Could a Nebraska county attorney's firm represent a party in a divorce involving minor children?

Plain-English summary

A county attorney belonged to a firm that handled divorces. The county had appointed and funded a special assistant to act whenever the county attorney was disqualified, including later child-neglect or nonsupport prosecutions involving a divorce client.

The committee concluded that the safeguard did not eliminate the appearance and conflict concerns. The firm could represent a divorce party whom the special prosecutor might later prosecute, leaving the county attorney's public duties in tension with the firm's private role.

The committee therefore barred the county attorney's entire firm from divorces involving minor children under former Canon 9 and EC 9-2.

Opinion 74-1 later allowed such work when the county board adopted a general authorizing policy and agreed to fund an independent special prosecutor. Opinion 74-12 further held that the restriction did not reach a divorce arising in another county.

Currency note

Nebraska Opinion 74-1, issued in 1974, amended Opinion 71-2 by creating a county-resolution and special-prosecutor exception. Opinion 74-12, also issued in 1974, limited the prohibition to divorces arising in the county attorney's own county. All three predate Nebraska's 2005 Rules of Professional Conduct. Treat this page as historical context.

Common questions

Q: Did appointing a special assistant alone satisfy Opinion 71-2?

A: No. The committee still found that a conflict could arise between the firm's divorce representation and later public prosecution.

Q: What later exception did Opinion 74-1 create?

A: The county board could adopt a general permitting policy and agree to fund independent prosecution of any later nonsupport case.

Q: What geographic exception did Opinion 74-12 create?

A: It allowed the county attorney or firm to handle a divorce involving children when the matter arose in another county.

Background and rules framework

Former Canon 9 and EC 9-2 required conduct promoting public confidence and avoiding the appearance of impropriety. The committee also relied on ABA opinions addressing public lawyers' private interests and the inability of the public to waive some disqualifications.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 9
• EC 9-2

Other opinions cited:

• ABA Formal Opinions 16, 30, 34, 77, 118, 134, and 192
• ABA Formal Opinion 674
• Nebraska Ethics Advisory Opinions 74-1 and 74-12 (later limitations)

See also

• Nebraska Ethics Op. 74-1: County attorney divorce work
• Nebraska Ethics Op. 74-12: County attorney and out-of-county divorce
• Nebraska Ethics Op. 76-15: County attorney and former divorce matter

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 71-2
• Amending opinion: Nebraska Ethics Advisory Opinion 74-1
• Limiting opinion: Nebraska Ethics Advisory Opinion 74-12

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 71-2

A LAW FIRM OF WHICH A COUNTY ATTORNEY IS A MEMBER MAY NOT ETHICALLY REPRESENT CLIENTS IN DIVORCE CASES INVOLVING MINOR CHILDREN.

CODE PROVISIONS INTERPRETED:

CANON 9. A Lawyer Should Avoid Even the Appearance of Professional Impropriety.

EC 9-2 ".While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession."

FACTUAL SITUATION

A county attorney is a member of a law firm which accepts divorce cases. The county has supplied the county attorney with a special assistant to handle all cases wherein the county attorney is disqualified for any reason. Further, the county has provided funds which would permit the special county attorney to represent the State of Nebraska in any action against either party to a divorce for child neglect or other criminal offenses.

QUESTION

May the inquiring law firm ethically represent clients in divorce cases involving minor children? DISCUSSION

Formal Opinion No. 77 of the ABA suggests that the prosecuting attorney should avoid all impropriety, and likewise avoid the appearance of impropriety. In that vein Formal Opinion No. 192 states:

"Many opinions have been written by this committee applying each of these Canons.
Opinions 16, 30, 34, 77, 118, and 134 relate to Canon 6, and pass on questions concerning the propriety of the conduct of an attorney who is a public officer in representing private interests adverse to those of the public body which he represents. The principle applied in those opinions is that an attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests."

Formal Opinion 16 asserts that the public cannot waive the disqualification of a public attorney. Formal Opinion No. 674 suggests that it is immaterial that the public attorney's duties are only part time.

Inquiry of county attorneys in both heavily and sparsely populated counties reveals a marked difference in approach to this problem. In one populous county no one in the county attorney's office is permitted to handle a divorce case involving minor children. Staff members are permitted to participate in divorce cases absent facts which require criminal proceedings. In other counties, county attorneys are counsel in divorce cases where there are minor children.

The inquiring county attorney has taken one unusual precaution to avoid the appearance of impropriety by procuring the appointment of a special deputy county attorney to act for the State in matters where the county attorney is disqualified. Despite this safeguard, situations may arise where the inquiring law firm represents a party in a divorce action against whom the special deputy county attorney may institute criminal proceedings for child neglect or willful failure to pay child support. In such a circumstance how could the inquiring law firm represent their client without a conflict of interest between the public and private duties of the county attorney?

CONCLUSION

This committee concludes that in divorce actions where minor children are involved a law firm of which a county attorney is a member should not be counsel for either party.

Nebraska Ethics Advisory Opinion for Lawyers No. 71-2