lawyer representative not subject to these Rules. Since, however, no lawyer may participate in a sale of a law practice which does not conform to the requirements of this Rule, the representatives of the seller as well as the purchasing lawyer can be expected to see to it that they are met.

 

   [9] Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this Rule.

 

   [10] This Rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of a practice or an area of practice.

 

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§ 3-501.18. Duties to prospective client.

§ 3-501.18. Duties to prospective client.

   (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

   (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

   (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

   (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

   (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

   (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

   (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee there from; and

   (ii) written notice is promptly given to the prospective client.

COMMENT

 

   [1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody or rely on the lawyer's advice. A lawyer's discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

 

   [2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).

 

   [3] It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.

 

   [4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

 

   [5] A lawyer may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Rule 1.0(e) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the lawyer's subsequent use of information received from the prospective client.

 

   [6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.

 

   [7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

 

   [8] Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

 

   [9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 1.1. For a lawyer's duties when a prospective client entrusts valuables or papers to the lawyer's care, see Rule 1.15.

 

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§§ 3-502.1 to 3-502.3: Counselor

§§ 3-502.1 to 3-502.3: Counselor

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-502.1. Advisor.

§ 3-502.1. Advisor.

   In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

COMMENT

 

Scope of Advice

   [1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

 

   [2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

 

   [3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

 

   [4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

 

Offering Advice

   [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.

 

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§ 3-502.2. Evaluation for use by third persons.

§ 3-502.2. Evaluation for use by third persons.

   (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.

   (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

   (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

COMMENT

 

Definition

   [1] An evaluation may be performed at the client's direction or when impliedly authorized in order to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business.

 

   [2] A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So also, an investigation into a person's affairs by a government lawyer, or by special counsel by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is retained. This should be made clear not only to the person under examination, but also to others to whom the results are to be made available.

 

Duties Owed to Third Person and Client

   [3] When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.


Access to and Disclosure of Information

 [4] The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily, a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncooperation of persons having relevant information. Any such limitations that are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1.

 

Obtaining Client's Informed Consent

   [5] Information relating to an evaluation is protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose information to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the client's interests materially and adversely, the lawyer must first obtain the client's consent after the client has been adequately informed concerning the important possible effects on the client's interests. See Rules 1.6(a) and 1.0(e).

 

Financial Auditors' Requests for Information

   [6] When a question concerning the legal situation of a client arises at the instance of the client's financial auditor and the question is referred to the lawyer, the lawyer's response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in 1975.

 

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§ 3-502.3. Lawyer serving as third-party neutral.

§ 3-502.3. Lawyer serving as third-party neutral.

   (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

   (b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

COMMENT

 

   [1] Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decisionmaker depends on the particular process that is either selected by the parties or mandated by a court.

 

   [2] The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution.

 

   [3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer's service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer's role as third-party neutral and a lawyer's role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

 

   [4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer's law firm are addressed in Rule 1.12.

 

   [5] Lawyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.

 

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§§ 3-503.1 to 3-503.9: Advocate.

§§ 3-503.1 to 3-503.9: Advocate.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-503.1. Meritorious claims and contentions.

§ 3-503.1. Meritorious claims and contentions.

   A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

COMMENT

 

   [1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.

 

   [2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

 

   [3] The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

 

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§ 3-503.2. Expediting litigation.

§ 3-503.2. Expediting litigation.

   In the lawyer's representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay litigation or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

COMMENT

 

   [1] Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

 

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§ 3-503.3. Candor toward the tribunal.

§ 3-503.3. Candor toward the tribunal.

   (a) A lawyer shall not knowingly:

   (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

   (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

   (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

   (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

   (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

   (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

COMMENT

   [1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

 

   [2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

 

Representations by a Lawyer

   [3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(f) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(f), see the Comment to that Rule. See also the Rule 8.4 Comment [2].

 

Legal Argument

   [4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

 

Offering Evidence

   [5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

 

   [6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

 

   [7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].

 

   [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

 

   [9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. See also Comment [7].

 

Remedial Measures

   [10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done - making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

 

   [11] The disclosure of a client's false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(f). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer into being a party to fraud on the court.

 

Preserving Integrity of Adjudicative Process

   [12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

 

Duration of Obligation

   [13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

 

Ex Parte Proceedings

   [14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

 

Withdrawal

   [15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal's permission to withdraw. In connection with a request for permission to withdraw that is premised on a client's misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.

Comment [3] and [11] amended September 7, 2016.

 

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§ 3-503.4. Fairness to opposing party and counsel.

§ 3-503.4. Fairness to opposing party and counsel.

   A lawyer shall not:

   (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

   (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

   (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

   (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

   (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

   (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

   (1) the person is a relative or an employee or other agent of a client; and

   (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

COMMENT

 

   [1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

 

   [2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

 

   [3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

 

   [4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

 

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§ 3-503.5. Impartiality and decorum of the tribunal.

§ 3-503.5. Impartiality and decorum of the tribunal.

   (a) A lawyer shall not:

   (1) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

   (2) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

   (3) communicate with a juror or prospective juror after discharge of the jury if:

   (i) the communication is prohibited by law or court order;

   (ii) the juror has made known to the lawyer a desire not to communicate; or

   (iii) the communication involves misrepresentation, coercion, duress or harassment; or

   (4) engage in conduct intended to disrupt a tribunal.

   (b) A lawyer shall reveal promptly to the court improper conduct by a venireperson or a juror, or by another toward a venireperson or a juror or a member of his or her family, of which the lawyer has knowledge.

COMMENT

 

   [1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.

 

   [2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order.

 

   [3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.

 

   [4] The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

 

   [5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

 

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§ 3-503.6. Trial publicity.

§ 3-503.6. Trial publicity.

   (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know willbe disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

   (b) Notwithstanding paragraph (a), a lawyer may state:

   (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

   (2) information contained in a public record;

   (3) that an investigation of a matter is in progress;

   (4) the scheduling or result of any step in litigation;

   (5) a request for assistance in obtaining evidence and information necessary thereto;

   (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

   (7) in a criminal case, in addition to subparagraphs (1) through (6):

   (i) the identity, residence, occupation and family status of the accused;

   (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

   (iii) the fact, time and place of arrest; and

   (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

   (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

   (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

COMMENT

 

   [1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

 

   [2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such rules.

 

   [3] The Rule sets forth a basic general prohibition against a lawyer's making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.

 

   [4] Paragraph (b) identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a)Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).

 

   [5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

 

   (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

 

   (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

 

   (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

 

   (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

 

   (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or

 

   (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

 

   [6] Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.

 

   [7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

 

   [8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings.

 

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§ 3-503.7. Lawyer as witness.

§ 3-503.7. Lawyer as witness.

   (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

   (1) the testimony relates to an uncontested issue;

   (2) the testimony relates to the nature and value of legal services rendered in the case; or

   (3) disqualification of the lawyer would work substantial hardship on the client.

   (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

COMMENT

 

   [1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.

Advocate-Witness Rule

   [2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

 

   [3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through (a)(3)Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.

 

   [4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The conflict of interest principles stated in Rules 1.71.9 and 1.10 have no application to this aspect of the problem.

 

   [5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which another lawyer in the lawyer's firm will testify as a necessary witness, paragraph (b) permits the lawyer to do so except in situations involving a conflict of interest.

 

Conflict of Interest

   [6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer's disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7. See Rule 1.0(b) for the definition of "confirmed in writing" and Rule 1.0(e) for the definition of "informed consent."

 

   [7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.

 

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§ 3-503.8. Special responsibilities of a prosecutor.

§ 3-503.8. Special responsibilities of a prosecutor.

   The prosecutor in a criminal case shall:

   (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

   (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

   (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

   (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

   (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

   (1) the information sought is not protected from disclosure by any applicable privilege;

   (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

   (3) there is no other feasible alternative to obtain the information;

   (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

COMMENT

 

   [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

 

   [2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.

 

   [3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

 

   [4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.

 

   [5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

 

   [6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.

 

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§ 3-503.9. Advocate in nonadjudicative proceedings.

§ 3-503.9. Advocate in nonadjudicative proceedings.

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c)3.4(a) through (c), and 3.5.

COMMENT

 

   [1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c)3.4(a) through (c), and 3.5.

 

   [2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

 

   [3] This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer's client is presenting evidence or argument. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client's compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client's affairs conducted by government investigators or examiners. Representation in such matters is governed by Rules 4.14.24.3, and 4.4.

 

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§§ 3-504.1 to 3-504.4: Transactions With Persons Other Than Clients.

§§ 3-504.1 to 3-504.4: Transactions With Persons Other Than Clients.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-504.1. Truthfulness in statements to others.

§ 3-504.1. Truthfulness in statements to others.

   In the course of representing a client a lawyer shall not knowingly:

   (a) make a false statement of material fact or law to a third person; or

   (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

COMMENT

 

Misrepresentation

   [1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

 

Statements of Fact

   [2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

 

Crime or Fraud by Client

   [3] Under Rule 1.2(f), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(f) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.

Comment [3] amended September 7, 2016.

 

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§ 3-504.2. Communication with person represented by counsel.

§ 3-504.2. Communication with person represented by counsel.

   In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

COMMENT

 

   [1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation.

 

   [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.

 

   [3] The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

 

   [4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

 

   [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.

 

   [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.

 

   [7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization's lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.

 

   [8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.

 

   [9] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3.

 

   [10] In the event an "Entry of Limited Appearance" is filed, opposing counsel may communicate with such lawyer's client on matters outside the scope of limited representation, and by filing such limited appearance, the lawyer and the client shall be deemed to have consented to such communication.

 

Comment [10] of § 3-504.2 adopted August 27, 2008.

 

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§ 3-504.3. Dealing with unrepresented person.

§ 3-504.3. Dealing with unrepresented person.

   In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

COMMENT

 

   [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(d).

 

   [2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those in which the person's interests are not in conflict with the client's. In the former situation, the possibility that the lawyer will compromise the unrepresented person's interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.

 

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§ 3-504.4. Respect for rights of third persons.

§ 3-504.4. Respect for rights of third persons.

   (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

   (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

COMMENT

 

   [1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

 

   [2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

 

   [3] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

 

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§§ 3-505.1 to 3-505.7: Law Firms and Associations.

§§ 3-505.1 to 3-505.7: Law Firms and Associations.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-505.1. Responsibilities of a partner or supervisory lawyer.

§ 3-505.1. Responsibilities of a partner or supervisory lawyer.

   (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

   (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

   (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

   (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

   (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

COMMENT

 

   [1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.

 

   [2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

 

   [3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm's structure and the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.

 

   [4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).

 

   [5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.

 

   [6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.

 

   [7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.

 

  [8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).

 

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§ 3-505.2. Responsibilities of a subordinate lawyer.

§ 3-505.2. Responsibilities of a subordinate lawyer.

   (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

   (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

COMMENT

 

   [1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document's frivolous character.

 

   [2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise, a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.

 

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§ 3-505.3. Responsibilities regarding nonlawyer assistants.

§ 3-505.3. Responsibilities regarding nonlawyer assistants.

   With respect to a nonlawyer employed or retained by or associated with a lawyer:

   (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

   (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

   (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

   (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

   (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

COMMENT

 

   [1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

 

   [2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

 

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§ 3-505.4. Professional independence of a lawyer.

§ 3-505.4. Professional independence of a lawyer.

   (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

   (1) an agreement by a lawyer with the lawyer's firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;

   (2) a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;

   (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and

   (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

   (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

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

   (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

   (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

   (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

   (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

COMMENT

 

   [1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment.

 

   [2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer's professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer's independent professional judgment and the client gives informed consent).

 

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§ 3-505.5. Unauthorized practice of law; multijurisdictional practice of law.

§ 3-505.5. Unauthorized practice of law; multijurisdictional practice of law.

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

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

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

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

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

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

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

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

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

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

   (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission and the lawyer is registered under Neb. Ct. R. §§ 3-1201 to 3-1204, Registration of In-House Counsel.

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

COMMENT

 

   [1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer's direct action or by the lawyer assisting another person.

 

   [2] The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.

 

   [3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

 

   [4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1 and 7.5(b).

 

   [5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.

 

   [6] There is no single test to determine whether a lawyer's services are provided on a "temporary basis" in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be "temporary" even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

 

   [7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word "admitted" in paragraph (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

 

   [8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.

 

   [9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.

 

   [10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

 

   [11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.

 

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

 

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

 

   [14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer's client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer's recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign or international law.

 

   [15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.

 

   [16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer's officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer's qualifications and the quality of the lawyer's work.

 

   [17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.

 

   [18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.

 

   [19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).

 

   [20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).

 

   [21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.

§ 3-505.5(d)(1) amended October 26, 2011, effective January 1, 2012.

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§ 3-505.6. Restrictions on right to practice.

§ 3-505.6. Restrictions on right to practice.

   A lawyer shall not participate in offering or making:

   (a) a partnership, shareholders, operating, employment or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

   (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

COMMENT

 

   [1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

 

   [2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

 

   [3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

 

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§ 3-505.7. Responsibilities regarding law-related services.

§ 3-505.7. Responsibilities regarding law-related services.

   (a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

   (1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

   (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

   (b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

COMMENT

 

   [1] When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.

 

   [2] This Rule applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity. The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 8.4.

 

   [3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer's provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Rules of Professional Conduct apply to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.


   [4] Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity's operations, the Rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer's control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case.

 

   [5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).

 

   [6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Rules of Professional Conduct the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship. The communication should be made before entering into an agreement for provision of or providing law-related services, and preferably should be in writing.

 

   [7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit.

 

   [8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances, the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case, a lawyer will be responsible for assuring that both the lawyer's conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Rules of Professional Conduct.

 

   [9] A broad range of economic and other interests of clients may be served by lawyers' engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation and patent, medical or environmental consulting.

 

   [10] When a lawyer is obliged to accord the recipients of such services the protections of those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the Rules addressing conflict of interest (Rules 1.7 through 1.11, especially Rules 1.7(a)(2) and 1.8(a)(b) and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction's decisional law.

 

   [11] When the full protections of all of the Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also Rule 8.4 (Misconduct).

 

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§§ 3-506.1 to 3-506.5: Public Service.

§§ 3-506.1 to 3-506.5: Public Service.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-506.1. Voluntary pro bono service.

§ 3-506.1. Voluntary pro bono service.

   A lawyer should aspire to render pro bono legal services. In fulfilling this responsibility, the lawyer should:

   (a) provide a substantial majority of the legal services without fee or expectation of fee to:

   (1) persons of limited means or

   (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and

   (b) provide any additional services through:

   (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;

   (2) delivery of legal services at a substantially reduced fee to persons of limited means; or

   (3) participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

COMMENT

 

   [1] Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono services annually.

 

   [2] Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.

 

   [3] Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means. The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.

 

   [4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

 

   [5] Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers from performing the pro bono services outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers may fulfill their pro bono responsibility by performing services outlined in paragraph (b).

 

   [6] Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. A lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities.

 

   [7] Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.

 

   [8] Law firms should act reasonably to enable and encourage all lawyers in the firm to provide pro bono legal services.

 

   [9] The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.

 

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§ 3-506.2. Accepting appointments.

§ 3-506.2. Accepting appointments.

   A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

   (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

   (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

   (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

COMMENT

 

   [1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.

 

Appointed Counsel

   [2] For good cause, a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.

 

   [3] An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.

 

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§ 3-506.3. Membership in legal services organization.

§ 3-506.3. Membership in legal services organization.

   A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

   (a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

   (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

COMMENT

 

   [1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed.

 

   [2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.

 

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§ 3-506.4. Law reform activities affecting client interests.

§ 3-506.4. Law reform activities affecting client interests.

   A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

COMMENT

 

   [1] Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

 

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§ 3-506.5. Nonprofit and court-annexed limited legal services programs.

§ 3-506.5. Nonprofit and court-annexed limited legal services programs.

   (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

   (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

   (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

   (b) Except as provided in paragraph (a)(2)Rule 1.10 is inapplicable to a representation governed by this Rule.

COMMENT

 

   [1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.71.9 and 1.10.

 

   [2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client's informed consent to the limited scope of the representation. See Rule 1.2(b). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.

 

   [3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by Rules 1.7 or 1.9(a) in the matter.

 

   [4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2)Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

 

   [5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.71.9(a) and 1.10 become applicable.

 

 

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§§ 3-507.1 to 3-507.5: Information About Legal Services.

§§ 3-507.1 to 3-507.5: Information About Legal Services.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-507.1. Communications concerning a lawyer's services.

§ 3-507.1. Communications concerning a lawyer's services.

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

COMMENT

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

   [2] Misleading truthful statements are prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is misleading if a substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. A truthful statement is also misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer's communication requires that person to take further action when, in fact, no action is required.

   [3] A communication that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated claim about a lawyer's or law firm's services or fees, or an unsubstantiated comparison of the lawyer's or law firms services or fees with those of other lawyers or law firms, may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

   [4] It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). See also Rule 8.4(e) for the prohibition against stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

   [5] Firm names, letterhead, and professional designations are communications concerning a lawyer’s services. A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm’s identity, or by a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username, or comparable professional designation that is not misleading. A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer, or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express statement explaining that it is not a public legal aid organization may be required to avoid a misleading implication.

   [6] A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction.

   [7] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(c), because to do so would be false and misleading.

   [8] It is misleading to use the name of a lawyer holding a public office in the name of a law firm, or in communications on the law firm’s behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

§ 3-507.1 amended March 25, 2020.

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§ 3-507.2. Advertising.

§ 3-507.2. Advertising.

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

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

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

   (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

   (3) pay for a law practice in accordance with Rule 1.17; and

   (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

   (i) the reciprocal referral agreement is not exclusive, and

   (ii) the client is informed of the existence and nature of the agreement.

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

COMMENT

 

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

 

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

 

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

 

   [4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

 

Paying Others to Recommend a Lawyer

   [5] Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them.

 

   [6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for prospective clients. See, e.g., the American Bar Association's Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring that organizations that are identified as lawyer referral services (i) permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of prospective clients; (ii) require each participating lawyer to carry reasonably adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and address client complaints; and (iv) do not refer prospective clients to lawyers who own, operate or are employed by the referral service.)

 

   [7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with prospective clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

 

   [8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer's professional judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and 5.4(c). Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral, but the lawyer does not violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. Conflicts of interest created by such arrangements are governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. This Rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities.

 

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§ 3-507.3. Direct contact with prospective clients.

§ 3-507.3. Direct contact with prospective clients.

   (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

   (1) is a lawyer; or

   (2) has a family, close personal or prior professional relationship with the lawyer.

   (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

   (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

   (2) the solicitation involves coercion, duress or harassment.

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

   (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

COMMENT

 

   [1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation and over-reaching.

 

   [2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client's judgment.

 

   [3] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone or real-time electronic conversations between a lawyer and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

 

   [4] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in paragraph (a) and the requirements of paragraph (c) are not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

 

   [5] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of paragraph (b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of paragraph (b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of paragraph (b).

 

   [6] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

 

   [7] The requirement in paragraph (c) that certain communications be marked "This is an advertisement" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

 

[8] Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.17.2 and paragraph (b) of this Rule. See Rule 8.4(a).

 

 

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§ 3-507.4. Communication of fields of practice.

§ 3-507.4. Communication of fields of practice.

   (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

   (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.

   (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.

   (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

   (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

   (2) the name of the certifying organization is clearly identified in the communication.

COMMENT

 

   [1] Paragraph (a) of this Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a "specialist," practices a "specialty" or "specializes in" particular fields, but such communications are subject to the "false and misleading" standard applied in Rule 7.1 to communications concerning a lawyer's services.

 

   [2] Paragraph (b) recognizes the long-established policy of the Patent and Trademark Office for the designation of lawyers practicing before the Office. Paragraph (c) recognizes that designation of Admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

 

   [3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by an appropriate state authority or accredited by the American Bar Association or another organization, such as a state bar association, that has been approved by the state authority to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to insure that a lawyer's recognition as a specialist is meaningful and reliable. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

 

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§ 3-507.5. [Reserved.]

§ 3-507.5. [Reserved.]

§ 3-507.5 deleted March 25, 2020.

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§§ 3-508.1 to 3-508.5: Maintaining the Integrity of the Profession.

§§ 3-508.1 to 3-508.5: Maintaining the Integrity of the Profession.

(cite as Neb. Ct. R. of Prof. Cond. §)

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§ 3-508.1. Bar admission and disciplinary matters.

§ 3-508.1. Bar admission and disciplinary matters.

   An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

   (a) knowingly make a false statement of material fact; or

   (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

COMMENT

 

   [1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

 

   [2] This Rule is subject to the provisions of the fifth amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

 

   [3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

 

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§ 3-508.2. Judicial and legal officials.

§ 3-508.2. Judicial and legal officials.

   (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

   (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Nebraska Revised Code of Judicial Conduct.

COMMENT

 

   [1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

 

   [2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

 

   [3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

§ 3-508.2(b) amended December 22, 2010, effective January 1, 2011.

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§ 3-508.3. Reporting professional misconduct.

§ 3-508.3. Reporting professional misconduct.

   (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

   (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

   (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

COMMENT

 

   [1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

 

   [2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

 

   [3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

 

   [4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

 

   [5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law.

 

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§ 3-508.4. Misconduct.

§ 3-508.4. Misconduct.

   It is professional misconduct for a lawyer to:

   (a) violate or attempt to violate the Rules of Professional Conduct knowingly assist or induce another to do so or do so through the acts of another;

   (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

   (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

   (d) engage in conduct that is prejudicial to the administration of justice. Once a lawyer is employed in a professional capacity, the lawyer shall not, in the course of such employment, engage in adverse discriminatory treatment of litigants, witnesses, lawyers, judges, judicial officers or court personnel on the basis of the person's race, national origin, gender, religion, disability, age, sexual orientation or socio-economic status. This subsection does not preclude legitimate advocacy when these factors are issues in a proceeding.

   (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

   (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law or

   (g) willfully refuse, as determined by a court of competent jurisdiction, to timely pay a support order, as such order is defined by Nebraska law.

COMMENT

 

   [1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

 

   [2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

 

   [3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

 

   [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(f) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

 

   [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

Comment [4] amended September 7, 2016.

 

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§ 3-508.5. Disciplinary authority; choice of law.

§ 3-508.5. Disciplinary authority; choice of law.

   (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

   (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows:

   (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

   (2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.

COMMENT

 

Disciplinary Authority

   [1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this Rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of this jurisdiction under paragraph (a) appoints an official to be designated by this Court to receive service of process in this jurisdiction. The fact that the lawyer is subject to the disciplinary authority of this jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.

 

Choice of Law

   [2] A lawyer may be potentially subject to more than one set of Rules of Professional Conduct which impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer's conduct may involve significant contacts with more than one jurisdiction.

 

   [3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of Rules of Professional Conduct, (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions, and (iii) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.

 

   [4] Paragraph (b)(1) provides that as to a lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.

 

   [5] When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.

 

   [6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.

 

   [7] The choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.

 

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Article 6: Professional Service Corporations.

Article 6: Professional Service Corporations. unanimous

§ 3-601. Continuing or converting operations; organization, powers; shareholder restrictions and liability; dissolution.

§ 3-601. Continuing or converting operations; organization, powers; shareholder restrictions and liability; dissolution.

   Any professional service corporation organized under this rule prior to December 1, 1999, and operating in accordance with the provisions of this rule, may continue to operate hereunder until such corporation chooses to incorporate under the Nebraska Supreme Court Rule for Limited Liability Professional Organizations provided that such professional corporation has not been suspended or dissolved by the Secretary of State, in which case the professional corporation must amend or restate its articles of incorporation to comply with the provisions of the Limited Liability Professional Organizations rule. The articles of incorporation of any professional corporation operating in accordance with this rule shall contain provisions complying with the following requirements:

   (A) The corporation shall be organized solely for the purpose of conducting the practice of law only through persons qualified to practice law in the State of Nebraska.

   (B) The corporation may exercise the powers and privileges conferred upon corporations by the law of Nebraska only in furtherance of and subject to its corporate purpose.

   (C) All shareholders of the corporation shall be persons duly licensed by the Supreme Court of the State of Nebraska to practice law in the State of Nebraska, and who at all times own their shares in their own right.

   (D) Provisions shall be made requiring any shareholder who ceases to be eligible to be a shareholder to dispose of all his or her shares forthwith either to the corporation or to any person having the qualifications described in § 3-601(C).

   (E) The president shall be a shareholder and a director, and all other directors and officers shall be persons having the qualifications described in § 3-601(C).

   (F) The articles of incorporation shall provide, and all shareholders of the corporation shall be deemed to agree by virtue of becoming shareholders or members, that all shareholders or members shall be jointly and severally liable to the extent that the assets of the corporation are insufficient to satisfy any liability incurred by the corporation for the acts, errors, and omissions of the shareholders or members and other employees of the corporation or association arising out of the performance of the professional services by the corporation or association while they are shareholders or members to the same extent as if the shareholders were practicing in the form of a general partnership.

   (G) A corporation which discontinues the practice of law may nevertheless continue in operation for an additional period of up to 2 years for the purpose of dissolving and winding up the administrative business of the firm.

Rule 1(E) amended April 24, 1996; Rule 1 amended June 16, 1999; Rule 1 amended June 28, 2000. Renumbered and codified as § 3-601, effective July 18, 2008.

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§ 3-602. Filing requirements; ethical obligations; attorney-client privilege.

§ 3-602. Filing requirements; ethical obligations; attorney-client privilege.

   (A) (1) A copy certified by the Secretary of State of the articles of incorporation of any corporation formed pursuant to this rule shall be submitted electronically to the Clerk of the Supreme Court of Nebraska, together with a certified copy of all amendments thereto. At the time of filing the original articles with said Clerk, the corporation shall file with said Clerk a written list of shareholders setting forth the names and addresses of each and a written list containing the names and addresses of all persons who are not shareholders who are employed by the corporation and who are authorized to practice law in Nebraska.

   (2) Beginning July 1, 2023, any existing corporation shall electronically submit all required documents to obtain a Certificate of Authority from the Nebraska Supreme Court to operate in this state. The corporation shall annually submit a cover letter requesting the Certificate, and the required professional corporation form found as Appendix 1 to this rule listing the names and residence addresses of all shareholders and employees licensed to practice law. The corporation shall pay the $25 issuance fee through the online portal. All documents shall be submitted electronically to the Clerk of the Supreme Court to the email address certauthority@nejudicial.gov with the firm name in the subject line. All Certificates of Authority shall be issued electronically to the email address provided by the requestor. No paper Certificates shall be issued by the Clerk.

   (B) The corporation shall do nothing which if done by an attorney employed by it would violate the standards of professional conduct established for such attorney by this Court. The corporation shall at all times comply with the standards of professional conduct established by this Court and the provisions of this rule. Any violation of this rule by the corporation shall be grounds for the Supreme Court to terminate or suspend its right to practice law.

   (C) Nothing in this rule shall be deemed to diminish or change the obligation of each attorney employed by the corporation to conduct his or her practice in accordance with the standards of professional conduct promulgated by this Court; any attorney who by act or omission causes the corporation to act or fail to act in a way which violates such standards of professional conduct, including any provision of this rule, shall be deemed personally responsible for such act or omission and shall be subject to discipline therefor.

   (D) Nothing in this rule shall be deemed to modify the attorney-client privilege specified by statute, and any comparable common-law privilege.

Rule 2(A) amended March 13, 1996; Rule 2(A) amended February 25, 1998. Renumbered and codified as § 3-602, effective July 18, 2008; § 3-201(A) amended May 10, 2023.

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§ 3-603. Employee benefits.

§ 3-603. Employee benefits.

   Any such corporation may adopt a pension, profit-sharing (whether cash or deferred), health and accident, insurance or welfare plan for all or part of its employees including lay employees, providing that such plan does not require or result in the sharing of specific or identifiable fees with lay employees and any payments made to lay employees or into any such plan in behalf of lay employees are based upon the lay employees' compensation or length of service or both rather than the amount of fees or income received.

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§ 3-604. Corporate practice of law prohibited; exceptions.

§ 3-604. Corporate practice of law prohibited; exceptions.

   Except as provided by this rule, corporations shall not practice law.

   This rule shall not apply to organizations offering prepaid legal services to a defined and limited class of clients; to nonprofit charitable or benevolent organizations organized and operating primarily for a purpose other than the provision of legal services and which furnish legal services as an incidental activity in furtherance of their primary purpose; or to nonprofit organizations which have as their primary purpose the furnishing of legal services to indigent persons; provided that (1) the legal work serves the intended beneficiaries of the organizational purpose, (2) the staff attorney responsible for the matter signs all papers prepared by the organization, and (3) the relationship between the staff attorney and client meets the attorney's professional responsibilities to the client and is not subject to interference, control, or direction by the organization's board or employees except for a supervising attorney licensed to practice law in Nebraska.

Rule 4 amended December 24, 1997; Rule 4 amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-604, effective July 18, 2008.

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Article 7: Senior Law Students; Limited Practice of Law.

Article 7: Senior Law Students; Limited Practice of Law. unanimous

§ 3-701. Purpose

§ 3-701. Purpose

   The purpose of this rule is to provide senior law students with supervised practical training in the practice of law during the period of their formal legal education.

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§ 3-702. Activities.

§ 3-702. Activities.

   An eligible law student may engage in the following activities:

   (A) Appear and participate in:

   (1) Trials in civil matters in Workers' Compensation Court, county courts, and district courts in this State when acting under the general supervision of an attorney duly admitted to practice in Nebraska. Any such appearance in Workers' Compensation Court, county courts, and district courts must be in the personal presence of the supervising attorney, except that the county court judge, may waive the requirement of personal presence of a supervising attorney in specific cases for an eligible law student who has previously participated in a trial in that court in the personal presence of the supervising attorney. For the purposes of this rule, proceedings to enforce a penalty for violation of a municipal ordinance shall be deemed criminal in nature.

   (2) Criminal matters in all courts when acting under the general supervision of an attorney duly admitted to practice in Nebraska who is defending any case in these courts. Such appearance must be in the personal presence of the supervising attorney.

   (3) Criminal matters in all courts when acting as an assistant to a county attorney, deputy county attorney, or other prosecuting official duly admitted to practice in Nebraska. Such appearance must be in the personal presence of the supervising attorney.

   (4) Postconviction and habeas corpus matters in all courts when acting under the general supervision and in the personal presence of a lawyer admitted to practice in Nebraska who is prosecuting or defending such a case.

   (5) Juvenile matters when acting under the general supervision of an attorney duly admitted to practice in Nebraska who is prosecuting or defending such case. Any such appearance must be in the personal presence of the supervising attorney.

   (B) Hold consultations and prepare pleadings, briefs, and other documents to be filed in any matter in which the student is eligible to appear, when acting under the general supervision of an attorney duly admitted to practice in Nebraska. Such pleadings, briefs, and other documents must be signed by the supervising attorney but may also set forth the name of the eligible law student who has participated in preparation of the document(s).

   (C) Prepare briefs and other documents to be filed in the Nebraska Court of Appeals and the Supreme Court of Nebraska, but such briefs or other documents must be prepared under the general supervision of and signed by an attorney duly admitted to practice in Nebraska. Each such instrument may set forth the name of the eligible law student who has participated in preparation of the document(s).

   (D) Participate in oral argument in the Nebraska Court of Appeals and the Supreme Court of Nebraska, but only in the personal presence of an attorney of record in the case and only with the prior approval of the Court.

   (E) Hold consultations with clients, advise clients on legal matters, and prepare any documents related to such consultations and legal advice.

Rule 2(C) and (D) amended November 22, 2000. Renumbered and codified as § 3-702, effective July 18, 2008. § 3-702(E) amended September 13, 2012.

unanimous

§ 3-703. Requirements and limitations.

§ 3-703. Requirements and limitations.

   To become eligible to participate in legal activities pursuant to this rule, a law student must:

   (A) Be duly enrolled in a law school approved by the American Bar Association. A law student will be considered duly enrolled during the period of his or her law school's next summer vacation period following completion of the requirements of § 3-703(B).

   (B) Have completed legal studies sufficient to have attained senior standing at his or her law school.

   (C) Be certified by the dean of his or her law school as being of good character and competent legal ability, and as being adequately trained to perform as a legal intern under the general supervision of the attorney or attorneys designated by name.

   (D) To the extent the student is appearing before a court, be introduced to the court in which he or she is appearing by an attorney duly admitted to practice in that court.

   (E) To the extent the student is appearing before a court, receive the affirmative consent of the court in which he or she is appearing to appear before it.

   (F) Not ask for or receive any compensation or remuneration of any kind for his or her services directly from the client on whose behalf he or she renders services. This provision is not intended to preclude the supervising attorney from compensating the eligible law student nor to prevent the supervising attorney from receiving a fee from the client for the services performed in compliance with the otherwise applicable rules of proper professional conduct.

   (G) For purposes of Neb. Ct. R. §§ 2-201(I) and 2-208(C)(1), the student shall be considered a non-attorney user and required to comply with all applicable provisions of those rules.

Rule 3(B) amended May 20, 1992; Rule 3(A) amended July 31, 1992. Renumbered and codified as § 3-703, effective July 18, 2008. §§ 3-703(D)-(F) amended September 13, 2012; § 3-703(A) and (G) amended May 11, 2022.

unanimous

§ 3-704. Supervision.

§ 3-704. Supervision.

   The lawyer under whose supervision an eligible law student engages in any of the activities permitted by this rule shall:

   (A) Be duly admitted to practice law in Nebraska.

   (B) Assume personal professional responsibility to the client for the services performed by the law student.

   (C) Secure the prior written consent of the client for the services actually to be performed in court by the law student.

   (D) Assume personal professional responsibility for the student's guidance in any work undertaken and for supervising the quality of the student's work.

   (E) Assist the student in his or her preparation to the extent the supervising lawyer considers it necessary.

unanimous

§ 3-705. Certification.

§ 3-705. Certification.

   The certification of a student by the law school dean:

   (A) Shall be filed with the Clerk of this Court and, unless it is sooner withdrawn, shall terminate if the student does not take the first bar examination following his or her graduation, or if the student takes such bar examination and fails it, or if he or she is admitted to full practice before this court.

   (B) May be withdrawn by the dean at any time by mailing a notice thereof to the Clerk of this Court. It is not necessary that the notice state the cause for withdrawal.

   (C) May be terminated by this Court at any time without prior notice and without any showing of cause.

Rule 5(A) amended September 25, 2002.  Renumbered and codified as § 3-705, effective July 18, 2008.

unanimous

§ 3-706. Miscellaneous.

§ 3-706. Miscellaneous.

   Nothing contained in this rule shall affect the right of any person who is not admitted to practice law in Nebraska to do anything that he or she might lawfully do prior to the adoption of this rule.

unanimous

Article 8: State Bar Association; Creation; Control; and Regulation.

Article 8: State Bar Association; Creation; Control; and Regulation. unanimous

§ 3-801. Name.

§ 3-801. Name.

   The name of this Association shall be NEBRASKA STATE BAR ASSOCIATION.

unanimous

§ 3-802. Purpose and authority.

§ 3-802. Purpose and authority.

   (A) Purpose. The purposes of this Association are to 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 continuing legal education of the members of the Bar; to improve the relations of the Bar with the public; to carry on a continuing program of legal research; and to encourage cordial relations 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, the 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 provided in § 3-805. Subject to the overall control of the House of Delegates, the Executive Council shall function as the administrative and executive organ of the Association as provided in § 3-806. The officers of the Association, as hereinafter enumerated, shall have the prerogatives, responsibilities, and qualifications and shall perform the duties of the respective offices, all as provided in § 3-804.

§ 3-802 amended December 3, 2013, effective January 1, 2014; § 3-802(A) amended January 14, 2015.

unanimous

§ 3-803. Membership.

§ 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 requirements for membership hereinafter set forth, including payment of mandatory membership assessments as may be fixed by the Nebraska Supreme Court.

   (2) The Clerk 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 five classes, namely: Active members, Inactive members, Disability 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) Disability Inactive Status. In the event the member has an impairment which prevents an active law practice, the member may apply for Disability Inactive Status membership through the Attorney Services Division. See Neb. Ct. R. § 3-311(C). A member granted such status by the Nebraska Supreme Court shall not be required to pay annual inactive dues during the period of disability. The application and supporting information shall be confidential pursuant to § 3-318(D)(2). An order granting the application shall be public pursuant to § 3-318(D)(2).

   (b) Inactive Status. A member desiring to be placed in any Inactive membership status shall submit a written application therefor with the Attorney Services Division and, if otherwise qualified, shall be placed in such inactive status classification. No Inactive members shall practice law in Nebraska, or vote or hold office in this Association.

   (c) Reinstatement to Active Member. Any Inactive member may, on submitting an application with the Attorney Services Division and upon payment of the required fees and 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 as provided by § 3-803(F), become an Active member. The State Bar Commission shall conduct a review of the member's character and fitness and make a recommendation to the Court evincing the member's fitness to become an Active member. (Appendix  A). Members on disability inactive status shall apply for reinstatement as provided in § 3-311(G).

   (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 membership status shall submit a written application therefor with the Attorney Services Division 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 submitting an application with the Attorney Services Division 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.

   (4) Except for the right reserved by law to litigants to prosecute or defend a cause in person, or as provided elsewhere in these rules, no person other than an Active member of this Association shall engage in the practice of law in this State, or in any manner hold himself or herself out as authorized or qualified to practice law in this State. Any court in this State may, on motion and upon such person taking the oath required by Neb. Rev. Stat. § 7-104, allow a member of the Bar of any other state or jurisdiction, in good standing therein, to appear and participate in any particular action or proceeding then pending before such court (for purpose of such business only), upon it further being made to appear to the court, by written showing filed therein, that such person has associated with and is appearing in such action with an Active member of this Association upon whom service may be made in all matters connected with said action, with same effect as if personally made on such foreign attorney in this State; provided, regularly licensed practicing attorneys of other states, the laws of which permit practice in their courts of attorneys from this State, without a local attorney being associated with such attorneys, shall not be required to have an Active member of this Association associated with them in such action. (See Neb. Rev. Stat. § 7-103.)

   (5) Nothing in these rules shall be construed to bar any Active member from the practice of law pursuant to the provisions of any rules of the Supreme Court authorizing the practice of law by a professional service corporation or a limited liability organization, subject to the limitations provided by such rules.

   (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 as part of each application for renewal thereof, submit the certification required by this rule. For purposes of this rule, professional liability insurance means:

   (a) The insurance shall insure the member against liability imposed upon the member arising out of a professional act, error, or omission in the practice of law.

   (b) Such insurance shall insure the member against liability imposed upon the member by law for damages arising out of the professional acts, errors, and omissions of all nonprofessional employees employed by the member.

   (c) The policy may contain reasonable provisions with respect to policy periods, territory, claims, conditions, exclusions, and other matters.

   (d) The policy may provide for a deductible or self-insured retained amount and may provide for the payment of defense or other costs out of the stated limits of the policy.

   (e) A professional act, error, or omission is considered to be covered by professional liability insurance for the purpose of this rule if the policy includes such act, error, or omission as a covered activity, regardless of whether claims previously made against the policy have exhausted the aggregate top limit for the applicable time period or whether the individual claimed amount or ultimate liability exceeds either the per claim or aggregate top limit.

   On or before January 20 of each year, each active member shall certify to the Nebraska Supreme Court, through the on-line system administered by the Attorney Services Division: 1) whether or not such member is currently covered by professional liability insurance, other than an extended reporting endorsement; 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, shareholder, 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 attorney or in-house counsel and does not represent clients outside that capacity.

   The foregoing shall be certified by each active member of this Association annually through the Court's on-line system administered by the Attorney Services Division. Such certifications shall be made available to the public by any means designated by the 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 appropriate disciplinary action. All members shall update the information within their on-line attorney services account within 30 days if 1) professional liability insurance providing coverage to the member has lapsed or is not in effect, or 2) the member acquires professional liability coverage as defined by this rule.

   All certifications not received by April 1 of the current calendar year shall be considered delinquent. The Director of the Attorney Services Division shall send written notice, by U.S. mail and email, 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 members who shall fail to provide the certification within 30 days thereafter shall be reported to the Supreme Court by the Director of the Attorney Services Division, 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 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.

   This rule shall not affect this Association, its rules, procedures, structure, or operation in any way; nor shall the adoption of this rule make this Association, its officers, directors, representatives, or membership liable in any way to any person who has suffered loss by error or omission of a lawyer. This rule is adopted solely for the purposes stated herein and not for the purpose of making this Association, its officers, directors, representatives, or membership insurers or guarantors for clients with respect to the lawyer-client relationship.

   This rule does not create a claim against this Association, nor the Director of the Attorney Services Division of the Supreme Court, for failure to provide accurate information or a report on the insured status of any lawyer, or for implementation of any provision of these rules.

MANDATORY REPORTING OF WHETHER ATTORNEY POSSESSES PROFESSIONAL LIABILITY INSURANCE COVERAGE

I am engaged in the private practice of law involving representation of clients drawn from the public:
     Yes____ No____

I am currently covered by a professional liability insurance policy other than an extended reporting endorsement:
     Yes____ No____

I am currently a member of a professional corporation, limited liability company, or a limited liability partnership and maintain the insurance coverage required by the rule governing Limited Liability Professional Organizations:
     Yes____ No____

I am engaged in the practice of law as a full-time government attorney or in-house counsel and do not represent clients outside that capacity, and therefore, I am exempt from the provisions of this rule.
     Yes____ No____

□  By checking this box, you certify to the Supreme Court that your answers to the foregoing are true and correct and you acknowledge the requirement that you will update this information within 30 days if 1) professional liability insurance providing coverage to the member has lapsed or is not in effect, or 2) you acquire professional liability coverage as defined by this rule.

   (C) Registration. All members shall be automatically registered with the Attorney Services Division as Active members upon admission and shall, within 60 days after being admitted to the practice of law by the Supreme Court of this State, access their on-line account with the Attorney Services Division and update or verify as necessary the member's full name, business address, e-mail address, and signature. All members shall promptly notify the Attorney Services Division of any change in such address, phone number, or e-mail address by accessing and updating their personal information in the Court's on-line system.

   (D) Mandatory Membership Assessments.

   (1) Payment of Assessments. Each member shall pay mandatory membership assessments for each calendar year from January 1 to December 31 following, payable in advance on or before January 20 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 such assessments shall be used for the administration and enforcement of the regulation of the practice of law by the Court. All payments shall be made through the Attorney Services Division on-line system. Different classifications of 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 annual mandatory membership assessments beginning calendar year 2014 shall be as follows:

Membership Class§ 3-100(B)
(Adm.)
§ 3-301(E)
(Discipline)
§ 3-1010(B)
(UPL)
Total
Regular Active*$10.00$75.00$13.00$98.00
Junior Active**$10.00$75.00$13.00$98.00
Senior Active***$10.00$75.00$13.00$98.00
Judicial Active****$10.00$75.00$13.00$98.00
Military Active*****0000
Regular Inactive$5.00$37.50$6.50$49.00
Emeritus Inactive0000

* (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.)

**** (Members who serve in an active (nonretired) capacity on a trial or appellate bench at the federal or state level or in the Workers' Compensation Court.)

***** (Attorneys who are on continuous Active Military Service under title 10 or title 32 of the U.S. Code or State Active Duty under the jurisdiction of any state or territory 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 Attorney Services Division, 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 the Attorney Services Division shall issue proof of membership status 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 proof was issued without payment of dues.)

   (2)  A late fee of $25 shall be assessed each Active or Inactive member whose mandatory assessments are received after January 20, a late fee of $50 shall be assessed on mandatory assessments received on or after February 1, and a late fee of $75 shall be assessed on 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 Attorney Services Division and Counsel on Unauthorized Practice of Law for regulatory management and oversight as required by the Court under its constitutional and inherent authority.

   (E) Delinquency and Reinstatement.

   (1) All mandatory membership assessments not paid by April 1 of the current calendar year shall be considered delinquent; and the Director of the Attorney Services Division shall send written notice, by regular mail and email, to each member then delinquent in the payment of his or her assessments, which notice shall be addressed to such member at his or her last reported addresses, and shall notify such member of such delinquency. All members who shall fail to pay delinquent assessments within 30 days thereafter shall be reported to the Supreme Court by the Director of the Attorney Services Division, 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 conducted upon affidavit if submitted by the member, 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.

   (2) Whenever a member suspended for nonpayment of mandatory membership assessments submits an application with Attorney Services Division seeking reinstatement, the member shall make payment of all arrears, and shall satisfy the Supreme Court of his or her qualification to then return to the active practice of law. The Director of the Attorney Services Division shall submit the completed application with the Court after gathering the necessary reinstatement information. The Director 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 Court shall, during the period of such suspension or disbarment, be likewise suspended or barred from membership in this Association. Disciplinary reinstatement shall be allowed as provided in § 3-310.

   (1) Upon application for admission after any disciplinary suspension of any length or an administrative suspension lasting longer than three months, or for reinstatement after disbarment, the member shall submit to a character and fitness review before the State Bar Commission consisting of updating information the State Bar Commission uses to determine character and fitness to practice during the time of suspension or disbarment (Appendix A). The State Bar Commission shall collect a $150 fee for its character and fitness investigation of each application for reinstatement.

   (2) The State Bar Commission director shall make a character and fitness recommendation to the Court upon completion of the application process for each member applying for reinstatement or any disciplinary suspension of any length or an administrative suspension lasting longer than three months or reinstatement from a disbarment. In the event further inquiry as provided for in § 3-116(G) or a hearing before the State Bar Commission is required to determine a character and fitness recommendation, costs shall be taxed to the applying party.

   (3) On reinstatement to practice by the Supreme Court, such party shall pay mandatory membership assessments for the year in which he or she is readmitted and all past due mandatory assessments and late fees owed at the time of the suspension or disbarment and complete any CLE requirements pursuant to Neb. Ct. R. § 3-401.12 prior to being restored to membership in this Association. Voluntary membership dues shall not be collected or assessed during suspension or disbarment periods or while an attorney is in retired/resigned status.

   (G) Fees. Nothing herein contained shall be construed to limit the power of the State Bar Association, or of any of its sections or committees, to assess voluntary registration fees or attendance fees for meetings, institutes, or continuing legal education sessions 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 the Bar Association by tendering his or her written resignation to the Director of the Attorney Services Division 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 investigation 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 responsibilities 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. Once the affidavit is completed, the Director shall submit the form to the Supreme Court which may accept the resignation. In the event the resignation is accepted while the mandatory membership assessment is past due or while not in compliance with MCLE requirements, the attorney seeking reinstatement following resignation shall, prior to reinstatement, make payment of the mandatory membership assessment and any late fees due at the time of resignation and cure the noncompliance with MCLE requirements. In the event the affidavit is not fully completed, or any exception is taken to it, the tendered resignation shall be rejected. The Clerk shall keep a complete record of all submitted requests for resignation, all resignations, and the names and addresses of members whose resignations have been accepted by the Supreme Court.

   (I) Reinstatement Following Resignation. Whenever a former member of this Association who resigned is readmitted to the practice of law in Nebraska by the Supreme Court pursuant to the process set forth in § 3-119(E), the member shall not pay mandatory membership assessments for the year in which he or she is readmitted, as the reinstatement application fee includes the mandatory assessment for the year of reinstatement.  Prior to reinstatement, the former member shall make payment of any mandatory membership assessment and any late fees due at the time of resignation and cure any noncompliance with MCLE requirements.

   (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 quality of legal services to the public and promote the purposes of the Association as set forth in § 3-802.

Rule 3(B)(3) - (6),amended March 19, 2003, effective November 1, 2003; Rule 3(D)(1) amended February 25, 1998; Rule 3(D)(1) amended October 9, 1998; Rule 3(D)(1) amended July 27, 2000; Rule 3(D)(1) amended March 19, 2003, effective November 1, 2003; Rule 3(H) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-803, effective July 18, 2008. § 3-803(D)(1) amended September 11, 2008; § 3-803 amended December 3, 2013, effective January 1, 2014; § 3-803 amended March 19, 2014; § 3-803(C) amended September 24, 2014, effective January 1, 2015; § 3-803(D)(1) amended January 14, 2015; § 3-803(A) and (D) amended December 14, 2016; § 3-803(D) amended March 8, 2017; § 3-803(F) and (I) amended January 2, 2019; §§ 3-803(B), (B)(2), (E), (F)(1 to 3), and (I) amended March 13, 2019; § 3-803(E)-(H) amended September 4, 2019; § 3-803(B)(2) amended March 25, 2020; § 3-803(H) and (I) amended June 23, 2021; § 3-803(E) amended December 8, 2021; § 3-803(F)(1) and (2) amended January 19, 2022; § 3-803(D)(1) amended March 13, 2024, effective April 1, 2024; § 3-803 amended April 17, 2024.

unanimous

§ 3-804. Officers.

§ 3-804. Officers.

   (A) Titles. The officers of this Association shall consist of the following:

   (1) President,

   (2) President-Elect,

   (3) Chair of the House of Delegates,

   (4) Chair-Elect of the House of Delegates,

   (5) Secretary,

   (6) Treasurer,

   (7) Executive Director, and

   (8) Such other officer or officers as may be designated by the bylaws.

   (B) Eligibility. Any Active member in good standing shall be eligible to hold any office for which he or she is elected or appointed in this Association. An appointive officer need not be a member of this Association.

   (C) Nomination and Election. The following officers shall be nominated and elected in the manner provided by the bylaws:

   (1) President, by succession to that office by the President-Elect;

   (2) President-Elect;

   (3) Chair of the House of Delegates, by succession to that office by Chair-Elect of the House of Delegates;

   (4) Chair-Elect of the House of Delegates; and

   (5) Any other officer hereafter provided by the rules or the bylaws of the Association.

   (D) Appointive Officers. The following officers shall be appointed by the Executive Council: Secretary, Treasurer, Executive Director, and any other officer provided for by the bylaws of this Association other than those required to be elected under the preceding section hereof.

   (E) Combining of Offices. The offices of Secretary, Treasurer, Executive Director, and any other appointive offices provided for in the bylaws may be combined, in any combination, by the Executive Council.

   (F) Removal of Appointive Officers. Any appointive officer may be removed from office at any time by the Executive Council.

   (G) Duties and Powers.

   (1) The President shall be the Chief Executive Officer of this Association, shall preside at all meetings of this Association and of the Executive Council and shall perform the duties usually pertaining to that office, shall appoint the members and chairs of all committees, and shall perform such other duties and responsibilities as may be provided by the bylaws.

   (2) The President-Elect shall perform such duties as are assigned to him or her by the President, shall have and perform the duties and responsibilities of the President in case of the absence or incapacity of the President, and shall perform such other duties and responsibilities as may be provided by the bylaws.

   (3) The Chair of the House of Delegates shall preside at all meetings of the House of Delegates, shall be the Executive Officer thereof, and shall perform such other duties and responsibilities as may be specifically determined by the House of Delegates or as may be provided by the bylaws.

   (4) The Chair-Elect of the House of Delegates shall have the duties and responsibilities of the Chair in the absence or incapacity of the Chair and shall perform such other duties and responsibilities as may be specifically determined by the House of Delegates or as may be provided by the bylaws.

   (5) The Secretary shall be the custodian of the records and archives of this Association; shall report the minutes 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.

   (6) The Treasurer shall be the custodian of and shall supervise 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, the Executive Council, and the House of Delegates and shall perform such other duties and responsibilities as may be provided by the bylaws.

   (8) The death, resignation, incapacity to act, or other termination or suspension of active membership in this Association of any officer as may be determined by any procedure provided therefor by the bylaws shall create an immediate vacancy in the office of any such officer of this Association.

   (9) A vacancy occurring in an elective office of this Association shall be filled as follows: The President-Elect shall assume the office of the President if such office becomes vacant. The Chair of the House of Delegates shall assume the office of President if both the offices of President and President-Elect are vacant. The Chair-Elect of the House of Delegates shall assume the office of Chair of the House if such office becomes vacant or if the Chair of the House of Delegates has assumed the office of President. A vacancy in the office of Chair-Elect of the House of Delegates shall be filled by special election to be conducted by the House of Delegates. If a President-Elect Designate shall have been designated, he or she shall assume the office of President-Elect if it becomes vacant and a new President-Elect Designate shall be nominated and elected as soon as practical in the manner provided in § 3-804(H)(2).

   (10) Any officer succeeding to the office of President through the filling of a vacancy occurring therein shall serve until the end of the second Annual Meeting following such succession. Any officer filling a vacancy in the office of the Chair of the House of Delegates or Chair-Elect of the House of Delegates shall have such term of office as may be provided by the bylaws.

   (11) In the event of a vacancy in any appointive office, such vacancy shall be promptly filled by the Executive Council.

   (H) Term of Office.

   (1) The President and President-Elect shall hold office beginning with the close of this Association's Annual Meeting and shall serve until the close of the next succeeding Annual Meeting subject to the provisions for holding-over in the event of the filling of a vacancy therein as hereinbefore set forth. The Chair of the House of Delegates and the Chair-Elect of the House of Delegates shall hold office for such term or terms as may be provided in the bylaws. Members of the Executive Council shall hold office for the terms provided in § 3-806. All other officers shall hold office for the terms specified by the appointing authorities or as may be fixed by the bylaws.

   (2) At least 90 days prior to this Association's Annual Meeting, the District members of the Executive Council, by a majority vote thereof, shall make nomination for the office of President-Elect of this Association for the following year. Such nomination shall be filed with the Secretary of this Association, who shall within 10 days thereafter mail notice of such nomination to the Active members of this Association setting forth the time and place fixed for the filing of additional nominations. Such notice shall further advise that additional nominations may be made by written petition. Within 30 days after the mailing of such notice, any 25 or more Active members of this Association may make additional nominations by signing a nominating petition which shall, in each instance, be accompanied by the nominee's written consent to serve if elected. In the event the Secretary shall receive such additional nominations, the time, manner, and method of conducting an election and canvassing the same shall be provided by the bylaws. The nominee so elected or, if no nominations shall be made, other than by the Executive Council, the nominee of the Executive Council shall be President-Elect Designate.

   (3) The nomination and election of the Chair-Elect of the House of Delegates shall be made by the House of Delegates in such manner as such House may provide.

   (4) Provisions shall be made by the bylaws for the method of conducting and canvassing the election for any elective office in this Association in any case where there is more than one nominee for such office.

Rule 4(H)(2) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-804, effective July 18, 2008. § 3-804(G)(5)-(7) amended December 3, 2013, effective January 1, 2014.

unanimous

§ 3-805. House of Delegates.

§ 3-805. House of Delegates.

   (A) Duties and Powers. Except as otherwise provided by the Nebraska Supreme Court, the 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.

   (B) Membership. The elective members of the House of Delegates shall consist of representatives elected from among the Active members of this Association residing in each of the Districts set forth below in this rule on the basis of one delegate for each 60 Active members of this Association, or major fraction thereof (50 percent or greater) residing in such District; provided, however, that each such District shall have at least one such elective delegate. For purposes of this section, the Districts shall be the same as the district court judicial districts described in Neb. Rev. Stat. § 24-301.02 (Cum. Supp. 2022), and such Districts hereafter shall be revised automatically to conform to any future revisions of the district court judicial districts.

   (C) Nomination and Election. The elective members of the House of Delegates in each District shall be nominated and elected by the Active members of this Association residing in such District, and the bylaws shall provide the procedure for nominating and electing such members of the House, including provisions for out-of-state Active members to qualify as members for voting purposes within one of the Districts.

   (D) Term of Office. Each elective member of the House of Delegates shall hold office for a term of 4 years and until his or her successor is elected and qualified. Elections shall be held in odd-numbered districts in the year 1971 and every 4 years thereafter, and in even-numbered districts in the year 1973 and every 4 years thereafter. Newly elected members shall take office at the conclusion of the Annual Meeting of this Association following their election.

   (E) Vacancies. Any vacancy in the office of any elected delegate shall be filled, for the unexpired term thereof, by vote of the remaining members of the House of Delegates at its next annual or semiannual meeting.

   (F) Voting. Only elected members of the House of Delegates shall be entitled to vote upon any matter submitted to such House of Delegates, provided any member appointed to fill a vacancy in the office of an elected member shall be qualified to vote while serving out such term.

   (G) Officers. The officers of the House of Delegates shall be the Chair, the Chair-Elect, and the Secretary, whose nomination, election, term of office, and duties shall be provided in these rules and the bylaws. Unless the House of Delegates provides otherwise, the Secretary of this Association shall serve as the Secretary of the House of Delegates.

   (H) Personnel and Publications. Except as otherwise provided by the Nebraska Supreme Court and these rules, the House of Delegates shall have the power and the duty to fully administer this Article, including the power to employ necessary personnel and to establish the policies of this Association relating to official publications thereof.

   (I) Referendum. A referendum of the membership of this Association on any action taken by the House of Delegates shall be conducted whenever the House of Delegates, by a vote of one-third of the elected members thereof, shall so direct by resolution, or whenever a petition signed by 10 percent of the Active members of this Association residing in each of three-fourths of the Districts shall be filed with the Secretary. The Secretary shall conduct such referendum under such rules as shall be prescribed by the bylaws.

   (J) Ex Officio Members. The House of Delegates in the bylaws may provide for nonvoting ex officio members of the House of Delegates and may determine what members of this Association may speak and exercise the privileges of the floor other than the privilege of voting. Meetings of the House of Delegates shall be open to all Active members of this Association.

   (K) ABA Delegates. The House of Delegates shall elect the delegates of this Association to the American Bar Association as may be provided and authorized in the bylaws of the American Bar Association.

Rule 5(A) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-805, effective July 18, 2008. § 3-805(A) and (H) amended December 3, 2013, effective January 1, 2014; § 3-805(B) amended January 14, 2015; § 3-805(B) amended May 8, 2024.

unanimous

§ 3-806. Executive council.

§ 3-806. Executive council.

   (A) Duties and Powers. The Executive Council shall function as the administrative and executive organ of this Association and shall carry out and implement the duties and responsibilities delegated to it by these rules, the bylaws, and the House of Delegates. In the absence of other nominating petitions, the Executive Council shall nominate candidates for the offices of elective members of the House of Delegates and for the District members of the Executive Council.

   (B) Membership. The Executive Council shall consist of the President, President-Elect, President-Elect Designate, Immediate Past Chair, Chair, Chair-Elect, and Chair-Elect Designate of the House of Delegates, and six elected District members. The immediate Past President of this Association shall also serve as a member of the Executive Council for the year following the expiration of his or her term of office as President.

   (C) District Representatives. There shall be one District member of the Executive Council elected from each of the six Supreme Court Judicial Districts as such districts are now numbered and constituted or as they may hereafter be constituted. Each District member shall be an Active member of this Association who resides in the district which he or she represents and shall be elected by the Active members of this Association residing within such district and out-of-state Active members who qualify as members of the District for voting purposes as provided in the bylaws.

   (D) Nomination and Election. The bylaws shall provide for the nomination of District members by petition of Active members of the district and for the election of District members by secret mail ballot.

   (E) Term of Office. The term of office of District members shall be 4 years, commencing at the close of the Annual Meeting following election, and no District member shall serve consecutive terms. The terms of District members shall be staggered so that there shall be one member elected in each year. Elections shall be held in the following order: Supreme Court Districts 3, 6, 4, 1, 2, and 5. In case of a vacancy in office of any District member, the remaining members of the Executive Council shall have the power to fill such vacancy by appointment to serve until the next regular election.

   (F) Voting. Only District members shall vote on nominations for Association office to be made by the Executive Council; the Executive Council shall not nominate any one of its current District members for any elective office in this Association. The District members of the Executive Council shall appoint an Active member to fill any vacancy in the office of Delegate to the House of Delegates of the American Bar Association in the event of a vacancy in such office.

Rule 6(D) - (F) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-806, effective July 18, 2008. § 3-806(B) amended January 14, 2015.

unanimous

§ 3-807. Committees and sections.

§ 3-807. Committees and sections.

   (A) Budget and Planning Committee. There shall be a Budget and Planning Committee of this Association, consisting of not more than 13 members, who shall be appointed and whose terms shall be set in accordance with the bylaws, which committee shall perform the functions assigned to it in § 3-809.

   (B) Other Committees. Other committees of this Association may be created or abolished from time to time and shall have such jurisdiction and be elected or appointed in such manner with such tenure as fixed by the bylaws. Nonmembers, including laypersons, who by reason of their backgrounds or expertise can contribute toward the work of committees may be appointed by committee chairs to serve on committees as nonvoting committee members.

   (C) Sections. Sections of this Association may be created or abolished from time to time by the House of Delegates in such manner and with such functions as may be provided by the bylaws.

Rule 7(A) and (B) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-807, effective July 18, 2008.

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§ 3-808. Meetings.

§ 3-808. Meetings.

   (A) Annual Meeting. This Association may have one regular meeting annually at a time and place to be fixed by the Executive Council. Each member of this Association shall be notified thereof by the Secretary by mail.

   (B) House of Delegates. The House of Delegates shall meet during the Annual Meeting and may be recessed from time to time throughout the Annual Meeting. The House of Delegates shall also hold a meeting in April, May, or June of each year at a time and place to be fixed by the House of Delegates. The President, Chair of the House of Delegates, or any 10 members of the House of Delegates may call a special session of the House of Delegates upon giving 10 days' written notice of the time, place, and purpose thereof to the elected members of the House of Delegates. A majority of the elected members of the House of Delegates shall constitute a quorum for the transaction of business.

   (C) Executive Council. An annual meeting of the Executive Council shall be held at the time and place selected for the holding of the Annual Meeting, and such other meetings thereof shall be held as may be called by the President, three District members, or as provided by the bylaws. Six members of the Executive Council shall be a quorum for the transaction of business.

Rule 8(A) and (B) amended March 19, 2003, effective November 1, 2003. Renumbered and codified as § 3-808, effective July 18, 2008. § 3-808(A) amended and (D) deleted December 3, 2013, effective January 1, 2014.

unanimous

§ 3-809. Budget and audit.

§ 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 prepare 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.

   (B) Authorization of Expenditures. After the budget is adopted by the House of Delegates, no expenditures shall be made for this Association except as provided thereby, provided, however, that in case of emergency, the President may authorize additional expenditures not to exceed $1,000 in any one instance; and provided further, that, in the case of emergency, the Executive Council may, by vote of two-thirds of its members, authorize additional expenditures not exceeding the total sum of $50,000 in any 1 year. No other expenditures shall be made except on approval by the House of Delegates.

   (C) Accounting and Auditing. The Executive Council shall cause proper books of account to be kept and shall prepare an annual audit thereof by a certified public accountant. Such audit shall contain a balance sheet and a statement of operations for the fiscal year involved, shall be submitted to the House of Delegates for approval at its next meeting, and shall be distributed to the members of the House of Delegates at least 30 days prior to the date of such meeting.

   (D) Circulation of Budget and Audit. The Executive Council, prior to the Annual Meeting of this Association, shall cause to be distributed 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.

   (E) Fiscal Year. The books and records of this Association shall be kept, and the affairs of this Association shall be managed, on a fiscal year basis to be fixed by the bylaws.

Rule 9(A)-(E) amended March 19, 2003, effective November 1, 2003 (Rule 9(C) deleted and (D)-(F) renumbered). Renumbered and codified as § 3-809, effective July 18, 2008. § 3-809(A) and (D) amended December 3, 2013, effective January 1, 2014.

unanimous

§ 3-810. Ethical standards.

§ 3-810. Ethical standards.

   Effective September 1, 2005, the ethical standards relating to the practice of law in this State shall be the Nebraska Rules of Professional Conduct as adopted by the Nebraska Supreme Court on June 8, 2005, together with such amendments and additions thereto as may from time to time be approved by the Supreme Court of Nebraska.

Rule 10 amended July 13, 2005, effective September 1, 2005. Renumbered and codified as § 3-810, effective July 18, 2008.

unanimous

§ 3-811. Bylaws.

§ 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.

§ 3-811 amended December 3, 2013, effective January 1, 2014.

unanimous

§ 3-812. Amendment.

§ 3-812. Amendment.

   Recommendations to the Supreme Court of amendments to these rules may be adopted by a two-thirds vote of the elected members present at a regular or special meeting of the House of Delegates, provided that no recommendation shall be considered (except by the unanimous consent of the elective members present) unless a written or printed copy of the proposed recommendation shall have been included in the call for the meeting. Recommendations to the Supreme Court of amendments to these rules may also be adopted by the exercise of the power of initiative as vested in the membership under § 3-802.

unanimous

§ 3-813. Enabling rules.

§ 3-813. Enabling rules.

   (A) Bylaws. The present bylaws of this Association shall continue, so far as applicable, under these rules until new bylaws hereunder shall be adopted.

   (B) Effective Date. These rules shall become effective on January 1, 2014.

   (C) Terms of House of Delegates and Executive Council Members. All previously elected members of the House of Delegates and of the Executive Council shall complete their respective terms as existing under the rules of this Association, prior to the effective date hereof. Upon the effective date of this rule, all elected members thereof shall take office upon the termination of the terms of such previously elected members.

   (D) Terms of Officers. In the event these amended rules shall become effective prior to the date of the Annual Meeting of this Association, as previously fixed, all officers serving at the time of such effective date shall finish out their respective terms, and their successors shall be elected in accordance with the provisions hereof.

§ 3-813(B) amended December 3, 2013, effective January 1, 2014.

unanimous

§ 3-814. Filing bylaws and rules.

§ 3-814. Filing bylaws and rules.

   The Nebraska State Bar Association shall at all time 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.

Rule 14 (formerly the Rule Requiring Filing of Nebraska State Bar Association Rules With Supreme Court) amended January 22, 1998. Renumbered and codified as § 3-814, effective July 18, 2008.

unanimous

Article 9: Trust Fund Requirements for Lawyers.

Article 9: Trust Fund Requirements for Lawyers.

(Trust Fund Requirements for Lawyers and Appendix amended and readopted September 19, 2001. Renumbered and codified as §§ 3-901 to 3-907 effective July 18, 2008.)

(Appendix 1 amended March 29, 2006; Appendix 1 amended November 15, 2007; Appendix 1 deleted March 19, 2014.)

unanimous

§ 3-901. Definitions.

§ 3-901. Definitions.

   (A) The following definitions shall apply to the Trust Accounts and Blanket Bonds Rules:

   (1) "Financial Institution" includes any state or federally chartered bank, savings bank, savings and loan association, or building and loan association insured by the Federal Deposit Insurance Corporation or any federal credit union that participates in the National Credit Union Administration Share Insurance Fund.

   (2) "Properly payable" refers to an instrument which, if presented in the normal course of business, is in a form requiring payment under the laws of this jurisdiction.

   (3) "Notice of dishonor" refers to the notice which a financial institution is required to give, under the laws of this jurisdiction, upon presentation of an instrument which the institution dishonors.

§ 3-901(A)(1) amended December 16. 2015.

unanimous

§ 3-902. General provisions.

§ 3-902. General provisions.

   All lawyers admitted to practice on active status (defined as Regular Active, Junior Active, Senior Active, or Military Active) with an office in the State of Nebraska shall have and maintain a trust account in a financial institution for the deposit of funds of clients unless such lawyer is a member of the Nebraska judiciary, or does not reasonably expect that he or she will receive into his or her hands funds of clients. Lawyer trust accounts shall be maintained only in financial institutions approved by the Counsel for Discipline of the Nebraska Supreme Court as set forth in § 3-904.

Rule 2 amended November 15, 2007. Renumbered and codified as § 3-902, effective July 18, 2008.

unanimous

§ 3-903. Interest-bearing trust accounts.

§ 3-903. Interest-bearing trust accounts.

   (A) Except as may be authorized hereinafter, interest earned on insured trust accounts (less any deduction for service charges, fees of the financial institution, and intangible taxes collected with respect to the deposited funds) shall belong to the clients whose funds have been so deposited, and the lawyer or law firm shall have no right or claim to such interest.

   (B) Unless an election not to do so is submitted in accordance with the procedure set forth in § 3-903(C), a lawyer or law firm shall maintain an interest-bearing insured trust account for clients' funds which are nominal in amount or are expected to be held for a short time in compliance with the following provisions:

   (1) No earnings from such an account shall be made available to a lawyer or law firm.

   (2) The account shall include only clients' funds which are nominal in amount or to be held for a short period of time.

   (3) Funds in each interest-bearing account shall be subject to withdrawal upon demand, subject only to any notice period which the financial institution is required to reserve by law or regulation.

   (4) The rate of interest payable on any interest-bearing trust account shall be the same rate of interest paid by the financial institution for all other holders of similar accounts. Interest rates higher than those offered by the financial institution on regular or savings accounts may be obtained by a lawyer or a law firm on some or all of the deposited funds so long as there is no impairment of the right to withdraw or transfer principal immediately, subject only to any notice period which the financial institution is required to reserve by law or regulation.

   (5) Lawyers or law firms electing to deposit client funds in an interest-bearing trust account shall direct the financial institution:

   (a) To remit interest or dividends, as the case may be, at least quarterly to the Nebraska Lawyers Trust Account Foundation (hereinafter Foundation); and

   (b) To transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm, the trust account number, and the interest rate for whom the remittance is sent; and

   (c) To transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation.

   (6) The interest or dividends received by the Foundation shall be used by the Foundation solely for the support of the Legal Aid of Nebraska program. Such income shall be applied only to activities permitted to be conducted by organizations exempt from taxation under § 501(c)(3) of the Internal Revenue Code of 1986, as from time to time amended.

   (7) This rule may be subsequently amended to effectuate its purposes or to comply with any amendments to the Internal Revenue Code or new interpretations by the Internal Revenue Service or the courts.

   (C). A lawyer or law firm that elects to decline to maintain accounts described in § 3-903(B)(5) shall submit a Notice of Declination in writing to the Chief Justice of the Supreme Court or his or her designee by February 15 of the year to which the Notice of Declination will apply.

   (1) Notwithstanding the foregoing, any lawyer or law firm may petition the Court at any time and, for good cause shown, may be granted leave to file a Notice of Declination at a time other than those specified above. An election to decline participation may be revoked at any time by filing a request for enrollment in the program.

   (2) A lawyer or law firm that does not file with the Chief Justice of the Supreme Court a Notice of Declination in accordance with the provisions of this rule shall be required to maintain an account in accordance with § 3-903(B)(5).

   (3) The Board of Directors of the Nebraska Lawyers Trust Account Foundation may take all action necessary at any time to exempt a lawyer, law firm, or trust account otherwise participating in the program where in the Board's judgment such participation would be administratively or economically unreasonable, burdensome, or counterproductive to the purposes of the program.

Rule 3(B)(5)(b) and (6) amended November 15, 2007. Renumbered and codified as § 3-903, effective July 18, 2008.

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§ 3-904. Trust account overdraft notification rules.

§ 3-904. Trust account overdraft notification rules.

   (A) The trust account overdraft notification rules shall become effective on July 1, 2002.

   (B) A financial institution shall be approved as a depository for lawyer trust accounts if it shall file with the Counsel for Discipline of the Nebraska Supreme Court an agreement, in a form provided by the Counsel for Discipline, to report to the Counsel for Discipline, in the event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. The Counsel for Discipline shall establish rules governing approval and termination of approved status for financial institutions and shall annually publish a list of approved financial institutions.

   (C) No trust account shall be maintained in any financial institution which does not agree to make such reports. Any such agreement shall apply to all branches of the financial institution and shall not be canceled except upon 30 days' notice in writing to the Counsel for Discipline.

   (D) The overdraft notification agreement shall provide that all reports made by the financial institution shall be in the following format:

   (1) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor. The financial institution shall provide a copy or machine readable copy of the dishonored instrument, if the instrument is available to the financial institution, to the Counsel for Discipline within 5 banking days of receiving a written request for a copy of the instrument from the Counsel for Discipline; and

   (2) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.

   (E) Such reports shall be delivered by mail, electronically, or otherwise to the Office of the Counsel for Discipline of the Nebraska Supreme Court within 5 banking days of the date on which an instrument is dishonored. If an instrument presented against insufficient funds is honored, then the report shall be delivered by mail, electronically, or otherwise to the Office of the Counsel for Discipline of the Nebraska Supreme Court within 5 banking days of the date of presentation for payment against insufficient funds.

   (F) Every lawyer practicing or admitted to practice in this jurisdiction shall, as a condition thereof, be conclusively deemed to have consented to the reporting and production requirements mandated by this rule.

   (G) Nothing herein shall preclude a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by this rule.

unanimous

§ 3-905. Trust account certification rules.

§ 3-905. Trust account certification rules.

   (A) A lawyer who is associated with a law firm, which for purposes of this rule shall include firms that operate as a limited liability professional organization, a partnership, a professional service corporation, or a nonprofit legal services organization, shall be considered to have and maintain a trust account if his or her law firm maintains a trust account as specified in § 3-902

   (B) A nonresident lawyer who is admitted to practice before the courts of this State on a case-by-case basis shall be exempt from the requirements of these rules.

   (C) Each lawyer admitted to practice on active status (defined as Regular Active, Junior Active, Senior Active, and Military Active) with an office in the State of Nebraska shall submit to the Court a certification through the Court's on-line system reflecting the existence of the trust account required under § 3-902 or, in the alternative, that he or she does not now have and does not reasonably expect to have funds of clients come into his or her hands within the next 12 months in the State of Nebraska. Such certification shall be submitted through the Court's on-line system on an annual basis at the time of annual license renewal. Members of the Nebraska judiciary need not complete the certification. Those lawyers maintaining trust accounts shall also provide on their certification the name and address of the financial institution where the account is maintained, the account number, and the name and address of all persons authorized to sign checks or make withdrawals on the account. If an existing trust account is closed or a new account opened, an updated certification shall be submitted in the manner directed by the court by any such attorney within 30 days providing the reason for closing of an account, as well as the specified information on any new account.

   (D) Any lawyer who certified that he or she does not reasonably expect to have funds of clients come into his or her hands within the next 12 months within the State of Nebraska but who does receive clients' funds shall forthwith establish a trust account for the deposit and maintenance of such funds.

Rule 5(C) amended March 29, 2006; Rule 5(A) and (C) amended November 15, 2007. Renumbered and codified as § 3-905, effective July 18, 2008. § 3-905(A) and (C) amended March 19, 2014; § 3-905(E) amended December 3, 2013, effective April 1, 2014; § 3-905(C) and (D) amended and (E) deleted December 14, 2016.

unanimous

§ 3-906. Trust account audit rule.

§ 3-906. Trust account audit rule.

   The Counsel for Discipline of the Nebraska Supreme Court, or such counsel's representative authorized in writing, shall have access to the affidavits required in § 3-905 and shall have the power to audit at any time any trust account required by these rules.

unanimous

§ 3-907. Purpose of rules.

§ 3-907. Purpose of rules.

   (A) These rules shall not affect the Client Assistance Fund, its rules, procedures, structure, or operation in any way; nor shall the adoption of these rules make the Nebraska State Bar Association, its officers, directors, representatives, or membership liable in any way to any person who has suffered loss by theft, misappropriation, or fraud by a lawyer. These rules are adopted solely for the purposes stated herein and not for the purpose of making the Nebraska State Bar Association, its officers, directors, representatives, or membership insurers or guarantors for clients with respect to funds of clients which come into the hands of their lawyers.

   (B) These rules do not create a claim against a financial institution or its officers, directors, employees, and agents for failure to provide a trust account overdraft report or for compliance with any provision of these rules.

unanimous

Article 10: Unauthorized Practice of Law.

Article 10: Unauthorized Practice of Law.

(Adopted October 10, 2007; effective January 1, 2008. Renumbered and codified as §§ 3-1001 to 3-1021, effective July 18, 2008.)

unanimous

Statement of Intent

Statement of Intent

   Every jurisdiction in the United States recognizes the inherent right of individuals to represent themselves in legal matters. In contrast, the privilege of representing others in our system is regulated by law for the protection of the public, to ensure that those who provide legal services to others are qualified to do so by education, training, and experience and that they are held accountable for errors, misrepresentations, and unethical practices.

   Nonlawyers may be untrained and inexperienced in the law. They are not officers of the courts, are not accountable for their actions, and are not prevented from using the legal system for their own purposes to harm the system and those who unknowingly rely on them.

   The following rules are promulgated by the Nebraska Supreme Court pursuant to its inherent authority to define and regulate the practice of law in this state. The purpose of the rules is to protect the public from potential harm caused by the actions of nonlawyers engaging in the unauthorized practice of law.

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§ 3-1001. General definition.

§ 3-1001. General definition.

   The "practice of law," or "to practice law," is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person which require the knowledge, judgment, and skill of a person trained as a lawyer. This includes, but is not limited to, the following:

   (A) Giving advice or counsel to another entity or person as to the legal rights of that entity or person or the legal rights of others for compensation, direct or indirect, where a relationship of trust or reliance exists between the party giving such advice or counsel and the party to whom it is given.

   (B) Selection, drafting, or completion, for another entity or person, of legal documents which affect the legal rights of the entity or person.

   (C) Representation of another entity or person in a court, in a formal administrative adjudicative proceeding or other formal dispute resolution process, or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

   (D) Negotiation of legal rights or responsibilities on behalf of another entity or person.

   (E) Holding oneself out to another as being entitled to practice law as defined herein.

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§ 3-1002. Other definitions.

§ 3-1002. Other definitions.

   (A) Definition of "Nonlawyer": The term "nonlawyer" means any person not duly licensed or otherwise authorized to practice law in the State of Nebraska. The term also includes any entity or organization not authorized to practice law by specific rule of the Supreme Court whether or not it employs persons who are licensed to practice law. "Nonlawyer" does not include lawyers who are admitted to practice law in another jurisdiction, but have not been admitted or otherwise authorized to practice law in Nebraska.

   (B) Definition of "Entity": The term "entity" means a sole proprietorship, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, or association, two or more persons having a joint or a common interest, or any other legal or commercial entity.

   (C) Definition of "Organization": The term "organization" means two or more entities characterized by common administrative and functional structure or common ownership and/or control.

§ 3-1002(A) amended December 18, 2019, effective January 1, 2020.

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§ 3-1003. General prohibition.

§ 3-1003. General prohibition.

   No nonlawyer or lawyer shall engage in the practice of law in Nebraska or in any manner represent that such nonlawyer or lawyer is authorized or qualified to practice law in Nebraska except as may be authorized by published opinion or court rule.

§ 3-1003 amended December 18, 2019, effective January 1, 2020.

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§ 3-1004. Exceptions and exclusions.

§ 3-1004. Exceptions and exclusions.

   Whether or not they constitute the practice of law, the following are not prohibited:

   (A) Title insurance companies authorized to do business in the State of Nebraska and their nonlawyer licensed agents, real estate rental agencies, nonlawyer licensed real estate brokers and their affiliated licensees, and nonlawyer employees of such entities, preparing certain documents that would normally involve the practice of law subject to the following:

   (1) The transaction involved is merely incidental to their lawful business as a title insurance company or licensed agent thereof, rental agency, real estate broker, or affiliated licensees of a real estate broker.

   (2) The transaction arises in the usual course of business for the title insurance company issuing title insurance, the rental agency as agent for the lessor or the lessee, the broker who is the listing or selling broker, or the real estate licensee affiliated with the broker.

   (3) Nonlawyer licensed real estate brokers and their affiliated licensees, as agents for the seller and/or buyer, may prepare purchase agreements and contracts of sale.

   (4) Real estate rental agencies representing the lessor and/or lessee may prepare residential, commercial, or farm leases.

   (5) In closing a real estate sale, nonlawyer licensed real estate brokers and title insurance companies and their licensed agents may prepare deeds, releases which do not affect judgment liens, deeds of reconveyance, title affidavits, closing statements, and related documents.

   (6) The documents referred to in §3-1004(A)(3), (4) and (5) to be prepared by nonlawyers shall be on standardized forms which may contain various blanks to be filled in, the completion or selection of which does not require the knowledge, judgment, or skill of one trained as a lawyer.

   (7) No counsel or advice shall be given with respect to the meaning, validity, or legal effect of the document or regarding the rights and obligations of the parties.

   (B) Nonlawyer licensed abstractors preparing or extending abstracts without rendering opinions as to the character of the title. A title insurance company authorized to do business in the State of Nebraska, including its licensed agents, may review public records and specify any curative work or describe conditions which must be fulfilled before it will issue a title insurance policy in connection with a proposed real estate transaction, but may not render opinions, counsel, and advice to others regarding the marketability or status of titles.

   (C) Nonlawyers appearing in a representative capacity before an administrative tribunal or agency, subject to the following:

   (1) A nonlawyer may appear in a representative capacity before a federal administrative tribunal or agency to the extent permitted by such tribunal or agency.

   (2) A nonlawyer who is an employee, member, or officer of an entity or organization may represent such entity or organization before an administrative tribunal or agency of the State of Nebraska, or a political subdivision of the State of Nebraska, if all of the following conditions are met:

   (a) The tribunal, agency, or political subdivision permits representation of parties by nonlawyers;

   (b) The nonlawyer employee, member, or officer is specifically authorized by the entity or organization to appear before the tribunal, agency, or political subdivision on its behalf;

   (c) Such representation is not the primary duty of the nonlawyer employee, member, or officer to the entity or organization, but is secondary to other duties relating to the management or operation of the entity or organization;

   (d) The nonlawyer employee, member, or officer does not receive separate or additional compensation (other than reimbursement for costs) for such representation;

   (e) The representation does not involve a claim that the tribunal, agency, or political subdivision's action or the action of another person is illegal as a matter of law or unconstitutional; and

   (f) The Nebraska Evidence Rules as applicable in the district courts do not apply to the administrative proceeding.

   (3) A nonlawyer may represent an unrelated party before an administrative agency or tribunal of the State of Nebraska if all of the following conditions are met:

   (a) The agency or tribunal permits representation of parties by nonlawyers;

   (b) The party knows that the representative is a nonlawyer and authorizes such person to appear on behalf of the party in a particular proceeding;

   (c) The representation does not involve a claim that the agency action or action of another person is illegal as a matter of law or unconstitutional;

   (d) The representation does not require the knowledge, judgment, or skill of a lawyer or the preparation of legal briefs; and

   (e) The Nebraska Evidence Rules, as applicable in the district courts, do not apply to the administrative proceeding.

   (D) Nonlawyers serving in neutral capacities as mediators, arbitrators, conciliators, or facilitators.

   (E) Nonlawyers participating in labor negotiations, employee disciplinary hearings, employment grievances, arbitrations, mediations, or conciliations arising under collective bargaining rights or agreements or state or federal law, provided, however, that the Nebraska Evidence Rules, as applicable in district courts, do not apply or the Federal Rules of Evidence do not apply.

   (F) Nonlawyers acting as lobbyists.

   (G) Nonlawyers selling legal forms in any format, so long as they do not advise or counsel another regarding the selection, use, or legal effect of the forms.

   (H) With respect to tax laws:

   (1) Nonlawyers preparing tax returns.

   (2) Nonlawyers representing other persons, entities, or organizations before the Internal Revenue Service, the Nebraska Department of Revenue, or any other state or local taxing authority in Nebraska to the extent permitted by such agency or taxing authority.

   (3) Nonlawyers practicing before the U.S. Tax Court in conformity with its rules.

   (I) Provision of the following services by certified public accountants who are authorized to practice accountancy in the State of Nebraska:

   (1) Providing advice on all taxes of any kind.

   (2) Issuing financial statements including, but not limited to, attestations, reviews, and compilations, and rendering opinions thereon.

   (3) Advising a third party regarding any fact or matter on which the certified public accountants have a statutory or regulatory duty to report to that party.

   (4) Preparing, at the request of the client or the client's lawyer, language for proposed inclusion in a legal document being prepared by the client's lawyer.

   (5) Providing financial and managerial advice.

   Nothing herein shall be deemed to authorize certified public accountants to draft legal documents or provide legal advice except as provided in § 3-1004(I)(1), (2), (3), and (4).

   (J) Nonlawyers providing information about the application of the law to a product or service which the nonlawyer is otherwise lawfully authorized to provide to the public.

   (K) Nonlawyer or lawyer employees or members of an entity or organization providing information or education about law, regulations, legal procedures, and compliance issues for the purpose of training other employees or members of the entity or organization.

   (L) Nonlawyer employees of an entity or organization preparing legal documents that are incidental to the entity's or organization's business and connected with any transaction in which the entity has a direct, primary, and nonfiduciary interest, or a fiduciary interest required by federal law.

   (M) Nonlawyers in the business of serving as fiduciaries, providing beneficiaries and interested persons with advice regarding the meaning, effect, and legal impact of wills, trusts, or plans and preparing documents incidental to the administration thereof.

   (N) Nonlawyer employees of an entity or organization engaging in the activities described in § 3-1001(A)(B), and (D) for the sole benefit of the entity or organization.

   (O) A nonlawyer entity or organization which employs lawyer employees to perform the activities described in § 3-1001 for such entity, other entities within the organization, or in the case of privately held entities or organizations, for owners and their families, officers, directors, or employees of the entity or organization.

   (P) A nonlawyer entity or organization acting through lawyer employees to the extent such lawyers perform pro bono legal services for nonprofit organizations, low-income clients, or otherwise in the public interest.

   (Q) A nonlawyer entity or organization acting through lawyer employees providing legal services, without direct payment therefor, to a party other than a party described in § 3-1004(O), in a manner consistent with the Nebraska Rules of Professional Conduct (including, without limitation, the provisions relating to conflicts of interest and fee sharing), so long as the entity or organization has a financial interest in the outcome of the legal services, there is a commonality of purpose between the entity or organization and the third party, and the entity or organization is not otherwise in the business of providing legal services except as provided in these rules.

   (R) An entity or an organization in the business of insurance, guarantee or indemnity utilizing a lawyer employee or captive lawyer admitted to the bar in Nebraska or otherwise authorized to practice law in Nebraska to represent its insured, principal, or a noninsured for whom a defense is provided under a reservation of rights, so long as there is a commonality of purpose between the entity or organization and the insured, principal, or noninsured, and the lawyer employee or captive lawyer is able to comply with the Nebraska Rules of Professional Conduct.

   (S) An entity or organization in the business of insurance or a self-insured entity or organization may, for the purpose of adjusting claims against it or its insured, may have nonlawyers prepare certain documents, provide information to, and negotiate with other persons or entities if all of the following conditions are met:

   (1) The transaction involved is incidental to the lawful business of the insurance company or self-insured;

   (2) The transaction arises in the usual course of business of the insurance company or the self-insured;

   (3) The transaction may be carried out by a nonlawyer employee, a third party administrator, or a nonlawyer agent legally authorized to adjust claims on behalf of the insurance entity or organization or the self-insured; and

   (4) There shall be no charges to any person or entity making a claim against the insurer or self-insured.

   (T) Nonlawyer employees and supervised volunteers of nonprofit entities whose primary purpose is assisting domestic violence and sexual assault victims, which nonlawyers may assist victims with the following:

   (1) Distributing pro se forms for harassment and protection orders prescribed by the Nebraska Supreme Court and assisting victims in the preparation of such forms.

   (2) Describing to victims the proceedings under the Protection from Domestic Abuse Act.

   (3) Accompanying victims throughout all stages of proceedings under the Protection from Domestic Abuse Act.

   (4) Attending all court proceedings including, at the judge's discretion, sitting in chambers, sitting at counsel table to confer with victims, or responding to inquiries by the court. However, they shall not examine witnesses, make arguments to the court, or otherwise act in a representative capacity for the victims.

   (U) Nonlawyers making any disclosure or advisement, which is required by state or federal law.

   (V) Financial institutions and their nonlawyer employees, preparing documents relating to transactions, if all of the following conditions are met:

   (1) The transaction involved is related to the lawful business of the financial institution;

   (2) The transaction arises in the usual course of business for the financial institution;

   (3) The transaction requires the preparation of security agreements, financing statements, assignments, termination statements, effective financing statements, releases, deeds of reconveyance, promissory notes, deeds of trust, mortgages, and similar types of financial documents; and

   (4) The documents referred to in § 3-1004(V)(3) to be prepared by nonlawyers shall be on standardized forms which may contain various blanks to be filled in, the completion or selection of which does not require the knowledge, judgment, or skill of one trained as a lawyer.

   (W) Nonlawyers engaging in any other activity which the Supreme Court determines, by published opinion or court rule, does not constitute the unauthorized practice of law.

§ 3-1004(A), (B), and (S) amended December 18, 2019, effective January 1, 2020.

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§ 3-1005. Nonlawyer assistants.

§ 3-1005. Nonlawyer assistants.

   Nothing in these rules shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with Neb. Ct. R. of Prof. Cond. § 3-505.3.

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§ 3-1006. Certain organizations.

§ 3-1006. Certain organizations.

   Nothing in these rules shall affect the ability of certain organizations, through the use of lawyers, to offer the services described in Neb. Ct. R. § 3-604 or Neb. Ct. R. § 3-204.

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§ 3-1007. General information.

§ 3-1007. General information.

   Nothing in these rules shall affect the ability of a person or entity to provide information of a general nature about the law and legal procedures to members of the public.

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§ 3-1008. Governmental agencies.

§ 3-1008. Governmental agencies.

   Nothing in these rules shall affect the ability of a governmental agency to carry out responsibilities provided by law.

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§ 3-1009. Professional standards.

§ 3-1009. Professional standards.

   Nothing in these rules shall be taken to define or affect standards for civil liability.

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§ 3-1010. Jurisdiction.

§ 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 unauthorized 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 and subject to a late fee if paid after January 20 of each year, in such amount as may be fixed by the Court. Such assessment shall be used to defray the costs of the administration and enforcement of the unauthorized practice of law as established by these rules, and shall be paid through the Court's on-line system as a part of the annual licensure process. Different classifications of UPL 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 UPL assessment 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).

   (D) The Supreme Court's proposed biennium budget for the UPL Commission shall be provided to the Commission, at least 60 days prior to the Supreme Court's submission of the Court's biennium budget as required by law, for its review and recommendations to the Supreme Court.

§ 3-1010 amended December 3, 2013, effective January 1, 2014. § 3-1010(B) amended March 19, 2014; § 3-1010(B) amended and § 3-1010(D) adopted May 4, 2016.

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§ 3-1011. Commission; creation.

§ 3-1011. Commission; creation.

   (A) There is hereby created a Commission on Unauthorized Practice of Law. The Commission shall be composed of the following members:

   (1) Six attorneys licensed to practice law in the State of Nebraska who shall be nominated by the Executive Council of the Nebraska State Bar Association and appointed by the Supreme Court (one attorney member of the Commission shall be appointed from each of the six Supreme Court districts in the state).

   (2) Three laypersons who shall be appointed by the Supreme Court (one layperson shall be appointed from each congressional district in the state).

   (B) Members of the Commission shall serve for terms of 3 years, beginning on the first day of the month after the adoption of these rules, provided that at the time of the implementation of these rules, two attorney members and one layperson shall be appointed for 3 years, two attorneys and one layperson for 2 years, and two attorneys and one layperson for 1 year. Every subsequent appointment shall be for a term of 3 years.

   (C) The Chief Justice shall appoint one member to chair the Commission and one member as the secretary of the Commission.

   (D) Membership on the Commission may be terminated by the Supreme Court at its pleasure, and members may resign at any time. Any vacancy shall be filled by the Chief Justice for the unexpired term.

   (E) The Commission shall adopt rules providing for the time and place of it meetings, the selection of a member to serve as vice chair, and other officers, and such other rules not in conflict with the rules of the Supreme Court as may be necessary for the conduct of its business.

   (F) The Commission by its own rules may sit as three-member panels consisting of two attorneys and one layperson and establish quorums required for its meetings.

   (G) Any rules adopted by the Commission shall be subject to approval by the Supreme Court.

   (H) Members of the Commission shall be entitled to reimbursement for reasonable expenses incurred in the performance of their official duties.

§ 3-1011(C) amended December 3, 2013, effective April 1, 2014.

 

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§ 3-1012. Commission; jurisdiction and duties.

§ 3-1012. Commission; jurisdiction and duties.

   (A) Except as otherwise provided by § 3-1012(B), the Commission shall have jurisdiction over all complaints made by any person or entity alleging the unauthorized practice of law under these rules. The Commission may inquire into any matter pertaining to the unauthorized practice of law on its own motion.

   (B) Nothing contained in these rules shall be construed as a limitation upon the jurisdiction or authority of any court or judge thereof to punish for contempt any person or other entity not having a license from the Supreme Court attempting to practice law within the jurisdiction of said court, nor shall these rules be construed as a limitation upon any civil remedy or criminal proceeding which may otherwise exist with respect to the unauthorized practice of law.

   (C) All matters within the jurisdiction of the Commission shall be referred to the Counsel on Unauthorized Practice of Law (CUPL) for screening and, if required, an investigation. Upon completion of such screening or investigation, the CUPL shall report in writing to the Commission. The Commission may dismiss allegations, request further investigation, offer the respondent the opportunity to enter into a written consent agreement, enter into negotiations with the respondent resulting in a consent decree to be presented to the Supreme Court for approval, or take such other action as may be appropriate under these rules. The Commission, acting through the CUPL, may petition the Supreme Court for such formal relief as it deems appropriate under these rules.

   (D) The Commission may, when asked in writing by an interested member of the public or by a member of the Nebraska State Bar Association, issue advisory opinions regarding the unauthorized practice of law as defined and regulated by the Supreme Court. The purpose of such advisory opinions shall be to inform the public and the bar as to what activities violate these rules but shall not be construed as binding the Supreme Court in carrying out its duty of regulating and defining the practice of law.

§ 3-1012(C) amended October 29, 2008; § 3-1012(E) deleted December 3, 2013, effective April 1, 2014.

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§ 3-1013. Counsel; appointment and duties.

§ 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, 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 jurisdiction 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 jurisdiction of the Commission.

   (2) Secure facilities for the administration of proceedings under these rules and receive and file all requests for investigation and complaints concerning matters within the jurisdiction of the Commission.

   (3) Employ such staff, including investigative and clerical personnel, subject to the approval of the Supreme Court, as may be necessary to carry out the duties of the office.

   (4) Perform such other duties as the Supreme Court or the Commission may require.

§ 3-1013(B)-(D) and (D)(3)-(4) amended December 3, 2013, effective April 1, 2014.

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§ 3-1014. Investigation; consideration by commission.

§ 3-1014. Investigation; consideration by commission.

   (A) All complaints regarding the unauthorized practice of law under these rules shall be filed with the CUPL. All complaints received by any Commission member, the Commission secretary, or by any other person shall be transmitted forthwith to the CUPL. All complaints regarding the unauthorized practice of law shall be received, screened, and, if required by the Commission, investigated by the CUPL, who shall, upon completion of his or her initial screening or investigation, make a written report of such screening or investigation, findings, and recommendation for disposal to the Commission. The CUPL may determine that the conduct in question does not constitute the unauthorized practice of law and recommend to the Commission that the complaint be dismissed. If the CUPL determines that the conduct constitutes the unauthorized practice of law, the CUPL shall recommend appropriate remedial action to the Commission.

   (B) In connection with an investigation by the CUPL, the Commission, through its chair or a chair of a designated panel thereof, may issue subpoenas and subpoenas duces tecum to compel the attendance of the respondent and other witnesses in the production of pertinent books, records, papers, documents, or evidence to the CUPL.

   (C) Any person subpoenaed to appear and give testimony or to produce materials, or any person having been sworn to testify and who refuses to answer any proper question, may be cited for contempt in proceedings instituted by the Commission in the Supreme Court pursuant to these rules.

   (D) The CUPL, or such other persons designated by the CUPL to conduct investigations, shall have the power to administer oaths and affirmations and to take and have transcribed the testimony and evidence of witnesses.

   (E) Upon the report of the initial screening by the CUPL, the Commission, or a designated panel thereof, shall make an independent judgment regarding the matter. It may dismiss the matter and so direct the CUPL to provide written notice of such dismissal to the complainant, if any, and to the respondent. It may determine that the conduct of the respondent merits further proceedings, and in such event, the respondent shall be notified that an investigation is being undertaken and the respondent shall be served personally or by certified mail with findings of the Commission or its panel of activities constituting the unauthorized practice of law and the rules governing the investigation and disposition thereof.

   (F) With the service of the findings of the Commission, or at any time thereafter, the Commission may request that a written answer to the findings of the Commission be filed with the CUPL within 20 days following the receipt of the notice and/or the Commission may request the respondent to appear before the CUPL for an informal conference during which the respondent may be offered an opportunity to enter into a written consent agreement or consent decree to refrain from conduct constituting the unauthorized practice of law. The CUPL shall make a written report to the Commission of the answer and/or informal conference.

   (G) At any time in the process, the Commission may refer the matter back to the CUPL for further investigation.

   (H) At any time after a finding by the Commission that the respondent has been involved in the unauthorized practice of law, the Commission may determine that civil injunction proceedings, as provided under these rules, shall be instituted against the respondent.

§ 3-1014(A) and (E) amended October 29, 2008.

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§ 3-1015. Civil injunction.

§ 3-1015. Civil injunction.

   (A) If the Commission determines that civil injunction proceedings shall be instituted against a respondent, it shall direct that such proceedings may be commenced in the name of the Commission by a petition filed in the Supreme Court by the CUPL or by a member of the bar appointed by the Supreme Court for the purpose of conducting such proceedings.

   (B) The petition shall be in writing and shall set forth the facts and charges in plain language and with sufficient particularity to inform the respondent of the acts complained of. The petition shall specify requested relief which may include injunction and assessment of the costs of the proceeding. The petition shall be served upon the respondent as provided in Neb. Rev. Stat. § 25-505.01 for service of process in civil cases.

   (C) The respondent shall file with the Supreme Court within 30 days after service a written answer admitting or denying the matter stated in the petition. Thereafter, the matter shall proceed as provided in the Nebraska Court Rules of Pleading in Civil Cases.

   (D) If no written answer is filed within the time permitted, the Supreme Court, upon its motion or upon the motion of the Commission or its counsel, shall decide the case, granting such relief and issuing such other orders as may be appropriate.

   (E) If a written answer raises no question of material fact, any party by motion may request a judgment on the pleadings and the Supreme Court may decide the case as a matter of law, granting such relief and order as may be appropriate.

   (F) Upon the Supreme Court's order, questions of fact raised in proceedings under these rules shall be referred to a Hearing Master to be appointed for that purpose.

