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A LAW FIRM OF WHICH A COUNTY ATTORNEY IS A MEMBER MAY NOT ETHICALLY
REPRESENT CLIENTS IN DIVORCE CASES INVOLVING MINOR CHILDREN.
CODE
PROVISIONS INTERPRETED:
CANON 9. A Lawyer Should Avoid Even the
Appearance of Professional Impropriety.
EC 9-2
".While a lawyer should guard against
otherwise proper conduct that has a tendency to diminish public
confidence in the legal system or in the legal profession, his duty
to clients or to the public should never be subordinate merely because
the full discharge of his obligation may be misunderstood or may
tend to subject him or the legal profession to criticism. When explicit
ethical guidance does not exist, a lawyer should determine his conduct
by acting in a manner that promotes public confidence in the integrity
and efficiency of the legal system and the legal profession."
FACTUAL
SITUATION
A county
attorney is a member of a law firm which accepts divorce cases.
The county has supplied the county attorney with a special assistant
to handle all cases wherein the county attorney is disqualified
for any reason. Further, the county has provided funds which would
permit the special county attorney to represent the State of Nebraska
in any action against either party to a divorce for child neglect
or other criminal offenses.
QUESTION
May
the inquiring law firm ethically represent clients in divorce cases
involving minor children?
DISCUSSION
Formal
Opinion No. 77 of the ABA suggests that the prosecuting attorney
should avoid all impropriety, and likewise avoid the appearance
of impropriety. In that vein Formal Opinion No. 192 states:
"Many
opinions have been written by this committee applying each of these
Canons. Opinions 16, 30, 34, 77, 118, and 134 relate to Canon 6,
and pass on questions concerning the propriety of the conduct of
an attorney who is a public officer in representing private interests
adverse to those of the public body which he represents. The principle
applied in those opinions is that an attorney holding public office
should avoid all conduct which might lead the layman to conclude
that the attorney is utilizing his public position to further his
professional success or personal interests. "
Formal
Opinion 16 asserts that the public cannot waive the disqualification
of a public attorney. Formal Opinion No. 674 suggests that it is
immaterial that the public attorney's duties are only part time.
Inquiry
of county attorneys in both heavily and sparsely populated counties
reveals a marked difference in approach to this problem. In one
populous county no one in the county attorney's office is permitted
to handle a divorce case involving minor children. Staff members
are permitted to participate in divorce cases absent facts which
require criminal proceedings. In other counties, county attorneys
are counsel in divorce cases where there are minor children.
The
inquiring county attorney has taken one unusual precaution to avoid
the appearance of impropriety by procuring the appointment of a
special deputy county attorney to act for the State in matters where
the county attorney is disqualified. Despite this safeguard, situations
may arise where the inquiring law firm represents a party in a divorce
action against whom the special deputy county attorney may institute
criminal proceedings for child neglect or willful failure to pay
child support. In such a circumstance how could the inquiring law
firm represent their client without a conflict of interest between
the public and private duties of the county attorney?
CONCLUSION
This
committee concludes that in divorce actions where minor children
are involved a law firm of which a county attorney is a member should
be counsel for either party.
71-2
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