Could a Nebraska county attorney represent a private client in an inheritance-tax determination?

Plain-English summary

A county attorney privately represented a petitioner in a Nebraska inheritance-tax determination. The county had an interest because the property was located there, so the county attorney's public and private roles potentially involved differing interests.

The committee relied on State v. Richards, which allowed the private representation when the county board first appointed a special county attorney for the tax proceeding. Appointment relieved the regular county attorney of duties to the county and state in that matter.

Merely informing the county board and obtaining its approval of appraisal values was not enough. The county board, rather than the county judge, had to appoint independent counsel before the inheritance tax was determined.

Currency note

This opinion was issued in 1972, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments, tax statutes, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: What county size did the opinion address?

A: A county with a population below 5,000.

Q: Who had to appoint the special attorney?

A: The county board, not the county judge.

Q: When did the appointment have to occur?

A: Before the inheritance-tax determination.

Q: Was county-board consent without special counsel enough?

A: No. The cited case required appointment even if the board knew of the conflict and approved the proposed values.

Background and rules framework

Former EC 5-14 addressed representation of clients with differing interests and protection of independent professional judgment. Nebraska Supreme Court authority supplied the special-counsel mechanism for this public-private role.

Citations and references

Former Nebraska Code of Professional Responsibility:

• EC 5-14

Cases:

• State v. Richards, 165 Neb. 80, 84 N.W.2d 136

See also

• Nebraska Ethics Op. 81-6: County attorney and inheritance tax
• Nebraska Ethics Op. 72-7: County attorney and crash estate
• Nebraska Ethics Op. 75-3: County-attorney condemnation conflict

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 72-1

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 72-1

A COUNTY ATTORNEY FOR A COUNTY UNDER 5,000 POPULATION MAY REPRESENT A PRIVATE CLIENT IN A DETERMINATION OF NEBRASKA INHERITANCE TAX (EITHER WITH OR WITHOUT PROBATE) IF THE COUNTY BOARD HAS FIRST APPOINTED A SPECIAL ATTORNEY TO REPRESENT THE INTERESTS OF THE COUNTY AND STATE PRIOR TO THE DETERMINATION OF TAX.

CODE PROVISIONS INTERPRETED:

EC 5-14. Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.

FACTUAL SITUATION

A County Attorney for a County under 5,000 population represents in his capacity as a private attorney a petitioner for determination of Nebraska inheritance tax in a proceeding (either within or outside of probate). The County normally represented by the attorney as County Attorney is an interested party since the property lies within the County. Prior to the determination of inheritance taxes, a special County Attorney is appointed by the County Board to represent the County.

QUESTION

Is the County Attorney disqualified from proceeding with the inheritance tax determination above mentioned? DISCUSSION

While the above-quoted EC 5-14 would appear to cast some doubt on the right of a County Attorney to select a private client and thus disqualify himself from representing the County in a particular proceeding, the Supreme Court of Nebraska has specifically dealt with this situation and held that it was proper for a County Attorney to conduct an inheritance tax determination for a private client if the County Board first appointed a special County Attorney to represent the interests of the County and State in connection with the inheritance tax determination. State v. Richards, 165 Neb. 80, 84 NW2d

136. In the Richards case, the Court specifically held
     that it would be improper for the County Attorney to act for the private client if the County Board failed to appoint special counsel; even though the County Board was informed of its right to appoint special counsel and even if the County Board took it upon themselves to approve the proposed appraisal values rather than rely upon the County Attorney's advice. In that same case, however, our Supreme Court specifically approved the practice of a County Attorney representing the private client where special counsel was appointed by the County Board and held:

     "Clearly he (the County Attorney) was
     relieved of his responsibilities to the County
     and State in this matter when Wertz (special
     counsel) was appointed." State v. Richards,
     supra, 84 NW2d 136 at 150.

                  CONCLUSION
     

The Committee believes that the County Attorney may represent a private client in the tax determination proceedings, provided that the County Board (not the County Judge) first appoints a special County Attorney to represent the interests of the County and State prior to the determination of inheritance tax.

Nebraska Ethics Advisory Opinion for Lawyers No. 72-1