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§ 3-1016. Civil injunction proceedings; hearing master; powers and procedure.

§ 3-1016. Civil injunction proceedings; hearing master; powers and procedure.

   (A) Civil injunction proceedingsbefore a Hearing Master shall be held in Lincoln, Nebraska. In the discretion of the Hearing Master, the proceedings may be held in the county where the respondent resides or where acts constituting unauthorized practice of law are alleged to have occurred.

   (B) The Commission may be represented in a proceeding before the Hearing Master by the CUPL, or by a duly licensed member of the Nebraska State Bar Association appointed by the Supreme Court for such purpose. The Hearing Master shall set a time and place for the hearing and shall dispose of any motions which may expedite the proceedings.

   (C) The parties may compel the attendance of witnesses before the Hearing Master by the issuance of subpoenas which shall run in the name of the Supreme Court and may be issued by the Hearing Master or Clerk of the Supreme Court upon the request of a party. All such subpoenas shall be subject to the provisions of Neb. Rev. Stat. § 25-1223 et seq. Failure or refusal, without adequate excuse, to comply with any such subpoena shall be contempt of the Supreme Court and may be punished accordingly.

   (D) Unless waived by the parties with the approval of the Hearing Master, the Nebraska Evidence Rules shall be applicable when not inconsistent with these rules. Subject to any limitations in the order of reference, the Hearing Master shall have the powers generally reposed in a "Court" under the Nebraska law. At all hearings before a Hearing Master, witnesses shall be sworn and a complete record made of all proceedings had and testimony taken by a competent court reporter.

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§ 3-1017. Civil injunction proceedings; report of hearing master and exceptions.

§ 3-1017. Civil injunction proceedings; report of hearing master and exceptions.

   (A) After the hearing, the Hearing Master shall report in writing to the Supreme Court in accordance with the order of reference, setting forth findings of fact and recommendations for final disposition of the case. The original record, including a transcript of the proceedings and all exhibits, shall be filed with the report. Promptly after the report is filed with the Supreme Court, the Clerk shall mail copies thereof and a briefing schedule pursuant to § 3-1017(B), to all parties.

   (B) Exceptions to the report of the Hearing Master may be filed with the Supreme Court, by any party, within 30 days after copies of the report have been mailed to the parties. A brief may be filed in support of such exceptions. Copies of such exceptions, and of any supporting briefs, shall be served upon all other parties. Any other party may file a responsive brief within 20 days after service of a brief in support of exceptions, and the excepting party may thereafter file a reply brief within 10 days after service of the responsive brief.

   (C) A brief of an amicus curiae may be filed only by leave of the Supreme Court granted on motion or by the request of the Supreme Court. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Any amicus curiae shall file its brief within the time allowed the party whose position the amicus brief will support unless the Supreme Court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer.

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§ 3-1018. Civil injunction proceedings; determination by Supreme Court.

§ 3-1018. Civil injunction proceedings; determination by Supreme Court.

   (A) After de novo review of the proceedings before the Hearing Master, and upon consideration of any exceptions and briefs, the Supreme Court may adopt the report or modify or reject it in whole or in part and shall determine as a matter of law whether the respondent has been engaged in the unauthorized practice of law. If the Supreme Court finds that the respondent was engaged in the unauthorized practice of law, the Supreme Court may enter an order enjoining the respondent from further conduct found to constitute the unauthorized practice of law and make such further orders as it may deem appropriate, including restitution and the assessment of costs.

   (B) Nothing in these rules shall be construed to limit the power of the Supreme Court, upon proper application, to issue an injunction at any stage of the proceeding in order to prevent public harm.

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§ 3-1019. Contempt proceedings.

§ 3-1019. Contempt proceedings.

   (A) Noncompliance with any order issued by the Supreme Court regarding the unauthorized practice of law shall be contempt of the Supreme Court punishable as provided in Neb. Rev. Stat. §§ 25-2121 through 25-2123, inclusive.

   (B) If the Commission determines that contempt proceedings shall be instituted against a respondent or the Supreme Court directs the Commission to institute such action, such proceedings may be commenced in the name of the Commission by an application filed in the Supreme Court by the CUPL or by a member of the Nebraska State Bar Association in good standing appointed by the Supreme Court for the purpose of conducting such proceedings.

   (C) The application shall allege facts indicating that the respondent has previously been enjoined by the Supreme Court from engaging in the unauthorized practice of law and is in willful disobedience of the order of injunction of the Supreme Court by continuing to engage in the same conduct held to be the unauthorized practice of law in that order, and shall contain a prayer for the issuance of a contempt citation.

   (D) Upon the filing of an application, the Supreme Court may issue an order directing the respondent to show cause in writing why the respondent should not be held in contempt of the Supreme Court for the willful disobedience of the order and injunction of the Supreme Court.

   (E) If an order to show cause is issued, it shall be served upon the respondent, together with a copy of the application, and the citation shall specify the time for response. If a response is filed, the Supreme Court may appoint a Hearing Master to resolve disputed issues of fact.

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§ 3-1020. General provisions; qualifications of hearing master; access to information concerning proceedings under these rules.

§ 3-1020. General provisions; qualifications of hearing master; access to information concerning proceedings under these rules.

   (A) A Hearing Master to whom matters are referred pursuant to these rules shall be a person who is duly licensed to practice law in Nebraska and in good standing with the Nebraska State Bar Association.

   (B) All proceedings conducted in the Supreme Court pursuant to these rules shall be public proceedings.

   (C) Except as otherwise provided by these rules or by order of the Supreme Court, all proceedings conducted pursuant to these rules prior to the filing of a petition in the Supreme Court shall be confidential, and the records of the Commission shall be confidential and shall not be made public unless and until such a petition is filed. Any person who violates this provision may be subject to punishment for contempt of the Supreme Court.

   (D) The pendency, subject matter, and status of the proceedings conducted pursuant to these rules may be disclosed by the CUPL to any of the following:

   (1) An agency authorized to investigate the qualifications of persons for admission to practice law;

   (2) A lawyer discipline enforcement agency;

   (3) Any person or agency requesting such information, provided that the respondent has waived confidentiality and the request is within the scope of the waiver; or

   (4) Any person appointed by the CUPL to assist in the prosecution of the alleged unauthorized practice of law.

Provided, however, § 3-1020(D) shall not be construed to prohibit the Commission from reporting the subject matter and disposition of a proceeding conducted pursuant to these rules for advisory purposes pursuant to § 3-1012(D) or prohibit the CUPL from disclosing basic information essential to the conduct of the investigation.

   (E) Except as otherwise authorized by order of the Supreme Court, a request for confidential information shall be denied unless the request is made by any of the following:

   (1) An agency authorized to investigate the qualifications of persons for admission to practice law;

   (2) An agency authorized to investigate the qualifications of persons for government employment;

   (3) An agency authorized to investigate allegations of unauthorized practice of law;

   (4) An agency authorized to investigate the qualifications of judicial candidates; or

   (5) A lawyer discipline enforcement agency.

   (F) If any one of the above-enumerated agencies requests confidential information and has not received a written authorization from the respondent permitting such agency to obtain confidential information, the Commission shall give written notice to the respondent that disclosure of confidential information has been requested. In addition, the Commission shall send to the respondent a copy of any information which the Commission proposes to release to the requesting agency. The Commission shall inform the respondent that the information indicated shall be released to the requesting agency at the end of 20 days after notice of the request was mailed unless the respondent obtains an order from the Supreme Court restraining such disclosure. Among the factors which the Supreme Court will consider in determining whether to restrain such disclosure is whether the requesting agency will accord confidentiality to the requested information.

   (G) If a judicial nominating commission of the State of Nebraska requests confidential information, it shall be furnished promptly and the CUPL shall give written notice to the respondent that specified confidential information has been so disclosed.

   (H) A respondent may be represented by counsel at any stage of proceedings conducted under these rules.

§ 3-1020(D) amended September 11, 2013.

unanimous

§ 3-1021. Immunity.

§ 3-1021. Immunity.

   Persons performing official duties under the provisions of these rules, including, but not limited to, the Commission, the CUPL and his or her staff, members of the Nebraska State Bar Association appointed to assist in the prosecution of alleged unauthorized practice of law, and Hearing Masters shall be immune from suit for all conduct in the course of their official duties.

 

unanimous

Article 11: (Reserved for future use.)

Article 11: (Reserved for future use.) unanimous

Article 12: Registration of In-House Counsel.

Article 12: Registration of In-House Counsel.

(Chapter 3, Article 12 adopted October 26, 2011, effective January 1, 2012.)

unanimous

§ 3-1201. General provisions.

§ 3-1201. General provisions.

   (A) All lawyers admitted to the practice of law in another U.S. jurisdiction or the District of Columbia, not admitted in Nebraska, who are in active status in that jurisdiction, who are employed in Nebraska as counsel in any capacity exclusively for a single corporation, partnership, association, or other legal entity, as well as any affiliate thereof, whose lawful business consists of activities other than the practice of law or provision of legal services, and who have a continuous presence in the State of Nebraska shall register as in-house counsel, or seek admission to the active practice of law in Nebraska, within 90 days of the commencement of employment as a lawyer under this rule or if currently so employed then within 90 days of the effective date of this rule as amended effective January 1, 2020. Initial registration terminates on December 31 of the year of original application and annual renewal pursuant to § 3-1203 is required thereafter. There are no exceptions to the requirement of registration as in-house counsel, except admission to the active practice of law in Nebraska, which admission includes payment of mandatory assessments pursuant to Neb. Ct. R. § 3-803(D).

   (B) Registration under Neb. Ct. R. §§ 3-1201 to 3-1204 is not a matter of right. In-house counsel registration is required of all lawyers working exclusively for a single corporation, partnership, association, or other legal entity, as well as any affiliate thereof, regardless of the job title assigned to the attorney. At the discretion of the Nebraska Supreme Court, any applicant for such in-house counsel registration may be required to provide proof of good moral character and fitness to practice law by the jurisdiction in which he or she was admitted to practice law or the Supreme Court may procure the character investigation services of the National Conference of Bar Examiners, at the lawyer's expense, in any matter in which substantial questions regarding the lawyer's character or fitness to practice law are implicated.

   (C) Any lawyer not licensed in Nebraska who is employed in any capacity exclusively for a single corporation, partnership, association, or ther legal entity, as well as any affiliate thereof in Nebraska on January 1, 2020, shall not be subject to discipline for the failure to register under the Nebraska Rules of Professional Conduct, Neb. Ct. R. Prof. Cond. §§ 3-501.0 to 3-508.5, if application for registration is made within 90 days of January 1, 2020, or the lawyer has submitted an application for admission to the active practice of law in Nebraska pursuant to Neb. Ct. R. § 3-100 et seq. within 90 days of January 1, 2020.

   (D) Pro bono practice. A lawyer registered under this section is authorized to provide pro bono legal services through an established not-for-profit association, pro bono program or legal services program or through such organizations specifically authorized in Nebraska.

§ 3-1004(A)-(C) amended December 18, 2019, effective January 1, 2020.

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§ 3-1202. Application requirements.

§ 3-1202. Application requirements.

   To qualify, the lawyer must submit to the Attorney Services Division of the Nebraska Supreme Court the following:

   (A) A completed application by responding to the questions posed through the Attorney Services Division on-line portal.

   (B) A certificate of good standing from the highest court of each jurisdiction of admission which shall be uploaded through the on-line portal account.

   (C) A certificate from the disciplinary authority of each jurisdiction of admission which shall be uploaded through the on-line portal account and:

   (1) States that the lawyer has not been suspended, disbarred, or disciplined and that no charges of professional misconduct are pending; or

   (2) Identifies any suspensions, disbarments, or disciplinary sanctions and any pending charges.

   (D) A duly authorized and executed certification from the lawyer's employer utilizing the form provided by the Attorney Services Division shall be uploaded through the on-line portal account and provides that:

   (1) It is not engaged in the practice of law or the rendering of legal services in violation of Neb. Ct. R. §§ 3-1001 to 3-1021, Unauthorized Practice of Law, whether for a fee or otherwise;

   (2) It is duly qualified to do business under the laws of its organization and the laws of the State of Nebraska;

   (3) The lawyer works exclusively as an employee of said employer as of the date of the application; and

   (4) It will promptly notify the Attorney Services Division in writing of the termination of the lawyer's employment.

   (E) Such other affidavits, proofs, and documentation as may be required by the Nebraska Supreme Court.

   (F) The registration fee of $700 shall be paid through the on-line portal for credit to the Nebraska Supreme Court's Counsel for Discipline Cash Fund and the Attorney Services Cash Fund. If the application for registration as in-house counsel is denied by the Nebraska Supreme Court, the registration fee shall be refunded.

§ 3-1202(A) amended April 10, 2013; § 3-1202 amended December 18, 2019, effective January 1, 2020.

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§ 3-1203. Termination or change of employment and renewal.

§ 3-1203. Termination or change of employment and renewal.

   (A) Termination of employment. When a lawyer ceases to be employed as in-house counsel with the entity submitting the certification under § 3-1202(D), the lawyer's authorization to perform legal services under this rule terminates. The lawyer shall provide notice to the Attorney Services Division of the termination through the on-line portal account and the employer shall immediately notify the Supreme Court Attorney Services Division in writing that the employment has ended.

   (B) Change of employers. If within 90 days of ceasing to be employed by the employer submitting the certification under § 3-1202(D), the lawyer becomes employed as in-house counsel by another employer who meets the requirements of this rule, the lawyer's registration shall be reinstated for the remainder of the calendar year after the new employer provides the certification required under § 3-1202(D).

   (C) Failure to maintain active status. If a lawyer who is registered under this rule fails to maintain active status in at least one jurisdiction, the rights and privileges under this rule automatically terminate.

   (D) Any lawyer registered under this rule shall renew registration through the on-line portal account on or before January 20 setting forth the requirements of § 3-1202(B) through (D) and pay the annual renewal fee of $345 to the Nebraska Supreme Court through the on-line portal for credit to the Nebraska Supreme Court's Counsel for Discipline Cash Fund and the Attorney Services Cash Fund.

   (E) Any lawyer who fails to file the annual renewal on or before January 20 shall pay an additional late fee of $25.

§ 3-1203(D) amended April 10, 2013; § 3-1203 amended December 18, 2019, effective January 1, 2020.

unanimous

§ 3-1204. Discipline and other applicable requirements.

§ 3-1204. Discipline and other applicable requirements.

   (A) A lawyer registered under Neb. Ct. R. §§ 3-1201 to 3-1204 shall be subject to the disciplinary authority of this state to the same extent as lawyers licensed to practice law in the State of Nebraska.

   (B) A lawyer registered under Neb. Ct. R. §§ 3-1201 to 3-1204 shall immediately inform the Counsel for Discipline of the Nebraska Supreme Court in writing of any disciplinary action commenced or any discipline or sanction imposed against the lawyer in any other jurisdiction.

   (C) A lawyer who fails to register with the Nebraska Supreme Court as in-house counsel or fails to seek admission to the Nebraska State Bar Association within 90 days of beginning employment with an employer who meets the requirements of Neb. Ct. R. §§ 3-1201 to 3-1204 or within 90 days of January 1, 2020, or a lawyer who fail to renew current in-house counsel registration by March 1 shall be:

   (1) Subject to professional discipline in this jurisdiction, including referral to Counsel on the Unauthorized Practice of Law pursuant to Neb. Ct. R. § 3-1012;

   (2) Referred by the Counsel for Discipline of the Nebraska Supreme Court to the disciplinary authority of the jurisdictions of licensure; and

   (3) Ineligible for admission on motion in the State of Nebraska.

§ 3-1204(C) amended April 10, 2013; § 3-1204(C) and (C)(1) amended December 18, 2019, effective January 1, 2020.

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CHAPTER 4: CHILDREN AND FAMILIES

CHAPTER 4: CHILDREN AND FAMILIES

(cite as Neb. Ct. R. §, unless otherwise noted)

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Article 1: Child Support / Paternity Time Guidelines; Child Support Referee Rules.

Article 1: Child Support / Paternity Time Guidelines; Child Support Referee Rules.

Nebraska Supreme Court Child Support Goals and Rules (Rules 1- 3) amended May 17, 1995. Renumbered and codified as §§ 4-101 to 4-103, effective July 18, 2008.

Rules Relating to Statewide Child Support Referees (Rules 4 - 11) adopted May 20, 1992. Renumbered and codified as §§ 4-104 to 4-111, effective July 18, 2008.

 

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§ 4-101. Goals.

§ 4-101. Goals.

   The Supreme Court establishes the following goals for the rules relating to the establishment and enforcement of child support and paternity:

   (A) The collection of a greater proportion of the child support owed to custodial parents.

   (B) The entry and enforcement of support orders within the time guidelines established by federal law.

   (C) The assurance that the Nebraska court system complies with federal rules and regulations relating to the establishment and enforcement of child support and paternity.

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§ 4-102. Expedited process.

§ 4-102. Expedited process.

   The expedited judicial process established in these rules is mandatory for all court matters related to the establishment and enforcement of child support and paternity. The following time standards apply in actions to establish support orders and, if necessary, paternity.

   (A) In all cases needing support order establishment regardless of whether paternity has been established, action to establish support orders must be completed from the date of service to the time of disposition within the following timeframes:

   (1) Seventy-five percent of such cases shall be completed within 6 months of service of process.

   (2) Ninety percent of such cases shall be completed within 12 months of service of process.

   Note: In cases for the purpose of paternity and support order establishment that use long-arm jurisdiction and disposition occurs within 12 months of service of process on the alleged father or noncustodial parent, the case may be counted as a success within the 6-month tier of the timeframe, regardless of when disposition occurs in the 12-month period following the service of process.

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§ 4-103. Requirements and time limits.

§ 4-103. Requirements and time limits.

   (A) Each clerk of the district court shall maintain records of payments for each child support order entered by the court in any pending case. Such records shall be created within 2 business days after the filing of the order in the clerk's office. The records shall show payments due, payments made, and the current arrearage. The records shall be updated within 1 business day after the day the payment is due and the day a payment is received. Interest may be calculated either each month or only when requested by the court or a party.

   (B) The clerk of the district court shall issue summons within 1 business day after receiving a request for summons. Summons shall be delivered immediately for service unless the court has been requested to issue an ex parte order which may be served with the summons. The clerk shall deliver summons for service no later than 3 business days after issuance.

   (C) The clerk of the district court shall determine whether a copy of the order has been furnished to the parties or their attorneys. If the clerk determines no copies have been furnished, the clerk shall mail copies to their last known mailing address by first class mail.

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§ 4-104. Reasons for statewide child support referees.

§ 4-104. Reasons for statewide child support referees.

   The Supreme Court finds that matters related to the establishment, modification, enforcement, and collection of child or spousal support and to paternity should be handled by the court in an expeditious manner so that parties may obtain needed orders and other action as quickly as possible. It is determined that the appointment of statewide child support referees is necessary to aid the district courts in meeting the case progression standards established by Supreme Court rule and federal law.

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§ 4-105. Appointment of referees.

§ 4-105. Appointment of referees.

   Each referee shall be appointed by order of the judges of the Supreme Court and shall be an attorney in good standing admitted to the practice of law in the State of Nebraska. The referee shall be sworn or affirmed, and the oath for judicial officer shall be administered. The referee may be removed at any time by the Supreme Court.

unanimous

§ 4-106. Duties of referees.

§ 4-106. Duties of referees.

   The referee shall, in all judicial districts in this state, hear matters pertaining to (1) the establishment, modification, enforcement, and collection of child or spousal support and (2) paternity. The referee shall have the power to administer all necessary oaths, supervise pretrial preparation pursuant to the rules of discovery, grant continuances and adjournments, recommend the appointment of counsel for indigent parties, and carry out any other duties permitted by law as directed by the district court. The functions performed by the referee under expedited processes shall at a minimum include (1) taking testimony and establishing a record, (2) evaluating evidence and making recommendations to establish and enforce orders, (3) accepting voluntary acknowledgment of support liability and stipulated agreements setting the amount of support and accepting voluntary acknowledgment of paternity, and (4) recommending default orders if absent parents fail to respond within the time specified by law. Priority shall be given to those judicial districts which have not been granted an exemption from the federal requirement to implement expedited processes.

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§ 4-107. Safeguards.

§ 4-107. Safeguards.

   Under the expedited processes established by this court rule:

   (A) The parties must be provided a copy of the recommendation of the referee and the ratified order;

   (B) To be enforceable, the referee's recommendations must be entered as an order by a judge;

   (C) If a case involves complex issues requiring judicial resolution, a temporary support obligation shall be recommended under these expedited processes and the unresolved issues shall be referred to the district court.

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§ 4-108. Hearings by referees.

§ 4-108. Hearings by referees.

   A hearing before a child support referee shall be conducted in the same manner as a hearing before a district court. Testimony in such matters shall be preserved by tape recording or other prescribed measures and shall be in accordance with prescribed standards. Transcripts of all hearings shall be available upon request, and all costs of preparing the transcript shall be paid by the party for whom it is prepared.

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§ 4-109. Findings and recommendations of referee.

§ 4-109. Findings and recommendations of referee.

   Upon the hearing of a matter, the child support referee shall prepare in writing his or her findings and recommendations to the parties or their attorneys and submit a report to the district court containing findings of fact and recommendations and any and all exceptions.

unanimous

§ 4-110. Judicial review of referee decisions.

§ 4-110. Judicial review of referee decisions.

   In all cases referred by a child support referee, the parties shall have the right to take exception within 14 days to the findings and recommendations of the referee and to have a review by the district court before final disposition. Upon receiving the findings and recommendations, the district court shall conduct a review on the report of the referee and in the court's discretion may ratify or modify the recommendations of the referee and enter judgment based thereon, with the rights of appeal and to move for rehearing reserved to all parties.

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§ 4-111. Case progression.

§ 4-111. Case progression.

   Actions to establish or enforce support obligations shall be completed in accordance with state and federal law.

 

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Article 2: Child Support Guidelines.

Article 2: Child Support Guidelines. unanimous

§ 4-201. Introduction.

§ 4-201. Introduction.

   The main principle behind these guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes.

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§ 4-202. Temporary and permanent support.

§ 4-202. Temporary and permanent support.

   The guidelines are intended to be used for both temporary and permanent support determinations.

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§ 4-203. Rebuttable presumption.

§ 4-203. Rebuttable presumption.

   The child support guidelines shall be applied as a rebuttable presumption. All orders for child support obligations shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied. All stipulated agreements for child support must be reviewed against the guidelines and if a deviation exists and is approved by the court, specific findings giving the reason for the deviation must be made. Findings must state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines. Deviations must take into consideration the best interests of the child. In the event of a deviation, the reason for the deviation shall be contained in the findings portion of the decree or order, or worksheet 5 should be completed by the court and filed in the court file. Deviations from the guidelines are permissible under the following circumstances:

   (A) When there are extraordinary medical costs of either parent or child;

   (B) when special needs of a disabled child exist;

   (C) if total net income exceeds $20,000 monthly, child support for amounts in excess of $20,000 monthly may be more but shall not be less than the amount which would be computed using the $20,000 monthly income unless other permissible deviations exist. To assist the court and not as a rebuttable presumption, the court may use the amount at $20,000 plus: 10 percent of net income above $20,000 for one, two, and three children; 12 percent of net income above $20,000 for four children; 13 percent of net income for five children; and 14 percent of net income for six children. For example, if the combined net parental income is $30,000 monthly and there is one child, the schedule amount at $20,000 is $2,282. Ten percent of the net income above $20,000 is $2,000 ($20,000 times .10). Therefore, the basic obligation is $4,282 ($2,282 plus $2,000). If the obligor's share of the total net income is 85 percent, the obligor's share of the support is $3,640 ($4,282 times .85).

   (D) for juveniles placed in foster care; or

   (E) whenever the application of the guidelines in an individual case would be unjust or inappropriate.

All orders for child support, including modifications, must include a basic income and support calculation worksheet 1, and if used, worksheet 2 or 3.

Paragraph C amended Dec. 23, 1992; amended effective Jan. 1, 1996; amended effective July 1, 2007. Renumbered and codified as § 4-203, effective July 18, 2008; § 4-203(C) amended July 13, 2011, effective September 1, 2011.; § 4-203(C) amended September 25, 2019, effective January 1, 2020.

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§ 4-204. Total monthly income.

§ 4-204. Total monthly income.

   (A) Total monthly income is the income of both parties derived from all sources, except all means-tested public assistance benefits which includes any earned income tax credit and payments received for children of prior marriages. This would include income that could be acquired by the parties through reasonable efforts. For instance, a court may consider as income the retained earnings in a closely-held corporation of which a party is a shareholder if the earnings appear excessive or inappropriate. All income should be annualized and divided by 12. For example, a party who receives a salary of $400 gross per week would have an annualized gross income of $20,800 ($400 times 52) and a monthly income of $1,733.33 ($20,800 divided by 12). If the person is paid $400 every 2 weeks, his or her annualized gross income would be $10,400 ($400 times 26) and monthly income would be $866.67 (10,400 divided by 12).

   (B) The court may consider overtime wages in determining child support if the overtime is a regular part of the employment and the employee can actually expect to regularly earn a certain amount of income from working overtime. In determining whether working overtime is a regular part of employment, the court may consider such factors as the work history of the employee for the employer, the degree of control the employee has over work conditions, and the nature of the employer's business or industry.

   (C) Depreciation calculated on the cost of ordinary and necessary assets may be allowed as a deduction from income of the business or farm to arrive at an annualized total monthly income. After an asset is shown to be ordinary and necessary, depreciation, if allowed by the trial court, shall be calculated by using the "straight-line" method, which allocates cost of an asset equally over its useful duration or life. An asset's life should be determined with reference to the Class-lives and Recovery Periods Table created pursuant to 26 CFR § 1.167(a)-11. A party claiming depreciation shall have the burden of establishing entitlement to its allowance as a deduction.

   (D) Copies of at least 2 years' tax returns, financial statements, and current wage stubs should be furnished to the court and the other party to the action at least 3 days before any hearing requesting relief. Any party claiming an allowance of depreciation as a deduction from income shall furnish to the court and the other party copies of a minimum of 5 years' tax returns at least 14 days before any hearing pertaining to the allowance of the deduction.

   (E) If applicable, earning capacity may be considered in lieu of a parent's actual, present income. Earning capacity is not limited to wage-earning capacity, but includes moneys available from all sources. When imputing income to a parent, the court shall take into consideration the specific circumstances of the parents, to the extent known. Those factors may include the parent's residence, employment and earnings history, job skills, educational attainment, literacy, age, health, and employment barriers, including criminal record, record of seeking work, prevailing local earning levels, and availability of employment.

   (F) Incarceration may not be treated as voluntary unemployment or underemployment in establishing or modifying child support orders.

Paragraph D amended Dec. 23, 1992; amended effective Jan. 1, 1996; amended effective Sept. 1, 2002. Renumbered and codified as § 4-204, effective July 18, 2008. § 4-204 amended September 16, 2015, effective January 1, 2016; § 4-204 amended September 25, 2019, effective January 1, 2020.

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§ 4-205. Deductions.

§ 4-205. Deductions.

   The following deductions should be annualized to arrive at monthly net income:

   (A) Taxes. Standard deductions applicable to the number of exemptions provided by law will be used to establish the amount of federal and state income taxes.

   (B) FICA. Social Security deductions, or any other mandatory contributions in lieu of Social Security deductions including any self-employment tax paid.

   (C) Retirement. Individual contributions, in a minimum amount required by a mandatory retirement plan. Where no mandatory retirement plan exists, a deduction shall be allowed for a continuation of actual voluntary retirement contributions not to exceed 4 percent of the gross income from employment or 4 percent from the net income from self-employment.

   (D) Child Support. Child support previously ordered for other children.

   (E) Other Children. Subject to § 4-220, credit may be given for biological or adopted children for whom the obligor provides regular support.

   (F) Cost to the Parent for Health Insurance for Himself or Herself. A deduction shall be allowed for the monthly out-of-pocket cost to the parent for that particular parent's health insurance. This includes the cost of coverage for the parent only. It does not include the cost of health insurance for the child(ren), which is addressed in § 4-215(A). The parent requesting the deduction must submit proof of the cost actually incurred for health insurance coverage of the parent. The amount of the deduction for the cost to the parent for health insurance for himself or herself shall not exceed 5 percent of that parent's gross income.

Paragraph E amended effective Jan. 1, 1996; amended effective Sept. 1, 2002; amended effective July 1, 2007. Renumbered and codified as § 4-205, effective July 18, 2008. § 4-205(F) adopted September 16, 2015, effective January 1, 2016.

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§ 4-206. Monthly support.

§ 4-206. Monthly support.

   The combined monthly net income of both parties from line 4 of worksheet 1 is compared to table 1. For example, if the combined monthly net income was $2,000 and there were three children, we would find $712 as the child support from table 1 (read across the table from $2,000 to the "Three Children" column to find $712).

Paragraph F amended effective Jan. 1, 1996; amended Nov. 26, 2003, effective Jan. 1, 2004. Renumbered and codified as § 4-206, effective July 18, 2008; § 4-206 amended September 25, 2019, effective January 1, 2020.

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§ 4-207. Parent's monthly share.

§ 4-207. Parent's monthly share.

   This is the child support amount from line 7, worksheet 1 (or line 9 if applicable), multiplied by the percentage contribution of each parent from line 6, worksheet 1. In our example, if F had a monthly net income of $1,500 and M had a monthly income of $500, each parent's monthly share would be $534 for F (.75 times $712) and $178 for M (.25 times $712). F would be required to pay M $534 per month in the event M was awarded custody of the children.

Paragraph G amended effective Jan. 1, 1996; amended Nov. 26, 2003, effective Jan. 1, 2004; amended effective July 1, 2007. Renumbered and codified as § 4-207, effective July 18, 2008; § 4-207 amended September 25, 2019, effective January 1, 2020.

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§ 4-208. More than one child.

§ 4-208. More than one child.

   If there is more than one child, the court's order should specify the amount of child support due for the children, with the amount recalculated and reduced as the obligation to support terminates for each child. The amount due for each possibility should be calculated separately from table 1. In our example, if M was awarded custody of the children, F would be required to pay $534 (.75 times $712) when there are three children, $431.25 (.75 times $575) when there are two children, and $290.25 (.75 times $387) when there is one child. See worksheet 4. The order should direct that child support continue only until each child reaches majority under Nebraska law, becomes emancipated, becomes self-supporting, marries, or dies, or until further order of the court.

Paragraph H amended Dec. 23, 1992; amended effective Jan. 1, 1996; amended Nov. 26, 2003, effective Jan. 1, 2004. Renumbered and codified as § 4-208, effective July 18, 2008; § 4-208 amended September 25, 2019, effective January 1, 2020.

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§ 4-209. Minimum support.

§ 4-209. Minimum support.

   Even in very low income cases, except in cases of disability or incarceration where a lower amount may be justified, a minimum monthly support of $50, or 10 percent of the obligor's net income, whichever is greater, per month should be set. This will help to maintain information on such obligor, such as his or her address, employment, etc., and, hopefully, encourage such person to understand the necessity, duty, and importance of supporting his or her children.

Paragraph I amended Dec. 23, 1992; amended effective Sept. 1, 2002. Renumbered and codified as § 4-209, effective July 18, 2008; § 4-209 amended September 25, 2019, effective January 1, 2020.

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§ 4-210. Visitation or parenting time adjustments.

§ 4-210. Visitation or parenting time adjustments.

   Visitation or parenting time adjustments or direct cost sharing should be specified in the support order. If child support is not calculated under § 4-212, an adjustment in child support may be made at the discretion of the court when visitation or parenting time substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day period. During visitation or parenting time periods of 28 days or more in any 90-day period, support payments may be reduced by up to 80 percent. The amount of any reduction for extended parenting time shall be specified in the court's order and shall be presumed to apply to the months designated in the order. Any documented substantial and reasonable long-distance transportation costs directly associated with visitation or parenting time may be considered by the court and, if appropriate, allowed as a deviation from the guidelines.

Paragraph J amended effective Jan. 1, 1996; amended effective Sept. 1, 2002; amended effective July 1, 2007. Renumbered and codified as § 4-210, effective July 18, 2008.

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§ 4-211. Split custody.

§ 4-211. Split custody.

   Split custody is defined as each parent having physical custody of one or more of the children. Worksheet 2 shows how to do this calculation.

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§ 4-212. Joint physical custody.

§ 4-212. Joint physical custody.

   When a specific provision for joint physical custody is ordered and each party's parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. When a specific provision for joint physical custody is ordered and one party's parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court. If child support is determined under this paragraph, all reasonable and necessary direct expenditures made solely for the child(ren) such as clothing and extracurricular activities shall be allocated between the parents, but shall not exceed the proportion of the obligor's parental contributions (worksheet 1, line 6). For purposes of these guidelines, a "day" shall be generally defined as including an overnight period.

Paragraph L amended effective July 1, 2007. Renumbered and codified as § 4-212, effective July 18, 2008; § 4-212 amended July 13, 2011, effective September 1, 2011.

unanimous

§ 4-213. Alimony.

§ 4-213. Alimony.

   These guidelines intend that spousal support be determined from income available to the parties after child support has been established.

unanimous

§ 4-214. Childcare expenses.

§ 4-214. Childcare expenses.

   Childcare expenses are not specifically computed into the guidelines amount and are to be considered independently of any amount computed by use of these guidelines. Care expenses for the child for whom the support is being set, which are due to employment of either parent or to allow the parent to obtain training or education necessary to obtain a job or enhance earning potential, shall be allocated to the obligor parent as determined by the court, but shall not exceed the proportion of the obligor's parental contribution (worksheet 1, line 6) and shall be added to the basic support obligation computed under these guidelines. 

   The value of the federal income tax credit for child care shall be subtracted from actual costs to arrive at a figure for net childcare expenses. The Court may impute the value of the federal childcare tax credit using worksheet 6 if the parent incurring the childcare expense has monthly gross income above $2,600 for one child; $3,100 for two children; $3,400 for three children; $3,550 for four children; $3,650 for five children; and $3,800 for six children. The value shall be imputed at 25 percent of the childcare expense, not to exceed $62.50 per month for one child and 20 percent of the childcare expense, not to exceed $100 per month for two or more children.

Paragraph N amended effective Jan. 1, 1996; amended effective Sept. 1, 2002; amended effective July 1, 2007. Renumbered and codified as § 4-214, effective July 18, 2008. § 4-214 amended September 16, 2015, effective January 1, 2016.

unanimous

§ 4-215. Child(ren)'s health insurance, nonreimbursed health care expenses, and cash medical support in Title IV-D cases.

§ 4-215. Child(ren)'s health insurance, nonreimbursed health care expenses, and cash medical support in Title IV-D cases.

   As required by Neb. Rev. Stat. § 42-369(2), the child support order shall address how the parents will provide for the child(ren)'s health care needs through health insurance as well as the nonreimbursed reasonable and necessary child(ren)'s health care costs that are not included in table 1 that are provided for in § 4-215(B).

   (A) Health Insurance. The increased cost to the parent for health insurance for the child(ren) of the parent shall be prorated between the parents. When worksheet 1 is used, it shall be added to the monthly support from line 7, then prorated between the parents to arrive at each party's share of monthly support on line 10 of worksheet 1. The parent requesting an adjustment for health insurance premiums must submit proof of the cost for health insurance coverage of the child(ren). The parent paying the premium receives a credit against his or her share of the monthly support. If not otherwise specified in the support order, "health insurance" includes coverage for medical, dental, orthodontic, optometric, substance abuse, and mental health treatment.

   (B) Health Care. Children's health care expenses are specifically included in the guidelines amount of up to $250 per child per year. Children's health care needs are to be met by requiring either parent to provide health insurance as required by state law. All nonreimbursed reasonable and necessary children's health care costs in excess of $250 per child per year shall be allocated to the obligor parent as determined by the court, but shall not exceed the proportion of the obligor's parental contribution (worksheet 1, line 6). If not otherwise specified in the support order, "health care costs" includes public or private coverage for medical, dental, orthodontic, optometric, substance abuse, and mental health treatment.

   (C) Cash Medical Support and Health Care Costs for Title IV-D Cases Only.

   (i) All child support orders in the Title IV-D program must address how the parties will provide for the child(ren)'s health care needs through public or private health care coverage and/or through cash medical support. Cash medical support or the cost of private health insurance is considered reasonable in cost if the cost to the party responsible for providing medical support for the child(ren) does not exceed 5 percent of his or her gross income. In applying the 5-percent standard, the cost is the cost of adding the child(ren) to existing health care coverage or the difference between self-only and the lesser of employee-plus-children or family health care coverage. Cash medical support payment shall not be ordered if, at the time that the order is issued or modified, the responsible party's income is, or such expense would reduce the responsible party's net income, below the basic subsistence limitation provided in § 4-218. If a court orders a parent to pay cash medical support, it shall be in lieu of, and not in addition to, requiring the parent to also pay reimbursement for reasonable and necessary children's health care costs as set forth in § 4-215(B).

   (ii) The amount of cash medical support ordered in the case shall be prorated between the parents. When worksheet 1 is used, it shall be added to the monthly support from line 7, then prorated between the parents to arrive at each party's share of monthly support on line 10 of worksheet 1. The parent paying the cash medical support receives a credit against his or her share of the monthly support.

Paragraph O amended effective Jan. 1, 1996; amended effective Sept. 1, 2002; amended Nov. 26, 2003, effective Jan. 1, 2004; amended effective July 1, 2007. Renumbered and codified as § 4-215, effective July 18, 2008; § 4-215 amended Sept. 16, 2009; § 4-215(C) adopted Sept. 16, 2009, effective Sept. 30, 2009; § 4-215 (all sections) amended July 13, 2011, effective September 1, 2011; § 4-215(B) and (C)(i) amended September 25, 2019, effective January 1, 2020.

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§ 4-216. Review.

§ 4-216. Review.

   The State Court Administrator shall review the Nebraska Child Support Guidelines not less than every 4 years, beginning in October 1993, and recommend revisions, if any, to the Nebraska Supreme Court. In addition, the Supreme Court will review reports submitted to it by the Child Support Advisory Commission.

Paragraph P amended effective Jan. 1, 1996; amended effective Sept. 1, 2002; amended effective July 1, 2007. Renumbered and codified as § 4-216, effective July 18, 2008.

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§ 4-217. Modification.

§ 4-217. Modification.

   Application of the child support guidelines which would result in a variation by 10 percent or more, but not less than $25, upward or downward, of the current child support obligation, child care obligation, or health care obligation, due to financial circumstances which have lasted 3 months and can reasonably be expected to last for an additional 6 months, establishes a rebuttable presumption of a material change of circumstances.

Paragraph Q amended effective Jan. 1, 1996; amended effective Sept. 1, 2002. Renumbered and codified as § 4-217, effective July 18, 2008.

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§ 4-218. Basic subsistence limitation.

§ 4-218. Basic subsistence limitation.

   A parent's support, child care, and health care obligation shall not reduce his or her net income below the minimum of $1,304 net monthly for one person, or the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services under authority of 42 U.S.C. § 9902(2), except minimum support may be ordered as defined in § 4-209.

Paragraph R (previously Paragraph Q) adopted Dec. 23, 1992; amended effective Jan. 1, 1996; amended September 25, 1996; amended March 26, 1997; amended March 18, 1998; amended April 21, 1999; amended March 15, 2000; amended April 18, 2001; amended effective Sept. 1, 2002; amended February 26, 2003; amended March 10, 2004; amended March 9, 2005; amended March 1, 2006; amended February 27, 2008. Renumbered and codified as § 4-218, effective July 18, 2008; amended February 11, 2009; amended February 9, 2011; amended February 2, 2012; amended February 13, 2013; amended February 12, 2014; amended February 11, 2015; amended February 4, 2016; amended February 8, 2017; amended January 31, 2018; amended February 6, 2019; amended January 29, 2020; amended February 10, 2021; amended January 26, 2022; amended February 16, 2023; amended January 24, 2024; amended January 29, 2025.

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§ 4-219. Limitation on increase.

§ 4-219. Limitation on increase.

   Under no circumstances shall there be an increase in support due from the obligor solely because of an increase in the income of the obligee.

Paragraph S effective Sept. 1, 2002. Renumbered and codified as § 4-219, effective July 18, 2008.

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§ 4-220. Limitation on decrease.

§ 4-220. Limitation on decrease.

   An obligor shall not be allowed a reduction in an existing support order solely because of the birth, adoption, or acknowledgment of subsequent children of the obligor; however, a duty to provide regular support for subsequent children may be raised as a defense to an action for an upward modification of such existing support order.

Paragraph T effective Sept. 1, 2002. Renumbered and codified as § 4-220, effective July 18, 2008.

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§ 4-221. Rounding to the nearest whole dollar.

§ 4-221. Rounding to the nearest whole dollar.

   Final child support should be rounded to the nearest dollar in all instances.

§ 4-221 adopted July 13, 2011, effective September 1, 2011.

unanimous

§ 4-222. Residence with third party.

§ 4-222. Residence with third party.

   If the child is residing with a third party, the court shall order each of the parents to pay to the third party their respective amounts of child support as determined by the worksheet.

§ 4-222 adopted July 13, 2011, effective September 1, 2011.

unanimous

Article 3: Grandparent Visitation Pleading Rules.

Article 3: Grandparent Visitation Pleading Rules. unanimous

§ 4-301. Form of pleadings.

§ 4-301. Form of pleadings.

   A petition for grandparent visitation pursuant to Neb. Rev. Stat. § 43-1803 shall be so captioned and shall contain the information required by statute. In other respects, the form of the petition and the form of all subsequent pleadings shall comply with the Nebraska Rules of Pleading in Civil Actions.

Adopted June 25, 1986; amended December 11, 2002. Renumbered and codified as § 4-301, effective July 18, 2008.

unanimous

Article 4: Guardian Ad Litem Training.

Article 4: Guardian Ad Litem Training. unanimous

§ 4-401. Guardians ad litem; Young Adult Bridge to Independence attorneys; required training; appointments.

§ 4-401. Guardians ad litem; Young Adult Bridge to Independence attorneys; required training; appointments.

   (A) An attorney to be appointed by the courts as a guardian ad litem for a juvenile in a proceeding brought under Neb. Rev. Stat. § 43-247(3)(a) of the Nebraska Juvenile Code shall have completed six (6) hours of specialized training provided or approved by the Nebraska Supreme Court Attorney Services Division (see Appendix A). Thereafter, in order to maintain eligibility to be appointed and to serve as a guardian ad litem, an attorney shall complete three (3) hours of specialized training per year as provided by the Nebraska Supreme Court Attorney Services Division. Courts shall appoint attorneys trained under this rule in all § 43-247(3)(a) cases when available; provided, however, that if the judge determines that an attorney with the training required herein is unavailable within the county, he or she may appoint an attorney without such training and the attorney must agree to complete the six-hour on-line training within thirty (30) days of the appointment.

   (B) Commencing October 20, 2014, for an attorney appointed by the court under Neb. Rev. Stat. § 43-4510, the attorney shall have training appropriate to the role of the attorney under this statute. Such training shall be provided by the Nebraska Supreme Court Attorney Services Division. If the attorney has not had the appropriate training prior to the appointment, he or she shall obtain such training within 30 days of the appointment. The Nebraska Supreme Court Attorney Services Division shall make appropriate education available on-line to satisfy the statutory requirements for education. The Nebraska Supreme Court Attorney Services Division shall maintain a list of attorneys who are current in their required training and shall make such list available to all judges with juvenile court jurisdiction.

Adopted June 28, 2006; amended April 11, 2007, effective January 1, 2008. Renumbered and codified as § 4-401, effective July 18, 2008. § 4-401 amended June 17, 2014; § 4-401 amended September 24, 2014l § 4-401 amended March 20, 2019. 

unanimous

Appendix A

Appendix A

   The Nebraska Supreme Court, through the Nebraska Supreme Court Attorney Services Division, shall develop the curriculum for the initial guardian ad litem education and provide specialized on-line training for guardians ad litem at a nominal cost. The Nebraska Supreme Court Attorney Services Division may approve the rendition of an in-the-classroom version of the initial six-hour curriculum it has developed in the event an outside vendor applies to the Nebraska Supreme Court Attorney Services Division to teach such a version of the curriculum.

   The Nebraska Supreme Court Attorney Services Division shall maintain a list of attorneys who are current in their required guardian ad litem training and shall make such list available to all judges with juvenile court jurisdiction.

   In addition to offering the initial six-hour course, the Nebraska Supreme Court Attorney Services Division shall determine the course work required of the attorney subsequent to the completion of the initial course. Courses may be made available to satisfy the annual three-hour requirement through the Nebraska Supreme Court Attorney Services Division, offered at a nominal fee and hosted on its Web site. In addition, the Nebraska Supreme Court Attorney Services Division may approve courses for the annual three-hour requirement that are offered by outside vendors if the courses meet the curriculum requirements and standards created by the Nebraska Supreme Court Attorney Services Division.

   Specialized training sessions shall provide training, information, and education regarding the role, duties, and responsibilities of a guardian ad litem, which shall include, but not be limited to, the following areas:

   (A) Overview of the Juvenile Court System;

   (B) Statutory duties and authority of a guardian ad litem, including any performance standards adopted by the Nebraska Supreme Court;

   (1) Requirements of guardian ad litem report.

   (2) Instructions for preparing a guardian ad litem report.

   (3) Ethical issues and the role of a guardian ad litem.

   (C) Issues which impact or impair the functioning of families, including but not limited to:

   (1) Dynamics of child abuse and neglect;

   (2) Substance abuse and mental health issues;

   (3) Poverty, employment, and housing;

   (4) Domestic violence;

   (5) Physical, psychological, and psychiatric health issues;

   (6) Education;

   (7) Visitation and demonstration of parental skills.

   (D) Training in the techniques of gathering relevant information and resources:

   (1) Interviewing skills, regarding both children and adults;

   (2) How to obtain and interpret reports from other professionals and providers;

   (3) Inquiry into appropriateness and stability of juveniles’ placement.

   (E) Psychological aspects of children, including child development issues;

   (F) Permanency Planning: Family preservation, reunification, adoption, guardianship, another permanent planned living arrangement;

   (1) Appropriate parental-child relationship, bonding, attachment, and effects of separation and loss;

   (2) Developmental considerations: age appropriate visitation, with particular emphasis on the needs and vulnerabilities of children age 0-5.

   (G) Cultural, ethnic diversity, and gender issues;

   (H) Relevant state and federal statutes and case law;

   (I) Indian Child Welfare Act;

   (J) Legal advocacy, mediation, and negotiation skills.

Appendix A amended June 17, 2014; Appendix A amended March 20, 2019.

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Article 5: Juvenile Court Judicial Hearing Officer Rules.

Article 5: Juvenile Court Judicial Hearing Officer Rules.

(Adopted January 25, 2023.)

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§ 4-501. Juvenile Court Judicial Hearing Officers.

§ 4-501. Juvenile Court Judicial Hearing Officers.

   The Supreme Court may appoint Judicial Hearing Officers as needed to serve on a full‑time or a part-time basis for county courts sitting as juvenile courts or for the separate juvenile courts (collectively juvenile courts). Such Judicial Hearing Officers shall serve as directed by the Supreme Court and shall receive a salary as established by the Supreme Court.

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§ 4-502. Appointment of Juvenile Court Judicial Hearing Officers.

§ 4-502. Appointment of Juvenile Court Judicial Hearing Officers.

   (A) At a minimum, to be qualified for appointment as a Judicial Hearing Officer, a person shall:

   (1) Be an attorney in good standing admitted to the practice of law in the State of Nebraska for a minimum of five (5) years;

   (2) Be an attorney who has practiced before the juvenile court for a minimum of four (4) years;

   (3) Be willing to submit to personal background checks, which would include criminal history background checks, a search of the Central Registry, and a search of Sex Offender Registr(ies), and be willing to submit a Waiver of Confidentiality, a Fair Credit Reporting Act Disclosure Statement, and other similar requirements as part of the application process;

   (4) Continue to abide by the Nebraska Rules of Professional Conduct and also abide by the Nebraska Revised Code of Judicial Conduct; and

   (5) Be administered oaths by any judge of the State of Nebraska consistent with Neb. Const. art. XV, § 1, and with Neb. Rev. Stat. § 24-230.

   (B) A Judicial Hearing Officer may be removed at any time by the Supreme Court.

   (C) The appointment of a Judicial Hearing Officer shall be appointed by written order.

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§ 4-503. Duties of Juvenile Court Judicial Hearing Officers.

§ 4-503. Duties of Juvenile Court Judicial Hearing Officers.

   Upon referral by the juvenile court, a Judicial Hearing Officer shall have the following powers and duties:

   (A) A Judicial Hearing Officer shall have the power to preside upon, hear, and determine any proceeding under the Nebraska Juvenile Code, which does not include proceedings brought under Neb. Rev. Stat. § 71-6903.

   (B) A Judicial Hearing Officer shall have the power to administer all necessary oaths, supervise pretrial preparation pursuant to the rules of discovery, grant continuances and adjournments, recommend the appointment of counsel for indigent parties, recommend the appointment of a guardian ad litem for minor children, and carry out any other duties permitted by law, the Nebraska Supreme Court Rules, or as directed by the Supreme Court.

   (C) Consistent with a Judicial Hearing Officer’s power to preside upon, hear, and determine proceedings as provided in subsection (A), the functions of a Judicial Hearing Officer shall, at a minimum, include the following:

   (1) Taking testimony and establishing and preserving a record;

   (2) Evaluating evidence, making findings of fact and/or law, making recommendations, and establishing and enforcing orders;

   (3) Issuing summons and enforcing the attendance of parties; and

   (4) Actions presided by, heard by, or determined by a Judicial Hearing Officer shall be completed in accordance with all Nebraska Supreme Court Rules, including, but not limited to, Neb. Ct. R. § 6-104.

   (D) If any proceeding involves complex issues which requires judicial resolution, the Judicial Hearing Officer, after consultation with and permission from the county or juvenile judge (judge), may transfer the matter back to the judge, or the judge may transfer the case back to his or her docket at his or her discretion.

unanimous

§ 4-504. Safeguards.

§ 4-504. Safeguards.

   The parties or their attorneys shall have the right to take exceptions to the findings and/or recommendations made by the Judicial Hearing Officer and to have a further hearing before such juvenile court for final disposition. The following procedure shall be utilized for exception hearings:

   (A) A hearing before a Judicial Hearing Officer shall be conducted in the same manner as a hearing before the juvenile court. Testimony in such matters shall be preserved by digital recording or other prescribed means and shall be in accordance with prescribed standards. Transcriptions of all hearings shall be available upon request, and all costs of preparing the transcription shall be paid by the party for whom it is prepared.

   (B) Upon the hearing of a matter, the Judicial Hearing Officer shall prepare in writing his or her findings and recommendations, and shall submit a report to the juvenile court containing findings of fact and law as well as recommendations.

   (C) Upon receiving the findings and recommendations from the Judicial Hearing Officer and when no exception is filed, the juvenile court shall review the report of the Judicial Hearing Officer de novo on the record, and in the juvenile court’s discretion, the juvenile court may approve, modify, or reject the recommendations of the Judicial Hearing Officer and make its own determinations and enter judgment based thereon. Any statutory right of appeal or rehearing shall remain reserved to all parties.

   (D) The parties shall have the right to take exception to the findings and recommendations of the Judicial Hearing Officer within seven (7) days and to have a hearing by the juvenile court before final disposition. Upon receiving the findings and recommendations, the juvenile court shall have the discretion to allow the presentation of new or additional evidence, and at the conclusion of the hearing, the juvenile court has the discretion to approve, modify, or reject the recommendations of the Judicial Hearing Officer and make its own determinations and enter judgment based thereon. Any statutory rights of appeal or rehearing shall remain reserved to all parties.

   (E) Upon filing the notice of exception with the clerk of the court from which the exception is being taken, the petitioner shall also file with that juvenile court a request directing the clerk to prepare a transcript, with the petitioner identifying the pleading or document to be included in the transcript by listing the name of the pleading or document and its date of filing. The petitioner shall also request the court reporting personnel to make or have made an expedited audio file and/or a verbatim record of the hearing(s) from which an exception is being made.

   (F) To be enforceable, the Judicial Hearing Officer’s recommendations must be entered as an order by a judge.

   (G) The parties must be provided a copy of the recommendation of the Judicial Hearing Officer and the approved order by the juvenile court.

unanimous

§ 4-505. Training and continuing legal education requirements for Juvenile Court Judicial Hearing Officers.

§ 4-505. Training and continuing legal education requirements for Juvenile Court Judicial Hearing Officers.

   Judicial Hearing Officer shall complete continuing judicial branch education consistent with Neb. Ct. R. § 1-503 and shall participate in additional training as directed by the Supreme Court. Said additional training could include education that pertains to juvenile court practice and procedure, juvenile court appellate issues, family dynamics, substance abuse evaluations and treatment for parents and minor children, domestic abuse within the family, juvenile and family strength-based training, truancy, family poverty issues, roles of the parties in juvenile court, and other issues as deemed appropriate by the Supreme Court.

unanimous

CHAPTER 5: JUDGES

CHAPTER 5: JUDGES unanimous

Article 1: Discipline Procedures for Judges.

Article 1: Discipline Procedures for Judges. unanimous

§ 5-101. Governing law.

§ 5-101. Governing law.

   The Commission on Judicial Qualifications and any Masters duly appointed, shall follow the constitutional provisions for said commission and the statutes contained in Chapter 24, Article (7) as well as the rules hereinafter set forth.

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§ 5-102. Proceedings not substitute for appeal.

§ 5-102. Proceedings not substitute for appeal.

   In the absence of fraud, corrupt motive or bad faith, the commission shall not take action against a judge or justice for making findings of fact, reaching a legal conclusion or applying the law as he or she understands it. Claims of error shall be left to the appellate process. (Source ABA Std. 3.4)

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§ 5-103. Informal inquiry.

§ 5-103. Informal inquiry.

   (A) The commission, upon receiving a written complaint or request alleging facts indicating that a justice or judge is subject to discipline, removal, or retirement as provided in Neb. Rev. Stat. § 24-722, shall make an initial informal inquiry to determine whether a preliminary investigation should be conducted. The commission without receiving a written statement, and for good cause, may make such an informal inquiry or initiate an investigation on its own.

   (B) Any complaint or request received by a commission member shall be forwarded to the chairperson or commission secretary for further action.

   (C) The matter may be referred by the commission or the commission chairperson to a committee or one or more members of the commission, commission staff, or to a special investigator to conduct such informal inquiry as may be required, consider such evidence as deemed necessary, and report. The committee, staff person, or special investigator shall report whether it finds the complaint to be unfounded, frivolous, or whether it has substance requiring a preliminary investigation. The report shall be considered and passed upon by the commission. The chairperson shall have the discretion of presenting the report to the commission either

   (1) at a regular meeting of the commission, or

   (2) by furnishing a copy of the report to the commission members and polling them individually.

   (D) Upon determination that there is insufficient cause to proceed, the complainant, if any, shall be notified. If the judge has been informed of the proceedings, he or she shall also be notified of its termination, and the file shall be closed.

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§ 5-104. Preliminary investigation; closed formal hearing.

§ 5-104. Preliminary investigation; closed formal hearing.

   (A) If the commission determines that a preliminary investigation should be made, the same shall be conducted as provided by Neb. Rev. Stat. § 24-721.

   (B) The chairperson may appoint a committee of commission members to conduct a preliminary investigation, and report.

   (C) The commission, as a body, may conduct such preliminary investigation. The commission, acting as a body or by a committee of its members, may authorize the employment and use of a non-member investigator.

   (D) The judge/justice shall be notified of the investigation, the nature of the complaint or request, and the name of the person making the written statement, if any, or that the investigation is being made on the committee's motion; and that he or she shall be afforded a reasonable opportunity in the course of the preliminary investigation to present such relevant matters as he or she may choose. At that time the judge/justice shall be furnished a copy of these rules.

   (E)(1) The commission may take evidence before it or any individual member of the commission or its staff for the purpose of its preliminary investigation. Discovery proceedings may be had at the request of the respondent upon application made to the commission or master and good cause shown.

   (2) A judge, clerk, court employee, member of the bar, or other officer of the court, shall comply with a reasonable request made by the commission for aid in its investigation of a judge or justice.

   (F) The preliminary investigation shall be conducted without delay, and all progress, final, and supplemental reports shall be promptly filed with the secretary. All such reports shall be considered by the commission in formal session.

   (G) If the commission finds that the reported preliminary investigation does not disclose sufficient statutory cause to warrant further investigation or proceedings, the judge/justice and the person, if any, filing the written complaint or request, shall be so notified in writing by the chairperson. Such formal action of the commission in dismissing a complaint or request does not necessarily adopt all the reasoning or conclusions of the investigative report.

   (H) If the commission finds from the preliminary investigation that there is probable cause for the judge/justice to be subject to disciplinary action or retirement specified in Neb. Rev. Stat. § 24-722, it shall either:

   (1) Reprimand the judge/justice after having held a formal closed hearing; such hearing is to be conducted in the same manner as is a formal open hearing except that the hearing shall be closed and all documents and reports arising out of the hearing shall be confidential, or

   (2) Order a formal open hearing to be held concerning the reprimand, discipline, censure, suspension, removal, or retirement of such judge/justice.

   (I) If the preliminary investigation does not disclose sufficient statutory cause to warrant further investigation or proceedings and the matter is dismissed under § 5-104(G) or if a reprimand is issued under § 5-104(H), the evidence on said complaint or complaints shall be considered the same as any other evidence in the event a subsequent formal hearing is held on a complaint concerning the reprimand, discipline, censure, suspension, removal or retirement of such judge/justice.

   (J) If a reprimand is issued under § 5-104(H)(1) the commission shall issue a statement outlining the subject and nature of the complaint leading to the reprimand and the date and location of the hearing which was held prior to the issuance of the reprimand.

unanimous

§ 5-105. Formal hearing.

§ 5-105. Formal hearing.

   (A) If after the preliminary investigation has been completed, the commission concludes that a formal hearing shall be held, the cause shall be entered in a docket to be kept for that purpose. The complaint shall be entitled: "Before the Commission on Judicial Qualifications, complaint against __________, judge, No. __________."

   (B) A complaint shall be in a form similar to a complaint filed in a civil action in the district court. It shall be filed in the office of the Clerk of the Supreme Court, there to become a public record, and a copy shall be promptly served on the respondent, either by certified mail or personally. If the respondent cannot be found in the State of Nebraska, service may be had by leaving a copy at respondent's last known Nebraska address.

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§ 5-106. Answer.

§ 5-106. Answer.

   (A) Within fifteen (15) days after service of the complaint, the respondent shall file with the commission an answer. The answer shall be in form similar to an answer in a civil action in the district court. It shall contain a full and fair disclosure of all facts and circumstances pertaining to his or her alleged misconduct or physical or mental disability. Any willful concealment, misrepresentation, or failure to file such an answer and disclosure, shall be additional grounds for disciplinary action under the complaint.

   (B) The complaint and answer shall constitute the only pleading.

unanimous

§ 5-107. Setting for hearing and appointment of master.

§ 5-107. Setting for hearing and appointment of master.

   (A) Upon the filing of a complaint, the commission shall set a time and place of hearing before itself and give notice of such hearing to the respondent at least twenty (20) days prior to the date set, or shall direct that such hearing be held before a master to be appointed by the Supreme Court.

   (B) If the commission directs that the hearing be held before a master to be appointed by the Supreme Court, the commission shall file a written request to the Supreme Court to appoint a master for such purpose accompanied by a copy of the complaint. The Supreme Court shall within ten (10) days from receipt of said request, appoint a master to conduct such hearing. Said master shall set a time and place of hearing and shall give notice thereof to the respondent and to the Attorney General or special counsel at least twenty (20) days prior to the date set. The master shall rule on all motions and other procedural matters incident to the complaint, answer and hearing, subject to review by the commission after filing of the master's report.

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§ 5-108. Hearing.

§ 5-108. Hearing.

   (A) At the time and place set for hearing, the commission, or the master when the hearing is before a master, shall proceed with a public hearing which as nearly as may be shall conform to the rules of procedure and evidence governing the trial of civil actions in the district courts, whether or not the respondent has filed an answer or appears at the hearing. The Attorney General or special counsel shall present the evidence in support of the charges set forth in the complaint. A respondent shall be entitled to be represented by counsel. Any employee, officer or agent of respondent's court, any law enforcement officer, any public officer or employee, and any attorney, who testifies as a witness in such hearing, whether called by the Attorney General or special counsel or by the respondent, shall be subject to cross-examination by either party in like manner as an opposite party under the rules of civil procedure.

   (B) The failure of the respondent to answer or to appear at the hearing, shall not, standing alone, be taken as evidence of the truth of the facts alleged to constitute grounds for commission action. The failure of the respondent to answer, to testify in his own behalf, or to submit to a medical examination requested by the commission or the master, may be considered as an evidentiary fact, unless it appears that such failure was due to circumstances unrelated to the facts in issue at the hearing.

   (C) The proceedings at the hearing shall be reported by a court reporter designated by the commission or master.

   (D) When the hearing is before the commission, not less than a majority of the members shall be present while the hearing is in actual progress. Procedural and other interlocutory rulings shall be made by the chairman, the acting chairman in the absence of the chairman, and any member designated by the chairman in the absence of both the chairman and the acting chairman, unless one or more calls for a vote, in which event, such rulings shall be made by a majority vote of those present.

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§ 5-109. Issuance, service, and return of subpoenas.

§ 5-109. Issuance, service, and return of subpoenas.

   At the request of the commission, the master, the Attorney General, special counsel, or counsel for respondent, subpoenas for the attendance of witnesses and the production of documents before the commission or master, shall be issued by the chairman and served by an individual or officer appointed for that purpose in the county in which the hearing is to be held in like manner and with like effect as in civil proceedings.

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§ 5-110. Amendments or complaint or answer.

§ 5-110. Amendments or complaint or answer.

   The master, at any time prior to the conclusion of the hearing, or the commission at any time prior to its determination, may allow or require amendments to the complaint or answer. The complaint may be amended to conform to the proofs or to set forth additional facts, whether occurring before or after the commencement of the hearing. In case such an amendment is made, the respondent shall be given reasonable time both to answer the amendment and to prepare and present his defense against the matters charged thereby.

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§ 5-111. Report of master.

§ 5-111. Report of master.

   Within thirty (30) days after the conclusion of the hearing before a master, he or she shall promptly prepare and transmit to the commission in triplicate a report which shall contain a brief statement of the proceedings had and his or her findings of fact and conclusions of law with respect to the issue presented by the complaint and answer. The report shall be accompanied by three copies of the transcript of the proceedings before the master. Upon receiving such report and transcript, the commission shall promptly send a copy thereof to the respondent and the Attorney General or special counsel. The transcript of the proceedings before the master shall be filed. The master's report shall be received by the commission, but shall not be filed or made public until the filing of the commission decision, pursuant to § 5-115.

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§ 5-112. Objections to report of master.

§ 5-112. Objections to report of master.

   Within fifteen (15) days after mailing to respondent a copy of the master's report and transcript, the Attorney General, special counsel or respondent may file with the commission an original and ten (10) copies of a statement setting forth objections to the report of the master along with supporting briefs. A copy of any such statement and brief shall be served on the opposite party.

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§ 5-113. Appearance before commission.

§ 5-113. Appearance before commission.

   When the master files his report, the commission shall set a date for hearing any objections to the report. The respondent and the Attorney General or special counsel, shall file written briefs if any are filed at least five (5) days before the hearing date. The respondent and the Attorney General or special counsel may present oral arguments at the hearing.

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§ 5-114. Extension of time.

§ 5-114. Extension of time.

   The commission or its chairman may extend for periods not to exceed thirty (30) days the time for filing an answer, for the commencement of a hearing before the commission, for the filing of the report of a master, and for filing a statement of the objections to the report of a master, and a master may similarly extend the time for the commencement of a hearing before him or her.

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§ 5-115. Commission decision.

§ 5-115. Commission decision.

   (A) The affirmative vote of a majority of the members of the commission all of whom shall have considered the report of the master and objections thereto, and who were present at any oral hearing provided for in § 5-113, or if the hearing was before the commission without a master, the affirmative vote of a majority of the members of the commission, all of whom were present when the evidence was taken, is required for a recommendation for action, upon a finding that the charges are established by clear and convincing evidence. In the absence of such votes, an order of dismissal of the complaint shall be entered by the commission.

   (B) The commission shall make written findings of fact and conclusions of law along with its recommendations for action thereon with respect to the issues of fact and law in the proceedings, but may instead, adopt the findings of the master, in whole or in part, by reference thereto.

   (C) Upon consent of the respondent, an order of reprimand, discipline, suspension, retirement, or removal may be entered by the Supreme Court at any stage of the proceedings under these rules.

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§ 5-116. Certification of commission recommendation to Supreme Court.

§ 5-116. Certification of commission recommendation to Supreme Court.

   Upon making a determination, recommending action against a judge or justice, the commission shall promptly file a copy of the recommendation certified by the chairman, together with the transcript and the findings and conclusions with the Clerk of the Nebraska Supreme Court, who shall immediately send by registered mail to the judge or justice and to his counsel, notice of such filing, together with a copy of such recommendation, findings and conclusions.

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§ 5-117. Review procedure in Supreme Court.

§ 5-117. Review procedure in Supreme Court.

   (A) Petition: Within twenty (20) days of the filing of the recommendation in the Supreme Court under § 5-116, the respondent may file with the Clerk of the Supreme Court a petition asking the Supreme Court to modify or reject the recommendation of the commission. The respondent shall file with the petition a certified copy of the recommendation or recommendations about which complaint is made. The petition shall be verified in seven (7) copies, shall be based on the record, shall specify the grounds relied on, and shall be accompanied by respondent's brief in seven (7) copies and proof of service of a copy of the petition and of the brief on the chairman of the commission. Within twenty (20) days after service on the commission, the commission shall serve and file a relator's brief. Within fifteen (15) days after service of such brief, the respondent may file a reply brief of which a copy shall be served on the chairman of the commission.

   (B) Failure to file petition: Failure to file a petition within the time provided, may be deemed a consent to a determination on the merits based upon the record filed by the commissi

   (C) Applicable rules: The Rules of the Supreme Court of Nebraska shall apply to the proceedings in the Supreme Court for review of a recommendation of the commission, except where express provision is made to the contrary or where the application of a particular rule would be clearly impracticable, inappropriate, or inconsistent.

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§ 5-118. Decision by the Supreme Court.

§ 5-118. Decision by the Supreme Court.

   The Supreme Court shall review the record of the proceedings on the law and facts and shall file a written opinion and judgment directing action as it deems just and proper, or reject or modify, in whole or in part, the recommendation of the commission.

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§ 5-119. Fees and expenses.

§ 5-119. Fees and expenses.

   The commission shall cause to be paid out of funds available for this purpose, all reasonable costs, fees, and expenses incurred in administering these rules. No cost shall be assessed against a judge or a justice who is exonerated. In cases where action is taken, costs shall be equitably assessed.

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§ 5-120. Judicial retirement for disability.

§ 5-120. Judicial retirement for disability.

   (A) Voluntary Application: Any judge, or the guardian of any judge, who has become or is likely to become permanently, mentally or physically, disabled as provided in Neb. Rev. Stat. § 24-709, may file an application with the commission, furnishing such information as the commission may require, including, but not limited to, the furnishing of physician's statements, and such other evidence and proof of disability as the commission deems necessary.

The commission may require the judge to be examined by a physician selected by the commission at a time and place designated by the commission. If the commission determines that a judge is so permanently disabled, the commission shall notify the judge and the Public Employees Retirement Board and the judge shall be placed on retirement at a time designated by the commission and receive a retirement annuity as provided in Neb. Rev. Stat. §§ 24-709 and 24-710.

   (B) On Motion of the Commission: The commission may, on its own motion, require a judge or the judge's guardian to furnish such information as the commission requires concerning the mental or physical condition of the judge, or require the judge to submit to a medical examination at a time and place as ordered by the commission under the provisions of Neb. Rev. Stat. § 24-722.

   In cases where the commission institutes proceedings on its own motion, the procedures set forth in §§ 5-105 through 5-119 shall be followed, except where clearly impracticable, inappropriate, or inconsistent.

   Upon an order for retirement by the commission, or by the Supreme Court when a commission order is reviewed by the court, the judge shall thereby be retired and the Public Employees Retirement Board promptly notified and the judge shall thereupon receive a retirement annuity the same as if the judge had been retired by application as above set forth.

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§ 5-121. Confidentiality.

§ 5-121. Confidentiality.

   (A) All papers filed with and proceedings before the commission or masters appointed by the Supreme Court prior to a reprimand or formal hearing shall be confidential. However, the confidentiality of such papers and proceedings may be waived in writing by a judge or a former judge

   (1) if the existence of the investigation or complaint has become publicly known, so that the results of the action of the commission can also be made public, or

   (2) if the judge or former judge is an applicant for judicial office, so that the existence of any pending complaints can be made known to the appropriate judicial nominating commission.

   (B) Even in the absence of such written waiver by a judge or former judge, the commission may immediately forward a copy of any complaint to such judge if the complainant makes a copy of such complaint public.

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§ 5-122. Claims of discrimination.

§ 5-122. Claims of discrimination.

   When any matter is filed with the commission, any member of the commission, or the secretary of the commission in which an allegation is made that a judge has committed an act in violation of the Supreme Court's Workplace Harassment Policy, that allegation shall be brought to the attention of the commission chairperson or the commission secretary within two (2) working days. The commission chairperson or the commission secretary shall:

   (A) Begin, or cause to begin, an investigation of the allegation(s) no later than ten (10) working days after the receipt of the complaint;

   (B) Send notice of the allegation(s) along with a warning against retaliation to the judge against whom the allegation(s) have been made no later than ten (10) working days after receipt of the complaint;

   (C) Notify the rest of the commission members of the allegation(s) within ten (10) working days; and

   (D) The commission, investigators, and commission staff shall in all ways expedite processing of allegation(s) made concerning workplace harassment, and the cause shall be advanced for consideration and disposition as speedily as possible.

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§ 5-123. Complaint; filing instructions; form.

§ 5-123. Complaint; filing instructions; form.

   (A) The following information is provided for your benefit in connection with the operation of the Judicial Qualifications Commission. This information does not comprise all of the laws with regard to the Nebraska Judicial Qualifications Commission and is intended simply to give you some general information. Should you have more specific questions with regard to the Judicial Qualifications Commission, you should contact: Commission Secretary, P.O. Box 98910, Lincoln, NE 68509; phone (402) 471-3730.

   (B) Article V, Section 28, of the Nebraska Constitution provides for the creation of a Commission on Judicial Qualifications.

   (C) Chairperson: Chief Justice of the Nebraska Supreme Court

   (D) Article V, Section 30, of the Nebraska Constitution and Neb. Rev. Stat. § 24-722 specifically set out the grounds for which a judge may be reprimanded, disciplined, censured, suspended without pay for a definite period of time not to exceed six months, or removed from office. The grounds are the following:

   (1) willful misconduct in office,

   (2) willful disregard of or failure to perform his or her duties,

   (3) habitual intemperance,

   (4) conviction of a crime involving moral turpitude,

   (5) disbarment as a member of the legal profession licensed to practice law in the State of Nebraska, or

   (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

   (E) The Commission is not authorized to review decisions made by a judge or to grant any form of relief arising out of a lawsuit except to the extent that the action of the judge action in the case constitutes a violation of one of the grounds set out above.

   (F) Upon receiving the complaint, the Commission is authorized to make such investigation as it deems appropriate under the circumstances and upon a finding of probable cause, may reprimand the judge or may order a formal hearing to be held before it concerning the reprimand, discipline, censure, suspension, removal, or retirement of such judge. After a formal hearing, the Commission must find that the charges are established by clear and convincing evidence. If it finds that such charges are established by clear and convincing evidence, it then recommends to the Supreme Court what action should be taken. The Supreme Court then reviews the record and makes such determination as it finds just and proper.

   (G) All papers filed with and proceedings before the Commission, prior to any formal open hearing, are confidential and all testimony given before the Commission is deemed a privileged communication.

   NO PARTICULAR FORM NEED BE USED WHEN FILING A COMPLAINT. THE ATTACHED FORM IS PROVIDED FOR YOUR CONVENIENCE. YOU NEED NOT FILL IT OUT IF YOU DESIRE NOT TO AND MAY MAKE COMPLAINT BY SIMPLY SENDING A HANDWRITTEN LETTER TO THE COMMISSION OR ANY MEMBER THEREOF.

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Article 2: [Reserved.]

Article 2: [Reserved.] unanimous

Article 3: Nebraska Revised Code of Judicial Conduct. (Effective January 1, 2011.)

Article 3: Nebraska Revised Code of Judicial Conduct. (Effective January 1, 2011.) unanimous

Revisor's note.

Revisor's note.

   The Nebraska Revised Code of Judicial Conduct is placed in the Nebraska Court Rules at Chapter 5, Judges, Article 3, Nebraska Revised Code of Judicial Conduct. As with the Nebraska Rules of Professional Conduct, the Nebraska Revised Code of Judicial Conduct has been codified by section numbers reflecting its location at Chapter 5, Article 3, but will retain the 1.1 through 4.5 numbering system used in the 2007 ABA Model Code of Judicial Conduct which was the prototype for the Nebraska Revised Code. Thus, for example, Rule 1.1 of the 2007 ABA Model Code becomes Neb. Rev. Code of Judicial Conduct § 5-301.1, and Rule 4.5 becomes § 5-304.5. References within the Rules and the Comments remain unchanged so, for example, the reader may interpret a reference to Rule 2.3 and find it at Neb. Rev. Code of Judicial Conduct § 5-302.3.

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Preamble.

Preamble.

   [1] An independent, fair and impartial judiciary is indispensable to our system of justice. The Nebraska legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

   [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

   [3] The Nebraska Revised Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

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Scope.

Scope.

   [1] The Nebraska Revised Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate.

   [2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as "may" or "should," the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion.

   [3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term "must," it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue.

   [4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.

   [5] The Rules of the Nebraska Revised Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions.

   [6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.

   [7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.

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Terminology.

Terminology.

   The first time any term listed below is used in a Rule in its defined sense, it is followed by an asterisk (*).

   "Appropriate authority" means the Nebraska Commission on Judicial Qualifications and the Nebraska Supreme Court Counsel for Discipline. See Rules 2.14 and 2.15.

   "Compensation" for purposes of Rules 3.123.15, and 3.16 means any money or thing of value received, or to be received as a claim on future services, whether in the form of a fee, salary, expense, allowance, forbearance, forgiveness, interest, dividend, royalty, rent, capital gain, or any other form of recompense then constituting income under the Internal Revenue Code. The income must, however, be for services and does not include income, interest, or dividends received by reason of investment.

   "Contribution" means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial expenditure. See Rules 3.73.16, 4.1, and 4.4.

   "De minimis" means an insignificant interest that could not raise a reasonable question regarding the judge's impartiality. See Rule 2.11.

   "Domestic partner" means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married. See Rules 2.113.13, and 3.14.

   "Economic interest" means ownership of more than a de minimis legal or equitable interest. Except for situations in which the judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:
   (1) an interest in the individual holdings within a mutual or common investment fund;
   (2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, an officer, an advisor, or other participant;
   (3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or
   (4) an interest in the issuer of government securities held by the judge.
See Rules 1.32.11, and 3.2.

   "Fiduciary" includes relationships such as personal representative, conservator, attorney in fact, executor, administrator, trustee, or guardian. See Rules 2.113.2, and 3.8.

   "Fourth degree of relationship" includes the following persons: great-great-grandparent, great-uncle or great-aunt, brother, sister, great-great-grandchild, grand nephew or grand niece, or first cousin. See Rule 2.11.

   "Gift" for purposes of Rules 3.133.15, and 3.16 means a payment, subscription, advance, forbearance, rendering or deposit of money, services, or anything of value, unless consideration of equal or greater value is given therefor. Gift shall not include a commercially reasonable loan made in the ordinary course of business; a gift received from a member of the judge's family*; a breakfast, luncheon, or dinner, or other refreshments consisting of food and beverage provided for immediate consumption; or the occasional provision of transportation within the State of Nebraska.

   "Impartial," "impartiality," and "impartially" mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, or their representatives, as well as maintenance of an open mind in considering issues that may come before a judge. See Canons 12, and 4, and Rules 1.22.22.102.112.133.13.73.123.134.1, and 4.2.  

   "Impending matter" is a matter that is imminent or expected to occur in the near future. See Rules 2.92.103.133.15, and 4.1.

   "Impropriety" includes conduct that violates the law, except for traffic violations unless they also included a potential jail sentence, court rules, or provisions of this Code, and conduct that undermines a judge's independence, integrity, or impartiality. See Canon 1 and Rule 1.2.

   "Independence" means a judge's freedom from influence or controls other than those established by law. See Canons 1 and 4, and Rules 1.23.13.73.123.13, and 4.2.

   "Integrity" means probity, fairness, honesty, uprightness, and soundness of character. See Canon 1 and Rules 1.23.13.73.123.13, and 4.2.

   "Judicial candidate" means any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office. See Rules 2.114.14.2, and 4.4.

   "Knowingly," "knowledge," "known," and "knows" mean actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. See Rules 2.112.152.163.23.6, and 4.1.

   "Law" encompasses all court rules adopted by the Nebraska Supreme Court, including the Workplace Harassment Policy and Drug-Free Workplace Policy, as well as statutes, constitutional provisions, and decisional law. See Rules 1.12.12.22.62.72.93.13.23.43.73.93.123.133.144.14.24.34.4, and 4.5.

   "Member of the candidate's family" means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the candidate maintains a close familial relationship.

   "Member of the judge's family" means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Rules 3.73.83.10, and 3.11.

   "Member of a judge's family residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household. See Rules 2.113.13, and 3.15.

   "Nonpublic information" means information that is not available to the public. Nonpublic information may include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Rule 3.5.

   "Pending matter" is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.92.103.133.15, and 4.1.

   "Personally solicit" means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication. See Rule 4.1.

   "Political organization" means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office. For purposes of this Code, the term does not include a judicial candidate's campaign committee created as authorized by Rule 4.4. See Rules 4.1 and 4.2.

 

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Application.

Application.

I. Applicability of this Code.

(A) All judges appointed pursuant to Neb. Const. art. V, § 21, acting judges of the Workers' Compensation Court, clerk magistrates, child support referees, and referees in civil and disciplinary cases shall comply with this Code except as provided below. In addition, candidates for appointment to judicial office shall comply with Rules 4.1 through 4.5.

(B) Parts II and III of this section indentify those provisions that apply to part-time child support referees, part-time clerk magistrates, referees, and retired judges.

II. Part-time child support referees, part-time clerk magistrates, and referees.
(A) Part-time child support referees are not required to comply with Rules 3.43.83.93.103.11(B)3.11(C)(2), or 3.11(D) and shall not practice law in the court upon which they serve, but may practice law in any other court in matters not related to any proceedings in which they have served as child support referees.

(B) Referees, appointed in civil or disciplinary proceedings, while acting as such, are not required to comply with Rules 3.43.83.93.103.11(B)3.11(C)(2)3.11(D)3.14(C), or 3.15. Persons who have served as such a referee shall not act as lawyers in any proceeding in which they have served as referees or in any related proceedings.

(C) Part-time clerk magistrates are not required to comply with Rules 3.43.83.93.103.11(B)3.11(C)(2)3.11(D) and shall not practice law in the court in which they serve, but may practice law in any other court in matters not related to any proceedings in which they have served as a clerk magistrate.

III. Retired judges.
(A) A retired judge who does not file with the Nebraska Supreme Court a statement of consent to be recalled for temporary judicial service or who is ineligible for judicial service need not comply with this Code, except as specifically provided.

(B) A retired judge who consents to be recalled for temporary judicial service shall comply with this Code. However, such judge is not required to comply with Rules 3.43.83.9, or 3.12. A retired judge who is subject to recall shall not practice law and shall refrain from accepting assignment in any case in which the retired judge's financial or business dealings, investments, or other extrajudicial activities might be directly or indirectly affected.

(C) A retired judge shall not act as a lawyer in any proceeding in which the retired judge has served as a judge or in any other proceeding related thereto.

(D) A retired judge is a person who has voluntarily terminated full-time judicial service or has been retired for disability.

IV. Time for compliance.
A person to whom this Code becomes applicable shall comply immediately with all provisions of this Code except Rules 3.83.11(A), and 3.11(B) and shall comply with these sections as soon as reasonably possible and shall do so in any event within the period of 1 year after assuming office.

Application I.(B) and II.(B) amended December 22, 2010, effective January 1, 2011.

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§ 5-301.0. Canon 1. A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

§ 5-301.0. Canon 1. A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

(cite as Neb. Rev. Code of Judicial Conduct §)

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§ 5-301.1. Compliance with the law.

§ 5-301.1. Compliance with the law.

   A judge shall comply with the law,* including the Code of Judicial Conduct.

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§ 5-301.2. Promoting confidence in the judiciary.

§ 5-301.2. Promoting confidence in the judiciary.

   A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety* and the appearance of impropriety.

COMMENT

   [1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.

   [2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.

   [3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms.

   [4] Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.

   [5] Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

   [6] A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code.

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§ 5-301.3. Avoiding abuse of the prestige of judicial office.

§ 5-301.3. Avoiding abuse of the prestige of judicial office.

   A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so.

COMMENT

   [1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business.

   [2] Although a judge should be sensitive to possible abuse of the prestige of office, a judge may provide a reference or recommendation for an individual based upon the judge's personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.

   [3] Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees, and by responding to inquiries from such entities concerning the professional qualifications of a person being considered for judicial office.

   [4] Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law. A judge should not permit anyone associated with the publication of such materials to exploit the judge's office in a manner that violates this Rule or other applicable law. In contracts for publication of a judge's writing, the judge should retain sufficient control over the advertising to avoid such exploitation.

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§ 5-302.0. Canon 2. A judge shall perform the duties of judicial office impartially, competently, and diligently.

§ 5-302.0. Canon 2. A judge shall perform the duties of judicial office impartially, competently, and diligently.

(cite as Neb. Rev. Code of Judicial Conduct §)

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§ 5-302.1. Giving precedence to the duties of judicial office.

§ 5-302.1. Giving precedence to the duties of judicial office.

   The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge's personal and extrajudicial activities.

COMMENT

   [1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

   [2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

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§ 5-302.2. Impartiality and fairness.

§ 5-302.2. Impartiality and fairness.

   A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*

COMMENT

   [1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

   [2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

   [3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this Rule.

   [4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard. On the other hand, judges should resist unreasonable demands for assistance that might give an unrepresented party an unfair advantage.

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§ 5-302.3. Bias, prejudice, and harassment.

§ 5-302.3. Bias, prejudice, and harassment.

   (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

   (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

   (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

   (D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding. 

COMMENT

   [1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.

   [2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.

   [3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.

   [4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

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§ 5-302.4. External influences on judicial conduct.

§ 5-302.4. External influences on judicial conduct.

   (A) A judge shall not be swayed by public clamor or fear of criticism.

   (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.

   (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

COMMENT

   [1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.

 

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§ 5-302.5. Competence, diligence, and cooperation.

§ 5-302.5. Competence, diligence, and cooperation.

   (A) A judge shall perform judicial and administrative duties, competently and diligently.

   (B) A judge shall cooperate with other judges and court officials in the administration of court business.

COMMENT

   [1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge's responsibilities of judicial office.

   [2] A judge should seek the necessary docket time, court staff, expertise, and resources to discharge all adjudicative and administrative responsibilities.

   [3] Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end.

   [4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

   NOTE: The Nebraska Supreme Court has adopted case progression standards at Neb. Ct. R. §§ 6-101 through 6-104, and has adopted a rule concerning the filing of cases under advisement reports, as set forth in Appendix B herein.

§ 5-302.5 amended January 31, 2018.

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§ 5-302.6. Ensuring the right to be heard.

§ 5-302.6. Ensuring the right to be heard.

   (A) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.*

   (B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.

COMMENT

   [1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.

   [2] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party's right to be heard according to law. The judge should keep in mind the effect that the judge's participation in settlement discussions may have, not only on the judge's own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or criminal.

   [3] Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge's best efforts, there may be instances when information obtained during settlement discussions could influence a judge's decision making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate. See Rule 2.11(A)(1).

   [4] Mediation, which is court ordered according to law, does not constitute coercion within the meaning of this rule.

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§ 5-302.7. Responsibility to decide.

§ 5-302.7. Responsibility to decide.

   A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.*

COMMENT

   [1] Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues. Administrative reassignment for purposes of judicial efficiency is not prohibited by this rule.

 

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§ 5-302.8. Decorum, demeanor, and communication with jurors.

§ 5-302.8. Decorum, demeanor, and communication with jurors.

   (A) A judge shall require order and decorum in proceedings before the court.

   (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's direction and control.

   (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

COMMENT

   [1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

   [2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case. However a judge may express appreciation to jurors for their service to the judicial system and the community.

   [3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case.

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§ 5-302.9. Ex parte communications.

§ 5-302.9. Ex parte communications.

   (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* except as follows:

   (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

   (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

   (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

   (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

   (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

   (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

   (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so.

   (6) A judge may initiate, permit, or consider ex parte communications when serving on therapeutic or problem-solving courts, mental health courts, or drug courts, if such communications are authorized by protocols known and consented to by the parties. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

   (7) A judge may initiate, permit, or consider ex parte communications with persons supervising individuals placed on pretrial release programs or house arrest programs, if such communications are authorized by protocols known and consented to by the parties.

   (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

   (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

   (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control.

COMMENT

   [1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

   [2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

   [3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

   [4] [Reserved.]

   [5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.

   [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

   [7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

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§ 5-302.10. Judicial statements on pending and impending cases.

§ 5-302.10. Judicial statements on pending and impending cases.

   (A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

   (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

   (C) A judge shall require court staff, court officials, and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).

   (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.

   (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge's conduct in a matter.

COMMENT

   [1] This Rule's restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary. When speaking, writing, or teaching about issues in cases or matters, a judge must take care that the judge’s comments do not impair public confidence in the independence, integrity, or impartiality of the judiciary.

   [2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly.

   [3] Depending upon the circumstances, and subject to the requirements of paragraph (A), the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge's conduct in a matter.

   [4] Judges may engage in public comment on issues that surround the general administration of justice and civics education. The judiciary is uniquely qualified to provide leadership in (a) engaging in community outreach activities to promote the fair administration of justice; (b) identifying and resolving issues of access to justice; (c) developing civics education programs and scholarly presentations on the legal profession; and (d) convening, participating in or assisting in advisory committees and community collaborations devoted to the improvement of the law, the legal system, the provision of legal services, and /or the administration of justice.

  [5] Paragraph (D) allows a judge to provide context about the court’s actions or explain court procedures and general legal principles through community outreach to the media or the public. A judge may, including in a pending* or impending* matter, provide additional context to media reports by referencing information available in pleadings, documentary evidence, and proceedings held in open court.

§ 5-302.10 amended May 7, 2025.

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§ 5-302.11. Disqualification.

§ 5-302.11. Disqualification.

   (A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned, including but not limited to the following circumstances:

   (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge* of facts that are in dispute in the proceeding.

   (2) The judge knows* that the judge, the judge's spouse or domestic partner,* or a person within the fourth degree of relationship* to either of them, or the spouse or domestic partner of such a person is:

   (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

   (b) acting as a lawyer in the proceeding;

   (c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or

   (d) likely to be a material witness in the proceeding.

   (3) The judge knows that he or she, individually or as a fiduciary,* or the judge's spouse, domestic partner, parent, or child, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding.

   (4) [Reserved.]

   (5) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

   (6) The judge:

   (a) served as a lawyer or mediator in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer or mediator in the matter during such association;

   (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

   (c) was a material witness concerning the matter; or

   (d) previously presided as a judge over the matter in another court or in any adjudicatory capacity.

   (B) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse or domestic partner and minor children residing in the judge's household.

   (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into a permanent record of the proceeding.

 

COMMENT

   [1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term "recusal" is used interchangeably with the term "disqualification."

   [2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

   [3] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

   [4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.

   [5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

   [6] "Economic interest," as set forth in the Terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

   (1) an interest in the individual holdings within a mutual or common investment fund;

   (2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant;

   (3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or

   (4) an interest in the issuer of government securities held by the judge.

   [7] Official communications received in the course of performing judicial functions as well as information gained through training programs and from experience do not in themselves create a basis for disqualification.

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§ 5-302.12. Supervisory duties.

§ 5-302.12. Supervisory duties.

   (A) A judge shall require court staff, court officials, and others subject to the judge's direction and control to act in a manner consistent with the judge's obligations under this Code.

   (B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them.

COMMENT

   [1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge's direction or control. A judge may not direct court personnel to engage in conduct on the judge's behalf or as the judge's representative when such conduct would violate the Code if undertaken by the judge.

   [2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.

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§ 5-302.13. Administrative appointments.

§ 5-302.13. Administrative appointments.

   (A) In making administrative appointments, a judge:

   (1) shall exercise the power of appointment impartially* and on the basis of merit; and

   (2) shall avoid nepotism, favoritism, and unnecessary appointments.

   (B) [Reserved.]

   (C) A judge shall not approve compensation of appointees beyond the fair value of services rendered.

COMMENT

   [1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by paragraph (A).

   [2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the fourth degree of relationship of either the judge or the judge's spouse or domestic partner, or the spouse or domestic partner of such relative.

   [3] [Reserved.]

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§ 5-302.14. Disability and impairment.

§ 5-302.14. Disability and impairment.

   A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.

COMMENT

   [1] "Appropriate action" means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program.

   [2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge's responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge's attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 2.15.

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§ 5-302.15. Responding to judicial and lawyer misconduct.

§ 5-302.15. Responding to judicial and lawyer misconduct.

   (A) A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge's honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.*

   (B) A judge having knowledge that a lawyer has committed a violation of the Nebraska Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.

   (C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

   (D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Nebraska Rules of Professional Conduct shall take appropriate action.

   (E) Members of the Nebraska Judicial Ethics Committee are excepted from Rule 2.15(A) and (C) concerning information obtained from judges seeking an advisory opinion.

COMMENT

   [1] Taking action to address known misconduct is a judge's obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one's judicial colleagues or members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.

   [2] A judge who does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has committed a violation of the Nebraska Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.

 

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§ 5-302.16. Cooperation with disciplinary authorities.

§ 5-302.16. Cooperation with disciplinary authorities.

   (A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies.

   (B) A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.

COMMENT

   [1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in paragraph (A), instills confidence in judges' commitment to the integrity of the judicial system and the protection of the public.

 

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§ 5-303.0. Canon 3. A judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

§ 5-303.0. Canon 3. A judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

(cite as Neb. Rev. Code of Judicial Conduct §)

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§ 5-303.1. Extrajudicial activities in general.

§ 5-303.1. Extrajudicial activities in general.

   A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not:

   (A) participate in activities that will interfere with the proper performance of the judge's judicial duties;

   (B) participate in activities that will lead to frequent disqualification of the judge;

   (C) participate in activities that would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality*;

   (D) engage in conduct that would appear to a reasonable person to be coercive; or

   (E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.

COMMENT

   [1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.

   [2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.

   [3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

   [4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge's solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.

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§ 5-303.2. Appearances before governmental bodies and consultation with government officials.

§ 5-303.2. Appearances before governmental bodies and consultation with government officials.

   A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except:

   (A) in connection with matters concerning the law,* the legal system, or the administration of justice;

   (B) in connection with matters about which the judge acquired knowledge* or expertise in the course of the judge's judicial duties; or

   (C) when the judge is acting pro se in a matter involving the judge's legal or economic interests,* or when the judge is acting in a fiduciary* capacity.

COMMENT

   [1] Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials.

   [2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, prohibiting judges from using the prestige of office to advance their own or others' interests, Rule 2.10, governing public comment on pending and impending matters, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality.

   [3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office.

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§ 5-303.3. Testifying as a character witness.

§ 5-303.3. Testifying as a character witness.

   A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

COMMENT

   [1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

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§ 5-303.4. Appointments to governmental positions.

§ 5-303.4. Appointments to governmental positions.

   A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law,* the legal system, or the administration of justice.

COMMENT

   [1] This Rule implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

   [2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position.

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§ 5-303.5. Use of nonpublic information.

§ 5-303.5. Use of nonpublic information.

   A judge shall not intentionally disclose or use nonpublic information* acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties.

COMMENT

   [1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to his or her judicial duties.

   [2] This rule is not intended, however, to affect a judge's ability to act on information as necessary to protect the health or safety of the judge or a member of a judge's family, court personnel, or other judicial officers if consistent with other provisions of this Code.

   [3] This rule does not prohibit the judge from acting on or disclosing nonpublic information to prevent reasonably certain death or substantial bodily harm, if consistent with other provisions of the Code.

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§ 5-303.6. Affiliation with discriminatory organizations.

§ 5-303.6. Affiliation with discriminatory organizations.

   (A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.

   (B) A judge shall not use the benefits or facilities of an organization if the judge knows* or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge's attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices.

COMMENT

   [1] A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired.

   [2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization's current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.

   [3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

   [4] A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.

   [5] This Rule does not apply to national or state military service.

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§ 5-303.7. Participation in educational, religious, charitable, fraternal, or civic organizations and activities.

§ 5-303.7. Participation in educational, religious, charitable, fraternal, or civic organizations and activities.

   (A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law,* the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

   (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization's or entity's funds;

   (2) soliciting contributions* for such an organization or entity, but only from members of the judge's family,* or from judges over whom the judge does not exercise supervisory or appellate authority;

   (3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;

   (4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the fund-raising is incidental or the event concerns the law, the legal system, or the administration of justice; provided participation does not reflect adversely on the judge's independence,* integrity,* or impartiality.*

   (5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

   (6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

   (a) will be engaged in proceedings that would ordinarily come before the judge; or

   (b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

   (B) A judge may encourage lawyers to provide pro bono legal services.

   (C) Subject to the preceding requirements, a judge may:

   (1) Provide leadership in identifying and addressing issues involving equal access to the justice system; develop public education programs; engage in activities to promote the fair administration of justice; and convene or participate or assist in advisory committees and community collaborations devoted to the improvement of the law, the legal system, the provision of services, or the administration of justice.

   (2) Endorse projects and programs directly related to the law, the legal system, the administration of justice, and the provision of services to those coming before the courts, and may actively support the need for funding of such projects and programs.

   (3) Participate in programs concerning the law or which promote the administration of justice.

COMMENT

   [1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations. An organization concerned with the law, the legal system, and the administration of justice may include an accredited institution of legal education, whether for profit or not for profit. A charitable organization may include a private family foundation which exists for charitable purposes.

   [2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge's participation in or association with the organization, would conflict with the judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity, and impartiality.

   [3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph (A)(4). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

   [4] Identification of a judge's position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge's title or judicial office if comparable designations are used for other persons.

   [5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono legal work, and participating in events recognizing lawyers who have done pro bono work.

   [6] A judge may be an announced speaker at a fund-raising event benefiting indigent representation, scholarships for law students, or accredited institutions of legal education.

   [7] A judge may speak, write, lecture, teach and participate in other extrajudicial activities concerning the law, the legal system, the administration of justice and nonlegal subjects, subject to the requirements of this Code.

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§ 5-303.8. Appointments to fiduciary positions.

§ 5-303.8. Appointments to fiduciary positions.

   (A) A judge shall not accept appointment to serve in a fiduciary* position, such as personal representative, executor, administrator, trustee, guardian, conservator, attorney in fact, or other representative, except for the estate, trust, or person of a member of the judge's family,* and then only if such service will not interfere with the proper performance of judicial duties.

   (B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction.

   (C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally.

   (D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge.

COMMENT

   [1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge's obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

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§ 5-303.9. Service as arbitrator or mediator.

§ 5-303.9. Service as arbitrator or mediator.

   A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge's official duties unless expressly authorized by law.*

COMMENT

   [1] This Rule does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law.

 

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§ 5-303.10. Practice of law.

§ 5-303.10. Practice of law.

   A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family,* but is prohibited from serving as the family member's lawyer in any forum.

COMMENT

   [1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge's personal or family interests. See Rule 1.3.

   [2] This Rule does not prohibit the practice of law pursuant to military service.

 

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§ 5-303.11. Financial, business, or remunerative activities.

§ 5-303.11. Financial, business, or remunerative activities.

   (A) A judge may hold and manage investments of the judge and members of the judge's family.*

   (B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:

   (1) a business closely held by the judge or members of the judge's family; or

   (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family.

   (C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:

   (1) interfere with the proper performance of judicial duties;

   (2) lead to frequent disqualification of the judge;

   (3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or

   (4) result in violation of other provisions of this Code.

   (D) As soon as practicable without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule.

COMMENT

   [1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties. See Rule 2.1. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 1.3 and 2.11.

   [2] [Reserved.]

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§ 5-303.12. Compensation for extrajudicial activities.

§ 5-303.12. Compensation for extrajudicial activities.

   A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law* unless such acceptance would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality.*

COMMENT

   [1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.

   [2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 3.15.

 

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§ 5-303.13. Acceptance and reporting of gifts, loans, bequests, benefits, or other things of value.

§ 5-303.13. Acceptance and reporting of gifts, loans, bequests, benefits, or other things of value.

   (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality.*

   (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance:

   (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards;

   (2) gifts, loans, bequests, benefits, or other things of value from a member of the judge's family*;

   (3) ordinary social hospitality;

   (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges;

   (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges;

   (6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria;

   (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or

   (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other member of a judge's family residing in the judge's household,* but that incidentally benefit the judge.

   (C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15:

   (1) gifts incident to a public testimonial;

   (2) invitations to the judge and the judge's spouse, domestic partner, or guest to attend without charge:

   (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or

   (b) an event associated with any of the judge's educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and

   (3) gifts, loans, bequests, benefits, or other things of value from any source other than a member of the judge's family.

COMMENT

   [1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge's decision in a case. This Rule imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge's independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is either prohibited under paragraph (A) from accepting the gift, or required under paragraph (C) to publicly report it.

