May the law partner of an elected Nebraska technical-college board member serve as the board's legal counsel?

Plain-English summary

An elected technical-college board member was asked about the member's law firm and other firms as possible new board counsel. The question was whether the member's partner could accept the appointment.

Former DR 2-103 restricted a lawyer's recommendation of the lawyer or a partner for professional employment. The committee treated those restrictions with added caution because the recommending lawyer sat on the hiring board.

The board member would share in the firm's earnings and could have a voice in the amount of work, fees, payment, and any later fee controversy. The committee also cited the former rules governing a lawyer's use of public office and private employment connected to public responsibility.

It concluded that avoiding the appearance of impropriety would be too difficult. The partner could neither serve as board counsel nor be recommended for that role by the board member.

Currency note

This opinion was issued in 1980, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent public-office, government-lawyer, conflicts, imputation, recommendation, and fee rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Could the board member recommend the law partner?

A: No. The opinion prohibited both the recommendation and the partner's service.

Q: What financial interests concerned the committee?

A: The board member would share firm proceeds and could influence the amount of work, fees, and payment.

Q: Did recusal solve the problem in the facts presented?

A: The opinion did not offer recusal as a solution. It concluded that the partner should not serve.

Background and rules framework

The opinion applied former rules on recommendations of professional employment, lawyers acting as public officials, public-to-private employment, and appearance of impropriety.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 9, EC 2-4, DR 2-103(A) and (C), DR 8-101(A)(2), and DR 9-101(B)

See also

• Colorado Ethics Op. 97: Lawyer public-board conflict
• Virginia Ethics Op. 1763: Firm member on governing body
• Nebraska Ethics Op. 23-02: Firm government-official recusal

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 80-3

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 80-3

WHILE PARTNER A IS SERVING AS AN ELECTED REPRESENTATIVE OF AN AREA TECHNICAL COLLEGE BOARD, HIS PARTNER, B, SHOULD NOT ACCEPT APPOINTMENT AS LEGAL COUNSEL FOR THE BOARD.

You have requested the opinion of our Committee concerning the following question:

Partner A is an elected representative on the area technical college board; the Board indicates a desire to change legal counsel and inquires of Partner A regarding his firm and other firms as potential legal counsel.
Would it be proper for A's partner, B, to accept the appointment and serve as legal counsel for the Board?

DISCUSSION

Regarding that portion of your inquiry which states:

". . . the Board . inquires of Partner A regarding his firm . . ."

it would appear that DR 2-103, captioned Recommendation of Professional Employment, is informative. Subparagraphs A and C are as follows:

"A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non- lawyer who has not sought his advice regarding employment of a lawyer.

"A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that . . ."

While neither prohibition is absolute, perhaps both should be considered more cautiously in the situation you present wherein Partner A, of whom the Board's inquiry is made, is not simply an acquaintance of the inquirer but rather is a member of the inquirer's Board.

Ethical Consideration 2-4 states in part:

"Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers advice likely to produce legal controversy may well be suspect if he receives professional employment or other benefits as a result. A lawyer who volunteers advice that one should obtain the services of a lawyer generally should not himself accept employment, compensation, or other benefit in connection with that matter . . ."

Disciplinary Rule 8-101 A 2, captioned "Action as a Public Official", states:

"A lawyer who holds public office shall not use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client."

Whether the action of the area technical college board (on which Partner A serves) in appointing Partner B as its legal counsel is an act "in favor of himself (Partner A)"probably is arguable. Presumably, it would be desirable to Partner B to have a generous amount of legal work to do for the Board; to charge the Board adequate fees therefor; and for the Board to pay such fees fully, promptly, and without question. In all these respects, Partner A would probably have a voice in the decision of the Board and yet would share, with Partner B, in the avails thereof.

Although perhaps unlikely, it certainly is not impossible to imagine situations which might prove very difficult. In the event of a controversy over a fee resulting from the Board's refusal to pay, would not the suit for the fee be likely to name Partner B as the plaintiff and Partner A as a defendant? And since an attorney has a lien for his compensation upon the papers of his client, not Partner B have a lien on the memoranda of Partner A?

Canon 9 states that a lawyer should avoid even the appearance of professional impropriety. Disciplinary Rule 9-101 B thereunder states:

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

Although this Rule is apparently addressed to the lawyer who was a former public employee, it seems to us equally relevant to the lawyer whose partner is a present public employee.

DECISION

For the foregoing reasons, it is the opinion of The Advisory Committee that avoiding the appearance of professional impropriety would be so formidable a task that Partner B should not serve as, nor be recommended by Partner A for, legal counsel to the Board of which Partner A is an existing member.

Nebraska Ethics Advisory Opinion for Lawyers No. 80-3