( 1 ) if the lawyer is a part-time prosecutor and the client is charged or expects to be charged with a crime , in the jurisdiction in which the lawyer holds the prosecutorial appointment ; and
( 2 ) if the lawyer is a part-time judge in : ( i ) the court in which the judge holds appointment ; or ( ii ) any court from which appeals may be brought to the court in which the judge holds appointment .
N . D . R . PROF . CONDUCT Rule 1.8 ( k ).
FACTS PRESENTED No facts were presented with this request .
DISCUSSION With respect to questions 1 and 2 , the Rules of Professional Conduct primarily address conflicts of interest arising from a lawyer ’ s representation of a client . Rule 1.7 , for example , outlines three primary types of conflicts :
Direct Adverse Interest : The lawyer ’ s own interests or duties to another client or third-party conflict with the representation .
Significant Risk of Material Limitation : The lawyer ’ s own interests could materially limit the representation .
Material Limitation : The lawyer ’ s interests or duties to another client or third party could materially limit the representation .
In the first two scenarios , the lawyer is prohibited from undertaking or continuing the representation . Id . In the third scenario , the lawyer may proceed with the representation if they believe there will be no adverse impact and obtain informed consent from all affected clients . Id .
“ 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 ( comment 2 ).
With respect to the opposing party , “ a lawyer may not act as an advocate against a client the lawyer represents in some other matter , even if the other matter is wholly unrelated .” Id . at cmt . 9 . Similarly , Rule l . 7 ( k ) prohibits a part-time prosecutor from representing a client in the same jurisdiction where the client is charged or expects to be charged with a crime . However , neither this rule nor any other provision of the Rules of Professional Conduct explicitly prohibits a prosecutor from continuing to represent the state in a case where the defense attorney has filed a disciplinary complaint against the prosecutor .
It is imperative that “ lawyer ’ s own interests should not be permitted to have an adverse effect on representation of a client .” See ABA General Principles Comment 4 to Rule 1.7 . N . D . R . PROF . CONDUCT Rule 1.7 Rule 1.7 ( b ) explicitly prohibits a lawyer from undertaking or continuing representation if their personal interests are likely to compromise their representation .
In the context of a prosecutor facing a disciplinary complaint , if the prosecutor ’ s ability to represent the state fairly and objectively is compromised by personal bias or prejudice stemming from the complaint , a conflict of interest may arise , necessitating their withdrawal from the case .
“ Lawyers holding public office assume legal responsibilities going beyond those of other citizens .” N . D . R . PROF . CONDUCT Rule 8.4 ( comment 6 ). However , the Rules of Professional Conduct do not explicitly prohibit a prosecutor from continuing to represent the state in a case where a disciplinary complaint has been filed against them . Accordingly , it is crucial to assess the specific circumstances of each case to determine whether a conflict of interest exists .
With respect to question 3 , a prosecutor is not prohibited from representing the state on remand where the basis of the remand was prosecutorial misconduct :
“[ P ] rosecutorial misconduct may so infect [] the trial with unfairness as to make the resulting conviction a denial of due process . However , we have also recognized that not every assertion of prosecutorial misconduct , followed by an argument the conduct denied the defendant his constitutional right to a fair trial , automatically rises to an error of constitutional dimension . To constitute a due process violation , the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant ’ s right to a fair trial . To determine whether a prosecutor ’ s misconduct rises to a level of a due process violation , we decide if the conduct , in the context of the entire trial , was sufficiently prejudicial to violate a defendant ’ s due process rights .”
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