   [2] [Reserved.]

   [3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses.

   [4] This Rule applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge's spouse, domestic partner, or member of the judge's family residing in the judge's household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced. A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits.

   [5] This Rule does not apply to contributions to a judge's campaign for judicial office. Such contributions are governed by other Rules of this Code, including Rules 4.3 and 4.4.

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§ 5-303.14. Reimbursement of expenses and waivers of fees or charges.

§ 5-303.14. Reimbursement of expenses and waivers of fees or charges.

   (A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge's employing entity, if the expenses or charges are associated with the judge's participation in extrajudicial activities permitted by this Code.

   (B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge's spouse, domestic partner,* or guest.

   (C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge's spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15.

COMMENT

   [1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.

   [2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge's decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

   [3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:

   (a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;

   (b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

   (c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;

   (d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

   (e) whether information concerning the activity and its funding sources is available upon inquiry;

   (f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge's court, thus possibly requiring disqualification of the judge under Rule 2.11;

   (g) whether differing viewpoints are presented; and

   (h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.

   NOTE:  The Nebraska Supreme Court has adopted as part of this Code a "Judicial Financial Interest Statement," as set forth at Appendix C herein, which shall be used for reporting purposes.

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§ 5-303.15. Reporting requirements.

§ 5-303.15. Reporting requirements.

   (A) A judge shall publicly report the amount or value of the following, unless, with respect to subparagraphs (1), (2), and (3) below, the amount or value of such items, alone or in the aggregate with other items received from the same source in the same calendar year, does not exceed $100 in the case of compensation, a gift, bequest, benefit, or other thing of value or does not exceed $1000 in the case of a loan:

   (1) compensation received for extrajudicial activities as permitted by Rule 3.12;

   (2) gifts and other things of value as permitted by Rule 3.13(C);

   (3) reimbursement of expenses and waiver of fees or charges permitted by Rule 3.14(A); and

   (4) regardless of amount, compensation, fees, honorariums, gratuities, gifts, or contributions received pursuant to Rule 3.16.

   (B) A judge shall publicly report information relating to:

   (1) real property in the judge's name or in which the judge has a direct ownership interest, except real estate valued at less than $1,000 and the judge's personal residential real estate ("personal residential real estate" refers to the judge's  principal and/or recreational dwelling-houses and adjacent land used for household or recreational purposes, such as lawns and gardens);

   (2) other financial interests and property held during the reporting period with a fair market value of $1,000 or more, except benefits offered by the State of Nebraska to its employees, including retirement plans, deferred compensation plans, health savings accounts, and flexible spending accounts, and household goods, personal automobiles, and other tangible personal property unless such property was held primarily for sale or exchange;

   (3) creditors to whom $1,000 or greater was owed or guaranteed by the judge or a member of the judge's family residing in the judge’s household,* except:

   (a) loans from a member of the judge's family*;

   (b) land contracts which have been recorded with the County Clerk or Register of Deeds; and

   (c) accounts payable, debts arising out of retail installment transactions, and loans from lending institutions in their regular course of business, if such accounts, debts, and loans are made available on the same terms to similarly situated persons who are not judges.

   (C) When public reporting is required by paragraph (A), a judge shall report the amount or value received; the date, place, and nature of the activity for which the judge received any compensation; the description of any gift, loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees or charges.

   (D) The public report required by paragraphs (A) and (B) shall be made at least annually on the Judicial Financial Interest Statement at Appendix B herein.

   (E) Reports made in compliance with this Rule shall be filed no later than May 1 of each year. Such reports shall be created and filed as public documents through an electronic filing system provided by the Nebraska Supreme Court and will be publicly accessible in the Office of the Clerk of the Supreme Court.

   NOTE: The Nebraska Supreme Court has adopted as part of this Code a "Judicial Financial Interest Statement," as set forth at Appendix B herein, which shall be used for reporting purposes.

§ 5-303.15 amended September 14, 2022, effective January 1, 2023.

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§ 5-303.16. Conducting marriage ceremonies.

§ 5-303.16. Conducting marriage ceremonies.

   (A) The performance of marriage ceremonies by a judge during courthouse hours is permitted if there is no gift, honorarium, or payment of any kind received for such service. Courthouse hours include all hours when the court is open and in session, or the clerk's office is open, including noon/lunch hours.

   (B) A judge may accept a reasonable fee, honorarium, gratuity, gift, or contribution* to perform a marriage ceremony during noncourthouse hours, whether the ceremony is performed in the court or away from the court.

   (C) Compensation, fees, honorarium, gratuities, gifts, or contributions derived from marriages shall be subject to public reporting. See Rule 3.15.

   (D) Compensation does not include a meal provided to the judge in connection with the celebration of the marriage.

§ 5-303.16 amended September 14, 2022, effective January 1, 2023.

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§ 5-304.0. Canon 4. A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

§ 5-304.0. Canon 4. A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

(cite as Neb. Rev. Code of Judicial Conduct §)

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§ 5-304.1. Political and campaign activities of judges and judicial candidates in general.

§ 5-304.1. Political and campaign activities of judges and judicial candidates in general.

   (A) Except as permitted by law,* or by Rules 4.24.3, and 4.4, a judge or a judicial candidate* shall not:

   (1) act as a leader in, or hold an office in, a political organization*;

   (2) make speeches on behalf of a political organization;

   (3) publicly endorse or oppose a candidate for any public office;

   (4) solicit funds for, pay an assessment to, or make a contribution* to a political organization or a candidate for public office;

   (5) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office;

   (6) publicly identify himself or herself as a candidate of a political organization;

   (7) seek, accept, or use endorsements from a political organization;

   (8) personally solicit* or accept campaign contributions other than through a campaign committee authorized by Rule 4.4;

   (9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others;

   (10) use court staff, facilities, or other court resources in a campaign for judicial office;

   (11) knowingly,* or with reckless disregard for the truth, make any false or misleading statement;

   (12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or

   (13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

   (B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A).

COMMENT

General Considerations

   [1] Even when subject to retention election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges.

   [2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.

Participation in Political Activities

   [3] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations.

   [4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf. See Rules 4.2(B)(2) and 4.2(B)(3).

   [5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member's candidacy or other political activity.

   [6] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3). However, judges and judicial candidates should exercise caution when attending and participating in a caucus in a manner which would conflict with a judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity and impartiality.

Statements and Comments Made During a Campaign for Judicial Office

   [7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.

   [8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate's integrity or fitness for judicial office. As long as the candidate does not violate paragraphs (A)(11)(A)(12), or (A)(13), the candidate may make a factually accurate public response. In addition, when an independent third party has made unwarranted attacks on a candidate's opponent, the candidate may disavow the attacks, and request the third party to cease and desist.

   [9] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although it is preferable for someone else to respond if the allegations relate to a pending case.

   [10] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.

Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office

   [11] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to retention election. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to make informed electoral choices.

   [12] Paragraph (A)(13) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

   [13] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

   [14] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.

   [15] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates' responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate's independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.

Special Considerations for Political Activities of Judicial Candidates

   [16] Paragraphs (A)(3)(A)(4), and (A)(8) are substantially similar to Code provisions struck down as unconstitutional, at least as to judicial candidates, in Wersal v. Sexton, 613 F.3d 821 (8th Cir. 2010), by a panel of the Eighth Circuit Court of Appeals in a 2 to 1 decision. A Petition for Rehearing En Banc was filed in that case on August 26, 2010. On October 15, 2010, the Court granted appellees' petition for rehearing en banc, vacated the opinion and judgment, and scheduled oral argument for January 10, 2011. The outcome of this case may ultimately affect the applicability of the prohibitions in paragraphs (A)(3)(A)(4), and (A)(8) as to judicial candidates in Nebraska, thus further inquiry into the status of this case should be made with respect to application of these paragraphs.

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§ 5-304.2. Political and campaign activities of judicial candidates in public elections.

§ 5-304.2. Political and campaign activities of judicial candidates in public elections.

   (A) A judicial candidate* in a retention election shall:

   (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary;

   (2) comply with all applicable election, election campaign, and election campaign fund-raising laws and regulations;

   (3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination; and

   (4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1.

   (B) A candidate for retention election may, unless prohibited by law,* when the judge's candidacy has drawn active opposition:

   (1) establish a campaign committee pursuant to the provisions of Rule 4.4;

   (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature;

   (3) [Reserved];

   (4) attend or purchase tickets for dinners or other events sponsored by a political organization* or a candidate for public office; and

   (5) seek, accept, or use endorsements from any person or organization other than a political organization.

   (6) [Reserved.]

   (C) [Reserved.]

COMMENT

   [1] Paragraph (B) permits judicial candidates in retention elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1. Candidates may not engage in these activities before the judge's candidacy has drawn active opposition.

   [2] Despite paragraph (B), judicial candidates for retention election remain subject to many of the provisions of Rule 4.1. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties. See Rule 4.1, paragraphs (A)(4)(A)(11), and (A)(13).

   [3] [Reserved.]

   [4] In retention elections, paragraph (B)(5) prohibits a candidate from seeking, accepting, or using nominations or endorsements from a political organization.

   [5] Judicial candidates are permitted to attend or purchase tickets for dinners and other events sponsored by political organizations.

   [6] [Reserved.]

   [7] [Reserved.]

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§ 5-304.3. Activities of candidates for appointive judicial office.

§ 5-304.3. Activities of candidates for appointive judicial office.

   A candidate for appointment to judicial office may:

   (A) except as prohibited by law,* communicate with the appointing authority, including any nominating commission; and

   (B) seek endorsements for the appointment from any person or organization other than a political organization.

COMMENT

   [1] When seeking support or endorsement, or when communicating directly with an appointing authority, a candidate for appointive judicial office must not make any pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. See Rule 4.1(A)(13).

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§ 5-304.4. Campaign committees.

§ 5-304.4. Campaign committees.

   (A) A judicial candidate* subject to retention election whose candidacy has drawn active opposition may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.*

   (B) A judicial candidate subject to retention election shall direct his or her campaign committee:

   (1) to solicit and accept only such campaign contributions* as are reasonable;

   (2) not to solicit or accept contributions for a candidate's current campaign more than six months before the applicable retention election, nor more than thirty days after the last election in which the candidate participated; and

   (3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions.

COMMENT

   [1] Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(8). This Rule recognizes that judicial candidates whose candidacy has drawn active opposition must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

   [2] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.

   [3] At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law. Although lawyers and others who might appear before a successful candidate for judicial office are permitted to make campaign contributions, the candidate should instruct his or her campaign committee to be especially cautious in connection with such contributions, so they do not create grounds for disqualification if the candidate is elected to judicial office. See Rule 2.11.

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§ 5-304.5 Activities of judges who become candidates for nonjudicial office.

§ 5-304.5 Activities of judges who become candidates for nonjudicial office.

   (A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law* to continue to hold judicial office.

   (B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code.

COMMENT

   [1] In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

   [2] The "resign to run" rule set forth in paragraph (A) ensures that a judge cannot use the judicial office to promote his or her candidacy, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the "resign to run" rule.

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CHAPTER 6: TRIAL COURTS

CHAPTER 6: TRIAL COURTS

(cite as Neb. Ct. R. §, unless otherwise noted)

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Article 1: Case Progression Standards.

Article 1: Case Progression Standards. unanimous

§ 6-101. Time for disposition of cases in district and county courts.

§ 6-101. Time for disposition of cases in district and county courts.

   (A) Cases should be disposed of according to the following time standards:

 ABCD
 Standard
Disposed In
Disposed InDisposed InExcluded Time
District Court
Civil Non-Jury
NA90%
1 year
98%
18 mos.
 
District Court
Civil Jury
 90%
1 year
98%
18 mos.
 
Domestic RelationsNA50%
180 days
95%
1 year
Mediation
Parent Education
Post Judgment Motions--Modification & Post Convictions 50%
180 days
95%
1 year
 
County Court
Civil Non-Jury
 90%
6 mos.
99%
9 mos.
 
County Court
Civil Jury
 90%
12 mos.
99%
18 mos.
 
Landlord/TenantRestitution
99% in 14 days
90%
60 days
Damages
99%
90 days
Damages
 
Small Claims  99%
60 days from Service
 
County Court
Protection Orders
  99%
30 Days
 
FelonyNA90%
6 mos.
98%
1 year
Warrant, Drug Court
County Court
Criminal
Misdemeanor & Traffic
90%
3 months
95%
6 months
99%
9 months
Warrant, Drug Court
Time from plea to sentencing
Guardianships/
Conservatorships
Uncontested
 90%
60 days
100%
120 days
 
G/C Contested--
Selection of
Fiduciary
 75%
90 days
100%
180 days
 

G/C Contested

Necessity of Appt.

 

75%

120 days

100%

240 days

 
Probate--No Federal Estate Tax 90%
12 Months
100%
18 months
 
Probate with Federal
Estate Tax
80%
15 months
90%
18 months
100%
24 months or within 45 days of IRS closing letter/final order in litigation
 
Appeals from County Court to District Court  98%
180 days
 

   The age of a case is measured from the time of filing to the date the trial court entered its judgment/decree, the case is dismissed, the petition is withdrawn, the case is transferred to another court on a change of venue, or the case is otherwise disposed, whichever occurs first. Not included for the purpose of determining the age of the case is the time the case is out of the control of the trial judge, such as the time a warrant is outstanding, a party is undergoing assessment or involved in drug court, a bankruptcy stay is in effect, or parties are pursuing court required mediation or parenting education.

   (B) Appropriate procedures should be implemented by the trial judge to meet these standards, and such procedures may include, but are not limited to, the following:

   (1) Early identification of cases that may be resolved without delay or that may be protracted, and a process whereby these cases are given special administrative attention when appropriate;

   (2) Timeframes for the completion of critical steps in the litigation process, including discovery;

   (3) Commencement of trials on a date certain, scheduled with adequate notice to all parties; judges should consider setting more than one trial on a date certain to ensure efficient use of judicial resources while minimizing the numbers of cases that must be reset;

   (4) Utilizing early progression orders and mandatory disclosures to shorten the discovery phase and minimize discovery disputes;

   (5) Firm, consistent procedures for minimizing continuances.

   (C) Each member of the bar shall cooperate with the judiciary in meeting these standards.

   (D) All cases shall be assigned to a judge.

§ 6-101 amended November 27, 2013; § 6-101(A) amended December 13, 2023, effective April 1, 2024.

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§ 6-102. Time for disposition of probate cases.

§ 6-102. Time for disposition of probate cases.

   Final disposition of probate cases with no federal estate tax return should be within 18 months from filing. When a federal estate tax return is required, final disposition should be within 24 months. A longer interval may be approved where deemed necessary because of extraordinary eventualities, such as exceptionally complicated discovery, stabilization or injury in personal injury cases, or settlement of financial affairs in complex cases.

§ 6-102 amended August 21, 2024.

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§ 6-103. Implementation assistance.

§ 6-103. Implementation assistance.

   (A) Assistance shall be provided to the courts with implementing these standards. The assistance shall include, but is not limited to, the following:

   (1) Provide management reports to assist judges in meeting standards;

   (2) Provide information and education on effective case management.

§ 6-103 amended November 27, 2013.

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§ 6-104. Time for disposition of juvenile cases.

§ 6-104. Time for disposition of juvenile cases.

    These standards are designed as tools to achieve the overall goals of efficiency, productivity, and access to justice, and are not intended as absolute requirements.

   (A) The following case progression standards shall apply to child welfare cases:

   (1) A temporary custody hearing should be held no later than 8 days after the child's removal.

   (2) Adjudication hearings in cases under Neb. Rev. Stat. § 43-247(3)(a) where children have been removed should be held within 60 days of the filing of the petition. Where the children have not been removed, or are returned home shortly after the filing of the petition, the adjudication hearing should occur within 90 days of the date of filing. If the termination of parental rights hearing is happening simultaneously or the case has complex issues or the service of process on a parent or child requires additional time, there can be an exception. In cases where families are participating in voluntary services where a dismissal is anticipated in the future, it would be permitted or allowed to regard the case as on hold, and therefore exempt from the progression standard, until dismissal.

   (3) A disposition hearing should be held within 45 days from the date of the adjudication hearing.

   (4) Review hearings should be held, on the record, every 6 months.

   (5) The time between the filing of a Motion to Terminate Parental Rights and submission for decision should be no more than 90 days. When an initial petition also includes a Motion to Terminate Parental Rights, it should be submitted to the court for decision within 180 days. If service on the parent is delayed, the 90-day or 180-day period may start once service is effected.

   (B) The following case progression standards shall apply to juvenile justice cases:

   (1)  Notwithstanding any federal or state law providing for a longer period, the juvenile shall not be held in detention for more than 48 hours without a probable cause finding being made by the appropriate judicial authority.

   Nothing contained in this rule shall prevent the judges of a separate juvenile court of any county in this state or the county judges having juvenile jurisdiction in any judicial district of this state from adopting a local rule providing for a probable cause finding to be made by the appropriate judicial authority in a timeframe of less than 48 hours nor shall this rule prevent such local rule from requiring the appropriate judicial authority to make a finding whether continued detention is a matter of immediate and urgent necessity because the juvenile is a danger to self or others or to property of others or is at risk for flight.

   (2) An adjudication hearing shall be held within 30 days from the initial date of detention if the juvenile remains detained after the filing of a delinquency petition or 14 days if the juvenile remains detained on a Motion to Revoke Probation.

   (3) The time between the filing of the petition and the adjudication for nondetained juveniles should be no more than 90 days for delinquency or status offenses and no more than 30 days for resolutions of Motions to Revoke Probation for nondetained juveniles.

   (4) A disposition hearing should be held within 45 days from the date of the adjudication hearing.

Rule 3(A) - (D) adopted March 19, 1997. Renumbered and codified as § 6-103, effective July 18, 2008; § 6-103 renumbered to § 6-104 November 27, 2013; § 6-104(A) amended December 18, 2013; § 6-104 amended September 20, 2017.

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§ 6-105. Cases under advisement.

§ 6-105. Cases under advisement.

   (A) No later than the 5th day of each month, each judge shall submit a report form with the State Court Administrator which sets forth:

   (1) Whether any matter has been under advisement for more than 90 days. For district court judges, this includes appeals from county court to district court.

   (2) If so, the title and number of the case, the nature of the matter for decision, the date it was taken under advisement, and the reason it has not been decided.

   (B) A matter is taken under advisement on the date all evidence has been received, or if there is no evidence, the date the legal issue has been heard by the judge. If briefing is allowed after the date of the hearing, the date taken under advisement shall be thirty (30) days after the date of the hearing. Time for filing briefs shall not otherwise affect the date the matter is taken under advisement.

   (C) If a presentence investigation has been requested, the matter is not under advisement until the presentence investigation report is received by the court. Do not include cases in which a bench warrant has been issued.

   (D)The Report of Cases Under Advisement form shall be the form prescribed by Appendix 1. The completed form shall be transmitted electronically to the electronic mail address specified in Appendix 1.

§ 6-105 adopted September 7, 2022; § 6-105 amended December 13, 2023, effective April 1, 2024.

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Article 2: Closing Hearings to the Public.

Article 2: Closing Hearings to the Public. unanimous

§ 6-201. Purpose.

§ 6-201. Purpose.

   (A) The purpose of these guidelines is to aid judges of the courts of Nebraska in determining whether a proceeding may be closed from the general public, in whole or in part.

   In formulating such guidelines it must be kept in mind that as a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party's right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

   We therefore establish the following guidelines to aid judges of the courts of the State of Nebraska in determining whether a judicial proceeding of any type should be closed, in whole or in part.

   (B) Except as otherwise specifically provided by law or by these guidelines, the general public should not be excluded from a legal proceeding of any type or nature, including a pretrial criminal hearing, suppression hearing, or trial on the merits.

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§ 6-202. Grounds for closure; waiver.

§ 6-202. Grounds for closure; waiver.

   Except as otherwise provided herein, upon motion of the defendant or one standing in the position of a defendant, even if known by another name and hereinafter called defendant, the court may consider excluding the general public from all or a portion of a proceeding at which:

   (A) the voluntariness of a confession may be seriously disputed and the admissibility of the confession will be a material issue either at the preliminary proceeding then before the court, or at a subsequent hearing, including the trial on the merits, and the court finds based upon evidence adduced that permitting the general public to be present during such proceeding is likely to result in substantially injuring or damaging the accused's right to a fair proceeding and that no other reasonable alternative exists to assure the defendant of a fair trial, or

   (B) the defendant is seeking to suppress evidence allegedly obtained illegally and the court finds based upon evidence adduced that permitting the general public to be present during such proceeding is likely to result in substantially injuring or damaging the accused's right to a fair proceeding and that no other reasonable alternative exists to assure the defendant of a fair trial.

   (C) If the court believes that by permitting the general public to be present at either of the hearings noted in § 6-202(A) or (B), the defendant may be denied a fair trial, and the defendant has not moved for closure, the court shall inquire of the defendant, on the record, whether the defendant desires to hold all or a part of such proceeding with the public present. If the defendant elects to hold such hearing with the public present, the court shall so proceed after noting the defendant's election on the record. If the defendant, however, elects to close all or a portion of such proceeding and so advises the court, it shall be as if the defendant has so moved and all of the provisions of these guidelines shall apply.

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§ 6-203. Hearing for closure.

§ 6-203. Hearing for closure.

   Before determining to close such proceedings, in whole or in part, the court shall give reasonable notice to all parties to the proceedings and such other persons who have advised the clerk of the court in writing, in advance of a specific trial, of their desire to be notified if such a motion is presented and is to be considered by the court. In giving such notice, the court will advise all such persons of the time and place when hearing on the motion shall be heard and shall afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such hearing.

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§ 6-204. Closure; findings required; record required.

§ 6-204. Closure; findings required; record required.

   If the trial court determines after hearing that permitting the general public to hear such matters under consideration will result in a substantial likelihood of injury or damage to the accused's right to a fair trial and no other reasonable alternative for assuring a fair trial exists, the trial court may exclude the general public from such proceeding. To the extent that the trial court can isolate the testimony concerning such matter from other matters presented to the court at the same time, the general public should be excluded only from that portion of the hearings in which such matter is being considered or evidence taken.

Upon entering an order of closure, the court shall articulate written findings as follows:

   (A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused's right to a fair trial will result from conducting the questioned proceedings in public,

   (B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused's right to a fair trial, and

   (C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.

   The burden of establishing such facts shall be upon the moving party.

   Except as otherwise provided by law, all matters heard by the court after the general public has been excluded shall nevertheless be on the record and shall be made available for public inspection within a reasonable time after a final judgment or verdict in the case has been rendered.

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§ 6-205. In camera proceeding; record required.

§ 6-205. In camera proceeding; record required.

   The court may receive preliminary evidence concerning the matters noted in § 6-204 in camera, in the presence of counsel for the parties and such other members of the public who have requested the right to be present.

   Persons desiring to be present not represented by counsel shall be considered as appearing Pro Se and shall be bound by the orders of the court in regard to such hearing.

   A record shall be made of the hearing in camera. The trial court may order such proceedings sealed until after a final judgment or verdict in the trial court has been rendered. The fact that the case in chief is pending on appeal before the Supreme Court of Nebraska shall not prevent the previously sealed tape from being made available to the public upon request. The sealed record, however, shall be made available for purposes of review by the Supreme Court or other court of competent jurisdiction pertaining to the decision to close the proceedings, in whole or in part.

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§ 6-206. Maintain decorum; general considerations.

§ 6-206. Maintain decorum; general considerations.

   Nothing in these guidelines shall be construed, however, to limit the powers of the courts to maintain decorum by ordering unruly spectators removed from the courtroom, or by reasonably limiting the number of spectators, or by exercising similar powers of judges at common law, nor shall anything in these guidelines require a judge to exclude the general public from any such proceedings if, after considering such matter, the trial court concludes that permitting the general public to be present will not create a substantial likelihood of injury or damage to the accused's right to a fair hearing. The fact that an accused or other witness may be embarrassed or be subject to public ridicule by reason of the public being present shall not be grounds upon which to close such matters, it being the intention of these guidelines to prescribe extremely limited situations under which courts shall be closed to the general public and otherwise establish a general policy of permitting courts to be open to the general public, consistent with the accused's constitutional rights to a fair hearing.

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Article 3: Nebraska Court Rules of Discovery in Civil Cases. (Effective January 1, 2025.)

Article 3: Nebraska Court Rules of Discovery in Civil Cases. (Effective January 1, 2025.)

(cite as Neb. Ct. R. Disc. §)

Appendix to Rule 30(A) - Request Form

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Revisor's note.

Revisor's note.

   (Revisor's note: The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule number. Subsections and references within the rule to rules by number and subsection remain unchanged. Thus, a reference in this rule to rule 34(b) should be interpreted and found at Neb. Ct. R. Disc. § 6-334(b), etc.)

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§ 6-301. Promulgating order.

§ 6-301. Promulgating order.

   Pursuant to the provisions of Neb. Rev. Stat. § 25-1273.01, the Supreme Court does hereby promulgate the following discovery rules in civil cases, effective as of January 1, 1983.

   These rules shall, as written, apply in the district courts, and in all other courts of Nebraska to the extent not inconsistent with other statutes. Rules 26 and 37 are applicable to county courts as to actions pending in those courts on the effective date of these rules.

COMMENT ON CIVIL DISCOVERY RULES

   These discovery rules follow the structure of the current discovery portion of the Federal Rules of Civil Procedure, but the content of the Nebraska rules is not always that of the federal rules. The federal rules were used for the structure because they are well known, being used in federal court and in many state courts, and because Nebraska originally followed the federal pattern when discovery was adopted in Nebraska in 1951. The committee considered the text of current Nebraska statutes, the current federal rules, recently proposed federal rules, and certain rules used in other states, and recommended the language that appears best for Nebraska practice. The federal rule numbers were retained for ease of comparison with the law of other jurisdictions.

   (The preceding comment and comments following each rule were adopted from the comments of the Supreme Court Committee on Practice and Procedure submitted to the Supreme Court in October 1981.)

 

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§ 6-302 through § 6-325 [Reserved].

§ 6-302 through § 6-325 [Reserved]. dbrown-butterfield

§ 6-326. General provisions governing discovery.

§ 6-326. General provisions governing discovery.

  (a) Discovery Methods and Sequence.

  (1) Discovery Methods. Parties may obtain discovery by one or more of the following methods: required disclosures; depositions by oral examination or written questions; interrogatories to parties; requests for producing documents, electronically stored information, and tangible things or entering onto land for inspection and other purposes; subpoenas commanding nonparties to produce documents, electronically stored information, and tangible things or allowing entry onto land for inspection and other purposes; physical and mental examinations; and requests for admission.

  (2) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:

  (A) methods of discovery may be used in any sequence; and

  (B) discovery by one party does not require any other party to delay its discovery.

  (b) Discovery Scope and Limits.

  (1) Scope in General. Parties may obtain discovery regarding any nonprivileged matter that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

  (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. A party may also obtain through an interrogatory whether an insurance business is disputing the agreement’s coverage of the claim. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this subpart, an application for insurance is not treated as part of an insurance agreement.

  (3) Work Product Materials.

  (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(c)(4), such materials may be discovered if:

  (i) they are otherwise discoverable under Rule 26(b)(1); and

  (ii) the party shows that it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means.

  (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

  (C) Previous Statement. Any party or other person may, on request and without making the showing required by Rule 26(b)(3)(A), obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses.

  (i) A previous statement is a person’s nonprivileged recounting of what the person did, saw, heard, or knows about a matter and that is (1) recorded by audio, audiovisual, or stenographic means, (2) handwritten by the person, or (3) in a written or electronic form and signed by the person.

  (ii) Deposition testimony is not a previous statement for purposes of this subpart.

  (4) Claiming Privilege or Protection. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as work product, the party must:

  (A) expressly make the claim; and

  (B) describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

  (5) Waiver of Privileges or Protections. The following apply to documents that are produced in discovery, whether in response to a discovery request or pursuant to a disclosure obligation.

  (A) The production of a privileged or protected document does not operate as a waiver of the privilege or protection if the production was inadvertent, the producing party took reasonable steps under the circumstances to prevent the inadvertent disclosure of the document, and the producing party promptly took reasonable steps under the circumstances to rectify the error of producing the document, including, if applicable, following subpart (B) of this rule.

  (B) If a document produced in discovery is subject to a claim of privilege or protection, the producing party may notify any receiving party of the claim and the basis for it. After being notified, a receiving party must promptly return, sequester, or destroy the specified document and any copies it has; must not use or disclose the document or its contents until the claim is resolved; must take reasonable steps to retrieve the document if the recipient disclosed it before being notified; and may promptly present the document to the court under seal for a determination of the claim. The producing party must preserve the document until the claim is resolved. Either the producing or receiving party may seek to have the claim resolved by filing a motion pursuant to Rule 26(d) in the court in which the action is pending.

  (C) A lawyer who receives a document, including electronically stored information, that the lawyer knows or reasonably should know is subject to a claim of privilege or protection and also knows or reasonably should know was inadvertently produced must promptly notify the party who produced the document.

  (c) Discovery From Experts.

  (1) Required Disclosures. A party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Rules 702, 703, or 705 of the Nebraska Evidence Rules. Unless the court orders otherwise, the disclosure must be in writing, signed, and served.

  (A) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report – prepared and signed by the witness – if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:

  (i) a complete statement of all opinions the witness will express and the basis and reasons for them;

  (ii) the facts or data considered by the witness in forming them;

  (iii) any exhibits that will be used to summarize or support them;

  (iv) a list of each publication within the scope of Nebraska Evidence Rule 803(18) on which the witness intends to rely for any opinion;

  (v) the witness’ qualifications to present evidence under Nebraska Evidence Rules 702, 703, or 705, which may be satisfied by the production of a resume or curriculum vitae and a list of any publications authored by the witness within the last 10 years that are not listed in the resume or curriculum vitae;

  (vi) the title, court, and case number of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition, performed an independent medical examination, or otherwise provided evidence as an expert and for each such case, the party who retained the witness; and

  (vii) a statement of the compensation to be paid for the witness’ work and testimony in the case, which may be satisfied by production of a fee schedule.

  (B) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, the disclosure must:

  (i) state the subject matter on which the witness is expected to present evidence under Nebraska Evidence Rules 702, 703, or 705;

  (ii) provide a summary of the facts and opinions to which the witness is expected to testify; 

  (iii) state the qualifications of the witness to present evidence under Nebraska Evidence Rules 702, 703, or 705, which may be satisfied by the production of a resume or curriculum vitae and a list of any publications authored by the witness within the last 10 years that are not listed in the resume or curriculum vitae; and

  (iv) state the compensation to be paid to the witness for providing testimony at a deposition or trial, which may be satisfied by production of a fee schedule.

  (C) Report Requirements for Treating Physicians. A treating physician who is retained or specially employed to provide expert testimony in the case, or whose duties as the party’s employee regularly involve giving expert testimony on behalf of the party, must provide a written report under Rule 26(c)(1)(A). Otherwise, a treating physician who is properly disclosed under Rule 26(c)(1) may be deposed or called to testify without providing a written report.

  (i) A treating physician is not required to provide a written report under Rule 26(c)(1)(A) solely because the physician’s testimony may discuss ancillary treatment, or the diagnosis, prognosis, or causation of the patient’s injuries, that is not contained within the physician’s medical chart, as long as the content of such testimony is properly disclosed under Rule 26(c)(1)(B)(i)-(iv).

  (ii) A treating physician will be deemed a retained or specially employed expert witness subject to the written report requirement of Rule 26(c)(1)(A) if the party is asking the treating physician to provide opinions outside the course and scope of the treatment provided to the patient.

  (iii) The disclosure regarding a non-retained or specially employed treating physician must include the information identified in Rule 26(c)(1)(B), to the extent practicable. If the treating physician will testify in accordance with the party’s medical chart, it is sufficient to state that the physician will do so even if some of the records contained therein were prepared by another healthcare provider.

  (2) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

  (A) within 180 days after the first responsive pleading was served; or

  (B) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(c)(1), within 45 days after the other party’s disclosure.

  (3) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).

  (4) Work Product Protection.

  (A) Draft Reports or DisclosuresRules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(c)(1), regardless of the form in which the draft is recorded.

  (B) Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(c)(1), regardless of the form of the communications, except to the extent that the communications:

  (i) relate to compensation for the expert’s study or testimony;

  (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

  (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

  (5) Deposition of an Expert Witness. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(c)(1)(A) requires a report from the expert, the deposition may be conducted only after the report is provided.

  (6) Discovery from a Consulting Expert. Ordinarily, a party may not discover the identity of, facts known, or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial except as provided in Rule 35(b). But a party may discover the identity of such an expert on showing good cause and may discover facts known or opinions held by such an expert on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

  (7) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

  (A) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(c)(5) or (6), which does not include time spent preparing for a deposition; and

  (B) for discovery under Rule 26(c)(6), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

  (d) Protective Orders. 

  (1) In General. A party or other person from whom discovery is sought may move for a protective order in the court in which the action is pending. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  (A) forbidding the disclosure or discovery;

  (B) specifying terms, including time or place or the allocation of expenses, for the disclosure or discovery;

  (C) prescribing a discovery method other than the one selected by the party seeking discovery;

  (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

  (E) designating the persons who may be present while the discovery is conducted;

  (F) requiring that a deposition be sealed and opened only on court order;

  (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

  (H) requiring that the parties file, serve, or deliver specified documents or information in a specified way, to be revealed or accessed only as the court directs.

  (2) Denying or Limiting Discovery. The court may issue a protective order denying or limiting discovery if the court determines that:

  (A) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

  (B) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

  (C) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

  (3) Ordering Discovery. If a motion for a protective order is denied in whole or in part, the court may, on just terms, order that any party or person provide or permit discovery.

  (4) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

  (e) Supplementing Disclosures and Responses.

  (1) In General. A party who has made a disclosure under Rule 26(c) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response:

  (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

  (B) as ordered by the court.

  (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(c)(1)(A), the party’s duty to supplement in a timely manner extends both to information included in the report and to information given during the expert’s deposition.

  (f) Filing and Service of Discovery Documents. Section 6-1105 governs the filing and service of discovery documents.

  (g) Access to Deposition for Use at Hearing. If the original of a deposition is not in the possession of a party who intends to offer it as evidence at a hearing, that party may give notice to the party in possession of it that the deposition will be needed at the hearing. On receiving such notice, the party in possession of the deposition must either make it available to the party who intends to offer it or produce it at the hearing.

  (h) Amendments. The Nebraska Court Rules of Discovery in Civil Cases apply to cases filed on or after January 1, 2025, and to cases pending on that date. But the trial court may order that the previous version of the Discovery Rules apply, either in whole or in part, to a case pending on January 1, 2025, if the court determines, in the exercise of its discretion, that application of the amended rule or rules to the case would be impracticable, unreasonable, or unjust.

COMMENTS TO § 6-326

  [1] Section 6-326 is the keystone of the discovery rules. Among other things, the rule governs the scope of discovery, the work product protection, the methods for obtaining discovery from experts, the grounds for a protective order, and the duty to supplement discovery disclosures and responses.

  [2] Subpart (b)(1) governs the scope of discovery and is modeled on a pre-2015 version of Rule 26(b)(1) of the Federal Rules of Civil Procedure. In 2015, Federal Rule 26(b)(1) was amended to incorporate proportionality into the standard for discovery. Federal Rule 26(b)(1) currently provides that information is discoverable if it is relevant and proportional to the needs of the case. The 2024 Amendments incorporated the concept of proportionality into Nebraska § 6-326 but did so in a different way. Rather than being part of the standard for discovery, proportionality is a ground for seeking a protective order to deny or limit discovery pursuant to subpart (d)(2).

  [3] The original version of subpart (b)(1) included examples of discoverable information such as the existence of documents and the identity of persons having knowledge of discoverable matters. Although the examples may have been helpful when the rule was promulgated in 1982, they are now so well known that there is no longer a good reason to keep them in the rule. Therefore, the examples were deleted by the 2024 Amendments. It should be underscored, however, that their deletion should not be construed as altering the scope or methods of discovery.

  [4] Subpart (b)(2) allows parties to discover insurance agreements that may cover all or part of a possible judgment. Having access to the agreements can be helpful in making and evaluating settlement offers. Knowing whether coverage is disputed can also be helpful. Therefore, the 2024 Amendments added a provision that allows a party to serve an interrogatory asking if coverage is disputed. The provision, however, does not allow a party to discover the grounds for any such dispute. If the coverage dispute status changes, the party answering the interrogatory should supplement its answer pursuant to subpart (e).

  [5] Subpart (b)(3) addresses the work product protection and allows a person to obtain a copy of the person’s previous statement. The 2024 Amendments rewrote the definition of a previous statement to make the definition easier to understand and to exclude deposition testimony. The reason for the exclusion is to prevent a person who is unwilling to pay the reporter for a copy of the deposition from obtaining a copy for free from the party who took the deposition.

  [6] Subpart (b)(4) was added by the 2024 Amendments to address what a party must do if the party withholds documents on the basis of a privilege or the work product protection. The subpart is modeled on Rule 26(b)(5) of the Federal Rules of Civil Procedure and requires a party to describe the documents in a manner that will allow the other parties to assess the claim that the documents are privileged.

  [7] The nature of the description will vary with the privilege because different privileges have different elements. For example, the description for the attorney-client privilege will normally include the identities of the persons who prepared and received the document, the subject matter of the document, the date of the document, and the basis for the assertion of the privilege. In other words, the description will normally include the information listed in the Supreme Court’s decision in Greenwalt v. Wal-Mart Stores, 253 Neb. 32 (1997).

  [8] But there may be situations in which it would be burdensome or unnecessary for a party to provide a description for each individual document. In those situations, a party may instead provide a description by categories of documents. Providing such a description may be appropriate when there is a large number of documents of the kind that are almost always privileged or protected – for example, email communications between in-house and outside counsel.

  [9] Rule 511 of the Nebraska Rules of Evidence addresses the waiver of a privilege by voluntary disclosure. The rule, however, does not address the issue of whether a privilege or protection is waived by the inadvertent disclosure of documents in discovery. Subpart (b)(5) was added in 2024 to address the issue. The subpart is modeled on Rule 502(b) of the Federal Rules of Evidence. But there are differences. Subpart (b)(5) applies to all privileges while Federal Rule 502 only applies to the attorney-client privilege.

  [10] Subpart (b)(5)(A) provides that disclosure is not a waiver of a privilege or protection if three requirements are met. First, the disclosure must have been inadvertent. This requirement focuses on whether the disclosure was unintentional. Second, the disclosure occurred even though the producing party took reasonable steps to prevent the disclosure. This requirement focuses the procedures that the party used to review documents and to withhold privileged or protected documents. Third, the producing party took reasonable steps to correct its mistake. This requirement focuses on what the party did after it learned that it had mistakenly produced the documents.

  [11] One step that the producing party may take to correct its mistake is to notify the receiving party that privileged or protected documents were inadvertently produced. Subpart (b)(5)(B) addresses what the receiving party must do if it receives such notice and makes it clear that either party can file a motion for a protective order if they disagree on whether the privilege or protection applies.

  [12] Notice is sometimes a two-way street. If the lawyer for the receiving party knows or should know that a document was inadvertently produced, the lawyer has an ethical obligation to notify the person who produced the document. The obligation is stated in subpart (b)(5) and reflects the obligation imposed by § 3-504.4(b) of the Nebraska Rules of Professional Responsibility.

  [13] Prior to 2024, § 6-326 provided that parties could obtain discovery about expert witnesses by serving an interrogatory and could not depose an expert unless they obtained a court order or stipulation. The 2024 Amendments replaced those provisions with disclosure requirements modeled on Rule 26(a)(2) of the Federal Rules of Civil Procedure.

  [14] The disclosure requirements are stated in subpart (c)(1). A party must disclose the identity of any expert witness that it may use at trial. Furthermore, a party must disclose information about the expert and the expert’s expected testimony. The content and form of the information depends on whether the expert was retained or specially employed to provide expert testimony.

  [15] A retained or specially employed expert is one who will testify about facts the expert learned and opinions the expert developed for purposes of the litigation. In addition to disclosing the identity of such an expert, the party must provide a signed report from the expert that contains the information listed in subpart (c)(1)(A). Most (but not all) of the information corresponds to information required by Federal Rule 26(a)(2). The report must be “detailed and complete” and state “the testimony the witness is expected to present during direct examination, together with the reasons therefor.” Fed. R. Civ. P. 26, Advisory Committee Notes on the 1993 Amendment.

  [16] Some experts will testify about facts they learned and opinions they developed for purposes other than the litigation. For example, a treating physician may learn facts and form opinions for the purpose of treating the plaintiff’s injuries. These kinds of experts – who are sometimes called “actor experts” – are not required to prepare a written report. The party who plans to use such an expert at trial must disclose the information listed in subpart (c)(1)(B).

  [17] One of the issues that has divided the federal courts is whether a treating physician who testifies about causation should be classified as a retained or specially retained expert and therefore required to provide a signed report. Subpart (c)(1)(C)(i) resolves the issue for the Nebraska courts by stating that a treating physician is not required to provide a written report solely because the physician’s testimony may discuss “the diagnosis, prognosis, or causation of the patient’s injuries.”

  [18] Subpart (c)(2) provides that disclosures must be made at the times and in the sequence the court orders. It would be helpful to all concerned if the court issued such an order. In terms of the sequence, the order could require the parties to make their disclosures at the same time or at different times – for example, the order could require the party with the burden of proof to make its disclosures first. If the court does not issue such an order, the parties may stipulate when their respective disclosures must be made. If there is no court order or stipulation, then the parties must make their disclosures by the times specified in subpart (c)(2)(A)-(B).

  [19] To work effectively with a retained or specially employed expert, an attorney must be able to review drafts and to communicate with the expert without worrying about whether every draft and every communication is discoverable. Subpart (c)(4)(A) provides that the work product protection applies to draft reports and draft disclosures.

  [20] Subpart (c)(4)(B) provides that the work product protection applies to communications between an attorney and a retained or specially employed expert. There are three exceptions, however. Those exceptions are set out in subpart (c)(4)(B)(i)-(iii). By its terms, subpart (c)(4)(B) is limited to an attorney’s communications with a retained or specially employed expert. It does not cover communications with an actor expert.

  [21] Subpart (c)(5) provides that a party may depose an expert witness. Because the report may help to focus the questioning or to eliminate the need for a deposition, an expert from whom a report is required may only be deposed after the report is provided.

  [22] If a party deposes an expert witness, the party must normally pay the expert a reasonable fee for responding to discovery. Subpart (c)(7) makes it clear, however, that the fee does not include time spent preparing for the deposition. Prior to 2024, the rule contained a provision that gave courts the discretion to require the deposing party to pay a portion of the fees that the opposing party paid the expert. The provision was based on the assumption that depositions of testifying experts were the exception rather than the norm. The provision was deleted in 2024 because the assumption is no longer valid. Subpart (c)(5) now allows a party to depose testifying expert without a court order or stipulation.

  [23] Subpart (d) addresses protective orders. Like a party filing a motion to compel pursuant to § 6-337(a), a party filing a motion for a protective order must first attempt to resolve a discovery dispute informally. Because the judge presiding over a case is in the best position to rule on discovery motions, all motions for a protective order – including those related to a deposition – must be filed in the court in which the action is pending.

  [24] Rule 26(b) of the Federal Rules of Civil Procedure contains a provision that addresses the discovery of electronically stored information from sources that a party identifies as not reasonably accessible. Section 6-326 does not contain a comparable provision because the issue can be addressed on a motion for a protective order pursuant to subpart (d)(2).

  [25] Subpart (e) specifies the circumstances under which a party must supplement an earlier disclosure or discovery response. The subpart was amended in 2024 so that it more closely follows the wording of Rule 26(e) of the Federal Rules of Civil Procedure. As amended, the subpart requires a party to supplement its earlier disclosure or response in a timely manner. In other words, a party is required to supplement its earlier disclosure or response within a reasonable time of acquiring the new information.

  [26] The 2024 Amendments consolidated the filing and service requirements for pleadings, motions, and discovery documents in § 6-1105. As a result, the provisions in § 6-326 that previously discussed the filing and service requirements have been replaced with a cross-reference to § 6-1105. The cross-reference appears in subpart (f).

  [27] Subpart (h) was added in 2024 to address the issue of whether rule amendments apply to cases pending on the effective date of the amendment. The subpart creates a presumption that an amendment applies to pending cases but gives trial courts the discretion not to apply the amendment to a pending case if it would be impracticable, unreasonable, or unfair to do so. Trial courts, however, do not have the same discretion in cases filed on or after the effective date. The first sentence of subpart (h) makes it clear that the amendment applies to those cases.

Rule 26(g) amended December 12, 2001; Comments to Rule 26(g) amended December 12, 2001. Renumbered and codified as § 6-326, effective July 18, 2008; § 6-326(c)(8) and (f) amended June 9, 2021, effective January 1, 2022; § 6-326 amended November 13, 2024, effective January 1, 2025; § 6-326 amended September 3, 2025.

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§ 6-327. Depositions to perpetuate testimony.

§ 6-327. Depositions to perpetuate testimony.

  (a) Before an Action is Filed.

  (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a court of this state may file a verified petition in the district court of the county where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner’s name and must show:

  (A) that the petitioner expects to be a party to an action cognizable in a court of this state but cannot presently bring it or cause it to be brought;

  (B) the subject matter of the expected action and the petitioner’s interest in the action;

  (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;

  (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

  (E) the name, address, and expected substance of the testimony of each deponent.

  (2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served in the manner provided for service of a summons. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service be made in the manner provided in Rule 30(b)(3).

  (3) Appointment of Attorney or Guardian. The court must appoint an attorney to represent an expected adverse party and to cross-examine the deponent if the expected adverse party is served in the manner provided in Rule 30(b)(3) and is not otherwise represented. The court must appoint a guardian ad litem for any expected adverse party who is a minor or incompetent.

  (4) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken by oral examination or by written questions. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

  (5) Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed action in this state involving the same subject matter if the deposition either was taken under these rules or, if not so taken, would be admissible in evidence in the federal or state court that authorized it to be taken. 

  (b) Pending Appeal.

  (1) In General. If an appeal has been taken from a judgment, a party may file a motion in the appellate court for leave to depose witnesses to perpetuate their testimony for use in the event the action is remanded for further proceedings after an appeal.

  (2) Motion. The motion must show:

  (A) the name, address, and expected substance of the testimony of each deponent; and

  (B) the reasons for perpetuating the testimony.

  (3) Court Order. The appellate court may itself rule on the motion or, while retaining jurisdiction of the appeal, remand the motion for a ruling by the court that rendered the judgment. If the court ruling on the motion finds that perpetuating the testimony may prevent a failure or delay of justice, the court must permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken under Rule 30 or 31 and used under Rule 32, just like other depositions in a pending action.

  (c) Perpetuation by an Action. This rule does not limit a court’s power to entertain an action to perpetuate testimony.

COMMENTS TO § 6-327

   [1] The primary purpose of the rule is to perpetuate evidence – in other words, to preserve evidence (usually, witness testimony) – that might otherwise be lost before the action is filed. The original version of the rule required the person seeking to perpetuate evidence to file a petition in the district court for the district in which any expected adverse party resides. The 2024 Amendments changed that to the district court for the county where any expected adverse party resides. As a result of the change, the venue provisions of the rule are now consistent with the residency provisions of the general venue statute, Neb. Rev. Stat. § 25-401.01(1).

  [2] Subpart (a)(2) authorizes substitute service on an expected adverse party who cannot be served by the normal methods of service. Subpart (a)(3) requires the court to appoint an attorney to represent an expected adverse party who is served by substitute service. Subpart (a)(3) also requires the court to appoint a guardian ad litem for any expected adverse party who is a minor or an incompetent person. If a minor or an incompetent person is served by substitute service, then the court must appoint both an attorney and a guardian ad litem. The reason is that roles of the attorney and guardian are different. The role of an attorney is to represent the party’s legal interests. The role of a guardian ad litem is to act in the best interests of the party and to make decisions for the party, including the decisions that a client normally makes.

  [3] The rule does not discuss who pays the attorney or the guardian. That is a matter left to the district court’s discretion.

  [4] Subpart (a)(5) discusses when a deposition that was taken to perpetuate evidence may be used in the action once it is filed. If the deposition was taken pursuant to Federal Rule 27 or the law of another state, then the deposition may be used if it would be admissible in the federal or state court that authorized it to be taken. The reason for including federal courts is that a petition to perpetuate could be filed in federal court and the action filed in state court.

  [5] Subpart (b) governs motions to perpetuate testimony that are filed while an appeal is pending. The motion must be filed in the appellate court because the trial court loses jurisdiction once the appeal is filed. See Billups v. Scott, 253 Neb. 293, 294 (1997). Because the trial court may be more familiar with the case than the appellate court is, the rule gives the appellate court the discretion to remand the motion to the trial court. The appellate court, however, retains jurisdiction of the appeal.

  [6] Subpart (b) only applies if an appeal has been taken. It does not authorize a party to file a motion to perpetuate after judgment is entered but before the time for appeal expires. The party’s only option in that situation is to file an independent action to perpetuate testimony. Subpart (c) specifically provides that the rule does not limit a court’s power to entertain an action to perpetuate testimony.

Rule 27(b) amended January 14, 1998. Renumbered and codified as § 6-327, effective July 18, 2008. § 6-327(a)(2) amended October 21, 2015, effective January 1, 2016; § 6-327 amended November 13, 2024, effective January 1, 2025.

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§ 6-328. Persons before whom depositions may be taken.

§ 6-328. Persons before whom depositions may be taken.

  (a) Within the United States.

  (1) Within this State. Within this state, a deposition must be taken before an officer authorized to administer oaths by the law of this state.

  (2) Elsewhere Within the United States. Within other states of the United States or within a territory or insular possession subject to the jurisdiction of the United States, a deposition must be taken before:

  (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination;

  (B) a person appointed by the court in which the action is pending to administer oaths and take testimony.

  (3) Definition of Officer. The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).

  (b) In a Foreign Country.

  (1) In General. A deposition may be taken in a foreign country:

  (A) under an applicable treaty or convention;

  (B) under a letter of request, whether or not captioned a “letter rogatory”;

  (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or

  (D) before a person commissioned by the court to administer any necessary oath and take testimony.

  (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued:

  (A) on appropriate terms after an application and notice of it; and

  (B) without a showing that taking the deposition in another manner is impracticable or inconvenient.

  (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name the country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.

  (4) Letter of Request – Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.

  (c) Disqualification. A deposition must not be taken before a person who is any party’s relative, employee, or attorney; who is related to or employed by any party’s attorney; or who is financially interested in the action.

COMMENTS TO § 6-328

  [1] The original version of subpart (a) listed by title the officers before whom a deposition could be taken in Nebraska. The 2024 Amendments deleted the list and replaced it with a statement that a deposition may be taken in Nebraska before an officer authorized by law to administer oaths. Those officers are identified by statute. See Neb. Rev. Stat. § 24-1002; Neb. Rev. Stat. § 64-107; Neb. Rev. Stat. § 64-107.01. The 2024 Amendments also added subpart (a)(3) to make it clear that the term “officer” as used in §§ 6-330 to 6-332 includes a person who serves as the deposition officer by stipulation of the parties.

  [2] Subpart (b) governs depositions taken in foreign countries for cases pending in Nebraska. The subpart was updated by the 2024 Amendments to include treaties and conventions. The original version of the rule included a subpart on taking depositions in Nebraska for cases pending in foreign countries. That subpart was deleted by the 2024 Amendments because it was unnecessary in light of 28 U.S.C. § 1782.

§ 6-328(e) and Comment amended January 27, 2021, effective February 16, 2021; § 6-328 amended November 13, 2024, effective January 1, 2025; § 6-328 amended September 3, 2025.

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§ 6-329. Stipulations about discovery procedure.

§ 6-329. Stipulations about discovery procedure.

  Unless the court orders otherwise, the parties may stipulate, by a written or otherwise recorded stipulation, that:

  (a) a deposition may be taken before any person, at any time or place, on any notice, and in any manner specified – in which event it may be used in the same way as any other deposition; and

  (b) other procedures governing or limiting discovery be modified – but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.

COMMENT TO § 6-329

  Stipulations can make the discovery process more efficient by allowing parties to vary from the Rules of Discovery when they think it best to do so. The reason for requiring a stipulation to be in writing is to minimize later disputes about the content of the stipulation. Stipulations normally do not need court approval. The 2024 Amendments added an exception in subpart (b) for stipulations extending time when those stipulations may affect certain deadlines and dates that the court has set.

§ 6-329 amended November 13, 2024, effective January 1, 2025.

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§ 6-330. Depositions by oral examination.

§ 6-330. Depositions by oral examination.

  (a) When and How Depositions May Be Taken. 

  (1) Without Leave. After commencement of the action, a party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena.

  (2) With Leave. Leave of court is required if:

  (A) the plaintiff seeks to take the deposition within 30 days after service of the summons, unless

  (i) the parties stipulate that the deposition may be taken,

  (ii) the defendant has served a deposition notice in the action, or

  (iii) the plaintiff certifies in the notice, with supporting facts, that the deponent is expected to leave the State of Nebraska and be unavailable for examination in the State after that time;

  (B) the deponent has already been deposed in the action and the deponent and the other parties do not stipulate that the deponent may be deposed again; or

  (C) the deponent is confined in prison.

  (3) How Taken. Unless the court orders otherwise, a deposition may be taken in person, by videoconferencing, by telephone, or by a combination of these methods. The parties may stipulate or the court may on motion order that a deposition be taken by other methods that provide contemporaneous verbal or verbal-and-visual interaction among the participants and ensure preservation of an accurate record.

  (4) Attendance by Different Method. Any party may notify the other parties, including the party taking the deposition, that the party will attend the deposition through a different method than the one stated in the notice. The party must notify the other parties within a reasonable time of the date of the deposition. The court may enter an order pursuant to Rule 26(d) specifying the method by which parties may attend a deposition.

  (b) Notice of the Deposition; Other Formal Requirements. 

  (1) In General. A party who intends to depose a person by oral questions must give reasonable written notice to every other party.

  (A) The notice must state the deponent’s name and address, if known. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.

  (B) The notice must state the date and time of the deposition and how it will be taken. If the deposition will be taken in person, the notice must state the place of the deposition. If the deposition will be taken by videoconferencing, the notice must state the name of the software and either include a link for the deposition or state that a link will be provided to the deponent and to every other party within a reasonable time before the deposition. If the deposition will be taken by telephone, the notice must contain instructions for joining the telephone call or state that the instructions will be provided to the deponent and to every other party within a reasonable time before the deposition.

  (C) The notice must state the name, address, telephone number, and email address (if any) of the party taking the deposition or if the party is represented, the party's attorney.

  (D) If it is known that an interpreter will be used, the notice must state that an interpreter will be used and must also state the language that will be interpreted or the type of interpretation (e.g., sign language). If it is unknown whether an interpreter may be necessary, the notice must include the following advisory statement: "If you are a person who is deaf, hard of hearing, or unable to communicate in the English language, you should contact as soon as possible the attorney or the party whose name is stated in this notice or subpoena and let that attorney or party know that you will need the help of an interpreter to understand and answer questions during the deposition."

  (E) If a subpoena is to be served on the deponent, the subpoena must contain the same information required by Rule 30(b)(1)(D), except that the advisory statement may be omitted from the notice if it is included in the subpoena. 

  (2) Producing Documents.

  (A) The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition. If a subpoena duces tecum is to be served on the deponent pursuant to Neb. Rev. Stat. § 25-1224 and Rule 34(A)(a)(3), a copy of the subpoena must be attached to the notice. If the subpoena is served on a party deponent, the time for compliance may not be shorter than the time specified in Rule 34(c)(2)(A).

  (B) If any of the materials are in a language other than English, the deponent must promptly notify the party serving the subpoena of the language(s). The party serving the subpoena must then promptly notify every other party of the language(s).

  (3) Unknown Parties. When the party against whom the deposition is to be used is unknown or is one whose whereabouts cannot be ascertained, the party may be notified of the deposition by publication or by any manner approved by the court and reasonably calculated under the circumstances to provide the party with actual notice. The publication must be made once in some newspaper printed in the county where the action is pending, or if there is no such newspaper, then in some newspaper that is printed in the State of Nebraska and has general circulation in that county. The publication must contain all the information required in a written notice and must be made at least 10 days prior to the deposition. Publication may be proven in the manner prescribed in Neb. Rev. Stat. § 25-520. Before publication, a copy of the written notice must be filed with the court in which the action is pending.

  (4) Method of Recording.

  (A) Method Stated in the Notice. The notice must state the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means, or any combination of those means. The noticing party bears the cost of the recording methods specified in the notice.

  (B) Additional Method. With prior notice to the deponent and other parties, any party or the deponent may designate another method of recording the testimony in addition to the method specified in the original notice. The additional recording must be made by the officer personally or by someone acting in the presence of and under the direction of the officer. The party or deponent who designates another method bears the cost of the additional record or transcript unless the court orders otherwise. Absent a stipulation of the parties, no other recordings of the testimony may be made.

  (5) Interpreter Required; Payment; Certification. If the deponent is a person who is deaf, hard of hearing, or unable to communicate the English language as defined in Neb. Rev. Stat. § 25-2402, an interpreter must be used to interpret the questions and answers. Unless the parties stipulate or the court for good cause orders otherwise, the noticing party must arrange and pay for the interpreter. Unless the parties stipulate or the court for good cause orders otherwise, the interpreter must be a certified or provisionally certified interpreter; however, if the noticing party has made reasonably diligent efforts to obtain a certified or provisionary certified interpreter and none are available, the interpreter may be a registered interpreter. A certified interpreter, a provisionally certified interpreter, and a registered interpreter is one who, pursuant to Neb. Ct. R. § 6-702(A)-(C), is listed as such in the statewide register of interpreters published and maintained by the State Court Administrator. 

  (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons so designated must testify about information known or reasonably available to the organization. This subpart (b)(6) does not preclude taking a deposition by any other procedure allowed by these rules.

  (7) Officer's Duties.

  (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer identified by Rule 28 as a person before whom a deposition may be taken. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer's name and business address; (ii) the date and time of the deposition; (iii) how the deposition is being taken and if the deposition is being taken in person, the place where it is being taken; (iv) the deponent's name; (v) the officer's administration of the oath or affirmation to the deponent; and (vi) the identity and location of all persons attending the deposition. If the deposition is recorded stenographically, the officer may include the foregoing information in the transcript rather than make an on-the-record statement.

  (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(7)(A)(i)-(iv) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.

  (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.

  (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. 

  (1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Nebraska Evidence Rules, except Rules 103 and 615. The officer must put the deponent under oath and, if an interpreter is used, also put the interpreter under oath. The officer must record the testimony by the method designated under Rule 30(b)(4)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.

  (2) Objections. An objection at the time of the examination – whether to evidence, to a party’s conduct, to the officer’s qualifications, to the interpreter’s qualifications, to the manner of taking the deposition, to the conduct of any party, or to any other aspect of the deposition – must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(2).

  (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.

  (d) Sanction; Motion to Terminate or Limit.

  (1) Sanction. The court may impose an appropriate sanction – including reasonable expenses and attorney fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.

  (2) Motion to Terminate or Limit.

  (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit the deposition on the ground that (1) it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party or (2) the interpreter is not rendering a reasonably complete and accurate interpretation or is repeatedly altering, omitting, or adding things, including explanations, to what is stated. The motion may be filed in the court in which the action is pending. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

  (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(d). If terminated, the deposition may be resumed only by order of the court in which the action is pending.

  (C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses incurred in relation to the motion.

  (e) Review; Changes; Waiver; Motion to Suppress.

  (1) On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which (a) to review the transcript or recording and (b) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. The deponent may be allowed more or fewer than 30 days if the parties stipulate to or the court orders a different number of days. The officer must note in the certificate required by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the period specified above for review.

  (2) All objections to the accuracy of the deposition, including objections to accuracy of the interpreter's interpretation of the questions or answers, are waived if a request for review is not made before the deposition is completed or, if a request for review is made, no changes are submitted to the officer in the time and manner required by subpart (1) of this rule and no motion is made pursuant to subpart (3) of this rule.

  (3) If a request for review is made, the deponent or any party may move to suppress the deposition pursuant to Rule 32(d)(4) on the ground that the deponent was not allowed to review the transcript or recording as provided in subpart (1) of this rule or that the transcription or interpretation of the deposition is inherently inaccurate.

  (f) Certification and Delivery by Officer; Exhibits; Copies of the Transcript or Recording; Notice of Delivery.

  (1) Certification and Delivery. The officer must certify in writing that the deponent was duly sworn and that the deposition accurately records the deponent’s testimony. Unless the court orders otherwise, the officer must promptly deliver the deposition to the party taking the deposition, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

  (2) Documents and Tangible Things.

  (A) Originals and Copies. Documents and tangible things produced for inspection during the examination of the deponent must, on a party’s request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:

  (i) offer copies to be marked, attached to the deposition, and then used as originals – after giving all parties a fair opportunity to verify the copies by comparing them to the originals; or 

  (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked – in which event the originals may be used as if attached to the deposition. 

  (B) Order Regarding Originals. Any party may move for an order that the originals be attached to the deposition, pending final disposition of the case. 

  (3) Copies of the Transcript or Recording. Unless otherwise stipulated by the parties or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or to the deponent. 

  (g) Failure to Attend or to Serve Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney fees, if the noticing party failed to: 

  (1) attend and proceed with the deposition; or 

  (2) serve a subpoena on a nonparty deponent, who consequently did not attend.

  (h) Protective Orders. The deponent or any party may move at any time for an order pursuant to Rule 26(d) to limit the dissemination of the deposition, either in whole or in part, or to limit the persons who may have access to the deposition.

COMMENTS TO § 6-330

  [1] Although depositions can normally be taken without leave of court, leave is required in the situations described in subpart (a)(2). The 2024 Amendments added a provision requiring leave to depose persons who have been previously deposed. Requiring leave in that situation is appropriate because being deposed more than once can be burdensome for the deponent. A court order is not necessary, however, if all the parties and the deponent stipulate to the second deposition.

  [2] The title of § 6-330 is “Depositions by oral examination.” Despite the title of the rule, a deposition is not an oral examination as defined by statute because it is not testimony in the presence of the trier of fact. See Neb. Rev. Stat. § 25-1243 (defining “oral examination” as “an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness”). It is instead a document in the form of a transcript or recording. See Neb. Rev. Stat. § 25-1242 (defining deposition as “a written declaration under oath or a videotape taken under oath in accordance with procedures provided by law”). Because a deposition is not an oral examination as defined by statute, the statutory limitations on oral testimony by videoconferencing or telephone do not apply to depositions.

  [3] The rule originally required a court order or stipulation to take a deposition by videoconferencing or telephone. The requirement was eliminated by the 2024 Amendments. Subpart (a)(3) now allows a deposition to be taken “in person, by videoconferencing, by telephone, or by a combination of these methods.” The reference to “a combination of these methods” means that there can be hybrid depositions, with some participants attending in person and others attending by another method such as videoconferencing. Furthermore, parties may attend a deposition by a method different than the method stated in the notice, provided that they give the other parties reasonable notice.

  [4] Subpart (a)(3) also allows depositions to be taken by other methods with a stipulation or court order. The provision gives the courts and parties flexibility to use new technologies that may emerge in the future.

  [5] Subpart (b) specifies what must be included in a deposition notice. Among other things, the notice must contain information about the software that will be used if the deposition will be taken by videoconferencing and instructions on how to join the call if the deposition will be taken by telephone. 

  [6] The notice must also state the recording method. Subpart (b)(4) authorizes three methods: (1) stenographic, (2) audio, and (3) audiovisual. The deponent or another party may designate an additional recording method. In order to prevent different people from preparing different records of the deposition, subpart (b)(4)(B) provides that the additional recording must be prepared by the deposition officer (who is selected by the noticing party).

  [7] Although the rule allows the testimony to be recorded by nonstenographic means, parties need to bear in mind that, as a practical matter, they will need to have a transcript prepared if they plan to use the deposition to support or oppose a motion, including, for example, a motion for summary judgment. Parties also need to bear in mind that they should have an audio or audiovisual recording made if an interpreter is used because, as a practical matter, without a record of the questions and answers in the interpreted language, they will be unable to assert later that the interpreter's interpretation was not accurate.

  [8] Because of the increasing number of Nebraskans who may have difficulty communicating in the English language, there is an increased likelihood that the deponent will need the assistance of an interpreter. It is important for the parties to work together to ensure that an interpreter is used when necessary. Subpart (b)(1)(D) provides that if an interpreter will be used, the notice should state that and should also state the language that will be interpreted. If notice is silent about an interpreter but another party believes that one is necessary, then the other party should contact the noticing party. That way, both parties may avoid appearing for a deposition that would otherwise have to be canceled for lack of an interpreter. To facilitate parties working together, the rule requires the inclusion of an advisory statement in the notice.

  [9] It is less likely that the noticing party will know if nonparties require an interpreter, and it is also less likely that nonparties will know to contact the noticing party if they do. Therefore, it is especially important that a subpoena served on a nonparty include the advisory statement. If a subpoena will be served on a nonparty witness, a party may give the other parties written notice of the deposition by serving them with a copy of the subpoena, provided that the subpoena contains the information required by the rule. Alternatively, a party may give the other parties written notice by serving them with a separate document that contains the information required by the rule. If the party does so, the party may omit the advisory statement from the notice because it will be contained in the subpoena served on the witness.

  [10] Ideally, the parties should use a certified or provisionally certified interpreter for a deposition. That is not always possible in Nebraska, however, because there are a limited number of certified and provisionally certified interpreters in some languages. The rule therefore allows the use of registered interpreters if the noticing party has made reasonably diligent efforts to obtain a certified or provisionally certified interpreter and none are available. It is possible that no registered interpreters are reasonably available either. In that case, the parties need to agree on an interpreter, or the noticing party needs to file a motion for a court order.

  [11] Among the factors that a court may consider in deciding whether to grant a motion to vary from the rule's interpreter hierarchy are: the availability, cost, and logistical difficulties of obtaining a certified, provisionally certified, or registered interpreter, the amount in controversy in the case, the significance of the testimony and the purpose for which it is sought (for example, steppingstone discovery as opposed to key evidence), and the competence and experience of the proposed interpreter.

  [12] A party may seek the production of documents in connection with a deposition by either a document request served pursuant to § 6-334 or a subpoena duces tecum served pursuant to Neb. Rev. Stat. § 25-1224. The response time for a document request is normally 30 days. See § 6-334(c)(2)(A). The response time for a subpoena duces tecum is no less than 14 days. See § 6-334(A)(d)(5). It is possible that a subpoena duces tecum could be served on a party deponent in an attempt to circumvent the longer response time in § 6-334. To eliminate that possibility, the 2024 Amendments added a new sentence in § 6-330(b)(2)(A) to make it clear that the response times in § 6-334 apply to parties served with a subpoena duces tecum.

  [13] A deposition can only be used against a party who was not present or represented at the deposition if the party had notice of the deposition. See § 6-332(a)(1)(A). Sometimes it is not possible to serve a party with a deposition notice because the party's identity or whereabouts are unknown. That may occur in a quiet title action. Historically, publication was the only method for giving notice. Subpart (b)(3) now allows the use of any other method reasonably calculated to give actual notice if the use of that method has been approved by the court. The standard stated in subpart (b)(3) is consistent with the standard for substitute service under Neb. Rev. Stat. § 25-517.02(3).

  [14] Subpart (2) previously contained a provision that prohibited the use of a deposition against a party who made diligent but unsuccessful efforts to obtain a lawyer. The provision applied to depositions taken within 30 days of the service of the summons because the deponent was expected to leave the State. The 2024 Amendments moved the contents of provision to § 6-332(a)(5).

  [15] Subpart (b)(6) governs depositions of organizations and, among other things, lists the types of organizations that may be deposed. The 2024 Amendments added “or other entity” at the end of the list to make it clear that organizations can be deposed regardless of their form. The 2024 Amendments also added a requirement that the deposing party and the deponent organization confer about the subjects of the deposition organization. Doing so may help the party to structure the deposition and also help the organization to identify the proper person(s) to testify on its behalf.

  [16] The 2015 Amendments added a provision requiring the deposition officer to be in the same location as the deponent when the deposition was not taken in person. During the Covid-19 Pandemic, the officer and deponent were often in different locations without incident. Therefore, the requirement has been eliminated. The parties are free, however, to enter into a stipulation or to seek a court order regarding the officer’s location for a particular deposition.

  [17] Subpart (b)(7) specifies the officer’s duties, which include stating on the record preliminary information such as the date and time of the deposition. If the deposition is recorded stenographically, the officer is not required to state the information orally. The officer can instead include the information in the transcript. The oath or affirmation, however, must be administered orally on the record.

  [18] Subpart (c)(1) provides that the examination and cross-examination of the deponent proceed as they would at trial under the Nebraska Evidence Rules. The 2024 Amendments added two exceptions: Rule 103 and Rule 615. The reason for the Rule 103 exception is that a judge is usually not present at a deposition. The reason for the Rule 615 exception is to make it clear that persons who may be deposed in the future may not be excluded from deposition at the request of a party. If a party wants to exclude persons from the deposition, the party should file a motion for a protective order pursuant to § 6-326(d)(1)(E).

  [19] Subpart (c)(2) governs objections. The 2015 Amendments added the requirement that the interpreter must be sworn and that an objection to the interpreter's qualifications must be recorded. The 2015 Amendments also added provisions on how objections must be stated and when a person may instruct the witness not to answer. Those provisions – which are modeled on Rule 30(c)(2) of the Federal Rules of Civil Procedure – are designed to eliminate speaking objections made for the purpose of disrupting the questioning or suggesting how the deponent should answer a question.

  [20] The attorneys, the parties, and the deponent should behave in a professional and civil manner during a deposition. They should not use vulgar language, repeatedly interrupt each other, repeatedly make improper objections, or repeatedly give improper instructions not to answer. If a person engages in misconduct that impedes, delays, or frustrates the fair examination of the deponent, then the court has the discretion to impose sanctions under subpart (d)(1). Those sanctions may be monetary (for example, reasonable expenses or attorney fees) or nonmonetary (for example, admonishing an attorney or requiring the attorney to attend a continuing legal education program), or both.

  [21] Subpart (d)(2)(A) allows a party to terminate a deposition if the interpreter's performance is so problematic that it undermines the usefulness of the deposition. It should be emphasized that a problem with how the interpreter handled a particular question or answer is insufficient to justify terminating a deposition. "'[I]nterpretation is a demanding and inexact art, and . . . the languages involved may not have precise equivalents for particular words or concepts.' Minor or isolated inaccuracies, omissions, interruptions, or other defects in translation are inevitable . . . ." Tapia-Reyes v. Excel Corp., 281 Neb. 15, 27, 793 N.W.2d 319, 328 (2011). Repeated problems, however, may signal that the interpretation is so fundamentally flawed that it would be pointless for the party to continue the deposition.

  [22] Subpart (e) was amended in 2015 to streamline the procedures for review and use of the deposition. Under the prior version of the rule, the deponent had a right to review the deposition unless the right was waived by deponent and the parties. There was no time limit on review except for videotape depositions, which had to be reviewed immediately. The rule as amended requires the deponent or party to invoke the right of review before the end of the deposition and gives the deponent or party thirty days to review after being notified that the transcript or recording is available. The parties may agree or the court may order a different time. For example, a shorter time may be necessary when the deposition is taken a few days before trial. A signature is only required if (1) the deponent or a party invoked the right to review and (2) the deponent made changes to the testimony.

  [23] Subpart (e)(2) is designed to make it clear to the deponent and to the parties that failing to invoke the right to review has serious consequences. The subpart provides that the transcript or recording of the deposition is deemed to be accurate if (1) the right to review was not invoked or (2) the right was invoked, no changes were submitted to the officer in the time and manner required by subpart (e)(1), and no motion to suppress was filed pursuant to subpart (e)(3).

  [24] If the right to review is invoked, then the deponent has a duty to review the transcript or recording and make changes to correct any errors. If the deponent fails to do so, then the deponent cannot later seek to suppress the deposition on the ground that the transcription or interpretation was inaccurate. If the deponent invokes the right to review and determines that the transcription or interpretation is inherently inaccurate, however, the deponent may move to suppress the deposition instead of making changes. Even if the deponent makes changes, any other party who believes that the deposition is inherently inaccurate may move to suppress the deposition. The burden of proof is on the moving party.

  [25] Subpart (f)(3) requires the officer to retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. This requirement mirrors Rule 30(f)(3) of the Federal Rules of Civil Procedure. Retaining the notes or a copy is necessary because the officer must furnish a copy of the transcript or recording if a party or the deponent later requests and pays for one.

  [26] Subpart (f) previously contained a provision that required the deposing party to give notice to the other parties when the officer delivered the deposition. The provision was deleted in 2024 because the requirement is unnecessary.

  [27] As a result of the growth of social media, it is much easier today for parties to disseminate sensitive portions of depositions in an attempt to harass or oppress their adversaries. Subpart (h) serves as a reminder that a court may enter a protective order pursuant to § 6-326(d)(1) to prevent parties from using the recording or transcription of a deposition for improper purposes.

Rule 30(f)(1) amended December 12, 2001; comments to Rule 30(f) amended December 12, 2001. Renumbered and codified as § 6-330, effective July 18, 2008. § 6-330 and Comments to Rule 30 amended October 21, 2015, effective January 1, 2016; § 6-330(b)(1)(A) amended June 9, 2021, effective January 1, 2022; § 6-330 amended November 13, 2024, effective January 1, 2025; § 6-330 amended September 3, 2025.

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§ 6-330(A). Interstate deposition and discovery.

§ 6-330(A). Interstate deposition and discovery.

  (a) Definitions. In this rule:

  (1) “Foreign jurisdiction” means a state other than this state.

  (2) “Foreign subpoena” means a subpoena issued in a civil proceeding under authority of a court of record of a foreign jurisdiction.

  (3) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

  (4) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

  (5) “Subpoena” means a document, however denominated, issued under authority of a court of record that commands a person to:

  (A) testify at a deposition;

  (B) produce and permit the party serving the subpoena to inspect, copy, test, or sample the following items that are within the scope of Rule 26(b) and in the possession, custody, or control of the person:

  (i) any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding person into a reasonably usable form; or

  (ii) any designated tangible things; or

  (C) permit entry onto designated land or other property possessed or controlled by the person when such entry is within the scope of Rule 26(b) so that the party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

  (b) Issuance of Subpoena. To request issuance of a subpoena under this rule, a party must submit to the clerk of the district court for the county in which discovery is sought to be conducted a Request for the Issuance of a Nebraska Subpoena for a Proceeding in a Foreign Jurisdiction. The content of the request must be substantially the same as the content of the form in the Appendix to this rule, and must include the name and address of the person on which the subpoena will be served, and the method of service provided by Neb. Rev. Stat. §§ 25-1223(9), 25-1226(1), and/or 25-1228(2).

  The party must attach to the request (1) a foreign subpoena for each person to be served and (2) a list of the names, addresses, telephone numbers, and email addresses of all counsel of record and self-represented parties in the proceeding to which the subpoena relates. The party must also pay to the clerk of the district court a fee of $75 for each subpoena issued. If the clerk re-issues a subpoena, an additional $75 fee must be paid.

  The clerk must remit the fee to the State Treasurer for credit to the Nebraska Supreme Court’s Counsel for Discipline Cash Fund not later than the 15th day of the month following the calendar month in which the fee was received.

  When a party submits a foreign subpoena to a clerk of a district court in this state, the clerk, in accordance with the district court’s procedure, must promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

  A subpoena issued under this rule must:

  (1) include as an attachment a copy of the list required by this subsection;

  (2) accurately incorporate the time, place, and method of the discovery requested in the foreign subpoena; and

  (3) if the subpoena commands the person to produce designated documents, electronically stored information, or tangible things, the subpoena must either accurately incorporate the commands from the foreign subpoena or attach the foreign subpoena and state that the person must produce the documents, information, or things designated in the attached foreign subpoena.

  (c) Service of Subpoena. A deposition subpoena issued by a clerk of court under this rule must be served in compliance with Neb. Rev. Stat. § 25-1226(1) and the return made in compliance with § 25-1228(1). A subpoena for discovery from a nonparty without a deposition must be served and the return must be made in compliance with Rule 34(A)(d)(5)-(6).

  (d) Deposition, Production, and Entry Upon Land. The statutes and rules of this state, including the Nebraska Court Rules of Discovery in Civil Cases, apply to subpoenas issued and discovery conducted pursuant to this rule.

  (e) Appearance, Certification and Acknowledgment.

  (1) A request for the issuance of a subpoena or engaging in discovery pursuant to such a subpoena does not constitute an appearance in the courts of this state or the unauthorized practice of law in this state.

  (2) By submitting a request for a subpoena, attorneys or self-represented parties certify that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. By submitting a request for a subpoena, attorneys who are not admitted to practice in Nebraska further certify that they are admitted to practice in the foreign jurisdiction in which the proceeding is pending and that they have not been disbarred or suspended from practice in any jurisdiction.

  (3) By submitting a request for a subpoena, attorneys or self-represented parties acknowledge that the district court has jurisdiction to impose sanctions on them for false certifications made in obtaining the subpoena and for any conduct related to the subpoena that violates the Nebraska Court Rules of Discovery in Civil Cases.

  (f) Motions. A motion for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under this rule must comply with the statutes and rules of this state and must be filed as a civil action in the district court for the county in which the discovery is to be conducted. Such a motion may be filed or opposed only by an attorney admitted to practice in this state or by a self-represented individual.

COMMENTS TO § 6-330(A)

  [1] The rule was promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1237 and is modeled on the Uniform Interstate Depositions and Discovery Act drafted by the National Conference of Commissioners on Uniform State Laws. The purpose of the rule is to provide a simple, uniform, and efficient procedure under which a party to a civil proceeding pending in a foreign jurisdiction can have a subpoena issued in Nebraska to obtain discovery for the foreign proceeding. For purposes of this rule, the term “foreign jurisdiction” means the courts of another state, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, and the territories of the United States. It does not include another country.

  [2] The act of the clerk of the district court in issuing the subpoena is administrative. In effect, the clerk reissues the foreign subpoena as a Nebraska subpoena and assigns the matter a number. The only documents that need to be presented to the clerk are the request, the foreign subpoena, a list of counsel and unrepresented parties, and the required fee. Although the rule does not require the requesting party to submit a draft Nebraska subpoena, the party may choose to do so in order to expedite the process.

  [3] It is not the responsibility of the clerk to ensure that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. It is instead the responsibility of the requesting lawyer or self-represented party. The lawyer or self-represented party must certify in the request that the foreign subpoena was properly issued. A false certification may result in the imposition of sanctions under subpart (e) of this rule. Sanctions should not be imposed, however, if the foreign subpoena was improperly issued as a result of a reasonable, good faith mistake.

  [4] A lawyer admitted in a foreign jurisdiction does not need to retain local counsel or be admitted pro hac vice in order to have the subpoena issued. The request for the issuance of the subpoena does not constitute the unauthorized practice of law in this state. The same is true of taking a deposition or obtaining other discovery pursuant to the subpoena. See Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2); Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2), Comment [10].

  [5] During a deposition, lawyers may sometimes seek a telephonic ruling from the court on objections or instructions not to answer. Lawyers may not do so during a deposition taken pursuant to this rule unless the lawyers are all admitted to practice before the court from which the ruling is sought.

  [6] Nebraska law applies to discovery undertaken pursuant to this rule. That means that Nebraska’s procedural, evidentiary, and conflicts law apply. Nebraska has a significant interest in protecting its residents from any unreasonable or unduly burdensome discovery requests when they become targets of discovery requests for actions pending in a foreign jurisdiction. This interest is best served by requiring that any discovery motions be decided under the laws of Nebraska and that all motions that directly affect the person from whom discovery is sought must be filed in Nebraska.

  [7] Motions that affect only the parties to the action can be made in the foreign jurisdiction. For example, any party can apply for an order in the foreign jurisdiction to bar the deposition of a Nebraska deponent on grounds of relevance. That motion should be made and ruled on before the deposition subpoena is ever presented to the clerk of the district court in this state.

§ 6-330A adopted January 27, 2021, effective February 16, 2021; § 6-330(A) amended November 13, 2024, effective January 1, 2025; § 6-330A amended September 3, 2025.

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§ 6-331. Depositions by written questions.

§ 6-331. Depositions by written questions.

  (a) When a Deposition May be Taken.

  (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided by Rule 31(a)(2). The deponent’s attendance may be compelled by a subpoena that contains the information specified by Rule 30(b)(1)(E).

  (2) With Leave. A party must obtain leave of court if:

  (A) the party is a plaintiff and seeks to serve questions within 30 days after service of the summons, unless

  (i) the parties stipulate that the deposition may be taken; or

  (ii) the defendant has served a deposition notice in the action; or

  (B) the deponent has already been deposed in the case and the deponent and the parties do not stipulate that the deponent may be deposed again; or

  (C) the deponent is confined in prison.

  (3) Service; Required Notice. A party who intends to depose a person by written questions must serve the questions on every other party, with a notice stating, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken.

  (4) Interpreter; Required Notice. If an interpreter will be used, the notice must also state that an interpreter will be used and state the language that will be interpreted or the type of interpretation (e.g., sign language). Rule 30(b)(5) governs who may serve as an interpreter.

  (5) Questions Directed to an Organization. A public or private corporation, a partnership, an association, a governmental agency, or other entity may be deposed by written questions in accordance with Rule 30(b)(6). 

  (6) Questions from Other Parties. Any questions to the person from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with the cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, lengthen or shorten these times.

  (b) Delivery to the Officer; Officer’s Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to:

  (1) take the deponent’s testimony in response to the questions;

  (2) prepare and certify the deposition; and

  (3) send it to the party, attaching a copy of the questions and of the notice.

  (c) Notice of Completion. The party taking the deposition must notify all other parties when it is completed.

COMMENT TO § 6-331

  It is unclear how often depositions are taken by written questions. But there are situations in which some parties prefer to take depositions by written questions rather than by oral examination. Therefore, § 6-331 has been retained and kept current. In 2015, the rule was amended to add provisions on interpreters. In 2024, the rule was amended to add provisions on when leave is required, to broaden the scope of the provision on deposing organizations, and to shorten the time for serving questions.

§ 3-661(a) and Comment to Rule 31 amended September 16, 2015, effective January 1, 2016; § 6-331(a)(3) adopted October 21, 2015, effective January 1, 2016; § 6-331 amended November 13, 2024, effective January 1, 2025; § 6-331 amended September 3, 2025.

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§ 6-332. Using depositions in court proceedings.

§ 6-332. Using depositions in court proceedings.

  (a) Using Depositions.

  (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

  (A) the party was present or represented at the taking of the deposition or had reasonable notice of it;

  (B) it is used to the extent it would be admissible under the Nebraska Rules of Evidence if the deponent were present and testifying; and

  (C) the use is allowed by Rule 32(a)(2)-(8).

  (2) Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any purpose allowed by the Nebraska Evidence Rules.

  (3) Deposition of a Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or of anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or Rule 31(a)(5).

  (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

  (A) that the witness is dead;

  (B) that the witness is more than one hundred miles from the place of hearing or trial or is outside the state, or beyond the subpoena power of the court, unless it appears that the witness’ absence was procured by the party offering the deposition; 

  (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; 

  (D) that the party offering the deposition could not procure the witness’ attendance by subpoena; 

  (E) that exceptional circumstances make it desirable - in the interest of justice and with due regard to the importance of live testimony in open court - to permit the deposition to be used; or

  (F) on motion and notice prior to the taking of the deposition, that circumstances make it desirable - in the interest of justice and with due regard to the importance of live testimony in open court - to permit the deposition to be used.

  (5) Limitation on Use; Unavailable Deponent; Party Could Not Obtain an Attorney. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.

  (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

  (7) Substituting a Party. Substituting a party does not affect the right to use a deposition previously taken.

  (8) Deposition Taken in an Earlier Action. A deposition lawfully taken in any federal or state court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Nebraska Evidence Rules.

  (b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying; or if the trial court directs, such objections may be heard and determined prior to trial.

  (c) Transcript, Form of Presentation, and Notice of Use.

  (1) Transcript. Unless the court orders otherwise, a party must:

  (A) provide the court with a transcript of any deposition testimony the party offers, but may provide the court with the testimony in audio or audiovisual form as well; or

  (B) if the deposition was not recorded stenographically, provide the court and the other parties with a transcript of the portions of the deposition requiring a ruling from the court.

  (2) Form. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in audio or audiovisual form, if available, unless the court for good cause orders otherwise.

  (3) Notice. A party who may offer a deposition in audio or audiovisual form for any purpose other than impeachment must give the other parties reasonable written notice before the hearing or trial and an opportunity to object to use of all or part of the deposition.

  (d) Waiver of Objections.

  (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.

  (2) To the Officer’s Qualifications. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:

  (A) before the deposition begins; or

  (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.

  (3) To the Taking of the Deposition.

  (A) Objection to Competence or Relevance. An objection to a deponent’s competence – or to the competence or relevance of testimony – is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. But if a deposition was recorded by audio or audiovisual means only, the objection is waived by the failure to make it to the court before the hearing or trial unless the court, for good cause, excuses the failure.

  (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:

  (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and

  (ii) it is not timely made during the deposition.

   (C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.

  (4) As to Interpreting, Completing and Returning the Deposition. An objection to how the interpreter interpreted the questions or answers, how the officer transcribed the testimony, or how the officer prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition is waived unless a motion to suppress the deposition is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

COMMENTS TO § 6-332

  [1] The rule governs the use of depositions in court proceedings. The rule was amended in 2015 to address interpreters and was amended again in 2024 to address issues raised by depositions that are recorded by audio or audiovisual means.

  [2] Subpart (a)(4) creates an exception to the hearsay rule. In other words, a deposition does not have to satisfy the requirements of Neb. Rev. Stat. § 27-804(2)(a) to be admissible under this subpart. See Walton v. Patil, 279 Neb. 974, 984 (2010). Under subpart (a)(4)(B), the witness must be at least 100 miles away in order to use the deposition because Neb. Rev. Stat. § 25-1227 establishes 100 miles as the maximum distance a witness must ordinarily travel for a civil trial. Subpart (a)(4)(E) allows use of a deposition under exceptional circumstances; under subpart (a)(3)(F), the court may authorize use of the deposition in the absence of exceptional circumstances if the motion is made before the deposition is taken.

  [3] Recording a deposition solely by audio or audiovisual means can reduce costs. Reducing costs is especially important for self-represented parties and parties represented pro bono. But the interests of the court become relevant when a party seeks to use the deposition at a hearing or trial. It is usually easier for a court to review a transcript rather than a recording. Subpart (c)(1)(B) accommodates the competing interests by requiring a party who took a deposition non-stenographically to provide the court and the other parties with “a transcript of the portions of the deposition requiring a ruling from the court.” If there are objections on just a few pages of the deposition, then the party only needs to have a transcript prepared of those few pages. It should be noted that subpart (c)(1) requires a party to provide a transcript “[u]nless the court orders otherwise.” The quoted language makes it clear that the court has the discretion to dispense with the transcript requirement if compliance would be unnecessary or especially onerous.

  [4] Depositions that are recorded by stenographic means are sometimes recorded by audio or audiovisual means as well. If the deposition is used at trial, the lawyers may read part or all of the deposition testimony at trial. But the reality is that jurors are more likely to pay attention to a recording of a deponent testifying than they are to lawyers reading the questions and answers. Subpart (c)(2) reflects that reality by requiring that a deposition recorded by audio or audiovisual means must be presented in audio or audiovisual form in a jury trial if any party requests that it be presented in that form. The requirement does not apply if deposition testimony is used for impeachment purposes, however, or if the court determines that there is good cause for not presenting the testimony in that form.

  [5] Subpart (d)(3)(A) provides that if a deposition was recorded by audio or audiovisual means only, competency and relevance objections are waived unless they are made to the court before the hearing or trial. It makes sense to resolve competency and relevance objections beforehand – but a party needs to know beforehand that a deposition will be used so that it can raise its objections beforehand. Therefore, subpart (c)(3) provides that if a party plans to use an audio or audiovisual deposition for any purpose other impeachment, the party must give the other parties reasonable written notice before the hearing or trial.

  [6] One of the objections that can be raised by a motion to suppress is an objection to how the interpreter interpreted the questions or answers. The objection can be raised only if a request to review the deposition was made pursuant to § 6-330(e)(1). The deponent may correct alleged errors in interpretation by signing a statement listing the changes and the reasons for them. The errors, however, may be so extensive that the deposition is inherently inaccurate. In that case, the deponent or a party may file a motion to suppress the deposition in its entirety. See § 6-330(e)(3). A party may also file a motion to suppress the deposition in part on the grounds that there were errors in interpreting a limited but material part of the deposition and those errors render that part inherently inaccurate. If the court suppresses a deposition in whole or in part, the court may order the deposition to be retaken in whole or in part.

  [7] Subpart (d)(4) provides that a motion to suppress must be promptly filed. A motion may be untimely if the party failed to act with reasonable diligence in obtaining a transcript or recording of the deposition or in reviewing the transcript or recording.

§ 6-332(d)(4) and Comments to Rule 32 amended October 21, 2015, effective January 1, 2016; § 6-332 amended November 13, 2024, effective January 1, 2025; § 6-332 amended September 3, 2025.

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§ 6-333. Interrogatories to parties.

§ 6-333. Interrogatories to parties.

  (a) In General.

  (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 50 written interrogatories, including all discrete subparts. The court may grant leave to serve additional interrogatories for good cause shown.

  (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete or some other time.

  (3) Time; Editable Format. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the summons on that party. Upon demand, the party served with the interrogatories must be given an electronic copy of the interrogatories in a readily editable format.

  (b) Answers and Objections.

  (1) Responding Party. The interrogatories must be answered:

  (A) by the party to whom they are directed; or

  (B) if that party is a public or private corporation, a partnership, an association, a governmental agency, or other entity, by any officer or agent, who must furnish the information available to the party.

  (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories, except that a defending party may serve its answers and objections within 45 days after being served with the summons or 30 days after being served with the interrogatories, whichever is longer. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

  (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

  (4) Objections. If a party objects to an interrogatory, the party must state the grounds for the objection and must also explain with specificity why the interrogatory is objectionable on those grounds. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

  (5) Form of Answer or Objection. The answering or objecting party must reproduce each interrogatory and then state the party’s answer or objection to the interrogatory.

  (6) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

  (c) Use. An answer to an interrogatory may be used to the extent allowed by the Nebraska Evidence Rules.

  (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

  (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

  (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

COMMENTS TO § 6-333

  [1] Although interrogatories can be a helpful discovery method, they can also be abused. The rule therefore imposes a numerical limit on interrogatories. A party may not serve more than 50 interrogatories, including all discrete subparts, on another party unless the court orders or the parties stipulate otherwise. The rule does not specify how to count interrogatories. In applying the numerical limit imposed by Rule 33 of the Federal Rules of Civil Procedure, most federal courts have said that an interrogatory with subparts should be counted as one interrogatory if the “subparts are logically or factually subsumed within and necessarily related to the primary question.” Erfindergemeinschaft Uropep GbR v. Eli Lilly and Company, 315 F.R.D. 191, 196 (E.D. Tex. 2016).

  [2] The rule requires a party responding to an interrogatory to reproduce the interrogatory and then state its answer or objection. That is easier to do if the party is served with the interrogatories in a readily editable electronic format such as Word or WordPerfect. But parties are sometimes served with interrogatories in a paper format or in a non-readily editable electronic format such PDF. Subpart (a)(3) was added in 2024 to address the situation. The subpart requires the serving party to provide the responding party with an electronic copy of the interrogatories in a readily editable format if the responding party asks for such a copy.

  [3] Although the 2024 Amendments made significant stylistic changes to the rule, they made very few substantive changes. One of the substantive changes was the addition of subpart (b)(4). The subpart requires an objecting party to state the grounds for its objection and to explain why the interrogatory is objectionable on those grounds. The purpose of the requirement is to eliminate what are often called “boilerplate objections” – in other words, objections that state objections in a conclusory way (for example, “burdensome, oppressive, and irrelevant”) without explaining the specific reasons for the objection. Requiring parties to state the specific reasons for the objection may discourage the parties from making baseless objections and may also help them resolve discovery disputes informally by identifying the specific problems that the objecting party has with the interrogatory.

  [4] Subpart (b)(4) also provides that an objection is waived if the party fails to make the objection in a timely manner. Treating such a failure as a waiver, however, may sometimes be unduly harsh. The rule therefore gives the court the discretion to excuse the failure if there is good cause for doing so.

Rule 33(c) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 6-333, effective July 18, 2008; § 6-333 amended November 13, 2024, effective January 1, 2025.

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§ 6-334. Producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes.

§ 6-334. Producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes.

  (a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

  (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

  (A) any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or 

  (B) any tangible things; or

  (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

  (b) Time; Editable Format. The request may be served on the plaintiff after commencement of the action and on any other party with or after service of the summons on that party. Upon demand, the party served with the request must be given an electronic copy of the request in a readily editable format.

  (c) Procedure.

  (1) Contents of the Request. The request:

  (A) must describe with reasonable particularity each item or category of items to be inspected; 

  (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

  (C) may specify the form or forms in which electronically stored information is to be produced.

  (2) Responses and Objections.

  (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served, except that a defending party must respond within 45 days after being served with the summons or 30 days after being served with the request, whichever is longer. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

  (B) Responding to Each Item. The responding party must reproduce each request and then state the party’s response to the request. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

  (C) Objections. If a party objects to a request, the party must state the grounds for the objection and must also explain with specificity why the request is objectionable on those grounds. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

  (i) Withholding Materials. An objection must state whether any responsive materials are being withheld on the basis of that objection.

  (ii) Partial Objection. An objection to part of a request must specify the part and produce or permit inspection of the rest.

  (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form – or if no form was specified in the request – the party must state the form or forms it intends to use.

  (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

  (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

  (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

  (iii) A party need not produce the same electronically stored information in more than one form.

COMMENTS TO § 6-334

  [1] A party responding to requests for production or entry must state for each request whether it objects to the request or will honor the request. The original version of the rule implied (but did not explicitly state) that the responding party must first reproduce the request and then state its objection or response. The 2024 Amendments made the requirement explicit by adding the following sentence in subpart (c)(2)(B): “The responding party must reproduce each request and then state the party’s response to the request.” As a result, the format for responding to interrogatories, requests for documents, and requests for admission is the same.

  [2] It is easier to reproduce each request if the requests are served in an electronic format. Subpart (b) therefore requires the requesting party to provide the responding party with an electronic copy of the requests in a readily editable format if the responding party asks for such a copy. Comment [4] of the Comments on § 6-333 provides examples of what are and what are not readily editable formats.

  [3] Section 6-334 was promulgated at a time when documents were in paper form and complying with the request meant physically collecting the documents and making them available for the requesting party to inspect so that the party could decide which ones to photocopy. Therefore, the rule required the responding party to serve a response stating that (1) the party objected to the request or (2) the party would make the requested documents available for inspection. But as electronic documents began replacing paper documents, responding parties began providing documents in electronic form rather than making them available for inspection in paper form. In 2024, the rule was amended to bring the rule into conformity with the practice by giving the responding party the option of stating that it will produce the documents instead of making them available for inspection. The option appears in subpart (c)(2)(B). 

  [4] Like a party objecting to interrogatories, a party objecting to a § 6-334 request must state the grounds for its objection and explain why the request is objectionable on those grounds. The requirement was added by the 2024 Amendments and appears in subpart (c)(2)(C). The reasons for the requirement are discussed in Comment [2] of the Comments on § 6-333.

  [5] Subpart (c)(2)(C) also provides that an objection is waived if the party fails to make the objection in a timely manner. Treating such a failure as a waiver, however, may sometimes be unduly harsh. The rule therefore gives the court the discretion to excuse the failure if there is good cause for doing so.

  [6] In the past, objecting parties have sometimes produced documents without specifically stating that they were withholding any documents on the basis of the objection. As a result, the requesting party might have believed that it received all the responsive documents when in fact it did not. To ensure that the requesting party knows whether any documents have been withheld, subpart (c)(2)(C)(i) now requires an objecting party to state whether any responsive materials are being withheld on the basis of the objection. The objecting party is not required to provide a detailed description of the documents; a simple statement that documents were withheld is sufficient to put the requesting party on notice that it may need to pursue the issue. 

  [7] The original version of the rule included a subpart that recognized the possibility of filing an independent action against a nonparty for production of documents or tangible things or for entry onto land. The subpart was deleted by the 2024 Amendments because parties no longer need to file an independent action to obtain discovery from nonparties. Parties can proceed under § 6-334(A) to obtain discovery from nonparties for actions pending in Nebraska and under § 6-330(A) for actions pending in other states.

Rule 34(a)(1) and 34(b)(1-3) amended June 4, 2008, effective July 18, 2008. Renumbered and codified as § 6-334, effective July 18, 2008; § 6-334 amended November 13, 2024, effective January 1, 2025; § 6-334(a)(1) amended March 27, 2024, effective January 1, 2025; § 6-334 amended September 3, 2025.

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§ 6-334(A). Subpoenas commanding nonparties to produce documents, electronically stored information, and tangible things or to allow entry onto land, for inspection and other purposes.

§ 6-334(A). Subpoenas commanding nonparties to produce documents, electronically stored information, and tangible things or to allow entry onto land, for inspection and other purposes.

  (a) In General.

  (1) Scope of Subpoena. A party may serve a subpoena that commands a person to produce and permit the party or its representative to do the following at a specified time and place:

  (A) inspect, copy, test, or sample the following items that are within the scope of Rule 26(b) and in the person’s possession, custody, or control:

  (i) any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding person into a reasonably usable form; or

  (ii) any designated tangible things; or

  (B) permit entry onto designated land or other property possessed or controlled by the person when such entry is within the scope of Rule 26(b) so that the party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

  (2) Option to Provide Copies. The subpoena may give the person the option of (A) producing documents or electronically stored information for inspection or (B) providing copies of the documents or information by the date specified in the subpoena. If the subpoena gives the person such an option, the person may condition preparation of the copies on advance payment of the reasonable cost of preparing the copies.

