1 Nebraska Ethics Advisory Opinion for Lawyers No. 08-01 (This

Nebraska Ethics Advisory Opinion for Lawyers

No. 08-01

(This Opinion amends Formal Opinion 06-01, in part)

AN ATTORNEY RELATED BY MARRIAGE TO A COUNTY ATTORNEY

MAY NOT REPRESENT CRIMINAL DEFENDANTS BECAUSE “EACH

AFFECTED CLIENT” MUST GIVE INFORMED CONSENT, CONFIRMED IN

WRITING AND THERE IS NO MEANS FOR THE COUNTY ATTORNEY TO

OBTAIN SUCH INFORMED CONSENT FROM THE STATE.

IT IS IMPROPER FOR AN ATTORNEY ASSOCIATED WITH A PART-TIME

COUNTY ATTORNEY TO REPRESENT A DEFENDANT IN A CRIMINAL CASE

INVOLVING A VIOLATION OF THE CRIMINAL STATUTES OF THE STATE OF

NEBRASKA.

AN ATTORNEY LEAVING PRIVATE PRACTICE TO SERVE AS A COUNTY

ATTORNEY OR DEPUTY COUNTY ATTORNEY CANNOT PARTICIPATE IN A

MATTER IN WHICH HE OR SHE PERSONALLY AND SUBSTANTIALLY

PARTICIPATED WHILE IN PRIVATE PRACTICE, UNLESS THE

APPROPRIATE GOVERNMENT AGENCY AND THE FORMER CLIENT BOTH

GIVE INFORMED CONSENT, CONFIRMED IN WRITING. THIS CONFLICT IS

NOT AUTOMATICALLY IMPUTED TO OTHERS IN THE COUNTY

ATTORNEY’S OFFICE.

A COUNTY ATTORNEY MAY NOT REPRESENT CLIENTS IN FAMILY LAW

MATTERS INVOLVING THE SUPPORT OF A MINOR CHILD.

AN ATTORNEY ASSOCIATED WITH A COUNTY ATTORNEY MAY

REPRESENT A CLIENT IN A FAMILY LAW ACTION INVOLVING THE

SUPPORT OF A MINOR CHILD UNDER CERTAIN CIRCUMSTANCES.

A COUNTY ATTORNEY OR ANY ATTORNEY ASSOCIATED WITH A COUNTY

ATTORNEY MAY NOT HANDLE A PRIVATE PROBATE MATTER IN THE

COUNTY IN WHICH THE COUNTY ATTORNEY SERVES UNLESS THE

COUNTY HAS MADE ARRANGEMENTS FOR ALTERNATE LEGAL

REPRESENTATION FOR PURPOSES OF INHERITANCE TAX

DETERMINATIONS.

A COUNTY ATTORNEY LEAVING OFFICE TO GO INTO PRIVATE PRACTICE

CANNOT PARTICIPATE IN A MATTER IN WHICH HE OR SHE PERSONALLY

AND SUBSTANTIALLY PARTICIPATED WHILE ACTING AS A PROSECUTOR,

THIS CONFLICT IS IMPUTED TO THE ATTORNEY’S FIRM UNLESS THE

FIRM APPROPRIATELY SCREENS THE FORMER PROSECUTOR, AND

NOTIIFIES THE COUNTY ATTORNEY’S OFFICE OF THE CONFLICT.

QUESTIONS PRESENTED

1. Whether other members of a part-time county attorney’s firm, including the

spouse of the county attorney, would be able to represent criminal defendants in

any county in Nebraska.

2. Whether a conflict of interest arises:

(a) in a juvenile case where a newly elected county attorney was the previously

appointed guardian ad litem, or

(b) in a criminal case where there is an enhanceable offense and the current

county attorney was the defense attorney on the prior prosecution.

3. Whether a part-time county attorney, or other members of his or her firm, are

restricted in accepting family law cases, probate cases, or guardian ad litem

appointments either in the county where the county attorney serves or other

Nebraska counties.

4. Whether a former county attorney may associate with a private practice firm that

represents criminal defendants in the same county.

