In re McDonnell, S-17-668

• Citation: 908 N.W.2d 32,299 Neb. 289
• Decision Date: 09 March 2018
• Docket Number: No. S-17-668,S-17-668
• Parties: IN RE Application of William M. MCDONNELL for Admission to the Nebraska State Bar.
• Court: Supreme Court of Nebraska

299 Neb. 289

908 N.W.2d 32

IN RE Application of William M. MCDONNELL for Admission to the Nebraska State Bar.

No. S-17-668

Supreme Court of Nebraska.

Filed March 9, 2018.

William M. McDonnell, pro se.

Douglas J. Peterson, Attorney General, and Timothy R. Ertz for Nebraska State Bar Commission.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Funke, J.

William M. McDonnell is a physician and health law specialist seeking admission to the Nebraska bar. He filed an application with the Nebraska State Bar Commission (Commission) seeking admission without examination as a Class 1-B applicant.¹ The Commission denied McDonnell’s application on the basis that he failed to show he was "substantially engaged in the practice of law" for 3 of the 5 years preceding his application.² The Commission granted McDonnell’s request for a hearing, reviewed the evidence, and again denied his application. McDonnell appeals.

Based on our de novo review of the record, we find McDonnell has carried his burden to establish that he was "substantially engaged in the practice of law" preceding his application, as required under § 3-119(B)(1). We therefore grant McDonnell’s Class 1-B application.

BACKGROUND

McDonnell graduated from the University of Virginia School of Law in 1987. After completing a judicial clerkship with the U.S. District Court for the Eastern District of Virginia in 1988, he was admitted to the Virginia State Bar by examination. In 1989, McDonnell was admitted by motion to the District of Columbia bar and began practicing at a private law firm in Washington, D.C. From 1989 to 1994, McDonnell held various legal positions, including positions with the U.S. Securities and Exchange Commission and the U.S. Department of Treasury. In 1995, McDonnell commenced medical school at the University of Arkansas, and in 1999, he began employment as a physician. From 1999 through 2006, McDonnell worked as a resident physician, emergency department physician, and pediatric emergency medicine fellow physician.

In 2006, McDonnell began employment with the University of Utah, with dual appointments in the university’s S.J. Quinney College of Law and the school of medicine. McDonnell worked as an adjunct professor of law as well as a pediatric emergency department physician. He held these positions through May 2014.

While employed at the University of Utah, McDonnell devoted 25 percent of his time and activities to his appointment at the college of law and 75 percent of his time to his appointment at the school of medicine. McDonnell’s position as an attending physician required him to work between 18 and 21 hours each week in the emergency department at the university’s primary children’s medical center. McDonnell asserted that he worked an average of 60 hours per week in his dual position, and devoted 15 hours per week to working as a law professor.

As a law professor, McDonnell served as a course director, developed curricula for health law courses, conducted scholarly research, published writings on health law and policy topics, and provided continuing education lectures to medical professionals and attorneys. McDonnell taught one 3-credit-hour law school course for one semester each academic year. His relevant course work included preparing and presenting 104 class lectures of approximately 90 minutes in length. McDonnell attended faculty research meetings and met with student interest groups throughout the year. Additionally, he served as a faculty research supervisor for a law student conducting independent health law research.

In 2014, McDonnell relocated to Omaha, Nebraska, where he accepted a position as chief of the division of pediatric emergency medicine and medical director of the children’s emergency department at the University of Nebraska Medical Center and Children’s Hospital and Medical Center. In March 2016, McDonnell applied for admission to the Nebraska bar. McDonnell maintained an active membership in the Washington, D.C., bar at the time of his application.

After considering McDonnell’s application for admission, the Commission issued a written letter on February 2, 2017, denying his request. The Commission determined that McDonnell’s experience did not fulfill the requirement of being " ‘actively’ and ‘substantially’ engag[ed] in the practice of law" for 3 of the 5 years preceding his application. McDonnell then requested a hearing before the Commission, which was held on April 14, 2017. At the hearing, McDonnell testified and provided exhibits, including his employment contract with the University of Utah and course materials he produced as a law professor. After the hearing, the Commission affirmed its denial of McDonnell’s application for admission. McDonnell appealed to this court.

