Resolution of a conflict of interest problem under Rule 1.
7 requires the lawyer to, among other things, identify the
client and “determine whether a material limitation on the
representation of the client exists.” Rule 1.7 (b), N.D. R.
Prof. Conduct, Comment [4].
Under the presented facts, the state’s attorney’s client is
the State (the people who live within the state’s attorney’s
jurisdiction), which generally has an adverse interest from
the defendant, an exception being the State’s interest in
assuring justice is administered and proper procedure is
followed.
A lawyer is required to decline representation if the
lawyer’s own personal interests are likely to adversely
affect the advice given or services rendered to a client. The
lawyer must be in the position to give a client detached
advice. See Rule 1.7 (b) N.D. R. Prof. Conduct, Comment
[5]. Whether a state’s attorney who was a previous
victim of a defendant can give the State detached advice
during the charging or prosecution of the defendant is a
factual question that may depend on numerous factors,
including the nature of the prior victimization and the
personality and experience of the state’s attorney. The
Ethics Committee cannot resolve that factual question.
However, under the plain language of Rule 1.7, if the
state’s attorney concludes 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, the state’s attorney may not represent the State
in the particular prosecution. That would include if the
prior victimization would or is likely to adversely affect
the state’s attorney’s ability to meet the state’s attorney’s
special responsibilities under Rule 3.8, N.D. R. Prof.
Conduct. See Opinion No. 98-05 at 5 (regarding a case
involving a criminal complaint against an attorney who, or
whose firm, represents the county and the state’s attorney
in a pending action, the Committee stated “only the state’s
attorney himself can answer the question about whether
there is a conflict of interest” and that the state’s attorney
should disqualify himself if he “subjectively believes
that he has an actual conflict because the lawyer’s own
interests will, are likely to, or might adversely affect the
representation”); Opinion No. 97-01 at 6 (concluding “the
question whether the prosecuting attorney in the instant
case [a case involving prosecution of an attorney who
actively represents criminal defendants in the same court]
should disqualify himself (and the other attorneys in the
office) is one only he can answer”).
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, the state’s attorney’s prior victimization would
or is likely to adversely affect the state’s attorney’s ability
to supervise an assistant state’s attorney prosecuting the
matter. Accordingly, if the state’s attorney determines the
state’s attorney has a conflict of interest and cannot charge
or prosecute the defendant, a conflict would also exist as
to attorneys directly supervised by the state’s attorney.
See Rule 1.10, N.D. R. Prof. Conduct; Rule 5.1, N.D. R.
Prof. Conduct; Opinion No. 98-05 at 5 (opining a state’s
attorney’s disqualification due to a conflict of interest also
disqualifies the other attorneys in the state’s attorney’s
office); Opinion No. 99-01 (concluding a state’s attorney’s
prohibition from representing a governmental entity
against a former client also prohibits an assistant state’s
attorney from representing the governmental entity).
This opinion in no way implies a conflict of interest
always exists if a state’s attorney was or is victimized
by a defendant. This opinion only addresses the factual
situation where the state’s attorney concludes 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.
This opinion was dra fted by Ward K. Johnson III, and was
unanimously approved by the Ethics Committee on the
25th day of April, 2017.
This states opinion is provided under Rule l .2(B), North
Dakota Rules for Lawyer Discipline, which states:
A lawyer who acts with good faith and reasonable reliance
on a written opinion or advisory letter of the ethics
committee of the association is not subject to sanction
for violation for the North Dakota Rules of Professional
Conduct as to the conduct that is the subject of the
opinion or advisory letter.
The requesting attorney also asked whether it would
violate the defendant’s Sixth Amendment right for the
state’s attorney, or any attorney under the state’s attorney’s
direct supervision, to charge or prosecute the defendant,
as well as whether the prosecution is permissible under
the new constitutional amendment to N.D. Const. Art.
1, § 25, known as Marsy’s Law. The role of the Ethics
Committee is limited to addressing prospective ethical
issues. For this reason, the Committee will not address
whether the Sixth Amendment or N.D. Const. Art. 1, §
25 are implicated by the presented facts.
1.
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