  (3) Subpoena for Deposition and Documents. Pursuant to Neb. Rev. Stat. § 25-1224, the subpoena may command the person to appear and testify at a deposition at the time and place specified for production. Such a subpoena must comply with this rule and contain the information that the statutes and Rule 30(b)(1)(E) require for deposition subpoenas. It must also contain a statement of the method for recording the testimony.

  (b) Prior Notice to Parties.

  (1) A party who intends to serve a subpoena pursuant to this rule must serve a written notice on every other party at least 14 days before issuance of the subpoena. Leave of court or a stipulation of the parties is required only if a plaintiff seeks to serve the notice within 30 days after service of the summons and no defending party has served such a notice.

  (2) The notice must state the name and address of the person to whom the subpoena will be directed, the date on or after which the subpoena will be issued, the time and place of the inspection or entry, and whether the person will be given the option of providing the party with copies of the designated documents or electronically stored information. The notice must also contain a designation of (i) the documents or electronically stored information to be produced or (ii) the land or other property to be entered.

  (c) Objections; Request. Before the subpoena is issued, any party may serve a written objection to the subpoena on all the other parties, including the party who gave written notice of the intent to serve the subpoena. If the subpoena is for entry onto land, any party may request that it be named in the subpoena as also entering at the same time and place.

  (1) Objection to Production or Entry. A party may object to one or more of the designations in the subpoena on the grounds that the designated production or entry is (i) protected by a privilege, in which case the party must identify the applicable privilege, (ii) not within the scope of Rule 26(b), or (iii) would be unreasonably intrusive or oppressive to the party. The objection must specify the designated production or entry to which the objection is directed and must also specify the grounds for the objection.

  (2) Unless the party withdraws the objection or the court orders otherwise, a subpoena may not command the production of any items or the entry onto any land to which an objection has been made pursuant to subpart (1) of this rule.

  (3) The party who intends to serve the subpoena may move for an order on the objection. The motion must be filed in the court where the action is pending and served on the other parties. The court may sustain or overrule the objection in whole or in part, order that discovery proceed in a different manner, or enter a protective order pursuant to Rule 26(d). The court may also award expenses as authorized in Rule 37(a)(5).

  (d) Issuance; Contents; Form of Production; Service.

  (1) Issuance. A subpoena may be issued pursuant to this rule by either the clerk of the court where the action is pending upon the request of a party or by an attorney on behalf of the court if the attorney is authorized to practice in the court.

  (2) Contents. A subpoena issued pursuant to this rule must:

  (A) state the name of the court from which it is issued, the title of the action, and the case number;

  (B) command the person to whom it is directed to produce the designated documents, electronically stored information, or things or permit the designated entry;

  (C) if for production, specify the time and place for the production or give the person the option of producing the designated documents or electronically stored information for inspection at the specified time and place or providing copies of them by the specified date;

  (D) if for entry, specify the time and place for the designated entry and state the name of each party entering;

  (E) state the name of each party who was given written notice that the subpoena would be issued and the date on which the party was given notice; and

  (F) include this rule, either in the text of the subpoena or as an attachment to the subpoena.

  (3) Form of Production. A subpoena may specify the form or forms in which electronically stored information is to be produced.

  (4) Reasonable Particularity. The designations in the subpoena must describe the documents, electronically stored information, or items with reasonable particularity.

  (5) Service on the Person; Time; Return of Service. A subpoena issued pursuant to this rule must be served on the person to whom it is directed no less than 14 days before the time specified for production or entry. The subpoena may be served by any person who is authorized by Neb. Rev. Stat. § 25-1223(9) to serve a subpoena. Service must be made in the manner authorized by Neb. Rev. Stat. § 25-1226(1) for service of a deposition subpoena and the return of service must be made in the manner specified by Neb. Rev. Stat. § 25-1228(2).

  (6) Service on the Other Parties. The party who serves a subpoena on the person pursuant to this rule must also serve a copy of the subpoena on the other parties no less than 14 days before the time specified for production or entry.

  (7) Protective Order. After a subpoena has been issued, any party or the person served with a subpoena may move for a protective order pursuant to Rule 26(d).

  (8) Avoiding Undue Burden or Expense. A party or an attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court by which the subpoena was issued must enforce this duty and impose an appropriate sanction – which may include lost earnings and reasonable attorney fees – on a party or attorney who fails to comply.

  (e) Objections; Motions. If a person served with a subpoena believes that compliance with the subpoena should not be required in whole or in part, the person may serve an objection to the subpoena or file a motion to quash or modify the subpoena.

  (1) Objection.

  (A) Making an Objection. A person served with a subpoena may serve on the party serving the subpoena an objection to producing any or all of the designated items, to producing electronically stored information in the specified form or forms, or to allowing the designated entry. The objection must be in writing and served within 14 days after the subpoena was served. The party on whom the objection was served must promptly serve a copy of the objection on all the other parties to the action.

  (B) Waiver of Objection. The objection must state the grounds for the objection and must also state with specificity why the subpoena is objectionable on those grounds. Any ground not stated in a timely objection is waived unless (i) the objection is based on a privilege or the work product protection or (ii) the court, for good cause, excuses the failure.

  (C) Ruling on an Objection. If the person serves an objection, the person is not required to produce the objected-to items or to permit entry unless a court orders otherwise. The party serving the subpoena may file a motion in the court where the action is pending for an order overruling the objection and compelling compliance with the subpoena. An order compelling compliance must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

  (2) Motion to Quash. A person served with a subpoena may file a motion to quash or modify the subpoena. The motion must be filed in the court where the action is pending before the time specified for compliance or within 14 days after the subpoena was served, whichever is earlier, and must also be served on all the parties. The court must grant the motion to quash or modify if the subpoena:

  (A) fails to allow a reasonable time for compliance;

  (B) requires disclosure of privileged or other protected matter, and no exception or waiver applies; or

  (C) subjects the person to undue burden.

  (f) Duties in Responding to a Subpoena.

  (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information.

  (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the subpoena.

  (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person must produce it in a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms.

  (C) Electronically Stored Information Produced in Only One Form. The person need not produce the same electronically stored information in more than one form.

  (2) Claiming Privilege or Protection. When a person withholds subpoenaed information by claiming that the information is privileged or subject to protection as work product, the party must:

  (A) expressly make the claim; and

  (B) describe the nature of the documents, communications, or tangible not produced – and do so in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

  (g) Production of Privileged or Protected Documents. Rule 26(b)(5) applies to documents or electronically stored information produced in response to a subpoena.

  (h) Duplicates. If the party who served the subpoena creates or obtains copies of any items from the person served with the subpoena, the party must make duplicate copies available to any other party who requests them and pays in advance the reasonable cost of making the duplicates.

COMMENTS TO § 6-334(A)

  [1] Section 6-334(A) specifies the procedures for obtaining documents and other tangible things from a nonparty as well as for entering onto land possessed or controlled by a nonparty. Most of the rule was promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1273. The provisions on subpoenas duces tecum were promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1224(2). The rule was substantially reorganized and rewritten in 2024 to make it more comprehensive and readable.

  [2] Subpart (a)(3) provides that a subpoena duces tecum must comply with § 6-334(A). Because a subpoena duces tecum must comply with the rule, a party cannot circumvent the prior notice provisions of subpart (b) by issuing a subpoena duces tecum instead of a document subpoena. Subpart (a)(3) also provides that a subpoena duces tecum must contain the interpreter statements required by § 6-330(b)(1)(E), the information required by Neb. Rev. Stat. § 25-1223(4), and a statement of the recording method.

  [3] The 2024 Amendments incorporated the current statutory requirements for issuing and serving subpoenas. The Amendments also harmonized much of the wording and many of the procedures in §§ 6-334 and 6-334(A). Like § 6-334, § 6-334(A) as amended provides that the documents sought must be described with reasonable particularity (subpart (d)(4)), contains provisions on the form in which electronically stored information should be produced (subparts (d)(3) and (e)(1)(a)), specifies the information that must be provided when privileged or protected documents are withheld (subpart(f)(2)), and states that § 6-326(b)(5) applies when privileged or protected documents are inadvertently produced (subpart (g)).

  [4] Although both rules give the recipient the option of producing copies of the documents instead of making the documents available for inspection and copying, they do so in different ways. Under § 6-334(A)(a)(2), the recipient has the option only if the subpoena gives the recipient the option. Under § 6-334, the recipient always has the option. See § 6-334(c)(2)(B). The reason for the difference is that a subpoena is a command from the court and a request is just that, a request. If the recipient of a subpoena has an option on how to comply, that option should be stated in the subpoena.

  [5] The rule originally provided that if any party objected to the issuance of a subpoena that gave the recipient the option of producing the documents, the subpoena could not be issued until the parties agreed on the method for producing the documents. The provision was deleted by the 2024 Amendments.

  [6] The 2024 Amendments reset most time periods of less 30 days in multiples of seven. The minimum time period for parties and subpoena recipients to serve objections is now 14 days rather than 10 days.

  [7] Both § 6-334 and § 6-334(A) provide that objections are waived if they are not timely made. There are differences, however, because the response time for a subpoena is shorter than the response time for a request. Section 6-334(A)(e)(1)(A) provides that objections to a subpoena must be made in writing within 14 days after the subpoena is served. The failure to make a timely objection waives the objection unless (1) the court finds that there was good cause for the failure or (2) the objection is based on a privilege or the work product protection. 

  [8] Unlike objections based on relevance or burden, objections based on privileges and the work product protection are usually document-specific objections that require an actual review of the individual documents. Subpoena recipients may not be able to complete their review of the documents and provide the information required by subpart (f)(2) within 14 days. 

  [9] The judge presiding over a case is in the best position to rule on discovery motions in the case. Therefore, the rule requires that motions related to the issuance and enforcement of a subpoena must be filed in the court in which the action is pending. Those include motions for a ruling on an objection to the issuance of a subpoena (subpart (c)(3)), motions to compel compliance with the subpoena (subpart (e)(1)(C)), and motions to quash or modify the subpoena (subpart (e)(2)). 

Rule 34A and Comment adopted December 12, 2001; Rule 34A(c)(2)(B) amended May 19, 2004; Rule 34A(a)(1)(A), 34A(a)(2), 34A(b)(1), 34A(c)(2)(A-B) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 6-334(A), effective July 18, 2008; § 6-334(A) amended November 13, 2024, effective January 1, 2025; § 6-334(A) amended September 3, 2025.

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§ 6-335. Physical and mental examinations.

§ 6-335. Physical and mental examinations.

  (a) Order for Examination. 

  (1) In General. The court where the action is pending may order a party whose mental or physical condition – including blood group – is in controversy to submit to a physical or mental examination by one or more suitably licensed or certified examiners. The court has the same authority to order a party to produce for examination a person who is in the party’s custody or under the party’s legal control.

  (2) Motion and Notice; Contents of the Order. The order: 

  (A) may be made only on motion for good cause and on notice to all parties; and 

  (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

  (b) Examiner’s Report.

  (1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

  (2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.

  (3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request – and is entitled to receive – from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

  (4) Failure to Deliver a Report. The court on motion may order – on just terms – that­ a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner’s testimony at trial.

   (5) Scope. This subpart (b) applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subpart does not preclude obtaining an examiner’s report or deposing an examiner under other rules.

COMMENTS TO § 6-335

  [1] The requirement that the examination be conducted by a suitably licensed or certified examiner mirrors the requirement in Rule 35 of the Federal Rules of Civil Procedure and gives the court the discretion to assess the examiner’s credentials to ensure that the examiner has the expertise necessary to perform the proposed examination.

  [2] The rule originally required that notice of a motion for an examination be given to all parties and to the person to be examined. The requirement of giving notice to the person to be examined was eliminated by the 2024 Amendments because it was unnecessary. The requirement of giving notice to all parties – including self-represented parties, parties represented by an attorney, and persons bringing claims as a representative (for example, a next friend) – ensures that the person to be examined will receive notice of the motion.

  [3] Subpart (b) requires a party that receives a copy of the examiner’s report to provide copies of any reports that the party may have on the same condition. Because those reports involve a condition that is an element of the party’s claim or defense, those reports are not covered by the physician-patient privilege. See Neb. Rev. Stat. § 27-504(4)(c).

Rule 35(b) comment amended February 26, 1997; Rule 35(a) and 35(a) comment amended November 21, 2001. Renumbered and codified as § 6-335, effective July 18, 2008; § 6-335 amended November 13, 2024, effective January 1, 2025.

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§ 6-336. Requests for admission.

§ 6-336. Requests for admission.

  (a) Scope and Procedure.

  (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b) relating to:

  (A) facts, the application of law to fact, or opinions about either; and

  (B) the genuineness of any described documents.

  (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. 

  (3) When Served; Editable Format. Requests may be served on the plaintiff after commencement of the action and on any other party with or after service of the summons on that party. Upon demand, the party served with the requests must be given an electronic copy of the requests in a readily editable format. 

  (4) Time to Respond; Effect of Not Responding. A matter is admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney:

  (A) within 30 days after being served with the request;

  (B) if the party is a defending party within 45 days after being served with the summons or 30 days after being served with the request, whichever is longer; or

  (C) the time stipulated to under Rule 29 or ordered by the court.

  (5) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of the matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

  (6) The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.

  (7) Form of Answer or Objection. The answering or objecting party must reproduce each request and then state the party’s answer or objection to the request.

  (8) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.

  (b) Effect of Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. The court may permit withdrawal or amendment if it promotes the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

COMMENTS TO § 6-336

  [1] Much of the rule is modeled on Federal Rule 36. There are minor differences, however, including when requests may be served and how the responding party must structure its responses.

  [2] Unlike the rules governing interrogatories and document production requests, § 6-336 does not require the responding party to state its objections with specificity. The specificity requirement is designed to help parties to resolve discovery disputes. Requests for admission, however, are a means of establishing facts rather than discovering them. Therefore, the rationale for the specificity requirement does not apply to them.

§ 6-336 amended November 13, 2024, effective January 1, 2025; § 6-336 amended September 3, 2025.

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§ 6-337. Failure to make disclosures or to cooperate in discovery: sanctions.

§ 6-337. Failure to make disclosures or to cooperate in discovery: sanctions.

  (a) Motion for Order Compelling Disclosure or Discovery.

  (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

  (2) Appropriate Court. A motion for an order compelling disclosure or discovery must be made in the court in which the action is pending.

  (3) Specific Motions.

  (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(c), any other party may move to compel disclosure and for appropriate sanctions.

  (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production or inspection. The motion may be made if:

  (i) a deponent fails to answer a question asked under Rule 30 or Rule 31;

  (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(5); 

  (iii) a party fails to answer an interrogatory submitted under Rule 33; or 

  (iv) a party fails to produce documents or fails to respond that inspection will be permitted – or fails to permit inspection – as requested under Rule 34.

  (C) Related to a Deposition. When taking an oral deposition, the party asking the question may complete or adjourn the examination before moving for an order.

  (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subpart (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

  (5) Payment of Expenses; Protective Orders.

  (A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing). If the motion is granted – or if the disclosure or requested discovery is provided after the motion was filed – the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, the attorney’s law firm or employer, or some or all of them to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees. But, the court must not order this payment if:

  (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

  (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or

  (iii) other circumstances make an award of expenses unjust.

  (B) If the Motion is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(d) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, the attorney’s law firm or employer, or some or all of them to pay to the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

  (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(d) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

  (b) Failure to Comply with a Court Order.

  (1) Sanctions. If a party or a party’s officer, director, or managing agent – or a witness designated under Rule 30(b)(6) or Rule 31(a)(5) – fails to obey an order to provide or permit discovery, including an order made under Rule 35 or Rule 37(a), the court in which the action is pending may issue further just orders. They may include the following:

  (A) directing that the matters embraced in the order or other designated facts be taken as established for the purposes of the action, as the prevailing party claims;

  (B) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

  (C) striking pleadings in whole or in part;

  (D) staying further proceedings until the order is obeyed;

  (E) dismissing the action or proceeding in whole or in part;

  (F) rendering a default judgment against the disobedient party; or

  (G) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

  (2) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another for examination, the court may issue any of the orders listed in Rule 37(b)(1)(A)-(F), unless the disobedient party shows that it cannot produce the other person.

  (3) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, the attorney’s law firm or employer, or some or all of them to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

  (c) Failure to Admit.

  If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move, within 30 days of so proving, that the party who failed to admit be ordered to pay the reasonable expenses, including attorney fees, incurred in making that proof. The court must so order unless:

  (1) the request was held objectionable under Rule 36(a);

  (2) the admission sought was of no substantial importance;

  (3) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

  (4) there was other good reason for the failure to admit.

  (d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, Respond to a Request for Inspection, Disclose, or Supplement an Earlier Response.

  (1) In General.

  (A) Motion; Grounds for Sanctions. The court in which the action is pending may, on motion, order sanctions if:

  (i) a party or a party’s officer, director, or managing agent – or a person designated under Rule 30(b)(6) or Rule 31(a)(4) – fails, after being served with proper notice, to appear for that person’s deposition; or

  (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

  (iii) a party fails to provide information or identify a witness as required by Rule 26(c) or (e).

  (B) Certification. A motion for sanctions under subpart (ii) for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

  (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(d).

  (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(1)(A)-(F). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, the attorney’s law firm or employer, or some or all of them to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

  (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

  (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

  (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

  (A) presume that the lost information was unfavorable to the party;

  (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

  (C) dismiss the action or enter a default judgment.

COMMENTS TO § 6-337

   [1] Some discovery disputes can be resolved informally by the parties working together. To encourage parties to work together, subpart (a)(1) requires a party to attempt to resolve a discovery dispute informally before filing a motion to compel. Subpart (d)(1)(B) imposes the same requirement on a party seeking sanctions for the failure to appear at a deposition or to respond to discovery requests.

  [2] The judge presiding over a case is in the best position to rule on discovery motions. Therefore, all motions to compel – including those related to a deposition – must be filed in the court in which the action is pending.

  [3] The original version of the rule did not allow a court to impose sanctions on a party that provided the requested discovery after a motion to compel was filed but before the motion was heard. Subpart (a)(5)(A) now allows a court to do so. The possibility of sanctions may discourage parties from engaging in brinkmanship by refusing to provide the requested discovery until the requesting party incurs the expense of preparing and filing a motion to compel.

  [4] The original version of the rule did not expressly give courts the discretion to impose sanctions on an attorney’s law firm or employer. The 2024 Amendments added provisions in Subparts (a), (b), and (d) to give courts the discretion to do so. Giving courts that discretion is appropriate because law firms and employers have an obligation to ensure that their attorneys conduct themselves in a professional and ethical manner. Furthermore, it is sometimes difficult to identify which attorneys are responsible for the conduct at issue. The attorney who signed a motion or objection may not be the attorney who decided that the motion should be filed or that the objection should be made. The term “employer” was included to make it clear that the rule covers in-house and government attorneys.

  [5] Section 6-326(e) originally addressed when parties were required to supplement their discovery responses. The 2024 Amendments extended the requirement to cover expert witness disclosures. Sanctions for failing to supplement discovery responses and expert witness disclosures may now be imposed pursuant to subpart (d)(1)(A)(iii).

  [6] The original version of § 6-337 did not expressly identify the types of sanctions that could be imposed for breaching the duty to supplement. The Supreme Court filled the gap by holding that sanctions could be imposed pursuant to § 6-337(d). See Paulk v. Central Laboratory Associates, P.C., 262 Neb. 838, 848 (2001). Many of the reported cases on sanctions involved the failure to supplement discovery requests for information about expert witnesses and their testimony. As a result, there is a substantial body of case law that identifies the factors that courts should consider in deciding the appropriate sanction to impose for failing to provide information about expert witnesses and their testimony. That case law is relevant in determining the appropriate sanctions under subpart (d)(1)(A)(iii).

  [7] The 2024 Amendments added subpart (e), which addresses sanctions for failing to preserve electronically stored information. The wording of the subpart is identical to the wording of Rule 37(e) of the Federal Rules of Civil Procedure. Therefore, federal cases interpreting Rule 37(e) are relevant in resolving issues that may arise under § 6-337(e). For the same reason, the Advisory Committee Notes on Federal Rule 37(e) – which are detailed and extensive – are also relevant.

  [8] The rule specifies three requirements for imposing sanctions: (1) electronically stored information should have been preserved (2) but was lost because the party failed to take reasonable steps to preserve it, and (3) the information cannot be restored or replaced through additional discovery.

  [9] The rule does not require parties to preserve every piece of electronically stored information. It instead requires parties to preserve electronically stored information that is relevant to anticipated or ongoing litigation. Litigation is anticipated when a reasonable person in the same circumstances would reasonably foresee litigation. Examples of events that may trigger the duty to preserve include, among others, sending or receiving a demand or a preservation letter or making or receiving threats of litigation.

  [10] Whether a party took reasonable steps to preserve the information is a function of the circumstances, which include the party’s sophistication and resources. The party’s attorney (if the party is represented by an attorney) should educate the party about its preservation obligations. The attorney may also help the party comply with those obligations by issuing written instructions (often called “litigation holds”) and overseeing the party’s preservation efforts.

  [11] Sanctions should not be imposed if the lost information can be restored or replaced through additional discovery. The question of whether the information can be restored or replaced turns on whether the same electronic information can be obtained from a different source, not on whether substitute information can be obtained through a different method of discovery such as a deposition.

  [12] If the requirements for sanctions are met and the other party was prejudiced by the failure to preserve the information, the court may impose sanctions pursuant to subpart (e)(1). Those sanctions must be no greater than necessary to cure the prejudice. For example, if the party failed to preserve electronic records that were relevant to a particular issue, an appropriate sanction might be to preclude the party from offering evidence about that issue or to preclude the party from testifying about the contents of those records.

  [13] Prejudice is presumed if the party acted with the intent to deprive the other party of the information. If the party acted with the requisite intent, the court may impose sanctions pursuant to subpart (e)(2). Circumstantial evidence is often important because direct evidence of intent is often absent. In determining the appropriate sanction to impose, the court may consider all the circumstances, including the importance of the information lost and the level of the party’s culpability.

Rule 37(c) amended July 23, 1997. Renumbered and codified as § 6-337, effective July 18, 2008; § 6-337 amended November 13, 2024, effective January 1, 2025; § 6-337 amended September 3, 2025.

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Prior Version of Article 3: Nebraska Court Rules of Discovery in Civil Cases. (Effective before January 1, 2025.)

Prior Version of Article 3: Nebraska Court Rules of Discovery in Civil Cases. (Effective before January 1, 2025.)

See Neb. Ct. R. Disc. § 6-326(h) (rev. 2025).

(cite as Neb. Ct. R. Disc. § (rev. 20xx))

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Revisor's note.

Revisor's note.

   (Revisor's note: The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule number. Subsections and references within the rule to rules by number and subsection remain unchanged. Thus, a reference in this rule to rule 34(b) should be interpreted and found at Neb. Ct. R. Disc. § 6-334(b), etc.)

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§ 6-301. Promulgating order.

§ 6-301. Promulgating order.

  Pursuant to the provisions of Neb. Rev. Stat. § 25-1273.01, the Supreme Court does hereby promulgate the following discovery rules in civil cases, effective as of January 1, 1983.

  These rules shall, as written, apply in the district courts, and in all other courts of Nebraska to the extent not inconsistent with other statutes. Rules 26 and 37 are applicable to county courts as to actions pending in those courts on the effective date of these rules.

COMMENT ON CIVIL DISCOVERY RULES

  These discovery rules follow the structure of the current discovery portion of the Federal Rules of Civil Procedure, but the content of the Nebraska rules is not always that of the federal rules. The federal rules were used for the structure because they are well known, being used in federal court and in many state courts, and because Nebraska originally followed the federal pattern when discovery was adopted in Nebraska in 1951. The committee considered the text of current Nebraska statutes, the current federal rules, recently proposed federal rules, and certain rules used in other states, and recommended the language that appears best for Nebraska practice. The federal rule numbers were retained for ease of comparison with the law of other jurisdictions.

  (The preceding comment and comments following each rule were adopted from the comments of the Supreme Court Committee on Practice and Procedure submitted to the Supreme Court in October 1981.)

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§ 6-302 through § 6-325 [Reserved].

§ 6-302 through § 6-325 [Reserved]. dbrown-butterfield

§ 6-326. General provisions governing discovery.

§ 6-326. General provisions governing discovery.

  (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.

  (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

  (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

  (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

  (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

  A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

  (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial may be obtained only as follows:

  (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

  (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivisions (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

  (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

  (C) Unless manifest injustice would result,

  (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and

  (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

  (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the district court in the district where the deposition is to be taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  (1) that the discovery not be had;

  (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

  (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

  (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

  (5) that discovery be conducted with no one present except persons designated by the court;

  (6) that a deposition after being sealed be opened only by order of the court;

  (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

  (8) that the parties simultaneously file specified documents or information under seal with access only as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

  (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

  (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his or her response to include information thereafter acquired, except as follows:

  (1) A party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to

  (A) the identity and location of persons having knowledge of discoverable matters, and

  (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.

  (2) A party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which

  (A) he or she knows that the response was incorrect when made, or

  (B) he or she knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

  (3) A duty to supplement responses may be imposed by order of the court or by agreement of the parties.

  (f) Service of Discovery Documents. Except as otherwise ordered by the court, every discovery document and every motion relating to discovery and response thereto required to be served upon a party shall be served upon each of the parties not in default for failure to appear.

  (g) Filing of Discovery Materials. Discovery materials that do not require action by the court shall not be filed with the court. All such materials, including notices of deposition, depositions, certificates of filing a deposition, interrogatories, answers and objections to interrogatories, requests for documents or to permit entry upon land and responses or objections to such requests, requests for admissions and responses or objections to such requests, subpoenas for depositions or other discovery and returns of service of subpoenas, and related notices shall be maintained by the parties.

  Discovery materials shall be filed with the court only when ordered by the court or when required by law. If the original of a deposition is not in the possession of a party who intends to offer it in evidence at a hearing, that party may give notice to the party in possession of it that the deposition will be needed at the hearing. Upon receiving such notice the party in possession of the deposition shall either make it available to the party who intends to offer it or produce it at the hearing.

COMMENTS TO RULE 26

  26(a) This subsection provides a catalog of the discovery devices, and is new to Nebraska law. Although there is no limit on the frequency of use of these methods, the limit on interrogatory questions in Rule 33 will restrict the extent of discovery by interrogatory.

  26(b)(1) and (2) The definition of the scope of discovery in subsection (1) follows former Neb. Rev. Stat. § 25-1267.02 (Repealed 1982). The provision of subsection (2) was taken from the federal rules and follows the rule established in Walls v. Horback, 189 Neb. 479, 203 N.W.2d 490 (1973).

  26(b)(3) Subsection (3) provides for protection of material often described as an attorney's work product, and follows the language of the federal rule. Prior Nebraska law on discovery of work product was established in Haarhues v. Gordon, 180 Neb. 189, 141 N.W.2d 856 (1966). A provision similar but not identical to the second paragraph of subsection (3) was found in Neb. Rev. Stat. § 25-1222.02 (Repealed 1982). That section, however, applied only to statements by parties and provided only the sanction of exclusion at trial. The language found in subsection (3) was adopted to maintain uniformity of language, to authorize a wider range of sanctions, and to cover statements by parties and nonparties.

  26(b)(4) Subsection (4) on experts presents in the expanded language of the federal rules the idea found in former Neb. Rev. Stat. § 27-705(2) (Repealed 1982). The committee recommended repeal of that section, a part of the Nebraska Evidence Rules, because it is a discovery procedure better codified here in the discovery rules.

  26(c) This provision on sanctions is substantially similar to former Neb. Rev. Stat. §§ 25-1267.22 and 25-267.31 (Repealed 1982), but is expanded to include all kinds of discovery and not just depositions and interrogatories.

  26(d) This is a new provision identical to the federal rules; it would not appear to change current Nebraska practice.

  26(e) This provision on supplementation of discovery was added to the federal rules in 1970 and is now adopted for the first time in Nebraska. The proposed language follows the federal rule, except that in subsection (e)(3) the federal language allowing imposition of the duty to supplement by a request for supplementation was rejected.

  26(f) A provision on service of discovery papers is necessary because Nebraska law prior to the adoption of these rules did not cover the topic. This is a nonuniform addition to the language of the federal rules because such a provision is in Rule 5(a) of the federal rules, while Nebraska has no similar rule.

  26(g) This rule has been adopted because the routine filing of discovery material has unnecessarily overcrowded court files. Parties are now required to keep possession of the discovery material and file it only upon court order or when required by law. Discovery materials used to support or resist a motion for summary judgment shall not be filed separately; Neb. Rev. Stat. § 25-1332 (Amended 2001) makes clear that the court may consider them only if they are admitted as evidence.

Rule 26(g) amended December 12, 2001; Comments to Rule 26(g) amended December 12, 2001. Renumbered and codified as § 6-326, effective July 18, 2008; § 6-326(c)(8) and (f) amended June 9, 2021, effective January 1, 2022.

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§ 6-327. Depositions before action or pending appeal.

§ 6-327. Depositions before action or pending appeal.

   (a) Before Action.

  (1) Petition. A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a petition verified by affidavit of the petitioner or his or her attorney in the district court in the district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:

  (i) The petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought;

  (ii) the subject matter of the expected action and his or her interest therein;

  (iii) the facts which he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it;

  (iv) the names or a description of the persons he or she expects will be adverse parties and their addresses so far as known; and

  (v) the names and addresses of the persons to be examined and the substance of the testimony which he or she expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

  (2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty days before the date of hearing the notice shall be served in the manner provided for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court shall order service by publication in the manner provided in Rule 30(b)(1)(D), and shall appoint, for persons not served in the manner provided for service of summons, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Neb. Rev. Stat. § 25-309 shall apply.

  (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

  (4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a district court in this state, in accordance with the provisions of Rule 32(a).

  (b) Pending Appeal. If an appeal has been taken from a judgment of a district court, the appellate court, upon motion filed therein and notice and service thereof as if the action was pending in the district court, may remand the motion to the district court for consideration and ruling, may itself overrule the motion, or, if the appellate court finds that the perpetuation of the testimony is proper to avoid failure or delay of justice, may itself enter an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court. The motion shall show

  (1) the names and addresses of persons to be examined and the substance of the testimony which he or she expects to elicit from each;

  (2) the reasons for perpetuating their testimony.

  (c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

COMMENT TO RULE 27

  The language of Rule 27 is substantially similar to federal rule 27 and to former Neb. Rev. Stat. §§ 25-1267.08 to 25-1267.13 (Repealed 1982).

Rule 27(b) amended January 14, 1998. Renumbered and codified as § 6-327, effective July 18, 2008. § 6-327(a)(2) amended October 21, 2015, effective January 1, 2016.

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§ 6-328. Persons before whom depositions may be taken.

§ 6-328. Persons before whom depositions may be taken.

  (a) Within this State. Within this State depositions may be taken before a judge or clerk of the Supreme Court or district court, a county judge, clerk magistrate, notary public, or any person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

  (b) Elsewhere Within the United States. Within other states of the United States or within a territory or insular possession subject to the jurisdiction of the United States depositions may be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

  (c) In Foreign Countries. In a foreign country, depositions may be taken

  (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or

  (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his or her commission to administer any necessary oath and take testimony, or

  (3) pursuant to a letter rogatory.

  A commission or a letter rogatory shall be issued on application and notice on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.

  (d) Disqualification for Interest. The officer before whom the deposition is taken and the person recording the testimony shall not be a relative, employee, or attorney of any of the parties, nor a relative or employee of such attorney, nor financially interested in the action.

  (e) Depositions for Use in Other Jurisdictions. Rule 30A applies when the deposition of any person is to be taken in this state for use in proceedings in another state. When the deposition of any other person is to be taken in that state for use in proceedings in another country, witnesses may be compelled to appear and testify in the same manner and by the same process and proceedings as may be employed for the purpose of taking testimony in proceedings pending in this state. The district court for the county where the deponent is found may make such orders as could be made if the deposition were intended for use in this jurisdiction, having due regard for the laws and rules of the other country.

COMMENT TO RULE 28

  Subsection (a) follows former Neb. Rev. Stat. § 25-1267.14 (Repealed 1982), with the deletion of mayors and master commissioners as unnecessary. Subsection (b) does not follow former Nebraska statutes; the language of federal rule 28(a) was adopted to describe the officer by reference to the laws of the sister state or of the United States. Subsection (c) is new language on depositions in foreign countries and is taken from federal rule 28(b) which sets out all possible ways of taking depositions outside the United States. Subsection (d) follows the language of Neb. Rev. Stat. § 25-1267.17 (Repealed 1982), by applying the disqualification rule to both the officer and the person recording the testimony, if those are not the same person.

§ 6-328(e) and Comment amended January 27, 2021, effective February 16, 2021.

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§ 6-329. Stipulations regarding discovery procedure.

§ 6-329. Stipulations regarding discovery procedure.

  Unless the court orders otherwise, the parties may by written or otherwise recorded stipulation:

  (1) Provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and

  (2) Modify the procedures provided by these rules for other methods of discovery.

COMMENT TO RULE 29

  This provision is essentially new. It again authorizes the common practice of stipulations on discovery. It follows federal rule 29, but does not exclude certain subjects from stipulations as does the federal language. Similar language was originally included in former Neb. Rev. Stat. § 25-1267.19 (Repealed 1982), but had been dropped prior to the repeal of that section as the section had been amended several times to cover a different topic.

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§ 6-330. Depositions upon oral examination.

§ 6-330. Depositions upon oral examination.

  (a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of summons, except that leave is not required:

  (1) If a defendant has served a notice of taking a deposition or otherwise sought discovery, or

  (2) If special notice is given as provided in subdivision (b)(2) of this rule.

  The attendance of witnesses may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

  (b) Notice of Examination: General Requirements; Special Notice; Recording; Interpreters; Production of Documents and Things; Deposition of Organization; Officer's Duties.

  (1)(A) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs. The notice shall also state the name, address, telephone number, and email address (if any) of the party taking the deposition or if the party is represented, the party's attorney. If it is known that an interpreter will be used, the notice shall state that an interpreter will be used and shall state the language that will be interpreted or the type of interpretation (e.g., sign language). If it is unknown whether an interpreter may be necessary, the notice shall include the following advisory statement: "If you are a person who is deaf, hard of hearing, or unable to communicate in the English language, you should contact as soon as possible the attorney or the party whose name is stated in this notice or subpoena and let that attorney or party know that you will need the help of an interpreter to understand and answer questions during the deposition."

  (B) If a subpoena is to be served on the person to be examined, the subpoena shall contain the same information required by subdivision (A) of this rule. The advisory statement required by subdivision (A) may be omitted from the notice if it is included in the subpoena.

  (C)(1) If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced pursuant to the subpoena shall be attached to or included in the notice. If any of the materials are in a language other than English, the person on whom the subpoena duces tecum is served shall promptly notify the party serving the subpoena of the language(s). The party serving the subpoena shall then promptly notify every other party to the action of the language(s).

  (2) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.

  (D) When the party against whom the deposition is to be used is unknown or is one whose whereabouts cannot be ascertained, he or she may be notified of the taking of the deposition by publication or by any manner that is approved by the court and reasonably calculated under the circumstances to provide the party with actual notice. The publication must be made once in some newspaper printed in the county where the action is pending, if there be any printed in such county, and if not, in some newspaper printed in this state of general circulation in that county. The publication must contain all that is required in a written notice and must be made at least ten days prior to the deposition. Publication may be proved in the manner prescribed in Neb. Rev. Stat. § 25-520. Before publication, a copy of the written notice shall be filed with the court in which the action is pending.

  (2) Leave of court is not required for the taking of a deposition by plaintiff if the notice:

  (A) States that the person to be examined is about to go out of the State of Nebraska and will be unavailable for examination in the State of Nebraska unless his or her deposition is taken before expiration of the thirty-day period, and

  (B) Sets forth facts to support the statement.

  The plaintiff's attorney shall sign the notice, and his or her signature constitutes a certification by him or her that to the best of his or her knowledge, information, and belief the statement and supporting facts are true.

  If a party shows that when he or she was served with notice under subdivision (b)(2) he or she was unable through the exercise of diligence to obtain counsel to represent him or her at the taking of the deposition the deposition may not be used against him or her.

  (3) The court may for good cause shown enlarge or shorten the time for taking the deposition.

  (4) The notice required by subdivision (1) shall state the means by which the testimony will be recorded and preserved. The court may make any order necessary to assure that the record of the testimony will be accurate and trustworthy

  (A) Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means, or any combination of those means. The noticing party bears the cost of the recording means specified in the notice.

  (B) With prior notice to the deponent and other parties, any party or the deponent may designate another means of recording the testimony in addition to the means specified in the original notice. The additional recording shall be made by the officer personally or by someone acting in the presence of and under the direction of the officer. The party or deponent who designates another means bears the cost of the additional record or transcript unless the court orders otherwise. Absent a stipulation of the parties, no other recordings of the testimony may be made.

  (5) If the deponent is a person who is deaf, hard of hearing, or unable to communicate the English language as defined in Neb. Rev. Stat. § 25-2402, an interpreter must be used to interpret the questions and answers. Unless the parties stipulate or the court upon good cause shown orders otherwise, the noticing party shall arrange and pay for the interpreter. Unless the parties stipulate or the court upon good cause shown orders otherwise, the interpreter must be a certified or provisionally certified interpreter; however, if the noticing party has made reasonably diligent efforts to obtain a certified or provisionary certified interpreter and none are available, the interpreter may be a registered interpreter. A certified interpreter, a provisionally certified interpreter, and a registered interpreter is one who, pursuant to Neb. Ct. R. § 6-702(A)-(C), is listed as such in the statewide register of interpreters published and maintained by the State Court Administrator.

  (6) A party may in his or her notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

  (7) The parties may stipulate in writing, or the court may upon motion order, that a deposition be taken by telephone or by other remote means. For the purposes of these rules, a deposition taken by telephone or by other remote means is taken at the place where the deponent is to appear to answer questions. Absent a court order or stipulation of the parties, the officer must be in the same location as the deponent.

  (8) Officer's Duties.

  (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer identified by Rule 28 as a person before whom a deposition may be taken. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer's name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and (v) the identity of all persons present.

  (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(8)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.

  (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.

  (c) Examination and Cross-Examination; Record of Examination; Oath; Objections.

  (1) Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Nebraska Evidence Rules. The officer before whom the deposition is to be taken shall put the witness under oath and, if an interpreter is used, also put the interpreter under oath. The officer shall also personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness. The testimony shall be recorded in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at time of the examination to the qualifications of the officer taking the deposition, the qualification of the interpreter, or to the manner of taking the deposition, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections.

  (2) An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d).

  (3) In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he or she shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

  (d) Motion to Terminate or Limit Examination. At any time during a deposition, the deponent or a party may move to terminate or limit the deposition on the ground that (1) it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party or (2) the interpreter is not rendering a reasonably complete and accurate interpretation or is repeatedly altering, omitting, or adding things, including explanations, to what is stated. The motion may be filed in the court in which the action is pending. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated the deposition may be resumed only by order of the court in which the action is pending. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

  (e) Review; Waiver; Motion to Suppress.

  (1) On request by the deponent or a party before the deposition is completed, the deponent must be allowed thirty days after being notified by the officer that the transcript or recording is available in which (a) to review the transcript or recording and (b) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. The deponent may be allowed more or fewer than thirty days if the parties stipulate to or the court orders a different number of days. The officer must note in the certificate required by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the period specified above for review.

  (2) All objections to the accuracy of the deposition, including objections to accuracy of the interpreter's interpretation of the questions or answers, are waived if a request for review is not made before the deposition is completed or, if a request for review is made, no changes are submitted to the officer in the time and manner required by subdivision (1) of this rule and no motion is made pursuant to subdivision (3) of this rule.

  (3) If a request for review is made, the deponent or any party may move to suppress the deposition pursuant to Rule 32(d)(4) on the ground that the deponent was not allowed to review the transcript or recording as provided in subdivision (1) or that the transcription or interpretation of the deposition is inherently inaccurate.

  (f) Certification and Delivery by Officer; Copies; Notice of Delivery.

  (1) The officer shall include in or attach to the deposition a certificate that the witness was duly sworn by him or her and that the deposition is an accurate record of the testimony of the witness. Unless otherwise ordered by the court, the officer shall then deliver the deposition to the party taking the deposition, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

  Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them, he or she may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he or she affords to all parties fair opportunity to verify the copies by comparison with the originals or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the originals be annexed to the deposition, pending final disposition of the case.

  (2) Unless otherwise stipulated by the parties or ordered by the court, the officer must retain the stenographic notes of a deposition taken stengraphically or a copy of the recording of a deposition taken by another method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or recording to any party or to the deponent.

  (3) The party taking the deposition shall give prompt notice to all other parties that it has been delivered by the officer before whom taken.

  (g) Failure to Attend or to Serve Subpoena; Expenses.

  A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney fees, if the noticing party failed to:

  (1) attend and proceed with the deposition; or 

  (2) serve a subpoena on a nonparty deponent, who consequently did not attend.

  (h) Protective Orders. The deponent or any party may move at any time for an order pursuant to Rule 26(c) to limit the dissemination of the deposition, either in whole or in part, or to limit the persons who may have access to the deposition.

COMMENTS TO RULE 30

  30(b)(1) Because of the increasing number of Nebraskans who may have difficulty communicating in the English language, there is an increased likelihood that the deponent will need the assistance of an interpreter. It is important for the parties to work together to ensure that an interpreter is used when necessary. Rule 30(b)(1)(A) provides that if an interpreter will be used, the notice should state that and should also state the language that will be interpreted. If notice is silent about an interpreter but another party believes that one is necessary, then the other party should contact the noticing party. That way, both parties may avoid appearing for a deposition that would otherwise have to be canceled for lack of an interpreter. To facilitate parties working together, the rule requires the inclusion of an advisory statement in the notice.

  It is less likely that the noticing party will know if nonparties require an interpreter, and it is also less likely that nonparties will know to contact the noticing party if they do. Therefore, it is especially important that a subpoena served on a nonparty include the advisory statement. If a subpoena will be served on a nonparty witness, a party may give the other parties written notice of the deposition by serving them with a copy of the subpoena, provided that the subpoena contains the information required by the rule. Alternatively, a party may give the other parties written notice by serving them with a separate document that contains the information required by the rule. If the party does so, the party may omit the advisory statement from the document because it will be contained in the subpoena served on the witness.

  Parties sometimes attempt to circumvent the thirty-day period for responding to Rule 34 requests by serving a subpoena on the party. Rule 30(b)(1)(C) makes it clear that document subpoenas should only be served on nonparty deponents.

  A deposition can only be used against a party who had notice of the deposition. See Rule 32(a). Sometimes it is not possible to serve a party with a deposition notice because the party's identity or whereabouts are unknown. That may occur in a quiet title action. Historically, publication has been the only method for giving notice. Rule 30(b)(1)(D) now allows the use of any other method reasonably calculated to give actual notice if the use of that method has been approved by the court. This is the standard for substitute service under Neb. Rev. Stat. § 25-517.02(3).

  30(b)(4) The rule previously provided that the notice had to state the means by which the testimony would be recorded but did not specify what those means were. The assumption was that the testimony would be recorded by stenographic means. Former Rule 30(b)(8) added a second option: videotape depositions. The rule as amended provides for three means: (1) stenographic, (2) audio, and (3) audiovisual. The term "audiovisual" is used because "videotape" refers to an outdated form of recording technology (magnetic tape).

  The rules previously did not discuss whether the opposing party could designate an additional means of recording the deposition. Rule 30(b)(4)(B) now makes it clear that the opposing party may do so. In order to prevent different persons from preparing different records of the deposition, the rule provides that the additional recording must be prepared by the deposition officer (who is selected by the noticing party).

  Although the rule allows the testimony to be recorded by nonstenographic means, parties need to bear in mind that, as a practical matter, they will need to have a transcript prepared if they plan to use the deposition to support or oppose a motion, including for example a motion for summary judgment. Parties also need to bear in mind that they should have an audio or audiovisual recording made if an interpreter is used because, as a practical matter, without a record of the questions and answers in the interpreted language, they will be unable to assert later that the interpreter's interpretation was not accurate.

  30(b)(5) Ideally, the parties should use a certified or provisionally certified interpreter for a deposition. That is not always possible in Nebraska, however, because there are a limited number of certified and provisionally certified interpreters in some languages. The rule therefore tracks Neb. Ct. R. § 6-703 and allows the use of registered interpreters if the noticing party has made reasonably diligent efforts to obtain a certified or provisionally certified interpreter and none are available. It is possible that no registered interpreters are reasonably available either. In that case, the parties need to agree on an interpreter or the noticing party needs to file a motion for a court order.

  Among the factors that a court may consider in deciding whether to grant a motion to vary from the rule's interpreter hierarchy are: availability, cost, and logistical difficulties of obtaining a certified, provisionally certified, or registered interpreter, the amount in controversy in the case, the significance of the testimony and the purpose for which it is sought (for example, steppingstone discovery as opposed to key evidence), and the competence and experience of the proposed interpreter.

  30(b)(7) The rule has been amended to allow depositions to be taken by remote means other than telephone - for example, by video conferencing technology - but only pursuant to a stipulation or court order. The rule has also been amended to eliminate the uncertainty about whether the officer must be in the same physical location as the deponent. The rule as amended provides that they must be in the same location absent a court order or stipulation otherwise. One reason for having the officer and the deponent in the same location is to minimize the risk of improper behavior such as coaching of the witness or the surreptitious use of documents. There are other ways of minimizing the risk. For example, the parties may stipulate that a notary be present in the same location as the deponent and administer the oath to the deponent but the officer who is stenographically recording the deposition may be present in the same location as the person or attorney taking the deposition.

  30(b)(8) The former rule governed videotape depositions and had special provisions that governed the review of such depositions. The provisions of Rule 30(e) now apply to the review of all depositions, regardless of how they were recorded. Rule 30(b)(8) as amended is substantially the same as the current version of Rule 30(b)(5) of the Federal Rules of Civil Procedure. The rule as amended sets out the deposition officer's duties at the beginning and end of the deposition. It also sets out the officer's duties during a deposition in which the testimony is recorded by audio or audiovisual means.

  30(c) The rule has been divided into three subdivisions. The first addresses the order of examination and the officer's obligation to record all objections. It is substantially similar to former Rule 30(c). The major differences are the addition of a requirement that the interpreter be sworn and the inclusion of an objection to the interpreter's qualifications in the list of objections that must be recorded. The second subdivision is modeled on Rule 30(c)(2) of the Federal Rules of Civil Procedure and is designed to eliminate speaking objections that are made for the purpose of disrupting the questioning or suggesting how the deponent should answer a question. The third subdivision is taken from the last sentence of the former rule.

  30(d) The rule has been amended to add a provision allowing a party to terminate a deposition if the interpreter's performance is so problematic that it undermines the usefulness of the deposition. It should be emphasized that a problem with how the interpreter handled a particular question or answer is insufficient to justify terminating a deposition. "'[I]nterpretation is a demanding and inexact art, and . . . the languages involved may not have precise equivalents for particular words or concepts.' Minor or isolated inaccuracies, omissions, interruptions, or other defects in translation are inevitable . . . ." Tapia-Reyes v. Excel Corp., 281 Neb. 15, 27, 793 N.W.2d 319, 328 (2011). Repeated problems, however, may signal that the interpretation is so fundamentally flawed that it would be pointless for the party to continue the deposition.

  30(e) The rule has been amended to streamline the procedures for review and use of the deposition. Under the former rule, the deponent had a right to review unless the right was waived by deponent and the parties. There was no time limit on review except for videotape depositions, which had to be reviewed immediately. The rule as amended requires the deponent or party to invoke the right of review before the end of the deposition and gives the deponent or party thirty days to review after being notified that the transcript or recording is available. The parties may agree to or the court may order a different time. For example, a shorter time may be necessary when the deposition is taken a few days before trial. A signature is only required if the right to review was invoked and the deponent made changes to the testimony.

  If the right to review is not invoked, or if invoked no changes are submitted to the officer in the time and manner required in subdivision (1) and no motion to suppress is filed pursuant to subdivision (3), then the transcript or recording of the deposition is deemed to be accurate. Subdivision (2) of the rule is designed to make it clear to the deponent and to the parties that failing to invoke the right to review has serious consequences. If the right to review is invoked, then the deponent has a duty to review the transcript or recording and make changes to correct any errors. If the deponent fails to do so, then the deponent cannot later seek to suppress the deposition on the ground that the transcription or interpretation was inaccurate. If the deponent invokes the right to review and determines that the transcription or interpretation is inherently inaccurate, however, the deponent may move to suppress the deposition instead of making changes. Even if the deponent makes changes, any other party who believes that the deposition is inherently inaccurate may move to suppress the deposition. The burden of proof is on the moving party.

  30(f)(2) of the rule has been amended to require the officer to retain the stenographic notes of a deposition taken stenographically or a copy of the recoding of a deposition taken by another method.  This requirement mirrors Rule 30(f)(3) of the Federal Rules of Civil Procedure. Retaining the notes or a copy is necessary because the officer must furnish a copy of the transcript or recording if a party or the deponent later requests and pays for one.

  30(g) The former language of the rule has been replaced by the current language of Rule 30(g) of the Federal Rules of Civil Procedure. The new language is easier to read and makes no substantive changes.

  30(h) This subdivision is new. As a result of the growth of electronic media, it is much easier today for parties to disseminate sensitive portions of depositions in an attempt to harass or oppress their adversaries. This subdivision serves as a reminder that courts may enter appropriate orders pursuant to Rule 26(c) to prevent parties from using the recording or transcription of a deposition for improper purposes.

Rule 30(f)(1) amended December 12, 2001; comments to Rule 30(f) amended December 12, 2001. Renumbered and codified as § 6-330, effective July 18, 2008. § 6-330 and Comments to Rule 30 amended October 21, 2015, effective January 1, 2016; § 6-330(b)(1)(A) amended June 9, 2021, effective January 1, 2022.

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§ 6-330A. Interstate Deposition and Discovery.

§ 6-330A. Interstate Deposition and Discovery.

  (a) Definitions. In this rule:

  (1) “Foreign jurisdiction” means a state other than this state.

  (2) “Foreign subpoena” means a subpoena issued in a civil proceeding under authority of a court of record of a foreign jurisdiction.

  (3) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

  (4) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

  (5) “Subpoena” means a document, however denominated, issued under authority of a court of record that requires a person to:

  (A) testify at a deposition;

  (B) produce for inspection, copying, testing, or sampling designated books, papers, documents, tangible things, or electronically stored information in the possession, custody, or control of the person; or

  (C) allow entry upon designated land or other property that is in the possession or control of the person.

  (b) Issuance of Subpoena. To request issuance of a subpoena under this rule, a party must submit to the clerk of the district court for the county in which discovery is sought to be conducted a Request for the Issuance of a Nebraska Subpoena for a Proceeding in a Foreign Jurisdiction. The content of the request must be substantially the same as the content of the form in the Appendix to this rule, and shall include the name and address of the person on which the subpoena shall be served, and the method of service provided by Neb. Rev. Stat. §§ 25-1223(9), 25-1226(1), and/or 25-1228(2).

  The party must attach to the request (1) a foreign subpoena for each person to be served and (2) a list of the names, addresses, telephone numbers, and email addresses of all counsel of record and self-represented parties in the proceeding to which the subpoena relates. The party must also pay to the clerk of the district court a fee of $75 for each subpoena issued. If the clerk re-issues a subpoena, an additional $75 fee shall be paid.

  The clerk shall remit the fee to the State Treasurer for credit to the Nebraska Supreme Court’s Counsel for Discipline Cash Fund not later than the 15th day of the month following the calendar month in which the fee was received.

  When a party submits a foreign subpoena to a clerk of a district court in this state, the clerk, in accordance with the district court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

  A subpoena issued under this rule must:

  (1) include as an attachment a copy of the list required by this subsection;

  (2) accurately incorporate the time, place, and method of the discovery requested in the foreign subpoena; and

  (3) if the subpoena commands the person to produce designated documents, electronically stored information, or tangible things, the subpoena must either accurately incorporate the commands from the foreign subpoena or attach the foreign subpoena and state that the person must produce the documents, information, or things designated in the attached foreign subpoena.

  (c) Service of Subpoena. A deposition subpoena issued by a clerk of court under this rule must be served in compliance with Neb. Rev. Stat. § 25-1226(1) and the return made in compliance with § 25-1228(1). A subpoena for discovery from a nonparty without a deposition must be served and the return must be made in compliance with Rule 34(A)(a)(4).

  (d) Deposition, Production, and Entry Upon Land. The statutes and rules of this state, including the Nebraska Court Rules of Discovery in Civil Cases, apply to subpoenas issued and discovery conducted pursuant to this rule.

  (e) Appearance, Certification and Acknowledgment.

  (1) A request for the issuance of a subpoena or engaging in discovery pursuant to such a subpoena does not constitute an appearance in the courts of this state or the unauthorized practice of law in this state.

  (2) By submitting a request for a subpoena, attorneys or self-represented parties certify that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. By submitting a request for a subpoena, attorneys who are not admitted to practice in Nebraska further certify that they are admitted to practice in the foreign jurisdiction in which the proceeding is pending and that they have not been disbarred or suspended from practice in any jurisdiction.

  (3) By submitting a request for a subpoena, attorneys or self-represented parties acknowledge that the district court has jurisdiction to impose sanctions on them for false certifications made in obtaining the subpoena and for any conduct related to the subpoena that violates the Nebraska Court Rules of Discovery in Civil Cases.

  (f) Motions. A motion for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under this rule must comply with the statutes and rules of this state and must be filed as a civil action in the district court for the county in which the discovery is to be conducted. Such a motion may be filed or opposed only by an attorney admitted to practice in this state or by a self-represented individual.

COMMENTS TO RULE 30(A)

  [1] This rule is promulgated pursuant to the authority granted to the Supreme Court by § 25-1237 and is modeled on the Uniform Interstate Depositions and Discovery Act drafted by the National Conference of Commissioners on Uniform State Laws. The purpose of the rule is to provide a simple, uniform, and efficient procedure under which a party to a civil proceeding pending in a foreign jurisdiction can have a subpoena issued in Nebraska to obtain discovery for the foreign proceeding. For purposes of this rule, the term “foreign jurisdiction” means the courts of another state, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, and the territories of the United States. It does not include another country. Discovery for proceedings in other countries is governed by Rule 28(e).

  [2] The act of the clerk of the district court in issuing the subpoena is administrative. In effect, the clerk reissues the foreign subpoena as a Nebraska subpoena and assigns the matter a number. The only documents that need to be presented to the clerk are the request, the foreign subpoena, a list of counsel and unrepresented parties, and the required fee. Although the rule does not require the requesting party to submit a draft Nebraska subpoena, the party may choose to do so in order to expedite the process.

  [3] It is not the responsibility of the clerk to ensure that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. It is instead the responsibility of the requesting lawyer or self-represented party. The lawyer or self-represented party must certify in the request that the foreign subpoena was properly issued. A false certification may result in the imposition of sanctions under subsection (e) of this rule. Sanctions should not be imposed, however, if the foreign subpoena was improperly issued as a result of a reasonable, good faith mistake.

  [4] A lawyer admitted in a foreign jurisdiction does not need to retain local counsel or be admitted pro hac vice in order to have the subpoena issued. The request for the issuance of the subpoena does not constitute the unauthorized practice of law in this state. The same is true of taking a deposition or obtaining other discovery pursuant to the subpoena. See Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2) (“[a] lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that . . . are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer . . . is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized”); Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2), Comment 10 (taking a deposition in Nebraska is reasonably related to a pending proceeding in another jurisdiction).

  [5] During a deposition, lawyers may sometimes seek a telephonic ruling from the court on an objection or instruction not to answer. Lawyers may not do so during a deposition taken pursuant to this rule unless the lawyers are all admitted to practice before the court from which the ruling is sought.

  [6] Nebraska law applies to discovery undertaken pursuant to this rule. That means that Nebraska’s procedural, evidentiary, and conflicts law apply. Nebraska has a significant interest in protecting its residents from any unreasonable or unduly burdensome discovery requests when they become targets of discovery requests for actions pending in a foreign jurisdiction. This interest is best served by requiring that any discovery motions must be decided under the laws of Nebraska and that all motions that directly affect the person from whom discovery is sought must be filed in Nebraska.

  [7] Motions that affect only the parties to the action can be made in the foreign jurisdiction. For example, any party can apply for an order in the foreign jurisdiction to bar the deposition of a Nebraska deponent on grounds of relevance, and that motion would be made and ruled on before the deposition subpoena is ever presented to the clerk of the district court in this state.

§ 6-330A adopted January 27, 2021, effective February 16, 2021.

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§ 6-331. Depositions upon written questions.

§ 6-331. Depositions upon written questions.

  (a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person including a party by deposition upon written questions. The attendance of witnesses may be compelled by a subpoena that contains the information specified by Rule 30(b)(1)(B). The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

  A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating:

  (1) The name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs, and

  (2) The name or descriptive title and address of the officer before whom the deposition is to be taken.

  (3) If an interpreter will be used, the notice shall also state that an interpreter will be used and state the language that will be interpreted or the type of interpretation (e.g., sign language). The provisions of Rule 30(b)(5) govern who may serve as an interpreter.

  A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).

  Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties. Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may, for cause shown, enlarge or shorten the time.

  (b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and deliver the deposition, attaching thereto the copy of the notice and the questions received by him or her.

  (c) The party taking the deposition shall give prompt notice to all other parties that it has been delivered by the officer before whom taken.

COMMENT TO RULE 31

  This rule substantially follows the federal rule. It also incorporates the provisions of Rule 30 on interpreters.

§ 3-661(a) and Comment to Rule 31 amended September 16, 2015, effective January 1, 2016; § 6-331(a)(3) adopted October 21, 2015, effective January 1, 2016.

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§ 6-332. Use of depositions in court proceedings.

§ 6-332. Use of depositions in court proceedings.

  (a) Use of Depositions. Any part or all of a deposition, so far as admissible under the Nebraska Evidence Rules applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

  (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any purpose permitted by the Nebraska Evidence Rules.

  (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association, or governmental agency which is a party may be used by an adverse party for any purpose.

  (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

  (A) That the witness is dead; or

  (B) That the witness is at a greater distance than one hundred miles from the place of trial or hearing, or out of the state, or beyond the subpoena power of the court, unless it appears that the absence of the witness was procured by the party offering the deposition; or

  (C) That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or

  (D) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

  (E) That such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or

  (F) Upon application and notice prior to the taking of the deposition, that circumstances exist such as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

  (4) If only part of a deposition is offered in evidence by a party, an adverse party may require him or her to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts relevant to the issues.

Substitution of parties does not affect the right to use depositions previously taken; and when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the Nebraska Evidence Rules.

  (b) Objections to Admissibility. Subject to the provisions of subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying; or if the trial court directs, such objections may be heard and determined prior to trial.

  (c) (Not Used).

  (d) Effect of Errors and Irregularities in Deposition.

  (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

  (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

  (3) As to Taking of Deposition.

  (A) Objections to the competency of a witness or to the competency or relevancy of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. In a deposition recorded and preserved by nonstenographic means, such objections shall be made to the court before the trial or hearing, or such objections will be waived unless otherwise ordered by the court.

  (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the depositions.

  (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within ten days after service of the last questions authorized.

  (4) As to Interpreting, Completing and Returning the Deposition. An objection to how the interpreter interpreted the questions or answers, how the officer transcribed the testimony, or how the officer prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition is waived unless a motion to suppress the deposition is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

COMMENTS TO RULE 32

  32(a)(3) creates an exception to the hearsay rule. In other words, a deposition does not have to satisfy the requirements of Neb. Rev. Stat. § 27-804(2)(a) to be admissible under this subdivision. See Walton v. Patil, 279 Neb. 974, 984, 783 N.W.2d 438, 446 (2010). Under subdivision (3)(B), the witness must be at least 100 miles away in order to use the deposition because Neb. Rev. Stat. § 25-1227 establishes 100 miles as the maximum distance a witness must ordinarily travel for a civil trial. Subdivision (3)(E) allows use of a deposition under exceptional circumstances; under subdivision (3)(F) the court may authorize use of the deposition in the absence of exceptional circumstances if the application is made before the deposition is taken.

  32(d) The rule includes an objection to interpretation as one that may be raised by a motion to suppress the deposition. The objection can only be raised if a request to review the deposition was made pursuant to Rule 30(e)(1). The deponent may correct alleged errors in interpretation by signing a statement listing the changes and the reasons for them pursuant to Rule 30(e)(1). The errors, however, may be so extensive that the deposition is inherently inaccurate. In that case, the deponent may file a motion to suppress the deposition in its entirety. See Rule 30(e)(3). So too may an opposing party. An opposing party may also file a motion to suppress the deposition in part on the ground that there were errors in interpreting a limited but material part of the deposition and those errors render that part inherently inaccurate. If the court suppresses a deposition in whole or in part, the court may order the deposition to be retaken in whole or in part.

  It should be noted that the rule requires the motion to be filed promptly. A motion may be untimely if the party failed to act with reasonable diligence in obtaining a transcript or recording of the deposition or in reviewing the transcript or recording.

§ 6-332(d)(4) and Comments to Rule 32 amended October 21, 2015, effective January 1, 2016.

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§ 6-333. Interrogatories to parties.

§ 6-333. Interrogatories to parties.

  (a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party. Unless otherwise permitted by the court for good cause shown, no party shall serve upon any other party more than fifty interrogatories. Each question, subquestion, or subpart shall count as one interrogatory.

  Each interrogatory shall be repeated and answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty days after the service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.

  (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the Nebraska Evidence Rules.

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

  (c) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail as to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.

COMMENTS TO RULE 33

  33(a) This subsection differs from the federal rules and former Neb. Rev. Stat. §§ 25-1267.37 and 25-1267.38 (Repealed 1982) by imposing a limit of 50 interrogatories upon any party, unless the court permits more for good cause shown. Because interrogatories are particularly subject to being abused or improperly used, this discovery device has been limited unless a party can show that the complexity of the case requires the use of additional interrogatories.

  33(b) This subsection expands former Neb. Rev. Stat. § 25-1267.38 (Repealed 1982) and follows the federal rules by allowing interrogatories that involve opinions. This follows the federal rule by eliminating an unnecessary restriction on interrogatories. The overall limit on interrogatories and consequent elimination of extensive sets of interrogatories should minimize any chance for abuse.

  33(c) This follows the federal rule; it is a procedure for handling discovery from voluminous records that is necessary for certain large cases. No Nebraska statutory section served as precedent for this subsection of the rules.

Rule 33(c) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 6-333, effective July 18, 2008.

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§ 6-334. Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes.

§ 6-334. Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes.

  (a) Scope. Any party may serve on any other party a request:

  (1) To produce and permit the party making the request, or someone acting on his or her behalf, to inspect, copy, test, or sample any designated documents or electronically stored information  (including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained) translated, if necessary, by the respondent into reasonably usable form, or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or

  (2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

  (b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

  The party upon whom the request is served shall serve a written response within thirty days after the service of the request, except that a defendant may serve a response within forty-five days after service of the summons upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

  Unless the parties otherwise agree, or the court otherwise orders:

  (1) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request;

  (2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and

  (3) a party need not produce the same electronically stored information in more than one form.

  (c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

COMMENT TO RULE 34

  This rule follows the federal rule and changes former Nebraska law, Neb. Rev. Stat. § 25-1267.39 (Repealed 1982), by allowing production by notice instead of by court order. Many such examinations can be handled without need of a motion and order, so the proposal eliminates unnecessary steps. Rule 37 still allows a party to seek an order if that step is necessary.

Rule 34(a)(1) and 34(b)(1-3) amended June 4, 2008, effective July 18, 2008. Renumbered and codified as § 6-334, effective July 18, 2008.

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§ 6-334A. Discovery from a nonparty without a deposition.

§ 6-334A. Discovery from a nonparty without a deposition.

  (a) Procedure.

  (1) Scope. Any party may, by subpoena without a deposition:

  (A) require the production for inspection, copying, testing, or sampling of designated books, papers, documents, tangible things, or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, and other data compilations from which information can be obtained) translated if necessary by the owner or custodian into reasonably usable form, that are in the possession, custody, or control of a person who is not a party and within the scope of Rule 26(b); or

  (B) obtain entry upon designated land or other property within the scope of Rule 26(b) that is in the possession or control of a person who is not a party for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.

  (2) Notice. A party intending to serve a subpoena pursuant to this rule shall give notice in writing to every other party to the action at least 10 days before the subpoena will be issued. The notice shall state the name and address of the person who will be subpoenaed, the time and place for production or entry, and that the subpoena will be issued on or after a stated date. A designation of the materials sought to be produced shall be attached to or included in the notice.

Such notice may be given by a party other than a plaintiff at any time. Such notice may not be given by a plaintiff until the time at which Rule 30(a) would permit a plaintiff to take a deposition.

  (3) Issuance. A subpoena may be issued pursuant to this rule, either by a request to the clerk of the court or by an attorney authorized to do so by statute, at any time after all parties have been given the notice required by subsection (2). The subpoena shall identify all parties who were given notice that it would be issued and the date upon which each of them was given notice. A subpoena pursuant to this rule shall include or be accompanied by a copy of this rule.

  (4) Time, manner, and return of service. A subpoena pursuant to this rule shall be served either personally by any person not interested in the action or by registered or certified mail not less than 10 days before the time specified for compliance. The person making personal service shall make a return showing the manner of service to the party for whom the subpoena was issued.

  (b) Protection of Other Parties.

  (1) Objection Before Issued. Before the subpoena is requested or issued any party may serve a written objection on the party who gave notice that it would be issued. The objection shall specifically identify any intended production or entry that is protected by an applicable privilege, that is not within the scope of discovery, or that would be unreasonably intrusive or oppressive to the party. No subpoena shall demand production of any material or entry upon any premises identified in the objection. If the objection specifically objects that the person served with the subpoena should not have the option to deliver or mail copies of documents or things directly to a party, the subpoena shall not be issued unless all parties to the lawsuit mutually agree on the method for delivery of the copies.

  (2) Order. The party who gave notice that a subpoena would be issued may apply to the court in which the action is pending for an order with respect to any discovery for which another party has served a written objection. Upon hearing after notice to all parties the court may order that the subpoena be issued or not issued or that discovery proceed in a different manner, may enter any protective order authorized by Rule 26(c), and may award expenses as authorized by Rule 37(a)(4).

  (3) Protective Order. After a subpoena has been issued any party may move for a protective order under Rule 26(c).

  (c) Protection of the Person Served with a Subpoena.

  (1) Avoiding Burden and Expense. A party or an attorney who obtains discovery pursuant to this rule shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court by which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings of the person subject to the subpoena and reasonable attorney fees.

  (2) Responding to the Subpoena.

  (A) A person served with a subpoena pursuant to this rule shall permit inspection, copying, testing, or sampling either where the documents or tangible things are regularly kept or at some other reasonable place designated by that person. If the subpoena states that the person served has an option to deliver or mail legible copies of documents or things instead of inspection, that person may condition the preparation of the copies on the advance payment of the reasonable cost of copying.

  (B) A person served with a subpoena pursuant to this rule may, within 10 days after service of the subpoena, serve upon the party for whom the subpoena was issued a written objection to production of any or all of the designated materials or entry upon the premises. If objection is made, the party for whom the subpoena was issued shall not be entitled to production of the materials or entry upon premises except pursuant to an order of the court. If an objection has been made, the party for whom the subpoena was issued may, upon notice to all other parties and the person served with the subpoena, move at any time in the district court in the county in which the subpoena is served for an order to compel compliance with the subpoena. Such an order to compel production or to permit entry shall protect any person who is not a party or an officer of a party from significant expense resulting from complying with the command.

  (3) Protections. On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

  (A) fails to allow reasonable time for compliance,

  (B) requires disclosure of privileged or other protected matter and no exception or waiver applies, or

  (C) subjects a person to undue burden.

  (d) Duties in Responding to Subpoena.

  (1) Production. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

  (2) Objection. When information subject to a subpoena is withheld on an objection that it is privileged, not within the scope of discovery, or otherwise protected from discovery, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the party who requested the subpoena to contest the objection.

  (e) Coordination.

  (1) Copies. If the party for whom the subpoena was issued creates or obtains copies of documents or things, that party shall make available a duplicate of such copies at the request of any other party upon advance payment of the reasonable cost of making the copies.

  (2) Inspection. If a notice of intent to serve a subpoena designates that the subpoena will require entry upon land or other property for the purposes permitted by subsection (a)(1)(B), any other party shall, upon request to the party who gave the notice, be named in the subpoena as also attending at the same time and place.

COMMENT TO RULE 34A

  Authority to issue a subpoena pursuant to this rule is governed by Neb. Rev. Stat. § 25-1273. The procedure is similar to the practice for nonparty nondeposition discovery under Fed. R. Civ. P. 45, with certain topics such as the time of prior notice and coordination of the disclosure more specifically defined. This procedure is optional, so a party may elect to use a deposition or any other available discovery procedure instead.

Rule 34A and Comment adopted December 12, 2001; Rule 34A(c)(2)(B) amended May 19, 2004; Rule 34A(a)(1)(A), 34A(a)(2), 34A(b)(1), 34A(c)(2)(A-B) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 6-334(A), effective July 18, 2008.

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§ 6-335. Physical and mental examination of persons.

§ 6-335. Physical and mental examination of persons.

  (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by one or more physicians, or other persons licensed or certified under the laws to engage in a health profession, or to produce for examination the person in his or her custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

  (b) Report of Examining Physician.

  (1) If requested by the party against whom an order is made under subdivision (a) of this rule or the person examined, the party causing the examination to be made shall deliver to him or her a copy of a detailed written report of the examining physician setting out his or her findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he or she is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report, the court may exclude his or her testimony if offered at the trial.

  (2) (Not used).

  (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

COMMENTS TO RULE 35

  35(a) This rule follows the federal rule and expands former Neb. Rev. Stat. § 25-1267.40 (Repealed 1982). A person under the control of a party is now included in this rule. The court may order more than one examination. The health professions that require a license or certificate are defined in Neb. Rev. Stat.  § 71-102.

  35(b) This section follows the federal rules and establishes a useful procedure for exchange of medical reports. Subdivision (b)(2) of the federal rule is not used because the Nebraska Evidence Rules contain a direct waiver of the privilege. See Neb. Rev. Stat. § 27-504.

Rule 35(b) comment amended February 26, 1997; Rule 35(a) and 35(a) comment amended November 21, 2001. Renumbered and codified as § 6-335, effective July 18, 2008.

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§ 6-336. Requests for admission.

§ 6-336. Requests for admission.

  (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party.

  Each matter of which an admission is requested shall be separately set forth by the party making the request, and shall be repeated by the responding party in the answer or objection thereto. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his or her attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him or her. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer or deny only a part of the matter of which an admission is requested, he or she shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he or she states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him or her to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he or she may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he or she cannot admit or deny it.

  The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

  (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him or her in maintaining his or her action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him or her for any other purpose nor may it be used against him or her in any other proceeding.

COMMENTS TO RULE 36

  36(a) This section follows the federal rule and adds to former Neb. Rev. Stat. § 25-1267.41 (Repealed 1982) by providing a procedure for determining the sufficiency of answers or objections.

  36(b) This section follows the federal rule, and includes language controlling the effect and withdrawal of admissions. The former law was Neb. Rev. Stat. § 25-1267.42 (Repealed 1982).

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§ 6-337. Failure to make discovery: sanctions.

§ 6-337. Failure to make discovery: sanctions.

  (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

  (1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or alternatively, on matters relating to a deposition, to the district court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the district court in the district where the deposition is being taken.

  (2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order.

  If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).

  (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

  (4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

  If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

  If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

  (b) Failure to Comply with Order.

  (1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the district court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.

  (2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

  (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

  (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him or her from introducing designated matters in evidence;

  (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

  (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

  (E) Where a party has failed to comply with an order under Rule 35(a) requiring him or her to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he or she is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or her, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

  (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he or she may, within 30 days of so proving, apply to the court for an order requiring the other party to pay him or her the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that:

  (1) The request was held objectionable pursuant to Rule 36(a), or

  (2) The admission sought was of no substantial importance, or

  (3) The party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or

  (4) There was other good reason for the failure to admit.

  (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails

(1) To appear before the officer who is to take his or her deposition, after being served with a proper notice, or

(2) To serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or

(3) To serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.

  In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or her or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

  The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).

COMMENTS TO RULE 37

  37(a) This section follows the federal rule and changes former Nebraska law by including requests to produce as proper for a motion to compel discovery. The language on imposition of expenses for unjustified discovery demands or unjustified refusals to comply with discovery has been changed from former Nebraska law to reduce judicial reluctance to impose sanctions. The former Nebraska section was Neb. Rev. Stat. § 25-1267.43 (Repealed 1982).

  37(b) This section follows the federal rule and former Nebraska law, and adds to former law an explicit statement that a failure to obey an order may be punished as a contempt of the court. The former Nebraska statute was Neb. Rev. Stat. § 25-1267.44 (Repealed 1982).

  37(c) This section follows the federal rule and changes the former Nebraska law to make it clear that expenses include attorney fees and to more fully define the conditions under which costs shall not be imposed. The former Nebraska section Neb. Rev. Stat. § 25-1267.44(3) (Repealed 1982).

  37(d) This section follows both the federal rule and former Nebraska law, adding a provision allowing sanctions for failure to respond to a demand to produce under Rule 34 because that procedure now operates without an initial court order. The former Nebraska statute was Neb. Rev. Stat. § 25-1267.44(4) (Repealed 1982).

Rule 37(c) amended July 23, 1997. Renumbered and codified as § 6-337, effective July 18, 2008.

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Article 4: Electronic Filing and Service System in Trial Courts.

Article 4: Electronic Filing and Service System in Trial Courts.

(Originally adopted September 27, 2006.)

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§ 6-401. Applicability.

§ 6-401. Applicability.

   Rules governing electronic filing, service, and notice for Nebraska trial courts are found at Neb. Ct. R. § 2-201 et seq. Rules governing specific practice are found at Neb. Ct. R. § 6-1401 et seq., Uniform County Court Rules of Practice and Procedure; Neb. Ct. R. § 6-1501 et seq., Uniform District Court Rules of Practice and Procedure; and Neb. Ct. R. § 6-1701 et seq., Uniform Separate Juvenile Court Rules of Practice and Procedure.

COMMENT

   As of January 1, 2022, the former rules found at § 6-401 et seq. have been incorporated into the rules cited above.

§ 6-401(A) amended and § 6-401(C) deleted August 12, 2008; § 6-401(C) adopted January 21, 2010; § 6-401(C) renumbered to § 6-401(D) and § 6-401(C) adopted December 22, 2010, effective May 1, 2011.; § 6-403(E) and (F) adopted September 24, 2014, effective January 1, 2015; § 6-401 amended June 8, 2016; § 6-401 amended June 9, 2021, effective January 1, 2022, § 6-401 amended October 20, 2021, effective January 1, 2022.

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Article 5: Exhibit Disposition and Review.

Article 5: Exhibit Disposition and Review. unanimous

§ 6-501. Authorized release of exhibits.

§ 6-501. Authorized release of exhibits.

   The clerks of the various courts or the official court reporters are authorized to release, under the following conditions, any exhibit offered or received in evidence in any civil, criminal, or juvenile proceeding:

   (A) Upon request of an introducing attorney or owner, release to such introducing attorney or owner at any time during or after trial, if request is made during trial to substitute a copy and permission is granted by the court to do so.

   (B) Upon request of an introducing attorney or owner, release to such introducing attorney or owner at any time after trial or following expiration of appeal time, provided it is stipulated in writing that a copy shall be substituted, or if, in the absence of such a stipulation, the judge who tried the case, or if such judge is unavailable the current presiding judge, determines such substitution to be unnecessary.

   (C) When, in compliance with Supreme Court rules governing preparation of bills of exceptions, counsel shall substitute photographs or mechanical drawings and descriptions for any large or cumbersome exhibits where such would fairly present such exhibits to the appellate court.

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§ 6-502. Disposal of exhibits.

§ 6-502. Disposal of exhibits.

   The clerks of the various courts or the official court reporters are authorized to dispose of any exhibits or substitutes which have not been released pursuant to § 6-501 according to the applicable Records Retention and Disposition Schedules of the State Records Administrator.

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§ 6-503. Questioned ownership of exhibits.

§ 6-503. Questioned ownership of exhibits.

   Exhibits first shall be sought to be returned to the attorneys who introduced them, if possible, or to the owners, if they can be determined. Questions as to ownership of exhibits shall be submitted to the judge who tried the case, or to the presiding judge. Attorneys or owners of exhibits shall be notified to remove them; in the event of their failure to do so within 30 days, or if the attorneys or owners are not available or cannot be determined, the exhibits shall be disposed of or destroyed as ordered by the judge who tried the case, or the presiding judge.

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§ 6-504. Additional court discretion to dispose of exhibits.

§ 6-504. Additional court discretion to dispose of exhibits.

   Nothing herein shall restrict or contravene the discretion given to a court to dispose of exhibits under Neb. Rev. Stat. § 24-1004, or in requiring compliance by all parties with Neb. Rev. Stat. §§ 84-1201 to 84-1220, and nothing herein shall restrict a court from requiring retention of exhibits in any instance for a period of time in excess of that in the applicable Records Retention and Disposition Schedules of the State Records Administrator.

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§ 6-505. Neb. Rev. Stat. § 27-1301 child pornography exhibits.

§ 6-505. Neb. Rev. Stat. § 27-1301 child pornography exhibits.

   Notwithstanding the provisions of §§ 6-501 through 6-507, exhibits constituting visual depiction of sexually explicit conduct involving a child, as defined by Neb. Rev. Stat. § 27-1301 and controlled by Neb. Ct. R. § 6-1801, shall remain constantly and continuously in the care, custody, and control of the court in which the exhibit was introduced, whether or not received into evidence by such court, until it is returned to the introducing attorney or law enforcement or otherwise disposed of as ordered by that court. Exhibits under this section are not public records.

§ 6-505 adopted January 27, 2010; § 6-505 amended November 25, 2020.

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§ 6-506. Sealing of exhibits.

§ 6-506. Sealing of exhibits.

   A party to a case, or a person who has an interest in the protection of information contained in an exhibit offered and/or received in a case (interested person), may request an order or the court upon its own motion may enter a written order that seals or limits access to an exhibit subject to the provisions in § 6-507. (Appendix 1). The order shall indicate the reason(s) for sealing the record and who shall have access to the sealed record.

§ 6-506 adopted November 25, 2020.

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§ 6-507. Public review of exhibits.

§ 6-507. Public review of exhibits.

   (A) Unless nondisclosure or confidentiality is required by law or court rule, the following exhibits are presumed to be public records: (1) exhibits submitted in support of or in opposition to a motion; or (2) exhibits offered into evidence, whether or not admitted, in a court proceeding open to the public.

   (B) Procedure. A member of the public may submit to the clerk of the court a written request to inspect an exhibit or request a copy of an exhibit that is presumed to be public under § 6-507(A), even if the exhibit has previously been sealed by the court.

   (1) The clerk shall forward a copy of the request to the court; to the court reporting personnel, if custodian of the exhibit; to the parties in the case; and if applicable, to any interested person as described in § 6-506. The court may order that notice be given to any other person(s) who may be affected by the release of the exhibit. Unless the court, a party, an interested person as described in § 6-506, or other person as determined by the court objects to the release or unsealing of the exhibit within 3 business days, the custodian of such exhibit shall permit inspection or provide a copy as soon as practicable, but no more than 4 business days unless the request cannot with reasonable good faith efforts be fulfilled within 4 business days after actual receipt of the request. The requestor shall pay all reasonable costs for copies of such exhibit(s) pursuant to Neb. Rev. Stat. § 84-712.

   (2) If the court, a party, an interested person as described in § 6-506, or other person as determined by the court objects to the release or unsealing of the exhibit, the court shall hold a hearing as soon as practicable. The presumption of public status of an exhibit may be overcome if the court finds that there exists a countervailing interest in limiting public access. A countervailing interest may include, but is not limited to the following: (a) fair and orderly administration of justice; (b) protection of public safety; (c) use of exhibit for improper purposes; and/or (d) confidentiality.

   (3) The court shall first consider reasonable alternatives to sealing or restricting access to an exhibit, including delay in release of the exhibit or ordering the parties to provide a redacted version of the exhibit for public review. An agreement of the parties to seal or restrict exhibits shall not alone constitute a countervailing interest in limiting public access.

   (4) A written order restricting such public access to an exhibit shall be entered in the case and shall state with specificity the countervailing interest. If the court finds no countervailing interest exists in restricting access, then the court shall direct the release of the exhibit by the custodian for inspection or copying. (Appendix 2).

   (C) If the exhibit is nondocumentary in nature, the court, in its discretion, may place limits on access to the viewing, handling, photographing, or copying of such nondocumentary exhibits.

   (D) Unless nondisclosure or confidentiality is required by law or court rule, this rule does not prohibit a court in its discretion, with agreement from the parties and interested persons, if any, from making unsealed exhibits available to the public upon request during the course of a trial or other public proceeding.

§ 6-507 adopted November 25, 2020.

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Article 6: Fax Filing.

Article 6: Fax Filing.

(Adopted January 13, 1993.)

FAX Cover Sheet

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§ 6-601. Definitions; interim use by non-attorney users; sunset.

§ 6-601. Definitions; interim use by non-attorney users; sunset.

   (A) "Fax" means to transmit and reproduce a facsimile of an original document by electronic means.

   (B) Until July 1, 2028, unless advanced or extended by the Nebraska Supreme Court, every court in the State of Nebraska shall accept for filing by a non-attorney a fax transmission of any pleading, motion, or other document, except for briefs in the appellate courts, subject to prepayment of statutory filing fees. A party who is represented by a Nebraska attorney cannot utilize fax filing, and the party shall file all documents through the attorney as provided by Neb. Ct. R. § 2-201 et seq.

   (C) Prohibition by Nebraska attorneys; limited exception. The use of fax machines by Nebraska attorneys for filing any document in any Nebraska court is prohibited except as allowed in the Nebraska Workers' Compensation Court rules and as allowed by Neb. Ct. R. § 2-213(C) governing extended system unavailability.

Rule 1 amended March 10, 1993; amended September 18, 1996. Renumbered and codified as § 6-601, effective July 18, 2008; § 6-601 amended June 9, 2021, effective January 1, 2022; § 6-601 amended April 13, 2022; § 6-601(B) amended May 15, 2024; § 6-601(B) amended June 18, 2025.

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§ 6-602. Equipment.

§ 6-602. Equipment.

   All fax machines shall use plain paper and shall meet standard minimum CCITT Group III requirements. "CCITT" means Consultative Committee for International Telephone and Telegraph. "Group III" is a standard letter-size document that takes approximately 1 minute for transmission. The fax machine shall place the date and time of receipt on the transmission received.

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§ 6-603. Dedicated use.

§ 6-603. Dedicated use.

   A fax machine in the judicial system shall be used solely for court business. A court may authorize use of fax equipment by other governmental offices or agencies so long as such use does not interfere with the conduct of court business.

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§ 6-604. Cover sheet.

§ 6-604. Cover sheet.

   A fax transmission for filing shall be preceded by an attached uniform cover sheet approved by the Supreme Court of Nebraska and found as Appendix 1. The fax cover sheet shall contain the sender's full name, address, telephone number, and fax number. The cover sheet shall specify the number of pages in the transmission. The sender's information supplied on the fax cover sheet shall be typed or clearly printed.

§ 6-604 amended April 13, 2022.

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§ 6-605. Original transmission.

§ 6-605. Original transmission.

   A plain-paper original transmission shall constitute a filing. The sender shall retain the original document transmitted by fax for a period not less than the maximum allowable time to complete the appellate process, unless otherwise directed by a court.

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§ 6-606. Limit of pages transmitted.

§ 6-606. Limit of pages transmitted.

   Each transmission shall be limited to 10 pages, excluding the cover sheet. Additional pages may be permitted with prior approval of the clerk at the receiving court. Each transmitted page shall bear its sequential number in the transmission, e.g., "1 of 10," "2 of 10," etc.

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§ 6-607. Multiple copies.

§ 6-607. Multiple copies.

   If a filing requires an original and multiple copies of the original, and when the aggregate number of pages in the original and multiple copies exceeds the page limit specified in § 6-606, only the original, which does not exceed the specified page limit, shall be filed by fax transmission. The required multiple copies of the original shall be delivered to the clerk of the receiving court within five days after fax transmission of the original. Delivery of multiple copies to the clerk at the receiving court within the five-day period constitutes filing the multiple copies on the date that the original fax-transmitted document was filed in the receiving court.

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§ 6-608. [Reserved.]

§ 6-608. [Reserved.]

 Rule 8 amended September 18, 1996. Renumbered and codified as § 6-608, effective July 18, 2008; amended June 8, 2011; deleted March 21, 2018.

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§ 6-609. [Reserved.]

§ 6-609. [Reserved.]

§ 6-609 amended June 8, 2011; deleted March 21, 2018.

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§ 6-610. Risk assumed by sender.

§ 6-610. Risk assumed by sender.

   The sender bears all risk in a fax transmission. Electronic transmission of a document by means of a fax machine does not constitute filing; filing is complete only after the receiving clerk's acceptance for filing in compliance with applicable statutes and these rules. If a receiving clerk determines that there has been an error in transmission, such as failure to complete the cover sheet for a transmission or an interruption in the sequence of pages transmitted, the clerk shall, as soon as practical, fax to the sender notice specifying the error preventing acceptability for filing. Any fax transmission containing an error that prevents filing may be disregarded by a clerk, but shall be retained for 10 days and thereafter disposed of unless within 10 days of the fax transmission the sender shall have requested judicial review of the rejection for filing. If a clerk rejects a filing in a pending proceeding, the clerk's rejection shall be noted on the docket of the court in which the proceeding is pending. A clerk is not required to acknowledge that a fax transmission has been received or accepted for filing. A clerk receiving a transmission has no duty to serve on a party a copy of the faxed transmission.

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§ 6-611. Signature.

§ 6-611. Signature.

   A person seeking to file a signed document may fax a copy of the original signed document. Notwithstanding any provision of law to the contrary, a signature reproduced on a fax transmission is an original signature for the purpose of the fax filing only. Anyone who files a signed document by fax represents that the original signed document is physically in his or her possession or control.

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§ 6-612. Orders and warrants.

§ 6-612. Orders and warrants.

   Only as specifically authorized by the issuing judge, fax transmission may be used for the issuance of orders or warrants, including, but not limited to:

   (A) an arrest or search warrant;

   (B) release or detention of a defendant in custody for a criminal proceeding;

   (C) an order or warrant for placing a juvenile in custody or for release or detention of a person subject to the Nebraska Juvenile Code;

   (D) a temporary restraining order or protection order; and

   (E) an order in a domestic relations case.

   For all procedural and statutory purposes, a faxed document shall have the same force and effect as the original document issued by a court.

§ 6-612 amended June 9, 2021, effective January 1, 2022; § 6-612 amended April 13, 2022.

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§ 6-613. Time of filing.

§ 6-613. Time of filing.

   Filing by fax is allowed during the normal business hours of the receiving court. Unless prior permission is received from the clerk at the receiving court, any fax transmission received after normal business hours shall be deemed to be filed on the next business day. The time at which a document shall be deemed to be received is when the last page of the fax-transmitted document is received by the recipient clerk.

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§ 6-614. Consent to service.

§ 6-614. Consent to service.

   A lawyer who is willing to accept service of papers by fax by a non-attorney shall so indicate by including his or her fax machine telephone number, designated as a "fax number," as part of the lawyer's name, address, and telephone number on a document filed in an action.

§ 6-614 amended April 13, 2022.

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§ 6-615. Appellate briefs.

§ 6-615. Appellate briefs.

   Neither the Nebraska Court of Appeals nor the Supreme Court of Nebraska will accept briefs for filing by fax transmission.

Adopted January 13, 1993.

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Article 7: Interpreters in the Nebraska Judicial Branch.

Article 7: Interpreters in the Nebraska Judicial Branch. unanimous

§ 6-701. Scope and effective date.

§ 6-701. Scope and effective date.

   These rules become effective on September 20, 2000, and will, as amended, govern the use of interpreters by the Nebraska Judicial Branch.

Scope and Effective Date amended September 17, 2003. Renumbered and codified as § 6-701, effective July 18, 2008; § 6-701 amended June 12, 2024.

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§ 6-702. Statewide register of interpreters.

§ 6-702. Statewide register of interpreters.

   The State Court Administrator will publish and maintain a statewide register of interpreters who as determined by the Administrator are available to interpret for the Nebraska Judicial Branch in accordance with Nebraska Supreme Court rules and policies, which will consist of the following:

   (A) Certified Interpreters. Interpreters who have satisfied all certification requirements pursuant to § 6-705.

   (B) Provisionally Certified Interpreters. Interpreters who have satisfied all requirements pursuant to § 6-706 until such time an oral examination is developed.

   (C) Registered Interpreters. Interpreters who have satisfied all requirements  pursuant to § 6-707.

   (D) Non-Certified Interpreters. Interpreters who have not satisfied the requirements of §§ 6-7056-706, or 6-707.

   (E) Certified Deaf Interpreters and Certified Sign Language Interpreters. Certified Deaf Interpreters and certified Sign Language interpreters who have satisfied the requirements of § 6-708.

   (F) Deaf Interpreters and Non-Certified Sign Language Interpreters. Deaf Interpreters and non-certified Sign Language interpreters who have not satisfied the requirements of § 6-708, but who are licensed, as required by Neb. Rev. Stat. § 20-150 et seq. and possess a Nebraska Specialist Intermediary License or a Quality Assessment Screening Test – Accomplished Level (QAST V) awarded by the State of Nebraska.

[Originally numbered as] Rule 1(A) - (D) amended September 17, 2003; [originally numbered as] Rule 1(D) amended January 4, 2007, effective July 1, 2007; [originally numbered as] Rule 1(B) - (D) amended June 25, 2008, effective July 1, 2008. Renumbered and codified as § 6-702, effective July 18, 2008; § 6-702 amended October 21, 2009; § 6-702(D) amended May 12, 2010; § 6-702 amended March 16, 2011; § 6-702 amended August 5, 2014; § 6-702(E) amended December 12, 2018; § 6-702(B) and (C) amended April 14, 2021; § 6-702 amended June 12, 2024.

unanimous

§ 6-703. Appointment of interpreters.

§ 6-703. Appointment of interpreters.

   (A) Whenever an interpreter is required to be appointed by the Nebraska Judicial Branch, the State Court Administrator’s Office shall strive to appoint interpreters based on a determination of an interpreter’s reasonable availability and the purpose for which the interpreter is needed to ensure the most qualified and certified interpreter is being appointed.

   (B) Court proceedings for parties who appear with their own interpreter may be continued pending the court’s determination of language needs of the individual; the qualifications of the interpreter, which includes whether the interpreter meets the standards adopted by the Nebraska Judicial Branch; and the availability of a certified, provisionally certified, or registered interpreter. Provided, however,

   (1) In court proceedings in which a Spanish interpreter is utilized, only a certified or registered interpreter shall be allowed. 

   (2) In court proceedings in which an interpreter is utilized to interpret for a Deaf or hard of hearing person, only an interpreter qualified pursurant to Neb. Rev. Stat. § 25-2407 and Neb. Rev. Stat. § 20-150 et seq. shall be allowed.

   (C) Number of Interpreters. For any single court proceeding or probation service scheduled for 2 or more hours, two foreign language interpreters shall be appointed. For any single court proceeding or probation service scheduled for more than 1 hour, two Sign Language interpreters shall be appointed. For any single court proceeding or probation service lasting more than 2 hours, if two foreign or Sign Language interpreters are not reasonably available, the interpreter must be given a minimum of a 10-minute break every 30 minutes.

   (D) Rebuttable Presumption. There is a rebuttable presumption that an interpreter must be appointed if an interpreter is requested or it is shown that the person cannot readily understand or communicate in the English language.

   (E) All interpreters shall be at least 19 years of age, shall take the Interpreter Oath, and shall verify in writing that they have read and understand the Code of Professional Responsibility for Interpreters prior to interpreting for the Nebraska Judicial Branch.

   (F) Individuals serving as interpreters for the Nebraska Judicial Branch, pursuant to these rules, shall not be considered employees of the Nebraska Judicial Branch.

   See Appendix 1 for Code of Professional Responsibility for Interpreters and Interpreter Oath.

[Originally numbered as] Rule 2(B)–(D) amended September 17, 2003; [originally numbered as] Rule 2(D) moved to (G) on January 4, 2007, effective July 1, 2007; [originally numbered as] Rule 2(D)–(F) adopted January 4, 2007, effective July 1, 2007; [originally numbered as] Rule 2(B)–(D) and (G) amended June 25, 2008, effective July 1, 2008. Renumbered and codified as § 6-703, effective July 18, 2008; § 6-703(A)-(C) and (E)-(H) amended October 21, 2009; § 6-703(A)-(D) amended March 16, 2011; § 6-701(A)-(C) amended May 16, 2012, effective July 1, 2012; § 6-703(E) amended November 26, 2014; § 6-703(E) and (F) amended April 14, 2021; § 6-703 amended June 12, 2024.

unanimous

§ 6-704. Examination for foreign language interpreter certification.

§ 6-704. Examination for foreign language interpreter certification.

   An individual who wants to become a certified, provisionally certified, or registered interpreter as defined in these rules, in a particular foreign language, must do the following to protect the integrity of the Nebraska Judicial Branch and the safety of the public, and to ensure an interpreter's record of conduct justifies the trust of the courts, probation, witnesses, jurors, attorneys, parties, and the public.

   (A) Apply to attend the Nebraska Judicial Branch Interpreter Orientation. Upon application for Interpreter Orientation on a form approved by the State Court Administrator, the Director of Language Access or designated Nebraska Judicial Branch staff will evaluate the application and determine if the applicant meets the initial qualification requirements of §§ 6-705, 6-706, or 6-707.

   (B) Attend Nebraska Judicial Branch Interpreter Orientation. Orientation for interpreters will include an introduction to the courts and probation, the ethics of a court interpreter, vocabulary, the skills needed to assume the responsibilities of an interpreter, and the requirements to be certified, provisionally certified, and registered as outlined in  §§ 6-705, 6-706, or 6-707. The State Court Administrator may waive this requirement for any interpreter who has previously attended a Nebraska Judicial Branch or other state or federal court interpreter orientation within the last 3 calendar years.

   (C) Apply for the Interpreter Written Examination. Only after attending the Nebraska Judicial Branch Interpreter Orientation or the State Court Administrator waiving the requirement to attend the orientation may the applicant submit an application to take the written examination and execute a criminal history record check release on forms approved by the State Court Administrator. The Director of Language Access or designated Nebraska Judicial Branch staff will evaluate the application and conduct a criminal background check to verify the absence of criminal convictions and/or pending charges. A felony conviction of an applicant shall warrant denial of participation within the certification program, or removal from the statewide register of interpreters. A misdemeanor conviction in the preceding 5 calendar years manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant may warrant denial of participation within the certification program, or removal from the statewide register of interpreters. Disposition of any felony charges less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of certification. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of participation within the certification program, or removal from the statewide register of interpreters.

   (D) Written Examination. The written examination to qualify to take the oral examination of § 6-705(F) or to be considered for provisional certification pursuant to § 6-706(F), shall require no fee for an initial or second attempt for residents of Nebraska. If subsequent attempts are undertaken, a fee as prescribed by the Nebraska Supreme Court shall be assessed per each attempt. For out of state residents, a fee as prescribed by the Nebraska Supreme Court shall be assessed per each attempt of the written examination to qualify to take the oral examination of § 6-705(F) or to be considered for provisional certification pursuant to § 6-706(F). The written examination shall consist of three parts: general English language vocabulary, court-related terms and usage, and ethics and professional conduct. The written examination will be administered at such times and places as designated by the Nebraska Judicial Branch. The State Court Administrator shall waive this requirement for any interpreter who has previously taken the oral examination of § 6-704(F). If the applicant achieves a qualifying score of 80 percent or higher on the written examination, the applicant shall then be eligible to take the oral examination, if available for the interpreter's language, or provide documentation to support consideration for provisional certification. Results of the written examination will be electronically sent to the applicant.

   (E) Applying for the Interpreter Oral Examination. Only after passing the written examination may the applicant submit an application to take the oral examination and execute a criminal history record check release on forms approved by the State Court Administrator. The Director of Language Access or designated Nebraska Judicial Branch staff will evaluate the application and conduct a criminal background check to verify the absence of criminal convictions and/or pending charges. A felony conviction of an applicant shall warrant denial of participation within the certification program, or removal from the statewide register of interpreters. A misdemeanor conviction in the preceding 5 calendar years manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant may warrant denial of participation within the certification program, or removal from the statewide register of interpreters. Disposition of any felony charges less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of certification or removal from the statewide register of interpreters. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of participation within the certification program or removal from the statewide register of interpreters.

   (F) Oral Examination. Oral examinations in specific languages will consist of three components: sight interpretation, consecutive interpretation, and simultaneous interpretation. Such examinations will be administered at such times and places as designated by the Nebraska Judicial Branch. Results of the oral certification examinations will be electronically sent to the applicant.

   (G) Revocation or suspension as an interpreter in any other jurisdiction will preclude certification as a Nebraska Judicial Branch interpreter.

   (H) Confidentiality. All information relating to the examination is treated as confidential by the Nebraska Judicial Branch and test administrators except that aggregate statistical information relating to the examinations and applicants may be released at the discretion of the State Court Administrator.

§ 6-704 adopted October 21, 2009; § 6-704(A)-(D) amended March 16, 2011; § 6-704(B)-(G) amended December 12, 2018; § 6-704(A), (B), and (D)-(G) amended April 14, 2021; § 6-704 amended June 12, 2024.

unanimous

§ 6-705. Certified foreign language interpreter requirements.

§ 6-705. Certified foreign language interpreter requirements.