5. Whether a former county attorney may represent a defendant after he formerly

represented the state against a co-defendant at a bond hearing and the co-

defendant is expected to testify against the defendant.

6. Whether a former county attorney may represent a defendant after he formerly

represented the state against the same defendant at a bond hearing.

FACTS

The Committee has received several requests regarding possible conflicts of

interest involving county attorneys. This opinion will attempt to address those concerns,

based on the following facts: (a) a partner of a small law firm considers running for a

position of county attorney in a small rural county where the other members of his firm

include his wife; (b) a newly elected county attorney questions under what

circumstances there may be a conflict of interest with respect to former clients; (c) a

part-time county attorney is concerned with conflicts caused by the private practice of

the county attorney or his or her partners in family law, probate and guardian ad litem

representation; (d) a current county attorney is leaving government practice to work for

a private firm who represents criminal defendants currently being prosecuted by the

county; and (e) a former county attorney wishes to represent defendants in cases in

which he had some involvement as a prosecutor.

APPLICABLE RULES OF PROFESSIONAL CONDUCT

RULE 1.6 CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client unless

the client gives informed consent, the disclosure is impliedly authorized in order to carry

out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the

extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a crime or to prevent reasonably certain

death or substantial bodily harm;

(2) to secure legal advice about the lawyer’s compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy

between the lawyer and the client, to establish a defense to a criminal charge or

civil claim against the lawyer based upon conduct in which the client was

involved or to respond to allegations in any proceeding concerning the lawyer’s

representation of the client; or

(4) to comply with other law or a court order.

RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest

exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client

or a third person, or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph

(a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Comment 11 to Rule 1.7 provides:

When lawyers representing different clients in the same matter or in

substantially related matters are closely related by blood or marriage,

there may be a significant risk that client confidences will be revealed

and that the lawyer's family relationship will interfere with both loyalty

and independent professional judgment. As a result, each client is

entitled to know of the existence and implications of the relationship

between the lawyers before the lawyer agrees to undertake the

representation. Thus, a lawyer related to another lawyer, e.g., as

parent, child, sibling or spouse, ordinarily may not represent a client

in a matter where that lawyer is representing another party, unless

each client gives informed consent. The disqualification arising from

a close family relationship is personal and ordinarily is not imputed to

members of firms with whom the lawyers are associated.

RULE 1.9 DUTIES TO FORMER CLIENTS

(a) A lawyer who has formerly represented a client in a matter shall not thereafter

represent another person in the same or a substantially related matter in which that

person's interests are materially adverse to the interests of the former client unless the

former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially

related matter in which a firm with which the lawyer formerly was associated had

previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and

1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the

former client except as these Rules would permit or require with respect to a client, or

when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would

permit or require with respect to a client.

RULE 1.10(d)

(d) The disqualification of lawyers associated in a firm with former or current

government lawyers is governed by Rule 1.11.

RULE 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT

GOVERNMENT OFFICERS AND EMPLOYEES

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as

a public officer or employee of the government:

(1) is subject to Rule 1.9 (c); and

(2) shall not otherwise represent a client in connection with a matter in which the

lawyer participated personally and substantially as a public officer or employee,

unless the appropriate government agency gives its informed consent, confirmed

in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in

a firm with which that lawyer is associated may knowingly undertake or continue

representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to

enable it to ascertain compliance with the provisions of this rule.

c) Except as law may otherwise expressly permit, a lawyer having information that the

lawyer knows is confidential government information about a person acquired when the

lawyer was a public officer or employee, may not represent a private client whose

interests are adverse to that person in a matter in which the information could be used

to the material disadvantage of that person. As used in this Rule, the term “confidential

government information” means information that has been obtained under

governmental authority and which, at the time this Rule is applied, the government is

prohibited by law from disclosing to the public or has a legal privilege not to disclose

and which is not otherwise available to the public. A firm with which that lawyer is

associated may undertake or continue representation in the matter only if the

disqualified lawyer is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public

officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and

substantially while in private practice or nongovernmental employment,

unless the appropriate government agency gives its consent, confirmed in

writing; or

(ii) negotiate for private employment with any person who is involved as a

party or as lawyer for a party in a matter in which the lawyer is

participating personally and substantially, except that a lawyer serving as

a law clerk to a judge, other adjudicative officer or arbitrator may negotiate

for private employment as permitted by Rule 1.12(b) and subject to the

conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term “matter” includes:

(1) any judicial or other proceeding, application, request for a ruling or other

determination, contract, claim, controversy, investigation, charge, accusation,

arrest or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict of interest rules of appropriate

government agency.

