The State Bar Association of North Dakota Fall 2014 Gavel Magazine | Page 37

imputed to the entire prosecutor’s office,
necessitating the hiring of a special
prosecutor. The facts provided highlight
the need for careful consideration of the
question of an imputed conflict given the
small population of the jurisdiction, the large
caseload handled by the Attorney and the
second defense attorney in the Attorney’s
office, and the limited availability of legal
representation. Though this determination
would need to be made on a case by
case basis, the Committee is cognizant
of creating a precedent which would,
as a practical matter, prohibit the tribal
jurisdiction from recruiting from the defense
bar while at the same time maintaining the
cornerstones of confidentiality and loyalty.
“Clients must feel free to share confidences
with their lawyers. This will not occur if we
permit lawyers to be today’s confidants and
tomorrow’s adversaries.” SBAND Ethics
Op. 2006-06 p. 2 (quoting Continental
Resources v. Schmalenberger, 2003 ND 26
¶ 13)
Prior Ethics Opinions in North Dakota
have not addressed this question under the
circumstances provided, therefore it may
be instructive to seek guidance from other
jurisdictions which have addressed this issue:
“Imputed disqualification of the entire
state’s attorney’s office is unnecessary when
the record establishes that the disqualified
attorney has neither provided prejudicial
information relating to the pending
criminal charge nor has personally assisted,
in any capacity, in the prosecution of the
charges. State v. Fitzpatrick, 464 So.2d
1185 (Fla 1985)” ABA/BNA Lawyers
Manual on Professional Conduct 51:2005.
“Recusal of a district attorney or his entire
office may be ordered ‘when it appears
reasonably necessary to insure the fairness or
appearance of fairness of trial or the orderly
and proper administration of justice or to
preserve the integrity of the fact-finding
process or public confidence in the criminal
justice system.’” Younger v. Superior Court
150 Ca.Rptr. 156, 162, 86 Cal.App.3d 180,
192 (Ct.App. 1978).”
Nebraska Ethics Op. 1993-2 (opining
that a deputy public defender may accept
employment as a deputy county attorney in
the same county if: (1) the cases in which
the defender was substantially involved are
examined to assure that the attorney did
not provide prejudicial information relating
to the pending case nor personally assisted
in any capacity in the prosecution of the
case and whether recusal of the prosecut