Purpose. Nebraska attorneys who represent clients drawn from the public, whether sole practitioners or practicing in a law firm or other organization, must take steps to prepare their practice for their own disability, death, disbarment, or other inability to practice law before the need arises. Failure to prevent neglect of client matters due to death or disability may violate Neb. Ct. R. Prof. Cond. § 3-501.3. Diligence. See Comment [5]. 

   These rules set forth requirements so that client interests may be properly protected and, if required, there exists a plan for orderly wind-up of a firm’s business.

§ 3-1101 adopted January 15, 2025, effective November 1, 2025.

   (A) Each Nebraska attorney who represents clients drawn from the public (“planning attorney”) shall name an attorney (“designated attorney”) to protect the interests of the planning attorney’s clients in the event the planning attorney has been suspended by an order of the Court placing the planning attorney on disability inactive status pursuant to § 3-311, or is shown to be unable to properly discharge his or her responsibilities to clients due to disability, disappearance, death, disbarment, or abandonment of a law practice. 

   (1) Sole Practitioners. A sole practitioner representing clients drawn from the public shall name an attorney who has agreed to be the designated attorney. For purposes of this rule, a sole practitioner means a licensed attorney practicing alone with no associate attorneys or an attorney practicing in association with other sole practitioners who do not own equity in the attorney’s practice. 

   (2) Attorneys in Firms. All attorneys in firms or organizations of two or more attorneys representing clients drawn from the public shall designate an attorney in the firm or organization as a designated attorney to be responsible for assuming all duties provided by this rule. 

   (B) Authority of Designated Attorney. The authority of the designated attorney takes effect upon the following:

   (1) an order of the Court placing the planning attorney on disability inactive status pursuant to § 3-311, or

   (2) it is otherwise reasonably believed the planning attorney is unable to properly discharge his or her responsibilities to clients due to disability, disappearance, death, disbarment, or abandonment of a law practice, or

   (3) it is otherwise reasonably believed the planning attorney is temporarily disabled but during the period of such temporary disability is unable to properly discharge his or her responsibilities to clients. 

§ 3-1102 adopted January 15, 2025, effective November 1, 2025.

   (A) The designated attorney may take whatever actions may be required or deemed appropriate under any such circumstance to first protect client interests and secondarily to protect the planning attorney’s interests. This includes but is not limited to reviewing client files of the planning attorney, notifying the planning attorney’s clients of the situation, and maintaining the planning attorney’s practice to the extent feasible or practicable. The attorney designated under this rule also is authorized to prepare final trust accountings for clients, make trust account disbursements, properly dispose of inactive files, arrange for storage of files and trust account records, and otherwise properly wind-up the business of the planning attorney, if required. Upon separate agreement between the planning and designated attorney, the designated attorney may undertake other duties and responsibilities as provided by any such agreement.

   (B) Lawyer-Client Privilege. The designated attorney 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 duties and responsibilities under this rule. A designated attorney shall not examine any document or acquire any information from any file or client containing real or potential conflicts. 

   (C) The designated attorney shall notify in writing all of the present clients of the planning attorney of the reason why the attorney can no longer serve his or her clients and shall also notify in writing all attorneys or opposing counsel involved in pending legal or other matters being handled by the attorney of the reason the attorney can no longer practice law.

   (D) The designated attorney’s responsibilities and duties shall end upon the following:

   (1) a client of the planning attorney retains new counsel; 

   (2) all duties provided under this rule have been completed;  

   (3) to a particular client, when the designated attorney and client engage in their own attorney client relationship;

   (4) the planning attorney has a temporary disability that has resolved, and the planning attorney is able to return to the active practice of law.

§ 3-1103 adopted January 15, 2025, effective November 1, 2025.

   (A) Each planning attorney who represents clients drawn from the public must have a written plan providing certain information to assist the designated attorney in the event the designated attorney’s authority takes effect. The Nebraska Supreme Court authorizes the Attorney Services Division to develop a standard form to be used and it shall require information for the following:

   (1) the location of user credentials of the planning attorney to allow the designated attorney to access necessary computer systems, case management programs, email accounts and other technology that would assist the designated attorney in performing his or her duties and responsibilities under this rule; 

   (2) the location of the list of active clients and location of client files; and

   (3) firm or business bank account information and trust account information. 

