Could a former Nebraska assistant city prosecutor defend and bring civil-rights claims over an arrest made during the lawyer's tenure?

Plain-English summary

The lawyer served as assistant city prosecutor from December 1974 through March 1975. A prospective client arrested in February sought representation in the resulting municipal criminal case and possible federal civil-rights litigation.

Former EC 9-3 and DR 9-101(B) restricted private employment in a matter for which a lawyer had substantial responsibility as a public employee. The inquiry did not establish the lawyer's personal responsibility for this prosecution.

The committee nevertheless treated police reports, tests, and related information as available to the prosecutor's office and said it did not matter whether the lawyer actually reviewed them. During the tenure, the lawyer owed a duty to the city and had to decline persons charged in its municipal court.

Because both proposed matters arose from the same arrest, the committee found an appearance of impropriety and required the lawyer to decline them.

Currency note

This opinion was issued in 1975, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Later former-government-lawyer, prosecutor, confidential-information, screening, substantial-responsibility, and conflict rules may have changed the analysis. Treat it as historical context.

Common questions

Q: Did the opinion find that the lawyer personally handled the prosecution?

A: No. It said the inquiry did not establish substantial responsibility, but treated the office's information as available to the lawyer.

Q: Could the lawyer defend the municipal charges?

A: No.

Q: Could the lawyer pursue federal civil-rights litigation over the arrest?

A: No. The same former public duty and appearance concern applied.

Background and rules framework

Former Canon 9, EC 9-3, and DR 9-101(B) addressed private employment after public service. The committee also used former Canon 6's definition of conflicting interests.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 9, EC 9-3, and DR 9-101(B)

Other authority:

• ABA Canon 6

See also

• Nebraska Ethics Op. 15-03: Prosecutor-to-public-defender conflicts
• Nebraska Ethics Op. 10-06: Former private counsel at government agency
• Nebraska Ethics Op. 87-6: Successor public defender conflict

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 75-7

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 75-7

IT IS IMPROPER FOR A FORMER ASSISTANT CITY PROSECUTOR OF A MUNICIPALITY TO REPRESENT A CLIENT WHO WAS ARRESTED FOR INTOXICATION AND RESISTING ARREST DURING THE TIME THE ATTORNEY WAS SERVING AS SUCH PUBLIC OFFICIAL, EITHER IN THE RESULTING CRIMINAL PROCEEDINGS IN THE MUNICIPAL COURT OR IN CIVIL RIGHTS LITIGATION IN FEDERAL COURT INVOLVING THE INCIDENT.

FACTS

From December 1974 until March 1975, the inquiring attorney was assistant City Prosecutor of a municipality. In February 1975 a prospective client of said lawyer was arrested and charged with intoxication and resisting arrest in the Municipal Court. He has asked the inquiring attorney to represent him both in the criminal proceedings in Municipal Court, and in possible civil rights litigation in Federal Court.

QUESTIONS PRESENTED

1. May the lawyer represent the accused in criminal
   proceedings in the Municipal Court?

2. May the lawyer represent the accused in civil rights
   litigation in Federal Court?

        CODE PROVISIONS INVOLVED
   

Canon 9 A Lawyer Should Avoid Even the Appearance of Professional Impropriety.

EC 9-3. "After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists." DR 9-101. Avoiding Even the Appearance of Impropriety.

"B. A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

DISCUSSION

The inquiry does not state that the assistant City Prosecutor had "substantial responsibility" for handling in Municipal Court the prosecution of the prospective client for intoxication and resisting arrest. It is clear, however, that the lawyer was employed by the municipality and was actively serving on the staff of the City Prosecutor in February 1975 when the alleged offenses were committed. He did not terminate his employment as a prosecutor until March 1975.

In these circumstances, we may assume that facts about the arrest including police reports, tests and other pertinent information were available to the assistant prosecutor. It is not important whether or not he actually examined this information. Prior to the adoption of the Code of Professional Responsibility, lawyers were governed by the Canons of Professional Ethics of the American Bar Association. The old Canon 6 concerned conflicting interests and provided in part:

"It is unprofessional to represent conflicting interests except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Canon 9 of the new Code of Professional Responsibility admonishes that a lawyer should avoid even the appearance of professional impropriety.

It seems to us that from December 1974 until March 1975 the assistant prosecutor was required to represent the municipality which employed him and to decline professional employment by any person charged with a criminal offense in the Municipal Court of said city during that period. Even if the assistant prosecutor lacked personal knowledge of the complaint filed here, he owed a duty to his employer which will not permit him to represent an adverse party. Were the inquiring lawyer to accept employment either to represent the accused in the Municipal Court prosecution or in Federal Court civil rights litigation, there would be an appearance of impropriety. We therefore believe that the prospective employment of the inquiring attorney by the accused person should be declined.

Nebraska Ethics Advisory Opinion for Lawyers No. 75-7