   A certified foreign language interpreter must be able to interpret simultaneously and consecutively and provide sight translation from English into the target language and from the target  language into English. An interpreter will be eligible for certification upon establishing to the satisfaction of the State Court Administrator that the individual has:

   (A) Reached the age of 19;

   (B) Had no past felony convictions or pending felony criminal charges. In addition, in the preceding 5 years had no misdemeanor convictions or pending charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability. Disposition of any felony charges less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of certification. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of certified interpreter status;

   (C) Completed the Nebraska Judicial Branch or other state or federal court interpreter orientation that satisfy the requirements of § 6-704(B);

   (D) Achieved a qualifying score of 80 percent or higher on a National Center for State Courts written examination administered by the Nebraska Judicial Branch or any member of the National Center for State Courts Language Access Services Section; and

   (E) Achieved a qualifying score of 70 percent or higher on each segment of the National Center for State Courts oral examination administered or approved by the Nebraska Judicial Branch as described in § 6-704(F). If an interpreter received a qualifying score of 70 percent on any of the three segments of a previous National Center for State Courts oral examination that was administered within the last 3 calendar years, the qualifying score shall be honored, and the applicant shall not be required to repeat that segment of a current examination.

   (F) In addition, any interpreter possessing a Federal Court Interpreter Certification or a Court Interpreter Certification from a member of the National Center for State Courts Language Access Services Section, formerly known as the Consortium for Language Access in the Courts, is recognized as a certified interpreter.

   (G) To maintain certified status, interpreters must comply with continuing education requirements as outlined in § 6-710. Failure to complete continuing education requirements shall be grounds for removal of the interpreter's name from the statewide register of interpreters.

[Originally numbered as] Rule 3(C)-(E) amended September 17, 2003. Renumbered and codified as § 6-704, effective July 18, 2008; § 6-704 renumbered to § 6-705 and amended October 21, 2009; § 6-705(G) adopted May 16, 2012, effective July 1, 2012; § 6-705(B) amended December 12, 2018; § 6-705, (A) and (C)-(F) amended April 14, 2021; § 6-705 amended June 12, 2024.

unanimous

§ 6-706. Provisionally certified foreign language interpreter requirements.

§ 6-706. Provisionally certified foreign language interpreter requirements.

      A provisionally certified foreign language interpreter must be able to interpret simultaneously and consecutively and provide sight translation from English into the target language and from the target language into English.   

   In languages for which no oral examination is available, an applicant may be provisionally certified upon establishing to the satisfaction of the State Court Administrator that the individual has:

   (A) Reached the age of 19;

   (B) Filed with the State Court Administrator a resume, a completed questionnaire regarding their experience, education, work history, and permission for the State Court Administrator to execute a criminal records check;

   (C) Had no past felony convictions or pending felony criminal charges. In addition, in the preceding 5 years had no misdemeanor convictions or pending charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability. Disposition of any felony other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of provisional certification. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of provisionally certified status;

   (D) Completed the Nebraska Judicial Branch or other state, federal, or member of the National Center for State Courts Language Access Services Section court interpreter orientation that satisfy the requirements of § 6-704(B);

   (E) Achieved a qualifying score of 80 percent or higher on a National Center for State Courts written examination administered by the Nebraska Judicial Branch or any member of the National Center for State Courts Language Access Services Section; and

   (F) Demonstrate both written and oral proficiency in both English and the foreign language by the following:

   (1) Proof of the applicant's English written proficiency shall be demonstrated by one or more of the following:

   (a) A degree from an accredited college or university in a country where English is the official language; or

   (b) A minimum of 1 year of completed graduate coursework at an accredited university in a country where English is the official language; or

   (c) A score of 400 in the Test of English as a Foreign Language (TOEFL) paper-based language test; a score of 97 in the TOEFL PC-based language test; or a score of 32 in the TOEFL Internet-based language test; or

   (d) Publication in English where the candidate is the sole or main author; or

   (e) Translator certification by the American Translators Association (ATA) in translation of a non-English documents into the English language.

   (2) Proof of the applicant's English oral proficiency shall be demonstrated by one or more of the following:

   (a) A minimum of 2 years of teaching experience at the college level (undergraduate or graduate) using English as the language of instruction; or

   (b) A minimum of 2 years of other professional work experience in the United States or in a country where the official language is English.

   (3) Proof of written proficiency in the foreign language(s) as demonstrated by the following:

   (a) A minimum 4-year college degree from the United States or an equivalent higher education degree from another country where instruction is conducted in that language; or

   (b) Publication in the foreign language in which the applicant is the sole or main author; or

   (c) Translator certification from the American Translators Association (ATA) in translation of an English document into a foreign language.

   (4) Proof of oral proficiency in the foreign language as demonstrated by the following:

   (a) A minimum of 2 years of teaching at the college level (undergraduate or graduate) using the foreign language as the language of instruction; or

   (b) A minimum of 2 years of other professional experience in a country where the foreign language is the official language; or

   (c) A degree from an internationally recognized university or academic institution, ideally in, but not limited to, translation and interpretation with a concentration in the foreign language.

   (5) Three letters of reference to attest to the applicant's interpreting and professional experience within the past 2 years.

   (6) The State Court Administrator shall determine whether an applicant's degree, coursework, teaching experience, and/or professional work experience meet the requirements of this rule and may determine if an applicant meets the requirements of this rule if an applicant passes an equivalent test or obtains a certification that demonstrates proof of oral proficiency in both English and the foreign language.

   (7) Upon the applicant's meeting the above requirements, the individual will be assigned to a mentor program developed and approved by the Nebraska Judicial Branch. Upon completion of the mentor program and a favorable report from the assigned mentor, the applicant shall be considered a provisionally certified interpreter.

   (G) Continuing Education. To maintain provisionally certified status, court interpreters must comply with continuing education requirements as outlined in § 6-710. Failure to complete recognized continuing education shall be grounds for removal of the interpreter's name from the statewide register of interpreters.

   (H) Provisional certification shall be recognized by the Nebraska Judicial Branch until such time as an oral examination is available from the National Center for State Courts. The provisional certification will be withdrawn 6 months after an oral test is made available in the interpreter's non-English language. Provisionally certified interpreter status will be adjusted based on their National Center for State Courts oral examination results.

§ 6-706 adopted March 16, 2011; § 6-706(G) amended May 16, 2012, effective July 1, 2012; § 6-706(C) amended December 12, 2018; § 6-706, (D)-(F), and (H) amended April 14, 2021; § 6-706 amended June 12, 2024.

unanimous

§ 6-707. Registered foreign language court interpreter requirements.

§ 6-707. Registered foreign language court interpreter requirements.

   (A) A registered foreign language interpreter must be able to interpret simultaneously and consecutively and provide sight translation from English into the target language and from the target language into English.

   (B) An interpreter will be qualify as a registered interpreter upon establishing to the satisfaction of the State Court Administrtor that the individual has:

   (1) Reached the age of 19;

   (2) Had no past felony convictions or pending felony criminal charges. In addition, in the preceding 5 years had no misdemeanor convictions or pending charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability. Disposition of any felony other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of registered interpreter status. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of registered interpreter status;

   (3) Completed the Nebraska Judicial Branch or other state, federal, or member of the National Center for State Courts Language Access Services Section court interpreter orientation that satisfy the requirements of § 6-704(B);

   (4) Achieved a qualifying score of 80 percent or higher on a National Center for State Courts written examination administered by the Nebraska Judicial Branch or a member of the National Center for State Courts Language Access Services Section; and

   (5) Achieved a qualifying score of 50 percent or higher on each segment of the National Center for State Courts oral examination administered or approved by the Nebraska Judicial Branch as described in § 6-704(F). Registered interpreters in languages for which the oral examination is not available will be included on the statewide register of interpreters only upon providing to the Nebraska Judicial Branch some other measure of language competence (e.g., a passing score on an oral proficiency exam) acceptable by the Nebraska Judicial Branch.

   (C) To maintain registered status, interpreters must comply with continuing education requirements as outlined in § 6-710. Failure to complete recognized continuing education shall be grounds for removal of the interpreter's name from the statewide register of interpreters.

[Originally numbered as] Rule 5(B) amended September 17, 2003. Renumbered and codified as § 6-706, effective July 18, 2008; § 6-706 amended October 21, 2009; § 6-706 renumbered to § 6-707 March 16, 2011; § 6-707(C) adopted May 16, 2012, effective July 1, 2012; § 6-707(B)(2) amended December 12, 2018; § 6-707(B) amended April 14, 2021; § 6-707 amended June 12, 2024.

unanimous

§ 6-708. Certified Deaf Interpreter and certified Sign Language interpreter requirements.

§ 6-708. Certified Deaf Interpreter and certified Sign Language interpreter requirements.

   (A) An interpreter will qualify as a Certified Deaf Interpreter or certified Sign Language interpreter upon establishing to the satisfaction of the State Court Administrator that the individual has:

  (1) A license as required by Neb. Rev. Stat. § 20-150 et seq. and possesses one or more of the certifications awarded by the Registry of Interpreters for the Deaf (RID), Certified Deaf Interpreter Certification (CDI), Conditional Legal Interpreting Permit-Relay (CLIP-R), Specialist Certificate Legal (SC:L), National Interpreter Certification – Master (NIC Master), National Interpreter Certification – Advanced (NIC Advanced), National Interpreter Certification (NIC), Certificate of Interpretation (CI), Certificate of Transliteration (CT), Comprehensive Skills Certificate (CSC), or National Association of the Deaf – V (NAD-V); and

  (2) Had no past felony convictions or pending felony criminal charges. In addition, in the preceding 5 years had no misdemeanor convictions or pending charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of certified interpreter status. Disposition of any felony charges less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) shall be the basis for denial of certification or removal from the statewide register of interpreters. Disposition of misdemeanor charges manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability less than 5 years in the past other than by acquittal or dismissal (e.g., pretrial diversion) may be the basis for denial of participation within the certified program or removal from the statewide register of interpreters;

  (3) To maintain certified status, a Certified Deaf Interpreter or certified Sign Language interpreter must comply with continuing education requirements as outlined in § 6-710. Failure to complete continuing education requirements shall be grounds for removal of the interpreter’s name from the statewide register of interpreters.

§ 6-708 adopted June 12, 2024.

dbrown-butterfield

§ 6-709. Investigation of complaints and imposition of sanctions.

§ 6-709. Investigation of complaints and imposition of sanctions.

   The opportunity to provide interpreter services to the Nebraska Judicial Branch under the direction of the State Court Administrator is at the Administrator’s complete and continuing discretion because of the critical reliance the Nebraska Judicial Branch must have on the skills, performance, and integrity of the interpreter in performing duties for the Nebraska Judicial Branch. This discretion applies to any interpreter who is certified, provisionally certified, registered, or non-certified with the Nebraska Judicial Branch. An interpreter is one whose record of conduct justifies the trust of the courts, probation, witnesses, jurors, attorneys, parties, and the public. In order to protect the integrity of the Nebraska Judicial Branch and the safety of the public, the Supreme Court authorizes the State Court Administrator to investigate complaints and impose sanctions.  

   (A) Grounds for Imposition of Sanctions. Any of the following may be grounds for imposition of sanctions against a certified, provisionally certified, registered, or non-certified interpreter:

   (1) Unprofessional or unethical conduct that violates the Code of Professional Responsibility for Interpreters (see Appendix 1).

   (2) Conviction of any felony criminal charge. Conviction, within the past 5 years, of a misdemeanor criminal charge manifesting a significant deficiency in honesty, trustworthiness, diligence, or reliability. Dispositions of either felony or misdemeanor criminal charges other than by acquittal or dismissal (e.g., pretrial diversion), or the filing of a probation violation or the revocation of probation may also constitute grounds for suspension or revocation.

   (3) Incompetence as an interpreter.

   (4) Failure to report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any misdemeanor or felony citation, charge, or motion to revoke probation within 5 business days.

   (5) Failure to report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff within 5 business days any revocation or suspension of certification as an interpreter in any other jurisdiction.

   (B) Complaint Received. Upon receipt by the Nebraska Judicial Branch of a complaint in writing against a certified, provisionally certified, registered, or non-certified interpreter, or upon the initiation by the Nebraska Judicial Branch itself of a complaint, it shall be evaluated and considered by the Director of Language Access or designated Nebraska Judicial Branch staff.

  (C) Evaluation and Consideration of the Complaint. Upon receipt and initial evaluation of any such complaint, the Director of Language Access or designated Nebraska Judicial Branch staff shall receive such information and/or documentation as they see fit. Within 10 business days after receiving the complaint, the Director of Language Access or designated Nebraska Judicial Branch staff shall report in writing to the State Court Administrator their findings and recommendations for the following formal actions to be considered and imposed by the State Court Administrator:

  (1) Dismiss the complaint. In any case where the State Court Administrator dismisses the complaint, written notice of the complaint and notice of the dismissal shall be sent by certified mail to the interpreter and the complainant;

  (2) Allow the interpreter to retain certified, provisionally certified, registered, or non-certified interpreter status and remain on the statewide register of interpreters for the pendency of the evaluation and consideration of the complaint. In any case where the State Court Administrator deems it is necessary to consider the complaint, written notice of the complaint and the retention or suspension of the interpreter’s status shall be sent by certified mail to the interpreter, and that interpreter shall have 15 business days from the date the written notice is received to file a response to the State Court Administrator; or

  (3) Immediately suspend the interpreter’s certified, provisionally certified, registered, or non-certified interpreter status and remove them from the statewide register of interpreters for the pendency of the evaluation and consideration of the complaint. In any case where the State Court Administrator deems it is necessary to consider the complaint, written notice of the complaint and the retention or suspension of the interpreter’s status and removal from the statewide interpreter register shall be sent by certified mail to the interpreter, and that interpreter shall have 15 business days to file from the date the written notice is received to file a response to the State Court Administrator.

  (D) Investigation and Notification of Grounds for Imposition of Sanctions. The Director of Language Access or designated Nebraska Judicial Branch staff shall receive such information and/or documentation as they see fit. The rules of evidence do not apply to the investigation. After investigation of the information provided and the interpreter’s response, the Director of Language Access or designated Nebraska Judicial Branch staff shall within 60 business days recommend in writing to the State Court Administrator any § 6-708(E) sanctions determined to be appropriate.

   (E) Sanctions. If the State Court Administrator, based upon the information and documentation provided in the complaint, the interpreter’s response, and the recommendation of the Director of Language Access or designated Nebraska Judicial Branch staff, determines sufficient cause exists, the State Court Administrator may within 45 days of receipt of the recommendation impose one or more of the following sanctions in order to protect the integrity of court proceedings and the safety of the public:

   (1) Issue a written reprimand;

   (2) Specify corrective action with which the interpreter must fully comply in order to remain on the statewide register of interpreters, including the completion of educational courses and/or re-taking one or more parts of the interpreter written examination;

   (3) Suspend the interpreter from serving as an interpreter for the Nebraska Judicial Branch for a specified period of time, or until corrective action is completed; and

   (4) Revoke the standing of and permanently prohibit the interpreter from serving as an interpreter for the Nebraska Judicial Branch.

   The State Court Administrator shall provide the interpreter with written notice of the sanctions sent by certified mail to the interpreter.

   (F) Complaints made against a Sign Language interpreter, Certified Deaf Interpreter, or Deaf Interpreter shall be processed pursuant to the procedure set forth in Rules and Regulations Relating to Sign Language Interpreters adopted by the Nebraska Commission for the Deaf and Hard of Hearing.

   (G) Suspended or revoked interpreters shall be removed from the statewide register of interpreters. No interpreter who has been suspended or revoked shall be utilized as an interpreter by the Nebraska Judicial Branch, nor shall such interpreter be entitled to any compensation from the Nebraska Judicial Branch, during his or her suspension or revocation.

§ 6-707 adopted October 21, 2009; § 6-707 renumbered to § 6-708 March 16, 2011; § 6-708 amended December 12, 2018; § 6-708 amended April 14, 2021; § 6-708 renumbered to § 6-709 and amended June 12, 2024.

unanimous

§ 6-710. Continuing education requirements.

§ 6-710. Continuing education requirements.

   Continuing education is required by the Nebraska Judicial Branch to ensure that certified, provisionally certified, and registered interpreters who serve the Nebraska Judicial Branch maintain and improve their interpreting skills. Additionally, continuing education is required to ensure that certified, provisionally certified, and registered interpreters are in compliance with Local Rules in Chapter 6 (Trial Courts), Article 7 (Interpreters in the Nebraska Judicial Branch), and the Nebraska Code of Professional Responsibility for Interpreters (Appendix 1).

   As of July 1, 2012, these requirements apply to all interpreters who are certified, provisionally certified, or registered interpreters in the State of Nebraska who wish to interpret for the Nebraska Judicial Branch. Meeting these requirements is a condition to remain a certified, provisionally certified, or registered interpreter and to remain on the statewide register of interpreters.

   (A) Continuing Education Requirement refers to educational activities in which the interpreter engages after qualifying as a certified, provisionally certified, or registered foreign language interpreter, or a certified or non-certified Sign Language or Deaf interpreter.

   Every certified, provisionally certified, and registered foreign language interpreter shall complete and report five (5) credit hours of approved continuing education offered or accredited by the Nebraska Judicial Branch every year. At least two (2) continuing education hours must be earned in professional responsibility. The one-year reporting period commences as set forth below at § 6-710(C).

  Every certified Sign Language and Certified Deaf Interpreter must complete and report the Registry of Interpreters for the Deaf (RID) required 20 contact hours with the minimum of 15 hours in Professional Studies every year. Participants must work with a RID-Approved Sponsor to earn continuing education credits.

  Every non-certified Sign Language and Deaf Interpreter must complete and report the Nebraska Commission for the Deaf and Hard of Hearing required 12 clock hours with a minimum of 9 hours in Professional Studies and 1.5 hours in interpreter ethics every year.

   (B) Approved/Accredited Continuing Education shall be earned in participatory activities, i.e., a course, conference, workshop, lecture, or other activity, at which attendance is monitored and verified. Participatory continuing education activities may include courses offered at accredited institutions of higher learning or conferences or workshops sponsored by accredited professional organizations.

   Continuing Education credits may be obtained through programs, conferences, and workshops endorsed and credited for continuing education by the Nebraska or other State or Federal Administrative Offices of the Courts, the Nebraska Association for Translators and Interpreters (NATI), the National Association of Judiciary Interpreters and Translators (NAJIT), the American Translators Association (ATA), and the Registry of Interpreters for the Deaf (RID), along with educational programs offered by colleges and/or universities, or training programs offered by other Language Access Services Section member states. 

   Continuing education credit granted shall be for the actual number granted by accredited programs, conferences, workshops, or training programs. Auditing an academic college level language course for continuing education credit or taking same for academic credit is permitted with education credits under this rule allocated as follows: one academic quarter unit shall be deemed equivalent to 10 continuing education credits and one academic semester unit shall be deemed equivalent to 15 continuing education credits.

   Continuing education credit will be awarded only after completion of the entire activity. Partial attendance does not qualify for continuing education credit. Reasonable absences are allowed for academic courses. The academic institution's attendance requirements for credit must be met to be eligible for continuing education credit. If an educational activity spans two compliance periods, credit will be earned in the period in which the activity is completed. No continuing education hours may be carried over from one compliance period to the next.

   To receive continuing education credit for a particular educational activity, other than those listed above, the interpreter may request credit by submitting information regarding the activity (e.g., description of curriculum, agenda of conference, etc.) to the Nebraska Judicial Branch, and must receive approval prior to attendance at the activity. This information shall be submitted in advance of the program to ensure approval. Retroactive approval may be sought for good cause.

   Any interpreter who wishes to receive continuing education credit must be able to show proof of having taken the course or attended the conference or workshop (e.g., an official transcript from the university or college, or a receipt and/or certificate of completion from the conference or workshop).

   (C)  Compliance. Each certified, provisionally certified, and registered foreign language interpreter and each certified and non-certified Sign Language or Deaf Interpreter is required to submit a completed Annual Interpreter Continuing Education Compliance Form (Appendix 2) every year. The year begins on January 1 following the date an interpreter becomes certified, provisionally certified, or registered. The Nebraska Judicial Branch will make available, by the interpreter's request or online, the approved compliance form to be submitted. The approved compliance form shall be filed no later than February 1 of each year.

   (D) Noncompliance. Noncompliance with the continuing education requirement shall result in the interpreter's name being removed from the statewide register of interpreters and they shall not be given interpreting assignments with the Nebraska Judicial Branch until the continuing education requirement is met.

§ 6-709 adopted May 16, 2012, effective July 1, 2012; § 6-709 and (B)-(C) amended April 14, 2021; § 6-709 renumbered to § 6-710 and amended June 12, 2024.

unanimous

§ 6-711. Criminal history and revocation or suspension of certification reporting requirement.

§ 6-711. Criminal history and revocation or suspension of certification reporting requirement.

   The opportunity to provide interpreter services to the Nebraska Judicial Branch under the direction of the State Court Administrator is at the Administrator’s complete and continuing discretion because of the critical reliance the Nebraska Judicial Branch must have on the skills, performance, and integrity of the interpreter in performing duties for the Nebraska Judicial Branch. This discretion applies to any interpreter who is on the statewide register of interpreters or may be appointed to interpret for the Nebraska Judicial Branch. An interpreter should be one whose record of conduct justifies the trust of the courts, probation, witnesses, jurors, attorneys, parties, and the public. All interpreters and those seeking certification shall comply with the following:

   (A) Any applicant seeking certification or registration as a Nebraska Judicial Branch interpreter must report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any misdemeanor or felony citation, charge or conviction, or motion to revoke probation incurred during the course of the certification process within 5 business days.

   (B) All certified, provisionally certified, registered, or non-certified interpreters on the statewide register of interpreters shall report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any misdemeanor or felony citation, charge or conviction, or motion to revoke probation within 5 business days.

   (C) Any certified, provisionally certified, registered, or non-certified interpreter on the statewide register of interpreters who fails to report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any misdemeanor or felony citation, charge or conviction, or motion to revoke probation within 5 business days may be subject to imposition of sanctions pursuant to § 6-709.

   (D) All certified, provisionally certified, registered, or non-certified interpreters on the statewide register of interpreters shall report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any:

   (1) Revocation or suspension of certification as an interpreter in any other jurisdiction;

   (2) Acts that indicate abuse of or disrespect for the judicial process, including significant deficiency in honesty, trustworthiness, diligence, or reliability.

   (E) Any certified, provisionally certified, registered, or non-certified interpreter on the statewide register of interpreters who fails to report in writing to the Director of Language Access or designated Nebraska Judicial Branch staff any revocation or suspension of certification in any other jurisdiction or acts that indicate abuse of or disrespect of the judicial process within 30 business days may be subject to imposition of sanctions pursuant to § 6-709.

§ 6-710 adopted December 12, 2018; § 6-710 amended April 14, 2021; § 6-710 renumbered to § 6-711 and amended June 12, 2024.

unanimous

Article 8: Jury Instructions.

Article 8: Jury Instructions. unanimous

§ 6-801. Use of NJI2d.

§ 6-801. Use of NJI2d.

   Nebraska Jury Instructions, Second Edition (NJI 2d), is designed for use when the instruction correctly states the law and the pleadings and evidence call for such an instruction. Where applicable, a trial judge may utilize an appropriate NJI instruction.

unanimous

§ 6-802. Jury instruction conference.

§ 6-802. Jury instruction conference.

   The trial court may and ordinarily should hold a conference before or during the trial with reference to the preparation of proposed instructions. The trial court may direct counsel for either party to prepare designated instructions. Counsel may object at the conference on instructions to any instruction regardless of who prepared it. At the conference on instructions, each counsel should aid the trial court by stating any specific objection that he or she has on any instruction proposed to be given.

unanimous

§ 6-803. Repeal previous jury instruction practices.

§ 6-803. Repeal previous jury instruction practices.

   The rule of practice adopted by this court on November 20, 1968, requiring use of the Nebraska Jury Instructions is hereby rescinded.

COMMENT

 

   Nebraska Jury Instructions, Second Edition (NJI2d) (1999), is available through West Group, 620 Opperman Dr., Eagan, MN 55123, or the West Group order line (800) 328-9352.

 

unanimous

Article 9: Jury or Juror Assistants Training.

Article 9: Jury or Juror Assistants Training.

(Adopted April 11, 2007. Renumbered and codified as §§ 6-901 - 6-902, effective July 18, 2008.)

unanimous

§ 6-901. Court staff training required.

§ 6-901. Court staff training required.

   Commencing July 1, 2007, any person employed by the Nebraska courts or any person volunteering with or working with the courts who may have contact with jurors or juries as provided by Neb. Rev. Stat. §§ 25-1116 and 29-2022 shall complete specialized training provided by the Office of Judicial Branch Education. For purposes of this rule, persons having contact with jurors or juries shall include, but not be limited to, bailiffs, court reporters, court clerks, volunteers, and any other court staff.

unanimous

§ 6-902. Office of Judicial Branch Education; provide training.

§ 6-902. Office of Judicial Branch Education; provide training.

   All training materials, sessions, and information mandated by this rule shall be compiled and updated by the Office of Judicial Branch Education with approval by the Nebraska Supreme Court for use by the individual courts under the direction of the Office of Judicial Branch Education.

unanimous

Article 10: Juror Qualification Form.

Article 10: Juror Qualification Form.

(Adopted December 14, 2005, effective January 1, 2006; amended January 25, 2006. Renumbered and codified as §§ 6-1001 to 6-1004, effective July 18, 2008.)

Appendix A - Nebraska juror qualification form

unanimous

§ 6-1001. Scope and effective date.

§ 6-1001. Scope and effective date.

   This rule shall become effective on January 1, 2006, and shall govern the content and use of the Nebraska Juror Qualification Form in all district and county courts of the State of Nebraska.

unanimous

§ 6-1002. Required juror qualification form; amendment.

§ 6-1002. Required juror qualification form; amendment.

   The Nebraska Juror Qualification Form, attached as Appendix A to this rule, has been adopted by the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 25-1629.01. All district and county courts shall use the attached form when the use of a juror qualification form is required by statute unless a request for approval of any amendments to such form has been approved by the Supreme Court. Such requests shall be submitted in writing and on a disk or CD in a Microsoft Word compatible format to the Clerk of the Supreme Court for submission to the Court. Any language to be added to the form shall be underscored and any language to be deleted from the form shall be overstruck.

unanimous

§ 6-1003. Confidential parts of juror qualification form.

§ 6-1003. Confidential parts of juror qualification form.

   The CONFIDENTIAL JUROR INFORMATION section of the Nebraska Juror Qualification Form, Part VII, shall be detachable and shall be removed by the clerks of the district and county courts or jury commissioners and stored in a confidential manner by such clerk or commissioner until the end of the jury term. No one shall be permitted access to these detached sections except as set forth in this rule. The clerk or commissioner shall deliver the detached confidential information to an approved research agent of the Nebraska Supreme Court. The Nebraska Minority and Justice Implementation Committee (NMJIC) and the Nebraska Racial Justice Initiative (NRJI) have been approved by the Nebraska Supreme Court as such research agents. The confidential juror information may also be maintained, stored, and transmitted to the approved research agent by electronic means by any court which possesses such capabilities.

unanimous

§ 6-1004. Supplemental juror questionnaires.

§ 6-1004. Supplemental juror questionnaires.

   Nothing in this rule shall prohibit the use of case-specific supplemental juror questionnaires to the extent that the supplemental questions do not duplicate any information requested in the Nebraska Juror Qualification Form.

unanimous

Article 11: Nebraska Court Rules of Pleading in Civil Cases. (Effective January 1, 2025.)

Article 11: Nebraska Court Rules of Pleading in Civil Cases. (Effective January 1, 2025.)

(cite as Neb. Ct. R. Pldg. §)

(Adopted December 11, 2002; effective January 1, 2003. Renumbered and codified as Neb. Ct. R. Pldg. §§ 6-1101 - 6-1116, effective July 18, 2008.)

unanimous

Revisor's note.

Revisor's note.

   (Revisor's note: The former Nebraska Rules of Pleading in Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 11, Nebraska Court Rules of Pleading in Civil Cases. Thus, former rule 12 is now Neb. Ct. R. Pldg. § 6-1112, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule number. Subsections and references within this rule to rules by number and subsection may remain unchanged. Thus, a reference in this rule to rule 12(a)(1) should be interpreted and found at  § 6-1112(a)(1), etc.)

unanimous

§ 6-1101. Scope and purpose of rules.

§ 6-1101. Scope and purpose of rules.

  (a) Scope. These Rules govern pleading in civil actions filed on or after January 1, 2003. They apply to the extent that they are not inconsistent with any applicable statutes.

  (b) Purpose. These Rules should be construed, administered, and employed by the court and the parties to secure the just and speedy determination of every action without undue cost.

  (c) Amendments. The Nebraska Court Rules of Pleading in Civil Cases apply to cases filed on or after January 1, 2025, and to cases pending on that date. But the trial court may order that the previous version of the Pleading Rules apply, either in whole or in part, to a case pending on January 1, 2025, if the court determines, in the exercise of its discretion, that application of the amended rule or rules to the case would be impracticable, unreasonable, or unjust.

COMMENTS TO § 6-1101

  [1] The rule addresses the scope of the Nebraska Court Rules of Pleading in Civil Cases and how the rules should be construed. Subpart (a) provides that the pleading rules apply to the extent that they are not inconsistent with any applicable statutes. The purpose of the provision is to make it clear that if the statutes governing a particular action contain requirements that are different than or in addition to the requirements imposed by the pleading rules, the statutes supersede the rules and must be followed.

  [2] For example, the statutes governing partition specify that the complaint must contain a description of the property as well as the interests and estates of the owners. The answer must contain, among other things, a statement of the amount and nature of each defendant’s interests in the property. See Neb. Rev. Stat. §§ 25-2170 and 25-2174. Those statutes supersede the pleading rules and must be followed.

  [3] Forcible entry and detainer actions provide another example. The statutes governing forcible entry and detainer actions specify the contents of the complaint and do not require an answer to the claim for possession. See Neb. Rev. Stat. §§ 25-21,222 and 25-21,223. Again, those statutes supersede the pleading rules and must be followed.

  [4] The original version of § 6-1101 contained a specific provision on forcible entry and detainer actions. The provision stated that the rules apply only to the extent that they are not in conflict with the statutes that govern forcible entry and detainer actions. The provision was deleted in 2024 because it was unnecessary in light of the general provision in subpart (a).

  [5] Subpart (b) is modeled on Rule 1(b) of the Federal Rules of Civil Procedure and includes the precatory language that was added to Federal Rule 1(b) in 2015 regarding how parties should construe and employ the rules. The purpose of the language is:

to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.

This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.

Fed. R. Civ. P. 1, Advisory Committee Notes to the 2015 Amendment.

  [6] The 2024 Amendments changed the “inexpensive determination of every action” to the “determination of every action without undue cost.” The change was made because litigation can be expensive even when the rules are properly employed. The goal is not to avoid cost in and of itself. The goal is instead to avoid undue cost.

Rule 1 amended May 19, 2004. Renumbered and codified as § 6-1101, effective July 18, 2008; § 6-1101 amended June 9, 2021, effective January 1, 2022; § 6-1101 amended November 13, 2024, effective January 1, 2025; § 6-1101 amended September 3, 2025.

unanimous

§ 6-1102. One form of action [Reserved].

§ 6-1102. One form of action [Reserved].

COMMENT TO § 6-1102

    Rule 2 of the Federal Rules of Civil Procedure specifies that there is only one form of action: a civil action. In Nebraska, the specification is made by statute. See Neb. Rev. Stat. § 25-101 (abolishing the distinction between actions at law and suits in equity and replacing them with the civil action). Section 6-1102 was included in the Nebraska Court Rules of Pleading in Civil Cases without any text so that the numbering of the rules corresponds to the numbering of the Federal Rules of Civil Procedure.

§ 6-1102 amended November 13, 2024, effective January 1, 2025.

unanimous

§ 6-1103. Commencement of action [Reserved].

§ 6-1103. Commencement of action [Reserved].

COMMENT TO § 6-1103

  Rule 3 of the Federal Rules of Civil Procedure specifies when an action is deemed commenced for purposes of the federal rules. In Nebraska, commencement of an action is governed by statute. See Neb. Rev. Stat. § 25-217(1) (specifying when an action is commenced); Neb. Rev. Stat. § 25-501(specifying how an action is commenced). Section 6-1103 was included in the Nebraska Court Rules of Pleading in Civil Cases without any text so that the numbering of the rules corresponds to the numbering of the Federal Rules of Civil Procedure.

§ 6-1103 amended November 13, 2024, effective January 1, 2025.

unanimous

§ 6-1104. Summons [Reserved].

§ 6-1104. Summons [Reserved].

COMMENT TO § 6-1104

  Rule 4 of the Federal Rules of Civil Procedure governs service of process. In Nebraska, service of process is governed by statute. The service statutes are in Chapter 25, Article 5, of the Nebraska Revised Statutes. Section 6-1104 was included in the Nebraska Court Rules of Pleading in Civil Cases without any text so that the numbering of the rules corresponds to the numbering of the Federal Rules of Civil Procedure.

§ 6-1104 amended November 13, 2024, effective January 1, 2025.

unanimous

§ 6-1105. Serving and filing pleadings and other documents.

§ 6-1105. Serving and filing pleadings and other documents.

  (a) Service: When Required.

  (1) In General. Unless the applicable statutes or these rules provide otherwise, each of the following documents must be served on every party:

  (A) a pleading filed after the original complaint unless the court orders otherwise under § 6-1105(c) because there are numerous defendants;

  (B) an order stating that service is required;

  (C) a discovery document required to be served on a party, unless the court orders otherwise;

  (D) a written motion, except one that may be heard ex parte; and

  (E) a written notice, appearance, demand, offer of judgment, designation of record on appeal, and any similar document.

  (2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear, unless:

  (A) the document is a motion for the entry of a default judgment against the party or a notice of hearing on such a motion; or

  (B) the document is a pleading that asserts a new claim for relief against the party, in which event the pleading must be served in the manner provided for service of a summons.

  (b) Service: How Made.

  (1) Serving Parties Represented by an Attorney. If a party is represented by an attorney, service must be made on the attorney unless the court orders service on the party.

  (2) Serving Documents Filed Electronically. Section 2-205(A) governs when a document must be served on a person electronically through the court-authorized service provider.

  (3) Serving Documents Not Filed Electronically. If a document is not required to be served on a person electronically through the court-authorized service provider, the document may be served by:

  (A) handing it to the person;

  (B) leaving it:

  (i) at the person’s office with a clerk or other person in charge or if no one is in charge, in a conspicuous place in the office; or

  (ii) if the person has no office or the office is closed, leaving it at the person's usual place of residence with someone of suitable age and discretion who resides there;

  (C) mailing it to the address stated pursuant to § 6-1111(a)(3) or the person’s last-known address, in which event service is complete upon mailing;

  (D) sending it to the person by email if the person has stated an email address pursuant to § 6-1111(a)(3) in which event service is complete upon sending the document, but is not effective if the sender learns that it did not reach the person;

  (E) sending it to the person by a designated delivery service as defined in Neb. Rev. Stat. § 25-505.01(1)(d), in which event service is complete on the delivery date shown on the signed delivery receipt; or

  (F) delivering it by any other means that the person consented to in writing or that the court authorized, or if authorized by statute, leaving it with the court clerk.

  (c) Serving Numerous Defendants.

  (1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order:

  (A) pleadings filed by defendants and replies to those pleadings need not be served on the other defendants;

  (B) any cross-claim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

  (C) filing a pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.

  (2) Notifying PartiesA copy of the court’s order must be served on the parties as the court directs.

  (d) Who Must or May File Electronically; When Documents Not Filed Electronically Must be Filed; Filing Discovery Documents; Certificates of Service.

  (1) Electronic Filing. A person represented by an attorney must file documents electronically through the court-authorized service provider unless non-electronic filing is allowed by another court rule. A non-attorney may file documents electronically through the court-authorized service provider only if allowed by § 2-203(C).

  (2) Time for Filing Other Documents; Exception for Discovery Documents. All documents after the complaint that are not filed electronically through the court-authorized service provider but that are required to be served on a party must be filed within a reasonable time after service. But discovery documents, including disclosures, deposition notices, depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admissions, certificates of service for such discovery documents, deposition and discovery subpoenas, and returns of service for such subpoenas must not be filed unless they are relevant to a motion or the court orders them to be filed.

  (3) Certificates of Service.

  (A) Documents Served Electronically. Section 2-205 governs certificates of service for documents that are served electronically through the court-authorized service provider.

  (B) Documents Served by Other Means. With the exception of discovery documents, if a document that must be served on a party is not served electronically through the court-authorized service provider, the attorney or party causing the document to be served must file a certificate of service no later than a reasonable time after service. The certificate of service must state when and how service was made on the party.

COMMENTS TO § 6-1105

  [1] The rule was amended in 2021 to incorporate the Electronic Filing, Service, and Notice System Rules. The rule was amended again in 2024. Some of the amendments made organizational and stylistic changes to make the rule easier to read. Other amendments made substantive changes, which are discussed below.

  [2] The original version of subpart (a) provided that, except for pleadings that asserted new or additional claims for relief, documents did not need to be served on a party that was in default for failing to appear. The Supreme Court stated that the rule established that “a party in default for failure to appear is not entitled to notice when the plaintiff moves for default judgment.” Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 414 (2008). Nevertheless, almost half of the district courts had local rules that could be read as requiring notice. The Supreme Court subsequently indicated that those local rules superseded the provisions of subpart (a). See Fitzgerald v. Fitzgerald, 286 Neb. 96 (2013).

  [3] Having local rules that conflict with a statewide rule can cause confusion. To eliminate the potential for confusion, subpart (a) was amended in 2024 to require that motions for a default judgment and notices of hearing for such motions must be served on defaulting parties. The requirement of giving notice to a defaulting party is consistent with the general policy of deciding cases on the merits because it may encourage the defaulting party to seek leave to file a responsive pleading and defend the case on the merits.

  [4] Subpart (a) originally contained a service provision for actions begun by seizing property. The provision was deleted in 2024 because it did not serve any purpose. The provision was based on Rule 5(a)(3) of the Federal Rules of Civil Procedure, a rule that is primarily aimed at admiralty actions in rem. Those actions cannot be filed in state court, however. Although civil forfeiture actions can be filed in state court, the Nebraska forfeiture statutes specify who must be served and how. 

  [5] Subpart (b)(3) specifies the methods for serving documents that are not filed electronically. One of those methods is service by mail. The provision originally authorized service by first-class mail. The 2024 Amendments deleted “first-class” because the Postal Service now offers a wider range of services, including Priority Mail. The deletion of “first-class” also means that a party now has the option of serving a document by certified mail if it so chooses.

  [6] The 2024 Amendments also added two additional methods of service. The first additional method is in subpart (b)(3)(E), which provides that a party may serve a document by using a designated delivery service such as Federal Express or UPS. The subpart builds on the statutory provisions that allow the use of a designated delivery service to serve a summons. See Neb. Rev. Stat. § 25-505.01(1)(d).

  [7] The second additional method is in subpart (b)(3)(F), which provides that a party may serve a document “by any other means . . . that the court authorized . . . .” The method is designed for unusual situations. For example, if the party’s cell phone number is known but the party’s email address and whereabouts are not, the court might authorize service by text messaging.

  [8] Prior to 2024, the Court Rules of Pleading in Civil Cases and the Court Rules of Discovery in Civil Cases both contained provisions on filing and serving documents. The 2024 Amendments consolidated those provisions in § 6-1105.

  [9] Section 6-1105(d)(2) provides that discovery documents must not be filed unless they are relevant to a motion or the court orders them to be filed. Although most discovery documents will not fall within the filing exceptions, some will. For example, discovery requests and responses may be filed when they are relevant to a motion to compel or a motion for a protective order. Discovery documents that are relevant to a motion for summary judgment, however, should not be filed. Parties should follow the procedures set out in § 6-1526 and offer the documents as evidence at the hearing.

Rule 5(b) amended June 25, 2008, effective date July 18, 2008. Renumbered and codified as § 6-1105(b), effective July 18, 2008; § 6-1105(b)(2)(E) amended August 31, 2011; § 6-1105(b)(2)(E) amended June 8, 2016; § 6-1105 amended June 9, 2021, effective January 1, 2022; § 6-1105 amended November 13, 2024, effective January 1, 2025; § 6-1105 amended September 3, 2025.

unanimous

§ 6-1106. Time.

§ 6-1106. Time.

  (a) Governing Rules and Statutes. Neb. Rev. Stat. § 25-2221 governs the computation of time periods. Section 2-206 governs when documents received by the court-authorized service provider are deemed filed and served.

  (b) Extending Time.

  (1) In General. When under these rules an act may or must be done within a specified time, the court may, for good cause, extend the time: 

  (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

  (B) on motion made after the time has expired if the party failed to act because of excusable neglect. 

  (2) Exceptions. If the time to act is specified by statute, the court must not extend the time except to the extent and under the conditions stated by statute.

  (c) Additional Time After Service by Mail.  When a party may or must act within a specified time after being served and service is made under § 6-1105(b)(3)(C), 3 days are added after the period would otherwise expire.

COMMENTS TO § 6-1106

  [1] Subpart (b) governs extensions of time. The court may extend the time for a party to act if the time is not set by statute. The original version of subpart (b) provided that the court could extend the time for “cause shown” under certain circumstances. The 2024 Amendments changed that to “good cause.” The change was stylistic.

  [2] The original version of the rule provided that 3 days were added to the applicable time period when a document was served by mail. It was unclear whether the 3 days were added to the time period itself or at the end of the time period as computed by § 25-2221. In 2024, the provision – which now appears in subpart (c) – was reworded to clarify that the 3 days are added after the period would otherwise expire.

  [3] For example, answers to interrogatories are normally due 30 days after service. See Neb. Ct. R. Disc. § 6-333(b)(2). If the 30th day is a Saturday, the period would expire on Monday because § 25-2221 specifies that if the last day of the period falls on a weekend or holiday, the period expires at the end of the next day on which the courts are open. Adding 3 days after the period would otherwise expire (Monday) extends the period to Thursday.

Rule 6(e) amended June 25, 2008, effective July 18, 2008. Renumbered and codified as § 6-1106(e), effective July 18, 2008; § 6-1106 amended June 9, 2021, effective January 1, 2022; § 6-1106 amended November 13, 2024, effective January 1, 2025.

unanimous

§ 6-1107. Pleadings allowed; form of motions.

§ 6-1107. Pleadings allowed; form of motions.

  (a) Pleadings. Only the following pleadings are allowed:

  (1) a complaint;

  (2) an answer to a complaint;

  (3) a counterclaim or cross-claim, which must be stated in an answer rather than in a separate pleading;

  (4) an answer to a counterclaim designated as a counterclaim; 

  (5) an answer to a cross-claim; 

  (6) a third-party complaint;

  (7) an answer to a third-party complaint; and

  (8) if the court orders one, a reply to an answer.

  (b) Motions. 

  (1) Contents. A motion made in writing must have a caption with the court’s name, the title of the action, the file number if one has been assigned, and the title of the motion. After naming the first party on each side, the title of the action may refer generally to other parties.

  (2) Form. Motions filed with the court must be in the standard form specified in § 2-103(A).

  (3) Effect of Statutes. A motion for an order authorized by statute must comply with the requirements of the authorizing statute. If a notice of motion is required, the notice must comply with the requirements of Neb. Rev. Stat. § 25-910.

COMMENTS TO § 6-1107

  [1] Subpart (a) lists the pleadings that are permissible in a civil action. The initial pleading is a complaint. The statute that authorized the promulgation of the pleading rules states that the “plaintiff’s initial pleading shall be a petition when that designation is provided elsewhere by statutes. In all other civil actions the plaintiff’s initial pleading shall be a complaint.” Neb. Rev. Stat. § 25-801.01. At the time that the statute was enacted, family law actions (e.g., dissolution, support, and paternity actions) were the primary actions in which the initial pleading was statutorily designated as a petition. In 2004, however, the statutes governing those types of actions were amended to substitute “complaint” for “petition.” See 2004 Neb. Laws 804-22 (L.B. 1207).

  [2] There are nevertheless civil proceedings in which the initial pleading is not a complaint. For example, the initial pleading in an action for postconviction relief is a verified motion (Neb. Rev. Stat. § 29-3001). There are also numerous proceedings in which the initial pleading is a petition. Those proceedings include petition in error proceedings (Neb. Rev. Stat. § 25-1903), probate proceedings (Neb. Rev. Stat. § 30-2209), protection order proceedings (Neb. Rev. Stat. § 42-924), adoption proceedings (Neb. Rev. Stat. § 43-102), juvenile court proceedings (Neb. Rev. Stat. § 43-261), workers’ compensation proceedings (Neb. Rev. Stat. § 48-173), Commission of Industrial Relations proceedings (Neb. Rev. Stat. § 48-811), mental health commitment proceedings (Neb. Rev. Stat. § 71-921), and administrative review proceedings (Neb. Rev. Stat. § 84-917).

  [3] Prior to 2024, the list of permissible pleadings in subpart (a) included the responsive pleadings to counterclaims and cross-claims – but did not include counterclaims and cross-claims themselves. The reason is that counterclaims and cross-claims are included in the answer, rather than in a separate pleading. The rule, however, did not expressly state that. In 2024, subpart (a) was amended to add an express statement that both types of claims are permissible pleadings but that both are included in the answer, rather than in a separate pleading.

  [4] Historically, the title of the responsive pleading to a counterclaim was “reply,” rather than “answer.” The 2024 Amendments changed the title to “answer.”

  [5] Prior to 2024, subpart (b) had a title (“Motions and Other Papers”) but did not have any text. It simply read “Reserved.” The 2024 Amendments added three subparts that are designed to help parties determine the format they should use when drafting motions brought under the Court Rules of Pleading in Civil Actions.

  [6] Subpart (b)(1) identifies the contents of a motion’s caption. It is modeled on § 6-1110(a), the rule that addresses the caption of pleadings. Subpart (b)(2) addresses the format of motions through a cross-reference to § 2-103(A), the rule that sets the standard format for all documents, including motions. Subpart (b)(3) contains a cross-reference to § 25-910, the statute that addresses notice of a motion. Subpart(b)(3) also contains a reminder that motions authorized by statute must comply with the authorizing statute.

Rule 7(a) amended May 19, 2004. Renumbered and codified as § 6-1107, effective July 18, 2008; § 6-1107 amended November 13, 2024, effective January 1, 2025; § 6-1107 amended September 3, 2025.

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§ 6-1108. General rules of pleading.

§ 6-1108. General rules of pleading.

  (a) Claim for Relief. A pleading that states a claim for relief must contain:

  (1) a caption;

  (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

  (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

  (A) General Damages. The amount of general damages must not be stated.

  (B) Special Damages. Each category of special damages sought and the total amount of special damages sought must be stated in either the statement of the claim or in the demand for relief.

  (C) Interest. If the recovery of prejudgment interest on damages is sought, the date from which interest is to be computed must be stated in either the statement of the claim or in the demand for relief.

  (b) Defenses; Admissions and Denials.

  (1) In General. In responding to a pleading, a party must:

  (A) state in short and plain terms its defenses to each claim asserted against it; and 

  (B) admit or deny the allegations asserted against it by an opposing party.

  (2) Denials; Responding to the Substance. A denial must fairly respond to the substance of the allegation.

  (3) General and Specific Denials. A party may generally deny all the allegations of a pleading if the party has a good faith basis for denying at least one material allegation, generally deny all the allegations except those specifically admitted, or specifically deny designated allegations.

  (4) Denying Part of an Allegation. A party that intends in good faith to deny only a part of an allegation must admit the part that is true and deny the rest.

  (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

  (6) Effect of Failing to Deny. An allegation – other than one relating to the amount of damages – is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

  (c) Affirmative Defenses.

  (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including but not limited to:

  • absolute or qualified immunity;
  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • claim or issue preclusion;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • laches;
  • license;
  • payment;
  • release;
  • statute of frauds;
  • statute of limitations; and
  • waiver. 

  (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

  (d) Pleadings to Be Concise and Direct; Alternative Statements; Inconsistency.

  (1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

  (2) Alternative Statements of a Claim or Defense. A party may set out two or more statements of a claim or defense alternately or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

  (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency and whether based on legal or equitable grounds.

  (e) Construing Pleadings. Neb. Rev. Stat. § 25-801.01(d) requires that all pleadings be construed as to do substantial justice.

COMMENTS TO § 6-1108

  [1] When the rules were promulgated in 2002, the provisions on pleading damages were split between § 6-1108 and § 6-1109. The 2024 Amendments combined the provisions and put them in § 6-1103(a)(3). General damages are discussed in subpart (a)(3)(A), and special damages are discussed in subpart (a)(3)(B).

  [2] Subpart (a)(3)(B) requires a party to state each category of special damages it seeks and the total amount of those damages. A party may state the total amount by stating the amount (e.g., plaintiff seeks $60,000 in special damages), the amount of each category of special damages (e.g., plaintiff seeks $45,000 in past medical expenses and $15,000 in lost wages), or both (e.g., plaintiff seeks $60,000 in special damages, consisting of $45,000 in past medical expenses and $15,000 in lost wages).

  [3] The required statement may be included in the statement of the claim or in the demand. It may also be included in both. The primary purpose of stating special damages is to give the defendant notice of the categories of damages sought. Notice can be given equally well by stating the categories in either the statement of the claim or in the demand.

  [4] If a party seeks prejudgment interest, subpart (a)(3)(C) requires the party to state the starting date for the computation. The date may be included in the statement of the claim or in the demand. It may also be included in both. The purpose of requiring the date to be stated is to give the defendant notice that the plaintiff is seeking prejudgment interest and to allow the defendant to begin preparing its defense. As with special damages, notice can be given equally well by stating the date in the statement of the claim or in the demand.

  [5] The Federal Rules of Civil Procedure provide that a party may enter a general denial only if the pleader “intends in good faith to deny all the allegations of a pleading.” Fed. R. Civ. P. 8(b). The drafters of the Nebraska Court Rules of Pleading excluded that language from § 6-1108(b) to preserve the general denial as it existed under Code Pleading. Under Code Pleading, a defending party could enter a general denial if the defendant had a good faith basis for denying at least one material allegation of the plaintiff’s pleading. See Marshall v. Rowe, 126 Neb. 817, 831 (1934). Because the standard is based on pre-notice pleading case law, there is a risk that the standard may eventually be lost to history. To prevent that from happening, the 2024 Amendments added the standard to subpart (b)(3).

  [6] Subpart (c)(1) contains a nonexclusive list of affirmative defenses. The 2024 Amendments made three changes to the list.

  [7] First, “injury by fellow servant” was deleted and “absolute or qualified immunity” was added. Injury by fellow servant was a significant defense prior to the adoption of the workers’ compensation statutes. Although it is still an affirmative defense, injury by a fellow servant is not of sufficient contemporary significance to warrant including it in the list.

  [8] Second, “discharge in bankruptcy” was deleted because it is not a true affirmative defense. Discharge was deleted from the rule’s federal counterpart in 2010 because under the federal bankruptcy statutes, “a discharge voids a judgment to the extent that it determines a personal liability of the debtor with respect to a discharged debt. The discharge also operates as an injunction against commencement or continuation of an action to collect, recover, or offset a discharged debt. For these reasons it is confusing to describe discharge as an affirmative defense.” Fed. R. Civ. P. 8(c), Advisory Committee Notes to the 2010 Amendment. Regardless of whether a party pleads discharge in its responsive pleading, the debt is discharged as a matter of federal law.

  [9] Third, “res judicata” was recast as “claim or issue preclusion.” Historically, “res judicata” was sometimes used to refer to claim preclusion and sometimes used to refer to both claim and issue preclusion. “Collateral estoppel” was also used to refer to issue preclusion. The Supreme Court has indicated a preference for using the modern terminology of claim preclusion and issue preclusion. See In re Interest of Noah B. et al., 295 Neb. 764, 773 (2017). Subpart (c)(1) was amended to reflect that preference.

  [10] Subpart (d) governs alternative and inconsistent statements in a pleading. The original version of the subpart provided that those statements are subject to the standards set forth in Neb. Rev. Stat. § 25-824. Among other things, the statute provides that the signature of a party or attorney is a certification that there are good grounds for filing the pleading and that it is not being interposed for purpose of delay. The 2024 Amendments deleted the provision because it was unnecessary. The statute is well-known and applies by its own terms.

  [11] The statute that authorized the Supreme Court to promulgate pleading rules contains an admonition that pleadings must be construed so as to do justice. See Neb. Rev. Stat. § 25-801.01(2)(d). There is a risk that judges, parties, and attorneys may be unaware of the provision because the statute is primarily an authorizing statute and the rules that it authorized were promulgated years ago. To reduce that risk, the 2024 Amendments added a cross-reference to the statute in subpart (e).

§ 6-1108 amended November 13, 2024, effective January 1, 2025.

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§ 6-1109. Pleading special matters.

§ 6-1109. Pleading special matters.

  (a) Capacity or Authority to Sue; Legal Existence.

  (1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege:

  (A) a party’s capacity to sue or be sued;

  (B) a party’s authority to sue or be sued in a representative capacity; or

  (C) the legal existence of an organized association of persons that is made a party.

  (2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party’s knowledge.

  (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

  (c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.

  (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.

  (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.

  (f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading.

COMMENTS TO § 6-1109

  [1] In addition to making stylistic changes to the rule, the 2024 Amendments deleted three matters: undue influence, special damages, and limited representation.

  [2] First, the 2024 Amendments deleted undue influence from the list of matters that subpart (b) requires a party to plead with particularity. The requirement of pleading with particularity is not aimed at factual details in general. It is instead aimed at specific pieces of information. For example, pleading the circumstances of fraud “with particularity means the who, what, when, where, and how: the first paragraph of any newspaper story.” Chaney v. Evnen, 307 Neb. 512, 525 (2022).

  [3] While the circumstances of fraud may involve specific pieces of information, the circumstances of undue influence do not. They involve a bundle of facts that, taken together, support an inference of undue influence. The contents of that bundle will vary from case to case. Therefore, undue influence does not belong in subpart (b). It should be noted, however, that a party pleading undue influence must still plead the bundle of facts that support the inference of undue influence rather than simply plead the conclusion that undue influence was present.

  [4] Second, the 2024 Amendments deleted subpart (g). That subpart required a party to state special damages with specificity. The requirement is now included in § 6-1108(a)(3)(B).

  [5] Third, the 2024 Amendments deleted subparts (h)-(i). Those subparts reproduced the text of § 3-501.2(d)-(e) of the Nebraska Rules of Professional Conduct as a way of reminding lawyers about limited appearances. Section 6-1111 is a better place for such a reminder. Therefore, the subparts on limited representation were deleted and a cross-reference to § 3-501.2 was added in § 6-1111(b).

§ 6-1109(h) and (i) adopted September 3, 2008; Comment amended September 3, 2008; § 6-1109 amended November 13, 2024, effective January 1, 2025; § 6-1109 amended September 3, 2025.

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§ 6-1110. Form of pleadings.

§ 6-1110. Form of pleadings.

   (a) Caption; Names of Parties. Every pleading must have a caption with the court’s name, the title of the action, the file number, and a § 6-1107(a) designation. The title of the action in the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.

  (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a statement of a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence – and each defense other than a denial – must be stated in a separate count or defense.

  (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference in the same pleading or in any other pleading or motion. A copy of any written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

COMMENT TO § 6-1110

  The rule governs the format of pleadings, including the content of captions, the use of numbered paragraphs, and the use of incorporation by reference. The 2024 Amendments made stylistic changes to the rule but did not make any substantive changes.

§ 6-1110 amended November 13, 2024, effective January 1, 2025.

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§ 6-1111. Signing of pleadings; attorney assistance to parties not otherwise represented.

§ 6-1111. Signing of pleadings; attorney assistance to parties not otherwise represented.

  (a) Signature.

  (1) Every pleading, written motion, and other document must be signed by at least one attorney of record in the attorney's name or by a party personally if the party is not represented by an attorney. Section 2-201(M) governs what constitutes a signature for documents filed electronically through the court-authorized service provider.

  (2) Unsigned Document. The court must strike an unsigned document that is not filed through the court-authorized service provider unless the omission of the signature is corrected promptly after being called to the filer’s attention.

  (3) Required Information. Every document filed must state the signer’s address, email address, telephone number, and, if filed by an attorney, the attorney’s bar identification number. Unless a statute specifically states otherwise, a pleading need not be verified or accompanied by affidavit.

  (b) Assistance to Parties Not Otherwise Represented by an Attorney.

  (1) Preparation of Documents. Section 3-501.2(c) governs an attorney’s preparation of pleadings, briefs or other documents for a party not otherwise represented by an attorney.

  (2) Limited Appearance. Section 3-501.2(d)-(e) governs an attorney’s entry of a limited appearance on behalf of a party not otherwise represented by an attorney.

COMMENTS TO § 6-1111

  [1] The rule is a truncated version of Rule 11 of the Federal Rules of the Federal Rules of Civil Procedure. Both rules provide that pleadings, motions, and other documents must be signed. That is where the similarities end. Federal Rule 11(b)-(d) addresses sanctions for filing pleadings and other documents that lack a reasonable basis in law or fact. Section 6-1111 does not address sanctions because they are governed by statute, more specifically, by Neb. Rev. Stat. § 25-824.

  [2] The 2021 Amendments incorporated verbatim the definition of “signature” that appears in § 2-201(M) of Electronic Filing, Service, and Notice System Rules. The 2024 Amendments replaced the definition with a cross-reference to § 2-201.

  [3] In 2014, provisions were added to subpart (b) to address when an attorney may prepare pleadings and other documents for a self-represented party. The provisions were identical to provisions in § 3-501.2(c) of the Nebraska Rules of Professional Conduct. In 2024, subpart (b) was given a new title – “Assistance to Parties not Otherwise Represented by an Attorney” – and the text was replaced by cross-references to § 3-501.2(c) and § 3-501.2(d)-(e). The latter rule addresses limited appearances.

Rule 11(a)(1-3) amended June 25, 2008, effective July 18, 2008. Renumbered and codified as § 6-1111(a)(1-3), effective July 18, 2008; § 6-1111(b) adopted September 3, 2008; § 6-1111(a)(1) and (b) amended September 24, 2014, effective January 1, 2015; § 6-1111 amended June 9, 2021, effective January 1, 2022; § 6-1111 amended November 13, 2024, effective January 1, 2025..

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§ 6-1112. Defenses and objections: when and how presented; by pleading or motion; motion for judgment on the pleadings; consolidating motions; waiving decisions; pretrial hearing.

§ 6-1112. Defenses and objections: when and how presented; by pleading or motion; motion for judgment on the pleadings; consolidating motions; waiving decisions; pretrial hearing.

  (a) Time to Serve a Responsive Pleading.

  (1) In General. Unless another time is specified by this rule, the time for serving a responsive pleading is as follows:

  (A) A defendant must serve an answer within 30 days after being served with the summons and complaint or completion of service by publication.

  (B) A party must serve an answer to a counterclaim or cross-claim within 30 days after being served with the pleading that states the counterclaim or cross-claim.

  (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

  (2) Effect of a Motion. Unless the court specifies a different time, serving a motion under this rule alters these periods as follows:

  (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 21 days after notice of the court’s action; or

  (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 21 days after the more definite statement is served.

  (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

  (1) lack of subject matter jurisdiction;

  (2) lack of personal jurisdiction;

  (3) pendency of another action that involves the same subject matter and parties; 

  (4) insufficient process;

  (5) insufficient service of process;

  (6) failure to state a claim upon which relief can be granted; and

  (7) failure to join a party under Neb. Rev. Stat. § 25-323.

  A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or in a motion.

  (c) Motion for Judgment on the Pleadings. After the pleadings are closed – but early enough not to delay the trial – a party may move for judgment on the pleadings.

  (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under § 6-1112(b)(6) or § 6-1112(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Neb. Rev. Stat. §§ 25-1330 to 25-1336. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

  (e) Motion for More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before serving a responsive pleading and must point out the defects complained of and the details sought. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

  (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

  (1) on its own; or

  (2) on a motion made by a party either before responding to the pleading or, if a response is not allowed, within 30 days after being served with the pleading.

  (g) Joining Motions.

  (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

  (2) Limitation on Further Motions. Except as provided in § 6-1112(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

  (h) Waiving and Preserving Certain Defenses.

  (1) When Some Are Waived. A party waives any defense listed in § 6-1112(b)(2), (b)(4), and (b)(5) by:

  (A) omitting it from a motion in the circumstances described in § 6-1112(g)(2); or

  (B) failing either:

  (i) to make it by motion under this rule; or

  (ii) to include it in a responsive pleading or in an amendment allowed by § 6-1115(a)(1) as a matter of course.

  (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a party under Neb. Rev. Stat. § 25-323, or to state a legal defense to a claim may be raised:

  (A) in any pleading allowed or ordered under § 6-1107(a);

  (B) by motion under § 6-1112(c); or

  (C) at trial.

  (3) Pendency of Another Action or Lack of Subject Matter Jurisdiction. If the court determines at any time that another action is pending that involves the same subject matter and parties, the court may dismiss or stay the action or issue any other appropriate order. If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.

  (i) Hearing Before Trial. If a party so moves, any defense listed in § 6-1112(b)(1)-(7) – whether made by a pleading or by motion – and a motion under § 6-1112(c) must be heard and decided before trial unless the court orders a deferral until trial.

COMMENTS TO § 6-1112

  [1] Subpart (a) sets the time periods for serving various motions and pleadings. The subpart was originally promulgated in 2002. In 2009, the time periods stated in Rule 12(a) of the Federal Rules of Civil Procedure were reset in multiples of 7 – in other words, 7 days, 14 days, 21 days, or 28 days. Using multiples of seven ensures that the “final day falls on the same day of the week as the event that triggered the period – the 14th day after a Monday, for example, is a Monday. See Fed. R. Civ. P. 12, Advisory Committee Notes to the 2009 Amendment.

  [2] The 2024 Amendments followed much the same approach. Time periods that were shorter than 30 days were reset to multiples of seven. The 30-day time period for serving a responsive pleading was retained. Although the Federal Rule 12(a) sets the time period for serving a responsive pleading at 21 days, the time period in Nebraska has been 30 days since Nebraska first became a State.

  [3] There was a minor anomaly in the original version of subpart (a). The time period for serving a court-ordered reply to an answer was 15 days after service of the order. By contrast, the time period for serving a responsive pleading after the denial of a motion to dismiss or grant of a motion for a more definite statement was 20 days. There is no obvious reason for the different time periods. Therefore, the 2024 Amendments eliminated the anomaly by setting 21 days as the time period for both a court-ordered reply [subpart (a)(1)(C)] and a responsive pleading after the denial or grant of a § 6-1112 motion [subpart (a)(2)].

  [4] Subpart (a) does not set the time for a plaintiff to act if the court grants a motion to dismiss or quash filed pursuant to subpart (b). If the defect can be corrected – for example, by serving an amended complaint to correct a defect in the statement of the claim or by serving the summons and complaint again to correct a defect in service – then the court must set the time for the plaintiff to act.

  [5] The defense of another action pending can be raised when there are two pending actions that involve the same subject matter and the same parties. The defense is based on the doctrine of jurisdictional priority: as between two courts of concurrent jurisdiction, the first court that acquires jurisdiction should retain it to the exclusion of the other. See Jesse B. v. Tylee H., 293 Neb. 973, 987 (2016).

  [6] Prior to the adoption of the Nebraska Court Rules of Pleading, the defense of another action pending could have been raised by demurrer when the defect appeared on the face of the petition. Otherwise, it could have been raised in the answer. The defense was not mentioned in the original version of § 6-1112, however. As a result, it was unclear how a party could properly raise the defense. The 2024 Amendments provided the missing clarity by inserting the defense into subpart (b)(3).

  [7] Subpart (b)(3) was empty at the time. The reason was that the mechanics of raising the defense of improper venue are different in federal and state court. Rule 12(b)(3) of the Federal Rules of Civil Procedure allows the defense of improper venue to be raised by a pre-answer motion to dismiss. In Nebraska, however, the defense must be raised by a motion to transfer. See Neb. Rev. Stat § 25-403.01. Because the defense is not raised by a pre-answer motion to dismiss, the drafters of the Nebraska Court Rules of Pleading left subpart (b)(3) empty so that the numbering of the remaining subpart (b) defenses would be the same as it is in Federal Rule 12(b).

  [8] Subpart (b)(7) originally referred the defense of failure to join a necessary party. At the time that subpart (b)(7) was promulgated, the Supreme Court used the terms “indispensable party” and “necessary party” interchangeably. In 2017, however, the court recognized a distinction between indispensable and necessary parties. The court stated that both indispensable and necessary parties have an interest in the subject matter of the action. The difference between the two is that the interest of an indispensable party may be affected by the judgment and the interest of a necessary party will not be. See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 91 (2017).

  [9] Even though there is a distinction between the two types of parties, the basis of the defense is the same: the missing party should be joined. Therefore, subpart (b)(7) was amended in 2024 to read “failure to join a party under Neb. Rev. Stat. § 25-323.” The statutory reference was used because § 25-323 governs the joinder of both indispensable and necessary parties.

  [10] Subpart (f) authorizes a motion to strike particular parts of a pleading. By contrast, Neb. Rev. Stat. § 25-913 authorizes a motion to strike an entire pleading.

  [11] Subpart (g)(2) prohibits successive pre-answer motions. If a party files a motion that raises a defense or objection under § 6-1112, the party must include any other defenses or objections that the rule allows to be raised by motion instead of raising them in a second pre-answer motion. The purpose of the prohibition is to eliminate the ability of a party to drag out the pleading stage of a case by raising defenses and objections piecemeal. If the party omits a defense or objection that was available to the party when it filed its motion, the party cannot file a second motion to raise the omitted defense or objection.

  [12] For example, if a party unsuccessfully files a pre-answer motion to dismiss for failure to state a claim on one ground, the party cannot subsequently file a second pre-answer motion to dismiss for failure to state a claim on different ground. That is true even though the defense of failure to state a claim is not waived by failing to raise it in an earlier motion. Instead of filing a second motion to dismiss, the party must raise the other ground in a manner authorized by subpart (h)(2). To allow the party to raise the other ground by filing a second pre-answer motion to dismiss would be contrary to the language and purpose of subpart (g)(2).

  [13] The defense of another action pending is not jurisdictional. The Supreme Court has indicated, however, that an appellate court may raise the defense on an appeal even though the parties did not raise it below. See Brinkman v. Brinkman, 302 Neb. 315, 319 (2019). That indicates that the defense is one that cannot be waived.

  [14] Subpart (h)(3) provides that a court must dismiss the action if it determines that it lacks subject matter jurisdiction. Subpart (h)(3) takes a different approach for the defense of another action pending by giving the court the discretion to dismiss or stay the action rather than mandating that the court do so.

§ 6-1112 amended November 13, 2024, effective January 1, 2025; § 6-1112 amended September 3, 2025.

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§ 6-1113. Counterclaim and crossclaim.

§ 6-1113. Counterclaim and crossclaim.

   (a) Stating a Counterclaim. A pleading may state as a counterclaim any claim that the pleader has against an opposing party when the pleading is served.

  (b) Failing to State a Related Counterclaim The failure to state as a counterclaim a claim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim precludes the pleader from recovering costs from that party in a subsequent action on the claim.

  (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

  (d) Counterclaim Against the State and Political Subdivisions. These rules do not expand the right to assert a counterclaim or to obtain a credit against the State of Nebraska, an officer or agency of the State, or a political subdivision of the State.

  (e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

  (f) Cross-Claim Against a Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The cross-claim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

  (g) Joining Additional Parties. Neb. Rev. Stat. §§ 25-323 and 25-705(4) govern the addition of a person as a party to a counterclaim or cross-claim.

COMMENTS TO § 6-1113

  [1] Subpart (a) allows but does not require a party to assert any counterclaim that it has at the time it serves its responsive pleading. Subpart (b) encourages a party to assert as a counterclaim a claim that arises out of the same transaction or occurrence as the claim asserted against the party. The rule does so by precluding the party from recovering costs if it brings the claim in a subsequent action. Furthermore, depending on the subject matter of the claim, a party who brings a subsequent action may be precluded from litigating the claim by the doctrine of claim preclusion or may be barred from relitigating issues by the doctrine of issue preclusion. In short, a party should carefully evaluate the nature of a particular claim when deciding whether to assert it as a counterclaim or to make it the subject of a subsequent action.

  [2] A counterclaim is stated in the party’s responsive pleading. See § 6-1107(a)(3). The original version of § 6-1113(f) provided that a party could add a counterclaim by seeking leave of court to amend its pleading. The provision was deleted in 2024 because it was unnecessary. Section 6-1115(a) governs the amendment of all pleadings, including the amendment of a responsive pleading to add a counterclaim.

§ 6-1113 amended November 13, 2024, effective January 1, 2025.

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§ 6-1114. Third-party practice [Reserved].

§ 6-1114. Third-party practice [Reserved].

COMMENTS TO § 6-1114

  Rule 14 of the Federal Rules of Civil Procedure governs third-party practice. In Nebraska, third-party practice is governed by statute. See Neb. Rev. Stat. § 25-331. Section 6-1114 was included in the Nebraska Court Rules of Pleading in Civil Cases without any text so that the numbering of the rules corresponds to the numbering of the Federal Rules of Civil Procedure.

§ 6-1114 amended November 13, 2024, effective January 1, 2025.

 

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§ 6-1115. Amended and supplemental pleadings.

§ 6-1115. Amended and supplemental pleadings.

  (a) Amendments in General.

  (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course no later than:

  (A) 30 days after serving it, or

  (B) if the pleading is one to which a responsive pleading is required, 14 days after service of a responsive pleading or 14 days after service of a motion under § 6-1112(b), (e), or (f), whichever is earlier. When a responsive pleading is required from multiple parties, the 14-day period commences on service of the first responsive pleading or motion under § 6-1112(b), (e), or (f).

  (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely grant leave when justice so requires.

  (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

  (b) Amendments During and After Trial.

  (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

  (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and to raise an unpled issue. But failure to amend does not affect the result of the trial of that issue.

  (c) Relation Back of Amendments. Relation back of amendments is governed by Neb. Rev. Stat. § 25-201.02.

  (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim for relief or a defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

COMMENTS TO § 6-1115

  [1] Subpart (a)(1) allows a party to amend its pleading once as a matter of course, without the need to obtain leave of court or the consent of the opposing party. The 2024 Amendments made changes to the time for amending as a matter of course. The purpose of the changes is to give plaintiffs (and other parties asserting claims) the opportunity to amend their pleadings to address issues raised by an answer or by a motion to dismiss, a motion for a more definite statement, or a motion to strike. Giving plaintiffs that opportunity may help to move the case forward more efficiently and avoid the need for the court to rule on some or all the motions. The changes were modeled on Rule 15(a)(1) of the Federal Rules of Civil Procedure but set a shorter time period than the federal rules do.

  [2] Cases may involve multiple parties, with some defendants appearing and serving pleadings or motions earlier than others. In those cases, the time period for amending as a matter of course for all parties begins to run when the first responsive pleading or § 6-1112(b), (e), or (f) motion is served.

  [3] Subpart (a)(3) provides that unless the court orders otherwise, the responsive pleading to an amended pleading must be served within the time remaining to respond to the original pleading or 14 days after service of the amended pleading, whichever is longer. The 2024 Amendments increased the number of days from 10 to 14 as part of the general resetting of time periods in multiples of 7. The reason for resetting the time periods is discussed in Comment [1] on § 6-1112.

  [4] The original title of subpart (b) was “Amendments to Conform to the Evidence.” The subpart provided, among other things, that an amendment was not necessary when the issues were tried by the express or implied consent of the parties. The most common scenario of implied consent is that of a party failing to object when the opposing party offers evidence that is uniquely relevant to an unpled issue.

  [5] It was unclear whether the implied consent provisions applied to summary judgment motions or were instead limited to trials. The issue was raised but not decided in Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809 (2006). The 2024 Amendments answer the question. The amendments changed the title of subpart (b) to “Amendments During and After Trial” and restructured the subpart to make it clear that the provisions only apply to objections made or to consent given during trial.

§ 6-1115 amended November 13, 2024, effective January 1, 2025; § 6-1115 amended September 3, 2025.

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§ 6-1116. Pretrial conferences; scheduling; management [Reserved].

§ 6-1116. Pretrial conferences; scheduling; management [Reserved].

COMMENT TO § 6-1116  

  Rule 16 of the Federal Rules of Civil Procedure governs pretrial conferences, case scheduling, and case management. In Nebraska, pretrial conferences are governed by § 6-1421 of the Uniform County Court Rules of Practice and Procedure and by § 6-1522 of the Uniform District Court Rules of Practice and Procedure. Section 6-1116 was included in the Nebraska Court Rules of Pleading in Civil Cases without any text so that the numbering of the rules corresponds to the numbering of the Federal Rules of Civil Procedure.

§ 6-1116 amended November 13, 2024, effective January 1, 2025.

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Prior Version of Article 11: Nebraska Court Rules of Pleadings in Civil Cases. (Effective before January 1, 2025.)

Prior Version of Article 11: Nebraska Court Rules of Pleadings in Civil Cases. (Effective before January 1, 2025.)

See Neb. Ct. R. of Pldg. § 6-1101(c) (rev. 2025).

(cite as Neb. Ct. R. Pldg. § (rev. 20XX))

(Adopted December 11, 2002; effective January 1, 2003. Renumbered and codified as Neb. Ct. R. Pldg. §§ 6-1101 - 6-1116, effective July 18, 2008.)

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Revisor's note.

Revisor's note.

   (Revisor's note: The former Nebraska Rules of Pleading in Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 11, Nebraska Court Rules of Pleading in Civil Cases. Thus, former rule 12 is now Neb. Ct. R. Pldg. § 6-1112, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule number. Subsections and references within this rule to rules by number and subsection may remain unchanged. Thus, a reference in this rule to rule 12(a)(1) should be interpreted and found at  § 6-1112(a)(1), etc.)

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§ 6-1101. Scope and purpose of rules.

§ 6-1101. Scope and purpose of rules.

   These Rules govern pleading in civil actions filed on or after January 1, 2003. They apply to the extent not inconsistent with statutes governing such matters.

  These Rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

  These Rules govern pleading in a forcible entry and detainer action only to the extent they are consistent with a court's jurisdiction over such actions and are not in conflict with law governing such actions.

  Where reference is made in these rules to "filing," "service," or "notice," it is presumed to mean electronic filing, service, or notice by registered users as defined in § 2-201(I) unless the context requires otherwise.

COMMENT

  The Rules are authorized by §§ 25-801.01 and 42-353. Jurisdiction to hear a forcible entry and detainer action is discussed in Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003).

Rule 1 amended May 19, 2004. Renumbered and codified as § 6-1101, effective July 18, 2008; § 6-1101 amended June 9, 2021, effective January 1, 2022.

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§ 6-1102. One form of action [Reserved].

§ 6-1102. One form of action [Reserved].

COMMENT 

  The only form of action is a civil action. Section 25-101.

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§ 6-1103. Commencement of action [Reserved].

§ 6-1103. Commencement of action [Reserved].

COMMENT

  Section 25-501 provides that a civil action is commenced by filing a complaint in the office of the clerk of a proper court. The date an action is commenced for purposes of the statutes of limitations is defined by § 25-217.

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§ 6-1104. Summons [Reserved].

§ 6-1104. Summons [Reserved].

COMMENT

  Service of process is governed by Chapter 25, Article 5.

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§ 6-1105. Serving and filing pleadings and other documents.

§ 6-1105. Serving and filing pleadings and other documents.

 (a) Service: When Required. 

  (1) In general. Except as otherwise provided in these rules or by statute, the following shall be served on each of the parties:

  (A) every pleading subsequent to the original complaint or petition unless otherwise ordered by the court due to numerous defendants;

  (B) an order stating that service is required;

  (C) every document relating to discovery required to be served on a party unless otherwise ordered by the court;

  (D) every written motion, other than one which may be heard ex parte; and

  (E) every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar documents.

  (2) No service is required on parties who are in default for failing to appear, unless the pleadings assert new or additional claims for relief. Such new pleadings shall be served as provided for service of summons.

  (3) If an action is for seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of any answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.

  (b) Service: How Made.

  (1) If a party is represented by an attorney, service shall be made on the attorney unless the court orders service on the party.

  (2) Except as provided in subsection (3), service of any required document shall be made by:

  (A) delivering to the person to be served;

  (B) mailing it to the person to be served by first-class mail to the address provided in § 6-1111(a)(3) or the last-known address of the person in which event service is complete upon mailing;

  (C) leaving it at the person's office with the person's clerk or other person in charge; or if the office is closed or if the person has no office, leaving it at the person's dwelling place or usual place of abode with some person of suitable age and discretion who resides there;

  (D) sending it to the person by email if the person being served has designated an email address pursuant to § 6-1111(a)(3), or sending it via the court-authorized service provider to a registered user. In either event, service is complete upon filing or sending the document, but is not effective if the filer or sender learns that it did not reach the person to be served; or

  (E) delivering it by any other means consented to in writing by the party being served or leaving it with the court clerk if authorized by statute.

  (3) Attorneys and registered users. If a filing is made electronically via the court-authorized service provider, service shall be made electronically on all Nebraska attorneys and other registered users via the court-authorized service provider.

  (c) Service; Numerous Defendants. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order:

  (1) service of the pleadings of the defendants and replies need not be made as between the defendants;

  (2) any cross-claim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them shall be treated as denied or avoided by all other parties; and

  (3) filing of such pleading and service on the plaintiff constitutes notice of the pleading to all parties.

  (4) A copy of such order shall be served upon the parties in such manner and form as the court directs.

  (d) Filing: Proof of Service; Certificate of Service.

  (1) Proof of service shall be made by certificate of the attorney causing the service to be made or by certificate of the party not represented by an attorney. A certificate of service shall state the manner in which service was made on each person served. When a document is electronically filed via the court-authorized service provider, the provisions of § 2-205 shall control.

  (2) All documents after the complaint required to be served upon a party (except discovery material), together with a certificate of service, shall be filed in the court within a reasonable time after service. Neb. Ct. R. of Disc. § 6-326(g) governs filing of all discovery material.

  (e) Filing with the Court Defined. 

  (1) A person represented by an attorney must file electronically unless non-electronic filing is allowed by other court rule.

  (2) A non-attorney may only file electronically if allowed by court rule.

Rule 5(b) amended June 25, 2008, effective date July 18, 2008. Renumbered and codified as § 6-1105(b), effective July 18, 2008; § 6-1105(b)(2)(E) amended August 31, 2011; § 6-1105(b)(2)(E) amended June 8, 2016; § 6-1105 amended June 9, 2021, effective January 1, 2022.

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§ 6-1106. Time.

§ 6-1106. Time.

   (a) Computation. [Reserved]

COMMENT

  Computation of time and legal holidays are governed by § 25-2221 and Neb. Ct. R. § 2-206. Time of filing and time of service.

  (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. The court may not extend the time for taking any action specified in any statute, except to the extent and under the conditions stated in the statutes.

  (c) [Reserved]

  (d) For Motions--Affidavits. [Reserved]

COMMENT

  Motion practice is governed by Chapter 25, Article 9(d).

  (e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other document upon the party and the notice or document is served under § 6-1105(b)(2)(B), three days shall be added to the prescribed period.

Rule 6(e) amended June 25, 2008, effective July 18, 2008. Renumbered and codified as § 6-1106(e), effective July 18, 2008; § 6-1106 amended June 9, 2021, effective January 1, 2022.

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§ 6-1107. Pleadings allowed; form of motions.

§ 6-1107. Pleadings allowed; form of motions.

   (a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such, if the answer contains a counterclaim; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned as a third-party defendant; and a third-party answer, if a third party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

COMMENT

 The initial pleading will be a petition when that designation is provided by statute. See § 25-801.01(2)(b).

  A partial list of the proceedings in which the initial pleading is a "petition" includes a petition in error (see § 25-1903), probate procedure (see § 30-2209), protection from domestic abuse (see § 42-924), adoption (see § 43-102), actions under the juvenile code (see § 43-245 et seq.), workers’ compensation actions (see § 48-173), Commission of Industrial Relations actions (see § 48-811), mental health commitments (see § 83-1001 et seq.), and judicial review of administrative action (see § 84-917). The initial pleading in an action for postconviction relief by a prisoner is a "verified motion" (see § 29-3001).

  A separate rules defines the extent to which an action for grandparent visitation is governed by these rules (see § 43-1803 and the Rules adopted by the Supreme Court pursuant thereto).

  (b) Motions and Other Papers. [Reserved]

COMMENT

  Motion practice is governed by Chapter 25, Article 9(d).

  (c) Demurrers, Pleas, Etc., Abolished. [Reserved]

COMMENT

  See § 25-801.01(2)(c).

Rule 7(a) amended May 19, 2004. Renumbered and codified as § 6-1107, effective July 18, 2008.

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§ 6-1108. General rules of pleading.

§ 6-1108. General rules of pleading.

   (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a caption, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. If the recovery of money be demanded, the amount of special damages shall be stated but the amount of general damages shall not be stated; and if interest thereon be claimed, the time from which interest is to be computed shall also be stated.

  (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, a party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. The pleader may make denials as specific denials of designated averments or paragraphs, may generally deny all the averments except such designated averments or paragraphs as are expressly admitted, or may controvert all the averments of the preceding pleading by general denial.

  (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

  (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to value or the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

  (e) Pleadings to Be Concise and Direct; Consistency.

  (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.

  (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds. All statements shall be subject to the standards set forth in § 25-824.

  (3) Construction of Pleadings. [Reserved]

COMMENT

  See § 25-801.01(2)(d).

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§ 6-1109. Pleading special matters.

§ 6-1109. Pleading special matters.

   (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

  (b) Fraud, Mistake, Undue Influence, Condition of the Mind. In all averments of fraud, mistake, or undue influence, the circumstances constituting fraud, mistake, or undue influence shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

  (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

  (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

  (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

  (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

  (g) Special Damage. When items of special damage are claimed, they shall be specifically stated.

  (h) If, after consultation, the client consents in writing, an attorney may enter a "Limited Appearance" on behalf of an otherwise unrepresented party involved i n a court proceeding, and such appearance shall clearly define the scope of the lawyer's limited representation. A copy shall be provided to the client and
opposing counsel or opposing party if unrepresented.

  (i) Upon completion of the limited representation, the lawyer shall within 10 days file a "Certificate of Completion of Limited Appearance" with the court. Copies shall be provided to the client and opposing counsel or opposing party if unrepresented. After such filing, the lawyer shall not have any continuing obligation to represent the client. The filing of such certificate shall be deemed to be the lawyer's withdrawal of appearance which shall not require court approval.

COMMENT

  Neb. Ct. R. Pldg. §§ 6-1109(h) and (i) should be viewed in conjunction with Neb. Ct. R. of Prof. Cond. § 3-501.2 which specifically authorizes Limited Scope Representation in Nebraska. Neb. Ct. R. Pldg. §§ 6-1109(h) and (i) formalize the method by which lawyers enter a case for a limited purpose and how such representation is formally ended.

§ 6-1109(h) and (i) adopted September 3, 2008; Comment amended September 3, 2008.

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§ 6-1110. Form of pleadings.

§ 6-1110. Form of pleadings.

   (a) Caption: Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in § 6-1107(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

  (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

  (c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

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§ 6-1111. Signing of pleadings.

§ 6-1111. Signing of pleadings.

  (a) Signature.

  (1) Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's name, or by a party personally if the party is not represented by an attorney. An unsigned document, other than an electronic filing, shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the filer.

  (2) An electronic filing made through a filer’s court-authorized service provider account and authorized by the filer, together with the filer’s name on a signature block, constitutes the person’s signature. A user is responsible for all filings made on his or her account, absent clear and convincing evidence of unauthorized use of the account.

  (3) Each document for filing shall state the signer’s address, email address, if any, and telephone number, and the attorney’s bar identification number, if filed by an attorney. Except when otherwise specifically provided by statute, pleadings need not be verified or accompanied by affidavit.

  (b) When a lawyer is not an attorney of record, such lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate that said filings are “Prepared By” along with the name, address, email address, telephone number, and bar number of the lawyer preparing the same. Such actions or filings shall not be deemed an appearance by the lawyer in the case.

  (c)-(d) [Reserved]

Rule 11(a)(1-3) amended June 25, 2008, effective July 18, 2008. Renumbered and codified as § 6-1111(a)(1-3), effective July 18, 2008; § 6-1111(b) adopted September 3, 2008; § 6-1111(a)(1) and (b) amended September 24, 2014, effective January 1, 2015; § 6-1111 amended June 9, 2021, effective January 1, 2022.

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§ 6-1112. Defenses and objections - when and how presented; by pleading or motion; motion for judgment on the pleadings.

§ 6-1112. Defenses and objections - when and how presented; by pleading or motion; motion for judgment on the pleadings.

  (a) When Presented.

  (1) A defendant shall serve an answer within 30 days after being served with the summons and complaint or completion of service by publication.

  (2) A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 30 days after being served. A plaintiff shall serve a reply to a counterclaim in the answer within 30 days after being served with the answer, or, if a reply is ordered by the court, within 15 days after service of the order, unless the order otherwise directs.

  (3) [Reserved]

  (4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows:

  (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 20 days after notice of the court's action; or

  (B) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 20 days after the service of the more definite statement.

COMMENT

  Subpart 4 defines the time in which a defendant must file an answer after the court denies a motion such as one raising the defense in subpart (b)(6), or after the plaintiff files an amended complaint in response to the grant of a motion for a more definite statement. The rules do not define the time in which a plaintiff must act if the court sustains a motion filed under subpart (b). If the defect can be corrected, such as by serving the summons and complaint again to remedy a defect in the attempt to serve process or by serving an amended complaint to remedy the failure to state a claim, the court must define the time in which plaintiff can act. If the defect cannot be corrected or the plaintiff does not correct the defect within the permitted time the court can render a judgment dismissing the action.

  (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

  (1) lack of jurisdiction over the subject matter;

  (2) lack of jurisdiction over the person;

  (3) [reserved]

  (4) insufficiency of process;

  (5) insufficiency of service of process;

  (6) that the pleading fails to state a claim upon which relief can be granted;

  (7) failure to join a necessary party.

  A motion making any of these defense shall be made before pleading if further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

  If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief.

  If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in §§ 25-1330 to 25-1336, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

COMMENT

  Improper venue is not a ground for dismissal; the issue can be raised by a timely motion for transfer under § 25-403.01. 

  (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in §§ 25-1330 to 25-1336 and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

  (d) Preliminary Hearings. The defenses specifically enumerated (1)-(2) and (4)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

  (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days or within such time as the court may fix, the court may strike the pleading or make such order as it deems just.

  (f) Motion to Strike. Upon motion by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within 30 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

COMMENT

  This Rule authorizes a motion to strike a specific portion of a pleading. Section 25-913 authorizes a motion to strike an entire pleading.

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

COMMENT

  Subpart (g) promotes expeditious procedure by permitting the simultaneous presentation of defenses and objections by a single motion. Some defenses will be waived under subpart (h)(1) if they are omitted from a motion that is filed. Other defenses can be asserted in subsequent procedural steps under subpart (h)(2) if they are omitted from a motion that is filed. The opening clause of subpart (b) provides that any motion is optional and that all the defenses listed can be asserted in the responsive pleading.

  (h) Waiver or Preservation of Certain Defenses.

  (1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived

  (A) if omitted from a motion in the circumstances described in subdivision (g), or

  (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by § 6-1115(a) to be made as a matter of course.

  (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a necessary party, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 6-1107(a), or by motion for judgment on the pleadings, or at the trial on the merits.

  (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

COMMENT

  Under subpart (g) a motion to transfer an action to a court with proper venue pursuant to § 25-403.01 may be joined with a motion under this rule. As an alternative, it may be made timely and separately because improper venue is not listed as a defense that will be waived under the circumstances described in subpart (h)(1).

dbrown-butterfield

§ 6-1113. Counterclaim and cross-claim.

§ 6-1113. Counterclaim and cross-claim.

  (a) Counterclaims. A pleading may state as a counterclaim any claim which at the time of serving the pleading, the pleader has against an opposing party.

  (b) Failure to Include Counterclaim; Effect in Subsequent Action. A party who does not assert a counterclaim that arises out of the transaction or occurrence that is the subject matter of an opposing party's claim cannot recover costs against that party in any subsequent action thereon.

  (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

  (d) Counterclaim Against the State and Political Subdivisions. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the State of Nebraska, an officer or agency of the State, or a political subdivision of the State.

  (e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after filing a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

  (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.

  (g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

COMMENT

  Joinder of additional cross-claims is also governed by § 25-701.

  (h) Joinder of Additional Parties. [Reserved]

COMMENT

  Joinder of additional parties to a counterclaim or cross-claim is governed by § 25-705(4).

  (i) Separate Trials; Separate Judgments. [Reserved]

dbrown-butterfield

§ 6-1114. Third-party practice [Reserved].

§ 6-1114. Third-party practice [Reserved].

COMMENT

Third-party practice is governed by § 25-331.

dbrown-butterfield

§ 6-1115. Amended and supplemental pleadings.

§ 6-1115. Amended and supplemental pleadings.

  (a) Amendments. A party may amend the party's pleading once as a matter of course before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the party may amend it within 30 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

  (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

  (c) Relation Back of Amendments. [Reserved]

COMMENT

  Relation back of amendments is governed by § 25-201.02.

  (d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or a defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

dbrown-butterfield

§ 6-1116. Pretrial conferences; scheduling; management [Reserved].

§ 6-1116. Pretrial conferences; scheduling; management [Reserved].

COMMENT

  See Neb. Ct. R. § 6-1522, Pretrial procedure: formulating issues.

dbrown-butterfield

Article 12: Problem-Solving Courts.

Article 12: Problem-Solving Courts. unanimous

§ 6-1201. Establishment.

§ 6-1201. Establishment.

   Sections 6-1201 through 6-1210 shall govern all problem-solving courts established by and within the Nebraska judicial system. Problem-solving courts shall exist and be established only upon approval of the Nebraska Supreme Court.

§ 6-1201 amended September 21, 2016.

unanimous

§ 6-1202. General.

§ 6-1202. General.

   For purposes of §§ 6-1201 through 6-1210, problem-solving courts are programs and services established within the district, county, or juvenile courts and shall include, but are not limited to, programs established pursuant to Neb. Rev. Stat. § 24-1302 and programs established for the treatment of problems related to issues such as substance abuse, mental health, and domestic violence. The purpose of the programs and services is to reduce recidivism by fostering a comprehensive and coordinated court response composed of early intervention, appropriate treatment, intensive supervision, and consistent judicial oversight.

Adopted January 24, 2007, effective March 1, 2007. Renumbered and codified as § 6-1202, effective July 18, 2008; § 6-1202 amended September 21, 2016; § 601202 amended February 14, 2019.

unanimous

§ 6-1203. Constitutional and statutory authority.

§ 6-1203. Constitutional and statutory authority.

   Sections 6-1201 through 6-1210 are promulgated under the authority of article V, § 1, of the Nebraska Constitution and Neb. Rev. Stat. § 24-1302.

§ 6-1203 amended September 21, 2016.

unanimous

§ 6-1204. Purpose.

§ 6-1204. Purpose.

   The purpose of §§ 6-1201 through 6-1210 is to institute requirements for the establishment and operation of problem-solving courts in Nebraska.

§ 6-1204 amended September 21, 2016.

unanimous

§ 6-1205. Scope.

§ 6-1205. Scope.

   Sections 6-1201 through 6-1210 shall apply to all Nebraska problem-solving court judges and personnel regardless of funding source.

§ 6-1205 amended September 21, 2016.

unanimous

§ 6-1206. [Reserved.]

§ 6-1206. [Reserved.]

 § 6-1206 amended September 21, 2016; § 6-1206 amended February 14, 2019.

unanimous

§ 6-1207. Requirements for establishment or expansion.

§ 6-1207. Requirements for establishment or expansion.

   (A) In order to establish or expand a problem-solving court as defined in § 6-1202, approval must first be granted by the Nebraska Supreme Court pursuant to Neb. Ct. R. §§ 6-1201 through 6-1210.

   (B) Problem-solving courts shall adhere to the 10 Key Components as identified and approved by the National Association of Drug Court Professionals in January 1997, and utilize evidence-based practices as identified by applicable social science research and literature. In addition, family treatment courts shall adhere to the Family Treatment Court Common Characteristics promulgated by the National Drug Court Institute in 2018.

   (C) Any court interested in expanding an existing problem-solving court or starting a new problem-solving court shall provide a written Notice of Intention to the State Court Administrator. The written notice shall include:

   (1) A general program description to include the following;

   (a) Location of problem-solving court;

   (b) Type of problem-solving court;

   (c) The program elements, including, but not limited to, whether it is a postplea or pre- or postadjudication program;

   (d) The judicial oversight of problem-solving court; and

   (e) The level of support from:

   (i) County attorney;

   (ii) Public defender;

   (iii) Treatment providers and, in the case of family treatment courts, the Nebraska Department of Health and Human Services;

   (iv) Law enforcement;

   (v) County board; and

   (vi) Chief probation officer;

   (2) A description of the target population it intends to serve and the estimated number of participants in the first year of operation;

   (3) Program goals and intended outcomes and how they will be measured;

   (4) An established eligibility criteria for participation in the problem-solving court which includes a standardized, validated risk instrument as approved by the Administrative Office of the Courts;

   (5) The process or procedure by which an individual gains acceptance to participate in the problem-solving court;

   (6) Drug/alcohol testing protocol;

   (7) A protocol for adhering to appropriate and legal confidentiality requirements and a plan to provide all team members with an orientation regarding the confidentiality requirements of 42 U.S.C. § 290dd-2 and 42 C.F.R. part 2, if applicable;

   (8) The terms and conditions of participation in the problem-solving court, including, but not limited to, treatment; drug testing requirements; the expected intensity of supervision; the anticipated types and intensity of treatment, education, and employment programs to be provided; phase requirements; graduation/completion requirements; graduated sanctions and rewards; and any applicable program service fees;

   (9) The process or procedure by which a participant's progress in the problem-solving court is monitored; and

   (10) Written policies and procedures governing its general administration, including those relating to organization, personnel, and finance.

   (D) After reviewing the Notice of Intention, the State Court Administrator will refer the request to the Statewide Problem-Solving Court Coordinator or request additional information from the applying court.

   (E) At the direction of the State Court Administrator, the Statewide Problem-Solving Court Coordinator will begin an initial assessment of the request to include:

   (1) Data supporting the need for and cost of the proposed problem-solving court and quantifying the expected benefits;

   (2) The existence and applicability of evidence-based practices specific to the operation of the proposed court;

   (3) Available resources;

   (4) Needed resources;

   (5) Problem-solving court funding plan;

   (6) Whether a problem-solving court model for the proposed court has been approved by the Supreme Court and Nebraska Supreme Court Committee on Problem-Solving Courts; and

   (7) The existence and applicability of Best Practice Standards approved by the Supreme Court.

   (F) Upon completion of the initial assessment, the Statewide Problem-Solving Court Coordinator shall present the information and any recommendations to the State Court Administrator and the State Probation Administrator.

   (G) If, after review of the Statewide Problem-Solving Court Coordinator’s assessment and recommendations, the State Court Administrator determines the request shall be denied, a report shall be submitted to the applying judge explaining the reasons therefor and outlining potential next steps.

   (H) If, after review of the Statewide Problem-Solving Court Coordinator’s assessment and recommendations, the State Court Administrator determines the request warrants submission to the Nebraska Supreme Court, the Statewide Problem-Solving Court Coordinator shall facilitate and assist the proponents in the fulfillment of the requirements for establishing or expanding a problem-solving court outlined in Neb. Ct. R. §§ 6-1201 through 6-1210.

   (I) Upon receipt of the State Court Administrator’s determination that the request warrants submission to the Supreme Court, the proponents of the court shall submit to the Statewide Problem-Solving Court Coordinator all documents required for establishing or expanding a problem-solving court described in Neb. Ct. R. §§ 6-1201 through 6-1210.

   (J) The Statewide Problem-Solving Court Coordinator shall review the documents submitted by proponents and determine whether the information submitted is in compliance with Neb. Ct. R. §§ 6-1201 through 6-1210. If the Coordinator so determines, the request shall be submitted by the Statewide Problem-Solving Court Coordinator to the State Court Administrator requesting Supreme Court approval. If the Coordinator determines the information is not in compliance with Neb. Ct. R. §§ 6-1201 through 6-1210, the Coordinator shall address the deficiencies with the proponents until compliance is achieved or until the Coordinator determines the requirements of Neb. Ct. R. §§ 6-1201 through 6-1210 cannot be met. A determination that the requirements of Neb. Ct. R. §§ 6-1201 through 6-1210 cannot be met shall be communicated in writing to the State Court Administrator for further action by the Administrator.

   (K) Upon approval by the Supreme Court, the applying problem-solving court will work with the Statewide Problem-Solving Court Coordinator to develop an implementation plan to include but not be limited to:

   (1) Personnel;

   (2) Timelines;

   (3) Training;

   (4) Daily operations; and

   (5) Technical assistance.

   (L) Any changes in the material submitted pursuant to § 6-1207(C) shall be submitted to the Administrative Office of the Courts in a timely manner for approval by the Nebraska Supreme Court.

   (M) Screening and treatment for substance use shall adhere to Neb. Ct. R., Ch. 6, Art. 13, Substance Use Services adopted by the Nebraska Supreme Court.

   (N) The Court may from time to time modify the requirements set forth in § 6-1207(A) through (M).

   (O) The Court shall reserve the right to allow exemptions to any of the requirements set forth in § 6-1207(A) through (K). Any request for an exemption shall be made to the Court in writing. Exemptions shall also be terminated at the discretion of the Court.

§ 6-1207(B) amended June 24, 2015; § 6-1207 amended September 21, 2016; § 6-1207 amended February 14, 2019; § 6-1207(B) and (C)(1)(e)(iii) amended April 15, 2020.

unanimous

§ 6-1208. Operational requirements.

