ETHICS COMMITTEE OPINION NO . 2020-02
THIS OPINION IS ADVISORY ONLY
FACTS A state ’ s attorney ( attorney ) in a North Dakota county previously worked as a public defender . Periodically , the attorney encounters criminal cases in which the suspect or defendant is a former indigent defense client .
QUESTION PRESENTED Is it a conflict of interest for a state ’ s attorney to prosecute a person whom the attorney previously represented as an indigent defense client , where the new criminal case is completely unrelated to the prior case ?
OPINION
I . APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT Rule 1.9 of the North Dakota Rules of Professional Conduct addresses the ethical duties owed to former clients . The Rule states in pertinent part :
( a ) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person ’ s interests are materially adverse to the interests of the former client unless the former client consents in writing .
( c ) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter :
( 1 ) use information relating to the representation to the disadvantage of the former client in the same or a substantially related matter except as these Rules would require or permit with respect to a client , or when the information has become generally known ; or
( 2 ) reveal information relating to the representation except as these Rules would permit or require with respect to a client .
II . DISCUSSION The question presented is whether a state ’ s attorney who formerly worked as a public defender may prosecute a former client for charges unrelated to the subject of the prior representation . N . D . R . Prof . Conduct 1.9 does not prohibit an attorney from representing a new client in matter that is entirely unrelated to the former client ’ s case . Therefore , the first issue to consider is whether the new criminal matter has any connection with the previous case ( s ) in which the attorney represented the former client . Subsection ( a ) of Rule 1.9 pertains to representation of a new client in the “ same or substantially related matter .” Comment 3 to Rule 1.9 explains that matters are “ substantially related for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client ’ s position in the subsequent matter .”
The Oregon State Bar Association Board of Governors provided an example to illustrate the distinction between the “ same ” and “ substantially related ” matters in the context of criminal law :
If [ a district attorney ] endeavored to bring a robbery prosecution against a former client and the robbery appeared to be part of a pattern of robberies , and if [ the district attorney ] had previously participated in the defense of the former client in one of those robberies , the new prosecution would be substantially related to [ the district attorney ]’ s prior defense of the former client and would constitute a former client conflict under Oregon RPC l . 9 ( a ). Conversely , if the robbery defendant previously had been defended by [ the district attorney ] in a DUI matter , there would be a conflict only if [ the district attorney ] acquired confidential information while representing the former client that could materially advance the prosecution of the robbery case .
OR Eth . Op . 2005-120 ( June 2007 ).
It is important to note , however , the analysis is not as simple as whether the new charge and prior charge are the same . The attorney must also determine whether the cases share any similarities or interrelated issues . In Commonwealth v . Ford , the Pennsylvania Superior Court considered the question of whether the trial court properly disqualified an assistant district attorney who had previously represented the defendant . 122 A . 3d 414 , 417 ( Pa . Super . Ct . 2015 ). The defendant was charged with crimes related to the delivery of heroin . Id . at 415 . The assistant district attorney previously represented the defendant on a theft charge and “ in connection with a revocation matter incident to a prosecution where [ the defendant ] was also charged with possession with intent to distribute controlled substances .” Id . at 415-16 .
The State argued the prior cases were unrelated to the new drug case . Id . at 416 . However , the Court held that “[ u ] pon review of the plain language of Rule 1.9 and its comment , we conclude that a conflict of interest exists .” Id . at 417 . The Court concluded that because the assistant district attorney was directly involved in the defendant ’ s prior drug case , “ his subsequent representation of the Commonwealth in this drug case - with its materially adverse interests ’ clearly is prohibited .”’ Id . at 417 .
But see State v . Bryan , 227 So . 2d 221,223 ( Fla . Dist . Ct . App . 1969 ) ( holding in a new criminal case unrelated to the prior representation that “ the State Attorney can only be disqualified if it were shown that as Public Defender he had actually gained confidential information from a prior attorney-client relationship with the defendant , which information would be useable in the new matter to defendant ’ s prejudice ”); Gatewood v . State , 880 A . 2d 322 , 335 ( 2005 )
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