Friday, March 9, 2018

Nebraska Admits Law Professor As "Substantially Engaged In Practice"

The Nebraska Supreme Court has held that a law professor applicant meets the requirements for admission without examination

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. 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. 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.

The applicant's career path

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.

The State Bar Commission erred in applying the rules

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 regular and routine duties as a law professor, including lecturing, researching, and publishing. At oral argument in this matter, the Commission agreed that McDonnell had shown he was “actively” engaged in the practice of law as a law professor in Utah. As a result, we conclude that McDonnell met the “practice of law” requirement, because he was employed as a law professor, and that his employer, the S.J. Quinney College of Law, is accredited by the American Bar Association.

Therefore, the only disputed issue in considering McDonnell’s Class 1-B application is whether McDonnell was “substantially engaged in the practice of law” as a law professor at the S.J. Quinney College of Law.

The court

Based upon McDonnell’s education, character, fitness, and employment history, we find that he maintains the competency, skill, and fitness required to practice law. As a result, McDonnell carried his burden of proving that he was “substantially engaged” in his employment as a law professor for an appropriate amount of time preceding his application.

Our admission rules do not define the “substantially engaged in the practice of law” requirement, and we need not endorse a particular definition to decide this case. Rather, our admission rules dictate a qualitative analysis as opposed to a quantitative analysis. This decision should not be viewed as setting a threshold requirement for Class 1-B applications.

The case is In re Application of McDonnell and can be accessed here. (Mike Frisch)

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