No Per Se Office Disqualification When Prosecutor’s Relative Is a DHHS Witness: Conflicts Are Personal Under § 23-1205

Introduction

In State ex rel. Condon v. Braaten, 320 Neb. 214 (Neb. Oct. 24, 2025), the Nebraska Supreme Court clarified when a special prosecutor may be appointed due to an alleged conflict of interest in a county attorney’s office. The case arose from a separate juvenile court’s sua sponte removal of the Lancaster County Attorney’s office after learning that the elected county attorney’s adult daughter, a Department of Health and Human Services (DHHS) caseworker, could be a witness in the underlying juvenile matter (No. JV-24-785). The juvenile court appointed a special prosecutor under Neb. Rev. Stat. § 23-1205, concluding that a conflict existed and criticizing nondisclosure of the familial relationship.

The elected county attorney, Patrick F. Condon, brought an original quo warranto action in the Nebraska Supreme Court to oust the appointed special prosecutor, Jonathan M. Braaten, and reinstate his office. The Attorney General appeared as amicus curiae. The respondent did not appear. The core issues before the Court were:

What constitutes a “conflict of interest” under § 23-1205 sufficient to justify appointment of a special prosecutor;
Whether a familial relationship between a county attorney and a potential witness employed by DHHS automatically disqualifies the county attorney or the entire office;
Whether nondisclosure of that relationship, standing alone, supports office-wide removal; and
How ethical guidance and prior case law inform the conflict analysis, particularly in juvenile proceedings where the best interests of the child control.

Summary of the Opinion

Writing for a unanimous Court, Justice Freudenberg granted the quo warranto petition and ordered a judgment of ouster, removing Braaten from the office of special prosecutor. The Court held:

Conflicts of interest under § 23-1205 are personal and must be assessed case-by-case. The statute contemplates conflicts of “the county attorney and his or her deputies,” not automatic, office-wide disqualification.
On this record, there was no evidence of a personal conflict requiring appointment of a special prosecutor. The elected county attorney was not personally handling the case; the assigned deputy exercised independent professional judgment; and the DHHS caseworker was an adult daughter whose role was as a potential witness, not a victim.
Although disclosure of familial relationships is a professional expectation recognized in ethics opinions, nondisclosure alone—absent evidence of impaired judgment or improper influence—does not warrant office-wide removal.
The juvenile court’s reliance on Rule 1.7 (Neb. Ct. R. of Prof. Cond. § 3-501.7) and ethics guidance did not support the appointment here because there was no showing that the deputy’s or county attorney’s professional judgment was adversely affected, nor that an appearance of impropriety rose to the level requiring office-wide exclusion.
Accordingly, the appointment of a special prosecutor was unwarranted and invalid. The Lancaster County Attorney’s office is reinstated in JV-24-785.

Analysis

Precedents and Authorities Cited

Krajicek v. Gale, 267 Neb. 623, 677 N.W.2d 488 (2004): Cited for foundational principles of quo warranto. The Court reiterates that quo warranto is an equitable action and that the relator bears the burden to prove the right to the office at issue. Here, Condon met his burden to demonstrate the right of his office to prosecute the juvenile case.
In re Interest of Brelynn E., 30 Neb. App. 723, 972 N.W.2d 442 (2022): The Court of Appeals expressed concern where a prosecuting deputy called her spouse to testify, but found no prejudicial error in that case. The Nebraska Supreme Court references Brelynn E. to underscore two points: (1) personal involvement matters—the admonition is that a county attorney should not personally prosecute where a spouse will be a witness; and (2) even in close situations, the analysis turns on specific facts and potential prejudice, not automatic office-wide disqualification.
Nebraska Ethics Advisory Opinions (nonbinding but persuasive guidance):
- No. 89-6 (1989): Where a deputy’s sister (a social worker) might be an investigator/witness, the Advisory Committee identified two key factors: whether the relationship adversely affects the attorney’s professional judgment and whether the attorney can zealously represent interests within the rules.
- No. 93-5 (1993): Addressed a county attorney whose spouse is a police officer. The Committee advised office-wide exclusion only when facts create an appearance of impropriety (e.g., where the spouse is a victim). Otherwise, the county attorney should disclose the relationship and personally recuse if the spouse will be a witness; however, the entire office need not be disqualified absent heightened circumstances.
- No. 10-02 (2010): In juvenile practice, where an attorney’s spouse works for DHHS, there is generally no conflict merely due to the spouse’s employment. A key consideration is whether the spouse is sufficiently involved in the facts to be a material witness; absent extenuating circumstances, personal recusal may be warranted, but not necessarily office-wide disqualification.
Statutory authorities:
- Neb. Rev. Stat. § 23-1205 (Reissue 2022): Authorizes appointment of a special prosecutor due to the absence, sickness, disability, or conflict of interest of the county attorney “and his or her deputies,” or upon request for good cause. The Court gives this language its plain meaning: conflicts must be grounded in the county attorney’s or a deputy’s personal circumstances, not imputed across the entire office without evidence.
- Neb. Rev. Stat. §§ 23-1202 and 43-261: Establish the county attorney’s duty to represent the State in criminal, civil, and juvenile proceedings.
Jones v. Colgrove, 319 Neb. 461, 24 N.W.3d 1 (2025): Cited for the principle that courts give statutory text its plain and ordinary meaning. Applied to § 23-1205, this supports the individualized focus on conflicts of “the county attorney and his or her deputies.”
In re Interest of Jeovani H., 316 Neb. 723, 6 N.W.3d 539 (2024): Reaffirms that the Nebraska Juvenile Code’s foremost aim is the child’s best interests. The Court signals that this overarching objective does not expand conflict rules to presume disqualification absent evidence; rather, it underscores the need for steady and conflict-free representation of the State that advances the child’s interests.
Neb. Ct. R. of Prof. Cond. § 3-501.7 (Rule 1.7): The juvenile court relied on this rule. The Supreme Court accepts the ethical framework but emphasizes that conflicts under Rule 1.7 are personal and fact-specific; they do not automatically impute to an entire county attorney’s office absent evidence of impaired judgment or a compelling appearance of impropriety.

