Could a Nebraska city or village prosecutor voluntarily defend a person charged with a crime?

Plain-English summary

Nebraska Opinion 72-13 had barred a city or village attorney charged with prosecuting ordinance or state-law violations from representing criminal defendants in any court. Opinion 74-2 retained that rule but recognized a court-approved exception.

The committee responded to reports that the broad prohibition made it difficult, especially in rural areas, for accused persons to obtain adequate and competent counsel of their choice. It treated a court order approving the particular employment as a finding that denial would impose an unreasonable burden and that the representation would create no impropriety or appearance of impropriety.

The opinion also preserved two distinctions. A lawyer contracted to provide only civil services to a city or village did not become a public official merely from that contract, and an attorney appointed by a judge to defend an accused person remained outside Opinion 72-13's prohibition.

Currency note

This opinion was issued in 1974, 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 Treat this page as historical context, not current guidance.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 approval did voluntary defense work require?

A: The court in which the criminal case was pending had to enter an order approving the employment.

Q: What did the court order signify under the opinion?

A: It was construed as finding that refusal would unreasonably burden the defendant's access to adequate and competent counsel and that the engagement would create no impropriety or appearance of impropriety.

Q: Did the restriction cover court-appointed defense work?

A: No. The committee reaffirmed Opinion 72-14, which excluded appointments by a judge.

Q: Did a civil-services contract make every municipal lawyer a public official?

A: No. The opinion said a contract limited to civil legal services did not do so by itself.

Background and rules framework

Opinion 74-2 supplemented Opinions 72-13 and 72-14. The committee identified EC 5-14 and EC 9-6 as the pertinent former Code provisions and considered ABA Informal Opinion 1285 when recognizing the court-approved exception.

Citations and references

Former Nebraska Code of Professional Responsibility:

• EC 5-14
• EC 9-6

Other opinions cited:

• Nebraska Formal Opinion 72-13
• Nebraska Formal Opinion 72-14
• ABA Informal Opinion 1285

See also

• Nebraska Ethics Op. 78-3: Deputy county attorney and criminal defense
• Nebraska Ethics Op. 75-4: County commissioner as defense lawyer
• Nebraska Ethics Op. 74-12: County attorney and out-of-county divorce

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 74-2

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 74-2
(Supplement to Opinion No. 72-13)

A CITY OR VILLAGE ATTORNEY WHOSE DUTIES INCLUDE PROSECUTING VIOLATIONS OF ORDINANCES AND STATE STATUTES MAY NOT VOLUNTARILY REPRESENT ANYONE CHARGED WITH A CRIME UNLESS HIS EMPLOYMENT AS ATTORNEY FOR THE DEFENDANT IS APPROVED BY AN ORDER OF THE COURT WHEREIN THE CASE IS PENDING.

An exception to our Formal Opinion 72-13 pertaining to prosecutor conflict is hereby recognized when the employment of the attorney is approved by the court wherein the case is pending.

In Formal Opinion 72-13 we concluded that where a city (or village) attorney is charged with the duty of prosecuting persons accused of violating ordinances or state statutes, he may not ethically represent persons accused of criminal offenses in any court.

Our Opinion 72-13 cites certain applicable provisions of the Code of Professional Responsibility, particulary EC 5- 14 and EC 9-6, and numerous Formal and Informal Opinions of the Standing Committee on Professional Ethics of the American Bar Association. We have since reviewed Informal Opinion 1285 of the Standing Committee.

It has been called to our attention by many members of the Nebraska Bar that the prohibition created by our Formal Opinion 72-13 is making it difficult, if not impossible, for many persons accused of crime to obtain adequate and competent representation in our courts and that perhaps the need of our profession to provide such representation overrides the possibility of creating the appearance of impropriety on the part of lawyers to whom such employment is offered.

While the Committee still adheres to the reasoning and conclusions set forth in our Formal Opinion 72-13, we now conclude that we cannot longer ignore the very real problem that exists, particularly in the rural and sparsely settled areas of our state, for persons accused of crime to secure the services of a lawyer of their choice. We must recognize that we, as an organized bar, have a responsibility to do everything within our power to provide such representation in our courts.

We now conclude that there should be an exception to our conclusion in Formal Opinion 72-13 whenever the court where the criminal case is pending enters an order approving the employment of the lawyer by the defendant accused of crime, even though the lawyer, or one or more of his partners, might also be serving as a city or village attorney. The entry of such an order by the court will in all cases be construed as a finding that the refusal of such permission would place an unreasonable burden on the defendant to secure adequate and competent counsel and that no impropriety or appearance of impropriety will result from the employment of the attorney to represent the defendant in that particular case.

Lastly, we would remind all Nebraska lawyers of the growing practice of lawyers and legal firms to enter into contracts with cities and villages to furnish legal services in civil matters only. Under such contracts of employment, the lawyer does not become, per se, a public official and is therefore not bound by the prohibition contained in our Formal Opinion 72-13.

We also adhere to our Formal Opinion 72-14 wherein we held that the prohibition contained in our Formal Opinion 72-13 did not pertain to the 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. 74-2