The State Bar Association of North Dakota Fall 2014 Gavel Magazine - Page 35

CONCLUSION Attorney’s conduct would frequently violate federal law and North Dakota policy. The conduct thus would constitute a pattern of repeated offenses in violation of N.D.R. Prof. Conduct 8.4(b). This opinion was drafted by Cheri Clark and was approved by the Ethics Committee 4-2 on the 12th day of August, 2014. This opinion is 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. STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO. 14-03 This opinion is advisory only QUESTION PRESENTED Attorney works as a contract criminal defense attorney, providing services for clients who are defendants in a tribal court. Attorney has been offered a position as the chief prosecutor in the same jurisdiction. The Ethics Committee has been asked to render its opinion on whether it is permissible for the Attorney to accept a chief prosecutor position in the same jurisdiction and to subsequently prosecute former clients in new, unrelated cases provided there is no danger of any confidential information being used in the prosecution. Attorney also inquired whether any conflict would be imputed from Attorney, as the chief prosecutor and head of the office, to other attorneys working in the office therefore disqualifying them and requiring the hiring of a special prosecutor. OPINION Based upon the facts presented below, it is permissible for the Attorney to accept the chief prosecutor position in the same jurisdiction where he currently works as a public defender. The question presented was whether the Attorney, as the chief prosecutor, could then subsequently prosecute former clients in “new, unrelated” cases provided there is no danger of any confidential information being used in the prosecution. Based upon the representation that the matters are “new, unrelated” criminal cases and no danger of confidential information being used in the prosecution, there does not appear to be a conflict which would preclude the Attorney or other attorneys in the prosecutor’s office from prosecuting former clients. Careful analysis of this issue would require the Attorney to compare the facts of the prior criminal defense with the current charges to determine whether the former representation and the current prosecution are so interwoven so as to create a danger that information from a prior representation could be used against a former client in the current prosecution. This analysis should be undertaken not only as it relates to prosecution of the Attorney’s former clients but also as it relates to the clients of the second criminal defense attorney in the jurisdiction’s public defender’s office. The information provided does not allow the Committee to conduct such an analysis. Caution should be exercised especially where convictions resulting from prior representations are used as the basis for enhanced current charges, as prior bad acts evidence, or where the Attorney represented the criminal defendant in multiple prior prosecutions. If such circumstances arise, the determination of the extent of the conflict and the question of whether or not the conflict would be imputed to other prosecutors in the Attorneys office must be determined on a case by case basis which is not possible given the facts presented. There are two criminal defense attorneys in this jurisdiction, including the Attorney. There are between 50-75 open cases at any given time and the cases are split evenly between the two attorneys. The Attorney and the other public defender in his office handle between 3,500 and 3,900 cases during a year. The vast majority of the cases are resolved by plea agreement at the