Could a Minnesota county attorney defend a criminal case in another county?

Plain-English summary

The opinion addressed whether a county attorney could take on the defense of a criminal case in a different county. It concluded that doing so was improper, but it recognized an exception: where the accused would be deprived of competent counsel or put to an unreasonable burden of expense by applying the rule, the prohibition would be outweighed.

In that exceptional case, the opinion provided that the county attorney, as soon as practicable after being asked to represent the accused, was to petition a judge of the court before which the matter would be tried for permission to represent the accused. On a proper showing of good cause, the judge could approve the representation; if the court found the facts did not justify the exception, the attorney was to withdraw.

The opinion also stated that defense counsel who was also a county attorney was to refrain scrupulously from any reference to that position during the proceedings.

Currency note

The Board flagged this opinion as Repealed effective January 26, 2006; it is retained here for historical research only.

This opinion was issued in 1972, before the Minnesota Supreme Court's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a county attorney defend a criminal case in another county under this opinion?

A: Generally no. The opinion concluded it was improper for a county attorney of one county to accept the defense of a criminal case in another county, subject to a narrow exception.

Q: What was the exception?

A: The opinion provided that where the accused would be deprived of competent counsel or put to an unreasonable burden of expense, the county attorney could petition the trial judge for permission, and the judge could approve the representation on a showing of good cause.

Q: Did the opinion restrict how such defense counsel could present themselves?

A: Yes. The opinion stated that a defense counsel who was also a county attorney was to refrain scrupulously from any reference to that position during the proceedings.

Background and rules framework

The opinion was adopted in 1972, before Minnesota adopted its Rules of Professional Conduct (1985), and applied the professional-conduct standards then in force. It addressed a conflict-of-interest concern for a public prosecutor who also undertook criminal defense work in another county. The opinion did not cite a numbered rule.

Citations and references

Rules of Professional Conduct:

• The opinion predates Minnesota's numbered Rules of Professional Conduct and cites no rule by number.

See also

• Alabama Ethics Op. 1990-05: Imputed Disqualification and District Attorneys
• Alabama Ethics Op. 1982-648: Representing Clients in Civil and Criminal Matters
• ABA Ethics Op. 97-405: Conflicts in Representing Government Entities

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-2_compressed.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
Repealed: January 26, 2006
OPINION NO. 2
DEFENSE OF CRIMINAL CASES BY A COUNTY ATTORNEY
It is improper for a county attorney of one county to accept the defense of a criminal case in another
county of the state. Nevertheless, this rule would be outweighed in any case where the accused would
be deprived of competent counsel or put to an unreasonable burden of expense by the application of this
rule. In this event, the county attorney to be retained, as soon as practicable after he is asked to
represent the accused, shall petition a judge of the court before which the matter is to be tried for
permission to represent the accused. Upon a proper showing of good cause, the judge may issue an
order approving defense of the case by the petitioner. If the court decides that the facts of the situation
do not justify granting this exception, the attorney involved shall then withdraw from the case. In any
event, defense counsel who is also a county attorney shall scrupulously refrain from any reference to his
position as a county attorney in the course of all proceedings.
Adopted: October 27, 1972.
Repealed: January 26, 2006.