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A COUNTY ATTORNEY FOR A COUNTY UNDER 5,000 POPULATION MAY REPRESENT
A PRIVATE CLIENT IN A DETERMINATION OF NEBRASKA INHERITANCE TAX
(EITHER WITH OR WITHOUT PROBATE) IF THE COUNTY BOARD HAS FIRST APPOINTED
A SPECIAL ATTORNEY TO REPRESENT THE INTERESTS OF THE COUNTY AND
STATE PRIOR TO THE DETERMINATION OF TAX.
CODE
PROVISIONS INTERPRETED:
EC 5-14.
Maintaining the independence of professional
judgment required of a lawyer precludes his acceptance or continuation
of employment that will adversely affect his judgment on behalf
of or dilute his loyalty to a client. This problem arises whenever
a lawyer is asked to represent two or more clients who may differing
interests, whether such interests be conflicting, inconsistent,
diverse, or otherwise discordant.
FACTUAL
SITUATION
A County
Attorney for a County under 5,000 population represents in his capacity
as a private attorney a petitioner for determination of Nebraska
inheritance tax in a proceeding (either within or outside of probate).
The County normally represented by the attorney as County Attorney
is an interested party since the property lies within the County.
Prior to the determination of inheritance taxes, a special County
Attorney is appointed by the County Board to represent the County.
QUESTION
Is the
County Attorney disqualified from proceeding with the inheritance
tax determination above mentioned?
DISCUSSION
While
the above-quoted EC 5-14 would appear to cast some doubt on the
right of a County Attorney to select a private client and thus disqualify
himself from representing the County in a particular proceeding,
the Supreme Court of Nebraska has specifically dealt with this situation
and held that it was proper for a County Attorney to conduct an
inheritance tax determination for a private client if the County
Board first appointed a special County Attorney to represent the
interests of the County and State in connection with the inheritance
tax determination. (State v. Richards, 165 Neb. 80; 84 NW2d 136)
In the Richards case, the Court specifically held that it would
be improper for the County Attorney to act for the private client
if the County Board failed to appoint special counsel; even though
the County Board was informed of its right to appoint special counsel
and even if the County Board took it upon themselves to approve
the proposed appraisal values rather than rely upon the County Attorney's
advice. In that same case, however, our Supreme Court specifically
approved the practice of a County Attorney representing the private
client where special counsel was appointed by the County Board and
held:
"Clearly
he (the County Attorney) was relieved of his responsibilities to
the County and State in this matter when Wertz (special counsel)
was appointed." State v. Richards, supra, 84 NW2d 136 at 150
CONCLUSION
The
Committee believes that the County Attorney may represent a private
client in the tax determination proceedings, provided that the County
Board (not the County Judge) first appoints a special County Attorney
to represent the interests of the County and State prior to the
determination of inheritance tax.
72-1
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