Could a Nebraska county attorney also represent school districts, cities, or villages?

Plain-English summary

A county attorney asked whether the officeholder could also represent local governmental subdivisions such as school districts, cities, and villages. The committee concluded that county and local-subdivision interests were not conflicting as a matter of course.

Former EC 5-15 recognized that a lawyer could sometimes serve multiple clients with potentially differing interests in nonlitigation matters. Former DR 5-105(C) allowed multiple representation only when adequate representation of each interest was obvious and each client consented after full disclosure.

The county attorney therefore could represent multiple local governmental clients generally, subject to disqualification when an actual conflict developed. The committee also stated that the lawyer should withdraw if potentially differing interests became actually different.

Currency note

This opinion was issued in 1975, 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 Treat this page as historical context, not current guidance.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 committee treat county and municipal interests as inherently conflicting?

A: No. It concluded that the interests of counties and local subdivisions were not conflicting per se.

Q: What consent did former DR 5-105(C) require?

A: Each client had to consent after full disclosure, and it had to be obvious that the lawyer could adequately represent each client's interests.

Q: What happened if a conflict actually developed?

A: The opinion stated that the lawyer should withdraw and described the representation as subject to disqualification.

Background and rules framework

The opinion applied former Canon 5, EC 5-15, and DR 5-105(C). It also relied on ABA informal opinions permitting public lawyers to undertake other work when there was no conflict of interest or violation of confidence.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 5
• EC 5-15
• DR 5-105(C)

Other authorities cited:

• ABA Informal Opinion C-772
• ABA Informal Opinion 855
• Henry S. Drinker, Legal Ethics, pages 105 and 107

See also

• Nebraska Ethics Op. 79-1: County and city attorney partner conflicts
• Nebraska Ethics Op. 80-8: County attorney and legal-services board
• Nebraska Ethics Op. 12-12: County attorney as mental-health-board chair

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 75-2

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 75-2

A COUNTY ATTORNEY MAY ALSO REPRESENT OTHER GOVERNMENTAL SUBDIVISIONS SUCH AS SCHOOL DISTRICTS, CITIES AND VILLAGES EXCEPT IN MATTERS BETWEEN SUCH AGENCIES AS TO WHICH THERE IS A CONFLICT OF INTEREST.

A county attorney requests an opinion as to whether he may also represent governmental subdivisions such as school districts, and cities and villages.

CODE PROVISIONS INVOLVED

This question relates to Canon 5 of the Code of Professional Responsibility and the provisions thereof EC-515 and Disciplinary Rule DR-105(C) requiring that attorneys to exercise independent professional judgment on behalf of a client.

Section EC-515 discussing ethical considerations observes that "there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation." As pointed out therein, if "potential differing interests" become actual differing interests, the lawyer should withdraw.

Disciplinary Rule DR 5-105(C) permits representation of "multiple clients" only when it is "obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure."

We have not found any opinions of the A.B.A: discussing the present question. Many opinions of the A.B.A. sustain the right of a prosecuting attorney to engage in the private practice of law "so long as there is no conflict of interest". See Informal Opinion No. C.772.

Informal Opinion No. 855 reviews the situation of attorneys representing various agencies of city government and holds that so long as there is "no conflict of interest nor violation of confidence" such attorneys are not prohibited from handling matters before other agencies of the city.

As Drinker in Legal Ethics observes at page 107, where "there is no real conflict of interest, the Canon does not apply," but as stated at page 105 there may be situations where it can be expected that a "conflict" will develop and these should be avoided.

We do not believe that per se the interests of counties and local subdivisions may be said to be conflicting. We therefore conclude that county attorneys may also represent other local governmental subdivisions. Conflicts may arise in which the attorney cannot fulfill the requirements of the Code as noted above in EC-515. But if there is present the disclosure and consent specified in DR-105, the attorney may in our opinion represent such multiple clients generally subject to disqualification where conflicts actually develop.

Nebraska Ethics Advisory Opinion for Lawyers No. 75-2