Crossing the Bar: the Relationship of Nebraska's Supreme Court With the Bar

• Publication year: 2021

84 Nebraska L. Rev. 631. Crossing the Bar: The Relationship of Nebraska's Supreme Court with the Bar

631

James W. Hewitt*

Crossing the Bar: The Relationship of Nebraska's Supreme Court with the Bar

TABLE OF CONTENTS

I. Introduction ...................................................... 631
II. The Nebraska Bar's History ....................................... 632
A. Voluntary to Mandatory ........................................ 632
B. Growing and Changing .......................................... 633
III. Bar Rating Polls ................................................ 634
A. Retention .................................................... 634
B. Knowledge .................................................... 636
IV. Retention Elections .............................................. 637
V. The Bar's Perspective ............................................. 639
VI. I Swear to Tell the Truth ........................................ 641
VII. Appendix ........................................................ 643

I. INTRODUCTION

In today's world, all judges were once lawyers. Whether in private practice, government practice, or in some other legal position, they all took an oath to uphold justice, dealt with clients, and submitted matters to courts for decisions. No one comes out of law school and begins her career as a judge. Judges come up through the ranks of lawyers or law professors.

It has always been a mystery to the practicing bar as to how quickly some judges forget their roots after they ascend to the bench.

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Frequently, those judges seem to feel they have been anointed rather than appointed, with a lawyer's concerns now blissfully behind them. But it is a legal truism that there must be a partnership between lawyers and judges to administer justice successfully. Without the honest and intellectual assistance of the bar, judges could not function on their own.

Over the past 105 years, the relationship between the Nebraska Supreme Court and the Nebraska State Bar Association ("NSBA") has been generally cordial. But in the years between Robert Simmons' election to be chief justice in 1938, and the retirement of William Hastings as chief justice in 1995, many lawyers and bar leaders felt that the court deliberately distanced itself from involvement with the bar. This Article attempts to explore why some of that distancing may have occurred.

II. THE NEBRASKA BAR'S HISTORY

A. Voluntary to Mandatory

The NSBA was created as a voluntary bar association in January, 1900.(fn1) It continued in that form until integrated by order of the Nebraska Supreme Court in September, 1937,(fn2) a year before Robert Simmons was elected chief justice. Membership in the NSBA for lawyers admitted to practice in Nebraska has been mandatory since 1937.

The integrated, or mandatory, bar was the result of a petition filed by a committee of the voluntary bar asking to be integrated by court rule. The bar, before integration, was subject to public criticism because little had been done in disciplining wayward lawyers. The bar and court both felt that an integrated bar, known to the public to be part of the administration of justice, would restore public confidence in the profession. The lawyers of Nebraska, polled in a secret mail ballot, voted 595 to 155 in favor of integration.(fn3) Justice Edward F. Carter worked diligently with the committee, and he wrote the opinion integrating the bar.

The Constitution of Nebraska is silent as to who has the power to define and regulate the practice of law. However, in his 1937 opinion, Justice Carter argued that since lawyers were an integral part of the judicial process, the court had inherent power under the constitution to regulate them. He laid out two principles in his opinion which guided the relationship between the bar and the supreme court for many years:

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We have overlooked the fact that the bench and bar are so intimately related that the problems of one are the problems of the other. We have come to the conclusion that the bar, of itself, can do little to better the situation. But, with a cooperating bench and bar, it appears to us that a more effective and efficient regulation of the bar would be the result. . . . We feel that it is our duty, especially where the request comes from so large a majority of the bar who participated in the referendum on the subject, to consider favorably the adoption of rules providing for the integration of the bar of this state by court rule under the powers lodged in this court by the Constitution . . . .(fn4)

Arguing that the constitution conferred powers on the court--powers that he previously declared were not set out in the constitution(fn5)-- may have been a bit of a stretch for Justice Carter. But in regard to the relationship between the bench and bar, there can be no doubt that his heart was in the right place.

For many years Nebraska had a small bar membership, and the bar and the supreme court enjoyed a pleasant and non-controversial relationship. George H. Turner, clerk of the supreme court, served as secretary-treasurer of the NSBA from its inception, and he administered the bar from his desk in the clerk's office. Turner also served as the bar's state delegate to the American Bar Association House of Delegates from 1942 until he was defeated in a contested election in 1972.

B. Growing and Changing

In 1967, the Special Committee on Reorganization was established by the Executive Council of the NSBA to examine the structure, rules, and organization of the NSBA.(fn6) In 1969, that committee recommended several sweeping new changes: the creation of an executive director of the NSBA; making the House of Delegates the principal governing body of the NSBA and the Executive Council subject to the House of Delegates; providing for the election of members of the House of Delegates and Executive Council and making the organization run by elected, rather than appointed members; and modernizing the rules of procedure of the House of Delegates.(fn7) The recommendations were submitted to the House of Delegates in 1970, where they were favorably passed, and went into effect January 1, 1971.(fn8) Burton Ber

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ger was selected as the bar's first executive director, and the NSBA opened an office in Lincoln's Sharp Building.(fn9)

As the NSBA grew larger and as its new structure began to take effect, it moved away from the extremely cozy relationship it had enjoyed with the court during the Simmons years when the clerk of the court was also the chief administrative official of the bar. Nonetheless, the court and bar enjoyed cordial relations during Paul White's term as chief justice from 1963 to 1978.

When Norman Krivosha was appointed chief justice in 1978, he instituted a program of meetings with bar leaders to discuss matters of common concern. Meetings were held frequently and they involved Chief Justice Krivosha (on behalf of the court), and the NSBA president, chairman of the House of Delegates, and executive director. Chief Justice Krivosha spoke frequently at bar meetings, addressed the House of Delegates regarding the state of the judiciary, and discussed mandatory continuing legal education with bar leaders, even though he did not favor such a program.

III. BAR RATING POLLS

In 1984, the NSBA instituted a program whereby lawyers rated...