Opinion No. (1981) ( 1981 )

REQUESTED BY: Senator Ernest Chambers Member of the Legislature State Capitol Building Lincoln, Nebraska 68509

Dear Senator Chambers:

This is in reply to your inquiry concerning the applicability of the Nebraska State Bar Association Disciplinary Rules to lawyers who are also public officials.

Disciplinary Rule 8-101 of the Model Code of Professional Responsibility of the American Bar Association which has been adopted by the Supreme Court of Nebraska to govern lawyers admitted to practice in Nebraska, provides:

(A) A lawyer who holds public office shall not:

(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.

(3) Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.

While you have not set forth the specific type of conduct involved, we are satisfied that a lawyer-public official could also engage in conduct which would violate other specific rules of the Model Code such as, for example, DR 1-102(A) ``A lawyer shall not: . . . (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.'

In State ex rel. Nebraska State Bar Association v.Cook, 194 Neb. 364, the respondent was found guilty of misconduct in the form of perjury while he held the position of Chairman of the Securities and Exchange Commission. In regard to the subject of the present inquiry, the Supreme Court of Nebraska stated:

An attorney may be subjected to disciplinary action for conduct outside the practice of law or the representation of clients, and for which no criminal prosecution has been instituted or conviction had, even though such conduct might be found to have been illegal. State ex rel. Nebraska State Bar Assn. v. Tibbels, 167 Neb. 247, 92 N.W.2d 546; State ex rel. Nebraska State Bar Assn. v. Butterfield, 169 Neb. 119, 98 N.W.2d 714.

If you wish to make a specific complaint, we direct you to the Counsel for Discipline of the Nebraska State Bar Association since this office is not authorized to act in said matters until after a formal charge has been filed with the Supreme Court of Nebraska and the Supreme Court has appointed this office to represent the Bar Association.

The Counsel for Discipline is located at 1019 Sharp Building, Lincoln, Nebraska 68508, in care of Dennis Carlson.

Hoping this will be of assistance to you, we are,

Very truly yours, PAUL L. DOUGLAS Attorney General Mel Kammerlohr Assistant Attorney General