Did Nebraska's prohibition on criminal defense by municipal prosecutors apply when a court appointed the lawyer?

Plain-English summary

Nebraska Opinion 72-13 barred a city or village attorney responsible for prosecuting ordinance and state-law violations from voluntarily defending anyone charged with a crime.

Opinion 72-14 distinguished representation undertaken by court appointment. The committee viewed the earlier ethics opinions as addressing voluntary, presumably compensated employment rather than a judge's selection of counsel.

The committee concluded that its limitation on a lawyer's voluntary conduct should not bind a court fulfilling its obligation to make representation available to an accused person. Opinion 72-13 therefore did not govern a court-appointed defense.

Currency note

This opinion was issued in 1972, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments 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 Treat this page as historical context, not current guidance.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 kind of representation did Opinion 72-13 prohibit?

A: Voluntary criminal defense by a city or village lawyer whose official duties included prosecutions.

Q: Why did the committee treat court appointment differently?

A: A judge was discharging the court's obligation to make counsel available, rather than the lawyer voluntarily taking the case.

Q: Did Opinion 72-14 cite a specific disciplinary rule?

A: No. It interpreted the reach of the committee's earlier Opinion 72-13.

Background and rules framework

The opinion narrowly construed Nebraska Opinion 72-13 and distinguished court appointment from a lawyer's voluntary defense engagement.

Citations and references

Other opinions cited:

• Nebraska Opinion 72-13

See also

• Nebraska Ethics Op. 74-2: Prosecutor as defense counsel
• Nebraska Ethics Op. 74-5: City attorney's private work
• Nebraska Ethics Op. 78-3: Deputy county attorney and criminal defense

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 72-14

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 72-14

IN OPINION NO. 72-13, THE COMMITTEE CONCLUDED THAT A CITY OR VILLAGE ATTORNEY WHOSE DUTIES INCLUDE PROSECUTION OF VIOLATIONS OF ORDINANCES AND STATE STATUTES MAY NOT VOLUNTARY REPRESENT ANYONE CHARGED WITH A CRIME. INQUIRY HAS BEEN MADE AS TO WHETHER OR NOT THE PROHIBITION APPLIES TO A SITUATION WHERE THE CITY OR VILLAGE ATTORNEY IS COURT- APPOINTED IN THE CRIMINAL MATTER.

It is implicit in the opinions of the Advisory Committee on this subject that the representation of defendants in criminal matters is voluntary on the part of the city or village attorney and presumably undertaken for compensation, and the ethical prohibition extends to that situation. A different case is presented where a judge appoints a lawyer who happens to be a city or village attorney to represent a person charged with a crime.

The Committee does not feel that a court can or should be bound by the limitation imposed under the Code upon an attorney's voluntary action, where the court is discharging its obligations to make representation available to accused persons.

Hence, Opinion No. 72-13 should not be construed as pertaining to a situation where a city or village attorney is appointed by a judge to defend a person accused of a crime.

Nebraska Ethics Advisory Opinion for Lawyers No. 72-14