   (B) Authorization.

   (1) The plan may authorize the designated attorney to collect fees, pay firm expenses and client costs, compensate staff, terminate lease agreements, liquidate or sell the practice, or perform other law firm administration tasks.

  (2) The plan must include language to make the designated attorney’s powers durable in the event of the planning attorney’s disability. See Neb. Rev. Stat. § 30-4004.

   (C) A standardized form outlining the requirements of this rule shall be available through the Attorney Services Division portal and made part of the annual license renewal process. The plan shall be updated when there is a change in designated attorney, if the planning attorney changes employment or moves law firms, or if information in the plan, such as location of client files, changes.

§ 3-1104 adopted January 15, 2025, effective November 1, 2025.

   The following are exempt from naming a designated attorney under this rule:

   (A) attorneys with an inactive law license;

   (B) active licensed attorneys who are not engaged in private practice and/or do not represent clients drawn from the public;

   (C) attorneys with an active law license that represent clients drawn from the public who reside out of state and have no Nebraska clients.

   Certification exempting the attorney from the requirements of this rule shall be done annually.

§ 3-1105 adopted January 15, 2025, effective November 1, 2025.

   (A) The designation shall be updated annually through the attorney’s Nebraska Supreme Court Attorney Services Division account on or before the dates listed in § 3-803(B)(6). The planning attorney shall certify that the designated attorney has agreed to serve as the designated attorney. All designated attorneys will be asked to confirm that they have agreed to serve as a designated attorney. If there is no change to a designated attorney from year to year, the planning attorney will be asked to confirm there is no change when completing annual registration. 

  (B) If an attorney cannot find a designated attorney after reasonable requests, the attorney shall contact the Nebraska Counsel for Discipline to obtain a list of lawyers who have indicated willingness to serve in that capacity. 

  (C) If there is a change in designated attorney or if the planning attorney changes employment or moves law firms, the planning attorney shall update the designated attorney information through the attorney’s Nebraska Supreme Court Attorney Services Division account immediately, but at least within 30 days of such change.

  (D) Failure to provide a designated attorney and have a succession plan may be grounds for disciplinary action. See Comment [5], Neb. Ct. R. Prof. Cond. § 3-501.3. Diligence. Failure to designate an attorney or falsely designating an attorney through the Attorney Services Division website who has not agreed to serve may cause the Supreme Court to enter an order to show cause why the planning attorney’s license to practice law should not be administratively suspended. 

§ 3-1106 adopted January 15, 2025, effective November 1, 2025.

   (A) Payment for Designated Attorney. A designated attorney may seek reimbursement for expenses related to the duties outlined in this rule and may seek compensation not to exceed the hourly rate allowed for appointed trustees under § 3-328. The designated attorney shall seek payment from the following sources, in the following order: 

   (1) the designated attorney may seek payment first from the planning attorney or the planning attorney’s firm’s operating or business account; 

   (2) the designated attorney may seek payment from the planning attorney’s estate, if deceased, with the personal representative or administrator of the planning attorney’s estate, but if those funds are insufficient to compensate the designated attorney, then; 

   (3) the designated attorney may seek payment from the Counsel for Discipline Cash Fund as a trustee by making a filing with the Nebraska Supreme Court for appointment as a trustee under § 3-328.

   (B) A designated attorney acting pursuant to this rule shall be immune from suit for any conduct in the course of his or her official duties under this rule. 

   (C) A designated attorney, entity, or the Nebraska Counsel for Discipline may petition the Supreme Court, at any time, for appointment of the designated attorney as the trustee or appointment of an independent trustee under the provisions of Nebraska Supreme Court Rule § 3-328, as applicable.

§ 3-1107 adopted January 15, 2025, effective November 1, 2025.

   The Nebraska Supreme Court shall develop educational materials and provide annual training on the duties and requirements of this rule. 

§ 3-1108 adopted January 15, 2025, effective November 1, 2025.

   A designated attorney exercising due care shall be immune from suit for conduct related to the performance of his or her duties under these rules.

§ 3-1109 adopted January 15, 2025, effective November 1, 2025.