STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO . 2
THIS OPINION IS ADVISORY ONLY
FACTS An attorney in firm (“ the firm ”) entered into a real property investment agreement (“ the agreement ”) with the developer for a sum of $ 900,000 and no legal services . The developer was then represented by the attorney for non-related landlord-tenant issue . The attorney was unsuccessful in the suit and the developer refused to pay the attorney ’ s fees for the representation . The developer then defaulted on the loan for the agreement and now owes the attorney approximately $ 400,000 . The attorney now seeks for his partner to bring suit against the developer to recover the remaining balance owed to the attorney .
QUESTIONS PRESENTED 1 . Whether the North Dakota Rules of Professional Conduct permit the attorney ’ s partner to bring suit against a former client of the attorney ?
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 .
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 .
II . DISCUSSION It is the Ethics Committee ’ s position it is completely ethical for any attorney in the partnership to bring suit against an attorney ’ s former client . While an attorney-client relationship existed between the Partner and the developer regarding the landlord-tenant issue , that matter has been completed . Since no attorney-client relationship existed between the partnership and the developer / client with regard to the “ partner and developer transaction ,” there is no conflict of interest .
CONCLUSION These opinions were drafted by Ward Johnson and was unanimously approved by the Ethics Committee on the 17th day of May 2022 .
These opinions are provided under Rule 1.2 ( 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 of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter .
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