ASSIGNMENT OF ERROR

McDonnell assigns, restated, that the Commission erred in denying his application seeking admission to the Nebraska bar.

STANDARD OF REVIEW

The Nebraska Supreme Court considers the appeal of an applicant from a final ruling of the Nebraska State Bar Commission de novo on the record made at the hearing before the Commission.³

ANALYSIS

The Nebraska Supreme Court is vested with the sole power to admit persons to the practice of law in this state and to fix qualifications for admission to the Nebraska bar.⁴ This court thus has the responsibility to adopt and implement systems to protect the public and to safeguard the justice system by assuring that those admitted to the bar are of such character and fitness as to be worthy of the trust and confidence such admission implies.⁵ The bar admission practices of other states, and the policies behind those practices, do not govern admission practices in Nebraska.⁶

Lawyers are essential to the primary governmental function of administering justice and have historically been officers of the courts.⁷ Our decisions in disciplinary cases demonstrate the continued necessity of regulating the bar and ensuring that ethical rules for lawyers are maintained and enforced.⁸ The practice of law in this state is a privilege.

This court has delegated administrative responsibility for bar admissions solely to the Commission.⁹ The burden of demonstrating that an applicant is qualified for admission is on the applicant.¹⁰

APPLICABLE ADMISSION RULES

Section 3-119 sets forth three processes by which an attorney admitted to the bar of another state may apply for admission to the Nebraska bar without first undergoing the

Nebraska bar examination. Section 3-119(B), applicable to "Class 1-B applicants," provides:

Class 1-B applicants who may be admitted to practice in Nebraska upon approval of a proper application are those:

(1) who have been licensed and are active and in good standing before the highest court of another state, territory, or district of the United States preceding application for admission to the bar of Nebraska and have actively and substantially engaged in the practice of law in another state, territory, or district of the United States for 3 of the 5 years immediately preceding application for admission; and

(2) who, at the time of their admission, had attained educational qualifications at least equal to those required at the time of application for admission by examination to the bar of Nebraska.

The plain language of § 3-119(B)(1) contains two "active" requirements: an active license requirement and an active practice of law requirement. The first clause of § 3-119(B)(1) requires that a Class 1-B applicant be licensed, active, and in good standing in another state’s bar. Our rules define the "active and in good standing" requirement:

An applicant who is "active and in good standing" means an applicant who is admitted to the bar of another state and is not disbarred, is not under disciplinary 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.¹¹

The second clause of § 3-119(B)(1) requires that a Class 1-B applicant have "actively and substantially engaged in the practice of law" for 3 of the 5 years preceding the application for admission. Our rules do not define the terms "actively and substantially engaged" as utilized in the active practice of law requirement of § 3-119(B)(1).

Section 3-101(P)(5) defines "practice of law" to include "[e]mployment as a teacher of law at a law school approved by the American Bar Association throughout the applicant’s employment."

In addition to § 3-119, our admission rules include Neb. Ct. R. § 3-112 (rev. 2013), the "Essential eligibility requirements for practice of law." The additional requirements for the practice of law under § 3-112, as relevant here, include:

(A) the ability to conduct oneself with a high degree of honesty, integrity, and trustworthiness in all 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;

....

(E) the ability to reason, analyze, and recall complex factual information and to integrate such information with complex legal theories;

....

(J) the ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.

MCDONNELL’S APPLICATION SATISFIES FIRST CLAUSE OF § 3-119(b)(1)

The undisputed evidence before us indicates that at the time of his Nebraska application, McDonnell possessed an active law license in the District of Columbia and was in good standing. As a result, McDonnell meets the requirement of being licensed, active, and in good standing in another state, territory, or district of the United States.

The evidence also indicates that from March 2011 through May 2014, McDonnell was employed as a law professor at the S.J. Quinney College of Law, University of Utah. McDonnell completed...