RULE 1.0 TERMINOLOGY

(e) “Informed consent” denotes the agreement by a person to a proposed course

of conduct after the lawyer has communicated adequate information and explanation

about the material risks of and reasonable available alternatives to the proposed course

of conduct.

(k) “Screened” denotes the isolation of a lawyer or support person from any

participation in a matter through the timely imposition of procedures within a firm that

are reasonably adequate under the circumstances to protect information that the

isolated lawyer or support person is obligated to protect under these Rules or other law.

DISCUSSION

Rule 1.10(d) of the Rules of Professional Conduct provides that “[t]he

disqualification of lawyers associated in a firm with former or current government

lawyers is governed by Rule 1.11.” Rule 1.11 provides that former government lawyers

are subject to Rule 1.9(c) in addition to Rule 1.11. Rule 1.9(c) sets forth a general

prohibition against (1) using information to the disadvantage of a former client, and (2)

revealing information gained during the representation of the former client. Rule 1.11

provides that current government lawyers are subject to Rules 1.7 and 1.9 (in addition

to Rule 1.11). Rule 1.7, 1.9 and 1.11 are set forth above.

1. Criminal Representation by Other Firm Members:

The first issue to be addressed is whether the spouse or other member of a part-

time county attorney’s firm may represent criminal defendants. Because this issue

involves a current county attorney, Rules 1.7, 1.9 and 1.11 apply. In prior ethical

opinions, this committee has considered that criminal defendants are guaranteed the

right to counsel under the Sixth Amendment of the United States Constitution. See

Formal Opinion 06-5. This right to counsel for criminal defendants includes the right to

be represented by an attorney who is free of any possible conflicts of interest. Id., see

also, Wood v. Georgia, 450 U.S. 261, 271 (1981).

A. Spouses

With respect to a spouse representing criminal defendants, prior opinions of the

Advisory Committee have addressed this issue based on the former Nebraska Code of

Professional Responsibility. Specifically, in Formal Opinion 78-9 the committee stated:

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.

78-9 suggests that lawyers 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.” Further, in Formal Opinion No. 86-5, the committee concluded that

attorneys who are married or closely related were required to make full disclosure to

their respective clients and obtain the consent of the clients to the representation.

This subject is addressed by Rule 1.7 of the Nebraska Rules of Professional

Conduct. Rule 1.7(a)(2) prohibits an attorney from representing a client if there is “a

significant risk that the representation of one or more clients will be materially limited by

the lawyer’s responsibilities to . . . a third person, or by a personal interest of the

lawyer.” However, notwithstanding the existence of a concurrent conflict of interest,

Rule 1.7(b) allows a lawyer to represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

In Formal Opinion 06-12, this committee stated that there is no “bright line” rule

whether or not a lawyer can represent a client when an adverse party in the same

matter is being represented by a relative by blood or marriage. Rather, an attorney must

first determine whether his professional judgment would be affected by his own

personal interest. If the attorney determines it will not be, then the attorney must obtain

informed consent, confirmed in writing. When informing the client of the relationship,

the potential client should be adequately advised of the material risks of and available

alternatives to the proposed representation. Under Rule 1.0, “informed consent”

requires that the attorney provide adequate information and explanation about the

material risks of and reasonable available alternatives to the proposed course of

conduct. See also, Formal Opinion 86-5. Comment 11 to Rule 1.7 provides that Lawyer

A related to Lawyer B ordinarily may not represent a client in a matter where Lawyer B

is representing another party, unless each client gives informed consent.

