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