The State Bar Association of North Dakota Fall 2014 Gavel Magazine - Page 36

North Dakota Rules of Professional Conduct, which provides: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client consents in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client in the same or a substantially related matter except as these Rules would require or permit with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. The scope of the terms “matter” and “substantially related matters” are determined by the facts and the comments to Rule 1.9 instruct determination may be a question of a degree. “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as changing sides in the matter in question.” Rule 1.9 cmt. 2. In other words, while there is no per se prohibition to a prosecutor prosecuting clients whom the prosecutor formerly represented as a defense attorney, such representation ought to be undertaken with caution following careful analysis of the specific facts of the prior representation and the nature of the current prosecution. The Attorney represents that many of the cases involving defense of clients were resolved at the time of arraignment and did not involve any confidential information. The factual scenario presented by the Attorney indicates the attorney would prosecute former clients in “new” criminal cases. Given the facts presented, it does not appear the Attorney is prohibited from prosecuting former clients due to the danger of the subsequent representation being regarded as changing sides in the “matter” in question. 36 THE GAVEL It is not, however, dispositive that the prosecution is of a “new” criminal case as there can be a conflict if the former representation by the Attorney or the second public defender in his office and the “new” criminal case are “substantially related.” “Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Rule 1.9 cmt. 3. In SBAND Ethics Committee Op. 200610, this Committee noted that a majority of the Courts have approached the questions of whether matters are substantially related by comparing the facts, circumstances, and legal issues of the past and present representations. In Opinion 2006-10, the Committee addressed the question of whether a part-time state’s attorney could prosecute two former clients for possession of stolen property, drug charges and game and fish violations where the attorney had previously represented the clients for purposes of filing tax returns and in a bankruptcy action. The Committee found no apparent conflict but noted there was little information provided from which such a factual determination could be made. Similarly in the matter at hand, there is no factual information from which a determination can be made as to the existence or absence of a conflict based upon a substantial relationship between the former representation and the current prosecution. Among the considerations in determining whether a substantial relationship exists is the question of whether or not the prior representation may be relevant to the current prosecution. One is example is w \