The ABA/BNA Lawyer’s Manual on Professional Conduct addresses “Lawyer

Relatives” and provides: “While client consent allows for adversarial representations

between private lawyers related by blood or marriage, client consent is often considered

ineffective when one of the spouses works for a government agency” (51:1301). The

Manual cites Arizona Ethics Opinion 82-15 (1982) for the proposition that a prosecutor

who represents the public cannot obtain consent in any meaningful manner, and direct

representation of adverse interests by related lawyers is not generally permitted.

However, the Manual also cites Pennsylvania Ethics Opinion 86-2 (1986) which held

that consent of the state may be granted by the government employer of one of the

spouses upon consideration of the facts (51:1306).

With respect to obtaining a waiver of a conflict of interest from a government

agency, this committee has previously stated that in Nebraska a public entity cannot

give consent or waive a conflict of interest. See, Formal Opinion 04-1, citing, State ex

rel. Nebraska State Bar Association v. Douglas, 227 Neb. 1, 58, 416 N.W.2d 515

(1987) and State ex rel. Nebraska State Bar Association v. Richards, 165 Neb. 80, 92,

84 N.W.2d 136 (1957). (But see, Miller v. City of Omaha, 260 Neb. 507, 618 N.W.2d

628 (2000) (distinguishing Douglas and Richards for the proposition that under certain

circumstances a public entity is capable of consent to mutual representation). We note

that Formal Opinion 04-1 and the cases cited therein interpret provisions under the

former Nebraska Code of Professional Responsibility. Additionally, 04-1 responded to

an attorney’s request concerning prohibitions against representing the State of

Nebraska and not other public entities such as counties, municipalities, etc. Rule 1.11

of the current Nebraska Rules of Professional Conduct specifically provides a provision

for a government entity to give consent. See, Illinois Ethics Opinion 95-5 (1995) (a

government entity is capable of furnishing consent); Granholm v. Michigan Public

Service Comm’n, 243 Mich. App. 487, 2000 WL 1824520 (Mich Ct. App. 2000)

(attorney general may seek consent to oppose public agency while also representing it);

and Alaska Ethics Opinion 99-2 (1999) (a municipality can consent to conflict of

interest). Thus, with one exception, it is at least theoretically possible in Nebraska to

obtain a waiver from a public entity or governmental agency. To the extent there is a

mechanism which allows a public entity to waive a conflict of interest, an attorney may

seek to obtain such a waiver, However, there is currently no such mechanism for an

attorney who represents the State of Nebraska (as opposed to an attorney who

represents other governmental entities). As noted in earlier opinions, the county

attorney really has three clients: the county, the state and the public. See, e.g. Formal

Opinion 04-1.

Based upon the language contained in Rules 1.7 and 1.11 of the Nebraska

Rules of Professional Conduct, the committee is of the opinion that there may be

circumstances where married attorneys may properly represent opposing parties. In

that event, Rule 1.7(b) requires both attorneys to disclose the concurrent conflict and

obtain written informed consent from “each affected client.” However, a spouse of a

county attorney is prohibited from representing an adversarial party in an action where

the state is also a party because there is no procedure for waiving a conflict of interest

on behalf of the state - one of the “affected clients.”

It should be noted that any restriction on spouses does not necessarily extend to

partners or associates of spouses, See Rule 1.10(a).

B. Attorneys Associated with a Part-Time County Attorney.

A conflict of interest exists when other attorneys practicing with a part-time

county attorney consider representation of criminal defendants. In Formal Opinion 75-8,

interpreting the former Nebraska Code of Professional Responsibility, this committee

stated that it was improper for a county attorney, a deputy county attorney, or a partner

or associate of either, to represent a defendant in a criminal case involving a violation of

the criminal statutes of the state of Nebraska.

This imputed disqualification was based upon the fact that neither a county

attorney nor a city attorney, with the duty to prosecute violations of city ordinances or

state statutes, may ethically represent persons accused of criminal offenses in any

courts. See, Formal Opinion 186 (1938), Formal Opinion 72-13 (1972), and Formal

Opinion 4-01. This prohibition arises because a county attorney is statutorily required to

“prosecute or defend, on behalf of the state and county, all suits, applications, or

motions, civil or criminal, arising under the laws of the state in which the state or the

county is a party or interested.” Neb. Rev. Stat. § 23-1201.