§ 6-1208. Operational requirements.

   (A) All problem-solving courts shall be postplea or postadjudication in nature and, with respect to reentry courts, postsentencing.

   (B) Following the effective date of these rules, all new problem-solving courts, with the exception of family dependency drug courts, shall utilize probation personnel.

   (C) Before receiving any funding from the Administrative Office of the Courts, problem-solving courts shall have an interlocal agreement or other contract in place. Problem-solving courts directly utilizing probation personnel shall have an interlocal agreement with the Office of Probation Administration outlining the roles, responsibilities, obligations, and the collection of probation fees. Problem-solving courts that are not directly utilizing probation personnel shall have an interlocal agreement or other contract with the Administrative Office of the Courts outlining the roles, responsibilities, and obligations of each. Family treatment courts shall have an interlocal agreement or other contract with the Nebraska Department of Health and Human Services identifying the roles, responsibilities, and obligations of each.

   (D) Problem-solving courts applying for access to treatment funds managed by the Office of Probation Administration shall enter into an interlocal agreement with the Office of Probation Administration outlining roles, responsibilities, obligations, and the collection of fees. Such problem-solving courts shall adhere to all Office of Probation Administration policies and procedures in regard to the Offender Fee for Service Voucher Program.

   (E) Problem-solving courts shall not deny participation to anyone based on a person's financial status, gender, age, race, religion, physical or mental disability, or ethnicity.

   (F) Participants must sign an appropriate consent for disclosure upon application for entry into a problem-solving court in accordance with confidentiality requirements of 42 U.S.C. 290dd-2 and 42 C.F.R. part 2.

   (G) Problem-solving courts shall have a core team of professionals responsible for the case management of participants. All members of the core team of professionals shall complete orientation and continuing education and training appropriate to the operation of the specific problem-solving court. Content, intervals, and duration for the specific problem-solving court’s education program shall be as established by the Director of Judicial Branch Education, subject to the approval of the Supreme Court, using national and state best practice standards.

   (H) Problem-solving courts shall advise the Administrative Office of the Courts, in writing, of the source(s) of all program funding. Problem-solving courts eligible for available federal funding or other grant-based funding are encouraged to make all reasonable efforts to secure such funding.

   (I) Problem-solving courts in which the collection of state or local fees applies shall not deny entrance nor terminate from the program based on an individual's inability to pay.

   (J) All problem-solving court participants shall remit all state or local fee payments to the clerk of the court. The clerk of the court shall collect all required state and local fees and shall disperse and report such fees according to law and the policies of the Administrative Office of the Courts.

   (K) All problem-solving courts shall collect management information and data on the governance and operation of the courts and shall report such information and data in such reports and at such frequency as required by these rules and Appendix 1 and as the Administrative Office of the Courts and Probation may from time to time require.

   The collection and reporting of the information and data shall be by utilization of the Nebraska Probation Application for Community Safety System (NPACS). The scope of the data and information collected and reported shall be as necessary to comply with the reporting requirements in the problem-solving court’s performance measures and the problem-solving court’s audit process as more fully described in Appendix 1 to these rules.

   (L) All problem-solving courts shall utilize evidence-based practices as identified by applicable scientific research and literature and shall adhere to best practice standards

   (M) The Court shall reserve the right to allow exemptions to any of the requirements set forth in § 6-1208(A) through (L). Any request for an exemption shall be made to the Court in writing. Exemptions shall be terminated at the discretion of the Court.

§ 6-1208(K) and (L) amended June 24, 2015; § 6-1208 amended September 21, 2016; § 6-1208(A), (K), and (L) amended February 14, 2019; § 6-1208(G) amended April 10, 2019; § 6-1208(C) amended April 15, 2020; § 6-1208(K)-(M) amended September 21, 2022.

unanimous

§ 6-1209. Case management and evaluation requirements.

§ 6-1209. Case management and evaluation requirements.

   (A) Problem-solving courts shall collect and record the data necessary to permit the Administrative Office of the Courts to facilitate outcome and process evaluations. At a minimum, the data to be collected and recorded shall include:

   (1) Information regarding participant census, including numbers of:

   (a) active participants

   (b) total participants served since program's inception

   (c) graduates

   (d) participants terminated

   (2) Participant demographics including, but not limited to:

   (a) age

   (b) race

   (c) ethnicity

   (d) gender

   (3) Participant program compliance, including, but not limited to:

   (a) attendance in treatment

   (b) drug testing

   (c) phase movement

   (d) attendance in other services

   (B) Problem-solving courts shall utilize the statewide case management system as approved by the Administrative Office of the Courts to record its data when such statewide case management system becomes available. Until then, such courts shall, in a timely manner, provide data to the Administrative Office of the Courts as requested.

   (C) Problem-solving courts shall participate fully in any process or outcome evaluation facilitated by the Administrative Office of the Courts.

   (D) Unauthorized disclosure of confidential information regarding participants is prohibited.

   (E) The Court shall reserve the right to allow exemptions to any of the requirements set forth in § 6-1209(A) through (D). Any request for an exemption shall be made to the Court in writing. Exemptions shall be terminated at the discretion of the Court.

§ 6-1209 amended September 21, 2016; § 6-1209(E) amended February 14, 2019.

unanimous

§ 6-1210. Succession planning for problem-solving court judges.

§ 6-1210. Succession planning for problem-solving court judges.

  (A) Each problem-solving court shall have a written plan setting forth the procedure for the succession of the judge or judges who serve as the problem-solving court judge in the event of the death, disability, retirement, resignation, removal, elevation to another court, or failure to be retained by the judge then serving the court. For all problem-solving courts in existence as of the date of the adoption of this rule, such succession plans shall be submitted to the Supreme Court for approval no later than May 1, 2017. For problem-solving courts implemented after the effective date of this rule, succession plans shall be included as part of the information submitted to the Supreme Court for approval of the problem-solving court under § 6-1207.

   (B) Such plan shall require the successor judge so identified to receive training appropriate to the problem-solving court at the National Judicial College, under programs offered by the National Association of Drug Court Professionals, or equivalent training as approved by the Nebraska Statewide Problem-Solving Court Coordinator.

   (C) The plan shall provide that the training shall take place before the commencement of service of the successor, except in the event of extraordinary circumstances, and with approval of the Supreme Court, the training requirement may be fulfilled after commencement of such service.

   (D) Such succession plan shall be reviewed, amended as necessary to reflect current circumstances, and resubmitted to the Supreme Court every 3 years after May 1, 2017. The succession plan may include such other provisions as each problem-solving court shall deem necessary and appropriate for the continued operation of each court.

§ 6-1210 adopted August 5, 2016; § 6-1210(A) amended May 2, 2017; § 6-1210(A) amended February 14, 2019.

unanimous

Article 13: Substance Use Services.

Article 13: Substance Use Services.

(Adopted November 30, 2005, effective January 1, 2006. Renumbered and codified as §§ 6-1301 - 6-1303, effective July 18, 2008. Amended July 2, 2014, deleting § 6-1303 and Appendix A.)

unanimous

§ 6-1301. Compliance with Standardized Model for Delivery of Substance Use Services required.

§ 6-1301. Compliance with Standardized Model for Delivery of Substance Use Services required.

    Substance use evaluations and treatment services for juveniles and adults ordered by the courts of the State of Nebraska, or by judges presiding over non-probation-based programs or services such as a drug court or other similar specialized programs as defined herein, shall comply with the minimum standards established by the Standardized Model for Delivery of Substance Use Services as promulgated by the Nebraska Supreme Court Administrative Office of Probation. Substance use evaluations and treatment services must be obtained through a registered service provider. Substance use evaluations and treatment services that do not conform to the requirements of the Standardized Model for the Delivery of Substance Use Services shall not be accepted by the courts. Nothing in this rule shall preclude an individual from obtaining, at his or her own expense, additional substance use evaluations or treatment referrals which may or may not comply with the minimum standards referred to within the Standardized Model for the Delivery of Substance Use Services.

§ 6-1301 amended July 2, 2014.  

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§ 6-1302. Definitions.

§ 6-1302. Definitions.

   For purposes of this rule, non-probation-based programs and services shall mean those programs and services defined and authorized by Neb. Rev. Stat. §§ 29-2246(12) and 29-2252(16) which are operating pursuant to an interlocal agreement with the Administrative Office of Probation. 

§ 6-1302 amended July 2, 2014.

unanimous

Article 14: Uniform County Court Rules of Practice and Procedure.

Article 14: Uniform County Court Rules of Practice and Procedure. unanimous

§ 6-1401. Conduct in the courtroom.

§ 6-1401. Conduct in the courtroom.

   All statements and communications by counsel will be clearly and audibly made from the counsel table. While court is in session, counsel shall not leave their places at the counsel table for a conference at the bench unless permitted by the judge to do so. Counsel shall address witnesses, other counsel, and prospective jurors by their surnames. Counsel shall not comment on answers given by witnesses. Arguments by counsel shall be addressed to the court and not to each other. Counsel shall orally identify themselves on the record in open court.

Rule 1 amended September 1991. Renumbered and codified as § 6-1401, effective July 18, 2008.

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§ 6-1402. Attendance and attire.

§ 6-1402. Attendance and attire.

   All parties and their attorneys shall be present in the courtroom and prepared to proceed at the hour set for hearing by the court. Unjustified failure to appear shall subject the case to dismissal or disciplinary action to the attorneys concerned. Attorneys shall be attired in ordinary business wear.

§ 6-1402 amended June 9, 2010.

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§ 6-1403. Courtroom decorum.

§ 6-1403. Courtroom decorum.

   All persons entering the courtroom while court is in session shall be seated immediately and shall conduct themselves in a quiet and orderly manner. No person shall smoke, eat, drink beverages, or engage in other distracting conduct in the courtroom while court is in session.

   No person shall possess any firearm or other dangerous weapon in the courtroom or in any public area adjacent to it without the permission of the court.

   Upon order of the court, any person may be subjected to a search of his or her person and possessions for any weapons, destructive device, or components thereof.

§ 6-1403 amended June 9, 2010.

unanimous

§ 6-1404. Stipulations.

§ 6-1404. Stipulations.

   All stipulations and private agreements or understandings of counsel or of parties to a suit, unless made in open court during the proceeding, must be reduced to writing and signed by the parties or counsel for the parties making the same.

§ 6-1404 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1405. Recording of court proceedings; request for transcription; request for copy of digital recording.

§ 6-1405. Recording of court proceedings; request for transcription; request for copy of digital recording.

   (A) All proceedings in county court shall be recorded, and such proceedings shall be preserved as set forth in the County Court Records Retention Schedule. Requests for a transcription of such recording shall be made and paid for as in § 6-1452.

   (B) Except for "restricted hearings," as defined herein, in cases where the county court proceedings have been digitally recorded by the court, any person may request a copy of the audio record of a court proceeding. The request shall be made on a form approved by the State Court Administrator as set out at Appendix 6 and shall contain:

   (1) The case number, case name, date, time and location, and judge of the hearing for which the copy of the recording is sought;

   (2) That portion of the hearing requested;

   (3) Acknowledgment that the recording is not the official court record; and

   (4) Requesting party's agreement that it will comply with all laws regarding privacy of information; and agreement not to publish or disseminate any content that may be protected, including, but not limited to, the information described in §§ 6-15216-1464, and 6-1701.

   (C) A request to limit public access to information in a court recording may be made by any party to a case, an individual identified in the court record, or on the court's own motion. For good cause, the court may limit the manner or extent of public access. In limiting the manner or extent of access, the court will use the least restrictive means that achieves the purposes of these access rules in light of the stated needs of the requestor.

   (D) "Restricted hearings" shall mean any court proceeding that is closed to the public for any reason or any proceeding subject to an order pursuant to § 6-1405(C). Parties, counsel of record, and individuals present and participating in "restricted hearings" may request a copy of the audio record of such restricted hearings. The requesting party shall be required to give notice of the request to all interested parties and advise them of their right to file, with the court within 10 days, an objection to the requested copy. If an objection is filed, the court shall set a hearing giving the objector an opportunity to show cause why the copy should not be provided, or why it should be redacted in some manner.

   (E) Before providing a digital copy of the hearing, court staff shall review the court file of the proceeding subject to the request to determine if any access limitation under § 6-1405(C) has been ordered or is pending. Court staff shall also notify the judge presiding at the hearing which is the subject of the request(s), or the presiding judge of the jurisdiction, of the request for a digital copy.

   (F) The cost of the digital copy shall be paid prior to preparation of the copy. There shall be a $5 charge for each hearing requested if the audio file is directly emailed to the requestor. If the requestor asks to have the court audio downloaded onto a digital storage device, there will be an additional charge of $5 for each digital storage device, which will be provided by the county court.

Rule 5 amended November 10, 2004. Renumbered and codified as § 6-1405, effective July 18, 2008; § 6-1405 amended June 8, 2011; § 6-1405(A) - (F) amended November 23, 2011; § 6-1405(C), (E), and (F) amended June 9, 2021, effective January 1, 2022; § 6-1405(F) amended September 13, 2023.

unanimous

§ 6-1406. Withdrawal of counsel.

§ 6-1406. Withdrawal of counsel.

   (A) Upon motion for withdrawal and notice of all counsel and the client involved, an attorney who has appeared of record in a case may be given leave to withdraw for good cause shown after filing with the clerk the motion, notice of hearing, and proof of service upon opposing counsel and the client involved. The motion shall certify that counsel has served the motion on the client and all counsel or self-represented parties, and shall include the client's current mailing address and whether there is a hearing currently scheduled in the matter.

   (B) [Reserved.]

   (C) When an attorney is discharged by his or her client, the attorney shall forthwith file notice thereof in the case and serve all opposing counsel and/or self-represented parties.

Rule 6 amended November 1991. Renumbered and codified as § 6-1406, effective July 18, 2008; § 6-1406 amended June 9, 2021, effective January 1, 2022; § 6-1406 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 6-1407. Application for fees.

§ 6-1407. Application for fees.

   Before the claim of any attorney appointed by the court is allowed in criminal and juvenile matters, such attorney shall file with the clerk, and serve upon the county attorney, a written application for fees, certified to be true and correct, stating an itemization (for interim application, a general itemization) of the services provided, time expended, and expenses incurred in the case. Counsel shall also state in the application that counsel has not received and has no contract for the payment of any compensation by such defendant or anyone in the defendant's behalf, or, if counsel has received any fee or has a contract for the payment of same, shall disclose the same fully so that the proper credit may be taken on counsel's application. If a hearing is required, the time and date of hearing shall be set by the court and notice given by court order or notice of hearing.

§ 6-1407 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1408. Pleadings.

§ 6-1408. Pleadings.

   (A) All pleadings filed electronically with the county court shall comply with Neb. Ct. R. of P. § 2-103, (General formatting and service rules), as to page size, text, fonts, margins, and hyperlinking and bookmarks.

   (B) Paper pleadings may only be filed when the self-represented party is not a registered user of the court-authorized service provider. All pleadings filed in paper format shall be on white 8½- by 11-inch paper, printed on only one side of each sheet, and shall be bound by a paper clip and not stapled. Paper pleadings shall comply with all formatting requirements of § 2-103(A), and pages shall be sequentially numbered with placement of the page number at the bottom center of the page. Exhibits attached to pleadings shall be similarly prepared in permanent form, shall be readable, and shall not be subject to unusual fading or deterioration.

   (C) Attorneys: Active status verification. The court’s automated case management system may notify a court clerk that a filing has been received from an attorney who does not have an active license to practice law in Nebraska. Upon receipt of this notice, the clerk shall attempt to verify the attorney’s status as active. If the clerk cannot do so, the clerk shall notify the judge assigned to the case. If no judge has been assigned to the case, the clerk shall notify the presiding judge. See Neb. Rev. Stat. § 7-101.

§ 6-1408 amended May 8, 2013; § 6-1408 amended June 9, 2021, effective January 1, 2022; § 6-1408 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 6-1409. Identification of pleadings.

§ 6-1409. Identification of pleadings.

   A pleading offered for filing shall plainly show the caption of the case, the description and designation of its contents, and in whose behalf the same is filed. All pleadings subsequent to the pleading initiating the proceeding shall also show the case number.

unanimous

§ 6-1410. Copies of pleadings.

§ 6-1410. Copies of pleadings.

   (A) For electronically filed cases in a civil action, the court shall provide copies of the inital pleading, together with all exhibits, or shall return the summons to the filing party electronically for attachment of copies for service.

   (B) For cases not filed electronically, upon the initial filing of a civil action, there shall be presented to the clerk clear and legible duplicate copies of each pleading, together with all exhibits, in sufficient number to provide one copy for each adverse party.

   (C) After the filing of the initial pleading, all other pleadings shall be served upon all opposing parties or their counsel pursuant to Neb. Ct. R. Pldg. § 6-1105. Proof of service shall be as provided in § 6-1105(d).

Rule 10 amended September 1991. Renumbered and codified as § 6-1410, effective July 18, 2008; § 6-1410 amended June 8, 2011; § 6-1410 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1411. Identification of attorney.

§ 6-1411. Identification of attorney.

   The name, address, Nebraska attorney identification number, email address, and telephone number of the attorney handling the matter shall be stated on each pleading except for original charging documents in traffic, criminal, and juvenile matters.

Rule 11 adopted November 1990. Renumbered and codified as § 6-1411, effective July 18, 2008. § 6-1411 amended September 24, 2014, effective January 1, 2015; § 6-1411 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1412. Amendments.

§ 6-1412. Amendments.

   (A) Amendments to pleadings may be allowed within the discretion of the court.

   (B) A party who has obtained leave to amend a pleading but fails to do so within the time limit shall be considered as electing to abide by the former pleading.

   (C) A proposed amended pleading that is filed prior to obtaining leave of the court shall have no operative effect until the court grants leave to amend.

§ 6-1412 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1413. Exhibits; record retention.

§ 6-1413. Exhibits; record retention.

   (A) In all cases where books, files, records, or parts thereof belonging to or taken from the records of public offices are offered in evidence or are marked for identification to be offered at a pretrial conference, it shall be the duty of the party offering the same to furnish an electronic copy to the court reporting personnel or judge and to opposing counsel. In no event shall an original public record be marked or offered in evidence in a court proceeding.

   (B) All exhibits marked at a pretrial conference for later admission shall be retained by the counsel intending to offer them and counsel shall be responsible for their production at the time of trial. Parties shall retain a copy of all exhibits to be included in a bill of exceptions on appeal. See Neb. Ct. R. App. P. § 2-116(A)(2)(b).

§ 6-1413 amended June 8, 2011; § 6-1413 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1414. Costs.

§ 6-1414. Costs.

   Except for criminal cases, juvenile cases, and proceedings in habeas corpus cases wherein a poverty affidavit is filed and approved by the court, costs shall be payable when actions are commenced and thereafter when liability for additional costs accrues. Counsel are responsible to the clerks for costs incurred at their request.

unanimous

§ 6-1415. Waiver of preliminary hearings.

§ 6-1415. Waiver of preliminary hearings.

   If a defendant is represented by counsel, the defendant may file a written waiver of the personal right of a preliminary hearing, in compliance with Neb. Rev. Stat. § 29-4206, or may waive the right on the record in the presence of a judge and the defendant’s attorney. Any written waiver should include the date, time, and location of defendant’s next court hearing. If a defendant is not represented by counsel, the personal right of a preliminary hearing may be waived by the defendant on the record only in the presence of a judge and upon waiver of the right to an attorney.

Rule § 6-1415 amended January 17, 2024.

unanimous

§ 6-1416. Bail.

§ 6-1416. Bail.

   When any person shall be taken into custody and charged with any misdemeanor, the sheriff or the jailer may admit such person to bail in an amount not in excess of that prescribed by the bond schedule furnished by the judges of that court, conditioned for his or her appearance in this court to answer the offense charged. In unusual cases, the sheriff or jailer may consult a judge of this court about the bond; a judge's verbal order setting such person's bond shall supersede the bond schedule.

unanimous

§ 6-1417. Motions; defined; when served. Service; defined.

§ 6-1417. Motions; defined; when served. Service; defined.

   For purposes of these rules, the word "motion" shall include Neb. Ct. R. Pldg. § 6-1112(b) motions and all requests for an order of the court and the word "serve" shall mean service in accordance with Neb. Ct. R. Pldg. §§ 6-1105(b) and 6-1106(e). Motions shall be served not less than 10 days prior to date of hearing.

§ 6-1417 amended May 20, 2010.

unanimous

§ 6-1418. Submission.

§ 6-1418. Submission.

   If oral argument is waived or the moving party fails to appear when the motion is set for argument, the motion shall be considered submitted. Failure to appear or serve a memorandum brief will not be considered as a confession of the motion.

unanimous

§ 6-1419. Dismissal docket.

§ 6-1419. Dismissal docket.

   JUSTICE will prepare daily and the clerk review a list of all pending civil and criminal cases in which no action has been taken for at least 6 months prior thereto. The court shall examine the list and, in those cases in which it is deemed proper, shall enter an order to show cause why such cases should not be dismissed for want of prosecution. A written response to the order to show cause must be filed in the action and a copy of the same provided to other counsel and the judges of the courts within 30 days, or said action shall be dismissed.

§ 6-1419 amended June 8, 2011.

unanimous

§ 6-1420. Interrogatories.

§ 6-1420. Interrogatories.

   Interrogatories shall be in the format prescribed by Neb. Ct. R. Disc. § 6-333.

unanimous

§ 6-1421. Pretrial conferences.

§ 6-1421. Pretrial conferences.

   The rules of the district court in the same county shall govern the procedure for pretrial conferences.

unanimous

§ 6-1422. Criminal complaints.

§ 6-1422. Criminal complaints.

   All complaints filed in the county court in criminal matters shall have noted thereon:

   1. The name and address of the defendant;

   2. The offense(s) charged, the statute or ordinance under which said complaint is brought together with the section prescribing the penalty and class of the offense;

   3. The date of birth of the defendant, if available;

   4. The date, time, and location of the offense;

   5. Driver's license number, type of license, and state of issuance, if available;

   6. Commercial motor vehicle license information, if a commercial motor vehicle was involved in the offense;

   7. Victim name only pursuant to Neb. Ct. R. § 6-1466(C);

   8. The time and place the defendant is to appear in court;

   9. The defendant's language need, if the defendant will require an interpreter when he or she appears in court.

§ 6-1422 amended December 13, 2017, effective January 1, 2019.

unanimous

§ 6-1423. Demand for jury trials.

§ 6-1423. Demand for jury trials.

   In misdemeanor cases, demands for a jury trial must be made within 10 days following entry of a not guilty plea.

unanimous

§ 6-1424. Instructions.

§ 6-1424. Instructions.

   The rules of the district court in the same county shall govern the procedure for instructions to the jury.

unanimous

§ 6-1425. Arguments to jury.

§ 6-1425. Arguments to jury.

   The rules of the district court in the same county shall govern the procedure for arguments to the jury.

unanimous

§ 6-1426. Identification of exhibits.

§ 6-1426. Identification of exhibits.

   The rules of the district court in the same county shall govern the procedure for identification of exhibits.

unanimous

§ 6-1427. Exhibit procedure.

§ 6-1427. Exhibit procedure.

   The rules of the district court in the same county shall govern the procedure for exhibits.

unanimous

§ 6-1428. Withdrawal or destruction.

§ 6-1428. Withdrawal or destruction.

   After a judgment in a civil or probate case has become final, the physical exhibit(s) shall be claimed by the party to whom they belong. Any physical exhibit(s) not claimed and withdrawn within 60 days after judgment has become final may be destroyed or otherwise disposed of by the custodian after attorneys of record and self-represented parties appearing in the case have been given written notice by the clerk. Said notice shall be through the court's electronic notice system, or if there is no email address, by ordinary mail, postage prepaid, to the last known address as reflected in the particular file. The notice shall provide the recipient a period of 30 days after the date of said notice within which to claim the exhibit(s) pertaining to said file.

Rule 28 amended September 1991. Renumbered and codified as § 6-1428, effective July 18, 2008; § 6-1428 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1429. Return of exhibits.

§ 6-1429. Return of exhibits.

   Upon the final disposition of a case and after the time for making an appeal has expired, the trial judge may, upon application for motion of the parties or upon the court's own motion, direct the court reporting personnel or the clerk having custody thereof to return to the offering party any physical exhibits and to make a receipt therefore to be filed as a pleading in the case.

§ 6-1429 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1430. Record of withdrawal or destruction.

§ 6-1430. Record of withdrawal or destruction.

   A receipt specifying the exhibits withdrawn shall be filed in the case by the party withdrawing them. Exhibits destroyed or otherwise disposed of will be accounted for by a statement prepared and filed by the custodian showing the date such action was taken and the date notice of intention to do so was given to the attorneys of record or self-represented litigants.

§ 6-1430 amended June 9, 2021, effective January 1, 2022.

unanimous

§ 6-1431. Duties of prosecuting attorneys.

§ 6-1431. Duties of prosecuting attorneys.

   Unless upon good cause shown the court in its discretion has ruled otherwise, the prosecuting attorney shall be present at all arraignments in all cases, all bond settings in felony cases, and all first hearings in juvenile cases. No trial of any such case will be conducted without the prosecuting entity being represented by a prosecutor. The court will not act as a prosecutor, nor will any law enforcement representative or any other nonattorney be permitted to act as a prosecutor. In all cases, the prosecuting attorney shall obtain the defendant's criminal history and provide the same to the court and the defendant prior to the setting of any bond or the imposing of any sentence.

Rule 31 amended April 1998. Renumbered and codified as § 6-1431, effective July 18, 2008.

unanimous

§ 6-1432. Default judgments.

§ 6-1432. Default judgments.

   In cases where the defendant fails to answer, demur, or otherwise plead, the plaintiff may, after the day on which said action shall be set for answer, take default judgment upon a verified petition, affidavits, or sworn testimony establishing a claim. No judgment will be entered on a negotiable instrument unless the original is surrendered for cancellation to the court.

Rule 32 amended September 1987. Renumbered and codified as § 6-1432, effective July 18, 2008.

unanimous

§ 6-1433. Notice of interested person duty; guardian and conservator notice requirements; court notice requirements.

§ 6-1433. Notice of interested person duty; guardian and conservator notice requirements; court notice requirements.

   (A) In all probate matters, it shall be the duty of the petitioner or applicant for probate of a will or appointment of a personal representative to show in the petition or the application the names, relationship to the subject of the petition or application, and last known post office address of all interested persons. For purposes of subsection (A) of this section, interested persons shall include all those defined under Neb. Rev. Stat. § 30-2209(21). If any interested person is known by the petitioner, applicant, or the attorney for either to be incompetent or a minor, such fact shall be disclosed to the court.

   (B) In all guardianship and/or conservatorship matters, the meaning of interested person may vary from time to time and must be determined according to the particular purposes of and matter involved in any proceeding as follows:

   (1) Prior to appointment and Letters being issued, interested persons are those defined in Neb. Rev. Stat. § 30-2601(10).

   (2)(i) Until December 31, 2020, for all appointments which were made prior to April 1, 2020, after Letters are issued, interested persons are those defined under Neb. Rev. Stat. § 30-2601(10) who have returned the interested party form to the court, any governmental agency paying benefits on behalf of the ward, incapacitated person, protected person, or minor and any person designated by order of the court to be an interested person.

   (ii) For all new appointments made after March 31, 2020, and for all cases after December 31, 2020, this paragraph (ii) shall apply. After Letters are issued, interested persons are those defined under Neb. Rev. Stat. § 30-2601(10); any governmental agency paying benefits on behalf of the ward, incapacitated person, protected person, or minor; and any person designated by order of the court to be an interested person.

   (iii) The court may order that § 6-1433(B)(2)(ii) applies to any case in which the appointment was made prior to April 1, 2020.

    (3) Upon termination or transfer of the guardianship and/or conservatorship for any reason other than death of the ward, incapacitated person, protected person, and/or minor, interested persons shall be the same as subsection (B)(1) above.

    (4) Upon death of a ward, incapacitated person, protected person, and/or minor; interested persons are those defined in Neb. Rev. Stat. § 30-2209(21).

   (5) If the Office of Public Guardian is nominated as the guardian and/or conservator, or if a case is accepted to a waiting list for a guardian and/or conservator as determined by the Office of Public Guardian, the Office of Public Guardian shall be considered an interested person. If the Office of Public Guardian is nominated but not appointed due to lack of capacity by the Office of Public Guardian, or the Office of Public Guardian is nominated but not appointed because the appointment would not comply with the requirements of the Public Guardianship Act, the Office of Public Guardian will no longer be an interested person in the case. If the Office of Public Guardian is an interested person only because the case has been placed on a Public Guardian waiting list, the Office of Public Guardian will receive notices, orders, and annual reports, but the appearance of the Office of Public Guardian will not be required at hearings, unless the hearing is to appoint the Office of Public Guardian.

   (C) In all guardianship and/or conservatorship matters, it shall be the duty of the petitioner or applicant for a guardian or conservator to show in the petition or the application, in addition to what is required by Neb. Rev. Stat. §§ 30-2619 and 30-2633:

   (1) The names of the interested persons as set forth in the above subsection (B)(1), their addresses if known, and their relationship to the subject of the petition or application;

   (2) Any other court having jurisdiction over the ward or minor listing the caption of the case, case number, and type of proceeding;

   (3) If the case involves a minor, if reasonably ascertainable, the minor’s present address or whereabouts, the places where the minor has lived during the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period.

   (4) Whether the minor is subject to the Indian Child Welfare Act;

   (5) The number of cases, if any, in which the person or entity being nominated is acting as guardian and/or conservator for other wards or protected persons at the time of the nomination;

   (6) Whether the ward has a Power of Attorney. If so, the Power of Attorney shall be filed with the petition as a confidential document if available;

   (7) Whether the ward has a Health Care Power of Attorney and/or a Declaration relating to use of life-sustaining treatment (Living Will). If so, the documents shall be filed with the petition as a confidential document, if available;

   (8) If any interested person is known by the petitioner, applicant, or the attorney for either to be incompetent or a minor, such fact shall be disclosed to the court;

   (9) If the petition or application nominates the Public Guardian, it shall state that due diligence was used to identify a guardian and/or conservator and the methods employed and that in spite of such efforts, the Public Guardian is the last resort.

   (D) It shall be the duty of a guardian or conservator to:

   (1) send a waiver of notice form to all interested persons at the time of mailing the initial inventory as set forth above in subsection (B)(1);

   (2) send all annual accountings, all inventories, all notices of newly discovered assets, and all annual report of guardian reports filed with the court to all interested persons as set forth above in subsection (B)(2), unless waived by the court for good cause shown (personal and financial information forms are not to be sent to interested persons; bank statements, brokerage statements, and Office of Public Guardian individual ledgers are not to be sent to any interested persons unless otherwise ordered by the court, which mailing may be requested by an interested person); 

   (3) send a notice of right to object form with all inventories, notices of newly discovered assets, annual accountings, and annual report of guardian reports that are sent to interested persons as set forth above in subsection (B)(1) and (B)(2);

   (4) notify the court of the change of address of the ward or protected person within 10 days of the change and send notice to all interested persons as set forth above in subsection (B)(2) unless waived by the court for good cause shown; and

   (5) notify the court of the ward or protected person’s death within 10 days and send notice to all interested persons as set forth above in subsection (B)(4).

   (E) All courts shall:

   (1) ensure that all interested persons are on the certificate of mailing for inventories, annual accounting, annual report of guardian reports, and motions that are filed with the court. If all interested persons are not on the certificate of mailing, the court shall issue a Notice of Need for Corrective Action(s) form and send it to the person who filed the document(s) to correct the certificate of mailing and send the document to all interested persons; and

   (2) send out reminders to guardians and conservators indicating annual filing deadlines 45 days prior to the annual filing due date.

   (F) If a waiver of notice form is filed with the court, then the following items need not be sent on an annual basis to the person who filed the waiver of notice form.

   (1) Annual Report of Guardian including any accounting and associated documents;

   (2) Annual Report of Conservator including any accounting and associated documents;

   (3) Application for Approval of Fees;

   (4) Application for Approval of Accounting; and

   (5) Orders and Notices of Hearing on any of the above filings.

   (G) If a waiver of notice form is filed with the court, then any filings, other than those listed in subsection (F), shall be sent to the person who filed the waiver of notice form. This specifically includes, but is not limited to, any petition to change the guardian or conservator, assumption by a standby guardian, final accounting of a guardian or a conservator, request for discharge of a guardian or a conservator, and request for exoneration of a bond or for a change in the amount of the bond.

§ 6-1433 amended August 31, 2011, effective January 1, 2012; § 6-1433(B)(5) amended May 23, 2013, effective September 1, 2013; § 6-1433(C)(2) amended August 28, 2013, effective September 1, 2013; § 6-1443(A) and (A)(1) amended April 16, 2014, effective July 1, 2014; § 6-1433(A)-(E) amended September 10, 2015; § 6-1433(B), (D)-(G) amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1433.01 Public Guardian nomination procedures.

§ 6-1433.01 Public Guardian nomination procedures.

   (A) The individual filing the petition/application to appoint the Public Guardian shall provide notice of the nomination to the Office of Public Guardian. Notice shall be given on a separate form approved by the State Court Administrator’s Office.

   (B) Upon receiving notice of nomination, the Office of Public Guardian shall file with the court, within 14 days: (1) an acknowledgment of nomination and (2) verification of caseload capacity subject to statutory requirements of the Public Guardianship Act.

   (C) If the Office of Public Guardian is unable to accept the nomination due to its caseload capacity status, good cause shall be presumed to exist to deny its appointment. The appearance of the Office of Public Guardian shall no longer be required.

   (D) The court shall appoint a visitor consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), within 10 judicial days of the filing of acknowledgment and caseload capacity verification by the Office of Public Guardian if the verification shows the Office of Public Guardian has capacity to take the case. If the acknowledgment and caseload capacity verification shows the Office of Public Guardian does not have capacity to take the case, the court may request the case be placed on the Office of Public Guardian waiting list. If the court requests the case be placed on the Office of Public Guardian waiting list, the court shall appoint a visitor consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), within 10 judicial days of the request to place the case on the Office of Public Guardian waiting list.

   (E) The visitor or guardian ad litem report shall comply with Neb. Rev. Stat. § 30-2619.03, and to assist the Office of Public Guardian fulfill its duties mandated by the Public Guardianship Act, the report will include a standard form approved by the State Court Administrator’s Office to include information required by Neb. Rev. Stat. § 30-2619.01.

   (F) The Office of Public Guardian shall have 10 judicial days to file responses to the visitor or guardian ad litem report.

   (G) Once the Office of Public Guardian receives the visitor report, it shall file another verification of caseload capacity within five judicial days. If the visitor or guardian ad litem report shows that there is no one other than the Office of Public Guardian to serve as guardian and/or conservator and if the Office of Public Guardian has capacity to take the case, then the Office of Public Guardian shall not accept any additional appointments which would in the interim cause its capacity to be exceeded before final determination is made by the court as to its appointment.

   (H) Unless otherwise ordered by the court, hearing on the petition for appointment of the Office of Public Guardian shall not take place less than 60 days but no more than 90 days from the filing of nomination.

   (I) In addition to the statutory requirements, in the order to appoint the Office of Public Guardian as a guardian or conservator, the order of appointment shall also provide:

   (1) Proper notice has been given to the Office of Public Guardian;

   (2) The petitioner has acted in good faith and due diligence to identify a guardian or conservator who would serve in the best interest of the alleged incapacitated person;

   (3) The appointment of the Office of Public Guardian is necessary and does not exceed the caseload limitations as set forth by statute;

   (4) That the visitor or guardian ad litem report has provided supporting evidence that no person is available for appointment as guardian or conservator, all options available to support the individual in the least restrictive manner possible has been explored, and guardianship is a last resort; and

   (5) There is no other alternative than to appoint the Office of Public Guardian.

   (J) When the Office of Public Guardian has no available caseload capacity to assume the duties of guardian and conservator at the time of the appointment, the court may order that the case be placed on the waiting list, as provided by the Office of Public Guardian, if the court finds:

   (1) Proper notice was given to the Office of Public Guardian;

   (2) The petitioner has acted in good faith and due diligence to identify a guardian or conservator who would serve in the best interest of the alleged incapacitated person;

   (3) The appointment of the Office of Public Guardian would be necessary, but that no current caseload capacity exists to serve the individual by the Office of Public Guardian, as set forth by statute; and

   (4) That the visitor or guardian ad litem report as outlined in these procedures has been completed and supports the appointment of the Office of Public Guardian, but for the lack of capacity by the Office of Public Guardian, all options available to support the individual in the least restrictive manner possible has been explored, and the guardianship is a last resort.

§ 6-1433.01 adopted September 10, 2015.

unanimous

§ 6-1433.02 Public Guardian.

§ 6-1433.02 Public Guardian.

   (A) If the Office of Public Guardian is nominated as the guardian and/or conservator, the Office of Public Guardian shall be considered an interested person.

   (B) No bond shall be required of the Office of Public Guardian.

   (C) If the Office of Public Guardian is appointed guardian and/or conservator, payments to the Office of Public Guardian will be allowed as per the established sliding fee scale as approved by the Court.

   (D) If the Office of Public Guardian is appointed guardian and/or conservator, the Office of Public Guardian shall be required to file a budget with the initial inventory. This shall be for informational purposes only. Neb. Ct. R. § 6-1442.01 shall not apply to the Office of Public Guardian. The Office of Public Guardian shall be required to file an annual accounting even if a budget has been provided.

   (E) The Office of Public Guardian is prohibited from making ATM withdrawals or receiving cash back on debit transactions, and this shall be reflected on the Letters.

   (F) If the Office of Public Guardian is nominated as the initial or successor guardian or conservator, the court shall appoint a visitor and/or guardian ad litem, consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), to ensure the necessity of the guardianship and/or conservatorship, whether there is an appropriate private guardian and/or private conservator to serve in the case and to determine the appropriate limitations within the guardianship and/or conservatorship.

   (1) If the acknowledgment of nomination and caseload capacity verification filed by the Office of Public Guardian indicates the Office of Public Guardian has caseload capacity to take the case, the appointment of a visitor and/or guardian ad litem will occur within 10 judicial days of the court receiving the acknowledgment.

   (2) If the acknowledgment and caseload capacity verification filed by the Office of Public Guardian indicates the Office of Public Guardian does not have caseload capacity to take the case, the court may request the case be placed on the Public Guardian waiting list. If the court requests the case be placed on the Office of Public Guardian's waiting list, the court shall appoint a visitor and/or guardian ad litem within 10 judicial days of the court's waiting list request.

   (G) The court may appoint the Office of Public Guardian on a temporary basis if an emergency exists until an evidentiary hearing can be held. The court shall appoint a visitor and/or guardian ad litem as provided in subsection (F) above within 10 days of signing the temporary Order.

   (H) An appointed visitor and/or guardian ad litem is to conduct an evaluation of the allegations of incapacity and whether there is an appropriate private guardian and/or private conservator to serve in the case. The visitor or guardian ad litem shall provide a written report to the court, on a form approved by the State Court Administrator's Office, and allow for the filing of responses to the report in accordance with Neb. Rev. Stat. §§ 30-2619 through 30-2619.04.

   (I) The court should consider utilizing a multi-disciplinary screening to determine diminished capacity. The multi-disciplinary screening shall include, but is not limited to, the individual's: (1) medical condition; (2) cognitive functioning; (3) daily living functional abilities; (4) consistency of functioning with his/her values, preferences, and lifetime patterns; (5) risk of harm in the context of his/her social and environmental supports; and (6) means to enhance capacity through accommodations and effective communication techniques. This screening may be done by a trained visitor or trained guardian ad litem that is appointed by the court.

   (J) The Office of Public Guardian may file a motion to make more definite and certain a statement of functional limitation (§ 30-2619) regarding the determination of necessity to ascertain whether any alternative to public guardianship or conservatorship exists.

§ 6-1433.02 adopted September 10, 2015.

unanimous

§ 6-1433.03. Office of Public Guardian Organizational Collective Account and document requirements for annual filing.

§ 6-1433.03. Office of Public Guardian Organizational Collective Account and document requirements for annual filing.

   The Office of Public Guardian may utilize an organizational collective account at a bank for individuals for whom the Office of Public Guardian has been appointed as guardian and/or conservator.

   (A) When an organizational collective account is utilized by the Office of Public Guardian, the account shall:

   (1) be appropriately titled to represent that the Office of Public Guardian holds the account in a fiduciary capacity on behalf of wards, incapacitated persons, protected persons, and/or minors who own the funds, but who shall have no access to the account;

   (2) hold only the funds of wards, incapacitated persons, protected persons, and/or minors, which funds shall not be commingled with any other Office of Public Guardian funds and shall be separate and distinct from any other Office of Public Guardian accounts.

   (B) The interest earned on an organizational collective account shall be credited pro rata, net of pro rata bank fees and account costs, to the ward's, incapacitated person's, protected person's, and/or minor's individual ledger.

   (C) When an organizational collective account is utilized, the Office of Public Guardian shall develop financial policies and procedures to include:

   (1) an individual ledger for each ward, incapacitated person, protected person, and/or minor for which the Public Guardian holds funds. This ledger shall:

   (a) give the name of the ward, incapacitated person, protected person, and/or minor,

   (b) detail all money received and paid out on behalf of the ward, incapacitated person, protected person, and/or minor, and

   (c) show the ward's, incapacitated person's, protected person's, and/or minor's balance following every receipt or payment;

   (2) disbursements from the ward's, incapacitated person's, protected person's, and/or minor's individual ledger shall not exceed the funds received from, or on behalf of, that individual;

   (3) documentation comparing, and reconciling if necessary, the monthly prospective budget of the ward, incapacitated person, protected person, and/or minor, managed by the Associate Public Guardian, to the individual ledger of the actual monthly expenditures administrated by the business manager and disbursed from the ward's, incapacitated person's, protected person's, and/or minor's funds, which shall be attached to the annual report for the ward, incapacitated person, protected person, and/or minor;

   (4) the business manager will complete the certificate of proof of possession form certifying the balance on deposit, in accordance with the organizational collective account individual ledger for the ward, incapacitated person, protected person, and/or minor; the certified balance on deposit shall be verified by the documentation in (C)(3); and

   (5) the account shall be tracked electronically through a case management software accounting system maintained by the Office of Public Guardian. The software system shall be able to produce all financial reporting in a form that can be reproduced in printed hard copy for annual reporting to the court.

   (D) When an organizational collective account is utilized by the Office of Public Guardian, job functions within the Office of Public Guardian shall be structured to require segregation of duties relating to the handling of account funds.

   (E) The use of the organizational collective account, in accordance with the provisions of this section, shall not be deemed as a violation of Neb. Ct. R. of Prof. Cond. § 3-501.15.

§ 6-1433.03 adopted June 15, 2016.

unanimous

§ 6-1433.04. Audit.

§ 6-1433.04. Audit.

   (A) The Office of Public Guardian shall perform periodic audits of financial records to ensure funds are not used for the benefit of someone other than the wards, and loans of any type are not made from the ward’s, incapacitated person’s, protected person’s, and/or minor’s funds. In addition, the business manager shall periodically review receipt/disbursement reports in the Office of Public Guardian case management software accounting system and investigate any unusual transactions.

   (B) The State Court Administrator, with the assistance of the Office of Public Guardian Advisory Council when requested, will review the Office of Public Guardian organizational collective account annually, and may require an external audit of the Office of Public Guardian client financial records, at any time, but at least once every 3 years.

§ 6-1433.04 adopted June 15, 2016.

unanimous

§ 6-1434. Other children.

§ 6-1434. Other children.

   In matters of decedents' estates, if the surviving spouse is not the parent of all the children of the deceased, such fact shall be stated in the petition or application filed at the commencement of the proceeding.

unanimous

§ 6-1435. Creditor-debtor information.

§ 6-1435. Creditor-debtor information.

   If the person nominated as personal representative, guardian, or conservator is indebted to the estate or is a creditor of the estate, it shall be his or her duty and the duty of his or her attorney to so inform the court in writing before the appointment is made.

unanimous

§ 6-1436. Continuances.

§ 6-1436. Continuances.

   Probate matters shall be presented to the judge for action at the time fixed by the order for hearing. In all cases where the matter is not heard at the time fixed by the original order or by an order of continuance, and it is desired to have the matter continued to a specific time rather than from day to day as a matter of law pursuant to statute, a written order of continuance shall be prepared by the attorney, presented to the court, and filed at the time the continuance is obtained.

unanimous

§ 6-1437. Claims of personal representatives, guardians, and conservators.

§ 6-1437. Claims of personal representatives, guardians, and conservators.

   (A) Personal Representatives; Individual Claims. No personal representative who has individual claims of his or her own which arose against the decedent prior to the death of the decedent shall pay the claims in excess of an aggregate amount of $500 without first specifically informing the court of his or her adverse interest and obtaining the approval of the court.

   (B) Guardian or Conservator; Individual Claims. No guardian or conservator who has individual claims of his or her own (other than compensation governed by § 6-1443) against the estate of the ward or protected person shall pay the claims which aggregate in excess of $500 without first specifically informing the court of his or her adverse interest and obtaining the approval of the court.

   (C) Unless otherwise ordered by the court, the attorney for the guardian or the conservator may be paid reasonable fees from the estate up to $1,000 per year without prior court order.

   (1) No guardian or conservator shall pay legal fees to himself or herself without prior court order.

   (2) All attorney fees paid under subsection (C) remain subject to review by the court.

   (D) Form of Order. Any order entered pursuant to this section shall provide that any person aggrieved by payment of the claim may petition the court for a formal review of the claim or payment.

Rule 37 amended September 1987. Renumbered and codified as § 6-1437, effective July 18, 2008; § 6-1437 amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1438. Report of fees to personal representative.

§ 6-1438. Report of fees to personal representative.

   In all probate matters where an interlocutory or final report is filed, or an account of administration to distributees is made in closing an estate by a sworn statement, or a schedule of distribution is filed with the court and any such document reports payment of any fee paid or to be paid to a personal representative, guardian, conservator, or attorney, the document must specify whether the fee was by agreement of the parties or was fixed by the court.

unanimous

§ 6-1439. Time for increase in bonds; bond review.

§ 6-1439. Time for increase in bonds; bond review.

   (A) Where the amount of a personal representative's, guardian's, or conservator's bond has been fixed on the basis of known or anticipated assets only, and there is a subsequent material increase in the value of the assets or an increase is anticipated, the judge shall be promptly informed of such fact and an adequate bond to cover the increased responsibility of the personal representative, guardian, or conservator shall be furnished and filed if required by the judge.

   (B) All initial inventories shall be reviewed by the judge prior to Letters being issued to determine if a bond needs to be set or if the previously set bond is adequate. If the judge finds the bond should be changed, the matter shall be set for hearing unless the hearing on the bond is waived by all interested persons present at the time the guardian or conservator is appointed.

   (C) Every updated inventory filed with an accounting and every notice of newly discovered asset form filed with the court shall be reviewed by a clerk magistrate, probate supervisor, court staff, or guardian ad litem, if one is appointed, or by an independent third party approved by the State Court Administrator's Office, if available, to determine whether the bond previously set is adequate pursuant to Neb. Rev. Stat. § 30-2640 and § 6-1441. If there is a concern that the bond previously set is not adequate, the matter shall be set for hearing before the court with notice to all interested persons.

   For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2).

Rule 39 amended June 1988. Renumbered and codified as § 6-1439, effective July 18, 2008; § 6-1439 amended August 31, 2011, effective January 1, 2012; § 6-1439 amended September 10, 2015.

unanimous

§ 6-1440. Surety requirements on bonds.

§ 6-1440. Surety requirements on bonds.

   Where a personal bond is tendered by fiduciary, it shall be accompanied by a justification of surety, which shall include the description (exact, if possible) of the property of the surety, the names of joint owners if any, its value above encumbrances and exemptions, and whether a homestead or not, and if signed by a married woman, the bond must include a "married woman" clause. Whenever any individual is offered as surety on any bond, the court may in its discretion require that the surety make justification in compliance with Neb. Rev. Stat. § 25-2223.

unanimous

§ 6-1441. Bonds in guardianship/conservatorship cases.

§ 6-1441. Bonds in guardianship/conservatorship cases.

   In all guardianship/conservatorship cases, the court shall order that an approved corporate surety bond be filed in estates with a net value of more than $10,000. The bond shall be in an amount of the aggregate capital value of the personal property of the estate in the guardian/conservator's control plus 1 year's estimated income from all sources minus the value of securities and other assets deposited under arrangements requiring an order of the court for their removal. The court, in lieu of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land owned by the conservator/guardian. This bond shall be reviewed by the court periodically and adjusted to reflect any increase as set out in § 6-1439.

   The court may eliminate the requirement of bond or decrease or increase the required amount of any such bond previously furnished for good cause shown.

   The court shall not require a bond if the protected person executed a written, valid power of attorney that specifically nominates a guardian or conservator and specifically does not require a bond.

   The court shall consider as one of the factors of good cause, when determining whether a bond should be required and the amount thereof, the protected person's choice of any attorney in fact or alternative attorney in fact.

   No bond shall be required of the Office of Public Guardian or any financial institution, as that term is defined in Neb. Rev. Stat. § 8-101(12), or any officer, director, employee, or agent of the financial institution serving as a conservator, or any trust company serving as a conservator.

Rule 41 amended May 1990. Renumbered and codified as § 6-1441, effective July 18, 2008; § 6-1441 amended August 31, 2011, effective January 1, 2012; § 6-1441 amended September 10, 2015.

unanimous

§ 6-1442. Conservator/guardian inventory and accounts; initial filing; annual filing; amended inventories; restricted accounts; court review.

§ 6-1442. Conservator/guardian inventory and accounts; initial filing; annual filing; amended inventories; restricted accounts; court review.

   (A) Within 30 days after appointment, every guardian or conservator, except a guardian appointed by a juvenile court pursuant to the Nebraska Juvenile Code, shall prepare and file with the court a complete inventory of the estate of the protected person pursuant to Neb. Rev. Stat. §§ 30-2647 and 30-2628, together with his or her oath or affirmation that it is complete and accurate as far as he or she is informed. The initial inventory shall be sent to all interested persons with a notice of right to object form, waiver of notice form, and certificate of mailing showing copies were sent to all interested persons by first-class mail. If an inventory is not filed within 30 days after the date it is due, the court shall issue an order to show cause why the guardian or conservator should not be removed and shall set the same for hearing. For purposes of this paragraph, interested persons is defined under Neb. Rev. Stat. § 30-2601(10).

   (B) Unless waived for good cause shown or otherwise ordered by the court, every conservator or guardian that has control of the ward's estate shall, not later than 30 days after the expiration of 1 year after Orders of Appointment are entered and annually thereafter, file with the court an accounting of his or her administration, except for the Office of Public Guardian which will provide documentation as required in § 6-1433.03, along with the required fee and a certificate of mailing showing that copies and a notice of right to object form were sent to all interested persons, including the bonding company by first-class mail postage prepaid. The accounting shall include an updated inventory. Bank statements and brokerage reports or statements shall be submitted to the court with all accountings unless waived by the court for good cause shown, except for the Office of Public Guardian which will provide documentation as required in § 6-1433.03. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2). Unless ordered by the court, a conservator or guardian shall not mail bank statements, brokerage statements, or Office of Public Guardian individual ledgers to interested persons.

   (C) Guardians who do not have control of the ward's estate are not required to file with the court an updated inventory, annual accounting, bank statements, brokerage statements, Office of Public Guardian individual ledgers, or any certificates of possession, but must file a certificate of mailing showing that copies of the guardian's annual report and a notice of right to object form were sent to all interested persons by first-class mail postage prepaid every year unless waived by the court for good cause shown. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2).

   (D) A conservator who has restricted accounts shall file with the court a proof of restricted account form within 10 days of being appointed.

   (E) A notice of newly discovered asset form is required to be filed with the court within 30 days after the guardian or conservator becomes aware of additional assets, gifts, awards, settlements, or inheritances over $500 not disclosed in the current inventory along with a certificate of mailing showing that copies and a notice of right to object form were sent to all interested persons, including the bonding company, by first-class mail postage prepaid. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2).

   (F) The court shall monitor all cases in which annual accountings are required to see that the accountings are filed in a timely manner. If an accounting is not filed within 30 days after the date it is due, the court shall issue an order to show cause why the guardian/conservator should not be removed and shall set the same for hearing.

   (G) All accountings, inventories, annual budget reports, and annual report of guardian reports filed with the court shall be reviewed by a clerk magistrate, probate supervisor, court staff, or guardian ad litem, if one is appointed, or by an independent third party approved by the State Court Administrator's Office, if available, unless waived by the court. If there is a problem and/or concern with the report, the matter may be set for hearing before the court with notice to all interested persons. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (H) The court shall schedule a formal due process hearing to approve the accounting upon (1) a petition requesting approval by the guardian/conservator, (2) the request or objection of any interested person, or (3) the court's own motion. Notice of such hearing must be given to all interested persons. The protected person's interest shall be safeguarded as provided in the filing of the original petition (see Neb. Rev. Stat. § 30-2636). For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

Rule 42 amended June 1988. Renumbered and codified as § 6-1442, effective July 18, 2008; § 6-1442 amended August 31, 2011, effective January 1, 2012; § 6-1442(A) amended October 17, 2012; § 6-1442(A)-(C) and (G) amended May 23, 2013, effective September 1, 2013; § 6-1442(A) and (B) amended August 28, 2013, effective September 1, 2013; § 6-1442 amended September 10, 2015; § 6-1442(B) amended June 15, 2016; § 6-1442(A)-(C) and (G) amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1442.01. Budget process in guardianships and conservatorships.

§ 6-1442.01. Budget process in guardianships and conservatorships.

   (A) A guardian or conservator or a nominated guardian or conservator may request the court to allow the guardian and/or conservator to file an annual budget summarizing the receipts and disbursements expected to be expended for the budget year. The court may in its order approving the budget authorize a variance of up to 10 percent over the original budgeted amounts approved in the order.

   (B) If authorized by the court, the budget may allow for payments to the guardian and/or conservator for items such as rent, room and board, and guardian and/or conservator fees. Effectively, this is a preapproval of these payments, and payments up to the amounts approved are authorized. Anything above the budget amounts (subject to subsection (A)) remains subject to § 6-1437(B).

   (C) At the end of the annual reporting period unless otherwise ordered by the court, the guardian and/or conservator shall file a report summarizing the payments made under the budget listing any payments beyond the budget, a copy of the last bank statement, except for the Office of Public Guardian which will provide documentation as required in § 6-1433.03, and an inventory at the end of the year and may request a budget for the next year. These documents (except for the bank statement and the Office of Public Guardian individual ledger, which are not mailed to interested persons except as ordered by the court,) shall be sent to all interested persons unless waived by the court for good cause shown. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (D) Court authorization under this section shall be made at a hearing after notice to all interested persons. However, if the waiver of notice and hearing is signed by all interested persons, the court may enter the order without further notice and without further hearing. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (E) If a budget has been approved, the guardian or conservator shall not be required to file an annual accounting unless otherwise ordered by the court.

   (F) If the court authorizes ATM withdrawals or cash back on a debit transactions as part of an approved budget, the Letters of the guardian and/or conservator shall be so modified.

   (G) If additional assets are received during the year for which notice to the court is required under these rules, the court may review the budget during the year and the bond.

§ 6-1442.01 adopted May 23, 2013, effective September 1, 2013; § 6-1442.01(C) and (D) amended September 10, 2015; § 6-1442.01(C) amended June 15, 2016; § 6-1442.01(A)-(C) amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1442.02. Guardians with limited authority; authority limited to not handling any assets of the ward.

§ 6-1442.02. Guardians with limited authority; authority limited to not handling any assets of the ward.

   A guardian or nominated guardian may apply to the court for an order that provides that the guardian shall have no authority over the estate of the ward.

   (A) If that order is obtained, then the guardian shall have no authority over the estate of the ward which restrictions shall be included on the Letters issued.  If the guardian becomes a representative payee, the guardian shall notify the court and interested persons within 10 days of receiving notice of becoming a representative payee and shall apply to the court to have the guardian's Letters appropriately modified. The guardian shall file an initial inventory and shall remain subject to the requirement of §§ 6-1442(E) and 6-1433. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (B) If the guardian becomes the representative payee or has control of other assets of the ward, the guardian shall file an accounting with the court and comply with § 6-1442(B).

§ 6-1442.02 adopted May 23, 2013, effective September 1, 2013; § 6-1442.02 amended September 10, 2015; § 6-1442.02 amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1443. Conservator / guardian Letters.

§ 6-1443. Conservator / guardian Letters.

   (A) Prior to being issued Letters, the guardian or conservator shall file an acceptance and the following with the court unless waived by the court for good cause shown:

   (1) address information form, general information form, inventory with an affidavit of due diligence, personal and financial information form, and a bond if required; and

   (2) financial institution receipt of orders form showing that the order appointing him or her as guardian or conservator was provided to each financial institution in which the ward, protected person, or minor has an account/assets.

   (B) After the guardian or conservator has been issued Letters, the guardian or conservator shall file with the court a financial institution receipt of letters form showing that Letters have been provided to each financial institution in which the ward, protected person, or minor has an account/assets. This form shall be filed with the court within 30 days of the Letters being issued. Failure to file the form shall result in suspension of authority.

   (C) Language expressly limiting powers shall be included on all Letters of guardian/conservator in the following language: “Except as provided in §6-1437, you shall not pay yourself or your attorney compensation from the assets or income of your ward, nor sell real property of the estate, without first obtaining an order therefor, after an application, notice to the interested persons, and hearing thereon. The order may be entered ex parte if all interested persons have waived notice of hearing or have executed their written consent to the fee.”

   At the same time the annual accounting is filed with the court, the guardian/conservator shall file with the court an application for payment of the previous year’s fees to the attorney and to the guardian/conservator. The specific amount of the fees requested shall be set out in the application.

   (D) The filing requirements of the guardian/conservator shall be included on all Letters of guardianship/conservatorship.

   The language on the Letters should be as follows for a conservatorship:

You are further directed to file a complete accounting of your administration of this estate, along with the required fee, notice of right to object form, and a certificate of mailing showing copies were sent to all interested persons, including the bonding company, by first-class mail, postage prepaid, not later than 1 year and 30 days after the date of appointment and annually thereafter. The accounting shall include an updated inventory at the end of the accounting period and shall, if ordered by the court, include certificates of proof of possession for all intangible personal property existing at the end of the accounting period.

   For a guardianship:

You are further directed to file an annual report of guardian report, a complete accounting of your administration of  this estate, if you have possession of the estate or are representative payee, along with the required fee, notice of right to object form, and a certificate of mailing showing copies were sent to all interested persons, including the bonding company, by first-class mail, postage prepaid, not later than 1 year and 30 days after the date of appointment and annually thereafter. If you are filing an accounting, the accounting shall include an updated inventory at the end of the accounting period and shall, if ordered by the court, include certificates of proof of possession for all intangible personal property existing at the end of the accounting period.

   For a guardianship and conservatorship:

You are further directed to file an annual report of guardian report and a complete accounting of your administration of this estate, along with the required fee, notice of right to object form, and a certificate of mailing showing copies were sent to all interested persons, including the bonding company, by first-class mail, postage prepaid, not later than 1 year and 30 days after the date of appointment and annually thereafter. The accounting shall include an updated inventory at the end of the accounting period and shall, if ordered by the court, include certificates of proof of possession for all intangible personal property existing at the end of the accounting period.

   (E) Guardians/Conservators shall not make ATM withdrawals or receive cash back on a debit transaction on a ward’s or protected person’s bank account without first receiving a court order to do so. The following language shall be included on all Letters:

No cash withdrawals or cash back without court order. The Office of Public Guardian is prohibited from making cash withdrawals or receiving cash back.

   (F) The court shall order guardians/conservators to file Letters with the Register of Deeds in any county where the ward has real property or an interest in real property. The following language shall be included on all Letters:

Guardians/conservators shall file Letters with the Register of Deeds in any county where the ward has real property or an interest in real property, wherever located, within a reasonable time.

Rule 43 amended November 1988. Renumbered and codified as § 6-1443, effective July 18, 2008; § 6-1443 amended August 31, 2011, effective January 1, 2012; § 6-1443(A) amended May 23, 2013, effective September 1, 2013; § 6-1443(D) amended August 28, 2013, effective September 1, 2013; § 6-1443(A), (B), (D), and (E) amended September 10, 2015; § 6-1443 amended November 13, 2019, effective April 1, 2020.

 

unanimous

§ 6-1443.01 Standby Guardian.

§ 6-1443.01 Standby Guardian.

   (A) If a nominated Standby Guardian is listed in a petition, the Standby Guardian shall complete all background checks as required by Neb. Rev. Stat. § 30-2602.02 and Neb. Ct. R. § 6-1449 prior to being appointed unless waived by the court for good cause shown.

   (B) When the Standby Guardian seeks to act as guardian for the ward or incapacitated person due to the death, unwillingness or inability to act, or resignation or removal of the guardian, before Letters will be issued, the Standby Guardian must do the following:

   (1) Complete a Standby Guardian Assumption of Guardianship Authority notification form and Acceptance and file it with the court within 10 days of any of the event(s) occurring in subsection (2). The Standby Guardian shall file a certificate of mailing with the court showing that copies of the Standby Guardian notification form, Acceptance, and a Notice of Right to Object form were sent to all interested persons, including the bonding company, if any, by first-class mail postage prepaid.

   (2) Complete all background checks as required by Neb. Rev. Stat. § 30-2602.02 and Neb. Ct. R. § 6-1449 and file them with the court, unless waived by the court for good cause shown.

   (3) File within 30 days of the filing of the Standby Guardian Assumption of Guardianship Authority notification form and Acceptance:

   (i) general information form

   (ii) address information form

   (iii) personal and financial information form

   (4) File an Inventory, Affidavit of Due Diligence, and Certificate of Mailing with the court showing that copies of the Inventory and a Notice of Right to Object form were sent to all interested persons, including the bonding company, if any, by first-class mail postage prepaid within 30 days of the filing of the Standby Guardian Assumption of Guardianship Authority.

   (5) File a Financial Institution Receipt of Letters Form. This form shall be filed with the court within 30 days of the Letters being issued.

   (C) The court shall review the inventory and background checks filed by the Standby Guardian. The court shall determine if a bond is necessary and shall so indicate in an Order, and Letters shall issue after the bond is posted, if required. The court may in its discretion set the matter for hearing with notice to all interested parties.

   (D) The Standby Guardian shall complete training within 90 days of receiving his or her Letters.

§ 6-1443.01 adopted September 10, 2015; § 6-14430.01(B) amended November 13, 2019, effective April 1, 2020.

unanimous

§ 6-1443.02. Intrastate transfer of guardianship and conservatorship cases.

§ 6-1443.02. Intrastate transfer of guardianship and conservatorship cases.

   When the court is informed that a ward, protected person, and/or incapacitated person’s best interest would be served by transferring a guardianship and/or conservatorship case to another county within the State of Nebraska having concurrent jurisdiction pursuant to Neb. Rev. Stat. §§ 30-2212, 30-2615, and 30-2629, the following procedures shall apply:

   (A) No transfer to another county may be made without a hearing and notice to all interested persons.

   (B) A motion for intrastate transfer shall be filed and set forth with specificity the basis upon which a transfer would serve the best interest of the ward, protected person, and/or incapacitated person.

   (C) The movant shall send the motion and a notice of the hearing to all interested persons along with a Notice of Right to Object Form.

   (D) After a hearing, the court of original jurisdiction shall make findings of fact setting forth how the best interest of the ward, protected person, and/or incapacitated person are met by way of transfer.

   (E) If the transferring court finds venue exists in the successor court and good cause is found to transfer, the court shall enter a provisional transfer of jurisdiction order.

   (F) The provisional transfer of jurisdiction order shall be sent to the presiding judge of the successor court. Thereafter the successor court shall have 14 days to either accept the transfer or deny the same, for lack of venue only, by written order. The acceptance or denial order shall be filed in the court records of the original jurisdiction court.

   (G) If an acceptance of transfer is filed, the original jurisdiction court shall enter an order of intrastate transfer.

   (H) The original court file shall be electronically transferred to the successor court, and the paper or microfilmed records shall be permanently maintained in the originating court.

   (I) The successor court shall maintain electronically certified copies of the transferred court file of all transferred cases. For purposes of certification, electronic documents shall be considered original documents.

   (J) All exhibits shall be sent to the successor court.

   (K) The original jurisdiction court shall maintain certified copies of all exhibits sent to the successor court at the time of transfer.

   (L) The successor court shall schedule a status review hearing within 30 days of transfer giving all interested persons notice of the new docket and page number, court address, and judge assigned to the case.

   (M) The successor court shall enter an order acknowledging receipt of the transferred case within the records of its own court with a certified copy sent to the transferring original jurisdiction court for completion of the intrastate transfer. The original jurisdiction court shall no longer retain jurisdiction of the proceedings once the successor court’s acknowledgment of jurisdiction has been docketed.

   (N) If the original court and proposed successor court fail to agree on transfer, the presiding judges of each court judicial district shall consult and resolve the manner in which the case shall thereafter proceed.

   (O) Until the case is accepted by the successor court, all proceedings shall remain in the court in which the proceedings were originally commenced.

§ 6-1443.02 adopted September 10, 2015; § 6-1443.02(D)-(F) and (H)-(O) amended February 19, 2020.

unanimous

§ 6-1444. Rules not jurisdictional.

§ 6-1444. Rules not jurisdictional.

   No rule adopted by this court shall be or be construed to be jurisdictional, nor shall failure to comply with any such rule in any proceeding impair or otherwise affect the legality of such proceedings.

unanimous

§ 6-1445. Filing requirements; guardian/conservator standardized forms.

§ 6-1445. Filing requirements; guardian/conservator standardized forms.

   (A) Any order, notice signed by the court or the registrar, and the petition application or pleading on which it is based, is deemed to be immediately filed upon affixing of the court file stamp. In no instance shall any documents be taken from this court until they have been filed, posted, filed for permanent record, and placed in the court file.

   (B) All courts shall accept for filing only the standardized forms approved by the State Court Administrator's Office as provided on the Nebraska Judicial Branch Web site in guardianship and conservatorship matters.

§ 6-1445 amended June 8, 2011; § 6-1445 amended August 31, 2011, effective January 1, 2012.

unanimous

§ 6-1445.01. Waivers of rules in guardianships and conservatorships; procedure.

§ 6-1445.01. Waivers of rules in guardianships and conservatorships; procedure.

   (A) In a guardianship or a conservatorship proceeding, where a waiver for good cause shown is requested, the following procedures shall apply:

   (1) A request for waiver shall be made upon application and may be considered by the court after a hearing upon notice to all interested persons. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (2) Notice of any hearing shall be given by the applicant as required by the Nebraska Probate Code.

   (3) Proof of sending the application and notice of hearing to all interested persons shall be filed with the court by the applicant.

   (4) The hearing upon the application may be waived if the waiver requested is approved in writing by all interested persons. The court may then enter the order without further notice and without further hearing. For purposes of this paragraph, interested persons shall include all those defined in § 6-1433(B)(2)

   (5) The court may enter an order specifying what rule requirements have been waived. Upon request by any interested person, the court shall set forth its findings in the order.

§ 6-1445.01 adopted May 23, 2013, effective September 1, 2013; § 6-1445.01(A)(1), and (A)(3)-(A)(5) amended September 10, 2015.

unanimous

§ 6-1446. Personal representative's failure to qualify.

§ 6-1446. Personal representative's failure to qualify.

   In all cases where a personal representative, guardian, or conservator has been formally or informally appointed and has failed to qualify by filing the required bond and acceptance within 60 days of appointment, and nothing appears in the records of the court which may explain or excuse the delay, the appointment may be set aside by the court on its own motion with or without prior notice to interested persons. If prior notice is not given, the clerk shall promptly mail a copy of the order of the court to the petitioner or petitioner's attorney, and to the personal representative, guardian, or conservator.

unanimous

§ 6-1447. Dismissal for failure to act.

§ 6-1447. Dismissal for failure to act.

   A petition or application for probate of will, adjudication of intestacy, appointment of a personal representative, guardian or conservator shall be subject, on the court's own motion and with or without prior notice to interested persons, to dismissal without prejudice when it appears from the records of the court that no action on the petition or application has been taken by the petitioner or applicant for 4 months or longer, and nothing appears in the records of the court which may explain or excuse the delay. If the dismissal is ordered without notice, the clerk of the court shall promptly notify the petitioner or applicant and attorney of record of such action.

unanimous

§ 6-1448. Local rules.

§ 6-1448. Local rules.

   Each county court by action of a majority of its judges may from time to time recommend other local rules not inconsistent with these rules nor inconsistent with any directive of the Supreme Court or statutes of the State of Nebraska. Such recommended rules shall be submitted as provided in Neb. Ct. R. § 1-103(A). Any such recommended rule shall not become effective until approved by the Supreme Court. Such approved rule or rules shall be published on the Nebraska Judicial Branch website.

Rule 48 amended September 1987. Renumbered and codified as § 6-1448, effective July 18, 2008; § 6-1448 amended June 9, 2021, effective January 1, 2022; § 6-1448 amended September 7, 2022.

unanimous

§ 6-1449. Background checks on guardians or conservators; appointment of guardian ad litem.

§ 6-1449. Background checks on guardians or conservators; appointment of guardian ad litem.

   (A) Disclosure of the content of the following reports to nonparties of this pending action is prohibited without the court's written consent. All reports filed pursuant to this section are confidential and shall be handled in the same manner as personal and financial information in court records under § 6-1464.

   (1) A person, except for a financial institution as that term is defined in subsection (12) of Neb. Rev. Stat. § 8-101 or its officers, directors, employees, or agents or a trust company, who has been nominated for appointment as a guardian or conservator shall obtain a national criminal history record check, a check of the Abuse and Neglect Registries for adults and children, a check with the sex offender registry, and a credit check through a process approved by the State Court Administrator's Office. The nominated guardian or conservator shall file the results of the reports with the court at least 10 days prior to the appointment hearing date, unless waived or modified by the court (a) for good cause shown by affidavit filed simultaneously with the petition for appointment or (b) in the event the protected person requests an expedited hearing under Neb. Rev. Stat. § 30-2630.01.

   (2) An order appointing a guardian or conservator shall not be signed by the judge until such reports have been filed with the court and reviewed by the judge. Such reports, or the lack thereof, shall be certified either by affidavit or by obtaining a certified copy of the reports. No reports or national criminal history record check shall be required by the court upon the application of a petitioner for an emergency temporary guardianship or emergency temporary conservatorship. The court may waive the requirements of this section for good cause shown.

   (B) In a guardianship proceeding, the petitioner must disclose and identify the existence of any other litigation or of any other court proceeding involving the minor child or the prospective ward in which his or her rights were or may be determined or affected to the extent that such information is known by the petitioner. The petitioner must disclose and identify the existence of any other litigation or court proceeding involving the custody, support, visitation, or paternity of a minor child or prospective ward whose rights may be determined or affected by the petition. The petition shall state that the petitioner has made diligent inquiry to learn this information.

   (C) The court may appoint a guardian ad litem if:

   (1) There are no interested persons. For purposes of subsection (B), interested persons shall include all those defined in § 6-1433; or

   (2) The only interested persons are one or more governmental agencies paying benefits on behalf of the ward, incapacitated person, protected person, or minor.

   Also, if the court finds that a governmental agency is reviewing the annual reports, then the court may waive the appointment of a guardian ad litem.

Rule 49 renumbered and codified as § 6-1449, effective July 18, 2008; § 6 -1449 amended August 31, 2011, effective January 1, 2012; § 6-1449 amended September 10, 2015; § 6-1449(B) amended November 13, 2019, effective April 1, 2020; § 6-1449(B) and (C) amended March 20, 2024.

unanimous

§ 6-1450. Provisions for deposit and investment of funds received by the clerk of the county court.

§ 6-1450. Provisions for deposit and investment of funds received by the clerk of the county court.

   (A) Public Moneys Paid to County Court Officials; Depository Banks; Designation; Pledged Securities; List.

   (1) All funds paid to any county court shall be deposited in such bank or banks as have been designated as official depositories for such funds. Depository banks shall be such banks as designated by the county judge or judges.

   (2) Deposits in excess of the amount insured by the Federal Deposit Insurance Corporation shall be made only as authorized by the provisions of Neb. Rev. Stat. §§ 77-2326.04 through 77-2326.09.

   (3) The clerk magistrate of each county court shall submit to the State Court Administrator a current and correct list and description of the securities pledged or in which a security interest has been granted by any depository bank to secure the deposits.

   (B) Investment of Moneys Not Otherwise Provided for by Law.

   (1) Individual trust funds. Trust funds in excess of $5,000 that can be expected to be held in excess of 90 days in trust by a county court may be placed, upon written request of an interested party, in interest-bearing certificates of deposit or a savings account of a bank or other financial institution or interest-bearing obligations of the federal government. This provision is effective only for individual deposits in excess of $5,000.

   (2) Pooled trust funds. Other funds received by the court and pooled should be invested wherever possible with consideration to:

   (a) the highest possible interest (such as NOW or SUPER NOW accounts);

   (b) the least restrictions (such as minimum balances, limitations on withdrawals, or number of checks per month); and

   (c) minimum or no service charges (to the extent service charges are incurred, such charges shall be paid out of state fees received that month).

   (C) Distribution of Earned Interest.

   (1) Individual funds. The interest earned from income accumulated from the investment of moneys from § 6-1450(B)(1) shall be retained for the benefit of the owner of the funds.

   (2) Pooled funds. Each clerk of the court shall transmit the net of any interest from § 6-1450(B)(2), and fees for credit card use reduced first by any costs incurred as a result of credit card use and any other bank charges, to the State Treasurer along with the regular submissions of fees and costs.

Rule 50 amended June 1988. Renumbered and codified as § 6-1450, effective July 18, 2008.

unanimous

§ 6-1451. County court records; review; copies at litigant's expense.

§ 6-1451. County court records; review; copies at litigant's expense.

   (A) Minimum Requirements. County court records shall be organized as set out in the Records Model in the County Court Procedures Manual.

   (B) Media Used. County court records may be maintained on any media approved by the State Court Administrator. The requirements contained in the Rules and Regulations of the State Records Administrator shall be observed. For the cases which are fully electronic and stored on JUSTICE, no duplicative paper records shall be kept.

   (C) [Reserved.]

   (D) Standard Forms. Approved standard forms contained on the Nebraska Supreme Court Web site shall be used without modification where possible. Modifications must be approved by the State Court Administrator before a modified form can be printed or used.

   (E) Any person who does not have access to the court-authorized service provider is entitled to inspect the electronic transcript and bill of exceptions at the office of the clerk of the trial court at the computer terminal provided. Confidential or sealed records shall not be inspected except by leave of court. Paper copies of a transcript or bill of exceptions shall not be prepared by court staff unless the requestor pays for a copy of the requested record at the prescribed rate for copies.

   (F) When a request is made to the clerk of the trial court for a transcript of pleadings by or on behalf of any incarcerated person, the clerk of the trial court shall prepare a copy at the prescribed rate for copies and send it to the incarcerated person at the correctional center where he or she resides. The cost shall be paid by the person making the request unless the person has been allowed to proceed in forma pauperis in the action in which the request for a record has been made. Except for good cause shown, any additional copies of the transcript once provided to a litigant on an in forma pauperis basis shall be prepared at the litigant's cost.

   (G) When a request is made by or on behalf of any incarcerated person for a bill of exceptions, the clerk shall prepare a copy at the prescribed rate for copies and send it to the incarcerated person at the correctional center where he or she resides. The copy shall contain the index of exhibits but shall not include exhibits unless specified otherwise in these rules. The cost shall be paid by the person making the request unless that person has been allowed to proceed in forma pauperis in the action in which the request for a record has been made. Except for good cause shown, any additional copies of the bill of exceptions once provided to a litigant on an in forma pauperis basis shall be prepared at the litigant's cost. An incarcerated person may request copies of exhibits by filing a motion with the court having jurisdiction of the case.

   (H) Where a request for a copy of a transcript or a bill of exceptions is made on an in forma pauperis basis and an action is not pending, good cause must be shown by the litigant making the request for the necessity of a copy. A copy shall be provided only upon an order of the court.

Rule 51 adopted September 1987; amended May 21, 2003. Renumbered and codified as § 6-1451, effective July 18, 2008.; §§ 6-1451(A), (C), and (D) amended June 8, 2011; § 6-1451 amended June 9, 2021, effective Janaury 1, 2022; § 6-1451 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 6-1452. Appeals taken from the county courts.

§ 6-1452. Appeals taken from the county courts.

   (A) Appeals from County Court to District Court.

   (1) Transcript of pleadings; how ordered.

   (a) Appellant shall file a request for preparation of the transcript of pleadings at the time of filing the notice of appeal. The request shall designate the pleadings to be included in the transcript by listing the name of the pleading and its date of filing.

   (b) The transcript shall contain the following:

   (i) In criminal cases, the complaint and arraignment sheet, or other entry showing the plea entered. In civil cases, a copy of the last amended complaint and last amended answer;

   (ii) The judgment, decree, or final order sought to be reversed, vacated, or modified, and the county court's opinion, if any;

   (iii) Copies of the notice of appeal and request for transcript, and copies of the request for bill of exceptions, and the application to proceed in forma pauperis and accompanying poverty affidavit if those documents were filed;

   (iv) A copy of any bond or undertaking, and any approval thereof, given in the county court; and

   (v) Any other parts of the county court record which appellant believes to be necessary. Only those portions of the record which are material to the assignments of error may be requested. Requests must be made in the manner set out in § 6-1452(A)(1)(a).

   (c) In appeals to the district court involving small claims cases, the county court shall certify the complete transcript of pleadings to the district court if the appellant is not represented by counsel.

   (d) A party must raise the absence in the transcript of a mandatory document required by § 6-1452(A)(1)(b) prior to submission of the appeal for decision by the district court, unless the district court orders otherwise.

   (e) If a request is made for documents not present in the record of the case, the clerk shall certify that absence to the district court clerk using JUSTICE procedures. The clerk may not include, without specific written request, a copy of any document not required under this rule. The clerk shall, upon request, certify that the record does not contain a described document.

   (2) Transcript of pleadings; form. The transcript shall be in electronic form and created using JUSTICE procedures. Each document in the transcript shall bear a clear and distinct stamp showing the date the document was filed by the clerk of the trial court.

   (3) Payment for transcript. The party making the request shall pay the cost of the transcript.

   (4) Supplemental transcript. After the original transcript is filed in the office of the clerk of the district court, any party may, without leave of court, request a supplemental transcript containing matters omitted from the original transcript and which are necessary to the proper presentation of the case in the district court.

   (a) The request for a supplemental transcript shall be in the same form prescribed in § 6-1452(A)(1)(a).

   (b) Supplemental transcripts shall be filed within 10 days after the county court receives the request, unless the district court has extended the due date.

   (c) Supplemental transcripts shall be in the form prescribed in § 6-1452(A)(2).

   (d) No change in the original or supplemental transcript shall be made after filing, without leave of the district court.

   (5) Cases previously appealed. When a final order is appealed in a case which was previously appealed, the transcript may contain pleadings already on file in the district court.

   (6) Statement of errors. See Neb. Ct. R. § 6-1518.

   (B) Bills of Exceptions.

   (1) Making and preserving the record; duty.

   (a) “Court reporting personnel,” as defined in Neb. Ct. R. § 1-204(A)(1), shall in all instances make, or cause to be made, a verbatim record of the evidence offered at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral motions, and stipulations by the parties. This record may not be waived.

   (b) Upon the request of the court or of any party, either through counsel or by the party if appearing in a self-represented capacity, the court reporting personnel shall make or have made a verbatim record of anything and everything said or done by anyone in the course of trial or any other proceeding, including, but not limited to, any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court’s proposed instructions or to instructions tendered by any party, together with the court’s rulings thereon, and any posttrial proceeding.

   (c) Absent a request as provided in subsection (b) above, any party may request the court reporting personnel to make or have made a verbatim record of any particular part of portion of the proceedings not required by subsection (a) above, and the court reporting personnel shall comply with such request.

   (d) Any request under subsections (b) or (c) above shall be made either in a writing filed with the clerk of the trial court or on the record in open court. In the absence of a request in such manner, it shall be conclusively presumed that no such request was made.

   (2) How ordered. An appellant may order a bill of exceptions by filing a request with the clerk of the county court at the time the notice of appeal is filed. The request shall specifically identify each portion of the evidence and exhibits offered at any hearing which the party appealing believes material to the issues to be presented for review. At the same time, the appellant shall serve a copy of the request upon all parties. Failure to file such a request at the same time the notice of appeal is filed shall be deemed a waiver of appellant of the right to request a bill of exceptions and court reporting personnel shall not begin preparation of the bill of exceptions until leave is given to file a request out of time.

   (3) Payment. Except in cases where payment of the cost of preparing the bill of exceptions will be paid by the state, county, or other governmental subdivision, the cost to prepare the bill of exceptions shall be estimated by court reporting personnel. The estimate shall be provided to the party making the request within 7 days of receipt of the notice of appeal and request to prepare the bill of exceptions.

   (a) The appellant shall deposit the amount of the estimated cost with the clerk of the county court within 7 days after receipt of the estimate. The trial court clerk shall notify the district court and the court reporting personnel when the deposit is made. Preparation of the bill of exceptions will not begin until the payment of the estimate is received.

   (b) If the appellant fails to pay the deposit on time, the clerk magistrate shall forthwith file a notice of such failure with the district court and to the court reporting personnel responsible for making the record that the deposit has not been made. Thereafter, unless leave of the district court for an extension of time is granted for good cause shown, the appeal shall proceed as if no bill of exceptions had been requested. Appellant’s time shall not be stayed by failure to make the deposit on time.

   (4) Supplements. If the appellee believes additional evidence should be included in the bill of exceptions, the appellee may, within 10 days after service of the request for bill of exceptions filed by the appellant, file a supplemental request for preparation of a bill of exceptions with the clerk of the county court. At the same time, a copy of the supplemental request shall be served upon all parties. The supplemental request shall be processed in the same way as the initial request.

   (5) Preparation and delivery.

   (a) The bill of exceptions shall be prepared by the court reporting personnel in accordance with Neb. Ct. R. App. P §§ 2-105.01 and 2-105.02.

   (b) The following time limits apply unless an extension of time is approved by the district court in accordance with these rules. The time period begins on the date the estimate is due to be paid by appellant in the county court.

Criminal trials

7 weeks

Civil trials 7 weeks
Preliminary hearings in felonies 3 weeks
Guilty or nolo contendere pleas 3 weeks

   (c) Request for Extension. If the bill of exceptions cannot be prepared within the time allowed by § 6-1452(B)(5)(b), the district court may grant additional time for preparation.

   (i) The court reporting personnel shall file a request with the clerk of the district court for additional time at least 7 days prior to the date the bill of exceptions is due to be filed.

   (ii) The request shall specify the length of time requested for the extension and shall bear the signature of the court reporting personnel. A certificate of the court reporting personnel shall accompany the request for extension of time and shall set forth the reasons why the bill of exceptions cannot be completed by the date due.

   (iii) Copies of the request shall be served on all parties to the action or their attorneys at the time the request for extension of time is filed, and a copy delivered to the county court judge who heard the matter.

   (iv) The district court shall rule upon the request as soon as possible. The clerk of the county court shall be notified of the decision as soon as possible, but not later than 2 business days after the decision.

   (v) Requests for extension shall be allowed only upon a showing of good cause, and first extensions of time shall not be routinely granted.

   (6) Settlement, signature, and allowance. When the bill of expections has been prepared, it shall be reviewed to determine whether the bill of exceptions conforms to applicable rules and is an accurate transcription of the recording of the proceedings. Those persons who complete the review shall make the following certifications:

   (a) The court reporting personnel shall sign a certificate certifying that it conforms to the applicable rules and is an accurate transcription of the recording. The court reporting personnel shall include the certificate with the bill of exceptions. The court reporting personnel shall transmit the bill of exceptions to the court clerk using the court reporting personnel filing portal through the court authorized service provider.

   (b) Once the bill of exceptions is received, and prior to filing, the clerk shall certify that the recording of the proceedings was in the custody and/or under the control of the court at all times and shall state the recording from which the bill of exceptions was made is the official record of the proceedings in the case in the county court.

   (c) All signatures shall be as set forth in § 2-211.

   (7) Filing. The bill of exceptions shall be filed in the county court, and a copy thereof transmitted to the district court using JUSTICE procedures. The bill of exceptions shall be the official record of the proceedings in the county court and shall be considered by the district court on appeal without being offered and received into evidence.

   (8) Alternate preparation. If the court reporting personnel is unable to prepare and certify a bill of exceptions, or if a bill of exceptions cannot be prepared and certified under provisions contained elsewhere in these rules, the bill of exceptions shall be prepared under the direction and supervision of the trial judge and shall be certified by the judge and delivered to the clerk for filing.

   (9) Amendments to the bill of exceptions. The parties in the case may amend the bill of exceptions by written agreement at any time prior to the time the case is submitted to the district court. An amended bill of exceptions shall be prepared and transmitted in electronic format as provided by this rule, and the agreement shall be included with the amended bill of exceptions. Proposed amendments not agreed to by all the parties to the case shall be heard and decided by the county court after such notice as the court shall direct. The order of the county court thereon shall be included with the bill of exceptions prior to the time the case is submitted to the district court. Hearings with respect to proposed amendments to a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have ceased to hold office, or shall be prevented by disability from holding the hearing, or shall be absent from the state, such proposed amendments shall be heard by the successor judge, or by another county judge in the district, or by a county judge in an adjoining judicial district.

   (10) Notice of district and appellate court action. After notification and transmission of the mandate from the district court or appellate court to the county court, the county court shall spread the mandate.

   (11) Settlement of Case. The party requesting the preparation of the bill of exceptions may, at any time before the bill of exceptions is completed, file with the clerk magistrate a written notice advising the court that settlement has been reached. Upon receipt of the notice, the clerk magistrate shall provide the notice to the court reporting personnel and to the district court clerk. The clerk magistrate shall record such action on the register of actions. Upon receipt of such notice, court reporting personnel shall cease any further work upon the bill of exceptions. Court reporting personnel shall be entitled to payment by the party ordering such bill of exceptions for the work performed up to the time that such notice was sent to the court reporting personnel and rules with regard to payment of the fees to the court reporting personnel for the bill of exceptions, as otherwise provided herein, shall apply.

   (12) Any request for preparation of a bill of exceptions or supplemental request for bill of exceptions filed after January 1, 2022, shall be governed by these rules regardless if the matter was held, heard, or determined prior to January 1, 2022.

   (C) Direct appeals from county courts to the Court of Appeals or Supreme Court. The Supreme Court and Court of Appeals Rules of Appellate Practice, Neb. Ct. R. App. P. § 2-101 et seq., shall be followed in appeals from the county courts.

   (1) Payment of docket fee. The docket fee in the Court of Appeals or Supreme Court set by Neb. Rev. Stat. § 33-103 shall be first deposited with the clerk of the county court, who shall record receipt of the fee. The clerk of the county court shall then submit the fee to the Clerk of the Supreme Court and Court of Appeals for the docket fee. If the county is to pay the fee (filing in forma pauperis), then the docket fee is not prepaid.

   (2) Processing appeals in the Court of Appeals or Supreme Court. Appeals from the county court will be processed in the same manner as other appeals. The county court transcript shall be certified by the clerk as a true copy of the proceedings contained therein.

   (3) Notification of decision. The county court will be officially notified of the action of the appellate court through the mandate issued by the Clerk of the Supreme Court and Court of Appeals.

Rule 52(A)(7) amended October 27, 1993; Rule 52(A)(3)(d) and (C)(3)(d) and (C)(4) amended April 13, 1994; Rule 52(C), (C)(1), (C)(1)(d), (C)(2), (C)(3), (C)(4), and (C)(5) amended June 2, 1994; Rule 52(C), (C)(3)(d), and (C)(4) amended January 31, 1996; Rule 52(C)(1)(c) amended September 17, 1997; Rule 52(A)(2)(a)(iii) and (C)(3)(e) amended October 14, 1999. Renumbered and codified as § 6-1452, effective July 18, 2008; §§ 6-1452(A)(4)(a) and (B)(7)(a) and (b) amended June 8, 2011; § 6-1452(C)(2) amended August 31, 2011; § 6-1452 amended June 9, 2021, effective January 1, 2022; § 6-1452 amended November 17, 2021, effective January 1, 2022; § 6-1452(B)(2), (3), (3)(a) and (b), and (B)(5)(b) amended May 17, 2023.

unanimous

§ 6-1453. Preliminary hearings in felony cases.

§ 6-1453. Preliminary hearings in felony cases.

   (A) Transcript of Pleadings. In cases where the defendant is ordered bound over to the district court, the original case file shall be transmitted electronically to the clerk of the district court using JUSTICE procedures. The register of actions of the case in the county court shall be updated to show the actions in the county court, and the action of transmitting the record shall be recorded on the register of actions.

   (B) Transcript of Proceedings.

   (1) Request for transcription. A transcript of proceedings for preliminary hearings in felony cases may be ordered by a party to the action by filing a request with the clerk of the county court. The request shall specify which portions of the evidence should be included in the transcript.

   (2) Preparation and payment. A transcript of proceedings for preliminary hearings in felony cases, when requested, shall be prepared by court reporting personnel as provided in Neb. Ct. R. in § 6-1452(B)(5)(a) and (b) and paid for as described in Neb Ct. R. § 1-203(B).

   (C) Costs. The county court shall certify costs and show whether costs have been paid or claimed.

Rule 53 adopted September 1987. Renumbered and codified as § 6-1453, effective July 18, 2008; § 6-1453 amended June 9, 2021, effective January 1, 2022; § 6-1453(B) amended October 23, 2024.

unanimous

§ 6-1454. Criminal proceedings before clerk magistrates.

§ 6-1454. Criminal proceedings before clerk magistrates.

   Each clerk magistrate in the State of Nebraska is authorized to conduct arraignments, accept pleas of guilty and nolo contendere, and impose penalties as set forth below:

   (A) Waivers. The clerk magistrate may accept pleas of guilty and impose fines on all offenses set out in the waiver/fine schedule approved by the Nebraska Supreme Court.

   (B) Arraignments. The clerk magistrate may conduct arraignments and accept pleas of guilty, not guilty, and nolo contendere on any waiverable offense, on any other infractions, misdemeanors, or violations of city ordinances. The clerk magistrate may impose penalties on any infractions, Class III, IV, or V misdemeanors, first offense Class W misdemeanors, or any violations of city ordinances. Penalties imposed by the clerk magistrate under this section are not limited to the fines on the uniform waiver schedule and may include probation. Such penalties shall not be in excess of statutory limits and shall not include imprisonment. A record shall be made of all arraignments conducted by the clerk magistrate. The presiding judge of each judicial district shall provide the clerk magistrate with a written verbatim arraignment form which shall be followed by the clerk magistrate to ensure that the defendant is properly advised of the charges made against him or her, the statutory language stating the offense, the possible penalties which could be imposed, and the necessary constitutional rights.

   (C) Bond Setting. When a defendant appears before the clerk magistrate and the case is continued for further hearing, the clerk magistrate shall order the defendant to appear on a date certain and shall release the defendant or set bond with appropriate conditions as statutorily provided.

   (D) Other Duties. All other duties of clerk magistrate shall be pursuant to state statute.

Rule 54 adopted September 1987. Renumbered and codified as § 6-1454, effective July 18, 2008.

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§ 6-1455. Uniform waiver system.

§ 6-1455. Uniform waiver system.

   (A) Uniform Waiver System. Each county court shall accept waivers of appearance and pleas of guilty in cases involving nonhazardous traffic violations, carrier violations, game and parks violations, and other violations in accordance with a schedule adopted by Supreme Court rule. Such waivers shall be on a form with uniform language in accordance with the Supreme Court rule.

   (B) Guidelines for Use of Waiver System. Waivers shall be accepted in the following ways:

   (1) Mail. Violators may be allowed by the law enforcement officer issuing the citation to use the waiver form contained on the defendant's copy of the citation. If the defendant is a resident of a state which is a member of the Nonresident Violator Compact, the defendant may then be released without the necessity of immediate collection of fine and costs.

If the defendant is a resident of a state which is not a member of the Nonresident Violator Compact, or is charged with an offense not covered by that compact, the officer shall

   (a) allow the defendant to sign the waiver and pay the fine and costs or

   (b) allow the defendant to sign the waiver and place it in an envelope along with the fine and costs in the presence of the officer. The officer shall then accompany the defendant to the nearest U.S. mailbox to observe the deposit therein of the envelope. The officer shall at no time take possession of the fine and costs.

   (2) Locked waiver boxes. Where a locked waiver box is permanently affixed within the building of a State Weighing Station, an officer may allow the defendant, in the presence of the officer, to sign the waiver and to place it and the fine and costs in an envelope. The officer shall then, in the presence of the defendant, seal and place the envelope in the locked waiver box.

   (3) Personal appearance. Violators may appear personally at the office of the clerk of the appropriate court on or before the court appearance date.

   (4) Application. Violators may make application for waiver of appearance prior to the court appearance date. Upon receipt of an application, the court shall determine whether or not the waiver privilege shall be granted and shall send either a waiver or a notice of an appearance date. If the waiver privilege is denied, the judge shall set forth within the notice of appearance a written explanation showing good and sufficient cause as to why the privilege was denied.

   (5) Internet. Violators may access a website approved by the Supreme Court and upon successful completion of required information and agreeing to all waiver and plea instructions, pay the fine and costs plus any convenience fees by using a credit/debit card processor authorized by the court. Convenience fees are established by the credit/debit car processor authorized by the court and are not a part of the fine and costs to the state.

   (C) Fine Schedule. The Supreme Court shall establish a schedule of the amount of fines to be imposed for violations which are to be paid by waiver.

   (D) Other Violations. Notwithstanding the provisions of § 6-1455(C), and except for violations in which mandatory jail time is required to be imposed as punishment, a waiver may be allowed for violations not listed on the schedule in individual cases when authorized by the county judge or judges of the county.

Rule 55 amended March 1991; Rule 55(B)(5) adopted September 20, 2007. Renumbered and codified as § 6-1455, effective July 18, 2008; § 6-1455(D) amended June 9, 2010; § 6-1455(B)(1)(a) amended June 8, 2011; § 6-1455(B)(2) and (5) amended May 1, 2019.

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§ 6-1456. [Reserved.]

§ 6-1456. [Reserved.]

Rule 56 amended January 1991. Renumbered and codified as § 6-1456, effective July 18, 2008; § 6-1456 amended August 25, 2010.

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§ 6-1457. City, village, or county ordinance guidelines.

§ 6-1457. City, village, or county ordinance guidelines.

   Pursuant to Neb. Rev. Stat. §§ 23-193 and 25-2703, the State Court Administrator established the following guidelines to prescribe the form that city, village, or county ordinances shall be filed in the county courts:

   (A) Initial Filing of City, Village, or County Ordinances. City, village, or county ordinances shall be compiled in a PDF format, if available. For code books or pamphlets which have been adopted in their entirety by an adopting ordinance, such books or pamphlets shall be accompanied by a copy of the adopting ordinance with a certificate of the municipal or county clerk, under the seal of the municipality or county, certifying that such ordinance was passed and approved as required by law. For code books or pamphlets containing a compilation of ordinances passed by the municipality or county, such books or pamphlets shall be accompanied with a certificate of the municipal or county clerk, under the seal of the municipality or county, certifying that such ordinances were passed and approved as required by law. Each code book or pamphlet shall contain a date of publication and purport that it is being published by the authority of the city council, or village board of trustees, or county board. Each code book or pamphlet shall contain an index.

   (B) Filing of New or Amended Ordinances. Copies of new or amended ordinances shall be filed in the county court in electronic form, if available. For municipalities or counties filing new or amended ordinances in ordinance form, such ordinances shall be accompanied with a certificate of the municipal or county clerk, under the seal of the municipality or county, certifying the date that such ordinances were passed and approved. For municipalities or counties filing new pages for insertion in their municipal codes, such pages shall be accompanied with a certificate of the municipal or county clerk, under the seal of the municipality or county, listing the ordinance numbers which effectuated the changes therein and certifying the dates that such ordinances were passed and approved. The county court shall affix all new or amended ordinances to the filed version of the respective city or village ordinances.

   (C) Need for Record. The foregoing provisions do not in any way modify the rule of appellate practice that when an ordinance charging an offense is not properly made a part of the record on appeal, an appellate court presumes the existence of a valid ordinance creating the offense charged, and will not otherwise take judicial notice of an ordinance.

Rule 57 adopted May 1994. Renumbered and codified as § 6-1457, effective July 18, 2008; § 6-1457 amended June 9, 2021, effective January 1, 2022.

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§ 6-1458. Petty cash funds.

§ 6-1458. Petty cash funds.

   Whenever the need exists, a clerk magistrate, with the concurrence of the county judges of his or her district, may establish and maintain a petty cash fund. The fund shall be used only in the event of business-related circumstances which require the item or expense to be purchased and paid for immediately in cash. The creation of the fund is contingent upon approval of the State Court Administrator or designee and budget approval by the local county board as defined under Neb. Rev. Stat. § 23-106. If the local county board approves the budget request, the clerk magistrate shall maintain receipts for expenditures and an accurate, detailed accounting of the fund on a form approved by the State Court Administrator. The printed form and receipts shall be scanned into JUSTICE with the court’s monthly financial image reports.

Rule 58 adopted July 1995. Renumbered and codified as § 6-1458, effective July 18, 2008; § 6-1458 amended February 18, 2016.

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§ 6-1459. Presiding judges.

§ 6-1459. Presiding judges.

   The presiding judge has primary responsibility for overseeing the delivery of county court services within the geographical area of the judicial district.

   In districts where there is a judicial administrator, the presiding judge, in accordance with Nebraska Supreme Court Personnel Policies and Procedures, bears the responsibility for the hiring, evaluation, and discipline of the judicial administrator. The presiding judge is to provide direction to the judicial administrator in matters of local district policy. A presiding judge is to provide direction to the judicial administrator to ensure that state statutes, Supreme Court rules, and policies of the Administrative Office of the Courts are appropriately carried out. The presiding judge is the immediate supervisor of the judicial administrator and shall meet with the judicial administrator on a regular basis to coordinate the work of the judges and staff within the district.

