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IN RE APPLICATION OF McDONNELL

Cite as 299 Neb. 289

In re Application of William M. McDonnell for

Admission to the Nebraska State Bar.

___ N.W.2d ___

Filed March 9, 2018. No. S-17-668.

1. Rules of the Supreme Court: Attorneys at Law: Appeal and Error. 

Under Neb. Ct. R. § 3-126 (rev. 2013), 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.

2. Rules of the Supreme Court: Attorneys at Law. 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.

3. ____: ____. The Nebraska Supreme Court 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.

4. Attorneys at Law. Lawyers are essential to the primary governmental 

function of administering justice and have historically been officers of 

the courts.

5. Rules of the Supreme Court: Attorneys at Law. The Nebraska 

Supreme Court has delegated administrative responsibility for bar 

admissions solely to the Nebraska State Bar Commission.

6. Attorneys at Law: Proof. The burden of demonstrating that an applicant is qualified for admission to the Nebraska State Bar is on the 

applicant.

7. Rules of the Supreme Court: Attorneys at Law. Bar admission rules 

are intended to weed out unqualified applicants, not to deny admission 

to a qualified applicant.

Original action. Application granted.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/18/2018 01:07 AM CDT
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IN RE APPLICATION OF McDONNELL

Cite as 299 Neb. 289

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 

1 See Neb. Ct. R. § 3-119(B) (rev. 2016).

2 See § 3-119(B)(1).
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Cite as 299 Neb. 289

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-credithour 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.
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IN RE APPLICATION OF McDONNELL

Cite as 299 Neb. 289

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

[1] 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

3 Neb. Ct. R. § 3-126 (rev. 2013); In re Application of Collins, 288 Neb. 

519, 849 N.W.2d 131 (2014).
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ANALYSIS

[2,3] 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

[4] 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.

[5,6] 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 

4 In re Application of O’Siochain, 287 Neb. 445, 842 N.W.2d 763 (2014). 

See Neb. Const. art. II, § 1, and art. V. §§ 1 and 25.

5 In re Appeal of Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996).

6 Id.

7 See id.

8 See In re Petition for Rule to Create Vol. State Bar Assn., 286 Neb. 1018, 

841 N.W.2d 167 (2013).

9 In re Application of Collins, supra note 3.

10 Neb. Ct. R. § 3-125 (rev. 2013).
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Cite as 299 Neb. 289

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 

11 Neb. Ct. R. § 3-101(Q) (rev. 2016).
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Cite as 299 Neb. 289

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.
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Cite as 299 Neb. 289

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.

McDonnell Meets “[S]ubstantially

[E]ngaged in the [P]ractice of

[L]aw” Requirement

The relevant time period for evaluating whether McDonnell 

was “substantially engaged in the practice of law” is from 

March 2011 through March 2016.

McDonnell argues his application satisfies the “substantially 

engaged in the practice of law” requirement, because the plain 

language of our rules does not require exclusive or full-time 

employment as a law professor. McDonnell further argues 

that under a reasonable interpretation of this court’s admission rules, he meets the “substantially engaged” requirement, 

because he showed that he fulfilled his employment obligations 

by designing health law courses, presenting lectures, grading 

examinations, providing student mentorship, and producing 

law-related scholarly research. He also claims that he meets the 

“substantially engaged” requirement, because he worked as a 

law professor for 8 consecutive years, including 39 consecutive 

months during the relevant 5-year period.
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IN RE APPLICATION OF McDONNELL

Cite as 299 Neb. 289

McDonnell also asserts that the “substantial” requirement is 

best understood as excluding certain categories of applicants 

who clearly do not maintain an active practice. For example, 

McDonnell argues an applicant who is an emeritus or honorary professor, or a retired partner of a law office, would not 

satisfy the “substantially engaged” test, because the fact that 

an applicant holds a distinguished title is not an indication of 

that individual’s competency immediately prior to the time 

of application.

The Commission concedes the rules do not require full-time 

employment but contends that the rules require “substantial” 

experience and that this requirement is designed to protect the 

public. The Commission does not attempt to define the parameters of the “substantial” experience requirement in quantitative terms and claims this court need not prescribe a fixed 

threshold to the word “substantially.” The Commission does 

argue that the “substantially engaged” requirement is a means 

of assessing that an applicant has maintained the competency, 

skill, and fitness required to practice law12 and should generally 

require that attorneys devote more than one-quarter of their 

employment activities to the practice of law. The Commission 

further argues that McDonnell’s work as an adjunct law professor was not significant enough to meet the “substantially 

engaged” requirement.