Pursuant to Rule 1.7(b)(3), some conflicts are not subject to waiver. Consent to

representation is not an option if the representation involves the assertion of a claim by

one client against another client. Clearly, an attorney associated with a county attorney

could not represent criminal defendants in the county in which the county attorney

serves or in any other county. As indicated earlier in this opinion, the county attorney

really has three clients, one of them being the state. Thus, representation of criminal

defendants in any action where the state is a party is prohibited. This is true for both the

county attorney and attorneys associated in private practice with a county attorney. As

stated in Formal Opinion 75-8, “Having accepted the benefits and emoluments of public

office, either directly or indirectly, the burdens and forbearance must likewise be

assumed.”

2. County Attorney Dealing with Former Clients:

Rules 1.9 and 1.11(d) apply to situations where a current government attorney is

faced with possible conflicts from private practice. Read together, Rule 1.9 and 1.11(d)

prohibit a county attorney from participating in a matter in which the attorney

participated personally and substantially while in private practice, unless the appropriate

government agency and the former client both give informed consent, confirmed in

writing. In cases where a county attorney formerly represented a criminal defendant or

participated personally and substantially in the case and now intends to prosecute the

former client, the county attorney must obtain the written consent of both the former

client and the state. Again, this is something that does not appear to be possible under

the current state of the law. Thus, the county attorney would be precluded from

participating in matters involving the former client. This prohibition, however, would not

necessarily disqualify the entire county attorney’s office. See Comment 7 to Rule 1.10:

“Under Rule 1.11(d), where a lawyer represents the government after having served

clients in private practice . . . former-client conflicts are not imputed to government

lawyers associated with the individually disqualified lawyer.” Further, in the absence of

any financial interest or personal bias against a defendant by the county attorney, most

courts have not automatically disqualified the entire prosecutor’s office when a tainted

lawyer has joined it. See e.g. State v. Camacho, 406 S.E.2d 868 (NC Sup.Ct. 1991).

Courts in other jurisdictions have considered this situation on a case-by-case basis,

weighing the nature and extent of any confidential disclosure, any appearance of

impropriety, the appropriateness of a screening process and the position level within the

office of the personally disqualified attorney. Grand Jury Subpoena of Ford v. U.S., 756

F.2d 249 (CA 2 1985). It is the opinion of the committee that a conflict for one county

attorney is not automatically imputed to other government attorneys in the same office,

but must be considered on a case by case basis.

With respect to situations where the newly elected county attorney was the

previously appointed guardian ad litem in a juvenile case, Rule 1.9(a) provides that a

lawyer who has formerly represented a client in a matter shall not thereafter represent

another person in the same or a substantially related matter in which that person’s

interests are materially adverse to the interests of the former client unless the former

client gives informed consent, confirmed in writing. Thus, under Rule 1.9, the only way

in which a newly elected county attorney could ethically represent the state in an action

in which the attorney formerly acted as guardian ad litem would be if written, informed

consent was obtained from the former client. However, in the situation of representing a

child, it is not likely that a minor can give such informed consent.

3. County Attorney/Firm and Family Law, Probate and Guardian Ad Litem

Cases:

A. Family Law Cases:

The Advisory Committee previously addressed the issue of a county attorney or

his firm representing individuals in family law cases in Formal Opinions 71-2, 74-1, 74-

12, 76-15 and 87-5, all interpreting the former Nebraska Code of Professional

Responsibility and summarized below:

Formal Opinion 71-2: a law firm of which a county attorney is a member may

never ethically represent clients in divorce cases involving minor children.

Formal Opinion 74-1: amending 71-2, to allow a county attorney or a law firm to

represent clients in divorce actions involving minor children so long as the county board

has passed a resolution allowing such representation and agreeing to engage at the

county’s expense a special prosecutor to handle any nonsupport prosecutions arising

from the case.

Formal Opinion 74-12: the prohibition found in 74-1 does not extend to divorce

actions involving minor children in other counties than the one in which the county

attorney serves.