   In districts where there is no judicial administrator, the presiding judge bears the responsibility for the hiring, evaluation, and discipline of the clerk magistrates in the district. The presiding judge is to provide direction to the clerk magistrates in matters of local district policy. A presiding judge is to provide direction to the clerk magistrates to ensure that state statutes, Supreme Court rules, and policies of the Administrative Office of the Courts are appropriately carried out. The presiding judge is the immediate supervisor of the clerk magistrates and shall meet with the clerk magistrates on a regular basis to coordinate the work of the judges and staff within the district. In districts with more than one county, these duties may be assigned to individual judges on a county-by-county basis.

   It shall be the responsibility of the presiding judge to coordinate the work of all judges within the district. This may include assigning judges to various duties within a single county or among various counties of the district.

   The presiding judge shall bear the responsibility of notifying the Administrative Office of the Courts if there is a need for a substitute judge anywhere in the district.

   The presiding judge shall delegate appropriate administrative responsibility to the judicial administrator and the rest of the administrative staff of the district or to the clerk magistrates and the rest of the administrative staff of the counties relating to budget preparation and general administration, case management, facilities, personnel administration, and court records management. In districts with more than one county, these duties may be assigned to individual judges on a county-by-county basis.

   The presiding judge shall be the liaison with the Administrative Office of the Courts and Supreme Court.

It shall be the responsibility of the presiding judge to plan and chair each year a meeting of all judges, judicial administrators, and clerk magistrates within a district. The presiding judge may plan and chair additional meetings as deemed necessary in the discretion of the presiding judge of all judges, judicial administrators, and clerk magistrates within a district.

   The presiding judge, or the presiding judge's designee, shall be the liaison to the Nebraska State Bar Association and the media for the courts of the district. In districts with more than one county, these duties may be assigned to individual judges on a county-by-county basis.

   The presiding judge shall be the liaison to other agencies of local and state government for the courts of the district. In districts with more than one county, these duties may be assigned to individual judges on a county-by-county basis.

   It shall be the responsibility of the presiding judge of the district to review the audits of all county courts of the district to make sure that the accounting practices being followed are in accordance with the County Court Accounting Manual. It is the duty of the presiding judge to respond to any audit recommendation. It is also the duty of the presiding judge to make all records and information available to the individuals doing the audit.

   It shall be the duty of the presiding judge to approve any reinstatement of bonds which have been forfeited for more than 90 days when the presiding judge determines it is in the best interests of justice. In districts with more than one county, these duties may be assigned to individual judges on a county-by-county basis.

   The presiding judge shall be elected each year by a majority vote of the judges of the district subject to approval by the Supreme Court. Notification of the name of the individual elected as presiding judge of the district shall be given to the State Court Administrator no later than the last day of November of each year.

   A presiding judge shall hold the position for a term of 1 year from the first day of January to the last day of December of the same year. There is no limit on the number of terms a presiding judge may serve. A judge who has served for two or more consecutive terms may decline to serve another consecutive term. The election of a presiding judge must be approved by the Supreme Court. If notice of disapproval of the person elected to be presiding judge is not given within 15 days of the submission of the name to the State Court Administrator, then the person shall be deemed approved. If the Supreme Court disapproves of the person elected to be presiding judge, the district shall elect another person and submit that name to the State Court Administrator within 10 days of the notice of disapproval.

Rule 59 adopted October 1996. Renumbered and codified as § 6-1459, effective July 18, 2008; § 6-1459 amended August 27, 2008; amended June 8, 2011; amended January 31, 2018.

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§ 6-1460. Domestic relations.

§ 6-1460. Domestic relations.

   The Uniform district court rules of practice and procedure, Chap. 6, Art. 15, shall govern the procedure for domestic relations cases heard by a county court judge.

Rule 60 adopted November 1997. Renumbered and codified as § 6-1460, effective July 18, 2008.

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§ 6-1461. Modification of rules.

§ 6-1461. Modification of rules.

   Any of the foregoing rules shall be subject to such modification by the court as may be necessary in special instances to meet emergencies or to avoid injustice or great hardship.

Renumbered to Rule 59, July 19, 1995; renumbered to Rule 60, October 17, 1996; renumbered to Rule 61 November 26, 1997. Renumbered and codified as § 6-1461, effective July 18, 2008.

unanimous

§ 6-1462. County court civil jurisdiction.

§ 6-1462. County court civil jurisdiction.

   The Nebraska Supreme Court has determined, pursuant to Neb. Rev. Stat. § 24-517(5)(b), that from July 1, 2025, through June 30, 2030, each county court shall have concurrent original jurisdiction with the district court in all civil actions of any type where the amount in controversy is $70,000 or less.

  Rule 62 adopted June 22, 2005. Renumbered and codified as § 6-1462, effective July 18, 2008; § 6-1462 amended June 30, 2010; § 6-1462(A) and (B) amended June 24, 2015, effective July 1, 2015; § 6-1462(A) and (B) amended June 24, 2020, effective July 1, 2020; § 6-1462 amended June 26, 2024, effective July 1, 2024; § 6-1462 amended June 18, 2025, effective July 1, 2025.

 

unanimous

§ 6-1463. Uniform citation and complaint and citation in lieu of arrest.

§ 6-1463. Uniform citation and complaint and citation in lieu of arrest.

   (A) Complaint and Notice to Appear; Form.

   (1) The Uniform Citation and Complaint form shall be used in county courts, whether the complaint is made by a peace officer, prosecutor, or any other person.

   Form: electronically-generated citation and complaint. The "Uniform Citation and Complaint" shall be created electronically. The information on the form shall be set out as shown in Appendix 2 and compliant with NCIC codes. The law enforcement officer preparing the Uniform Citation and Complaint shall print the defendant's copy, which shall contain the waiver and plea section if applicable. A copy may be printed for the law enforcement officer or her or his agency, and another for the prosecutor.

All electronically-generated Uniform Citation and Complaint forms shall be at a minimum printed on letter-sized (8½ x 11 inches) white paper with black printing, in the format approved by the Supreme Court. Beginning January 1, 2020, all citation/complaint forms will be electronically filed as a standard sized (8½ x 11 inches) PDF with the court. Multi-page citations/complaints PDFs may be filed when required if the defendant is charged with multiple offenses.

   (2) Form: Beginning January 1, 2020, a hand‑written citation and complaint may be used only when equipment or access issues do not allow for electronically generated citations, or if approved by the Administrative Office of the Courts for agencies which issue less than 500 citations annually. The complaint and notice to appear shall be in the form set out in Appendix 2 and comply with NCIC codes. The Uniform Citation and Complaint shall consist of four parts:

   (a) the complaint, to be filed with the court;

   (b) the officer's copy;

   (c) the prosecutor's copy; and

   (d) the defendant's copy, with the waiver and plea printed on the reverse side.

The citation shall be 8½ x 11 inches in size and printed in the format approved by the Supreme Court. Any agency wishing to replace the offenses in the approved template with other offenses unique to its enforcement responsibility may submit a written proposal to the Administrative Office of the Courts for approval. The back of the officer and prosecutor copies may be printed to accommodate the needs of the agency, without permission of the Administrative Office of the Courts.

   (3) Numbering: All citations shall be numbered in consecutive order. Each number shall contain up to two alpha characters assigned by the Administrative Office of the Courts and up to seven numerals with no leading zeros. The citation number shall be displayed at the top of the citation in Arabic characters and numerals. 

   (4) The defendant's signature promising to appear may be captured by a digital representation or captured on the paper citation which is filed with the court, if applicable.

   (B) Uniform Citation in Lieu of Arrest.

   (1) Form: Any citation in lieu of arrest issued pursuant to Neb. Rev. Stat. §§ 29-422 through 29-430 or Neb. Rev. Stat. § 60-684 shall comply with the following minimum standards:

   (a) the name and address of the defendant;

   (b) a field for the defendant's language need if the defendant will require an interpreter when he or she appears in court;

   (c) the date of birth of the defendant;

   (d) the offense(s) charged;

   (e) the date, time, and location of the offense;

   (f) the time and place the defendant is to appear in court;

   (g) a written promise to appear in court and a line on which the defendant shall place his or her signature promising to appear in court (applicable only to citations issued by law enforcement personnel);

   (h) a warning that failure to appear in accordance with the command of the citation is a punishable offense;

   (i) the citation may constitute a complaint filed in the trial court (applicable only to citations issued by law enforcement personnel); and

   (j) officer and prosecution copies of the citation may contain additional information specific to the agencies' needs.

Rule 63 adopted September 26, 2006. Renumbered and codified as § 6-1463, effective July 18, 2008; § 6-1463(B)(1)(f)-(h) amended June 8, 2011; § 6-1463 amended December 13, 2017, effective January 1, 2019.

unanimous

§ 6-1464. Protection of personal and financial information in civil court records.

§ 6-1464. Protection of personal and financial information in civil court records.

   The following privacy rules shall apply to all pleadings, documents, exhibits, court orders, judgments, and decrees filed in all civil actions in the county courts of Nebraska:

   (A) This rule seeks to prevent birth dates, gender, Social Security numbers, and financial account numbers of all persons, including minor children, from being included in court records generally available to the public.

   (B) Separate document. The personal and financial information identified in § 6-1464(A) shall be set forth in a separate document as set forth in Appendices 4, 5, and 8 to these rules. Appendix 4 shall be used in general civil cases filed in the county court, and Appendices 5 and 8 shall be used in any case filed in the county court arising under Chapter 30 of the Nebraska Revised Statutes.

   (1) Electronic submission. Such separate document shall be submitted electronically as provided by Neb. Ct. R. § 2-210.

   (2) Paper submission. If the document is submitted in paper form, it shall contain, at the top of the first page, the following language, in bold type: This document is confidential and shall not be made part of the court file or provided to the public pursuant to Neb. Ct. R. § 6-1464. The clerk of the court shall keep the document separate from the case file but accessible to judges and court staff.

   (3) Storage of document and/or data. If the document is submitted in electronic form, or converted from paper form to electronic form, the electronic document or the data contained therein may be reproduced or stored in JUSTICE or other court case and financial management system. Such electronic document, image, or data shall be electronically marked and shall not be accessible or viewable by the public, except as expressly authorized by written court order.

   (4) Access to documents and/or data by government agencies and officials. Unless otherwise provided by statute, court rule, or court order, access to such electronic documents, images, or data by governmental agencies and officials shall be implemented by agency agreements approved by the Nebraska Supreme Court. Application for access to such electronic document, image, or data by government agencies and officials shall be made by such agency or official on the form provided at Appendix 7, which shall include all information as requested on Appendix 7.

   (C) The personal and financial information identified in § 6-1464(A) shall not be included in any pleading or document submitted by a party or counsel for filing with the court, except by reference to a separate Appendix 4, 5, or 8 document. An Appendix 4, 5, or 8 document shall be separately tendered with any such pleading or other document, and if the Appendix 4, 5, or 8 document is submitted in electronic form, it shall be identified in the filing transmittal as a confidential Appendix 4, 5, or 8 submission. The forms in Appendices 4, 5, and 8 are mandatory with respect to the information identified in § 6-1464(A), but a party, attorney, or court may include in the Appendices 4, 5, and 8 forms additional personal or financial information sought to be protected.

   (D) The personal and financial information identified in § 6-1464(A) shall not be included in any court order, judgment, or decree, including, but not limited to, any decree of dissolution of marriage, decree of legal separation, order of paternity, qualified domestic relations order, or other child support order or order of modification, except by reference to a separate Appendix 4, 5, or 8 document. Where the court finds that an order, judgment, or decree must contain Social Security numbers or other personal information stated in § 6-1464(A), the court shall have the original order sealed and provide in the case file a redacted version of the order for public view.

   (E) No exhibit used at trial shall contain a complete account number for any financial accounts or debts of any party. The same shall be redacted by the person offering the exhibit to the extent necessary to protect the information from misuse. By agreement of the parties, or as directed by the court, financial account information shall be identified in all pleadings, other documents and court orders, judgments, or decrees in such a manner as the parties, counsel, court, and jury may be able to distinguish information between similar accounts or debts, or as may be necessary to establish relevance to the matter being litigated.

   (F) The name, birth date, gender, and Social Security number information of parties sought to be protected by this rule may be furnished to the clerk of the court by the parties prior to issuance of any order or decree. This information shall be furnished by submitting the form provided in Appendix 4, 5, or 8. Protection of this information shall be as set forth in § 6-1464(B). Where a party or counsel is required by statute or rule to furnish information identified in § 6-1464(A) to a court or clerk of the court but such information is not required to be filed, the clerk of the court shall not place such information in the court file or allow such information to be accessible to the public.

   (G) The responsibility for redacting personal and financial data set forth in § 6-1464(A) rests solely with counsel and the parties. The clerk of the court shall not be required to review documents for compliance with this rule. If a clerk of the court identifies a violation of this rule, the clerk may, at his or her option, provide a redacted document for public access. However, the clerk electing to provide a redacted copy for public access shall maintain the original document without any alterations thereof, which document shall only be available to the court and the parties or the parties' counsel.

Rule 64 adopted April 16, 2008. Renumbered and codified as § 6-1464, effective July 18, 2008. § 6-1464 amended September 24, 2008; § 6-1464(B) and (F) amended January 27, 2010; § 6-1464 amended July 13, 2010; § 6-1464(B) amended May 16, 2012; § 6-1464 amended February 27, 2013; § 6-1464(B)-(D) and (F) amended August 28, 2013, effective September 1, 2013; § 6-1464(H) adopted November 13, 2019, effective April 1, 2020; § 6-1464 amended June 9, 2021, effective January 1, 2022; § 6-1464 amended November 17, 2021, effective January 1, 2022.

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§ 6-1465. Bankruptcy; effect on pending cases; disbursing funds.

§ 6-1465. Bankruptcy; effect on pending cases; disbursing funds.

   (A) Civil Cases in Which a Party Has Been Named as a Debtor in a Voluntary or Involuntary Bankruptcy Petition. In any civil case pending before this court in which a party has been named as a debtor in a voluntary or an involuntary bankruptcy petition, a Suggestion of Bankruptcy petition and either (1) a certified copy of the bankruptcy petition, (2) a copy of the bankruptcy petition bearing the filing stamp of the clerk of the bankruptcy court, or (3) a copy of a "Notice of Bankruptcy Case Filing" generated by the Bankruptcy Court's electronic filing system shall be filed by the party named as a debtor or by any other party with knowledge of the bankruptcy petition. Upon the filing of the Suggestion of Bankruptcy and one of the three bankruptcy documents noted immediately above, no further action will be taken in the case by the court or by the parties until it can be shown to the satisfaction of the court that the automatic stay imposed by 11 U.S.C. § 362 does not apply or that the automatic stay has been terminated, annulled, modified, or conditioned so as to allow the case to proceed. Such a showing shall be made by motion.

   (B) Request for Disbursements of Funds or Distribution of Property of or to a Party Named as a Debtor in a Bankruptcy Proceeding. In any civil case before the court in which a Suggestion of Bankruptcy and one of the three bankruptcy documents noted in § 6-1465(A) have been filed, no request for a disbursement of funds or distribution of property of or to a party named as a debtor shall be made, and no order disbursing funds or distributing property of or to a party named as a debtor will be entered. A request for disbursement of funds or distribution of property may be made after a showing, satisfactory to the court, that such funds or property has been abandoned by the trustee in bankruptcy or that the funds or property has been exempted by the debtor in the bankruptcy proceedings or that the party named as the debtor in the bankruptcy petition, rather than the trustee in bankruptcy, is otherwise entitled to disbursement of such funds or distribution of such property. Such a showing shall be made by affidavit.

Rule 64(A) and (B) amended October 23, 2002; Rule 64 renumbered to Rule 65 April 15, 2008. Renumbered and codified as § 6-1465, effective July 18, 2008.

 

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§ 6-1466. Protection of personal and financial information in criminal records.

§ 6-1466. Protection of personal and financial information in criminal records.

   The following privacy rules shall apply to all pleadings and documents filed in all criminal actions in the county courts of Nebraska.

   (A) Redacted Filings. In any filing with the court that contains an individual's Social Security number; a taxpayer identification number; a birth date; the name of an individual known to be a minor; or a financial account number, a party or nonparty making the filing may include only, unless otherwise ordered by the court:

   (1) a reference to Social Security number or taxpayer identification number (no digits);

   (2) the year of the individual's birth;

   (3) a minor child's initials;

   (4) the last four digits of a financial account number.

   (B) Exemptions. The redaction requirement does not apply to the following:

   (1) the date of birth of a defendant or person subject to detention;

   (2) the name of a defendant or person subject to detention;

   (3) a financial account number or real property address that identifies the account or property allegedly subject to forfeiture in a forfeiture proceeding;

   (4) the record of an administrative or agency proceeding;

   (5) the record of a court or tribunal, if that record was not subject to this rule when originally filed;

   (6) a filing covered by § 6-1466(D).

   (C) Victim Information. Personal identifying information, other than a victim's name, shall be prevented from being disclosed on pleadings and documents filed in criminal actions that may be available to the public. Victims eligible for protection are defined in Neb. Rev. Stat. § 29-119. The Crime Victim Information Form, as set forth in Appendix 10 shall:

   (1) be completed by the County Attorney (or deputy) at initial filing;

   (2) be separately tendered with any such pleading or other document, pursuant to Neb. Ct. R. § 2-210;

   (3) always have the following language visible, "THIS DOCUMENT IS CONFIDENTIAL AND SHALL NOT BE PART OF THE COURT FILE OR PROVIDED TO THE PUBLIC PURSUANT TO N.R.S.81-1848." The clerk of the court shall keep the document separate from the case file but accessible to the judges and court staff. The data contained therein may be reproduced or stored in JUSTICE or other court case management system. Such document, image, or data shall be electronically marked and shall not be accessible or viewable by the public.

   The personal identifying information identified in Crime Victim Information Form, Appendix 10, shall not be included in any court order or judgment.

   (D) Filings Made Under Seal. The court may, on its own motion or for good cause shown, order that a filing be made under seal without redaction. See Neb. Ct. R. § 2-210. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

   (E) Protective Orders. For good cause, the court may by order in a case:

   (1) require redaction of additional information; or

   (2) limit or prohibit a nonparty's access to a document filed with the court.

   (F) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court shall retain the unredacted copy as part of the record, under seal. The person making the filing shall follow the procedures set forth in § 2-210.

   (G) Option for Filing a Reference List. A filing that contains information set forth as provided by § 6-1466(A) may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The reference list shall be filed under seal and may be amended as of right. The court shall retain the reference list as part of the record, under seal. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information as stated on the reference list.

   (H) The responsibility for redacting information set forth in § 6-1466(A) rests solely with counsel of record. The clerk of the court shall not be required to review documents for compliance with this rule. If a clerk of the court identifies a violation of this rule, the clerk may, at his or her option, provide a redacted document for public access. However, the clerk electing to provide a redacted copy for public access shall maintain the original document without any alterations thereof, which document shall only be available to the court and to the parties or counsel of record.

§ 6-1466 adopted February 27, 2013; § 6-1466 amended September 16, 2015; § 6-1466 amended June 9, 2021, effective January 1, 2022; § 6-1466 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 6-1467. Appointment of counsel in criminal cases.

§ 6-1467. Appointment of counsel in criminal cases.

   (A) Every judicial district shall have a transparent process for appointment of counsel for indigent defendants as provided in Neb. Rev. Stat. §§ 29-3901 to 29-3908.

   (B) On or before January 1, 2015, the county court and district court judges of each judicial district shall adopt a local rule for the judicial district regarding appointment of counsel in criminal cases. Such local rule shall be made public and shall include, but not be limited to:

   (1) Provision for maintenance of a list of all licensed attorneys who may be expected to accept appointments in criminal cases in the judicial district, and information on obtaining such list from the court;

   (2) The judicial district's process for appointments under Neb. Rev. Stat. §§ 29-3901 to 29-3908; and

   (3) Information as to how an attorney may be added to or, if permitted, removed from the court-appointed attorney list.

   (C) Such local rule shall be governed by § 6-1448.

§ 6-1467 adopted February 12, 2014.

 

unanimous

§ 6-1468. Practice standards for guardians ad litem for juveniles in juvenile court proceedings in county courts.

§ 6-1468. Practice standards for guardians ad litem for juveniles in juvenile court proceedings in county courts.

   (A) Purpose.

   The purpose of these practice standards is to ensure that the legal and best interests of juveniles in dependency and abuse/neglect proceedings initiated under the Nebraska Juvenile Code are effectively represented by their court-appointed guardians ad litem. These practice standards are also intended to ensure that such interests of juveniles involved in delinquency, status offense, or other proceedings initiated under the Nebraska Juvenile Code are effectively protected when a guardian ad litem has been appointed.

   (B) Appointment.

   (1) In accordance with the Nebraska Juvenile Code, specifically Neb. Rev. Stat. § 43-272(3), only a lawyer duly licensed by the Nebraska Supreme Court may be appointed to serve as a guardian ad litem for a juvenile.

   (2) When feasible, the duties of a guardian ad litem should be personal to the appointed lawyer and should not normally be delegated to another person or lawyer.

   (3) Any lawyer who serves as a guardian ad litem should fulfill the training requirements described in the Nebraska Supreme Court Rule Regarding Guardian Ad Litem Training for Attorneys.

   (C) Role of Guardian Ad Litem.

   (1) Neb. Rev. Stat. § 43-272(3) authorizes a guardian ad litem in juvenile proceedings to fulfill a "dual role" with respect to the juvenile, that is, to serve as:

   (a) An advocate for the juvenile who is deemed as the parent of the juvenile and charged with a duty to investigate facts and circumstances, determine what is in the juvenile's best interests, report to the court and make recommendations as to the juvenile's best interests, and take all necessary steps to protect and advance the juvenile's best interests; and

   (b) Legal counsel for the juvenile.

   (2) Where a lawyer has already been appointed to represent the legal interests of the juvenile, for example in a delinquency case, another lawyer appointed to serve as a guardian ad litem for such juvenile shall function only in a single role as guardian ad litem for the juvenile concerning the juvenile's best interests, and shall be bound by all of the duties and shall have all of the authority of a guardian ad litem, with the exception of acting as legal counsel for the juvenile.

   (3) Accordingly, the following shall apply:

   (a) In serving as advocate for the juvenile to protect his or her best interests, the guardian ad litem shall make an independent determination as to the juvenile's best interests, by considering all available information and resources. The guardian ad litem's determination as to best interests is not required to be consistent with any preferences expressed by the juvenile.

   (b) Upon making such determination, the guardian ad litem shall make such recommendations to the court and shall take the necessary actions to advocate and protect the best interests of the juvenile.

   (c) As legal counsel for the juvenile, the guardian ad litem shall be entitled to exercise and discharge all prerogatives to the same extent as a lawyer for any other party in the proceeding.

   (d) Where the juvenile expresses a preference which is inconsistent with the guardian ad litem's determination of what is in the best interests of the juvenile, the guardian ad litem shall assess whether there is a need to request the appointment of a separate legal counsel to represent the juvenile's legal interests in the proceeding. In making such assessment, the guardian ad litem shall consider:

   (i) The juvenile's age,

   (ii) The juvenile's capacity,

   (iii) The juvenile's level of maturity, and

   (iv) The nature of the inconsistency between the juvenile's expressed preference and the guardian ad litem's determination as to the juvenile's best interests.

   (e) After making such assessment, the guardian ad litem shall request the court to make a determination whether special reasons exist for the court to appoint separate legal counsel to represent the legal interests of the juvenile where the guardian ad litem determines all of the following:

   (i) That the juvenile's expressed preference represents a communication that is made by a juvenile of sufficient age, capacity, and maturity;

   (ii) That the juvenile's expressed preference is of significance to other matters or issues in the case affecting the juvenile, and is within the bounds of law and reality; and

   (iii) That the guardian ad litem believes that it would be a conflict of interest for the guardian ad litem to continue to act as legal counsel for the juvenile in light of the preference expressed by the juvenile.

   (f) In any situation where the guardian ad litem has been appointed to represent more than one juvenile within the same case, the guardian ad litem shall ascertain throughout the case whether the guardian ad litem's advocacy of the legal and best interests of any one juvenile would be adverse to or conflict with the legal and best interests of any other juvenile represented by the same guardian ad litem. Where the guardian ad litem reasonably believes that to continue as guardian ad litem for all of the juveniles would be problematic in this specific regard, the guardian ad litem shall apply to the court for the appointment of a separate guardian ad litem and/or legal counsel for the juvenile(s). Where any juvenile has expressed a preference or position regarding a certain matter or issue, the guardian ad litem shall utilize the standards set forth in § 6-1468(C)(3)(e) above.

   (g) If the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the juvenile's legal interests. The guardian ad litem shall continue to advocate and protect the juvenile's social and best interests as defined under the Nebraska Juvenile Code.

   (D) Authority of Guardian Ad Litem.

   (1) Access to information and juvenile.

   (a) The guardian ad litem is entitled to receive all pleadings; notices, to include timely notices of change of placement; and orders of the court filed in the proceeding, and should make reasonable efforts to obtain complete copies of the same.

   (b) The guardian ad litem is entitled to receive copies of all case plans and court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Office, and any Court Appointed Special Advocate (CASA), as well as reports, summaries, evaluations, records, letters, and documents prepared by any other provider which the guardian ad litem deems relevant to the best interests or legal rights of any juvenile represented by the guardian ad litem. Where these documents are not provided as a matter of course to the guardian ad litem, they shall be provided upon the request of the guardian ad litem.

   (c) The guardian ad litem, standing in lieu of the parent for a protected juvenile who is the subject of a juvenile court petition shall also have the same right as the juvenile's legal guardian to (1) obtain information from all professionals and service providers, including, but not limited to, verbal communications and written reports, summaries, opinions, and evaluations, and information regarding the juvenile's placement; and (2) to receive notice of and participate in all conferences, staffings or team meetings, and hearings relating to the juvenile's health, education, placement, or any other matter which in the opinion of the guardian ad litem is relevant to, or which affects, the best interests or legal rights of the juvenile.

   (d) The guardian ad litem is authorized to communicate with and respond to inquiries for information regarding the juvenile made by the Nebraska Foster Care Review Office, the Department of Health and Human Services case manager, or CASA.

   (e) The guardian ad litem is authorized to make announced or unannounced visits to the juvenile at his or her home or placement or at any location at which the juvenile may be present.

   (f) The court should facilitate the guardian ad litem's authority to obtain information regarding the juvenile by including the following language, or language substantially similar thereto, in its initial order of appointment of the guardian ad litem:

   "The guardian ad litem appointed herein by this Court shall have full legal authority to obtain all information which relates to the above-named juvenile.

   "To that end, the guardian ad litem is hereby authorized by this Court to communicate verbally or in writing with any agency, organization, person, or institution, including, but not limited to, any school personnel, counselor, or drug or alcohol treatment provider; or police department or other law enforcement agency; any probation, parole, or corrections officer; any physician, psychiatrist, psychologist, therapist, nurse, or mental health care provider; or any hospital, clinic, group home, treatment group home, residential or mental health treatment facility, or youth rehabilitation treatment center; any social worker, case manager, or social welfare agency, including the Nebraska Department of Health and Human Services and its employees and administrators; any person or agency or institution charged with supervising visitation; or any family member, guardian, foster parent, or any other person.

   "The guardian ad litem is further hereby authorized to obtain from all persons, organizations, or entities, including, but not limited to, those described in the paragraph above, all information, including, but not limited to, the inspection of, and obtaining of complete copies of records, reports, summaries, evaluations, correspondence, written documents, or other information, orally or in any media form, which relate to the above-named juvenile even if such information concerns his or her parents, or any other person or any situation that the guardian ad litem deems necessary in order to properly represent the juvenile's interests."

   (E) Duties of Guardian Ad Litem.

   (1) Consultation with juvenile.

   (a) The phrase "consultation with the juvenile," as used in the Nebraska Juvenile Code, generally means meeting in person with the juvenile, unless prohibited or made impracticable by exceptional circumstances, as set forth in § 6-1468(E)(1)(d) below.

   (b) The guardian ad litem should consult with the juvenile when reasonably possible and at those times and intervals as required by the Nebraska Juvenile Code.

   (c) In addition to the statutorily required intervals for consulting with the juvenile, when possible, the guardian ad litem should consult with the juvenile when:

   (i) The juvenile requests that the guardian ad litem meet with him or her;

   (ii) The guardian ad litem has received notification of any emergency, or other significant event or change in circumstances affecting the juvenile, including a change in the juvenile's placement; and

   (iii) Prior to any hearing at which substantive issues affecting the juvenile's legal or best interests are anticipated to be addressed by the court.

   (iv) The guardian ad litem should make every effort to see the juvenile in his or her placement at least once, with respect to each such placement.

   (d) Where an unreasonable geographical distance is involved between the location of the juvenile and the guardian ad litem, the guardian ad litem should explore the possibility of obtaining from the court an advance determination that the court will arrange for the payment or reimbursement of the guardian ad litem's reasonable expenses incurred in connection with the travel to meet with the juvenile.

   (e) "Exceptional circumstances" generally include, but are not limited to, those situations where an unreasonable geographical distance is involved between the location of the guardian ad litem and the juvenile. Where such exceptional circumstances exist, the guardian ad litem should attempt consultation with the juvenile by other reasonable means, including, but not limited to, telephonic means, assuming that the juvenile is of sufficient age and capacity to participate in such means of communication and there are no other barriers preventing such communication. Where consultation by telephonic means is also not feasible, the guardian ad litem should seek direction from the court as to any other acceptable method by which to accomplish such consultation with the juvenile.

   (2) Inquiry and consultation with others.

   (a) The guardian ad litem is required to make inquiry of the juvenile's caseworker, foster parent, or legal custodian and any other person directly involved with the juvenile who may have knowledge about the case or the development of the juvenile. The guardian ad litem should also make inquiry of any other persons who have knowledge or information relevant to the juvenile's best interests. The guardian ad litem may obtain such information through the means of direct inquiry, interview, or the discovery process.

   (b) The guardian ad litem has a duty to read and comprehend the court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Office, the CASA volunteer, and from all other persons or providers assigned to the case who prepare and present such reports to the court.

   (3) Report and recommendations to court.

   (a) The guardian ad litem has a duty to make written recommendations to the court in the form of a report regarding the temporary and permanent placement of the protected juvenile. Because the guardian ad litem is also required by statute to consider any other information "as is warranted by the nature and the circumstances of the particular case," the guardian ad litem's report should include written recommendations to the court regarding any other matter that affects or would affect the legal and best interests of the protected juvenile.

   (b) The guardian ad litem is required to submit a written report to the court at every dispositional hearing and review hearing. The information contained in the report of the guardian ad litem should include, but is not limited to, the following information:

   (i) Dates of, and description of, the type of contact and communication with the juvenile;

   (ii) Listing of documents reviewed;

   (iii) The guardian ad litem's concerns regarding any specific matters or problems which, in the opinion of the guardian ad litem, need special, further, or other attention in order to protect or facilitate the juvenile's legal and best interests; and

   (iv) The guardian ad litem's assessment of and recommendations regarding the juvenile's placement in light of his or her needs and legal and best interests.

   (c) To assist the guardian ad litem in preparing the written report, the guardian ad litem shall use the "Report of Guardian Ad Litem" form found at Appendix 9.

   (4) Participation in court proceedings.

   (a) The guardian ad litem shall attend all hearings unless expressly excused by the court.

   (b) The guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.

   (c) Where the guardian ad litem is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such guardian ad litem may make proper arrangements for another attorney to attend the hearing as long as no other party objects and as long as the hearing is not anticipated to be a contested evidentiary hearing. In such a situation, the guardian ad litem does not need to be excused from attendance at the hearing.

   (d) The guardian ad litem should advocate for the juvenile to be present at all court hearings as appropriate and take steps where necessary to ensure such attendance on the part of the juvenile.

   (5) Duty to provide quality representation.

   (a) Any attorney appointed by the court to serve as a guardian ad litem for a juvenile, or to provide guardian ad litem services for juveniles, is expected to provide quality representation and advocacy for the juveniles whom he or she is appointed to represent, throughout the entirety of the case.

   (b) To that end, a guardian ad litem should not accept workloads or caseloads that by reason of their excessive size or demands, including, but not limited to, factors such as the number of children represented at any given time, interfere with or lead to the breach of the professional obligations or standards required to be met by a guardian ad litem by statute or by court rules.

   (c) Attorneys should not accept caseloads or appointments to serve as a guardian ad litem or to provide guardian ad litem services that are likely to, in the best professional judgment of the appointed attorney, lead to the provision of representation or service that is ineffective to protect and further the interests of the juvenile, or likely to lead to the breach of professional obligations of the guardian ad litem.

   (F) Termination of Authority of Guardian Ad Litem.

   (1) The authority of the guardian ad litem shall commence upon appointment by the court and shall continue in that case until such time as the court terminates its jurisdiction.

   (2) The guardian ad litem may voluntarily withdraw from representation in any case where the guardian ad litem files a motion to withdraw, and the court, in its discretion, enters a corresponding order granting such withdrawal.

   (3) A guardian ad litem may be removed from a case by the court for cause, where the court finds that the guardian ad litem's performance is inadequate, that the guardian ad litem has substantially failed to discharge duties or act to protect the best interests of the juvenile(s) for whom the guardian ad litem was appointed, or that any other factor or circumstance prevents or substantially impairs the guardian ad litem's ability to fairly and fully discharge his or her duties. In determining whether removal of the guardian ad litem is warranted in a particular case, the court should assess the guardian ad litem's performance under the requirements and standards of practice imposed upon a guardian ad litem by both the Nebraska Juvenile Code as well as by § 6-1468.

   (G) Compensation for Guardians Ad Litem Not Covered by Multi-Case Contract.

   (1) The Supreme Court may establish a statewide uniform minimum hourly rate of compensation for guardians ad litem.

   (2) Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attorney spends traveling in fulfilling his or her obligations as the guardian ad litem.

   (3) Guardians ad litem shall be compensated for all hours reasonably necessary to provide quality legal representation as documented in fee applications.

§ 6-1468 adopted June 24, 2015; § 6-1468 amended November 17, 2021, effective January 1, 2022.

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§ 6-1469. Practice standards for guardians ad litem for proceedings under the Nebraska Probate Code.

§ 6-1469. Practice standards for guardians ad litem for proceedings under the Nebraska Probate Code.

   (A) Purpose and Definitions.

   (1) The purpose of these practice standards is to ensure that the best interests of persons under disability or alleged disability who come before the court in proceedings under the Nebraska Probate Code are effectively represented by their court-appointed guardian ad litem. The appointment of a guardian ad litem under these proceedings does not remove the right to separate legal counsel as provided in the Nebraska Probate Code.

   (2) Where the word "person" is used in these standards, the term shall include the following: allegedly incapacitated person, incapacitated person, ward, protected person, minor, or any other person for whom a guardian ad litem may be appointed under the Nebraska Probate Code.

   (B) Appointment.

   (1) Under Neb. Rev. Stat. § 30-4202, only a lawyer duly licensed by the Nebraska Supreme Court may be appointed to serve as a guardian ad litem in proceedings under the Nebraska Probate Code.

   (2) When feasible, the duties of a guardian ad litem should be personal to the appointed lawyer and should not normally be delegated to another lawyer.

   (3) Prior to appointment as guardian ad litem, the lawyer shall fulfill the training requirements as set forth in section (G) of these standards.

   (4) A guardian ad litem appointed pursuant to the Nebraska Probate Code may act as his or her own lawyer, and as a lawyer for the person who is the subject of the proceeding unless such person obtains his or her own lawyer, or requests separate counsel be appointed.

   (C) Role of Guardian Ad Litem.

   (1) Under Neb. Rev. Stat. § 30-4203(2), a guardian ad litem may perform those duties normally performed by a lawyer, including:

   (a) Conducting discovery, presenting witnesses, cross-examining witnesses, presenting evidence, filing motions, and appealing any decisions regarding the person for whom he or she has been appointed;

   (b) Entering into stipulations and agreements concerning such person deemed by the guardian ad litem to be in such person's best interests.

   (2) Where a lawyer has already been or is appointed to represent the legal interests of the person, or where such person has hired or does hire his or her own lawyer, the guardian ad litem shall function only to advocate for the best interests of the person.

   (3) Accordingly, the following shall apply:

   (a) In serving as advocate for the person's best interests, the guardian ad litem shall make an independent determination by considering all available information and resources. Such determination is not required to be consistent with any preferences expressed by the person.

   (b) Upon making such determination, the guardian ad litem shall make such recommendations to the court and shall take the necessary actions to advocate and protect the best interests of the person.

   (c) Where the person expresses a preference which is inconsistent with the guardian ad litem's determination of best interests, the guardian ad litem shall immediately inform the court that a conflict of interest is present and request the court make a determination whether special reasons exist for the court to appoint separate legal counsel to represent the person's legal interests in the proceeding. The guardian ad litem may also request counsel, and the court may appoint counsel for the guardian ad litem pursuant to § 30-4202.

   (d) If the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the person's legal interests. The guardian ad litem shall continue to advocate the person's best interests and defend the person's social, economic, and safety interests in compliance with Neb. Rev. Stat. § 30-4203(1)(b) and (f).

   (D) Authority of Guardian Ad Litem.

   (1) A guardian ad litem shall have access to all information as provided by Neb. Rev. Stat. §§ 30-4203 and 30-4204, and any other information by order of the court.

   (2) A guardian ad litem shall have access to the person for whom the guardian ad litem has been appointed, including announced or unannounced visits to the person at his or her home or at any location at which such person may be present.

   (3) Pursuant to Neb. Rev. Stat. § 30-4208, a guardian ad litem shall not have indirect or direct physical control over a person for whom the guardian ad litem has been appointed, nor shall a guardian ad litem have indirect or direct control over the property or affairs of a person for whom the guardian ad litem has been appointed.

   (4) The court should facilitate the guardian ad litem's authority to obtain information and access to the person by court order.

   (E) Duties of Guardian Ad Litem.

   (1) The guardian ad litem shall fulfill all duties outlined by Neb. Rev. Stat. §§ 30-4203(1) and 30-4206(1) and any other duties as directed by court order.

   (2) Consultation with the person.

   (a) The guardian ad litem should further consult with the person for whom he or she was appointed when reasonably possible and at those times and intervals as required by the Nebraska Probate Code.

   (b) Where an unreasonable geographical distance is involved between the location of the person and the guardian ad litem, the guardian ad litem should explore the possibility of obtaining from the court an advance determination that the court will arrange for the payment or reimbursement of the guardian ad litem's reasonable expenses incurred in connection with the travel to meet with the person.

   (3) Reports and recommendations to the court.

   (a) The guardian ad litem shall submit a written report to the court as required by Neb. Rev. Stat. § 30-4205 or otherwise ordered by the court. The report shall be provided to the court at least one (1) week prior to the hearing. A copy of the report shall be provided to all interested persons.

   (b) To assist the guardian ad litem in preparing the written report, the guardian ad litem shall use the "Report of Guardian Ad Litem" forms found on the Nebraska Supreme Court website. See Appendices 11 and 12.

   (4) Participation in court proceedings.

   (a) The guardian ad litem shall attend all hearings unless expressly excused by the court.

   (b) The guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.

   (c) Where the guardian ad litem is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such guardian ad litem may make proper arrangements for another attorney to attend the hearing as long as no other party objects and as long as the hearing is not anticipated to be a contested evidentiary hearing. In such a situation, the guardian ad litem does not need to be excused from attendance at the hearing.

   (5) Duty to provide quality representation.

   (a) Any attorney appointed by the court to serve as a guardian ad litem is expected to provide quality representation and advocacy for the person throughout the entirety of the case.

   (b) Attorneys should not accept caseloads or appointments to serve as a guardian ad litem or to provide guardian ad litem services that are likely to, in the best professional judgment of the appointed attorney, lead to the provision of representation or service that is ineffective to protect and further the interests of the person, or likely to lead to the breach of professional obligations of the guardian ad litem.

   (F) Duration of Appointment.

   Under Neb. Rev. Stat. § 30-4209, the authority of the guardian ad litem shall commence upon appointment by the court and shall continue in that case until such time as the court allows the guardian ad litem to withdraw, terminates the appointment of the guardian ad litem, removes or suspends the guardian ad litem, or appoints the guardian ad litem to serve in another capacity.

   (G) Education Requirements.

   To be considered a candidate for appointment as a guardian ad litem in a probate proceeding, an attorney shall have completed 6 hours of specialized training provided online by the Administrative Office of the Courts Judicial Branch Education Division prior to an initial appointment. Thereafter, in order to maintain eligibility to be appointed and to serve as a guardian ad litem, an attorney shall complete 1 hour of specialized training per year as provided by the Administrative Office of the Courts Judicial Branch Education Division. Courts shall appoint attorneys trained under these standards in all cases when available; provided, however, that if the judge determines that an attorney with the training required herein is unavailable within the area, he or she may appoint an attorney without such training and the attorney must agree to complete the 6-hour online training within 7 days of the appointment.

§ 16-1469 adopted January 25, 2017.

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§ 6-1470. Practice guidelines for attorneys in juvenile court.

§ 6-1470. Practice guidelines for attorneys in juvenile court.

   (A) General Purpose, Objectives, and Scope.

   (1) The purpose of these guidelines is to ensure high quality legal representation by all attorneys appearing before the juvenile court. These practice guidelines do not replace ethical obligations under the Nebraska Rules of Professional Conduct, Neb. Ct. R. of Prof. Cond. § 3-501.0 et seq., and are meant to set out a minimum level of competent practice as guidelines for attorneys appearing before the juvenile court. All attorneys shall discharge their duties in accordance with the Nebraska Rules of Professional Conduct.

   (2) These guidelines acknowledge that the goal of juvenile court is to ensure the rights of juveniles; to promote the best interests, safety, permanency of children, and rehabilitation of families; and to provide fair hearings where parties' rights are recognized and enforced, consistent with Neb. Rev. Stat. § 43-246.

   (3) These guidelines are meant to be read in conjunction with Neb. Ct. R. §§ 6-1468 and 6-1705, practice standards for guardians ad litem for juveniles in juvenile court proceedings, and are not intended to replace or supersede them.

   (B) Responsibilities of Attorneys to Ensure High Quality Legal Representation.

   (1) Defense counsel for juveniles.

   (a) Counsel should elicit the juvenile's point of view and encourage full participation.

   (b) Counsel should use developmentally appropriate language to advise the juvenile in all matters.

   (c) Counsel should consult with the juvenile prior to all hearings, including detention hearings.

   (d) Before the first appearance, the attorney should explain the purposes of the juvenile code, consequences of the court finding the allegations of the petition to be true, and rights advisory [Neb. Rev. Stat. § 43-249].

   (e) The attorney should provide the client with copies of all pleadings and orders in their case.

   (f) When appropriate, counsel should obtain records, including by means of issuing a subpoena, concerning the juvenile's mental health; educational background and/or abilities; documents detailing school achievement and discipline; positive community or extracurricular activities; employment; involvement in the child welfare system; and prior police and court involvement.

   (g) Using sound discretion, the attorney should review with his or her client contents of all reports, service plans, case documents, and other materials relevant to the proceedings, including those identified in section (f) and take steps to verify the veracity of facts contained therein.

   (h) Counsel shall communicate every plea offer extended to the juvenile and should obtain the juvenile's permission prior to discussing the plea offer with the juvenile's parent, guardian, or custodian.

   (i) Counsel should explain to the juvenile how and when to communicate with counsel during the hearing and appropriate behavior expected in a courtroom.

   (j) Counsel should present evidence of material defenses, which may include capacity based on age, and concepts of adolescent development.

   (k) Counsel should make reasonable efforts to obtain current information of potential services and placement options for the juvenile.

   (l) Counsel should explain the dispositional process and disposition alternatives with the juvenile. Counsel should obtain the juvenile's permission before discussing with the client's parent, guardian, or custodian the dispositional process and, if the juvenile's permission is obtained, counsel should inquire about the willingness of the parent, guardian, or custodian to support the juvenile's proposed disposition alternatives.

   (m) Counsel shall not recommend a disposition to the court without the juvenile's consent.

   (n) Counsel shall review the content of the predisposition investigation report with the juvenile prior to disposition.

   (o) Counsel should advise the juvenile concerning the disclosure of the juvenile's record and the legal mechanisms available to seal the record.

   (p) Counsel should assist in legal needs of the juvenile by providing zealous representation in all stages of the proceedings, all hearings and matters which include, but are not limited to, further disposition hearings; revocation hearings; modification of terms of probation hearings; hearings for the purpose of committing the client to the Youth Rehabilitation and Treatment Center; investigating safety and well-being complaints in institutions; and problems that may require a new placement option.

   (q) The potential for conflict of interest between an accused juvenile and his or parent, guardian, or custodian should be clearly recognized and acknowledged. All parties should be informed that the attorney is counsel for the juvenile and that in the event of disagreement between a parent, guardian, or custodian, and the juvenile, the attorney represents the interests of the juvenile. Further, meetings that include the parent, guardian, or custodian may not provide the protection of privilege to the juvenile’s statements to his or her attorney.

   (2) Prosecuting attorneys.

   (a) The primary duty of the prosecutor is to seek justice while fully and faithfully representing the interests of the State. While the safety and welfare of the community, the victim(s), and juvenile(s) under Neb. Rev. Stat. § 43-247(3)(a) are the primary concerns, prosecuting attorneys should consider the special circumstances and rehabilitative potential of the juvenile in delinquency, status offense, or Neb. Rev. Stat. § 43-247(3)(c) cases, or of a parent, guardian, or custodian in a Neb. Rev. Stat.§ 43-247(3)(a) case to the extent they can do so without unduly compromising their primary concern.

   (b) In determining whether to file formally or to offer pretrial diversion or mediation in cases under Neb. Rev. Stat. § 43-247(1), (2), (3)(b), or (4), the prosecutor should follow Neb. Rev. Stat. §§ 43-274 and 43-276.

   (c) Prosecutors should make transfer motion decisions on a case-by-case basis and take into account the individual factors set forth in Neb. Rev. Stat. § 43-276.

   (d) The decision to enter into a plea agreement should be governed by the interests of justice and Neb. Rev. Stat. § 43-246. The prosecutor should also consider the juvenile's, parent's, guardian's, or custodian's potential for rehabilitation.

   (e) For dispositions, the prosecutor should make a recommendation consistent with community safety after reviewing reports prepared by prosecutorial staff, the Department of Health and Human Services, the probation department, and others. In making a recommendation, the prosecutor should seek the input of the victim(s), or juvenile(s) in a Neb. Rev. Stat. § 43-247(3)(a) case, and consider the rehabilitative needs of the juvenile in delinquency, status offense, or Neb. Rev. Stat. § 43-247(3)(c) cases, or parent, guardian, or custodian in Neb. Rev. Stat. § 43-247(3)(a) cases, provided that they are consistent with community safety and welfare.

   (f) The prosecutor should consider the victim's input at all phases of the case. At the dispositional hearing, the prosecutor should make the court aware of the impact of the juvenile's conduct on the victim and the community. The prosecutor should also be required to keep victims informed at all stages of the proceedings if requested by the victim.

   (3) Attorneys that represent a parent, guardian, or custodian in juvenile court.

   (a) The attorney should explain the rights of the parent, guardian, or custodian to information and decisionmaking regarding the child(ren) while the child(ren) is under the jurisdiction of the juvenile court.

   (b) The attorney should provide the client with copies of all petitions, court orders, service plans, and other relevant case documents, including reports regarding the child(ren) except when expressly prohibited by law, rule, or court order. The attorney should review with his or her client, and take reasonable steps to verify the veracity of facts contained in all reports, service plans, and case documents relevant to their proceedings.

   (c) The attorney should be aware of the unique issues of an incarcerated parent, guardian, or custodian.

   (d) The attorney should be aware of the client's mental health status and be prepared to assess whether the parent, guardian, or custodian can assist with the case.

   (e) The attorney should advocate for appropriate services for the parent, guardian, or custodian; this could include requesting a guardian ad litem for the client.

   (f) The attorney should consider and discuss the possibility of appeal with the parent, guardian, or custodian.

   (g) The attorney should conduct discovery as necessary.

   (4) Agency and tribal attorneys.

   (a) Agency or tribal attendance at hearings is not required for all juvenile cases in which the agency or tribe is an interested party.

   (b) Once counsel for the agency or tribe has entered an appearance, the agency's or tribe's counsel is entitled to recognition as an attorney of record in the case. In addition, the agency's or tribe's counsel is responsible for identifying an address for which all pleadings, documents, exhibits, and other correspondence are to be sent.

   (c) The agency's or tribe's attorney role is to represent the agency or tribe and advocate for the agency's or tribe's position in a way that is consistent with agency and tribal standards.

   (d) The agency or tribal attorneys, or tribal representatives (see Neb. Rev. Stat. § 43-1504(3)) may offer evidence, file motions, and request hearings as necessary.

   (C) Duties of Attorneys.

   (1) Consultation with client.

   (a) The phrase "consultation with client" generally means meeting in person unless prohibited or made impracticable by exceptional circumstances as set forth herein.

   (b) Attorneys should consult with their client as soon as possible after being retained or appointed and as necessary thereafter when reasonably possible and at all those times and intervals as required by the Nebraska Juvenile Code.

   (c) Contact through distance technology may be used if in person contact is prohibited by distance and/or any other reason or circumstance that otherwise inhibits in person communication.

   (d) Where an unreasonable geographical distance is involved between the location of the client and the appointed attorney, the appointed attorney should explore the possibility of obtaining from the court an advance determination that the court will approve payment or reimbursement of the attorney's reasonable expenses, consistent with court appointment fees and expense rate in that judicial district, in connection with the travel to meet with the client.

   (2) Participation in court hearings.

   (a) Prosecutors, attorneys for juveniles, parents, guardians, and custodians should attend all court hearings unless excused by the court. All other attorneys should attend as requested by their client.

   (b) When feasible, the duties of appointed counsel should be personal to the attorney and should not normally be delegated to another person or lawyer. Where an attorney is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such attorney should make proper arrangements for another attorney to attend the hearing. It is the responsibility of the attorney making such arrangements to ensure that the attorney who assumes his or her duties is qualified as provided by these guidelines.

   (c) Attorneys representing juveniles, parents, guardians, or custodians should advocate for their clients to be present at all court hearings as appropriate and should take steps where necessary to ensure such attendance on the part of the client.

   (3) Duty to provide quality representation.

   (a) Any attorney appearing in juvenile court is expected to acquire sufficient working knowledge of the Nebraska Juvenile Code and all relevant federal laws, state laws, regulations, policies, and rules.

   (b) Attorneys should not accept caseloads that are likely to lead to representation that is ineffective to protect the interests of their client or likely to breach the professional obligations of the attorney.

   (c) Attorneys should attend and participate in case planning, family group decisionmaking, and other meetings a client may have with the child welfare agency. In the event it is impracticable to attend the meeting, the attorney should timely follow up with applicable professionals involved.

   (d) Counsel should inform the client of the right to appeal a final order and explain the consequences of the decision to waive an appeal.

   (D) Termination of Authority.

   (1) The authority of the attorney shall commence upon appointment or entry of appearance by retained counsel, and shall continue until such time as the court terminates its jurisdiction, or there are no scheduled review hearings in court, or the court otherwise discharges the attorney.

   (2) An attorney may withdraw from representation when the attorney files a motion to withdraw, and the court, in its discretion, enters a corresponding order granting such withdrawal. Termination of representation may only be sought or granted if it is in compliance with Neb. Ct. R. § 3-501.16.

   (3) Judges are encouraged to make inquity of appointed attorneys that fail to fully comply with these guidelines. An appointed attorney may be removed from a case for cause, where the court finds that the attorney's performance is inadequate, that the attorney has failed to discharge duties or to protect the interests of the client for whom the attorney was appointed, or that any other factor or circumstance prevents or substantially impairs the attorney's ability to fairly and fully discharge his or her duties.

   (E) Compensation for Court-Appointed Attorneys.

   (1) An attorney appointed by a court shall be paid at the hourly rate established by the court.

   (2) Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attorney spends traveling in fulfilling his or her professional obligations.

   (F) Education.

   (1) Appointed counsel. To be considered a candidate for appointment in a juvenile case under the Nebraska Juvenile Code for a juvenile, parent, guardian, or custodian, an attorney should have completed sufficient continuing legal education relating to the Nebraska Juvenile Code and practice in the Nebraska juvenile courts.

   (2) Retained or other counsel. Attorneys who are not appointed by the court to represent juveniles, parents, guardians, or custodians, and are either privately retained or represent the State, other agencies, or tribes, are encouraged to obtain education that furthers compliance with these guidelines and includes education regarding the Nebraska Juvenile Code or education related to the attorney's specific practice in the juvenile courts.

§ 6-1470 adopted September 27, 2017; § 6-1470 amended June 15, 2022.

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§ 6-1471. Summary Judgment Procedure.

§ 6-1471. Summary Judgment Procedure.

   (A) Moving Party's Materials in Support of Motion. When a motion for summary judgment or partial summary judgment is filed, the moving party must simultaneously file with the clerk and serve on all parties of record:

   (1) an Evidence Index in Support listing all evidence to be offered in support of the motion for summary judgment; and

   (2) an Annotated Statement of Undisputed Facts setting forth concise, numbered paragraphs reciting each proposed material fact as to which the moving party contends there is no genuine dispute, annotated by pinpoint citation to the supporting evidence in the Evidence Index in Support.

   Failure to submit such a Statement may constitute grounds for denial of the motion.

   (B) Opposing Party's Materials in Opposition. Each party opposing a motion for summary judgment or partial summary judgment must file with the clerk and serve on all parties of record:

   (1) an Evidence Index in Opposition listing all evidence to be offered in opposition to the motion for summary judgment; and

   (2) an Annotated Statement of Disputed Facts setting forth concise, numbered paragraphs reciting each proposed material fact of the moving party as to which the opposing party contends there is a genuine dispute, annotated by pinpoint citation to the supporting evidence in the Evidence Index in Opposition.

   Failure to submit such a Statement may constitute grounds for sustaining the motion.

   (C) For purposes of this rule, where competing motions are filed, a party shall be considered as the moving party regarding a motion or motions asserted by that party and as an opposing party regarding a motion or motions asserted by another party.

   (D) The assigned judge is expected to schedule deadlines for compliance with this rule and the summary judgment statutes so as to ensure a fair opportunity for all parties to present their evidence. The judge may, in the judge's discretion, extend any deadline for compliance with any requirement under this rule.

§ 6-1471 adopted September 5, 2018.

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§ 6-1472. Probable cause affidavits, orders for arrest without warrant, and orders for identification procedures under Neb. Rev. Stat. §§ 29-3301 through 29-3307.

§ 6-1472. Probable cause affidavits, orders for arrest without warrant, and orders for identification procedures under Neb. Rev. Stat. §§ 29-3301 through 29-3307.

   (A) Sworn testimony offered in support of judicial determinations of probable cause for persons arrested without warrant shall be in an affidavit or, with the consent of the court, submitted verbally and recorded. Sworn testimony offered in support of orders for identification procedures shall be in affidavit form pursuant to Neb. Rev. Stat. § 29-3303.

   (1) Sworn testimony submitted in an affidavit shall be filed with the court and shall be public record upon the filing of a criminal complaint, unless sealed by the judge upon request of either party or on the court’s own motion, citing specific good cause for sealing the information. A copy of the probable cause affidavit or record of verbal sworn testimony shall be provided to appointed or retained legal counsel for the defendant upon request.

   (2) Sworn testimony submitted verbally shall be recorded and the recordings maintained pursuant to Records Retention Schedule 18 for County Courts.

   (a) The recording or a transcript of the recording shall be public record upon filing of a criminal complaint unless ordered sealed by the judge citing specific cause for protecting the information.

   (b) Copies of the recording or a transcript of the recording shall be available pursuant to § 6-1405 unless the record is ordered sealed.

   (B) Judge’s orders under this rule shall be part of the court file and shall be public record upon the issuance of the order, unless sealed by the judge upon request of either party or on the court’s own motion, citing specific cause for sealing the information.

§ 6-1472 adopted January 23, 2019.

 

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§ 6-1473. Registration of foreign judgments; registration of Canadian judgments.

§ 6-1473. Registration of foreign judgments; registration of Canadian judgments.

   (A) Registration of foreign judgments from other United States jurisdictions. Upon the filing of a foreign judgment and affidavit as required by Neb. Rev. Stat. § 25-1587.04, the clerk shall, within 10 days of such filing, mail notice of the filing of the foreign judgment to the judgment debtor at the address provided within the affidavit.

   (B) Registration of Canadian money judgments. Upon receipt of a registration that includes the required documents and information as set forth in statute, any payment of the fee as for registration of a foreign judgment under § 25-1587.06, the clerk shall file the registration, assign a docket number, and enter the Canadian judgment in the court's docket.

§ 6-1473 adopted June 23, 2021, effective August 28, 2021. 

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§ 6-1474. Emergency Modified Court Operations.

§ 6-1474. Emergency Modified Court Operations.

   (A) On or before January 1, 2022, the county court, district court, and separate juvenile court judges within each judicial district shall jointly adopt a local rule setting out the procedures governing emergency modified court operations in their judicial district.

   (B) Such local rule shall include, but not be limited to:

   (1) Establishing criteria for how the judicial district will determine when emergency modified court operations should be implemented, and when normal court operations should resume;

   (2) Listing the stakeholders within the judicial district to include in planning and implementing any emergency modified court operations.

   (3) Identifying who within the judicial district will coordinate and facilitate communication with the group of justice stakeholders to plan and implement any emergency modified court operations plan;

   (4) Listing all mission essential functions to be considered and addressed in any emergency modified court operations plan; and

   (5) Identifying how court users and the public will be informed when emergency modified court operations are implemented and when they are discontinued.

   (C) Such local rule shall be governed by § 6-1448.

§ 6-1474 adopted November 24, 2021.

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§ 6-1475. Application of rules.

§ 6-1475. Application of rules.

   To the extent these rules are inconsistent with Neb. Ct. R. § 2-201 et seq. those rules govern cases filed electronically. Stated another way, if another court rule permits a paper filing, or references a paper filing, the provisions of Neb. Ct. R. § 2-201 et seq. still apply and require electronic filing and service by authorized users, and electronic notice by courts unless specifically excepted by Neb. Ct. R. § 2-201 et seq.

§ 6-1475 adopted June 9, 2021, effective January 1, 2022.

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§ 6-1476. Waiver of right to counsel in juvenile cases.

§ 6-1476. Waiver of right to counsel in juvenile cases.

   This rule provides a process to ensure that a juvenile has consulted with counsel, and if not, is provided with the opportunity to consult with counsel prior to the juvenile exercising his or her right to waive his or her right to counsel.

   At the first appearance, when the petition alleges the juvenile to be within the provisions of subdivision (1), (2), (3)(b), or (4) of Neb. Rev. Stat. § 43-247 and the juvenile appears without counsel, or expresses the desire to waive the right to counsel, the court shall explain to the juvenile that the juvenile has a right to consult with counsel prior to waiving his or her right to counsel. The court shall inquire if the juvenile consulted with counsel prior to the appearance. If the juvenile did not consult with counsel, the court shall inquire if the juvenile wishes to consult with counsel prior to waiving his or her right to counsel. If the juvenile did not consult with counsel and does not wish to consult with counsel, the court may accept the waiver, provided the waiver complies with Neb. Rev. Stat. § 43-3102. If the juvenile wishes to consult with counsel prior to waiving his or her right to counsel, the court shall recess or continue the proceeding for the limited purpose of consulting on the waiver of the right to counsel and, if appropriate, appoint counsel as provided in Neb. Rev. Stat. § 43-272, or otherwise provide the juvenile with the opportunity to consult with counsel.

§ 6-1476 adopted May 19, 2022, effective July 1, 2022.

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Article 15: Uniform District Court Rules of Practice and Procedure.

Article 15: Uniform District Court Rules of Practice and Procedure.

Rules 1 - 19 adopted May 24, 1995. Renumbered and codified as §§ 6-1501 - 6-1519, effective July 18, 2008.

Rules 22 - 32 (exclusive of Rule 21) adopted October 15, 1992; amended June 4, 2008, effective June 18, 2008. Renumbered and codified as §§ 6-1522 - 6-1532, effective July 18, 2008; amended and incorporated into § 6-1523 December 23, 2008.

Appendix 1 - Nebraska county attorney criminal homicide report form

Appendix 2 - Mandate: district court to county court

Appendix 3 - Personal and Financial Information (Distict Court - Civil)

Appendix 4 - Application for access to JUSTICE automation system

Appendix 5 - Victim Information

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Scope and effective date.

Scope and effective date.

   These rules become effective September 1, 1995, supersede all existing local rules of practice, and shall govern the procedures in the district courts of the State of Nebraska.

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§ 6-1501. Local rules.

§ 6-1501. Local rules.

   Each district court by action of a majority of its judges may from time to time recommend local rules concerning matters not covered by these rules and which are not inconsistent with any directive of the Nebraska Supreme Court or statutes of the State of Nebraska. Such recommended rules shall be submitted as provided in Neb. Ct. R. § 1-103(A). Such recommended rules shall become effective upon the approval of the Supreme Court, at which time they shall be published on the Supreme Court's website.

Rule 1 amended October 14, 1999; amended June 5, 2002. Renumbered and codified as § 6-1501, effective July 18, 2008; § 6-1501 amended September 7, 2022.

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§ 6-1502. Organization of the court.

§ 6-1502. Organization of the court.

   The court may divide itself into such divisions in each district as it deems necessary for the effective administration of justice and may elect a presiding judge if necessary from among its number.

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§ 6-1503. Pleadings.

§ 6-1503. Pleadings.

   (A) Form.

   (1) All pleadings filed electronically with the district court shall comply with Neb. Ct. R. App. P. § 2-103, (General formatting and service rules), as to page size, text, fonts, margins, and hyperlinking and bookmarks.

   (2) Paper pleadings may only be filed when the self-represented party is not a registered user of the court-authorized service provider. All pleadings filed in paper format shall be on white 8½ x 11-inch paper; printed on only one side of each sheet, and shall be bound by a paper clip and not stapled. Paper pleadings shall comply with all formatting requirements of § 2-103(A), and pages shall be sequentially numbered with placement of the page number at the bottom center of the page. Exhibits attached to pleadings shall be similarly prepared in permanent form, shall be readable, and shall not be subject to unusual fading or deterioration.

   (B) Identification of Pleadings: All complaints and petitions offered for filing shall plainly show the caption of the case, a description or designation of the contents, and on whose behalf they are filed. All further pleadings shall show the number of the case.

   (C) Orders: All proposed orders shall be by separate document and not a part of any other pleadings.

   (D) Copies.

   (1) For electronically filed cases in a civil action, the clerk shall provide copies of the initial pleading, together with all exhibits, or shall return the summons to the filing party electronically for attachment of copies for service.

   (2) For cases not filed electronically, upon the initial filing of a civil action, there shall be presented to the clerk clear and legible duplicate copies of each pleading, together with all exhibits, in sufficient number to provide one copy for each adverse party.

   (3) After the filing of the initial pleading, all other pleadings shall be served upon all opposing parties or their counsel pursuant to Neb. Ct. R. of Pldg. § 6-1105. Proof of service shall be as provided in § 6-1105(d).

   (E) Identification of Attorney: The name, address, Nebraska attorney identification number, email address, and the telephone number of the attorney handling the matter shall be stated on each pleading. Signatures shall be as provided in Neb. Ct. R. App. P. § 2-201(M).

   (F) Criminal Case Informations: Informations in criminal cases shall cite the statute under which each count of the information is brought and shall cite the class of offense and statute prescribing the penalty. A proposed amended pleading that is filed prior to obtaining leave of the court shall have no operative effect until the court grants leave to amend.

   (G) Improperly Filed Pleadings: Any pleading which does not conform to these rules will be subject to a motion to strike from the file or such other action as the court deems proper.

   (H) Attorneys: Active status verification. The court’s automated case management system may notify a court clerk that a filing has been received from an attorney who does not have an active license to practice law in Nebraska. Upon receipt of this notice, the clerk shall attempt to verify the attorney’s status as active. If the clerk cannot do so, the clerk shall notify the judge assigned to the case. If no judge has been assigned to the case, the clerk shall notify the presiding judge. See Neb. Rev. Stat. § 7-101.

§ 6-1503(H) amended May 8, 2013; § 6-1503(E) amended September 24, 2014, effective January 1, 2015; § 6-1503 amended June 9, 2021, effective January 1, 2022; § 6-1503 amended November 17, 2021, effective January 1, 2022.

 

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§ 6-1504. Domestic relations cases.

§ 6-1504. Domestic relations cases.

   (A) All applications for temporary custody, support, and maintenance shall comply with Nebraska statutes.

   (B) All applications for temporary support and allowances shall be determined without testimony upon argument and affidavits setting forth information required by Nebraska Child Support Guidelines and Nebraska statutes.

   (C) A properly completed Department of Health and Human Services Vital Statistics form shall be filed with each complaint for dissolution of marriage, and no decree will be entered unless each form is completed in full.

   (D) If any case contains an order or judgment for child or spousal support, or for the payment of medical expenses, the order shall include the following statements:

   (1) Delinquent child or spousal support shall accrue interest at the following rate: [insert the rate in effect on judgments as published on the Nebraska Supreme Court website].

   (2) If immediate income withholding is not required by law to be ordered in a case and is not so ordered, the following statement shall be included as provided by Neb. Rev. Stat. § 42-364.13:

   In the event the obligor fails to pay any child support, spousal support, or other payment ordered to be made, as such failure is certified each month by the clerk or the State Disbursement Unit in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, the obligor shall be subject to income withholding and may be required to appear in court and show cause why such payment was not made. In the event the obligor fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.

   (3) If, regardless of whether payments are in arrears, the court orders income withholding pursuant to Neb. Rev. Stat. § 43-1718.01 or § 43-1718.02, the statement specified in § 6-1504(D)(2) shall be altered to read as follows as provided by Neb. Rev. Stat. § 42-364.13:

   In the event the obligor fails to pay any child, spousal support, or medical payment, as such failure is certified each month by the district court clerk or the State Disbursement Unit in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, the obligor may be required to appear in court and show cause why such payment was not made. In the event the obligor (respondent or petitioner) fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.

   (E) Any order for support presented to the court shall require the obligor to furnish to the clerk of the court his or her address, telephone number, social security number, the name of his or her employer, and the name of his or her health insurance carrier, if any, together with the number of the policy and the address at which claims are to be submitted. The obligor shall also be required to provide any other information the court deems relevant. The order shall further require the obligor to advise the clerk of any changes in such information until the judgment has been fully paid. If both parents are parties to the action, such order shall provide that each be required to furnish to the clerk of the court whether he or she has access to employer-related health insurance coverage and, if so, the health insurance policy information. Failure to comply with this subsection shall be punishable by contempt. Protection of confidential information shall be as set forth in Neb. Ct. R. § 6-1521.

   (F) A worksheet showing calculations under the Nebraska Child Support Guidelines shall be attached to every child support application, order, or decree and shall be prepared by the party requesting child support, except that in a contested matter the worksheet shall be prepared or adopted by the court and attached to the order or decree.

Rule 4(D)(2) and (3) amended April 17, 1996; Rule 4(F) amended January 3, 1997; Rule 4 amended May 19, 2004; Rule 4(D) deleted and (4)(E)-(G) renumbered to (4)(D)-(F)). Renumbered and codified as § 6-1504, effective July 18, 2008; § 6-1504 amended June 9, 2021, effective January 1, 2022.

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§ 6-1505. Briefs.

§ 6-1505. Briefs.

   (A) Briefs: The standard form for all briefs shall be as set forth in Neb. Ct. R. App. P. § 2-103(A) and (C). Paper briefs, only submitted by non-attorneys, shall be as provided in § 2-103(C)(5).

   (B) Distribution: The original brief shall be filed with the clerk, with a copy served upon opposing counsel. The materials required by § 6-1526 shall be separately filed with the clerk. Nothing included in a brief shall be treated as a substitution for any required document under § 6-1526. Nothing included in a brief shall be treated as a substitution for the statement of errors required by § 6-1518(B).

   (C) Citations: Citation to authorities shall conform to generally accepted uniform standards of citation; citation of Nebraska cases shall include the Nebraska Reports or the Nebraska Appellate Reports and North Western Reporter citation.

§ 6-1505 amended June 9, 2021, effective January 1, 2022.

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§ 6-1506. Bankruptcy.

§ 6-1506. Bankruptcy.

   (A) Civil cases in which a party has been named as a debtor in a voluntary or involuntary bankruptcy petition. In any civil case pending before this court in which a party has been named as a debtor in a voluntary or involuntary bankruptcy petition, a Suggestion of Bankruptcy and either (1) a certified copy of the bankruptcy petition, (2) a copy of the bankruptcy petition bearing the filing stamp of the clerk of the bankruptcy court, or (3) a copy of a "Notice of Bankruptcy Case Filing" generated by the Bankruptcy Court's electronic filing system shall be filed by the party named as a debtor or by any other party with knowledge of the bankruptcy petition. Upon the filing of the Suggestion of Bankruptcy and one of the three bankruptcy documents noted immediately above, no further action will be taken in the case by the court or by the parties until it can be shown to the satisfaction of the court that the automatic stay imposed by 11 U.S.C. § 362 does not apply or that the automatic stay has been terminated, annulled, modified, or conditioned so as to allow the case to proceed. Such a showing shall be made by motion.

   (B) Requests for disbursement of funds or distribution of property of or to a party named as a debtor in a bankruptcy proceeding. In any civil case in which a Suggestion of Bankruptcy and one of the three bankruptcy documents noted in § 6-1506(A) have been filed, no request for a disbursement of funds or distribution of property of or to a party named as a debtor shall be made, and no order disbursing funds or distributing property of or to a party named as debtor will be entered. A request for disbursement of funds or distribution of property may be made after a showing, satisfactory to the court, that such funds or property has been abandoned by the trustee in bankruptcy or that the funds or property has been exempted by the debtor in the bankruptcy proceedings or that the party named as debtor in the bankruptcy petition, rather than the trustee in bankruptcy, is otherwise entitled to disbursement of such funds or distribution of such property. Such a showing shall be made by affidavit of a party or by certificate of attorney.

Rule 6(A) and (B) amended October 23, 2002. Renumbered and codified as § 6-1506, effective July 18, 2008; § 6-1506 amended June 9, 2021, effective January 1, 2022.

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§ 6-1507. Registration of foreign judgments; registration of Canadian judgments.

§ 6-1507. Registration of foreign judgments; registration of Canadian judgments.

   (A) Registration of foreign judgments from other United States jurisdictions. Upon the filing of a foreign judgment and affidavit as required by Neb. Rev. Stat. § 25-1587.04, the clerk shall, within 10 days of such filing, mail notice of the filing of the foreign judgment to the judgment debtor at the address provided within the affidavit.

   (B) Registraion of Canadian money judgments. Upon receipt of a registration that includes the required documents and information as set forth in statute, and payment of the fee as for registration of a foreign judgment under § 25-1587.06, the clerk shall file the registration, assign a docket number, and enter the Canadian judgment in the court's docket.

Rule 7 amended June 28, 1995. Renumbered and codified as § 6-1507, effective July 18, 2008; § 6-1507 amended June 23, 2021, effective August 28, 2021.

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§ 6-1508. Default judgments.

§ 6-1508. Default judgments.

   When a party is entitled to have a monetary judgment or an amount determined to be due by default based upon a contract action, such party shall submit, with the order entering judgment, a statement of the principal amount due, which shall not exceed the amount sued for, showing credit for any payments and the amounts and dates thereof, and a separate computation of interest, if prayed for, to date of judgment. To such statement shall be appended an affidavit of the party or a certificate of his or her attorney showing that the party against whom judgment is sought is not a minor or incompetent person or in the military service, that such amount shown by the statement is justly due and owing, and that no part thereof has been paid except as set forth in the statement.

   When a party is entitled to a monetary judgment on all other actions, such party shall adduce evidence in proof of damages. Such evidence shall be under oath unless waived by the court. Such party, in addition, shall submit an affidavit of the party or the certificate of the party's attorney that the party against whom the judgment is sought is not a minor or incompetent person or in the military service.

   If further documentation, proof, or hearing is required, the court shall so notify the moving party.

§ 6-1508 amended June 9, 2021, effective January 1, 2022.

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§ 6-1509. Dismissals and settlements.

§ 6-1509. Dismissals and settlements.

   It shall be the duty of attorneys to immediately notify the court of the dismissal, settlement, or other final disposition of any case. Upon notice to the court or to the clerk that an action has been settled, counsel shall file, within 30 days thereafter, unless otherwise directed by written order, such pleadings as are necessary to terminate the action; upon failure to do so, the court may order dismissal of the action without further notice and without prejudice to the right to secure reinstatement of the case within 60 days after the date of said order by making a showing of good cause as to why settlement was not in fact consummated.

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§ 6-1510. Withdrawal of counsel.

§ 6-1510. Withdrawal of counsel.

   (A) Upon motion for withdrawal and notice to all counsel and the client involved, an attorney who has appeared of record in a case may be given leave to withdraw for good cause shown after filing with the clerk the motion, notice of hearing, and proof of service upon opposing counsel and the client involved. The motion shall certify that counsel has served the client and all counsel or self-represented parties, and shall include the client's current mailing address and whether there is a hearing currently scheduled in the matter.

   (B) Upon entry of any judgment or final order in any case, and after the time for appeal has expired, the attorney of record shall no longer be deemed to continue as the attorney of record unless he or she shall have entered a new appearance in the case.

   (C) When an attorney is discharged by his or her client, the attorney shall forthwith file notice thereof in the case and serve all opposing counsel and/or self-represented parties.

§ 6-1510 amended June 9, 2021, effective January 1, 2022; § 6-1510 amended November 17, 2021, effective January 1, 2022.

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§ 6-1511. Courtroom decorum.

§ 6-1511. Courtroom decorum.

   (A) Attendance: All parties and their attorneys shall be present in the courtroom and prepared to proceed at the hour set for hearing by the court. Unjustified failure to appear shall subject the case to dismissal or disciplinary action to the attorneys concerned.

   (B) Attire: Attorneys shall be attired in ordinary business wear.

   (C) Conduct in Courtroom: When the judge enters the courtroom, those present shall rise and remain standing until the judge is seated. When sessions of court are recessed or concluded, those present shall remain in their seats until the judge or jury has left the courtroom.

   Except when it is necessary for counsel to approach a witness or exhibit, the examination of witnesses shall be conducted while seated at the counsel table or, if the courtroom is equipped with an attorney's lectern, from the lectern.

   Except upon express permission of the judge, all communications to the court shall be made from the counsel table or lectern.

   Counsel shall not approach opposing counsel, the bench, the witness, the court reporter's desk, the clerk's desk, or otherwise move from the counsel table or lectern without the permission of the court, except to make a voir dire examination, opening statement, or closing argument, or to present an exhibit for identification.

   Counsel shall not participate in colloquy with opposing counsel, whether audible or inaudible, without the permission of the court.

   If any counsel, including co-counsel, wishes to leave the courtroom, permission of the court shall be obtained. No counsel shall leave during the testimony of any witness he or she is examining, or has examined, without the permission of the court.

   Witnesses and parties shall be referred to and addressed by their surnames. Only one counsel for each party shall examine a witness or make objections during the testimony of such witness.

   Counsel shall not approach a witness without permission of the court.

   All persons entering the courtroom while court is in session shall be seated immediately and shall conduct themselves in a quiet and orderly manner. No person shall smoke, eat, drink beverages, or engage in other distracting conduct in the courtroom while court is in session.

   No person shall possess any firearm or other dangerous weapon in the courtroom or in any public area adjacent to it without the permission of the court.

   Upon order of the court, any person may be subjected to a search of his or her person and possessions for any weapons, destructive device, or components thereof.

   Jurors, either prospective or selected, shall not mingle or converse with counsel, litigants, witnesses, or spectators during the trial of a case.

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§ 6-1512. Duties of court personnel.

§ 6-1512. Duties of court personnel.

   (A) Sheriff's Duties: The sheriff or designated deputy shall be in attendance at all times when the court is in session, unless excused by the court.

The sheriff shall maintain order in the courtroom and shall correct or repress all improper deportment so as not to interrupt the orderly process of the court, without any express order from the court.

   (B) Bailiff's Duties: The bailiff shall have and carry out such duties as may be assigned to the bailiff by the court, including, but not limited to, the following:

Before beginning each session of court, the bailiff shall see that the jury and all required court personnel are in their proper places, and the bailiff shall notify the court. The bailiff shall be responsible for the comfort and welfare of any juror under the bailiff's charge and for compliance with the rules attendant on jurors. The bailiff shall immediately notify the court of all communications from the jurors to the bailiff, and the bailiff shall not respond to any such communication without the direction of the court.

   (C) Duties of the Clerk of the Court:

   (1) The clerk of the district court shall be present at all times during the sessions of the court, either in person or by deputy, unless excused by the court.

   (2) The clerk shall prepare and maintain such dockets and records as may be required by the court, Supreme Court rule, or the statutes of Nebraska.

   (3) The clerk shall have the following duties in addition to all statutory duties, if so directed by the court:

   (a) The clerk shall immediately, upon receipt, notify the court and sheriff of the return of any mandate from the Nebraska Supreme Court in every criminal case, and notify the court in every civil case.

   (b) The clerk shall have such other and additional duties, not inconsistent with the responsibilities of the office, as may be directed by the court.

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§ 6-1513. Release of information by court personnel.

§ 6-1513. Release of information by court personnel.

   All court personnel, including, but not limited to, sheriffs, deputy sheriffs, court clerks, bailiffs, court reporters, law clerks, secretaries, or other employees of the court shall not disclose, without authorization by the court, to any person any information relating to a pending case that is not part of the public records of the court.

   Court personnel shall not communicate in any form or manner, directly or indirectly, with any member of a jury panel, any venireperson, or any juror any facts, opinions, or information of any nature directly or indirectly related to any cause pending before the court to which personnel are assigned.

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§ 6-1514. Release of information by attorneys.

§ 6-1514. Release of information by attorneys.

   (A) Statements Not to be Made: A lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. An extrajudicial statement ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, or a criminal matter or proceeding that could result in incarceration, and the statement relates to:

   (1) The character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation, or witness, or the identity of a witness, or the expected testimony of a party or witness;

   (2) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

   (3) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

   (4) Information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial.

   (B) Statements Which May be Made: A lawyer involved in the investigation or litigation of a matter may state without elaboration:

   (1) The general nature of the claim or defense;

   (2) Information contained in a public record;

   (3) That investigation of the matter is in progress, including the general scope of the investigation, the offense, claim, or defense involved, and, except when prohibited by law, the identity of the person involved;

   (4) The scheduling or result of any step in litigation;

   (5) A request for assistance in obtaining evidence and information necessary thereto;

   (6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that such danger exists; and

   (7) In a criminal case, a lawyer may disclose:

   (a) The identity, residence, occupation, and family status of the defendant or suspect;

   (b) If the defendant or suspect has not been apprehended, information necessary to aid in apprehension of that person;

   (c) The fact, time, and place of arrest, and resistance, pursuit, and use of weapons; and

   (d) The identity of investigating and arresting officers or agencies and the length of that investigation.

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§ 6-1515. Judicial sales.

§ 6-1515. Judicial sales.

   Every purchaser at a judicial sale held by a sheriff, receiver, referee, or master commissioner, except a lienholder to the extent that he or she uses his or her lien as his or her bid, shall, at the time of acceptance of the bid, deposit with the sheriff, receiver, referee, or master commissioner, a sum equal to 15 percent of the bid to be held for disposition on the further order of the court.

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§ 6-1516. Jury trials.

§ 6-1516. Jury trials.

   (A) Voir Dire Examination of Prospective Jurors:

   (1) Questions are to be asked collectively of the entire panel whenever possible.

   (2) The case may not be argued in any way while questioning the jurors.

   (3) Prospective jurors may not be questioned concerning anticipated instructions or theories of law and may not be asked for promises or commitments as to the kind of verdict they would return under any given circumstance.

   (B) Objections and Motions: Objections and motions during trial, and the grounds therefor, shall be briefly and succinctly stated to the trial judge. If either counsel desires to be heard further, a request may be made to the trial judge, but arguments on such matters shall not be made without permission of the court.

   (C) Argument to Jury: The length of time allotted to each side for the final argument shall be determined by the court, after giving due consideration to the nature and duration of the trial and the amount of time requested by each side.

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§ 6-1517. Procedure for filing of criminal homicide reports.

§ 6-1517. Procedure for filing of criminal homicide reports.

   In order to fulfill the purpose of Neb. Rev. Stat. § 29-2524.01, the following procedure is established: The county attorney shall complete the reporting form (Appendix 1) and forward the form to the State Court Administrator within 30 days of the disposition of the case.

Rule 17 adopted November 18, 1998. Renumbered and codified as § 6-1517, effective July 18, 2008; § 6-1517 amended May 8, 2013.

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§ 6-1518. Appeals from county court and other tribunals, including those pursuant to the Administrative Procedure Act; statement of errors; mandate; bills of exceptions; briefs; oral arguments; summary disposition.

§ 6-1518. Appeals from county court and other tribunals, including those pursuant to the Administrative Procedure Act; statement of errors; mandate; bills of exceptions; briefs; oral arguments; summary disposition.

   (A) Bills of exceptions from county court. In appeals from the county court to the district court and where a bill of exceptions is requested to be prepared, the bill of exceptions filed in the county court proceeding shall be transmitted electronically from the county court to the district court and filed in the district court. Upon filing the bill of exceptions, the clerk of the district court shall send notice to the parties using JUSTICE procedures. The bill of exceptions shall be the official record of the proceedings and shall be considered by the district court without being offered and received in evidence.

   (B) Statement of errors.

   Within 20 days of filing the bill of exceptions in an appeal to the district court, Appellant shall file with the district court a statement of errors which shall consist of a separate, concise statement of each error a party contends was made by the trial court. Each assignment of error shall be separately numbered and paragraphed. Consideration of the cause will be limited to errors assigned, provided that the district court may, at its option, notice plain error not assigned. This rule shall not apply to small claims appeals.

   (C) Mandates.

   (1) Within 2 judicial days after the decision of the district court becomes final, the clerk shall issue a mandate and transmit the same to the clerk of the county court on the form prescribed by the Nebraska Supreme Court together with a copy of the district court’s decision.

   (2) The clerk shall notify the clerk of the county court if any matter appealed from the county court is thereafter appealed to the Supreme Court or Court of Appeals. Such notice shall be sent to the county court within 2 days after the date the notice of appeal is filed in the district court.

   (3) The clerk shall notify the clerk of the county court of receipt of a mandate from the Supreme Court or Court of Appeals within 2 days after the mandate is received by the district court on cases that originated in the county court.

   (D) Bills of Exceptions From Other Tribunals.

   (1) Any court reporting personnel approved by the court, board, or tribunal from which the appeal or error proceedings is taken may attend and record the trial or proceedings and prepare a bill of exceptions, certified to be true and complete by such court reporting personnel, and file the same with the chief clerical officer of such court, board, or tribunal who shall certify the bill of exceptions as the official record of the proceedings. Proposed amendments not agreed to shall be heard and determined by such court, board, or tribunal as provided in Neb. Ct. R. App. P. § 2-105(G). The completed bill of exceptions shall be filed electronically in the district court within the time provided by law and, if no time be fixed, before the case is submitted to the reviewing court.

   (2) The clerk of the district court shall promptly notify the court reporting personnel serving the district court judge to whom the case is assigned of the filing of the bill of exceptions from the court, board, or tribunal. Said court reporting personnel shall review the bill of exceptions for the purpose of determining whether it has been prepared in compliance with Neb. Ct. R. App. P. §§ 2-105.01 and 2-105.02. If in the opinion of the court reporting personnel the bill of exceptions has not been so prepared, the court reporting personnel shall advise the judge to whom the case is assigned for such action as the judge deems appropriate.

   (3) The bill of exceptions from the court, board, or tribunal filed in the district court shall be the official record and shall be considered by the district court without being offered and received in evidence.

   (E) The absence of a mandatory document from the transcript must be raised by a party prior to submission of the appeal to the district court.

  (F) Briefs and Oral Argument.

  (1) Briefs. Unless otherwise ordered by the court, the briefs listed below must be filed within the times stated in these rules. Requests for additional time to file briefs shall be supported by a showing of good cause.

  (a) Appellant’s or Petitioner’s brief must be served and filed within 30 days after the date the bill of exceptions is due to be filed. If no request for preparation of a bill of exceptions is filed, Appellant’s or Petitioner’s briefs must be served and filed within 30 days after the transcript is filed, unless the court directs otherwise.

  (b) Appellee's or Respondent’s brief must be served and filed within 30 days after Appellant or Petitioner has served and filed briefs.

  (c) Appellant’s or Petitioner’s reply brief must be served and filed within 10 days after Appellee or Respondent has served and filed briefs.

  (2) Oral argument.

  (a) A time of hearing shall be secured by contacting the judge’s bailiff. Notice of said hearing shall be filed and served on the opposing counsel or party, if not represented by counsel, on or before the date Appellant’s or Petitioner’s brief is served and filed.

  (b) Unless ordered by the court, no oral argument is allowed in any appeal from the county court in any criminal case:

  (i) Where the accused entered a plea of guilty or no contest; or

  (ii) Where the sole allegation of error is that the sentence imposed was excessive or excessively lenient or the trial court refused to reduce the sentence upon application of the defendant.

  (3) Cases to be submitted without argument may be submitted at any time after the time for filing Appellant’s reply brief has expired.

  (4) Unless otherwise ordered by the court, oral argument shall not exceed 10 minutes per side in any civil or criminal case. On the court’s own motion or on motion by a party, additional time may be granted by a showing of good cause.

  (5) Unless otherwise directed by the court, the parties may elect to waive oral argument and submit a case solely on the briefs. Such notice to waive oral argument shall be filed with the Clerk of the District Court and separately communicated to the judge’s bailiff at least 3 days prior to the date of hearing.

  (G) Summary Disposition.

  (1) Summary Dismissal. When the district court is hearing an appeal over which it determines it lacks jurisdiction, the appeal will be dismissed in the following manner: “APPEAL DISMISSED.”

  (2) Summary Affirmance. When the district court is hearing an appeal over which it determines on its own motion that (1) it is confined to plain error review because of Appellant’s failure to file a required statement of errors, (2) a detailed opinion would have no significant value upon further review, and (3) one of the following conditions is met:

  (a) the judgment is based on findings of fact that are not clearly erroneous;

  (b) the evidence in support of a jury verdict is not insufficient;

  (c) the judgment or order is supported by substantial evidence in the record as a whole; or

  (d) no error of law appears;

the Court may at its discretion decline to hold a hearing on appeal and affirm the judgment in the following manner: “AFFIRMED.”

Rule 18 amended November 18, 1998. Renumbered and codified as § 6-1518, effective July 18, 2008; § 6-1518 amended June 9, 2021, effective January 1, 2022; § 6-1518(A) and (B) amended August 23, 2023, effective November 1, 2023; § 6-1518 amended September 11, 2024.

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§ 6-1519. Modification of rules.

§ 6-1519. Modification of rules.

   Upon the showing of good cause, a rule may be suspended in a particular instance in order to avoid a manifest injustice.

Rule 19 amended November 18, 1998. Renumbered and codified as § 6-1519, effective July 18, 2008.

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§ 6-1520. Transcript and bill of exceptions checkout.

§ 6-1520. Transcript and bill of exceptions checkout.

   (A) Any person who does not have access to the court-authorized service provided, may inspect the electronic transcript and bill of exceptions at the office of the clerk of the trial court at the computer terminal provided. Confidential or sealed records shall not be inspected except by leave of the court. Paper copies of a transcript or bill of exceptions shall not be printed by the clerk unless the requestor pays for a copy of the requested record.

   If a litigant has been allowed to proceed in forma pauperis in the action in which the request for a record has been made, a copy shall be printed by the clerk at no cost to the litigant. Except for good cause show, any additional copies of the transcript and/or the bill of exceptions once provided to a litigant on an in forma pauperis basis shall be prepared at the litigant's costs.

   (B) When a request is made to the clerk of the district court for a transcript of pleadings by or on behalf of any incarcerated person for that person's case on appeal, the clerk of the trial court shall print  a copy to be sent to the incarcerated person at the correctional center where he or she resides. The cost shall be paid by the person making the request unless the person has been allowed to proceed in forma pauperis in the action in which the request for a record has been made. Except for good cause shown, any additional copies of the transcript once provided to a litigant on an in forma pauperis basis shall be prepared at the litigant's cost.

   (C) When a request is made by or on behalf of any incarcerated person for a copy of a bill of exceptions for that person's case on appeal, the clerk shall print a copy at the prescribed rate for copies and send it to the incarcerated person at the correctional center where he or she resides. The copy shall contain the index of exhibits but shall not include exhibits. The cost shall be paid by the person making the request unless that person has been allowed to proceed in forma pauperis in the action in which the request for a record has been made. Except for good cause shown, any additional copies of the bill of exceptions once provided to a litigant on an in forma pauperis basis shall be provided at the litigant's cost. An incarcerated person may request copies of exhibits by filing a motion with the court having jurisdiction of the case and shall pay for costs of such copies unless allowed to proceed in forma pauperis in the action.

   (D) Where a request for a copy of a transcript or a bill of exceptions is made on an in forma pauperis basis and an action is not pending, good cause must be shown by the litigant making the request for the necessity of a copy. A printed copy shall be provided only upon an order of the court.

Rule 20 adopted December 29, 1999; amended September 27, 2000; amended May 21, 2003. Renumbered and codified as § 6-1520, effective July 18, 2008; § 6-1520 amended June 9, 2010; § 6-1520 amended June 9, 2021, effective January 1, 2022; § 6-1520 amended November 17, 2021, effective January 1, 2022.

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§ 6-1521. Protection of personal and financial information in civil court records.

§ 6-1521. Protection of personal and financial information in civil court records.

   The following privacy rules shall apply to all pleadings, documents, exhibits, court orders, judgments, and decrees filed in all civil actions in the district courts of Nebraska:

   (A) This rule seeks to prevent birth dates, gender, Social Security numbers, and financial account numbers of all persons, including minor children, from being included in court records generally available to the public.

   (B) Separate document. The personal and financial information identified in § 6-1521(A) shall be set forth in a separate document as set forth in Appendix 3 to these rules.

   (1) Electronic submission. Such separate document shall be submitted electronically as provided by Neb. Ct. R. § 2-210.

   (2) Paper submission. If the document is submitted in paper form, it shall contain, at the top of the first page, the following language, in bold type: This document is confidential and shall not be made part of the court file or provided to the public pursuant to Neb. Ct. R. § 6-1521. The clerk of the court shall keep the document separate from the case file but accessible to judges and court staff.

   (3) Storage of document and/or data. If the document is submitted in electronic form, or converted from paper form to electronic form, the electronic document or the data contained therein may be reproduced or stored in JUSTICE or other court case and financial management system. Such electronic document, image, or data shall be electronically marked and shall not be accessible or viewable by the public, except as expressly authorized by written court order.

   (4) Access to documents and/or data by government agencies and officials. Unless otherwise provided by statute, court rule, or court order, access to such electronic documents, images, or data by governmental agencies and officials shall be implemented by agency agreements approved by the Nebraska Supreme Court. Application for access to such electronic document, image, or data by government agencies and officials shall be made by such agency or official on the form provided at Appendix 4, which shall include all information as requested on Appendix 4.

   (C) The personal and financial information identified in § 6-1521(A) shall not be included in any pleading or document submitted by a party or counsel for filing with the court, except by reference to a separate Appendix 3 document. An Appendix 3 document shall be separately tendered with any such pleading or other document, and if the Appendix 3 document is submitted in electronic form, it shall be identified in the filing transmittal as a confidential Appendix 3 submission. The form in Appendix 3 is mandatory with respect to the information identified in § 6-1521(A), but a party, attorney, or court may include in the Appendix 3 form additional personal or financial information sought to be protected. 

   (D) The personal and financial information identified in § 6-1521(A) shall not be included in any court order, judgment, or decree, including, but not limited to, any decree of dissolution of marriage, decree of legal separation, order of paternity, qualified domestic relations order, or other child support order or order of modification, except by reference to a separate Appendix 3 document. Where the court finds that an order, judgment, or decree must contain Social Security numbers or other personal information stated in § 6-1521(A), the court shall have the original order sealed and provide in the case file a redacted version of the order for public view.

   (E) No exhibit used at trial shall contain a complete account number for any financial accounts or debts of any party. The same shall be redacted by the person offering the exhibit to the extent necessary to protect the information from misuse. By agreement of the parties, or as directed by the court, financial account information shall be identified in all pleadings, other documents and court orders, judgments, or decrees in such a manner as the parties, counsel, court, and jury may be able to distinguish information between similar accounts or debts, or as may be necessary to establish relevance to the matter being litigated.

   (F) The name, birth date, gender, and Social Security number information of parties sought to be protected by this rule may be furnished to the clerk of the court by the parties prior to issuance of any order or decree. This information shall be furnished by submitting the form provided in Appendix 3. Protection of this information shall be as set forth in § 6-1521(B). Where a party or counsel is required by statute or rule to furnish information identified in § 6-1521(A) to a court or clerk of the court but such information is not required to be filed, the clerk of the court shall not place such information in the court file or allow such information to be accessible to the public.

   (G) The responsibility for redacting personal and financial data set forth in § 6-1521(A) rests solely with counsel and the parties. The clerk of the court shall not be required to review documents for compliance with this rule. If a clerk of the court identifies a violation of this rule, the clerk may, at his or her option, provide a redacted document for public access. However, the clerk electing to provide a redacted copy for public access shall maintain the original document without any alterations thereof, which document shall only be available to the court and the parties or the parties' counsel.

Rule 21 adopted April 16, 2008. Renumbered and codified as § 6-1521, effective July 18, 2008; § 16-1521(B) and (F) amended January 27, 2010; § 6-1521(B) amended May 16, 2012; § 6-1521 amended June 9, 2021, effective January 1, 2022; § 6-1521 amended November 17, 2021, effective January 1, 2022.

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§ 6-1522. Pretrial procedure: formulating issues.

§ 6-1522. Pretrial procedure: formulating issues.

   (A) In any civil action in the District Court after issues have been joined the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

   (1) The simplification of issues;

   (2) The necessity or desirability of amendments to the pleadings;

   (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

   (4) The limitation of the number of witnesses with a view of avoiding improper cumulative testimony;

   (5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

   (6) Such other matters as may aid in the disposition of the action.

   (B) The court shall at the time of the pretrial hearing make a record of the proceedings which recites the action taken at the conference, the amendments allowed to the pleadings, and the amendments made by the parties as to any of the matters considered, and which limit the issues for trial to those not disposed of by admissions or agreements of counsel; that counsel shall forthwith acknowledge their assent thereto, or, in the alternative, state into the record any and all objections they may have thereto; and such order when entered controls the subsequent cause of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

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§ 6-1523. District court records maintenance rule.

§ 6-1523. District court records maintenance rule.

   The following rule shall apply to all district courts in the State of Nebraska pursuant to Neb. Rev. Stat. § 25-2209.

   (A) Each clerk of the district court shall maintain the following records on the court's electronic case managment system:

   (1) Register of actions

  (2) Trial docket

   (3) Judge's docket notes

   (4) Financial record

   (5) General index

   (6) Judgment index

   (7) Case file

   Unless otherwise specified herein, all records listed above shall be maintained on the State of Nebraska's electronic case management system known as JUSTICE (Judicial Users System to Improve Court Efficiency).

   (B) Register of actions.

   The register of actions means the offical court record and is a summary of the case and is kept chronologically as cases are filed. The register of actions shall provide the following information:

   (1) case identification number, which captures the case type, year of initial filing, and sequential number of the case,

   (2) case caption,

   (3) case subtype,

   (4) name of judge,

   (5) filing dates of the complaint, petition, or other initial filings, and all subsequent filings,

   (6) date of issuance of, return date of, and the return of summons, and

   (7) other information pursuant to JUSTICE procedures.

   (C) Trial docket.

   The trial docket is a listing of cases at issue in the order they were made up and should serve as the order in which the cases are called for trial as provided by Neb. Rev. Stat. § 25-2211.

   The trial docket shall be maintained in electronic format in JUSTICE's Case Scheduler or in an alternative manual or electronic calendaring system. Information on status and progression are provided in the Supreme Court Progression Standards report.

   (D) Judge's docket notes.

   Judge's docket notes means the notations of the judge detailing the actions in a court proceeding and the entering of orders and judgments.

   Judge's docket notes shall be maintained electronically and viewed using JUSTICE procedures.

   (E) Financial record.

   The financial record means the financial accounting of the court and includes records of all money receipted and disbursed by the court and the receipts and disbursements of all money held as an investment.

   The financial record shall be maintained in electronic format in JUSTICE's Receipt/Disbursement History and Costs Worksheet.

   (F) General index.

   The general index is an alphabetical listing of names of the parties to the suit, both direct and inverse, with the case identification number where all proceedings in such action may be found.

   The general index shall be maintained in electronic format in JUSTICE's General Index.

   (G) Judgment index.

   The judgment index shall contain:

   (1) the names of the judgment debtor and judgment creditor, arranged alphabetically,

   (2) the case identification number where judgment may be found.

   All judgments entered in the district court and any transcripts of judgments from county courts filed in the district court shall be entered upon the judgment index. Whenever any judgment is paid and satisfaction of judgment is filed, the clerk shall enter such fact upon the judgment index.

   The judgment index shall be maintained in electronic format in JUSTICE's Judgment Index and Judgment Inquiry.

   (H) Case file.

   Each district court shall maintain a case file which is numbered with an electronically generated case number. Each case shall be accessible alphabetically through the General Index in JUSTICE.  The case file shall contain the complaint or petition, all subsequent pleadings, motions, orders, judgments, verdicts, and other documents filed in the case.

   The case file shall be maintained either in a paper volume, on microfilm, or for documents filed or maintained electronically, as electronic images accessed through JUSTICE Register of Actions.

