State v . Kalmio , 2014 ND 101 , 846 N . W . 2d 752 ( quoting State v . Pena Garcia , 2012 ND 11 , 6,812 N . W . 2d 328 ).
In this instance , the defense attorney ’ s avenue of recourse is to compel a change of venue , or appointment of a different or specially appointed prosecutor by the court , on grounds of a violation of the defendant ’ s due process . Similarly , the North Dakota Standards for Imposing Lawyer Sanctions may compel suspension ( or disbarment ) of the prosecuting attorney , depending upon the severity of the prosecutorial misconduct .
CONCLUSION The Rules of Professional Conduct primarily address conflicts of interest arising from a lawyer ’ s representation of a client . While a lawyer is generally prohibited from acting against a client ’ s interests , the rules do not explicitly prohibit a prosecutor from continuing to represent the state in a case where the defense attorney has filed a disciplinary complaint against the prosecutor .
A prosecutor ’ s continued representation in such a situation may raise ethical concerns if the prosecutor ’ s ability to represent the state fairly and effectively is compromised by personal bias or prejudice resulting from the complaint . However , if the prosecutor can maintain objectivity and fulfill their professional duties , there may not be a conflict of interest requiring their withdrawal from the case .
In the specific scenario of a reversed conviction due to prosecutorial misconduct , the defense attorney ’ s primary recourse is to seek a change of venue or appointment of a different prosecutor to ensure a fair trial . Additionally , the North Dakota Supreme Court may impose disciplinary sanction on the prosecutor , depending on the severity of the misconduct .
This opinion was drafted by James . M . Cailao and was unanimously approved by the Ethics Committee on the 25th of November 2024 .
This opinion is provided under Rule l . 2 ( B ), North Dakota Rules of 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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