Formal Opinion 76-15: a county attorney should not institute criminal charges

against a husband for nonsupport where he previously represented the wife prior to

becoming county attorney.

Formal Opinion 87-5: a county attorney may never ethically represent either

parent in any proceeding involving custody of a minor child, including paternity, unless

the county board has adopted a general policy permitting its county attorney to

represent parties to a custody dispute and agreeing to engage, at the expense of the

county, a special prosecutor to handle any nonsupport actions that arose thereafter.

Family law encompasses a broad spectrum of cases, including divorce,

paternity, modification of prior orders and decrees, and adoption. When used in this

opinion, “family law” refers only to those cases in which support for minor children is an

issue. Rule 1.10(d) directs us to Rule 1.11: “The disqualification of lawyers associated

in a firm with former or current government lawyers is governed by Rule 1.11.” Thus,

Rules 1.7, 1.9 and 1.11, all dealing with current county attorneys, must be examined.

Prior to the promulgation of the Rules of Professional Conduct, this committee

concluded that in counties where the county board had adopted a policy permitting its

county attorney to represent parties in family law matters and agreeing to engage, at

the expense of the county, a special prosecutor to handle any nonsupport matters

arising from cases in which the county attorney has a conflict due to prior

representation of a party, a county attorney or his firm could handle family law matters

in private practice. This is our first opportunity to answer this same question under the

new Rules.

Scenario I: An attorney in the county attorney’s private practice firm

currently represents a parent who is to receive child support. Any

nonsupport action brought by the county attorney would be brought against the

other parent, not this client. Rules 1.7 and 1.11(d) apply. Under Rule 1.7 there is

no concurrent conflict of interest. Under Rule 1.11(d), the county attorney shall

not participate in a matter in which the lawyer [or his firm] participated personally

and substantially while in private practice. Under the scenario presented, it is an

attorney associated in private practice with the county attorney who wishes to

represent clients in family law matters. In this scenario, nothing prohibits the

private firm from representing this client as no conflict of interest exists. In the

event the county attorney was faced with prosecuting a nonsupport action

against the adverse party while the family law case was still pending, there would

be a conflict of interest for the county attorney since an attorney in his firm

participated personally and substantially in establishing the support order. In that

event, the county attorney could not prosecute the nonsupport action. The

county board would need to engage a special prosecutor to handle the

nonsupport matter. An attorney’s representation of current family law clients,

(when the attorney is associated with a part-time county attorney), is also subject

to Rule 1.11(c) as discussed below.

Scenario II: An attorney in the county attorney’s private practice firm

currently represents a parent who is to pay support. In this situation, there is

merely the potential for a nonsupport action which would be directed at a current

client of the county attorney’s private law firm. If that occurred, it would present a

direct conflict of interest under Rule 1.7(a)(2). This conflict of interest cannot be

waived. See Rule 1.7(b)(3). Again, there is nothing prohibiting the private firm

from representing this client as no conflict of interest exists until and unless the

client fails to pay support. In the event of a nonsupport action, the county

attorney could not prosecute the nonsupport action. The county board would

need to engage a special prosecutor to handle the nonsupport matter. An

attorney’s representation of current family law clients, (when the attorney is

associated with a part-time county attorney), is also subject to Rule 1.11(c) as

discussed below.

Scenario III: An attorney in the county attorney’s private practice firm

formerly represented a parent who receives child support. Rules 1.9 and

1.11 apply. Rule 1.9 prohibits an attorney who formerly represented a client in a

matter from thereafter representing another client “in the same or a substantially

related matter” where the second client’s interests are materially adverse to the

interests of the first client. While in some cases, prosecuting nonsupport matters

would appear to benefit the former client, in other cases, a county attorney may

negotiate a settlement with the non-supporting parent or make other

prosecutorial decisions which adversely affect the former client’s interests. Thus,

informed consent must be obtained from the former client. If informed consent is

not obtained, the county must engage a special prosecutor to handle the

nonsupport matter. In the event an associated attorney wishes to represent the

former client in future family law actions (such as modification actions), Rule

1.11(c) must be strictly followed as to screening and fee restrictions. Under no

circumstances may the county attorney, acting as either a private attorney or a

government attorney, represent such client.

