Nebraska Supreme Court Prohibits Lobbying by State Bar

December 12, 2013 by Robert Franklin, Esq.

The Nebraska Supreme Court dramatically changed the function of the state’s Bar Association in a unanimous decision on December 6th. And that bodes very well for shared parenting legislation.

The Court ruled that, because membership in the Bar Association is mandatory for all Nebraska attorneys, the dues charged by the Bar can only be used for a few core Bar functions like enforcing ethical practices, setting up requirements for admission to the bar and the like. Here’s an article on the decision (Omaha World Herald, 12/7/13).

The decision comes in the wake of numerous stories in the state’s news media about the Bar’s lobbying the legislature, most prominently in opposition to shared parenting bills. As I’ve written about many times, the Nebraska Bar has made no secret of its opposition to shared parenting, but former Bar president Marsha Fangmeyer was at pains to deny the Bar’s lobbying activities. That strongly suggested that Bar officers knew they were violating the First Amendment rights of its Bar members, but did so anyway. It’s not too farfetched to say that, as presidenty of the Bar, Fangmeyer’s blatant disregard for lobbying prohibitions are what led directly to this latest decision by the Court.

Whatever the case, it was exactly that that attorney Scott Lautenbaugh objected to when he filed his lawsuit against the Bar. He claimed that his First Amendment rights were being violated by the Bar because it was lobbying against a shared parenting bill that Lautenberg personally supported.

And the state Supreme Court agreed. Relying on several U.S. Supreme Court precedents, it ruled that the only activities a mandatory bar association can engage in are those directly germane to the necessary functions of that association. Any other funds it uses, it must raise itself from contributors on a voluntary basis. Beginning in 2014, Nebraska lawyers’ dues will be only $98 per year, down from $335 in 2013.

In short, in about three weeks, the Nebraska State Bar Association will be a completely different organization from what it’s been to date. It will be much less powerful than before and, most importantly, its voice in the wide world beyond the community of Nebraska lawyers will be all but inaudible.

To say the least, that’s a huge step forward for those in the state who promote shared parenting. The Bar Association always went to bat for (surprise!) family lawyers who were opposed to even minimal changes in the direction of shared parenting.

Never mind that shared parenting has been shown time and again to benefit kids, reduce parental conflict, improve the emotional health of parents and allow mothers greater freedom to work, earn and save. And never mind that studies of children’s attitudes toward shared parenting show that they overwhelmingly prefer it. No, all of that must take a back seat to the best interests of family lawyers.

Family lawyers thrive on parental conflict and are adept at exacerbating it. Of course there are scrupulous family lawyers who genuinely want what’s best for the children in a custody case. But the family law system is an open invitation to lawyers to take the already-hard feelings between the parents and use them to start a long-term war. The longer and more bitter that war the more money the lawyers make. Again, the fact that that’s bad for everyone else concerned does little to stop the practice.

Time and again, we’ve seen lawyers openly admit that claims of domestic violence and child abuse, whether factual or not, have become a routine part of child custody cases. We’ve even seen them admit how they plant the seeds in the minds of their clients about all the things domestic abuse can consist of – things the client didn’t know, even when they were going on. Did he shout at you?  Did he plead with you to spend less?  You didn’t think that was abusive when he was doing it, but now that there’s a divorce in progress and you’re determined to punish him by cutting off his time with the children, the lawyer makes you see that it’s simple to cry “abuse!” and with that one word be ahead of the game.

Needless to say, with the “winner take all” system we have now, the person who all but knows he’ll be the loser in the custody sweepstakes (in about 83% of cases, the dad) has every reason to fight the above allegations tooth and nail. And why wouldn’t he?  At stake is his maintaining relationships with the people he loves most in the world – his kids. Win and he sees them regularly and for significant periods of time. Win and he continues to make real decisions about their medical care, schooling, religious education, etc. Lose and he becomes a part-time visitor, a man with about as much importance as a distant cousin. Lose and his identity as a father plummets even as his chances of suicide spike.

So everything about child custody cases militates in favor of increased conflict, bitterness and hard feelings. That more cases don’t devolve into that sort of rancor is explained by most people’s financial inability to hire lawyers.

Imagine what would happen if both parents knew, before either of them filed for divorce, that the chances were good that each would get about an equal share of parenting time and that both would remain an active and vital part of their children’s lives. They might not like the prospect of cooperating with the other person until little Andy or Jenny goes off to college, but they’d know that, realistically, neither of them has much choice in the matter. If they know that, absent a serious showing of unfitness by one or the other parent each will continue to play a significant parental role and the chances of bogus claims of abuse diminish sharply. That means less conflict. That means child custody cases become mostly routine matters of practicality for the parents and the kids. It’s less a war than a matter of making the parents’ schedules fit. And who needs a lawyer to do that?

That’s a fact known all too well by family lawyers, which is why, in every state, in every nation that equal parenting bills have come before legislative bodies, it’s been family lawyers who’ve been at the forefront of opposition. They’re not about to allow their prime source of revenue to be taken away without a fight.

Up to now, Nebraska family lawyers have relied on the State Bar to go to bat for them. They can no longer do that. As of now, the Nebraska State Bar will have to keep its mitts off shared parenting bills. Too many members support them, so the Bar is prohibited from opposing those bills.

That won’t prevent Marsha Fangmeyer and other opponents of children’s rights to real relationships with their fathers post-divorce from lying to the press about what a particular bill means, as she did time and again this past year. But at least she won’t have the money or the imprimatur of the Bar backing her up.

It’s time for a celebration. Ding, dong, the wicked witch is dead!

National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.


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