Would the Nebraska advisory committee opine on another lawyer's completed conduct that could become a disciplinary charge?

Plain-English summary

A bar member asked the committee to evaluate other lawyers' conduct after the relevant events had already occurred. The same facts could support disciplinary charges.

The governing bar rule allowed the committee, at a member's request, to interpret a professional-conduct question that had not already been determined and was not pending in another proceeding.

The committee's longstanding policy further limited advice to an inquiring lawyer's own prospective course of conduct. It declined to judge another lawyer's behavior, completed acts, or questions likely to come before a district committee and then the advisory committee for review.

Giving advance views on those facts could compromise the committee's effectiveness if the same practices later arrived through the disciplinary process, so it declined the request.

Currency note

This opinion was issued in 1968, before Nebraska's adoption of the 2005 Rules of Professional Conduct and under the bar-association rules then in effect. Subsequent procedural rules or committee practices may have changed the scope of available advisory opinions. Treat this page as historical context.

Common questions

Q: Whose conduct could be the subject of an advisory request?

A: The inquiring lawyer's own contemplated course of action.

Q: Would the committee review another lawyer's completed conduct?

A: No. The opinion declined both completed acts and requests about other lawyers.

Q: Why did possible disciplinary review matter?

A: The committee could later review a district committee proceeding, and a prior advisory opinion on the same practices could impair that role.

Q: Did the governing rule permit a question already pending elsewhere?

A: No. The quoted rule excluded a question pending in a proceeding for determination.

Background and rules framework

Article XI, section 14 of the rules creating and regulating the Nebraska State Bar Association authorized discretionary advisory interpretations of previously undetermined, nonpending professional-conduct questions. Article XI, sections 3-7 and 8 governed district inquiry and committee review.

Citations and references

Nebraska bar rules:

• Article XI, § 14, Rules Creating, Controlling and Regulating Nebraska State Bar Association
• Article XI, §§ 3-7 and 8

See also

• Nebraska Ethics Op. 74-7: Committee exception for a contemplated referral program
• Nebraska Ethics Op. 71-3: Preliminary prosecutor-disqualification inquiry
• Nebraska Ethics Op. 73-7: Bar publicity program

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 68-1

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Nebraska Ethics Advisory Opinion for Lawyers No. 68-1

OPINIONS OF THE ADVISORY COMMITTEE ON MATTERS OF PROFESSIONAL ETHICS ARE LIMITED TO SITUATIONS IN WHICH A LAWYER SEEKS THE OPINION OF THE COMMITTEE AS TO THE ETHICAL PROPRIETY OF A COURSE OF ACTION IN WHICH HE DESIRES TO ENGAGE.

Article XI, Section 14, Rules Creating, Controlling and Regulating Nebraska State Bar Association

A member of the Association requests an opinion on the ethical conduct of other members of the Association. The inquiry is clearly based on facts which have already transpired and which could be the basis of charges against the other lawyers. Article XI, Section 14 of the Rules Creating, Controlling and Regulating Nebraska State Bar Association provides: "*** The Advisory Committee is further empowered in its discretion at the request of any member of the Association, to express its advisory opinion or give its interpretation upon rules of professional conduct where such question has not been previously determined and is not pending in any proceeding for a determination thereof."

It has long been the policy of the Advisory Committee to limit the rendering of opinion to situations in which a lawyer seeks the opinion of the Committee as to the ethical propriety of a course of action in which he desires to engage.

The Committee has been careful to refrain from expressing an advisory opinion as to the correctness of the conduct of a lawyer other than the inquirer, or where the facts or the acts inquired about have transpired or have been accomplished as distinguished from being contemplated or prospective, or in any case where it seems likely that the matter may come before the District Committee in Inquiry (Rules XI, 3-7) and subsequently before the Advisory Committee for review (XI, 8).

It is believed that the effectiveness of any action which the Advisory Committee might deem appropriate in such review proceedings would or might be seriously affected if the Committee had already by an opinion passed upon the very practices in question.

The Committee has again reviewed its policy and concludes that under these circumstances it should not render an opinion.

Nebraska Ethics Advisory Opinion for Lawyers No. 68-1