Scenario IV: An attorney in the county attorney’s private practice firm

formerly represented a parent who pays child support. In the event the

former client fails to pay child support and the case is referred to the county

attorney’s office for prosecution, Rules 1.9 and 1.11(d) apply. Rule 1.9 prohibits

an attorney whose firm formerly represented a client in a matter from thereafter

representing another client “in the same or a substantially related matter” where

the second client’s interests are materially adverse to the interests of the first

client. This prohibits the county attorney from prosecuting the nonsupport matter

unless the former client gives informed consent. If the former client does not give

informed consent, the county must engage a special prosecutor to handle the

nonsupport matter. In the event an associated attorney wishes to represent the

former client in future family law actions (such as modification actions), Rule

1.11(c) must be strictly followed as to screening and fee restrictions. Under no

circumstances may the county attorney, acting as either a private attorney or a

government attorney, represent such client.

Nebraska has implemented CHARTS, a system in which county attorneys are

allowed, indeed required, to access and use the information found therein in

furtherance of nonsupport prosecutions. Thus, county attorneys now have access to

information concerning all nonsupport defendants across the state. Where they once

were essentially “screened” from cases in which there existed a conflict of interest,

(because a special prosecutor would be appointed and would maintain his/her own file)

they now are privy to that information. Through their public office, they have ready

access to confidential information concerning nonsupport defendants. Rule 1.11(c)

prohibits a lawyer “having information that the lawyer knows is confidential government

information about a person acquired when the lawyer was a public officer or employee”

from representing a private client whose interests are adverse to that person in a matter

in which the information could be used to the material disadvantage of that person.

Given their access to the information contained in CHARTS, a part-time county attorney

may never represent a party in a family law matter involving child support. Further, a

firm with which the county attorney is associated may only undertake or continue

representation in such a matter if the disqualified lawyer is timely screened from any

participation in the matter and is apportioned no part of the fee therefrom. See Rule

1.11(c). This applies to all of the scenarios discussed immediately above.

B. Probate Cases:

Past advisory opinions have stated that a county attorney may represent clients

in probate cases where the county board has first appointed a special county attorney

to represent the interests of the county and the State of Nebraska in inheritance tax

determinations. See Formal Opinions 72-1 and 81-6.

Again, this issue is addressed by Rules 1.7, and 1.11. As an inheritance tax

determination involves the assertion of a claim by one client against another client in

the same litigation, it would appear that the prior procedure of having a special county

attorney to represent the interests of the county and the State of Nebraska in the

inheritance tax determination would still be in order.

C. Guardian Ad Litem Appointments:

Guardian ad litem appointments arise in a variety of different circumstances

including juvenile proceedings, adoption proceedings, guardianship proceedings, and

divorce and custody proceedings. To the extent the appointment as guardian ad litem

occurs in a juvenile case in the county in which the county attorney is bringing the

juvenile action, Rule 1.7 prohibits any attorney in the firm from representing a client due

to a concurrent conflict of interest. As indicated earlier in this opinion, Rule 1.7(b)

allows a client to waive a concurrent conflict of interest. However, it is not likely that a

juvenile client can waive such conflict. Further, the Rule requires that informed consent

be obtained by “each affected client.” In this situation, that means informed consent

must be obtained from both the juvenile and the state. The committee parenthetically

notes that juvenile court actions are captioned “State of Nebraska in the interest of

[child’s name].” Thus, to the extent Formal Opinion 06-1 indicates otherwise, it is

disapproved and amended. Because the county attorney represents the State of

Nebraska, this prohibition extends to appointments in other counties as well.

If the appointment as guardian ad litem occurs in a divorce, custody, probate,

paternity, or adoption case in which neither the county nor the state is a party, there is

no conflict of interest for the private attorney associated with the county attorney.

