Could a Nebraska county attorney prosecute a second cousin with whom the prosecutor had no social or business contact?

Plain-English summary

A county attorney asked whether to withdraw from prosecuting a second cousin. The prosecutor had never had social or business contact with the defendant and had many distant relatives in the county.

Former DR 5-101(A) prohibited participation when the lawyer's personal interests could affect professional judgment. Canon 9 also required lawyers to avoid the appearance of impropriety.

The committee distinguished close relatives and close friends, whose relationships could require disqualification, from distant relatives with virtually no actual connection. It cited authority barring prosecution of a first cousin on appearance grounds but declined to create the same categorical rule for every distant relative.

Instead, the prosecutor had to assess the extent of social, personal, property, or business contact, public perception, and fairness to the accused. With no social or business tie to this second cousin, prosecution was ethically permissible.

Currency note

This opinion was issued in 1990, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent prosecutor-conflict rules, recusal law, appearance standards, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Did kinship alone require recusal from prosecuting a second cousin?

A: No. The opinion treated the relationship as distant and examined the actual connection.

Q: What factors controlled the case-specific analysis?

A: Social, personal, property, and business contacts, public perception, and fairness to the accused.

Q: Would the same answer apply to close relatives?

A: Not necessarily. The opinion said DR 5-101(A) plainly prohibited prosecution of close relatives such as parents, children, siblings, aunts, and uncles.

Q: Did the prosecutor know the defendant socially or through business?

A: No, which supported the committee's approval.

Background and rules framework

The former personal-interest and appearance provisions required recusal when a family or personal connection threatened judgment or public confidence. The committee applied those principles by degree of actual relationship rather than kinship label alone.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 5-101(A) and Canon 9

Cases:

• State ex rel. Nebraska State Bar Association v. Rhodes, 234 Neb. 799, 453 N.W.2d 73 (1990)
• People v. Nuzzi, 128 Misc. 2d 502, 489 N.Y.S.2d 836 (1985)

See also

• New Jersey Ethics Op. 627: Second cousin of municipal judge as prosecutor
• Nebraska Ethics Op. 93-5: Prosecutor's police-officer spouse
• Ohio Ethics Op. 1991-022: Sibling prosecutor and defense lawyer

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 90-3

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 90-3

A COUNTY ATTORNEY MAY ETHICALLY PROSECUTE A SECOND COUSIN IN A CRIMINAL CASE IF THE COUNTY ATTORNEY HAS HAD NO SOCIAL OR BUSINESS CONTACT WITH THE ACCUSED.

FACTS

A County Attorney inquiries whether he has an ethical obligation to disqualify himself in a criminal case where the defendant is a second cousin. The County Attorney has never had any social or business contact with the accused and adds that his family has lived in the County where he prosecutes since 1871 and that he has dozens of second, third and fourth cousins living in the area.

QUESTION PRESENTED

May a County Attorney ethically prosecute a second cousin in a criminal case if the County Attorney has had no social or business contact with the accused?

APPLICABLE CODE PROVISIONS

DR 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."

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

DISCUSSION

Attorneys are obligated to disqualify themselves from matters in which they have an actual conflict of interest. Attorneys should also be mindful of the public perception of their conduct and should avoid even the appearance of impropriety.

DR 5-101 (A) prohibits attorneys from participating in matters in which they have personal interests which may affect their professional judgment. It is obvious that this provision would prohibit a County Attorney from prosecuting close relatives such as parents, children, brothers, sisters, aunts or uncles. This provision also prohibits a County Attorney from prosecuting a close friend. State ex rel. Nebraska State Bar Association v. Rhodes, 234 Neb. 799, 453 N.W.2nd 73 (1990). To avoid the appearance of impropriety, it has been held that a prosecutor should not be involved in the prosecution of a first cousin. People v. Nuzzi, 128 Misc.2d 502, 489 N.Y.S.2d 836 (1985).

The determination as to whether a County Attorney should be disqualified from the prosecution of a distant relative must be made on a case by case basis. Factors to be considered are the extent of any social, personal, property or business contacts with the accused; the public perception of impropriety; and fairness to the accused.

The Committee recognizes that in some situations there are virtually no ties or connections between distant relatives. The Committee is of the opinion that it is ethically permissible for a County Attorney to prosecute a distant relative, such as a second cousin, in such circumstances.

CONCLUSION

A County Attorney may ethically prosecute a second cousin in a criminal case if the County Attorney has had no social or business contact with the accused.

Nebraska Ethics Advisory Opinion for Lawyers No. 90-3