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NEITHER IMPROPRIETY NOR THE APPEARANCE OF IMPROPRIETY ARISES WHERE
A PART TIME COUNTY ATTORNEY REPRESENTS THE ESTATE AND NEXT OF KIN
OF A REGULAR CLIENT, KILLED IN AN AUTOMOBILE ACCIDENT, WHERE HE
DID NOT PARTICIPATE IN THE INVESTIGATION OR REPORT OF THE DEATH,
AS COUNTY ATTORNEY, AND WHERE THE POSSIBILITY FOR PROSECUTION CANNOT
ARISE AND WHERE THE ATTORNEY, REPRESENTING THE OPPOSING PARTY, DOES
NOT OBJECT TO SUCH REPRESENTATION BY THE COUNTY ATTORNEY.
CODE
PROVISIONS INTERPRETED:
Canon
9: A lawyer should avoid even the appearance
of professional impropriety.
QUESTION
PRESENTED
Upon
the facts stated, is a part time county attorney ethically prohibited
from representing the probate of the estate and the next of kin
of a regular client, killed in an automobile accident, where he
did not participate in the investigation or report of the deaths
and where the possibility for criminal prosecution cannot arise
and where opposing counsel raise no objection to such representation
on his part?
FACTUAL
SITUATION
All
people involved in an automobile accident, including the drivers
of the motor vehicle, were killed. The county attorney was not available
to make the investigation. The entire investigation was made by
the sheriff and the highway patrol. The sheriff acted as coroner
and made his report, as such. The county attorney did not participate
in any manner, except that, upon the advice of the coroner's physician,
he authorized an autopsy to be performed upon one of the victims.
Because of the death of all parties involved, no criminal prosecution
could be instituted against anyone involved in the accident. The
driver of one of the automobiles was a regular client of the county
attorney. Opposing counsel do not object to his representation of
the decedent's next of kin or the probate of his estate.
DISCUSSION
Generally,
a county attorney is prohibited from probating the estate of a decedent
or representing his next of kin in a death action where he investigated
the death or where a criminal prosecution would lie. This is because
of Section 23-1206 of the Revised Statutes of Nebraska (Re-issue
of 1970), which provides, as follows, to-wit:
"No
prosecuting attorney shall receive any fee or reward from or on
behalf of any prosecutor or other individual for services in any
prosecution or business which it shall be his official duty to attend;
nor shall he act or be concerned, as an attorney or counsel for
either party, other than for the state or county, in any civil action
depending upon the same state of facts upon which any criminal prosecution,
commenced or prosecuted, shall depend, or depending upon the same
state of facts, investigated by him, while acting as county coroner."
However,
in this case, the part time county attorney was not available to
make the investigation. It was made by the sheriff and by the highway
patrol and the sheriff signed the coroner's report. He simply authorized
an autopsy after it was recommended by the coroner's physician.
Otherwise, he performed no duties in this connection; nor was any
prosecution possible or imminent, since all parties involved were
killed. One of the drivers was a regular client of the decedent;
hence, there could be no charge of solicitation of legal work in
this case.
The
Supreme Court decisions reported under this statute indicate that
the purpose of this section was to make certain that a county attorney
should not be influenced by private interests and to protect the
public by making certain that the duties of the county attorney
are not influenced by private interest. There is no indication here
that the county attorney refrained from making the investigation
so as to make himself eligible for this legal work. In Thompson
vs Thompson, 151 Nebraska 11, 36 N.W. (2nd) 648, which is a most
interesting case, the Court found no impropriety in a county attorney
participating in that case, so long as opposing counsel raised no
objection, and the Court did not indicate that there was any impropriety
in this regard. In fact, in Jordan vs State, 101 Nebraska 430, 163,
N.W. 801, the Court deemed it proper for an attorney to withdraw
from a prosecution, so as to make himself eligible to probate the
estate; no impropriety was implied in that case, either. Hence,
it is not readily apparent where there could be any impropriety
in the matter before the Committee.
The
question arises, however, assuming that there is no impropriety
involved, is there an appearance of impropriety manifesting itself
in this precise factual situation? If so, this could offend against
Canon 9 which states that a lawyer should avoid even the appearance
of professional impropriety. Any contention to this effect in the
matter before the Committee, would not be convincing, especially
since opposing counsel does not object to the county attorney's
representation in civil proceedings arising from this automobile
accident. Nothing has been found, indicating that, under this particular
factual situation, there would be any indication whatever of either
impropriety or the appearance of impropriety.
CONCLUSION
On the
facts stated, the part-time County Attorney is not ethically disqualified
to represent the estate and the next of kin of his late client.
72-7
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