4. County Attorney Leaving Office for Private Practice:

With respect to a county attorney leaving government office to enter either a solo

private practice or a private practice with a firm representing criminal defendants, Rule

1.11 of the Nebraska Rules of Professional Conduct is applicable. Under Rule

1.11(a)(2), a lawyer shall not represent a client in connection with a matter in which the

lawyer participated personally and substantially as a public officer or employee, unless

the appropriate government agency gives its informed consent, confirmed in writing.

Once again, there is currently no mechanism for such waivers by the state. Further,

pursuant to Rule 1.11(b), when the former county attorney has participated personally

or substantially in a case, the conflict is imputed to other members in the firm and no

lawyer in a firm associated with the former government attorney may undertake

representation or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to

enable it to ascertain compliance with the [screening] provisions of this rule.

Article No. 195 “Successive Government, Private Employment” in the ABA/BNA

Lawyer’s Manual on Professional Conduct suggests that appropriate factors to be

considered in screening include:

a. the size of and structural divisions within the law firm,

b. the likelihood of contact between the tainted attorney and the attorneys

handling the subsequent matter,

c. rules to prevent the new attorney from access to relevant files and other

pertinent information, and

d. a policy that prevents the attorney from sharing in the fees derived from the

litigation.

To avoid imputed disqualification to the firm, a tainted lawyer must be segregated from

the information so as to prevent the intentional or inadvertent spread of prior client

confidences. “[S]creened” is defined under Rule 1.0 as “[T]he isolation of a lawyer or

support person from any participation in a matter through the timely imposition of

procedures within a firm that are reasonably adequate under the circumstances to

protect information that the isolated lawyer or support person is obligated to protect

under these Rules or other law.” In circumstances where a former county attorney

wishes to represent criminal defendants, the attorney shall not represent a client in

connection with a matter in which the lawyer participated personally and substantially as

a public officer or employee. Attorneys who formerly represented the state in bond

hearings, preliminary hearings, or cases which form the basis for enhancing a later

sentence, their participation in such matters allowed them access to the state’s entire

file on the defendant (the future client). The committee concludes that such

participation is “personal and substantial.” Thus, the attorney is prohibited from

representing the criminal defendant in those situations.

CONCLUSION

A spouse of a county attorney may not represent a criminal defendant since the

Rules require written, informed consent from “each affected client” and the county

attorney is unable to obtain such consent on behalf of the state.

An attorney associated with a part-time county attorney may not represent

criminal defendants in cases involving a violation of the criminal statutes of the State of

Nebraska.

When an attorney has left private practice to serve as a county attorney, the

attorney must determine to what extent the representation of a former client conflicts

with the interests of his new position. In such circumstances, the attorney must take into

consideration Rules 1.9 and 1.11 to protect the interests of the former client.

A current county attorney may not represent clients in family law matters

involving child support due to his ongoing access to privileged information concerning

nonsupport defendants.

An attorney associated in private practice with a county attorney may represent

clients in family law matters involving child support, as long as the county has passed a

resolution allowing such representation and agreeing to retain a special prosecutor to

handle any nonsupport prosecutions that should arise from such cases and the firm

adheres to the screening and fee restrictions found in Rule 1.11(c).

In probate matters, as long as the county has made arrangements for alternate

legal representation for purposes of inheritance tax determinations, it is acceptable for a

county attorney or anyone associated in private practice with a county attorney to

handle private probate matters in that county.

For guardian ad litem appointments, it would depend upon the specific context of

the appointment. If the state were a party to the matter, such as in juvenile actions, it

would be a conflict for members of the county attorney’s firm to accept the appointment.

With respect to a county attorney leaving government practice to go into private

practice, the attorney shall not represent a client in connection with a matter in which

the lawyer participated personally and substantially as a public officer or employee.

When a lawyer is disqualified due to personal and substantial participation as a public

officer, another attorney in the firm may undertake representation as long as a proper

screening process is established and written notice is promptly given to the county

attorney’s office to enable it to ascertain the firm’s compliance with Rule 1.11(b).

(*Note - Juvenile court actions are captioned “State of Nebraska in the interest of

[child’s name].” To the extent Formal Opinion 06-1 indicates otherwise, it is disapproved

and amended.)