Ezel / Ethics Opinions / NELAC

Could Nebraska firm lawyers defend a partner accused of breaching duties as a corporate director when the partner would testify?

Short answer Yes, provided the defense lawyers complied with the ethics code. The opinion lacked enough surrounding facts to decide whether separate conflicts or obligations involving the corporation or firm would arise.
Bar
NELAC
Issued
1974
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1974. Ask about yours and see what the current Nebraska Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A law-firm partner faced a lawsuit alleging breach of fiduciary duty while serving as a corporate director. The partner expected to testify in the defense and wanted other members of the firm to act as personal counsel.

The committee allowed the representation in principle. It treated the partner as a client entitled to choose firm colleagues as defense counsel, and those lawyers owed the partner, the court, the plaintiff, and opposing counsel the same professional duties they would owe in any other representation.

The record did not reveal whether the firm also represented the corporation, whether the corporation was a party represented by the firm, or whether the partnership faced a contingent financial obligation. The committee therefore did not decide any conflict those additional facts might create and specifically directed attention to former EC 9-2.

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 Treat this page as historical context, not current guidance.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: Did the partner's expected testimony automatically disqualify the firm?

A: No. The committee allowed other firm lawyers to act as the partner's defense counsel.

Q: Did the opinion resolve whether the firm could also represent the corporation?

A: No. The committee did not have facts showing whether the firm represented the corporation or whether the corporation was also a party.

Q: What duties did the defense lawyers owe?

A: The same professional duties owed to any client, along with duties to the court, the plaintiff, and the plaintiff's counsel.

Background and rules framework

The committee focused on former EC 9-2 and the need to avoid an appearance of impropriety. Because the inquiry supplied only the proposed firm representation and the partner's expected testimony, the opinion left fact-dependent conflicts unresolved.

Citations and references

Former Nebraska Code of Professional Responsibility:

  • EC 9-2

See also

Source

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 74-6

MEMBERS OF THE SAME LAW FIRM MAY PROPERLY REPRESENT AND APPEAR AS PERSONAL COUNSEL ON BEHALF OF A PARTNER OF THE LAW FIRM IN AN ACTION AGAINST SUCH PARTNER INVOLVING AN ALLEGED BREACH OF HIS FIDUCIARY DUTY WHILE SERVING AS A DIRECTOR OF A CORPORATION EVEN THOUGH SUCH PARTNER WOULD BE A WITNESS ON HIS OWN BEHALF DURING THE TRIAL, PROVIDED THE LAWYERS FOR THE DEFENSE COMPLIES WITH THE CODE OF PROFESSIONAL RESPONSIBILITY.

QUESTION

May other members of the same law firm properly represent and appear as personal counsel on behalf of a partner of the law firm in an action against such partner involving an alleged breach of his fiduciary duty while serving as a director of a corporation? It is contemplated that such partner would be a witness on his behalf during the trial.

DISCUSSION

No surrounding facts were given to the Advisory Committee. Just the question and the fact that the partner being sued would be a witness on his own behalf. It is not known for illustration whether the firm represents the corporation of which the partner was the director; whether the corporation is also being sued in the same action and being represented by the same firm; whether there may be a contingent financial obligation of the partnership.

Any specific ethical problems therefore cannot be pinpointed. The biggest problem for the firm is to avoid the appearance of professional impropriety. Their attention is particularly called to EC 9-2 of the code of professional responsibility. Placing the question in perspective, it would seem that lawyers representing a partner are in the same position that such lawyers would be if requested to represent their respective wives or other members of the family in a lawsuit. It may or may not be wise but this would be a decision to be made by all the persons involved.

It would seem therefor that the partner in trouble is the client and he would have the same right as any other client to choose his lawyers to defend him. If he chose some of the other members of the partnership to represent him, such partners would owe the same duty to the partner in trouble as they would to any other client and such partners as defense lawyers would owe the same duties of professional responsibility that they would owe to any other client, to the court, and to the Plaintiff and his counsel.

Nebraska Ethics Advisory Opinion for Lawyers No. 74-6

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