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ALTHOUGH CERTAIN LIMITATIONS, RESTRICTIONS AND PROHIBITIONS PREVENT A
COUNTY ATTORNEY FROM ACCEPTING EMPLOYMENT IN CERTAIN PRESCRIBED CIVIL
PROCEEDINGS, NO SUCH LIMITATIONS APPLY TO CIVIL PROCEEDINGS WHICH ARE
WHOLLY DISCONNECTED FROM THE PERFORMANCE OF HIS OFFICIAL DUTIES. HOWEVER,
SUCH LIMITATIONS, AS APPLY TO THE COUNTY ATTORNEY, ARE EQUALLY APPLICABLE
TO HIS DEPUTY COUNTY ATTORNEYS AND TO THE MEMBERS OF ANY FIRM OR PARTNERSHIP
WITH WHICH HE MAY BE CONNECTED.
QUESTION PRESENTED
Is a prosecuting
attorney who files and prosecutes a criminal proceeding in a District
or in a District County Court, disqualified in any way from appearing
in that same court in a disconnected civil proceeding?
DISCUSSION
The answer
to the question presented, is in the negative. Nothing has been found
either in the Canons of Judicial Ethics or in the Code of Professional
Responsibility which would limit a prosecuting attorney from accepting
employment in a wholly disconnected civil proceeding in either of these
courts. The only references made in the Code of Professional Responsibility
to the limitations and responsibilities of a prosecuting attorney are
found in ethical consideration 7-13 (EC7-13) and disciplinary rule 7-103
(DR7-103) of the Code and nothing whatsoever has been found in the Canons
of Judicial Ethics, bearing on this question.
Undoubtedly,
the principal problem presented, is to ascertain the precise limitations
placed on a County Attorney by the provisions of Section 23-1206 of the
Revised Statutes of Nebraska, which reads 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."
A number of citations are found listed under this section. However, the
limits to which a county attorney may go in these cases, is quite well
prescribed in Thompson -vs- Thompson, 151 Nebraska 110, 36 N.W. (2nd)
648 and in Jordan -vs- State, 101 Nebraska 430, 163 N.W. 801.
Additional
to criminal prosecutions, his duties may include representation of the
County and their officials; performing the duties of a coroner, out of
which many civil proceedings could arise; representing the State, when
requested; handling tax and welfare foreclosure actions; dealing with
support claims, reciprocal and otherwise, which could prevent representations
in divorce actions involving minor children; and a number of other functions,
too numerous to mention here. Thus, it is readily apparent that the sphere
of participation in civil proceedings, could be seriously limited by this
statutory provision as well as by some of the opinions issued by the American
Bar Association and the Advisory Committee of the Nebraska State Bar Association.
Also, within
the scope of this answer, is a caveat to the effect that his Deputy County
Attorneys and the members of any law firm or partnership with which he
may be connected, would be similarly restricted. This ethical principle
now is so well settled that it hardly requires the citation of authority;
there are numerous formal opinions on this subject released by the American
Bar Association, and to this effect, also see Drinker in his Legal Ethics
at page 106. This problem could well arise where, for instance, the law
firm becomes involved in a divorce action involving minor children, since
the County Attorney, in such a case, could very conceivably have a duty
later to enforce the payment of child support from a recalcitrant parent.
CONCLUSION
Except for the fact that the County Attorney, his Deputies and the members
of his law firm or partnership must scrupulously explore the extent of
the restrictions, limitations and prohibitions placed upon them by statute
and the opinions released by the American Bar Association and the Advisory
Committee of the Nebraska State Bar Association, there appears to be no
restriction whatsoever at this time for a County Attorney, otherwise,
to appear in the District Courts or District County Courts of Nebraska
in civil proceedings which are wholly disconnected from his prescribed
official duties.
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