|
IT
IS IMPROPER FOR A COUNTY ATTORNEY, A DEPUTY COUNTY ATTORNEY, OR
A PARTNER OR ASSOCIATE OF EITHER, TO REPRESENT A DEFENDANT IN
A CRIMINAL CASE INVOLVING A VIOIATION OF THE CRIMINAL STATUTES
OF THE STATE OF NEBRASKA.
The duties of the county attorney are prescribed generally in 23-1201,
R.R.S. Nebr. 1943, and directs that his statutory duties are, among
others, "to prosecute or defend, on behalf of the state and
county, all suits, applications or motions, civil or criminal, arising
under the laws of the State in which the state or the county is
a party or interested".
It will be seen from the foregoing duties prescribed by statute
devolving upon a county attorney, that he represents not only the
county and the state in criminal matters, but that he also represents
both the county and the state in civil matters, in which the state
or the county is a party or interested. A county attorney, therefore,
has three clients; the county, the state, and the public. His first
duty is to them and it takes precedence over all other commitments
to which a county attorney may become engaged either at the time
or subsequently thereto. The prohibition against the representation
of conflicting interests as defined in Canon No. 6, applies not
only to the practicing attorney who is county attorney, but likewise
to all members of his firm.
Canon 5 reads as follows:
"A
lawyer should exercise independent professional judgment on behalf
of a client."
EC 5-1 provides the professional judgment of a lawyer should be
exercised, within the bounds of the law, solely for the benefit
of his client and free of compromising influences and loyalties.
Neither his personal interests, the interests of other clients,
nor the desires of third persons should be permitted to dilute his
loyalty to his client.
DR 5-101, Refusing employment when the interests of the lawyer may
impair his independent professional judgment.
(A) Except
with the consent of his client after full disclosure, a lawyer shall
not accept employment if the exercise of his professional judgment
on behalf of his client will be or reasonably may be affected by
his own financial, business, property, or personal interests.
DR 5-101
replaced in part former Canon No. 6 which made it unprofessional
to represent conflicting interests, and which was interpreted in
ABA Formal Opinion No. 128 with reference to public officers:
"Cognate matters, as far as public officers were concerned,
were considered by this committee in opinions 30, 34, 37, 39, 71,
77 and 118 and in each instance the conduct of the public officer
was held to have been professionally improper.
In Opinion 30, it was held that a public prosecutor in one state
could not properly defend a person accused of crime in another state;
in Opinion 34, that a prosecuting city attorney, or any of his assistants,
could not properly defend criminal cases whether within the scope
of their official duties or not; in Opinion 37, that it was professionally
improper for a lawyer to be employed, if as a public official, the
lawyer had made a report in favor of the client's contention; in
Opinion 39, that a prosecuting attorney could not privately handle
any matter that he had investigated, or was investigating, in his
official capacity; in Opinion 71, that a lawyer could not attack
the validity of a municipal bond issue which he had drawn himself;
in Opinion 77, that a lawyer could not properly accept employment
from one whom it is his duty, as a public officer, to prosecute;
and in Opinion 118, that a prosecuting county attorney might not
undertake to obtain a pardon or parole of one convicted of a crime
in another county of the same state.
It may be urged that the foregoing Opinions apply to lawyers in
public employ and that a lawyer retained by a Code Authority, or
any of the lesser bodies, is not in the public employ. There are,
however, many Opinions of this committee wherein the conduct of
lawyers not in public employ is, on account of the implication of
adverse influences and conflicting interests, held to be professionally
improper.
In Opinions 33, 49, 50, 72 and 103, we held in substance that a
partnership could not undertake any professional relationships which
any one of the partners because of adverse influences and conflicting
interests, could not ethically undertake."
In ABA Formal Opinion No. 142 the Committee on Professional Ethics
and Grievances of the American Bar Association states:
"A public prosecutor has as his client the state. It is obvious,
therefore, that he cannot appear for any defendant in cases in which
the state is an adverse party. The second paragraph of Canon 6 provides
in substance that a lawyer cannot represent conflicting interests,
'except by express consent of all concerned given after a full disclosure
of the facts.' In Opinion 16, it was held that the prosecutor could
not represent both the public and the defendant, and that a law
firm cannot serve two masters, because, the positions are inherently
antagonistic and this would be so irrespective of Canon 6. No question
of consent can be involved as the public is concerned and it cannot
consent."
This Advisory Committee has heretofore on June 10, 1964, March 29,
1966, and October 11, 1971, rendered the unqualified opinion that
Canon No. 6 of the Canons of Professional Ethics prohibits a county
attorney from representing persons charged with a crime either in
his own or in any other county of the state, but has not issued
any opinions with reference to deputy county attorneys, or partners
or associates of either.
With reference to deputy county attorneys, ABA Formal Opinion No.
142 held:
"The committee is of the opinion that it is improper for an
Assistant Prosecutor to defend any client in a criminal cause.
On several occasions this committee has held that neither a law
firm nor a partner thereof can properly accept employment which
any member of the firm cannot properly accept. See Opinions 49,
50, 72, 103, and 104.
The committee is therefore of the opinion that it is improper for
a partner of a Judge pro tem to practice in the court over which
he presides, and that it is likewise improper for the partner of
an Assistant Prosecutor to defend any client in a criminal case."
We believe
this to be a correct interpretation, and that the deputy county
attorney, having all of the power and authority of the county attorney
so far as prosecutions are concerned, should also stand in the shoes
of the county attorney where ethical considerations are involved.
What
then is the status of partners or associates of county attorneys
and their deputies? This Committee has previously ruled (Advisory
Opinion 71-2) that a law firm of which a county attorney is a member
may not ethically represent clients in divorce cases involving minor
children. ABA Formal Opinions 72 and 49 held that the relations
of partners in a law firm are such that neither the firm nor any
member or associate thereof may accept any professional employment
which any member of the firm cannot properly accept. Likewise, in
Opinion 33, the ABA Committee on Ethics and Grievances held: The
relations of partners in a law firm are so close that the firm,
and all members thereof, are barred from accepting any employment,
that any one member of the firm is prohibited from taking.
It is the conclusion of this Committee that all parties above referred
to should disassociate themselves from any participation in criminal
proceedings on behalf of a defendant charged with violation of the
criminal law. Having accepted the benefits and emoluments of public
office, either directly or indirectly, the burdens and forbearance
must likewise be assumed.
75-8
|