Rules 22 - 32 (exclusive of Rule 21) adopted October 15, 1992; amended June 4, 2008, effective June 18, 2008. Renumbered and codified as §§ 6-1522 - 6-1532, effective July 18, 2008; amended and incorporated into § 6-1523 December 23, 2008; § 6-1523 amended June 9, 2021, effective January 1, 2022.

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§ 6-1524. Protection of personal and financial information in criminal records.

§ 6-1524. Protection of personal and financial information in criminal records.

   The following privacy rules shall apply to all pleadings and documents filed in all criminal actions in the district courts of Nebraska.

   (A) Redacted Filings. In any filing with the court that contains an individual's Social Security number; a taxpayer identification number; a birth date; the name of an individual known to be a minor; or a financial account number, a party or nonparty making the filing may include only, unless otherwise ordered by the court:

   (1) a reference to Social Security number or taxpayer identification number (no digits);

   (2) the year of the individual's birth;

   (3) a minor child's initials;

   (4) the last four digits of a financial account number.

   (B) Exemptions. The redaction requirement does not apply to the following:

   (1) the date of birth of a defendant or person subject to detention;

   (2) the name of a defendant or person subject to detention;

   (3) a financial account number or real property address that identifies the account or property allegedly subject to forfeiture in a forfeiture proceeding;

   (4) the record of an administrative or agency proceeding;

   (5) the record of a court or tribunal, if that record was not subject to this rule when originally filed;

   (6) a filing covered by § 6-1524(D).

   (C) Victim Information. Personal identifying information, other than a victim's name, shall be prevented from being disclosed on pleadings and documents filed in criminal actions that may be available to the public.  Victims eligible for protection are defined in Neb. Rev. Stat. § 29-119. The Crime Victim Information Form, as set forth in Appendix 5 shall:

   (1) be completed by the County Attorney (or deputy) at initial filing;

   (2) be separately tendered with any such pleading or other document, pursuant to Neb. Ct. R. § 2-210;

   (3) always have the following language visible, "THIS DOCUMENT IS CONFIDENTIAL AND SHALL NOT BE PART OF THE COURT FILE OR PROVIDED TO THE PUBLIC PURSUANT TO N.R.S 81-1848." The clerk of the court shall keep the document separate from the case file but accessible to the judges and court staff.  If the document is submitted in electronic form, or converted from paper form to electronic form, the electronic document or the data contained therein may be reproduced or stored in JUSTICE or other court case management system. Such document, image, or data shall be electronically marked and shall not be accessible or viewable by the public.

The personal identifying information identified in Crime Victim Information Form, Appendix 5, shall not be included in any court order or judgment.

   (D) Filings Made Under Seal. The court may, on its own motion or for good cause shown, order that a filing be made under seal without redaction. See Neb. Ct. R. § 2-210. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

   (E) Protective Orders. For good cause, the court may by order in a case:

   (1) require redaction of additional information; or

   (2) limit or prohibit a nonparty's access to a document filed with the court.

   (F) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court shall retain the unredacted copy as part of the record, under seal. The person making the filing shall follow the procedures set forth in § 2-210.

   (G) Option for Filing a Reference List. A filing that contains information set forth as provided by § 6-1524(A) may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The reference list shall be filed under seal and may be amended as of right. The court shall retain the reference list as part of the record, under seal. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information as stated on the reference list.

   (H) The responsibility for redacting information set forth in § 6-1524(A) rests solely with counsel of record. The clerk of the court shall not be required to review documents for compliance with this rule. If a clerk of the court identifies a violation of this rule, the clerk may, at his or her option, provide a redacted document for public access. However, the clerk electing to provide a redacted copy for public access shall maintain the original document without any alterations thereof, which document shall only be available to the court and to the parties or counsel of record.

§ 6-1524 adopted February 27, 2013; § 6-1524 amended September 16, 2015; § 6-1524  amended June 9, 2021, effective January 1, 2022.

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§ 6-1525. Appointment of counsel in criminal cases; and application for fees by appointed counsel.

§ 6-1525. Appointment of counsel in criminal cases; and application for fees by appointed counsel.

   (A) Every judicial district shall have a transparent process for appointment of counsel for indigent defendants as provided in Neb. Rev. Stat. §§ 29-3901 to 29-3908.

   (B) The county court and district court judges of each judicial district shall maintain a local rule for the judicial district regarding appointment of counsel in criminal cases. Such local rule shall be made public and shall include, but not be limited to:

   (1) Provision for maintenance of a list of all licensed attorneys who may be expected to accept appointments in criminal cases in the judicial district, and information on obtaining such list from the court;

   (2) The judicial district's process for appointments under Neb. Rev. Stat. §§ 29-3901 to 29-3908; and

   (3) Information as to how an attorney may be added to or, if permitted, removed from the court-appointed attorney list.

   (C) Such local rule shall be governed by § 6-1501.

   (D) Before the claim of any attorney appointed by the court is allowed in criminal matters, such attorney shall file with the clerk, and serve upon the county attorney, a written application for fees, certified to be true and correct, stating an itemization of the services provided (for interim applications, a general itemization), time expended, and expenses incurred in the case. Counsel shall also state in the application that counsel has not received and has no contract for the payment of any compensation by such defendant or anyone in the defendant’s behalf or, if counsel has received any fee or has a contract for the payment of same, shall disclose the same fully so that the proper credit may be taken on counsel’s application. If a hearing is required, the time and date of hearing shall be set by the court and notice given by court order or notice of hearing.

§ 6-1525 adopted February 12, 2014; § 6-1525 amended June 9, 2021, effective January 1, 2022; § 6-1525 amended November 17, 2021, effective January 1, 2022.

 

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§ 6-1526. Summary Judgment Procedure.

§ 6-1526. Summary Judgment Procedure.

   (A) Moving Party's Materials in Support of Motion. When a motion for summary judgment or partial summary judgment is filed, the moving party must simultaneously file with the clerk and serve on all parties of record:

   (1) an Evidence Index in Support listing all evidence to be offered in support of the motion for summary judgment; and

   (2) an Annotated Statement of Undisputed Facts setting forth concise, numbered paragraphs reciting each proposed material fact as to which the moving party contends there is no genuine dispute, annotated by pinpoint citation to the supporting evidence in the Evidence Index in Support.

   Failure to submit such a Statement may constitute grounds for denial of the motion.

   (B) Opposing Party's Materials in Opposition. Each party opposing a motion for summary judgment or partial summary judgment must file with the clerk and serve on all parties of record:

   (1) an Evidence Index in Opposition listing all evidence to be offered in opposition to the motion for summary judgment; and

   (2) an Annotated Statement of Disputed Facts setting forth concise, numbered paragraphs reciting each proposed material fact of the moving party as to which the opposing party contends there is a genuine dispute, annotated by pinpoint citation to the supporting evidence in the Evidence Index in Opposition.

   Failure to submit such a Statement may constitute grounds for sustaining the motion.

   (C) For purposes of this rule, where competing motions are filed, a party shall be considered as the moving party regarding a motion or motions asserted by that party and as an opposing party regarding a motion or motions asserted by another party.

   (D) The assigned judge is expected to schedule deadlines for compliance with this rule and the summary judgment statutes so as to ensure a fair opportunity for all parties to present their evidence. The judge may, in the judge's discretion, extend any deadline for compliance with any requirement under this rule.

   (E) The documents required by this rule shall not be included within a brief submitted on behalf of a party.

§ 6-1526 adopted September 5, 2018; § 6-1526 amended June 9, 2021, effective January 1, 2022.

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§ 6-1527. Remand of removed actions.

§ 6-1527. Remand of removed actions.

   (A) Record. If a case removed to federal court is remanded to a district court of this State, the defendant(s) must file with the clerk of the district court a record of the federal court case within 14 days after the date the remand order is file stamped by the clerk of the district court.

   Before filing the record, the defendant(s) should confer with the plaintiff(s) regarding which documents should be included in the record. The parties should make a good faith effort to agree on which documents should be included.

   The record must be consecutively paginated and contain (1) a table of contents that states the title and initial page number of each pleading or document in the record, (2) a copy of each pleading filed in the federal court case, (3) a copy of each protective order and discovery order entered in the federal court case, (4) a copy of any other document filed in the federal court case that may be relevant to the adjudication of the case on remand, and (5) a certification that the contents of the record are accurate copies of the documents in the federal court’s electronic records.

   The copies must include the federal court header with the federal court case number, document number, filing date, page number, and page identification number. The certification must be made by the attorney(s) for the defendant(s) or, if a defendant(s) is self-represented, by the self-represented defendant(s).

   Within 10 days after the record is filed by the defendant(s), the plaintiff(s) may file a supplemental record. The supplemental record should contain a copy of any document filed in the federal court case that in the judgment of the plaintiff(s) should have been included in the record but was not. The supplemental record must be in the same format as the record.

   For good cause shown, the district court may extend or shorten the time for filing the record or the supplemental record and may grant a party leave to file an additional supplemental record.

   (B) Pleadings and Motions. After remand, repleading is unnecessary unless the district court orders it. Within 20 days of the date on which the remand order was file stamped by the clerk of the district court, a party that was not in default in the federal court case may (1) serve a responsive pleading if the party did not previously serve a responsive pleading or (2) serve a Neb. Ct. R. Pldg. § 6-1112(b), (e), or (f) motion if the party did not previously serve a responsive pleading. Any defenses that were waived pursuant to § 6-1112(h) before the case was removed or that were waived pursuant to Fed. R. Civ. P. 12(h) while the case was pending in federal court may not be revived.

   Any motions that were pending in the federal court case as of the date of the remand order are deemed to have been withdrawn without prejudice.

   (C) Discovery. Any discovery requests or subpoenas that were pending as of the date of the remand order are deemed to have been withdrawn unless the parties agree otherwise.

   If the federal court entered a protective order or a discovery order that is in effect on the date that the remand order is mailed to the district court, the order is deemed to be an order of the district court when the remand order is mailed and the parties are bound by the terms of the order. Either party may file a motion with the district court to vacate or modify the order under the Nebraska Court Rules of Discovery in Civil Cases.

   Any discovery obtained in the federal court case, including depositions, may be used in the district court case as though the discovery had been obtained in the district court case.

§ 6-1527 adopted March 11, 2020.

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§ 6-1528. Emergency Modified Court Operations.

§ 6-1528. Emergency Modified Court Operations.

   (A) On or before January 1, 2022, the county court, district court, and separate juvenile court judges within each judicial district shall jointly adopt a local rule setting out the procedures governing emergency modified court operations in their judicial district.

   (B) Such local rule shall include, but not be limited to:

   (1) Establishing criteria for how the judicial district will determine when emergency modified court operations should be implemented, and when normal court operations should resume;

   (2) Listing the stakeholders within the judicial district to include in planning and implementing any emergency modified court operations.

   (3) Identifying who within the judicial district will coordinate and facilitate communication with the group of justice stakeholders to plan and implement any emergency modified court operations plan;

   (4) Listing all mission essential functions to be considered and addressed in any emergency modified court operations plan; and

   (5) Identifying how court users and the public will be informed when emergency modified court operations are implemented and when they are discontinued.

   (C) Such local rule shall be governed by § 6-1501.

§ 6-1528 adopted November 24, 2021.

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Article 16: Workers Compensation / Separate Juvenile Court; Filing Rules of Practice.

Article 16: Workers Compensation / Separate Juvenile Court; Filing Rules of Practice. unanimous

§ 6-1601. Filing rules of practice; Nebraska Supreme Court approval required.

§ 6-1601. Filing rules of practice; Nebraska Supreme Court approval required.

   Each separate juvenile court and the Workers' Compensation Court, by action of a majority of its judges, may from time to time recommend rules of practice concerning matters which are not inconsistent with any directive of the Supreme Court or statutes of the State of Nebraska. Such recommended rules shall become effective upon the approval of the Supreme Court, at which time they shall be filed with the Clerk of the Supreme Court and Court of Appeals, and be published in the Nebraska Advance Sheets. Once approved, copies thereof shall be made available to the bar and public through the office of the clerk of the court recommending the rules.

Rule 1 amended May 24, 1995; amended September 17, 1997. Renumbered and codified as § 6-1601, effective July 18, 2008.

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Article 17: Uniform Separate Juvenile Court Rules of Practice and Procedure.

Article 17: Uniform Separate Juvenile Court Rules of Practice and Procedure.

(Adopted December 17, 2008.)

Appendix 1 - Guardian Ad Litem Report

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§ 6-1701. Protection of personal and financial information in court records.

§ 6-1701. Protection of personal and financial information in court records.

   To the extent applicable to proceedings within the jurisdiction of the separate juvenile courts of Nebraska, Neb. Ct. R. § 6-1521 shall govern orders, filings, documents, and pleadings in the separate juvenile courts. Neb. Ct. R. § 6-1521 provides as follows:

   The following privacy rules shall apply to all pleadings, documents, exhibits, court orders, judgments, and decrees filed in all civil actions in the district courts of Nebraska:

   (A) This rule seeks to prevent birth dates, gender, Social Security numbers, and financial account numbers of all persons, including minor children, from being included in court records generally available to the public.

   (B) Separate document. The personal and financial information identified in § 6-1521(A) shall be set forth in a separate document as set forth in Appendix 3 to these rules.

   (1) Electronic submission. Such separate document shall be submitted electronically as provided by Neb. Ct. R. § 2-210.

  (2) Paper submission. If the document is submitted in paper form, it shall contain, at the top of the first page, the following language, in bold type: This document is confidential and shall not be made part of the court file or provided to the public pursuant to Neb. Ct. R. § 6-1521. The clerk of the court shall keep the document separate from the case file but accessible to judges and court staff.

   (3) Storage of document and/or data. If the document is submitted in electronic form, or converted from paper form to electronic form, the electronic document or the data contained therein may be reproduced or stored in JUSTICE or other court case and financial management system. Such electronic document, image, or data shall be electronically marked and shall not be accessible or viewable by the public, except as expressly authorized by written court order.

   (4) Access to documents and/or data by government agencies and officials. Unless otherwise provided by statute, court rule, or court order, access to such electronic documents, images, or data by governmental agencies and officials shall be implemented by agency agreements approved by the Nebraska Supreme Court. Application for access to such electronic document, image, or data by government agencies and officials shall be made by such agency or official on the form provided at Appendix 4, which shall include all information as requested on Appendix 4.

   (C) The personal and financial information identified in § 6-1521(A) shall not be included in any pleading or document submitted by a party or counsel for filing with the court, except by reference to a separate Appendix 3 document. An Appendix 3 document shall be separately tendered with any such pleading or other document, and if the Appendix 3 document is submitted in electronic form, it shall be identified in the filing transmittal as a confidential Appendix 3 submission. The form in Appendix 3 is mandatory with respect to the information identified in § 6-1521(A), but a party, attorney, or court may include in the Appendix 3 form additional personal or financial information sought to be protected.

   (D) The personal and financial information identified in § 6-1521(A) shall not be included in any court order, judgment, or decree, including, but not limited to, any decree of dissolution of marriage, decree of legal separation, order of paternity, qualified domestic relations order, or other child support order or order of modification, except by reference to a separate Appendix 3 document. Where the court finds that an order, judgment, or decree must contain Social Security numbers or other personal information stated in § 6-1521(A), the court shall have the original order sealed and provide in the case file a redacted version of the order for public view.

   (E) No exhibit used at trial shall contain a complete account number for any financial accounts or debts of any party. The same shall be redacted by the person offering the exhibit to the extent necessary to protect the information from misuse. By agreement of the parties, or as directed by the court, financial account information shall be identified in all pleadings, other documents and court orders, judgments, or decrees in such a manner as the parties, counsel, court, and jury may be able to distinguish information between similar accounts or debts, or as may be necessary to establish relevance to the matter being litigated.

   (F) The name, birth date, gender, and Social Security number information of parties sought to be protected by this rule may be furnished to the clerk of the court by the parties prior to issuance of any order or decree. This information shall be furnished by submitting the form provided in Appendix 3. Protection of this information shall be as set forth in § 6-1521(B). Where a party or counsel is required by statute or rule to furnish information identified in § 6-1521(A) to a court or clerk of the court but such information is not required to be filed, the clerk of the court shall not place such information in the court file or allow such information to be accessible to the public.

   (G) The responsibility for redacting personal and financial data set forth in § 6-1521(A) rests solely with counsel and the parties. The clerk of the court shall not be required to review documents for compliance with this rule. If a clerk of the court identifies a violation of this rule, the clerk may, at his or her option, provide a redacted document for public access. However, the clerk electing to provide a redacted copy for public access shall maintain the original document without any alterations thereof, which document shall only be available to the court and the parties or the parties' counsel.

§ 6-1701(B) and (F) amended January 27, 2010; § 6-1701(B) amended May 16, 2012; § 6-1701 amended November 17, 2021, effective January 1, 2022.

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§ 6-1702. Local Rules.

§ 6-1702. Local Rules.

   Each separate juvenile court by action of a majority of its judges may from time to time recommend other local rules not inconsistent with these rules nor inconsistent with any directive of the Supreme Court or statutes of the State of Nebraska. Such recommended rules shall be submitted as provided in Neb. Ct. R. § 1-103(A). Such recommended rules shall become effective upon approval by the Supreme Court, at which time they shall be published on the Nebraska Supreme Court's website.

§ 6-1702 amended June 9, 2021, effective January 1, 2022; § 6-1702 amended September 7, 2022.

unanimous

§ 6-1703. Attorneys: Active status verification.

§ 6-1703. Attorneys: Active status verification.

 

   The court’s automated case management system may notify a court clerk that a filing has been received from an attorney who does not have an active license to practice law in Nebraska. Upon receipt of this notice, the clerk shall attempt to verify the attorney’s status as active. If the clerk cannot do so, the clerk shall notify the judge assigned to the case. If no judge has been assigned to the case, the clerk shall notify the presiding judge. See Neb. Rev. Stat. § 7-101.

§ 6-1703 adopted May 8, 2013.

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§ 6-1704. Appointment of counsel in juvenile cases.

§ 6-1704. Appointment of counsel in juvenile cases.

   (A) Every judicial district shall have a transparent process for appointment of counsel as provided by Neb. Rev. Stat. § 43-272.

   (B) The separate juvenile court judges of each separate juvenile court shall adopt a local rule for the juvenile court regarding appointment of counsel in juvenile cases. Such local rule shall be made public and shall include, but not be limited to:

   (1) Provision for maintenance of a list of all licensed attorneys who may be expected to accept appointments in juvenile cases, and information on obtaining such list from the court;

   (2) The separate juvenile court's process for appointments under Neb. Rev. Stat. § 43-272; and

   (3) Information as to how an attorney may be added to or, if permitted, removed from the court-appointed attorney list.

   (C) Such local rule shall be governed by § 6-1702.

   (D)  Before the claim of any attorney appointed by the court is allowed in juvenile matters, such attorney shall make a written application for fees, certified to be true and correct, stating time and expenses in the case, and shall serve the same upon the county attorney. For interim applications, a general itemization of fees and expenses incurred shall be certified. Counsel shall also state in the application that counsel has not received and has no contract for the payment of any compensation by such client, or anyone in the client's behalf, or, if counsel has received any fee or has a contract for the payment of same, shall disclose the same fully so that the proper credit may be taken on counsel's application. The application shall be filed with the clerk. If a hearing is required, the time and date of hearing shall be set by court order or notice of hearing.

§ 6-1704 adopted February 12, 2014; § 6-1704 amended June 9, 2021, effective January 1, 2022; § 6-1704 amended November 17, 2021, effective January 1, 2022.

unanimous

§ 6-1705. Practice standards for guardians ad litem for juveniles in separate juvenile court proceedings.

§ 6-1705. Practice standards for guardians ad litem for juveniles in separate juvenile court proceedings.

   (A) Purpose.

   The purpose of these practice standards is to ensure that the legal and best interests of juveniles in dependency and abuse/neglect proceedings initiated under the Nebraska Juvenile Code are effectively represented by their court-appointed guardians ad litem. These practice standards are also intended to ensure that such interests of juveniles involved in delinquency, status offense, or other proceedings initiated under the Nebraska Juvenile Code are effectively protected when a guardian ad litem has been appointed.

   (B) Appointment.

   (1) In accordance with the Nebraska Juvenile Code, specifically Neb. Rev. Stat. § 43-272(3), only a lawyer duly licensed by the Nebraska Supreme Court may be appointed to serve as a guardian ad litem for a juvenile.

   (2) When feasible, the duties of a guardian ad litem should be personal to the appointed lawyer and should not normally be delegated to another person or lawyer.

   (3) Any lawyer who serves as a guardian ad litem should fulfill the training requirements described in the Nebraska Supreme Court Rule Regarding Guardian Ad Litem Training for Attorneys.

   (C) Role of Guardian Ad Litem.

   (1) Neb. Rev. Stat. § 43-272(3) authorizes a guardian ad litem in juvenile proceedings to fulfill a "dual role" with respect to the juvenile, that is, to serve as:

   (a) An advocate for the juvenile who is deemed as the parent of the juvenile and charged with a duty to investigate facts and circumstances, determine what is in the juvenile's best interests, report to the court and make recommendations as to the juvenile's best interests, and take all necessary steps to protect and advance the juvenile's best interests; and

   (b) Legal counsel for the juvenile.

   (2) Where a lawyer has already been appointed to represent the legal interests of the juvenile, for example in a delinquency case, another lawyer appointed to serve as a guardian ad litem for such juvenile shall function only in a single role as guardian ad litem for the juvenile concerning the juvenile's best interests, and shall be bound by all of the duties and shall have all of the authority of a guardian ad litem, with the exception of acting as legal counsel for the juvenile.

   (3) Accordingly, the following shall apply:

   (a) In serving as advocate for the juvenile to protect his or her best interests, the guardian ad litem shall make an independent determination as to the juvenile's best interests, by considering all available information and resources. The guardian ad litem's determination as to best interests is not required to be consistent with any preferences expressed by the juvenile.

   (b) Upon making such determination, the guardian ad litem shall make such recommendations to the court and shall take the necessary actions to advocate and protect the best interests of the juvenile.

   (c) As legal counsel for the juvenile, the guardian ad litem shall be entitled to exercise and discharge all prerogatives to the same extent as a lawyer for any other party in the proceeding.

   (d) Where the juvenile expresses a preference which is inconsistent with the guardian ad litem's determination of what is in the best interests of the juvenile, the guardian ad litem shall assess whether there is a need to request the appointment of a separate legal counsel to represent the juvenile's legal interests in the proceeding. In making such assessment, the guardian ad litem shall consider:

   (i) The juvenile's age,

   (ii) The juvenile's capacity,

   (iii) The juvenile's level of maturity, and

   (iv) The nature of the inconsistency between the juvenile's expressed preference and the guardian ad litem's determination as to the juvenile's best interests.

   (e) After making such assessment, the guardian ad litem shall request the court to make a determination whether special reasons exist for the court to appoint separate legal counsel to represent the legal interests of the juvenile where the guardian ad litem determines all of the following:

   (i) That the juvenile's expressed preference represents a communication that is made by a juvenile of sufficient age, capacity, and maturity;

   (ii) That the juvenile's expressed preference is of significance to other matters or issues in the case affecting the juvenile, and is within the bounds of law and reality; and

   (iii) That the guardian ad litem believes that it would be a conflict of interest for the guardian ad litem to continue to act as legal counsel for the juvenile in light of the preference expressed by the juvenile.

   (f) In any situation where the guardian ad litem has been appointed to represent more than one juvenile within the same case, the guardian ad litem shall ascertain throughout the case whether the guardian ad litem's advocacy of the legal and best interests of any one juvenile would be adverse to or conflict with the legal and best interests of any other juvenile represented by the same guardian ad litem. Where the guardian ad litem reasonably believes that to continue as guardian ad litem for all of the juveniles would be problematic in this specific regard, the guardian ad litem shall apply to the court for the appointment of a separate guardian ad litem and/or legal counsel for the juvenile(s). Where any juvenile has expressed a preference or position regarding a certain matter or issue, the guardian ad litem shall utilize the standards set forth in § 6-1705(C)(3)(e) above.

   (g) If the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the juvenile's legal interests. The guardian ad litem shall continue to advocate and protect the juvenile's social and best interests as defined under the Nebraska Juvenile Code.

   (D) Authority of Guardian Ad Litem.

   (1) Access to information and juvenile.

   (a) The guardian ad litem is entitled to receive all pleadings; notices, to include timely notices of change of placement; and orders of the court filed in the proceeding, and should make reasonable efforts to obtain complete copies of the same.

   (b) The guardian ad litem is entitled to receive copies of all case plans and court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Office, and any Court Appointed Special Advocate (CASA), as well as reports, summaries, evaluations, records, letters, and documents prepared by any other provider which the guardian ad litem deems relevant to the best interests or legal rights of any juvenile represented by the guardian ad litem. Where these documents are not provided as a matter of course to the guardian ad litem, they shall be provided upon the request of the guardian ad litem.

   (c) The guardian ad litem, standing in lieu of the parent for a protected juvenile who is the subject of a juvenile court petition shall also have the same right as the juvenile's legal guardian to (1) obtain information from all professionals and service providers, including, but not limited to, verbal communications and written reports, summaries, opinions, and evaluations, and information regarding the juvenile's placement; and (2) to receive notice of and participate in all conferences, staffings or team meetings, and hearings relating to the juvenile's health, education, placement, or any other matter which in the opinion of the guardian ad litem is relevant to, or which affects, the best interests or legal rights of the juvenile.

   (d) The guardian ad litem is authorized to communicate with and respond to inquiries for information regarding the juvenile made by the Nebraska Foster Care Review Office, the Department of Health and Human Services case manager, or CASA.

   (e) The guardian ad litem is authorized to make announced or unannounced visits to the juvenile at his or her home or placement or at any location at which the juvenile may be present.

   (f) The court should facilitate the guardian ad litem's authority to obtain information regarding the juvenile by including the following language, or language substantially similar thereto, in its initial order of appointment of the guardian ad litem:

   "The guardian ad litem appointed herein by this Court shall have full legal authority to obtain all information which relates to the above-named juvenile.

   "To that end, the guardian ad litem is hereby authorized by this Court to communicate verbally or in writing with any agency, organization, person, or institution, including, but not limited to, any school personnel, counselor, or drug or alcohol treatment provider; or police department or other law enforcement agency; any probation, parole, or corrections officer; any physician, psychiatrist, psychologist, therapist, nurse, or mental health care provider; or any hospital, clinic, group home, treatment group home, residential or mental health treatment facility, or youth rehabilitation treatment center; any social worker, case manager, or social welfare agency, including the Nebraska Department of Health and Human Services and its employees and administrators; any person or agency or institution charged with supervising visitation; or any family member, guardian, foster parent, or any other person.

   "The guardian ad litem is further hereby authorized to obtain from all persons, organizations, or entities, including, but not limited to, those described in the paragraph above, all information, including, but not limited to, the inspection of, and obtaining of complete copies of records, reports, summaries, evaluations, correspondence, written documents, or other information, orally or in any media form, which relate to the above-named juvenile even if such information concerns his or her parents, or any other person or any situation that the guardian ad litem deems necessary in order to properly represent the juvenile's interests."

   (E) Duties of Guardian Ad Litem.

   (1) Consultation with juvenile.

   (a) The phrase "consultation with the juvenile," as used in the Nebraska Juvenile Code, generally means meeting in person with the juvenile, unless prohibited or made impracticable by exceptional circumstances, as set forth in § 6-1705(E)(1)(d) below.

   (b) The guardian ad litem should consult with the juvenile when reasonably possible and at those times and intervals as required by the Nebraska Juvenile Code.

   (c) In addition to the statutorily required intervals for consulting with the juvenile, when possible, the guardian ad litem should consult with the juvenile when:

   (i) The juvenile requests that the guardian ad litem meet with him or her;

   (ii) The guardian ad litem has received notification of any emergency, or other significant event or change in circumstances affecting the juvenile, including a change in the juvenile's placement; and

   (iii) Prior to any hearing at which substantive issues affecting the juvenile's legal or best interests are anticipated to be addressed by the court.

   (iv) The guardian ad litem should make every effort to see the juvenile in his or her placement at least once, with respect to each such placement.

   (d) Where an unreasonable geographical distance is involved between the location of the juvenile and the guardian ad litem, the guardian ad litem should explore the possibility of obtaining from the court an advance determination that the court will arrange for the payment or reimbursement of the guardian ad litem's reasonable expenses incurred in connection with the travel to meet with the juvenile.

   (e) "Exceptional circumstances" generally include, but are not limited to, those situations where an unreasonable geographical distance is involved between the location of the guardian ad litem and the juvenile. Where such exceptional circumstances exist, the guardian ad litem should attempt consultation with the juvenile by other reasonable means, including, but not limited to, telephonic means, assuming that the juvenile is of sufficient age and capacity to participate in such means of communication and there are no other barriers preventing such communication. Where consultation by telephonic means is also not feasible, the guardian ad litem should seek direction from the court as to any other acceptable method by which to accomplish such consultation with the juvenile.

   (2) Inquiry and consultation with others.

   (a) The guardian ad litem is required to make inquiry of the juvenile's caseworker, foster parent, or legal custodian and any other person directly involved with the juvenile who may have knowledge about the case or the development of the juvenile. The guardian ad litem should also make inquiry of any other persons who have knowledge or information relevant to the juvenile's best interests. The guardian ad litem may obtain such information through the means of direct inquiry, interview, or the discovery process.

   (b) The guardian ad litem has a duty to read and comprehend the court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Office, the CASA volunteer, and from all other persons or providers assigned to the case who prepare and present such reports to the court.

   (3) Report and recommendations to court.

   (a) The guardian ad litem has a duty to make written recommendations to the court in the form of a report regarding the temporary and permanent placement of the protected juvenile. Because the guardian ad litem is also required by statute to consider any other information "as is warranted by the nature and the circumstances of the particular case," the guardian ad litem's report should include written recommendations to the court regarding any other matter that affects or would affect the legal and best interests of the protected juvenile.

   (b) The guardian ad litem is required to submit a written report to the court at every dispositional hearing and review hearing. The information contained in the report of the guardian ad litem should include, but is not limited to, the following information:

   (i) Dates of, and description of, the type of contact and communication with the juvenile;

   (ii) Listing of documents reviewed;

   (iii) The guardian ad litem's concerns regarding any specific matters or problems which, in the opinion of the guardian ad litem, need special, further, or other attention in order to protect or facilitate the juvenile's legal and best interests; and

   (iv) The guardian ad litem's assessment of and recommendations regarding the juvenile's placement in light of his or her needs and legal and best interests.

   (c) To assist the guardian ad litem in preparing the written report, the guardian ad litem shall use the "Report of Guardian Ad Litem" form found at Appendix 1.

   (4) Participation in court proceedings.

   (a) The guardian ad litem shall attend all hearings unless expressly excused by the court.

   (b) The guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.

   (c) Where the guardian ad litem is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such guardian ad litem may make proper arrangements for another attorney to attend the hearing as long as no other party objects and as long as the hearing is not anticipated to be a contested evidentiary hearing. In such a situation, the guardian ad litem does not need to be excused from attendance at the hearing.

   (d) The guardian ad litem should advocate for the juvenile to be present at all court hearings as appropriate and take steps where necessary to ensure such attendance on the part of the juvenile.

   (5) Duty to provide quality representation.

   (a) Any attorney appointed by the court to serve as a guardian ad litem for a juvenile, or to provide guardian ad litem services for juveniles, is expected to provide quality representation and advocacy for the juveniles whom he or she is appointed to represent, throughout the entirety of the case.

   (b) To that end, a guardian ad litem should not accept workloads or caseloads that by reason of their excessive size or demands, including, but not limited to, factors such as the number of children represented at any given time, interfere with or lead to the breach of the professional obligations or standards required to be met by a guardian ad litem by statute or by court rules.

   (c) Attorneys should not accept caseloads or appointments to serve as a guardian ad litem or to provide guardian ad litem services that are likely to, in the best professional judgment of the appointed attorney, lead to the provision of representation or service that is ineffective to protect and further the interests of the juvenile, or likely to lead to the breach of professional obligations of the guardian ad litem.

   (F) Termination of Authority of Guardian Ad Litem.

   (1) The authority of the guardian ad litem shall commence upon appointment by the court and shall continue in that case until such time as the court terminates its jurisdiction.

   (2) The guardian ad litem may voluntarily withdraw from representation in any case where the guardian ad litem files a motion to withdraw, and the court, in its discretion, enters a corresponding order granting such withdrawal.

   (3) A guardian ad litem may be removed from a case by the court for cause, where the court finds that the guardian ad litem's performance is inadequate, that the guardian ad litem has substantially failed to discharge duties or act to protect the best interests of the juvenile(s) for whom the guardian ad litem was appointed, or that any other factor or circumstance prevents or substantially impairs the guardian ad litem's ability to fairly and fully discharge his or her duties. In determining whether removal of the guardian ad litem is warranted in a particular case, the court should assess the guardian ad litem's performance under the requirements and standards of practice imposed upon a guardian ad litem by both the Nebraska Juvenile Code as well as by § 6-1705.

   (G) Compensation for Guardians Ad Litem Not Covered by Multi-Case Contract.

   (1) The Supreme Court may establish a statewide uniform minimum hourly rate of compensation for guardians ad litem.

   (2) Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attorney spends traveling in fulfilling his or her obligations as the guardian ad litem.

   (3) Guardians ad litem shall be compensated for all hours reasonably necessary to provide quality legal representation as documented in fee applications.

§ 6-1705 adopted June 24, 2015.

unanimous

§ 6-1706. Practice guidelines for attorneys in juvenile court.

§ 6-1706. Practice guidelines for attorneys in juvenile court.

   (A) General Purpose, Objectives, and Scope.

   (1) The purpose of these guidelines is to ensure high quality legal representation by all attorneys appearing before the juvenile court. These practice guidelines do not replace ethical obligations under the Nebraska Rules of Professional Conduct, Neb. Ct. R. of Prof. Cond. § 3-501.0 et seq., and are meant to set out a minimum level of competent practice as guidelines for attorneys appearing before the juvenile court. All attorneys shall discharge their duties in accordance with the Nebraska Rules of Professional Conduct.

   (2) These guidelines acknowledge that the goal of juvenile court is to ensure the rights of juveniles; to promote the best interests, safety, permanency of children, and rehabilitation of families; and to provide fair hearings where parties' rights are recognized and enforced, consistent with Neb. Rev. Stat. § 43-246.

   (3) These guidelines are meant to be read in conjunction with Neb. Ct. R. §§ 6-1468 and 6-1705, practice standards for guardians ad litem for juveniles in juvenile court proceedings, and are not intended to replace or supersede them.

   (B) Responsibilities of Attorneys to Ensure High Quality Legal Representation.

   (1) Defense counsel for juveniles.

   (a) Counsel should elicit the juvenile's point of view and encourage full participation.

   (b) Counsel should use developmentally appropriate language to advise the juvenile in all matters.

   (c) Counsel should consult with the juvenile prior to all hearings, including detention hearings.

   (d) Before the first appearance, the attorney should explain the purposes of the juvenile code, consequences of the court finding the allegations of the petition to be true, and rights advisory [Neb. Rev. Stat. § 43-249].

   (e) The attorney should provide the client with copies of all pleadings and orders in their case.

   (f) When appropriate, counsel should obtain records, including by means of issuing a subpoena, concerning the juvenile's mental health; educational background and/or abilities; documents detailing school achievement and discipline; positive community or extracurricular activities; employment; involvement in the child welfare system; and prior police and court involvement.

   (g) Using sound discretion, the attorney should review with his or her client contents of all reports, service plans, case documents, and other materials relevant to the proceedings, including those identified in section (f) and take steps to verify the veracity of facts contained therein.

   (h) Counsel shall communicate every plea offer extended to the juvenile and should obtain the juvenile's permission prior to discussing the plea offer with the juvenile's parent, guardian, or custodian.

   (i) Counsel should explain to the juvenile how and when to communicate with counsel during the hearing and appropriate behavior expected in a courtroom.

   (j) Counsel should present evidence of material defenses, which may include capacity based on age, and concepts of adolescent development.

   (k) Counsel should make reasonable efforts to obtain current information of potential services and placement options for the juvenile.

   (l) Counsel should explain the dispositional process and disposition alternatives with the juvenile. Counsel should obtain the juvenile's permission before discussing with the client's parent, guardian, or custodian the dispositional process and, if the juvenile's permission is obtained, counsel should inquire about the willingness of the parent, guardian, or custodian to support the juvenile's proposed disposition alternatives.

   (m) Counsel shall not recommend a disposition to the court without the juvenile's consent.

   (n) Counsel shall review the content of the predisposition investigation report with the juvenile prior to disposition.

   (o) Counsel should advise the juvenile concerning the disclosure of the juvenile's record and the legal mechanisms available to seal the record.

   (p) Counsel should assist in legal needs of the juvenile by providing zealous representation in all stages of the proceedings, all hearings and matters which include, but are not limited to, further disposition hearings; revocation hearings; modification of terms of probation hearings; hearings for the purpose of committing the client to the Youth Rehabilitation and Treatment Center; investigating safety and well-being complaints in institutions; and problems that may require a new placement option.

   (q) The potential for conflict of interest between an accused juvenile and his or parent, guardian, or custodian should be clearly recognized and acknowledged. All parties should be informed that the attorney is counsel for the juvenile and that in the event of disagreement between a parent, guardian, or custodian, and the juvenile, the attorney represents the interests of the juvenile. Further, meetings that include the parent, guardian, or custodian may not provide the protection of privilege to the juvenile’s statements to his or her attorney.

   (2) Prosecuting attorneys.

   (a) The primary duty of the prosecutor is to seek justice while fully and faithfully representing the interests of the State. While the safety and welfare of the community, the victim(s), and juvenile(s) under Neb. Rev. Stat. § 43-247(3)(a) are the primary concerns, prosecuting attorneys should consider the special circumstances and rehabilitative potential of the juvenile in delinquency, status offense, or Neb. Rev. Stat. § 43-247(3)(c) cases, or of a parent, guardian, or custodian in a Neb. Rev. Stat. § 43-247(3)(a) case to the extent they can do so without unduly compromising their primary concern.

   (b) In determining whether to file formally or to offer pretrial diversion or mediation in cases under Neb. Rev. Stat. § 43-247(1), (2), (3)(b), or (4), the prosecutor should follow Neb. Rev. Stat. §§ 43-274 and 43-276.

   (c) Prosecutors should make transfer motion decisions on a case-by-case basis and take into account the individual factors set forth in Neb. Rev. Stat. § 43-276.

   (d) The decision to enter into a plea agreement should be governed by the interests of justice and Neb. Rev. Stat. § 43-246. The prosecutor should also consider the juvenile's, parent's, guardian's, or custodian's potential for rehabilitation.

   (e) For dispositions, the prosecutor should make a recommendation consistent with community safety after reviewing reports prepared by prosecutorial staff, the Department of Health and Human Services, the probation department, and others. In making a recommendation, the prosecutor should seek the input of the victim(s), or juvenile(s) in a Neb. Rev. Stat. § 43-247(3)(a) case, and consider the rehabilitative needs of the juvenile in delinquency, status offense, or Neb. Rev. Stat. § 43-247(3)(c) cases, or parent, guardian, or custodian in Neb. Rev. Stat. § 43-247(3)(a) cases, provided that they are consistent with community safety and welfare.

   (f) The prosecutor should consider the victim's input at all phases of the case. At the dispositional hearing, the prosecutor should make the court aware of the impact of the juvenile's conduct on the victim and the community. The prosecutor should also be required to keep victims informed at all stages of the proceedings if requested by the victim.

   (3) Attorneys that represent a parent, guardian, or custodian in juvenile court.

   (a) The attorney should explain the rights of the parent, guardian, or custodian to information and decisionmaking regarding the child(ren) while the child(ren) is under the jurisdiction of the juvenile court.

   (b) The attorney should provide the client with copies of all petitions, court orders, service plans, and other relevant case documents, including reports regarding the child(ren) except when expressly prohibited by law, rule, or court order. The attorney should review with his or her client, and take reasonable steps to verify the veracity of facts contained in all reports, service plans, and case documents relevant to their proceedings.

   (c) The attorney should be aware of the unique issues of an incarcerated parent, guardian, or custodian.

   (d) The attorney should be aware of the client's mental health status and be prepared to assess whether the parent, guardian, or custodian can assist with the case.

   (e) The attorney should advocate for appropriate services for the parent, guardian, or custodian; this could include requesting a guardian ad litem for the client.

   (f) The attorney should consider and discuss the possibility of appeal with the parent, guardian, or custodian.

   (g) The attorney should conduct discovery as necessary.

   (4) Agency and tribal attorneys.

   (a) Agency or tribal attendance at hearings is not required for all juvenile cases in which the agency or tribe is an interested party.

   (b) Once counsel for the agency or tribe has entered an appearance, the agency's or tribe's counsel is entitled to recognition as an attorney of record in the case. In addition, the agency's or tribe's counsel is responsible for identifying an address for which all pleadings, documents, exhibits, and other correspondence are to be sent.

   (c) The agency's or tribe's attorney role is to represent the agency or tribe and advocate for the agency's or tribe's position in a way that is consistent with agency and tribal standards.

   (d) The agency or tribal attorneys, or tribal representatives (see Neb. Rev. Stat. § 43-1504(3)) may offer evidence, file motions, and request hearings as necessary.

   (C) Duties of Attorneys.

   (1) Consultation with client.

   (a) The phrase "consultation with client" generally means meeting in person unless prohibited or made impracticable by exceptional circumstances as set forth herein.

   (b) Attorneys should consult with their client as soon as possible after being retained or appointed and as necessary thereafter when reasonably possible and at all those times and intervals as required by the Nebraska Juvenile Code.

   (c) Contact through distance technology may be used if in person contact is prohibited by distance and/or any other reason or circumstance that otherwise inhibits in person communication.

   (d) Where an unreasonable geographical distance is involved between the location of the client and the appointed attorney, the appointed attorney should explore the possibility of obtaining from the court an advance determination that the court will approve payment or reimbursement of the attorney's reasonable expenses, consistent with court appointment fees and expense rate in that judicial district, in connection with the travel to meet with the client.

   (2) Participation in court hearings.

   (a) Prosecutors, attorneys for juveniles, parents, guardians, and custodians should attend all court hearings unless excused by the court. All other attorneys should attend as requested by their client.

   (b) When feasible, the duties of appointed counsel should be personal to the attorney and should not normally be delegated to another person or lawyer. Where an attorney is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such attorney should make proper arrangements for another attorney to attend the hearing. It is the responsibility of the attorney making such arrangements to ensure that the attorney who assumes his or her duties is qualified as provided by these guidelines.

   (c) Attorneys representing juveniles, parents, guardians, or custodians should advocate for their clients to be present at all court hearings as appropriate and should take steps where necessary to ensure such attendance on the part of the client.

   (3) Duty to provide quality representation.

   (a) Any attorney appearing in juvenile court is expected to acquire sufficient working knowledge of the Nebraska Juvenile Code and all relevant federal laws, state laws, regulations, policies, and rules.

   (b) Attorneys should not accept caseloads that are likely to lead to representation that is ineffective to protect the interests of their client or likely to breach the professional obligations of the attorney.

   (c) Attorneys should attend and participate in case planning, family group decisionmaking, and other meetings a client may have with the child welfare agency. In the event it is impracticable to attend the meeting, the attorney should timely follow up with applicable professionals involved.

   (d) Counsel should inform the client of the right to appeal a final order and explain the consequences of the decision to waive an appeal.

   (D) Termination of Authority.

   (1) The authority of the attorney shall commence upon appointment or entry of appearance by retained counsel, and shall continue until such time as the court terminates its jurisdiction, or there are no scheduled review hearings in court, or the court otherwise discharges the attorney.

   (2) An attorney may withdraw from representation when the attorney files a motion to withdraw, and the court, in its discretion, enters a corresponding order granting such withdrawal. Termination of representation may only be sought or granted if it is in compliance with Neb. Ct. R. § 3-501.16.

   (3) Judges are encouraged to make inquiry of appointed attorneys that fail to fully comply with these guidelines. An appointed attorney may be removed from a case for cause, where the court finds that the attorney's performance is inadequate, that the attorney has failed to discharge duties or to protect the interests of the client for whom the attorney was appointed, or that any other factor or circumstance prevents or substantially impairs the attorney's ability to fairly and fully discharge his or her duties.

   (E) Compensation for Court-Appointed Attorneys.

   (1) An attorney appointed by a court shall be paid at the hourly rate established by the court.

   (2) Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attorney spends traveling in fulfilling his or her professional obligations.

   (F) Education.

   (1) Appointed counsel. To be considered a candidate for appointment in a juvenile case under the Nebraska Juvenile Code for a juvenile, parent, guardian, or custodian, an attorney should have completed sufficient continuing legal education relating to the Nebraska Juvenile Code and practice in the Nebraska juvenile courts.

   (2) Retained or other counsel. Attorneys who are not appointed by the court to represent juveniles, parents, guardians, or custodians, and are either privately retained or represent the State, other agencies, or tribes, are encouraged to obtain education that furthers compliance with these guidelines and includes education regarding the Nebraska Juvenile Code or education related to the attorney's specific practice in the juvenile courts.

§ 6-1706 adopted September 27, 2017; § 6-1706 amended June 15, 2022.

unanimous

§ 6-1707. Emergency Modified Court Operations.

§ 6-1707. Emergency Modified Court Operations.

  (A) On or before January 1, 2022, the county court, district court, and separate juvenile court judges within each judicial district shall jointly adopt a local rule setting out the procedures governing emergency modified court operations in their judicial district.

   (B) Such local rule shall include, but not be limited to:

   (1) Establishing criteria for how the judicial district will determine when emergency modified court operations should be implemented, and when normal court operations should resume;

   (2) Listing the stakeholders within the judicial district to include in planning and implementing any emergency modified court operations.

   (3) Identifying who within the judicial district will coordinate and facilitate communication with the group of justice stakeholders to plan and implement any emergency modified court operations plan;

   (4) Listing all mission essential functions to be considered and addressed in any emergency modified court operations plan; and

   (5) Identifying how court users and the public will be informed when emergency modified court operations are implemented and when they are discontinued.

   (C) Such local rule shall be governed by § 6-1702.

§ 6-1707 adopted November 24, 2021.

 

unanimous

§ 6-1708. Waiver of right to counsel in juvenile cases.

§ 6-1708. Waiver of right to counsel in juvenile cases.

   This rule provides a process to ensure that a juvenile has consulted with counsel, and if not, is provided with the opportunity to consult with counsel prior to the juvenile exercising his or her right to waive his or her right to counsel.

   At the first appearance, when the petition alleges the juvenile to be within the provisions of subdivision (1), (2), (3)(b), or (4) of Neb. Rev. Stat. § 43-247 and the juvenile appears without counsel, or expresses the desire to waive the right to counsel, the court shall explain to the juvenile that the juvenile has a right to consult with counsel prior to waiving his or her right to counsel. The court shall inquire if the juvenile consulted with counsel prior to the appearance. If the juvenile did not consult with counsel, the court shall inquire if the juvenile wishes to consult with counsel prior to waiving his or her right to counsel. If the juvenile did not consult with counsel and does not wish to consult with counsel, the court may accept the waiver, provided the waiver complies with Neb. Rev. Stat. § 43-3102. If the juvenile wishes to consult with counsel prior to waiving his or her right to counsel, the court shall recess or continue the proceeding for the limited purpose of consulting on the waiver of the right to counsel and, if appropriate, appoint counsel as provided in Neb. Rev. Stat. § 43-272, or otherwise provide the juvenile with the opportunity to consult with counsel.

§ 6-1708 adopted May 19, 2022, effective July 1, 2022.

unanimous

Article 18: Handling Neb. Rev. Stat. § 27-1301 Child Pornography Exhibits.

Article 18: Handling Neb. Rev. Stat. § 27-1301 Child Pornography Exhibits.

(Adopted January 27, 2010.)

unanimous

§ 6-1801. Access to Neb. Rev. Stat. § 27-1301 child pornography evidence.

§ 6-1801. Access to Neb. Rev. Stat. § 27-1301 child pornography evidence.

   (A)(1) If a court concludes that evidence in a proceeding falls within the scope of Neb. Rev. Stat. § 27-1301, and based thereon limits access to or reproduction of such evidence, the court shall, unless otherwise required by law, constantly and continuously retain care, custody, and control of such property or material, except upon a specific order of that court directing otherwise, such as pursuant to § 27-1301(3)(b).

   (2) If a party requests that such evidence be submitted to the appellate courts as part of the record on appeal, it shall be clearly and conspicuously identified as § 27-1301 property or material and shall be placed in a separate sealed envelope or container, as appropriate, prior to being forwarded to the clerk of the appellate court. The procedures within this rule shall apply to property or material falling within the scope of § 27-1301 which is introduced into evidence in a court proceeding, whether it is received or excluded by the court, if such evidence is retained by the court as part of the record in the case.

   (3) Upon return of such evidence to the trial court following disposition of an appeal, care, custody, and control of such material or property shall remain the responsibility of that court until such evidence is returned to the proper introducing attorney in accordance with Neb. Ct. R. §§ 6-501 through 6-505 or as otherwise ordered by the court.

   (B)(1) In all appeals involving property or material constituting visual depiction of sexually explicit conduct involving a child, as defined by § 27-1301, if such evidence is forwarded to the clerk of the court to which the appeal is taken, including a district court acting as an appellate court, and becomes part of the record on appeal, the appellate court shall constantly and continuously retain care, custody, and control of such material and it shall not be removed from the office of the clerk except upon order of that court.

   (2) The provisions of this rule shall apply to any § 27-1301 property or material at issue in an administrative agency proceeding where such property or material is subsequently filed with the record on appeal to any court.

unanimous

§ 6-1802. Equipment required for accessing child pornography evidence.

§ 6-1802. Equipment required for accessing child pornography evidence.

   (A) For purposes of making property or material constituting visual depiction of sexually explicit conduct involving a child "reasonably available" to a defendant as required by Neb. Rev. Stat. § 27-1301(3)(a), any specialized equipment or facilities necessary for inspection, viewing, examination, and analysis of such evidence shall be the responsibility of the introducing attorney or law enforcement. Courts shall not be required to acquire or provide specialized equipment or establish new facilities to effectuate the purpose of § 27-1301(3)(a).

   (B) If a copy of property or material constituting visual depiction of sexually explicit conduct involving a child is provided to a defense expert pursuant to § 27-1301(3)(b) by any court or agency, any defendant or his or her attorney seeking further access to such evidence in any other court shall be required to show good cause for requiring such access.

unanimous

Article 19: Nebraska Court Rules for Probation Practices.

Article 19: Nebraska Court Rules for Probation Practices.

(adopted December 16, 2015)

unanimous

§ 6-1901. Custodial sanctions.

§ 6-1901. Custodial sanctions.

   The purpose of § 6-1901 is to provide the courts and probation with a procedure to ensure prompt court review of requests for the imposition of custodial sanctions.

   (A) When a probationer, who is eligible for a custodial sanction pursuant to Neb. Rev. Stat. § 29-2266.02(3)(b), admits to a violation of probation, consents to a custodial sanction, and waives the right to a hearing in writing, or when such probationer declines to acknowledge the violation of probation, the violation report and request for a custodial sanction shall be forwarded by the probation office to the court within 2 working days following the probation officer's detection of the violation, for judicial approval or denial.

   (B) If the probationer admits to a violation of probation, consents to a custodial sanction, and waives the right to a hearing in writing, the court shall either: (1) if the court approves the custodial sanction, within 5 judicial days of receiving the violation report and request for a custodial sanction, issue and distribute a commitment order with instructions as to the time, date, institutional location, and duration of the custodial sanction; or (2) schedule a hearing to determine whether the requested sanction is too severe or not severe enough.

   (C) If the probationer declines to acknowledge the violation or declines to agree to the custodial sanction, the probation officer shall immediately obtain a hearing date from the court.

   (D) The court shall make every effort to conduct a hearing within 10 judicial days following receipt of the notification of violation report and request for a custodial sanction. If a hearing cannot be held within this timeframe, one shall be scheduled at the earliest opportunity. If the probationer does not have counsel and requests counsel but cannot afford one, the court shall appoint counsel to represent the probationer prior to the hearing. The probation officer shall also provide notice of the hearing to the appropriate prosecuting attorney and to the probationer.

   (E) The court shall receive into evidence the affidavit in support of custodial sanction and any evidence provided by the probationer or counsel for the State or counsel for the defendant. An assigned probation officer shall appear. The hearing may be held, and attorneys, the probation officer, and the probationer may appear, by way of video or other technology when available. 

   (F) After the hearing, if the court determines that the probationer has violated probation and that a custodial sanction should be imposed, the court shall issue and distribute a commitment order with instructions as to the time, date, institutional location, and duration of the custodial sanction. Otherwise, the court shall issue an order denying the request for custodial sanction.

§ 6-1901 adopted December 16, 2015; § 6-1901 amended June 29, 2016.

unanimous

§ 6-1902. Custodial sanctions for Interstate Compact cases.

§ 6-1902. Custodial sanctions for Interstate Compact cases.

   The purpose of § 6-1902 is to ensure compliance with the Interstate Compact for Adult Offender Supervision rules and regulations, which carry the weight of federal law and require that probationers transferred between states be supervised as would probationers in the state in which they are supervised. See Neb. Rev. Stat. §§ 29-2639 and 29-2640. Probationers under supervision in Nebraska, but on probation from other states, are also subject to the application of custodial sanctions while being supervised in Nebraska. The following is intended to ensure prompt court review of requests for the imposition of custodial sanctions.

   (A) The presiding district court judge, or designee, in the jurisdiction in which the probationer is under supervision shall serve as the authorizing court for purposes of administrative and custodial sanctions in accordance with § 6-1901

§ 6-1902 adopted December 16, 2015.

unanimous

§ 6-1903. Early discharge from probation.

§ 6-1903. Early discharge from probation.

   The purpose of § 6-1903 is to ensure the length of supervision is consistent with the risk and need of individuals and fully incorporated into probation supervision practices. The following is intended to provide structure for early discharge where appropriate, for low to moderate risk to reoffend individuals, thereby maximizing probation resources.

   (A) Pursuant to Neb. Rev. Stat. § 29-2263(1) and (2), the probation officer may submit an application for early discharge at any time. The probation officer shall submit an application for early discharge if the following have been met:

   (1) Three-quarters of the imposed sentence is served;

   (2) No major violations during the preceding 6 months;

   (3) The individual is in compliance with all other conditions, including, but not limited to, being current on fees owed and having paid all restitution, court costs, and fines in full; and

   (4) The assessed risk level indicates the individual is at a reduced risk of recidivism.

   (B) Pursuant to Neb. Rev. Stat. § 29-2263(1) and (2), the court may consider early discharge at any time. The court shall consider early discharge of eligible probationers, upon application, who have served at least three-quarters of the period of probation and after review of a discharge summary received from the probation office. The discharge summary shall provide information regarding performance while under supervision, demonstrated behavioral change, and reduction in risk including, but not limited to, no major violations during the preceding 6 months and compliance with all conditions, including fees, restitution, court costs, and fines.

   (C) Upon approval by the court, the order shall be filed with the Court Clerk and notice given to the probationer and counsel of record. Victims shall be notified if required by law. Upon denial by the court, the court shall communicate to the probation officer who shall notify the probationer. 

§ 6-1903 adopted December 16, 2015.

unanimous

§ 6-1904. Post-release supervision.

§ 6-1904. Post-release supervision.

   The purpose of § 6-1904 is to ensure that as a part of a determinate sentence, a post-release supervision plan is created to offer a smooth, meaningful, and comprehensive transition of probationers from a term of incarceration to community supervision. A post-release supervision plan shall be confidential.

   (A) In cases requiring a determinate sentence pursuant to Neb. Rev. Stat. § 29-2204.02, the court shall, at the time a sentence is pronounced, impose a term of incarceration and a term of post-release supervision pursuant to Neb. Rev. Stat. § 29-2204.02(1), and shall enter a separate post-release supervision order that includes conditions pursuant to Neb. Rev. Stat. § 29-2262. The court shall specify, on the record, that conditions of the order of post-release supervision may be modified or eliminated pursuant to Neb. Rev. Stat. § 29-2263(3).

   (B) The court shall receive a post-release supervision plan no later than 45 days prior to the individual’s anticipated date of release from the Department of Correctional Services. The court shall consider modification to the post-release supervision order, upon application and recommendation, based upon the post-release supervision plan from the probation office. The plan shall be collaboratively prepared by the Office of Probation Administration and the Department of Correctional Services to provide information regarding performance and programming while incarcerated, an updated risk/needs assessment, along with a community needs and service assessment.

   (C) The court shall receive a post-release supervision plan no later than 30 days prior to the individual’s anticipated date of release from the local county jail. The court shall consider modification to the post-release supervision order, upon application and recommendation, based upon the post-release supervision plan from the probation office. When an individual has been incarcerated in a local county jail, the post-release supervision plan shall be defined as the presentence investigation, or a subsequent risk and needs assessment, and other available information.

   (D) No later than 30 days prior to the individual’s anticipated date of release from the Department of Correctional Services, the court shall, if applicable, modify the post-release supervision order. No later than 15 days prior to the individual’s anticipated date of release from local county jail, the court shall, if applicable, modify the post-release supervision order. 

§ 6-1904 adopted December 16, 2015; § 6-1904(A) adopted June 29, 2016. 

unanimous

§ 6-1905. Interstate Compact and JUSTICE.

§ 6-1905. Interstate Compact and JUSTICE.

   The purpose of § 6-1905 is to provide the courts with a procedure to ensure that fees, filings, custodial sanctions, and appointment of counsel on transferred Interstate Compact cases pursuant to the Interstate Compact for Adult Offender Supervision are recorded in JUSTICE, thus promoting uniform, statewide recordkeeping. See Neb. Rev. Stat. §§ 29-2639 and 29-2640.

   (A) Upon receipt of the signed Nebraska Interstate Compact Offender Agreement, the Nebraska Compact Office shall forward, within 5 judicial days, the following to the District or County Court Clerk in the county in which the probationer will be supervised:

   (1) The probation terms and conditions from the sending state.

   (2) The Nebraska Interstate Compact Agreement signed by both the probationer and the supervising probation officer.

   (B) Upon receipt of the signed Nebraska Interstate Compact Offender Agreement, and within 5 judicial days, the Court Clerk in the receiving county shall enter the transferred case details into JUSTICE and assign the case a distinguishing case number denoting the case is an Interstate Compact transfer case.

   (C) Unless otherwise expressly provided by law, no filing fees or court costs shall be assessed in an Interstate Compact transfer case.

§ 6-1905 adopted December 16, 2015.

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§ 6-1906. Rules for electronic access to reports by the prosecuting attorney, juvenile's counsel, defense counsel, and the courts.

§ 6-1906. Rules for electronic access to reports by the prosecuting attorney, juvenile's counsel, defense counsel, and the courts.

   (A) Inspection of presentence reports under Neb. Rev. Stat. § 29-2261 and predispositional reports of juveniles under Neb. Rev. Stat. § 43-2,108(4) ("reports") by the prosecuting attorney, juvenile's counsel, and defense counsel shall be by electronic means as determined and developed by the Administrative Office of the Courts and Probation unless the trial court determines such access is not available.

   (B) All probation districts shall follow a standardized procedure and process for creating, storing, inspecting, and sharing reports. The Administrative Office of the Courts and Probation shall provide instruction on procedures so that each probation district is creating and sharing the same information in the same manner.

   (C) Once a court orders a report under § 29-2261 or § 43-281, and the report is completed for a criminal defendant or juvenile, the probation office shall convert the report and any evaluation(s) and/or examination(s) into a portable document format (PDF), bearing the file extension ".pdf" containing a computer-readable image of a document, capable of being viewed with a recent version of Adobe Reader or similar software.

   (D) The Probation Office shall upload the report into the probation case management system. Once the document has been uploaded, it will be available for the judge to view via the court case management system and via the court-authorized service provider judge portal.

   (E) Once the report is received electronically, the judge may then open electronic access to the prosecuting attorney, juvenile's counsel, and defense attorney entered on the case, as specified in the court's case management system, JUSTICE. Attorney access is via the Internet through the court-authorized service provider for E-Filing. A judge may provide access to the report to another judge who may be sentencing the same individual in a different court and may provide access to the report to any other attorney authorized by statute to have such access.

   (1) The report and its contents shall not be disclosed directly or indirectly by the attorneys or the trial judge absent a court order specifying to whom the report may be disclosed.

   (2) Attorneys shall not permit others to use their log-in or password information to view or inspect reports in the E-Filing portal.

   (3) Except as set forth in § 6-1906(E)(5), attorneys shall not duplicate reports by printing, copying, or saving them, or through screenshots, photographs, or other measures. Anyone determined to have duplicated a report by any means, or otherwise breached the confidentiality of a report, may be charged with contempt of court and/or referred to the Counsel for Discipline for further action.

   (4) The trial court shall determine when access to the report through the portal by the named attorneys shall cease.

   (5) An attorney may make one printed copy of a report or utilize one electronic copy of a report on a single electronic device by complying with all of the following conditions:

   (a) The attorney’s name and bar number must appear on each page of the printed document or electronic copy;

   (b) The printed copy or the electronic device must remain within the attorney’s possession and control at all times;

   (c) The juvenile’s counsel or defense counsel shall not show or display the report to any person other than his or her client who is the subject of the report;

   (d) The attorney shall not permit any person, including the client who is the subject of the report, to exercise possession or control of the report, or to copy any of its contents by any method;

   (e) The attorney shall not transmit any such copy by any means to any person who has not been authorized by the judge to receive a copy;

   (f) Immediately after sentence has been imposed in a criminal matter, the prosecuting attorney and defense counsel shall:

   (i) Deliver the printed copy to a probation officer present at sentencing or to the local probation office for destruction, or comply with any alternative instructions of the sentencing judge to accomplish destruction;

   (ii) Shall immediately and permanently delete the electronic copy.

   (g) Juvenile hearings.

   (i) The court shall provide access to reports and evaluations of the juvenile to the juvenile’s counsel and the prosecuting attorney prior to any hearing in which the report or evaluation will be relied upon;

   (ii) Juvenile counsel who maintain a printed or electronic copy of a report and/or evaluations to be used at a subsequent hearing are not in violation of this rule as long as the records are not distributed or confidentiality is not breached;

   (iii) If juvenile court jurisdiction is terminated, or the juvenile’s counsel withdraws or is no longer counsel, the juvenile’s counsel shall deliver any printed reports or evaluations to the probation office for destruction, or comply with any alternative instruction of the judge to accomplish such destruction, and shall permanently delete the electronic copy of any report and/or evaluation.

   (6) Substitute attorney compliance and reporting violations.

   (a) Any attorney who substitutes for the original attorney shall be responsible to comply with all of these conditions;

   (b) Any probation officer or probation staff member who becomes aware of any failure to comply with any of these conditions shall promptly notify the district Chief Probation Officer, who shall notify the judge; and

   (c) Any judge or attorney who becomes aware of any failure to comply with any of these conditions shall promptly take appropriate action, which may include reporting the same to the court and/or Counsel for Discipline.

   (F) Once the Probation Office completes a report, any addenda or supplements to the report shall be given to the Probation Office, even if personally received by the trial court, for inclusion in the report. If addenda or supplements are received by the court on the date of sentencing or disposition, then the court shall provide the original to the Probation Office as soon as practicable for inclusion in the report and may allow the prosecuting attorney and defense counsel to inspect a copy.

   (G) Appeals. If the conviction, adjudication, disposition, and/or sentence is appealed, transfer of the report to the appellate courts shall be electronic, in a manner prescribed by the Administrative Office of the Courts and Probation.  This procedure shall be deemed to be in compliance with the provisions of chapter 2 of these rules.

   (1) Attorney access on appeal. The Probation Office shall upload the report through the court-authorized service provider portal to the Clerk of the Supreme Court and Court of Appeals. The Clerk may open electronic access to counsel of record listed on the appeal, as specified in the court’s case management system, SCCALES. Attorney access is via the internet through the court-authorized service provider for filing. Electronic access shall also be available in the office of the Clerk of the Supreme Court and Court of Appeals using the terminal provided.

   (2) The provisions of § 6-1906(E) (1), (2), (3) and (5) shall apply to reports viewed in the appellate courts except that after issuance of the mandate in the appeal, counsel shall proceed as provided in § 6-1906(E)(5)(f)(i) or (ii)

   (3) Whenever the mandate in the appeal has issued, access to the report through the portal by the named attorneys shall cease.

   (H) Access to the report by the appellate courts for cases on appeal shall be through the appellate courts' secure systems.

§ 6-1906 adopted June 29, 2016; § 6-1906 amended September 18, 2019; § 6-1906(G) amended January 2, 2025.

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Article 20: Rules for Expanded News Media Coverage in Nebraska Trial Courts.

Article 20: Rules for Expanded News Media Coverage in Nebraska Trial Courts.

(adopted December 21, 2016, effective March 1, 2017)

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§ 6-2001. Scope; limitations.

§ 6-2001. Scope; limitations.

   (A) Expanded news media coverage shall be permitted in the county and district courtrooms in Nebraska courts, except as otherwise provided for within these rules.

   (1) Expanded news media coverage is prohibited by anyone other than court personnel, those authorized under these rules, and/or as otherwise ordered by a judicial officer.

   (2) The Nebraska Juvenile Code serves the best interests of the child through protecting privacy, nonpunitive interventions, and rehabilitative outcomes. Expanded news media coverage therefore is not permitted in actions pending in Nebraska’s juvenile courts.

   (B) The official record of all judicial proceedings are the exclusive duty of the official court reporters and courtroom clerks pursuant to Neb. Ct. R. § 1-201 et seq.

§ 6-2001 adopted December 21, 2016, effective March 1, 2017; § 6-2001 amended June 24, 2020; § 6-2001 amended March 10, 2021.

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§ 6-2002. Definitions.

§ 6-2002. Definitions.

   (A) Conference. A conference refers to any conversation between attorneys and their clients, between co-attorneys, between attorneys and the judicial officer and court staff held at the bench, judicial chambers, or judicial staff offices. It extends to include attorney’s notepads, computer screens, or any communication intended to be private or confidential.

   (B) Credentials. News media which has consented to providing expanded news media coverage in compliance with the Rules for Expanded News Media, Neb. Ct. R. §§ 6-2001 through 6-2005, and demonstrated proficiency in providing expanded news media coverage may, upon application with and the approval of the Public Information Office of the Nebraska Supreme Court, be considered qualified for credentialing by the Public Information Officer.

   (C) Expanded News Media Coverage. Expanded news media coverage includes broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.

   (1) Electronic device notetaking does not constitute expanded news media coverage. See § 6-2003(N).

   (D) Good Cause. Good cause means a substantial reason; one that affords a justifiable basis which is a subjective, factual question within the sole discretion of the judicial officer. A finding of good cause by the judicial officer for exclusion, suspension, or termination of expanded news media coverage does not constitute closing in whole or in part judicial proceedings as promulgated in Neb. Ct. R. §§ 6-201 through 6-205.

   (E) Judicial Officer. Judicial Officer is any presiding judge of the judicial district and any Nebraska judge or clerk magistrate presiding over the case in which expanded news media coverage under these rules applies.

   (F) Judicial Proceedings or Proceedings. All public trials, hearings, or other proceedings in a trial court, for which expanded news media is requested, except as specifically excluded by these rules.

   (G) News Media. Any authorized representative of a news organization that has been credentialed by the Public Information Officer of the Nebraska Supreme Court.

   (H) News Media Coordinator. Coordinators include only those designated by the Nebraska Supreme Court (see § 6-2004(B)).

§ 6-2002 adopted December 21, 2016, effective March 1, 2017; § 6-2002(A) amended June 24, 2020; § 6-2002 amended March 10, 2021.

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§ 6-2003. General.

§ 6-2003. General.

   Expanded news media coverage of judicial proceedings as set forth in the definition of Judicial Proceedings (see § 6-2002(F)) shall be permitted under the following conditions and limitations:

   (A) Prior authorization. Except as set forth in subsection (E), no expanded news media coverage shall occur without prior authorization from the judicial officer, who may prescribe conditions of coverage as provided in this rule.

   (B) Rights to a fair trial. Expanded news media coverage of a proceeding is permitted unless the judicial officer finds that under the circumstances of the particular proceeding, such coverage would interfere with the rights of the parties to a fair trial.

   (C) Objections. Parties to the proceeding may object to expanded news media coverage of the judicial proceeding (see exception § 6-2003(E)). The ruling by the judicial officer on objections rests within the sole discretion of the judicial officer and is a nonappealable temporary injunction or suspension of expanded news media coverage.

   (D) Coverage of witnesses.

   (1) Expanded news media coverage of a witness may be denied by the judicial officer upon objection and showing of good cause.

   (2) Expanded news media coverage of the testimony of an alleged victim/witness in criminal or civil cases when the alleged victim/witness is a minor under 19 years of age, the proceedings relate to sexual abuse or sexual assault, or such are essential elements of the matter is not allowed.

   (E) Initial appearances in criminal proceedings in County Court.

   Expanded news media coverage of initial appearances in criminal proceedings in County Court involving bond settings and arraignments is permitted unless otherwise ordered by the court pursuant to § 6-2003(B), (F), and (J). The right of parties to object to expanded media coverage involving bond settings and arraignments does not extend to such proceedings.

   A judicial officer's granting of expanded news media coverage of an initial appearance applies only to that particular initial appearance. Authorization for expanded news media coverage of proceedings subsequent to the initial appearance must be requested separately under § 6-2004(C).

   (F) Excluded judicial proceedings. Expanded news media coverage is prohibited in:

   (1) pretrial criminal motion hearings;

   (2) all juvenile court proceedings;

   (3) criminal and civil cases where the plaintiff and/or defendant is under 19 years of age at the time of the judicial proceeding except in criminal cases in which the defendant, although a minor, is charged as an adult and the court has approved expanded news media coverage for that proceeding;

   (4) dissolution/divorce/modification/child support enforcement hearings;

   (5) all adoption proceedings;

   (6) all paternity case proceedings;

   (7) all protection order hearings;

   (8) all guardianship/conservatorship/probate case proceedings;

   (9) all trade secret case proceedings; 

   (10) all criminal and civil jury selection as further defined in § 6-2003(G); and

   (11) all grand jury proceedings.

   Note: Exceptions may be granted for subsections (1) through (9) when consent is obtained from all parties but remains subject to approval by the judicial officer.

   (G) Coverage of jurors. In all circumstances, expanded news media coverage of all summoned and/or impaneled jurors is prohibited. However, expanded news media coverage of the return of the jury's verdict shall be permitted, so long as there is no photographic, video, or audio coverage of jurors.

   (H) Court conferences. Expanded news media coverage of conferences (see § 6-2002(A)) held in a judicial proceeding between attorneys and their clients, between co-attorneys, between attorneys and the judicial officer and court staff held at the bench, judicial chambers, or judicial staff offices is prohibited, as is all related attorney work product on screens or in writing.

   (I) Equipment. The quantity and types of equipment permitted in the courtroom are subject to the discretion of the judicial officer consistent with these rules.

   (J) Limiting coverage during the proceedings. The judicial officer may exclude, suspend, limit, and/or terminate expanded news media coverage by one or more individual news reporters at any time during the proceedings in the event the judicial officer finds that these rules, or additional rules imposed by the judicial officer, have been violated or there is good cause to believe that the rights to a fair trial will be prejudiced.

   (K) Identification. All news media personnel authorized to broadcast, record, photograph, and live electronic report (e.g., tweeting, instant blogging, etc.) judicial proceedings in the courtroom must wear proof of Public Information Office credentialing that is clearly visible to the judicial officer, court security, the public, and members of the jury. Said personnel shall also be subject to any and all security screening/scanning as deemed necessary by any office or agency providing security for the particular courtroom or judicial proceeding. Identification must be in the form approved by the Public Information Office of the Nebraska Supreme Court.

   (L) Violation. Expanded news media coverage of one or more individual news reporters may be excluded, suspended, limited, and/or terminated by the judicial officer if there is good cause to find the news media has acted or failed to act in compliance with these rules and/or the order permitting expanded news media coverage in force at the time of the violation. A judicial officer’s finding of a violation is separate from an administrative suspension or revocation of credentials imposed by the Public Information Office of the Nebraska Supreme Court.

   (M) Administrative Suspension or Revocation of Media Credentials. The Public Information Officer of the Nebraska Supreme Court may suspend or revoke the credentials of a journalist upon the violation of these rules or an order of a judicial officer. Journalists who have suspended or revoked credentials by the Office of Public Information must reapply for credentialing. An administrative suspension or revocation of credentials does not constitute the closing of judicial proceedings.

   (N) Electronic device notetaking. Electronic device notetaking does not constitute expanded news media coverage under these rules and, therefore, shall be allowed by the court, with the following limitations:

   (1) Notetaking includes the typing of notes during court proceedings; or, the audio recording of court proceedings to be utilized only to check for accuracy of news reporting.

   (2) No audio recording of any kind shall be made of testimony provided by a child victim, a victim of sexual abuse or sexual assault as provided under § 6-2003(D)(2), a victim of domestic violence, or if the judicial officer denied expanded news media coverage of a witness under § 6-2003(D)(1).

   (3) Any dissemination of a copy of an audio recording made for purposes of notetaking requires permission under § 6-2004.

§ 6-2003 adopted December 21, 2016, effective March 1, 2017; § 6-2003(F) amended and (M) adopted June 24, 2020; § 6-2003 amended March 10, 2021.

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§ 6-2004. Procedural.

§ 6-2004. Procedural.

   (A) Credentialing. The Office of Public Information shall create, manage, and maintain an administrative process for issuance of credentials and maintaining a list of those in good standing with these rules. Credentials will be issued to journalists who write for newspapers or magazines with regular frequency of publication or prepare news to be broadcast on radio or television licensed by the Federal Communications Commission. In order to be credentialed, a journalist must successfully complete a review concerning these rules. Issued credentials shall expire two (2) years after the date of issuance. It will be the responsibility of the news media person to maintain current credential certification and comply with these rules in order to remain in good standing. 

   (1) The Office of Public Information shall maintain a list of those having been issued credentials and their status.

   (2) If the Public Information Officer determines the credentialed news media person is no longer in good standing, the news media person’s credentials may be suspended or revoked by the Public Information Officer. Those who have been suspended or revoked credentials by the Office of Public Information must reapply for credentialing before being eligible to apply for expanded news media coverage.

   (3)  If the journalist is no longer employed by the news media organization he or she was so affiliated at the time of most recent credentialing, the credential shall be deemed expired from the date of last employment or notification to the Office of Public Information.

   (4) If the news media person has failed to timely renew credentialing, such credentials shall be expired. Those with expired credentials must apply for renewal of credentials.

   (B) News media coordinator. News media coordinators are appointed by the Nebraska Supreme Court. The judicial officer and all members of the media shall work, whenever possible, with and through the appropriate news media coordinator regarding all arrangements for expanded news media coverage. The Nebraska Supreme Court will designate the jurisdiction of each news media coordinator. In the event a news media coordinator is not available for a particular proceeding, the judicial officer may deny expanded news media coverage or may temporarily appoint a news media representative to serve as the news media coordinator for the proceeding.

   (C) Advance notice of coverage.

   (1) All requests for expanded news media coverage in all proceedings, except initial appearances in criminal cases in county court (see § 6-2003(E)), shall be made to the news media coordinator. The request must be in written form, using the forms approved by the Administrative Office of the Nebraska Supreme Court and filed with the clerk of the court where the proceedings are pending. No applicant to provide expanded media coverage shall so apply unless he or she is in good standing with these administrative credentials.

   The request shall be filed at least seven business days in advance of the first proceeding in which expanded media coverage is requested. If the judicial proceeding is scheduled sooner than seven business days before the request, notice of the request shall be given as soon as practicable. An approved request for expanded media coverage of all proceedings along with all subsequent permissible proceedings (within that particular level of the court system) is authorized without additional notice subject to the court’s determination that there is good cause to limit or terminate coverage for a particular hearing. If the case moves to a different level of the court system (e.g., from county court to district court), a new request for expanded news media coverage must be submitted in the new court of jurisdiction.

   (2) The request for coverage shall be entered into the JUSTICE system by court staff using the assigned code. Requests are delivered to all parties and the judicial officer assigned to the case using the automated system.

   (3) Requests and notices shall be given using the forms approved by the Administrative Office of the Nebraska Supreme Court.

   (D) Objections to expanded news media coverage.

   (1) A party to a proceeding, except an initial appearance in a criminal case in county court (see § 6-2003(E)), objecting to the request for expanded news media coverage must file a written objection using forms approved by the Administrative Office of the Nebraska Supreme Court.

   The objection shall be filed at least three days before commencement of the proceeding. When the proceeding is not scheduled at least seven business days in advance, the objecting party must give notice of the objection as soon as practicable after the proceeding is scheduled.

   (2) A copy of the objection shall be entered into the JUSTICE system by court staff. Requests are delivered to all parties and the judicial officer assigned to the case using the automated system.

   (3) Rulings on timely objections shall be made by the judicial officer prior to the commencement of the proceedings or as reasonably practical. The objecting party may be afforded an opportunity to present evidence by affidavit.

   The judicial officer may rule on an objection on the basis of the written objection alone or on the combination of the written objection and the affidavits presented as evidence in the form of attachments to the objection.

   (4) The deadline for filing of objections may be modified in the discretion of the judicial officer.

   (5) The granting or denial of the objection to expanded news media coverage is a nonappealable temporary injunction or suspension of expanded news media coverage.

§ 6-2004 adopted December 21, 2016, effective March 1, 2017; § 6-2004(B) amended June 24, 2020; § 6-2004 amended March 10, 2021; § 6-2004(C)(2) amended January 18, 2023; § 6-2004(D)(2) amended October 7, 2025.

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§ 6-2005. Technical.

§ 6-2005. Technical.

   (A) Equipment specifications. Equipment to be used by the news media in courtrooms during judicial proceedings must be unobtrusive and must not produce distracting sound. In addition, such equipment must satisfy the following criteria, where applicable:

   (1) Still cameras. Still cameras and lenses must be unobtrusive and not cause distracting light or sound.

   (2) Television cameras and related video equipment. Television cameras, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, without distracting sound or light. Television cameras are to be designed or modified so that participants in the judicial proceedings being covered are unable to determine when recording is occurring.

   (3) Audio equipment. Microphones, wiring, and audio recording equipment shall be unobtrusive and of adequate technical quality to prevent interference with the judicial proceeding being covered. The judicial officer must approve any changes in existing courtroom audio systems. No modifications of existing systems should be made at public expense. Microphones for attorneys and judicial officers to use must be equipped with off/on switches to facilitate compliance with § 6-2003(H).

   (4) Electronic devices. All electronic devices used for recording audio, video, or still images must adhere to § 6-2005(C)(1). Electronic devices include, but are not limited to, laptop computers, cellular telephones, personal digital assistants, smart phones, and tablet computers. The news media seeking expanded coverage shall disclose in advance all devices which will be used by the news media.

   (5) Advance approval. It shall be the duty of news media personnel to demonstrate to the judicial officer reasonably in advance of the proceeding that the equipment sought to be utilized meets the criteria set forth in this rule. Failure to obtain advance judicial approval for equipment may preclude its use in the proceeding.

   (6) Timeliness. All news media equipment and personnel shall be in place at least 15 minutes prior to the scheduled time of commencement of the proceeding.

   (B) Lighting. Other than light sources already existing in the courtroom, no flashbulbs or other artificial light device of any kind shall be used in the courtroom. With authorization of the judicial officer, modifications may be made in light sources existing in the courtroom (e.g., higher wattage light bulbs), provided such modifications are installed and maintained without public expense.

   (C) Equipment and pooling. The following limitations on the amount of equipment and number of photographic and broadcast news media personnel in the courtroom shall apply:

   (1) Video recording, audio recording, and still photography.

   (a) one still camera and

   (b) one television camera or video recorder;

   (c) component parts of cameras or video recorders and operators shall, when practical, be located adjacent to the courtroom;

   (d) audio recording devices must utilize existing courtroom equipment unless otherwise approved by the judicial officer.

   (2) Electronic devices not used for recording audio, video, or still images. The devices defined in
§ 6-2005(A) may be used in the courtroom by members of the news media for live electronic reporting with advance approval from the judicial officer, provided the equipment does not make any disruptive noise or interfere with court equipment. Electronic devices may not be used for telephone calls by anyone in the courtroom. Electronic devices for photography, video recording, audio recording, or streaming video may not be used by anyone in the courtroom unless approved by the judicial officer in advance. The rule applies to news media only as defined in § 6-2002(G). Use of such electronic devices by others is prohibited.

   (3) Pooling. Where the above limitations on equipment and personnel make it necessary, the news media shall be required to pool equipment and personnel. Designation of a pool camera is the sole responsibility of the court’s media coordinator. Multiday trials will require a credentialed news media representative to coordinate the daily rotation of camera operators. The judicial officer and court’s media coordinator will not mediate disputes between media representatives from news organizations regarding daily rotation of camera operators. Representatives of news media are responsible for contributing to electronic pool coverage of judicial proceedings. If a news organization is incapable of contributing to pool coverage, the news media representatives shall facilitate the ability to provide pool coverage for each credentialed news organization approved to cover a particular judicial proceeding.

   (D) Location of equipment and personnel. Equipment and operating personnel, including news media using electronic devices to transmit and receive data communication, must be located in, and coverage of the proceedings must take place from, an area or areas the judicial officer designates within the courtroom. The area or areas designated shall provide reasonable access to the proceeding to be covered.

   (E) Movement during proceedings. Television cameras and video and audio equipment may be installed in or removed from the courtroom only when the court is not in session. In addition, such equipment shall at all times be operated from a fixed position. News media personnel are prohibited from moving about the courtroom while proceedings are in session, nor shall they engage in any movement which attracts undue attention.

   (F) Variance application. The judicial officer, upon application of the news media, may permit the use of equipment or techniques at variance with the rules, provided the application for variance is included in the advance notice of coverage provided for in § 6-2004(C). Objections, if any, shall be made as provided in § 6-2004(D). Approval or denial of the variance application is in the sole discretion of the judicial officer.

   (G) Decorum. All news media personnel shall be properly credentialed and shall maintain proper courtroom decorum at all times while covering a judicial proceeding.

§ 6-2005 adopted December 21, 2016, effective March 1, 2017; § 6-2005 amended March 10, 2021.

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Article 21: Interim Rules on Livestreaming Proceedings in Nebraska Trial Courts.

Article 21: Interim Rules on Livestreaming Proceedings in Nebraska Trial Courts. unanimous

§ 6-2101. Purpose.

§ 6-2101. Purpose.

   It is the intent of the Nebraska Judicial Branch that court proceedings shall be open to the public unless otherwise required by law. When the public is prohibited or otherwise limited from attending court proceedings at the courthouse by reasons outside of the public’s control, use of livestreaming technology is an appropriate method to allow public access to court proceedings.

   The Nebraska Supreme Court hereby authorizes approved Nebraska trial courts to use court-authorized video technology to livestream any court proceeding where the public would otherwise have the right to attend in person.

   Livestreaming of court proceedings is limited to a pilot project beginning on the date of adoption of this rule, in trial courts where the technology is available, and as authorized by the Nebraska Supreme Court. A schedule shall be implemented by the Administrative Office of the Courts and Probation, and shall inform the public of those courtrooms where livestreaming may occur.

   The following rules are hereby adopted for this livestream pilot:

§ 6-2101 adopted July 1, 2020.

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§ 6-2102. Authority.

§ 6-2102. Authority.

   (A) Only authorized Nebraska trial courts may livestream court proceedings.

   (B) No member of the public has the right to livestream any court proceeding without express permission of the judge presiding over the court proceeding.

   (C) Members of the news media are governed by Neb. Ct. R. § 6-2001 et seq.

§ 6-2101 adopted July 1, 2020.

 

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§ 6-2103. Limitations.

§ 6-2103. Limitations.

   (A) Livestreaming shall not occur in any proceeding where by statute public access is limited or prohibited.

   (B) No recording, video/audio taping, photographing, or otherwise reproducing, saving, disseminating, or sharing via social media or other means of any livestream feeds or content therein shall occur by any person. Violations of this rule are punishable by contempt.

   (C) Livestream does not create, replace, or supplement the official record of the proceeding.

§ 6-2013 adopted July 1, 2020.

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§ 6-2104. Trial court procedure.

§ 6-2104. Trial court procedure.

    (A) The proceeding should convene publicly in open court with the livestream activated.

   (B) If a request to limit or close public access to the proceeding is made by counsel or a self-represented litigant due to extremely sensitive or confidential evidence, the court shall determine the matter on the record prior to the admission of the extremely sensitive or confidential evidence.

   (1) The movant must describe the evidence in question and clearly identify the overriding interest that will be prejudiced if the evidence is publicly presented.

   (2) The court should obtain the agreement or objection to the request of all counsel and self-represented litigants on the record.

   (C) A court may also initiate the limitation of the public access via livestream sua sponte; however, courts should exercise caution in doing so over the objection of one or both parties.

   (D) Before halting or terminating the livestream, the court shall find on the record that the evidence is of such a nature that the protection of the evidence or witness overcomes the presumption of public presentation.

   (E) The court shall consider on the record all reasonable alternatives to terminating the livestream, including but not limited to:

   (1) Reducing testimony to affidavit in lieu of live testimony;

   (2) Interrupting video and temporarily permitting only audio streaming;

   (3) Prohibiting screen sharing of the exhibits on livestream;

   (4) Testimony in chambers or in-chambers interview of a child in lieu of live testimony; and

   (5) Temporary interruption of the livestream.

   (F) If the court determines to not halt or terminate the livestream but instead employs a lesser restriction, the court should find and state that a “substantial reason” for the measure exists, state that no less restrictive means would suffice, and make additional findings under subsection (G) below.

   (G) If the court determines the livestream should be halted or terminated, the court should make the following findings and recite them on the record:

   (1) The overriding interest at stake;

   (2) The specific testimony or evidence found to be of extreme sensitivity or entitled to confidentiality that justifies closure;

   (3) That public access shall be interrupted or terminated;

   (4) That no less restrictive means would suffice; and

   (5) Any other requirements set forth in Neb. Ct. R. § 6-204.

   (H) All portions of the proceeding that do not independently meet this threshold should occur with the livestream activated.

§ 6-2104 adopted July 1, 2020.

unanimous

Article 22: Rules for County Court Expedited Civil Actions.

Article 22: Rules for County Court Expedited Civil Actions. unanimous

§ 6-2201. Application and interpretation of rules.

§ 6-2201. Application and interpretation of rules.

   (A) These Rules apply to civil actions brought under the County Court Expedited Civil Actions Act (Neb. Rev. Stat. §§ 25-2741 to 25-2749) (the Act). The Expedited Civil Action forms referenced in these Rules can be found as Appendices to these Rules. These Rules and forms apply to the extent that they are not in conflict with the Act or other applicable statutes. The Nebraska Court Rules of Pleading in Civil Cases, Neb. Ct. R. Pldg. § 6-1101 et seq., and Nebraska Court Rules of Discovery in Civil Cases, Neb. Ct. R. Disc. § 6-301 et seq., apply whenever they address matters that are not addressed by the Act or these Rules.

   (B) These Rules are designed to further the purpose of the Act, which is to increase access to the Nebraska courts by establishing a streamlined process for handling civil actions in which the only relief sought is a money judgment for a limited amount. The streamlined process is designed for cases that do not involve complex legal or factual issues. These Rules should be interpreted in light of the purpose of the Act.

   (C) As used throughout these Rules, the term “side” means all litigants with generally common interests in the litigation.

§ 6-2201 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2202. Election to proceed.

§ 6-2202. Election to proceed.

   (A) A plaintiff who is an individual may elect to proceed under the Act regardless of whether the plaintiff is represented by an attorney or is self-represented. A plaintiff suing in a representative capacity (for example, a personal representative or next friend) or as an entity with the capacity to sue may elect to proceed under the Act only if the plaintiff is represented by an attorney.

   (B) A plaintiff may elect to proceed by completing Appendix 1 and filing it along with the complaint in the county court. Both the complaint and Appendix 1 must be included when service is made on a defendant. If more than one plaintiff is named in the complaint, a separate Appendix 1 must be created for each plaintiff.

§ 6-2202 adopted December 8, 2021, effective January 1, 2022; § 6-2202(B) amended December 22, 2021, effective January 1, 2022.

unanimous

§ 6-2203. Initial disclosures.

§ 6-2203. Initial disclosures.

   (A) Unless the parties stipulate or the court orders otherwise, a party must disclose and provide the following to the other parties without awaiting a discovery request.

   (1) Potential Witnesses. The name and, if known, the address, telephone number, and email address of each individual likely to have nonprivileged information that the party may use to support its claims or defenses, unless the use would be solely for impeachment. For each such individual, the party must also provide the subjects of the information that the individual is likely to have.

   (2) Statements. Identification of a previous statement about the action or its subject matter that is in the party’s possession, custody, or control and was made by any party or by any person not a party to the action. For each such statement, the party must state in its disclosure whether the party asserts that the statement is privileged or protected from disclosure, and if so, the basis for the assertion.

   (3) Documents. A copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

   (4) Damages. A list of each category of damages, economic and noneconomic, claimed by the party. If the category involves economic damages, the party must also provide a computation of the amount of each category of economic damages and a copy of the discoverable documents on which each such computation is based. For noneconomic damages, the party shall only list the category of damages, but is not required to provide an amount of damages claimed.

   (a) In actions for the recovery of damages for a physical or mental injury or for injury to or loss of personal property, the term “category of damages” refers to the categories listed in NJI2d Civ. 4.00, which can be found as Appendix 5.

   (b) In actions for the recovery of damages for a physical or mental injury, the party seeking the recovery of damages must (a) state the name and address of each health care provider who treated or examined the party for the injury and (b) provide a signed release that allows the opposing party to obtain from each such provider the party’s medical records.

   (c) The opposing party must give contemporaneous notice to the party who provided the release when the opposing party uses the release to obtain the party’s medical records. The opposing party must also provide to all other parties, including the party who provided the release, a copy of all records obtained pursuant to the release. Any party who requests the opposing party to provide the records in nonelectronic form must pay the costs that the opposing party incurs in providing the records in that form.

   (d) Any party receiving medical records pursuant to this subpart shall keep the records confidential and use them solely for purposes of the litigation. The requirement to keep the records confidential does not preclude the party from using the records at trial or in support of a motion. If necessary, pursuant to Neb. Ct. R. Disc. § 6-326(c), the court may enter an order that includes specific requirements for keeping the records confidential, for using them at trial or in support of a motion, and for destroying or deleting them.

   (5) Insurance. A defending party must provide a copy of the declarations page contained in any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. If coverage is or may be contested, the defending party must also provide a copy of the agreement and state the ground(s) on which coverage is or may be contested.

   (B) Format. Unless the court orders otherwise, the disclosures must be in writing and signed by the attorney or self-represented party. If a party has previously provided to other parties in writing any of the information that the party is required to include in its initial disclosures, instead of providing the information again, the party may state in its disclosures that the information was previously provided and shall indicate where the other parties can find the information in the previously provided materials.

   (C) Time. The disclosures must be served electronically within the following times.

   (1) A party serving a pleading that contains a claim for relief must serve its initial disclosures regarding the claim within 14 days after that party is served with the first responsive pleading to the claim. A defending party must serve its initial disclosures regarding a claim for relief within 28 days after that party serves a responsive pleading to the claim.

   (2) A party need only serve its initial disclosures on the parties that have appeared in the action. The party must serve a later-appearing party within 14 days of when the later-appearing party serves its first pleading.

   (D) Basis for Initial Disclosures; Unacceptable Excuses. A party must make its initial disclosures based on the information reasonably available to it at the time. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

   (E) Discovery. Unless the parties stipulate or the court orders otherwise, no discovery requests may be served before the parties have made their initial disclosures.

§ 6-2203 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2204. Expert witness disclosures.

§ 6-2204. Expert witness disclosures.

   (A) Unless the parties stipulate or the court orders otherwise, each side must disclose the identity of any expert witness that the side may use at trial and, for each such expert, the side must disclose and provide:

   (1) a complete statement of all opinions the expert will express and the basis and reasons for them;

   (2) the facts or data considered by the expert in forming them;

   (3) any exhibits that will be used to summarize or support them;

   (4) a copy of the expert’s resume or curriculum vitae; and

   (5) a statement of the compensation for the expert’s work and testimony in the case, which may be satisfied by the production of a fee schedule.

   (B) Unless the court orders otherwise, the expert witness disclosures must be in writing and signed by the attorney or self-represented party. The plaintiff’s side must electronically serve its expert witness disclosures on the opposing side no later than 60 days after the first responsive pleading is served in the action and the opposing side must electronically serve its expert witness disclosures no later than 90 days after the first responsive pleading is served.

   (C) Treating Health Care Providers. If a plaintiff intends to use a treating health care provider as an expert witness at trial, the plaintiff may provide a report using Appendix 2 instead of disclosing the information in subparts (a)(1)-(4).

   (D) Objection to Provider’s Report. The opposing side may file an objection to the health care provider’s report on the grounds that the report is untimely, incomplete, or unsigned; the explanations are incomplete or insufficient; the provider failed to attach required records or documents; or the report does not otherwise comply with the Act. The objection must be filed and served no later than 30 days after the date on which the report was electronically served.

§ 6-2204 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2205. Expert witness depositions.

§ 6-2205. Expert witness depositions.

  (A) Health Care Provider. If one side identifies a treating health care provider as its expert witness and provides a report from the provider using Appendix 2, any party against whom the report may be used has the right to cross-examine the provider by taking the provider’s deposition. The designating side may also examine the provider at the deposition.

   (B) Cost. The side taking the deposition is responsible for the costs of taking the deposition, including the payment of a reasonable fee to the health care provider for the time spent being deposed. If the side providing the report also examines the provider, the side shall be responsible for a proportionate share of the costs and fees. Unless the parties stipulate or the court orders otherwise, each side’s proportionate share shall be the percentage calculated by dividing the number of deposition pages attributable to the side’s examination of the provider by the total number of deposition pages. Each side shall pay its percentage share of deposition costs and provider fees.

   (C) Other Experts. Either side may take the deposition of any other expert witness after service of the disclosures required by § 6-2204. If the side that did not retain the expert takes the deposition, the side must pay the expert a reasonable fee for the time spent being deposed.

   (D) Use at Trial. The application of the Act constitutes exceptional circumstances that allow the deposition of an expert witness to be used at trial pursuant to § 6-332(a)(3)(E).

§ 6-2205 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2206. Supplementing disclosures and responses.

§ 6-2206. Supplementing disclosures and responses.

   (A) In General. A party that has made a required disclosure or that has responded to an interrogatory, request for production, or request for admission must supplement or correct its disclosure or response:

   (1) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

   (2) as ordered by the court.

   (B) Expert Witnesses. For an expert witness, the party’s duty to supplement extends both to information included in the disclosure or report and, if the expert is deposed, to information given during the expert’s deposition.

§ 6-2206 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2207. Consequences of failure to disclose or supplement.

§ 6-2207. Consequences of failure to disclose or supplement.

   If a party or side fails to serve a disclosure or provide a release within the time specified by these Rules, any other party or side may file a motion to compel the party to do so. At the discretion of the court, a party may be precluded from using information, documents, or witnesses that the party failed to provide or identify as required by these Rules.

§ 6-2207 adopted December 8, 2021, effective January 1, 2022.

unanimous

§ 6-2208. Pretrial determination of authenticity and hearsay Objections to admissibility of documents.

§ 6-2208. Pretrial determination of authenticity and hearsay Objections to admissibility of documents.

   (A) A party seeking to offer one or more documents into evidence without testimony or certification from a custodian or other qualified witness to establish the authenticity of the document or to establish either that the document is not hearsay or satisfies the requirements of an exception to the hearsay rule must file and electronically serve on other parties a Notice of Intent to Offer. Appendix 3 or another document containing the same information must be used.

   (B) A party objecting to any document listed in a Notice of Intent to Offer on the basis of authenticity or hearsay must file and electronically serve on all parties an Objection to Intent to Offer within 30 days after service of the Notice of Intent to Offer. Appendix 4 or another document containing the same information must be used.

   (C) If an objection is made, the parties must in good faith confer to resolve the matter. In attempting to resolve the matter, the parties must consider the mandate of § 25-2747(1) of the Act: parties “should stipulate to factual and evidentiary matters to the greatest extent possible.” If the parties are unable to resolve the matter, either party may file a motion for a ruling on the objection. In its motion, the party must include a certification that the party conferred or attempted to confer with the other party to resolve the dispute without court action. If the court sustains the objection, a party is not precluded from offering the document at trial with testimony or certification from a custodian or other qualified witness.

§ 6-2208 adopted December 8, 2021, effective January 1, 2022; § 6-2208 amended December 22, 2021, effective January 1, 2022.

unanimous

§ 6-2209. Case management and scheduling.

§ 6-2209. Case management and scheduling.

   (A) Mediation. The court may enter an order referring the case to mediation. The referral to mediation will not alter any of the times specified in these Rules, unless the parties stipulate or the court finds that there is good cause for doing so.

   (B) Scheduling and Case Progression. As soon as the first responsive pleading is filed, the court shall enter an order setting the matter for trial, taking into consideration the Act, these Rules, and the Case Progression Standards for county court civil actions set forth in Neb. Ct. R. § 6-101. The trial date is subject to a later continuance for good cause shown. The court may enter an order that states the dates for completing discovery, filing specified motions, or being prepared for trial, such dates shall not be in conflict with these Rules or timelines set forth in the Act.

   (C) Witnesses and Exhibits. The court may enter an order that requires the parties or sides to identify the witnesses and documents that they may use at trial. The order may impose such requirements as the court deems appropriate, including a requirement that the parties or sides serve disclosures at specified times, file a joint statement of witnesses and exhibits, or participate in a pretrial conference.

§ 6-2209 adopted December 8, 2021, effective January 1, 2022; § 6-2209(B) amended December 22, 2021, effective January 1, 2022.

unanimous