Could a Nebraska city attorney and firm handle criminal defense when the city contract assigned only civil duties and no prosecution?

Plain-English summary

In some small Nebraska communities, a city hired an attorney by express contract solely for civil advice and assigned no prosecution duties. The arrangement was designed to leave the lawyer and firm available for criminal defense.

The committee recognized that without the arrangement, accused people in rural or sparsely populated areas might struggle to hire counsel of their choice.

Because the city attorney had no prosecutorial responsibility at all, the committee concluded that access-to-counsel concerns outweighed any appearance of impropriety.

Opinion 86-1 amended Formal Opinion 74-5 to state that a city attorney with an express civil-only contract was not restricted in representing criminal defendants.

Currency note

This opinion was issued in 1986, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent municipal duties, prosecutor-conflict rules, contracts, imputation standards, or later opinions may have changed the result. Treat this page as historical context, not current guidance. The 2005 adoption date is stated in Nebraska Ethics Advisory Opinion 06-12.

Common questions

Q: What contractual fact controlled the opinion?

A: The city attorney had no prosecutorial responsibility whatsoever.

Q: Could the lawyer's firm also handle criminal defense?

A: Yes under the opinion's description of the arrangement.

Q: Why did rural location matter?

A: Restriction could make it difficult for accused people to obtain counsel of choice in sparsely served communities.

Q: What earlier opinion was amended?

A: Nebraska Formal Opinion 74-5.

Background and rules framework

The opinion treated the absence of any prosecution duty as eliminating the functional government conflict and weighed rural access to counsel against appearance concerns.

Citations and references

Other opinion:

• Nebraska Formal Opinion 74-5, amended

See also

• Kentucky Ethics Op. E-363: City contract lawyer defending criminal cases
• Illinois Ethics Op. 86-13: Municipal lawyer and criminal defense
• Wisconsin Ethics Op. E-76-12: City attorney's private criminal defense

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 86-1

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 86-1

IT HAS BEEN BROUGHT TO THE ATTENTION OF THE
COMMITTEE THAT IN CERTAIN OF THE SMALLER
COMMUNITIES IN NEBRASKA A CITY ATTORNEY WILL,
BY EXPRESS CONTRACT, ADVISE CONCERNING CIVIL
MATTERS ONLY AND WILL NOT ENGAGE IN ANY
PROSECUTORIAL ACTIVITY WHATEVER. SUCH
CONTRACTS HAVE BEEN ENTERED INTO EXPRESSLY TO
LEAVE THE CITY ATTORNEY AND HIS OR HER LAW FIRM
FREE TO HANDLE CRIMINAL DEFENSE WORK. IN THE
ABSENCE OF SUCH AN ARRANGEMENT, IT MIGHT BE
DIFFICULT FOR PERSONS IN RURAL OR SPARSELY
SETTLED AREAS OF THE STATE WHO HAVE BEEN
ACCUSED OF CRIME TO SECURE THE SERVICES FOR A
LAWYER OF THEIR CHOICE. IT IS THE OPINION OF THE
COMMITTEE THAT SUCH CONSIDERATIONS OUTWEIGH
ANY APPEARANCE OF IMPROPRIETY.

The Committee hereby amends Formal Opinion No. 74-5
by inserting the following sentence in the headnote and
body thereof:

"A city attorney who, by express contract with the city, has no prosecutorial responsibilities is not limited in the representation of criminal defendants."

Nebraska Ethics Advisory Opinion for Lawyers No. 86-1