ETHICS COMMITTEE OPINION NO . 17-01
ETHICS COMMITTEE OPINION NO . 17-01
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
Is it a conflict of interest for a state ’ s attorney , or any attorney under the state ’ s attorney ’ s direct supervision , to charge or prosecute a defendant when the state ’ s attorney was a former victim of the defendant ? 1
OPINION
Neither a state ’ s attorney , nor any attorney under the state ’ s attorney ’ s direct supervision , may charge or prosecute a defendant when the state ’ s attorney was a former victim of the defendant if the state ’ s attorney determines the state ’ s attorney ’ s prior victimization by the defendant will or is likely to adversely affect the state ’ s attorney ’ s ability to represent the State ’ s interests .
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT Rule 1.7 , N . D . R . Prof . Conduct : Conflict of Interest .
Rule 3.8 , N . D . R . Prof . Conduct : Special Responsibilities of a Prosecutor .
Rule 5.1 , N . D . R . Prof . Conduct : Responsibilities of Partners , Managers , and Supervisory Lawyers .
FACTS PRESENTED
A defendant was previously charged with Terrorizing , a Class C Felony . One of the victims of the charged terrorizing is the current state ’ s attorney . The same defendant was arrested in the same state ’ s attorney ’ s jurisdiction for the Class C Felony Charge of Aggravated Assault and now faces prosecution .
Pursuant to Rule 5.6 ( a ) of the Rules of Professional Conduct , upon associate ’ s termination , this agreement will not restrict the associate ’ s right as a lawyer to practice law as a lawyer .
For the purposes of this opinion , it is assumed at least some of the service offered by the company could arguably be encompassed within Attorney ’ s practice of law after employment is terminated .
DISCUSSION Rule 1.7 ( b ), N . D . R . Prof . Conduct , provides in part : ( a ) A lawyer shall not represent a client if the lawyer ’ s ability to consider , recommend , or carry out a course of action on behalf of the client will be adversely affected by the lawyer ’ s responsibilities to another client or to a third person , or by the lawyer ’ s own interests .
( b ) A lawyer shall not represent a client when the lawyer ’ s own interests are likely to adversely affect the representation . ( c ) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer ’ s responsibilities to another client or to a third person , or by the lawyer ’ s own interests , unless : ( 1 ) The lawyer reasonably believes the representation will not be adversely affected ; and ( 2 ) The client consents after consultation . When representation of multiple clients in a single matter is undertaken , the consultation shall include explanation of the implications of the common representation and the advantages and risks involved .
As noted in the Comment to Rule 1.7 : [ 2 ] Paragraphs ( a ), ( b ) and ( c ) of this Rule address three separate and distinct conflict of interest situations . Paragraph ( a ) addresses the situation in which the lawyer ’ s own interests or the lawyer ’ s responsibilities to another client or to a third person will adversely affect the lawyer ’ s representation of a client . Paragraph ( b ) addresses the situation in which the lawyer ’ s own interests are likely to adversely affect the representation . In both of these conflict situations , the lawyer is absolutely prohibited from undertaking or continuing representation of the client . Paragraph ( c ) addresses the situation in which the lawyer ’ s own interests or the lawyer ’ s responsibilities to another client or to a third person simply might adversely affect the lawyer ’ s representation of a client . In this situation the lawyer is permitted to undertake the representation if the lawyer reasonably believes there will be no adverse effect on the representation and if the clients consent after consultation .
The Comment also explains : [ 3 ] An adverse effect is any material limitation on a lawyer ’ s representation of a client attributable to the lawyer ’ s responsibilities to another client , to a former client , to a third person , or arising from a personal interest of the lawyer . When a lawyer cannot consider , recommend , or carry out an appropriate course of action for the client because of the lawyer ’ s other responsibilities or interests , the representation will be adversely affected and must be declined or terminated . The conflict in effect forecloses alternatives that would otherwise be available to the client .
40 THE GAVEL