May a Nebraska lawyer defend criminal cases where a close relative is the county attorney?

Plain-English summary

The committee considered whether a lawyer could defend criminal cases in a county where a close relative, such as a sibling, parent, or spouse, served as county attorney. The question included matters prosecuted by a deputy county attorney.

Relying on ABA Formal Opinion 340, the committee found no consistent, mandatory, or automatic disqualification arising from the family relationship alone.

The opinion nevertheless described the situation as sensitive. It called for examining the circumstances of each case before accepting employment, making full disclosure to the client, and declining employment when any suggestion or possibility of disqualification existed.

Currency note

This opinion was issued in 1978, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent prosecutor, defense-counsel, family-relationship, conflict, disclosure, and disqualification rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Did the family relationship automatically disqualify defense counsel?

A: No. The committee found no mandatory disqualification on the stated facts.

Q: Did the answer change when a deputy county attorney prosecuted the case?

A: No automatic disqualification applied whether or not a deputy prosecuted the matter.

Q: What did the opinion require before accepting a case?

A: Careful review of the case's circumstances and full disclosure to the client.

Q: When did the opinion say employment should be declined?

A: When the circumstances presented any suggestion or possibility of disqualification.

Background and rules framework

The opinion did not cite a specific Nebraska rule. It adopted the reasoning of ABA Formal Opinion 340 concerning criminal defense representation where defense counsel and the prosecutor are close relatives.

Citations and references

Other opinions cited:

• ABA Formal Opinion 340

See also

• Nebraska Ethics Op. 01-2: Public-defense spouse screening
• Nebraska Ethics Op. 06-12: Related opposing lawyers
• Maine Ethics Op. 42: Prosecutor and defense counsel spouses

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 78-9

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 78-9

IT IS NOT PER SE UNETHICAL FOR AN ATTORNEY TO REPRESENT DEFENDANTS IN CRIMINAL CASES IN A COUNTY IN WHICH A CLOSE RELATIVE OF THE ATTORNEY, SUCH AS A BROTHER, SISTER, FATHER OR SPOUSE, IS THE COUNTY ATTORNEY, WHETHER OR NOT THE MATTER MAY BE PROSECUTED BY A DEPUTY COUNTY ATTORNEY.

FACTS

You have requested the opinion of The Advisory Committee regarding the propriety of an attorney representing defendants in criminal cases in a county in which a close relative of the attorney, such as a brother, sister, father or spouse, is the county attorney, even though the matter may be prosecuted by a Deputy County Attorney.

DISCUSSION

This question was dealt with in Formal Opinion No. 340 of the American Bar Association Committee on Ethics and Professional Responsibility. That committee concluded that there was no necessary disqualification involved in the situation you present. However, the committee pointed out the sensitivity involved in such a situation and suggested that lawyers must be extremely careful to guard against violations of their professional responsibilities in such matters. The wishes of the clients must also be carefully observed.

CONCLUSION

Accordingly, we conclude that there is no consistent or mandatory disqualification involved in the situation you present. We suggest that in most cases, the lawyers involved should carefully examine the circumstances in each case before accepting employment, should make a full disclosure to the client, and should refrain from accepting any such employment if there is any suggestion or possibility of disqualification.

Nebraska Ethics Advisory Opinion for Lawyers No. 78-9