Legal Reasoning

The Court’s reasoning proceeds in several tightly linked steps:

Equitable quo warranto and burden allocation: As an original action in equity, quo warranto permits the Court to adjudicate entitlement to an office. The relator (Condon) bore the burden to demonstrate his office’s right to prosecute in JV-24-785. He met that burden by showing there was no qualifying conflict under § 23-1205 to justify ouster.
Plain text of § 23-1205 requires a personal conflict of “the county attorney and his or her deputies”: The Court applies ordinary-meaning statutory interpretation, emphasizing that the trigger for a special prosecutor is the conflict of the county attorney or of a deputy, not a generalized “office conflict.” The statute’s structure rejects automatic, office-wide disqualification absent individualized grounds.
Conflicts are personal and fact-specific; “appearance of impropriety” depends on context: Drawing on ethics opinions and Brelynn E., the Court recognizes scenarios that may require personal recusal (e.g., where a spouse is a witness or victim), but it refuses to extrapolate those to impose an office-wide bar where the county attorney is not personally involved and the deputy exercises independent judgment.
Application to the record:
- There is no evidence that Condon personally handled the case or influenced the assigned deputy’s decisions. The deputy (a 19-year veteran) averred independence and a duty to the State.
- The adult daughter’s role was as a DHHS caseworker and potential witness; she testified she does not discuss cases with her father and that his position would not affect her testimony.
- The Lancaster County Attorney’s office is a sizable, compartmentalized organization (approximately 40 attorneys across three divisions with separate chiefs). This structure supports the deputy’s professional independence and weighs against imputed conflicts.
- The Court specifically notes the distinction—highlighted in ethics guidance—between a relative as a victim (which may heighten the appearance of impropriety) and a relative as a professional witness. Here, the latter applies.
Disclosure expectations versus remedial consequences: While recognizing ethics guidance that attorneys should disclose familial ties with potential witnesses, the Court declines to convert nondisclosure into an automatic ground for office-wide disqualification. Absent proof that nondisclosure masked an actual impairment of professional judgment or undue influence, disclosure failures alone do not justify appointment of a special prosecutor.
Juvenile best-interests principle does not alter the conflict standard: The Court reiterates that juvenile courts must prioritize the child’s best interests, but it resists expanding conflict rules on that basis where the record reflects no compromised advocacy or structural risk.

Impact and Prospective Significance

This decision provides concrete, statewide guidance on conflicts in county attorney offices, especially in juvenile proceedings:

Limits on sua sponte special prosecutor appointments: Trial courts are reminded that § 23-1205 authorizes special prosecutors only upon a showing of a personal conflict of the county attorney or a deputy. Chain-of-command alone, or the mere presence of a relative employed by DHHS, is insufficient.
Personal versus institutional conflicts: Nebraska now has clear, high-court authority that conflicts are personal in this context. Office-wide disqualification requires more than supervisory relationships; it requires facts indicating impaired judgment, lack of independence, or a compelling appearance of impropriety (e.g., relative as victim; attorney personally prosecuting where spouse is a witness).
Continuity of State representation: The ruling favors stability and efficiency by preventing unnecessary disruptions and costs associated with special prosecutors where no actual or sufficiently serious apparent conflict exists.
Disclosure practice is encouraged but not jurisdictional: While the opinion stops short of prescribing sanctions for nondisclosure, it confirms practitioners should disclose familial ties early. That said, nondisclosure is not a per se basis for ouster without an evidentiary showing of prejudice or impaired judgment.
Juvenile practice clarity: In child welfare cases, prosecutors are not automatically disqualified because a DHHS caseworker is a relative. This protects the State’s ability to proceed efficiently while safeguarding the child’s best interests through conflict-free, independent prosecution.

