Attorney C was appointed by the county board to complete a reply brief and, following affirmance, prepared and filed a brief for rehearing in the Nebraska Supreme Court. Attorney C then left the public defender's office. Attorney D was appointed county public defender on the day after Attorney A withdrew. Upon denial of rehearing in the Nebraska Supreme Court, Attorney D filed a petition for writ of certiorari with the United States Supreme Court, which was denied.

Attorney D requested an opinion from the Advisory Committee as to whether he could properly represent the defendant in post-conviction relief proceedings in the state court, alleging that the defendant was denied effective assistance of counsel by Attorneys A and B when they represented the defendant through the public defender's office. The Advisory Committee, in Opinions No. 87-6, issued an opinion stating that it would be a conflict of interest for Attorney D to represent the defendant in the post-conviction relief proceedings. Accordingly, Attorney D withdrew, and Attorney E (who is not connected with the public defender's office) was appointed to represent the defendant in the state post-conviction relief proceedings. Post-conviction relief has been denied by the Nebraska Supreme Court.

The prospective federal habeas corpus action is one of several avenues that remain to the defendant in challenging his sentence. Having determined that there was an imputed conflict of interest that ethically proscribed Attorney D from representing the defendant in the state post-conviction relief proceedings, this Committee has no alternative but to continue to maintain this position in connection with any subsequent court proceedings by the defendant challenging his sentence. If a conflict does in fact exist, participation in the defendant's challenges by Attorney D at this stage of the proceedings would merely provide an additional basis to the defendant to challenge the original proceedings.