STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO . 1
THIS OPINION IS ADVISORY ONLY
FACTS A firm (“ the firm ”) represents a city of North Dakota (“ the city ”) in the capacity of city attorney . The attorney at issue (“ attorney ”) is employed at the firm and represents the city as an assistant city attorney . The attorney ’ s husband is currently running for mayor of the city with an election taking place on June 13 , 2022 .
QUESTIONS PRESENTED Assuming the attorney ’ s husband is elected mayor , the following questions are proposed :
1 . Whether Rule 1.7 of the North Dakota Rules of Professional Conduct permits the attorney to continue to represent the city as assistant city attorney , and if so , are there any tasks the attorney must recuse themself from ?
2 . If the above situation results in a conflict of interest pursuant to Rule 1.7 , may that conflict be waived ?
3 . If the above situation results in a conflict of interest pursuant to Rule 1.7 that cannot be waived , may other attorneys in the firm represent the city in the capacity of city attorney ?
4 . If the attorney became a partner at the firm , would any changes exist to the answers to the questions above ?
OPINION
I . APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT North Dakota Rules of Professional Conduct , Rule 1.7 is most applicable in this case . The rule states in pertinent 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 .
1 . the lawyer reasonably believes the representation will not be adversely affected ; and
2 . the client consents after consultation .
II . DISCUSSION 1 . It is the Ethics Committee ’ s position that the attorney will be able to continue to represent the city in the event the attorney ’ s husband is elected mayor . N . D . R . Prof . Conduct does not explicitly prohibit an attorney from undertaking representation with possible conflicts , however attorney [ s ] must make a determination of whether they reasonably believe the representation will not be adversely affected given the circumstances and the client consents after consultation . ( See N . D . R . Prof . Conduct 1.7 .) Because the mayor and the city attorney both act on behalf of the City , there is likely not a conflict of interest , whether the attorney must recuse themselves from a specific case must be done on a case-by-case assessment .
Additionally , NDCC 40-13-05 does not apply here because of the population of the city is below 10,000 , nor does NDCC 40-13-13 apply due to the attorney ’ s previously confirmed appointment . NDCC 44-04-22 is also not applicable because the attorney is not acting in a legislative , judicial , or other quasi capacity . Furthermore , the likelihood of the event of a tiebreaker vote for the attorney ’ s husband germane to an ethical question to become mayor is too remote and speculative to be addressed in this opinion .
2 . Conflicts of interests are governed by Rule 1.7 and , in many instances , can be waived . See Rule 1.7 .
3 . Most conflict-of-interest issues treat the entire firm as conflicted .
4 . Whether the attorney changes their status from associate to partner attorney has no bearing on this opinion .
CONCLUSION This opinion was drafted by Ward Johnson and was unanimously approved by the Ethics Committee on the 16th day of May , 2022 . 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 :
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