Complex Concepts Simplified

Quo warranto: A special proceeding used to test whether someone lawfully holds a public office. Here, the county attorney used it to challenge the special prosecutor’s right to act as county attorney in a particular case. As an equitable action, the Supreme Court could make factual determinations in this original proceeding.
Special prosecutor: An attorney appointed to act in place of the county attorney when the county attorney (or a deputy) is absent, disabled, or has a conflict of interest, or upon request for good cause, under § 23-1205.
Conflict of interest (Rule 1.7): A lawyer has a conflict when representation is materially limited by personal interests or duties to others, or when the representation involves directly adverse interests. The rule’s focus is on the specific lawyer’s judgment, not automatic firm- or office-wide imputation in this governmental context unless facts justify it.
Appearance of impropriety: A nonbinding, ethics-based concept assessing whether the public might reasonably perceive partiality. Ethics opinions caution that appearances may necessitate recusal in some cases (e.g., spouse as victim), but the Supreme Court here requires concrete, case-specific facts to escalate an appearance into disqualification—especially for office-wide remedies.
Personal versus imputed conflicts: A personal conflict involves the lawyer’s own interests or relationships. An imputed conflict would disqualify the entire office or organization. This decision holds that, under § 23-1205, conflicts are assessed personally for the county attorney and deputies; office-wide imputation is exceptional and fact-dependent.
Best interests of the child: The guiding principle of Nebraska juvenile law. It does not alter the substantive threshold for conflicts but informs the Court’s preference for stable, conflict-free State representation without unnecessary disruption.

Practice Guidance and Takeaways

Early disclosure: When a prosecutor or deputy has a familial relationship with a potential witness (e.g., DHHS caseworker), disclose promptly to the court and parties. While nondisclosure alone is not disqualifying under this opinion, transparency helps prevent later challenges.
Personal recusal when warranted: If the relative is a victim or the lawyer’s spouse is a material witness, personal recusal by the involved attorney is prudent, consistent with Ethics Opinions 93-5 and 10-02. Consider whether the deputy or another attorney can proceed.
Document independence: Build a record showing that the assigned deputy exercises independent professional judgment, especially in larger offices with structured divisions and separate supervisors. This was persuasive to the Court.
Use screening where helpful: Ethical walls (e.g., no access to files, no discussions) can reinforce that the county attorney or a related lawyer is not influencing the case. While not mandated here, such measures strengthen the case against imputing an office-wide conflict.
Trial court approach: Before appointing a special prosecutor sua sponte, hold a focused hearing to determine whether a personal conflict impairs the county attorney or a deputy. Consider the nature of the relative’s role (victim vs. professional witness), the attorney’s actual involvement, and structural safeguards in the office.

Unanswered Questions and Boundaries

Threshold for “appearance of impropriety” sufficient for office-wide disqualification: The Court embraced the ethics guidance but did not delineate a comprehensive test. Future cases will likely refine when an appearance alone, without proven impairment, justifies office-wide removal.
Scope of required disclosure and remedies: The opinion reinforces disclosure as a best practice but leaves open the specific consequences or procedural protocols for late or omitted disclosure when no actual conflict is shown.
Small-office dynamics: The Court emphasized Lancaster County’s size and structure. Whether the same outcome would follow in a very small office with tighter supervision remains a fact-dependent question.

Conclusion

State ex rel. Condon v. Braaten decisively establishes that, under Neb. Rev. Stat. § 23-1205, conflicts warranting appointment of a special prosecutor are personal to “the county attorney and his or her deputies” and must be grounded in the facts of the particular case. The mere existence of a familial relationship between a county attorney and a DHHS caseworker who may testify does not per se disqualify the county attorney or the entire office. Absent evidence of impaired professional judgment, undue influence, or a compelling appearance of impropriety—especially where the elected county attorney is not personally prosecuting and a seasoned deputy exercises independent judgment—office-wide disqualification is unwarranted.

The Court’s analysis harmonizes statutory text, ethics guidance, and the juvenile system’s best-interests imperative, promoting both integrity and continuity in State representation. Practitioners should disclose familial relationships early and consider personal recusals or screening when circumstances escalate the risk of perceived or actual partiality. Trial courts should resist automatic recusals and special prosecutor appointments in favor of focused, evidence-based determinations. In doing so, Nebraska ensures that conflict rules protect the public interest without unduly disrupting the administration of justice in juvenile and other proceedings.