SBAND ETHICS COMMITTEE
SBAND ETHICS COMMITTEE
OPINION NO . 2024-1 THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
1 . If a defense attorney ( hereinafter “ filing attorney ”) files a disciplinary complaint against a prosecutor , may the prosecutor continue to represent the state in cases in which the filing attorney represents the defendant ?
a . If the answer is no , then is the conflict of interest imputed to all other attorneys in the prosecutor ’ s office ?
2 . Does a conflict of interest arise when the supervising attorney of a public defender ’ s office files a disciplinary complaint against a state ’ s attorney and / or assistant state ’ s attorney with whom the supervising attorney ’ s office has pending cases ?
a . If the answer is yes , then does it create a conflict of interest with all attorneys in both offices ?
3 . If the North Dakota Supreme Court reverses a defendant ’ s criminal conviction on grounds of prosecutorial misconduct , the case is remanded to the district court for further proceedings ( e . g . a new trial ), and the defendant ’ s attorney files a disciplinary complaint against the assigned prosecutors based on prosecutorial misconduct , may the prosecutors continue to handle the case ?
a . If the answer is no , then is the conflict of interest imputed to all other attorneys in the prosecutor ’ s office ?
APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Several of the North Dakota Rules of Professional Conduct are applicable to this inquiry including Rule 1.7 on conflicts of interest ( generally ) and Rule 1.8 on conflicts of interest ( prohibited transactions ).
Rule 1.7 on conflicts of interest ( general rule ) states :
( 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 :
( a ) ( 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 .
( d ) Except as required or permitted by Rule 1.6 , a lawyer shall not use information relating to representation of a client to the disadvantage of a client unless a client who would be disadvantaged consents after consultation .
N . D . R . PROF . CONDUCT Rule 1.7 .
The applicable comment provides direction on application of the general rule :
“ 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 .”
N . D . R . PROF . CONDUCT Rule 1.7 ( cmt . 2 ).
Rule 1.8 ( k ) on conflicts of interest ( prohibited transactions ) states :
( k ) A part-time prosecutor or judge permitted by law to engage in the practice of law in addition to the part-time service shall not , in that practice , represent a client if the representation will or probably will require any pleading or appearance on the client ’ s behalf :
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