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 \