Which private matters conflicted with serving as executive director of Nebraska's county-attorneys association?

Plain-English summary

A private-practice lawyer served part time as executive director of the Nebraska County Attorneys' Association. The role involved member newsletters, legislative appearances, and legal research for members.

The committee treated the association as a primary client for conflict analysis even though not all executive-director services necessarily constituted law practice. It relied on former Canons 5 and 9 and rules addressing independent judgment, business or personal interests, and differing interests.

The opinion barred criminal defense against a county attorney's prosecution, estate work determining inheritance taxes, civil matters adverse to Nebraska or a state agency, and divorces involving minor children. It reasoned that a county attorney could represent the state in those matters and might also direct or help set compensation for the lawyer's association work.

Court appointment ordinarily did not remove the conflict. The lawyer was to disclose the facts to the court, but could proceed if the court found no feasible alternative and assigned the representation.

Currency note

This opinion was issued in 1977, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent government-lawyer, organizational-client, personal-interest, public-office, appointment, and conflict rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Which private matters did the opinion prohibit?

A: Criminal defense prosecuted by a county attorney, inheritance-tax estate work, civil matters adverse to Nebraska or a state agency, and divorces involving minor children.

Q: Did it matter that some executive-director duties were not law practice?

A: No. The committee treated the association as a primary client because the executive director was also a practicing lawyer.

Q: Did a court appointment automatically permit one of the prohibited matters?

A: No. The lawyer first had to inform the court of the conflict facts.

Q: When could an appointed matter proceed?

A: When the court decided that no feasible alternative existed and assigned the representation.

Background and rules framework

Former Canon 5, DR 5-101(A), DR 5-105(A), and EC 5-1 addressed independent judgment, personal or business interests, and differing interests. Canon 9 addressed appearance of professional impropriety.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canons 5 and 9; DR 5-101(A), DR 5-105(A), and EC 5-1

Other opinions cited:

• Nebraska Ethics Advisory Opinion 72-14

See also

• Nebraska Ethics Op. 78-3: Deputy county attorney as defense counsel
• Nebraska Ethics Op. 81-6: County attorney and estate inheritance tax
• Nebraska Ethics Op. 04-1: County attorney condemnation conflict

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 77-5

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 77-5

IT WOULD NOT BE PROPER FOR AN ATTORNEY WHO, AS A PART-TIME JOB, SERVES AS EXECUTIVE DIRECTOR OF THE NEBRASKA COUNTY ATTORNEYS' ASSOCIATION, TO CONTEMPORANEOUSLY REPRESENT CLIENTS IN A PRIVATE PRACTICE IN ANY OF THE FOLLOWING CHARACTER OF MATTERS:

(1) Representation of a criminal defendant being prosecuted by a county attorney on behalf of the State of Nebraska;

(2) Representation of an estate in the determination of inheritance taxes;

(3) Representation of a client in a civil matter where the opposing party is the State of Nebraska or an agency thereof; and

(4) Representation of a client in a dissolution of marriage where minor children are involved.

FACTS

You state that the Association is a private nonprofit corporation with members who are county attorneys, deputy county attorneys and assistant attorneys general holding office in Nebraska; that the Association is governed by a Board of Directors and officers who are county attorneys and deputy county attorneys.

You further stated your principal duties as such Executive Director of the Association were (a) the preparation and mailing of a monthly newsletter to members of the Association containing material of general interest and assistance to the county attorneys; (b) representing the Association in appearances before Committees of the Nebraska Legislature and dealing with individual members thereof as occasion might warrant; and (c) performing legal research on questions requested by members, especially out-state county attorneys.

CONCLUSION

It is the opinion of the Committee that Canons 5 and 9 of the Code of Professional Responsibility provide the answer to your inquiry. Canon 5 states that a lawyer should always be able to exercise independent professional judgment on behalf of a client and Canon 9 states that a lawyer should avoid even the appearance of professional impropriety.

Disciplinary Rules DR 5-101(A) and DR 5-105(A) provide:

"5-101(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."

and

"5-105(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C)."

As these cited Rules are applied to your fact situation, even though all of the services performed for the Association are not necessarily the practice of law, your status as a practicing attorney obligates you to treat your position as the Association's Executive Director as if such services were being performed for the Association as a primary client. Accordingly, your acceptance of employment by another client in any of the four categories inquired about where county attorneys would likely (or in Category 4 possibly) be representing the State of Nebraska as an adverse party to your new client could involve you in a situation where your ability to exercise independent judgment for the new client could be compromised. And this situation is all the more likely to occur if the county attorney opposing your new client would be an officer or member of the Board of Directors of the Association, who for example, had helped set your compensation as Executive Director or was, in part, directing your activities as Executive Director.

This latter risk is epitomized in Ethical Consideration EC 5-1 which states:

"The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client."

It further seems to the Committee that your position as Executive Director of the Association is likely to give you somewhat of a public image as a spokesman for and close associate to county attorneys, so as to have you possibly identified as one and the same. Thus, even though you would endeavor to be circumspect in your conduct and zealous in your carrying out of duties for the Association and in representation of other clients in the categories inquiredabout, the potential for your being regarded as having conflicting interests exists and the proscription of Canon 9 applies.

We would add one final note. You further inquired that if a conflict of interest were determined by the Committee to exist in the four categories of matters questioned, whether it would make any difference if you were appointed by a Court to represent the new client in the matter. The Committee's answer is that it should not. When contacted by a Court with respect to any such representation, it is the Committee's view that you would be bound to call the Court's attention to the facts which you believe make it improper under the Code of Professional Responsibility for you to assume representation of the client. However, if the Court, in a particular case, decides there is no feasible alternative and assigns you such representation, you would be free to proceed. (See Opinion 72-14 of this Committee).

Nebraska Ethics Advisory Opinion for Lawyers No. 77-5