Can a part-time federal tribal-court prosecutor also represent criminal defendants arrested by the tribe's own police?

Plain-English summary

Attorney A was retained by the Bureau of Indian Affairs, a federal agency, to prosecute misdemeanors in the Court of Indian Offenses on the Cherokee reservation, the judicial arm of the Eastern Band of Cherokee. Law enforcement on the reservation was provided by the Cherokee Indian Police, funded entirely by the Eastern Band. As prosecutor, Attorney A had no authority to start or stop prosecutions except for witness non-appearance or a defective complaint, and did not advise or have authority over the tribal police. The inquiry asked, in light of CPR 282, whether Attorney A could represent criminal defendants arrested by the Cherokee Indian Police in state or federal court.

The opinion concluded that he could. It reasoned that Attorney A was employed by the federal government while the Cherokee Indian Police were employed by the Eastern Band of the Cherokee, a distinct entity, and that because Attorney A did not represent the tribal police, no conflict arose when he cross-examined its members on behalf of criminal defendants. The opinion distinguished the case of a town attorney who advises the town police department and wishes to represent criminal defendants arrested by town police: there the town attorney represents the police department and its employees, so it would create a conflict to represent defendants when cross-examining the arresting officer might become necessary. The opinion stated that, to the extent it is inconsistent with CPR 282, that decision is overruled.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: Can a tribal-court prosecutor defend people arrested by tribal police?

A: Yes, on these facts. The opinion concluded that, because the prosecutor is employed by the federal government and does not represent the tribally funded police, cross-examining its officers for a defendant creates no conflict.

Q: Why is this different from a town attorney defending people arrested by town police?

A: The opinion explained that a town attorney who advises the police represents the department and its employees, so defending people they arrest would create a conflict; the tribal prosecutor here represented no such police force.

Q: What happened to CPR 282?

A: The opinion overruled CPR 282 to the extent it was inconsistent with this conclusion.

Background and rules framework

The opinion did not cite a numbered Rule of Professional Conduct; it resolved the question on the conflict-of-interest principle that a lawyer may freely cross-examine officers of an entity he does not represent. The key fact was the separation between the federal government, which employed the prosecutor, and the Eastern Band, which employed and funded the tribal police.

Citations and references

Rules of Professional Conduct:

• The opinion cites no numbered rule; it turns on whether the lawyer represents the law-enforcement agency whose officers he would cross-examine.

Other opinions cited:

• North Carolina CPR 282 (overruled to the extent inconsistent)

See also

• NC Ethics Op. RPC 73: conflicts involving attorneys for and on governing bodies
• NC Ethics Op. RPC 130: employment of a board member's law firm

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-72/

Original opinion text

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

Inquiry:

Attorney A has been retained by the Bureau of Indian Affairs, a branch of the federal government, to prosecute misdemeanor criminal charges brought in the Court of Indian Offenses on the Cherokee Indian Reservation. The Court is the judicial arm of the Eastern Band of Cherokee, a recognized Indian tribe still enjoying many of the attributes of its former status as a sovereign nation. Law enforcement on the Cherokee reservation is provided by the Cherokee Indian Police. The tribal police force is funded entirely by the Eastern Band.

Attorney A, as a prosecutor, has no authority to instigate or terminate prosecutions other than for failure of the witnesses to appear or where the complaint fails to allege a criminal violation. Attorney A does not advise or have any authority over the Cherokee Indian Police.

CPR 282, decided on October 15, 1980, held, in part, that an attorney who contracted with the Bureau of Indian Affairs to prosecute criminal actions in a tribal court could not simultaneously represent in federal court criminal defendants who had been arrested by members of the Indian police department on the same reservation where the attorney serves as a part-time prosecutor.

In light of CPR 282, may Attorney A represent criminal defendants in state or federal court who have have been arrested by the Cherokee Indian Police?

Opinion:

Yes. Attorney A is employed by the federal government and the Cherokee Indian Police are employed by the Eastern Band of the Cherokee, a distinct entity. Because Attorney A does not represent the Cherokee Indian Police, no conflict of interest arises when Attorney A cross-examines members of the tribal police pursuant to his representation of criminal defendants.

This situation should be distinguished from the case in which a town attorney who advises members of the town police department, wishes to represent criminal defendants arrested by town police. In such a case, the town attorney represents the town police department and its employees. Consequently, it would create a conflict of interest for the attorney to undertake to represent criminal defendants arrested by town police, since it might become necessary to cross-examine the arresting officer on behalf of the criminal defendant.

To the extent that this opinion is inconsistent with CPR 282, that decision is hereby overruled.