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A city or village attorney whose duties include prosecuting violations
of ordinances and state statutes may not voluntarily represent anyone
charged with a crime unless his employment as attorney for the defendant
is approved by an order of the court wherein the case is pending.
An exception to our Formal Opinion 72-13 pertaining to prosecutor
conflict is hereby recognized when the employment of the attorney
is approved by the court wherein the case is pending.
In Formal
Opinion 72-13 we concluded that where a city (or village) attorney
is charged with the duty of prosecuting persons accused of violating
ordinances or state statutes, he may not ethically represent persons
accused of criminal offenses in any court.
Our
opinion 72-13 cites certain applicable provisions of the Code of
Professional Responsibility, particulary EC 5-14 and EC 9-6, and
numerous Formal and Informal Opinions of the Standing Committee
on Professional Ethics of the American Bar Association. We have
since reviewed Informal Opinion 1285 of the Standing Committee.
It has
been called to our attention by many members of the Nebraska Bar
that the prohibition created by our Formal Opinion 72-13 is making
it difficult, if not impossible, for many persons accused of crime
to obtain adequate and competent representation in our courts and
that perhaps the need of our profession to provide such representation
overrides the possibility of creating the appearance of impropriety
on the part of lawyers to whom such employment is offered.
While
the Committee still adheres to the reasoning and conclusions set
forth in our Formal Opinion 72-13, we now conclude that we cannot
longer ignore the very real problem that exists, particularly in
the rural and sparsely settled areas of our state, for persons accused
of crime to secure the services of a lawyer of their choice. We
must recognize that we, as an organized bar, have a responsibility
to do everything within our power to provide such representation
in our courts.
We now
conclude that there should be an exception to our conclusion in
Formal Opinion 72-13 whenever the court where the criminal case
is pending enters an order approving the employment of the lawyer
by the defendant accused of crime, even though the lawyer, or one
or more of his partners, might also be serving as a city or village
attorney. The entry of such an order by the court will in all cases
be construed as a finding that the refusal of such permission would
place an unreasonable burden on the defendant to secure adequate
and competent counsel and that no impropriety or appearance of impropriety
will result from the employment of the attorney to represent the
defendant in that particular case.
Lastly,
we would remind all Nebraska lawyers of the growing practice of
lawyers and legal firms to enter into contracts with cities and
villages to furnish legal services in civil matters only. Under
such contracts of employment, the lawyer does not become, per se,
a public official and is therefore not bound by the prohibition
contained in our Formal Opinion 72-13.
We also
adhere to our Formal Opinion 72-14 wherein we held that the prohibition
contained in our Formal Opinion 72-13 did not pertain to the situation
where a city or village attorney is appointed by a judge to defend
a person accused of a crime.
74-2
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