We agree with the Commission that our analysis of whether 

McDonnell has met the “substantially engaged in the practice 

of law” requirement should focus on whether McDonnell possesses the competency, skill, and fitness required to practice 

law and whether he poses a threat to the public. In doing so, 

we consider our admission rules as a whole.

[7] This court has stated that it will not require a strict 

application of our admission rules if, in doing so, it would 

operate in such a manner as to deny admission to a qualified 

12 See, Spencer v. Utah State Bar, 293 P.3d 360 (Utah 2012); In re Conner, 

181 Vt. 555, 917 A.2d 442 (2006).
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applicant for a reason unrelated to the essential purpose of 

our rules.13 The rules are intended to weed out unqualified 

applicants.14

Under § 3-119(B)(2), an applicant for admission must 

have, at the time of his or her admission, attained educational qualifications at least equal to those required at the 

time of application for admission by examination to the bar 

of Nebraska.

In In re Appeal of Dundee,

15 we held the education requirement contained in § 3-119(B)(2) meant that Class 1-B applicants must hold a juris doctor degree from a law school 

approved by the American Bar Association. We have recognized that requiring applicants to hold a juris doctor guarantees to Nebraska clients that Nebraska lawyers possess a 

certain minimum understanding of the law, because they have 

taken basic, core legal courses deemed “‘minimally necessary 

to be a properly-trained attorney.’”16 We have also found an 

applicant’s proof of education is relevant to determining the 

applicant’s abilities as an attorney.17

In this matter, the record shows that McDonnell obtained 

a juris doctor from the University of Virginia School of Law, 

a law school accredited by the American Bar Association. In 

addition, the Commission concedes that McDonnell satisfied 

the education requirement for bar admission.

13 In re Application of Budman, 272 Neb. 829, 724 N.W.2d 819 (2006); In 

re Application of Brown, 270 Neb. 891, 708 N.W.2d 251 (2006); In re 

Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005).

14 In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998).

15 In re Appeal of Dundee, supra note 5.

16 Id. at 811, 545 N.W.2d at 759 (quoting Florida Bd. of Bar Examiners in re 

Hale, 433 So. 2d 969 (Fla. 1983)). See, In re Application of O’Siochain, 

supra note 4; In re Application of Budman, supra note 13; In re Application 

of Brown, supra note 13; In re Application of Collins-Bazant, supra

note 14.

17 See, In re Application of Brown, supra note 13; In re Application of 

Collins-Bazant, supra note 14.
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Cite as 299 Neb. 289

In addition to the education requirement, we have adopted 

the “Essential eligibility requirements for practice of law,” 

which set out the standards for conduct and fitness against 

which all applicants are measured.18 Also, the Legislature has 

enacted Neb. Rev. Stat. § 7-102(1) (Reissue 2012) which states 

that “[n]o person shall be admitted . . . unless it is shown to 

the satisfaction of the Supreme Court that such person is of 

good moral character.” Our rules state that “[t]he 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.”19

McDonnell’s application indicates that he is a person of 

good moral character and that he meets the essential eligibility requirements for the practice of law as set out in § 3-112. 

In addition, the Commission concedes that McDonnell satisfied the character and fitness requirement for bar admission, 

and at oral argument before this court, it did not contend that 

McDonnell would pose a threat to the public.

McDonnell also presented evidence to demonstrate his 

abilities as an attorney. He has been a licensed attorney since 

1988, he practiced law until 1995, and he resumed the practice 

of law through his employment as a law professor in 2006. 

As a law professor, he taught a law school course, developed curricula for health law courses, conducted scholarly 

research, published writings on health law and policy topics, 

provided continuing education lectures to medical professionals and attorneys, attended faculty research meetings, met 

with student interest groups, and served as a faculty research 

supervisor for a law student conducting independent health 

law research.

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, 

18 See § 3-112.

19 Neb. Ct. R. § 3-116 (rev. 2013).
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Cite as 299 Neb. 289

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.

CONCLUSION

Based upon our de novo review of the record, we conclude 

that McDonnell has carried his burden of proving that he met 

the application requirements for a Class 1-B applicant. As a 

result, McDonnell’s application for admission to the Nebraska 

bar is granted.

Application granted.

Kelch, J., not participating in the decision.

Wright, J., not participating.