Can a North Dakota prosecutor accept a small thank-you gift from a crime victim, and do the ethics rules address it?

Plain-English summary

An assistant state's attorney prosecuted an assault-and-burglary case to a guilty verdict. After the verdict and before sentencing, the victim dropped off a thank-you card for the prosecutor and a victim/witness advocate, enclosing a $30 gift certificate. The prosecutor asked the committee what ethical obligation governed accepting the gift.

The committee concluded that none of North Dakota's Rules of Professional Conduct address the question. It pointed the prosecutor to N.D.C.C. 11-16-05 but explained that interpreting the Century Code is outside its authority; its role is to interpret and apply the Rules of Professional Conduct. The committee suggested the prosecutor request an Attorney General opinion on the statute, and noted that a violation of the Century Code may be considered misconduct under Rule 8.4. Its formal conclusion was that the Rules of Professional Conduct do not address the request.

In practice

The committee declined to resolve the gift question under the Rules of Professional Conduct, concluding that no rule addresses it. Under this opinion, the issue is statutory rather than one the ethics rules answer; the committee directed the prosecutor to N.D.C.C. 11-16-05 and to a possible Attorney General opinion, and observed only that a statutory violation could itself amount to misconduct under Rule 8.4.

Common questions

Q: Do North Dakota's ethics rules say whether a prosecutor can accept a gift from a victim?

A: No. The committee concluded that none of the Rules of Professional Conduct address the acceptance of the gift certificate.

Q: Where did the committee point the prosecutor instead?

A: To N.D.C.C. 11-16-05. The committee said interpreting that statute is outside its authority and suggested the prosecutor seek an Attorney General opinion on it.

Q: Could accepting the gift still lead to discipline?

A: Possibly, but only through a statute. The committee noted that a violation of the Century Code may be treated as misconduct under Rule 8.4, but it did not decide whether any violation occurred.

Background and rules framework

The committee found no Rule of Professional Conduct on point and identified the question as one arising under the North Dakota Century Code rather than the ethics rules. It referenced Rule 8.4 (Model Rule 8.4) only to note that a statutory violation could constitute professional misconduct, and pointed to N.D.C.C. 11-16-05 as the provision the prosecutor should consult, potentially through an Attorney General opinion.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / N.D.R. Prof. Conduct 8.4 (misconduct), referenced only as a possible consequence of a statutory violation
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. 11-16-05 (cited as the provision governing the question; the committee declined to interpret it)

See also

• ABA Formal Op. 469: Prosecutors and Debt Collectors
• ABA Formal Op. 467: Prosecutor Supervisory Duties

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_05-08.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

Opinion No. 05-08

The requesting attorney (an Assistant State’s Attorney) seeks the Committee’s
guidance relating to a gift received from a victim.
I. FACTS.

An Assistant State’s Attorney (ASA) sent a letter requesting an opinion or
advisory letter from the Ethics Committee. The request stated that the ASA was
involved in a jury trial where the allegations involved an assault and burglary. The
defendant was found guilty by a jury and, at the time of the request, a sentencing
hearing was scheduled. Following the jury trial and the guilty verdict, the victim in the
case dropped off a card for both the ASA and a victim/witness advocate who assisted
the victim. The card thanked both the ASA and the advocate for the work they put into
the case, and enclosed within the card was a $30 gift certificate. The request asked
what the ASA’s ethical obligation is regarding acceptance of the gift certificate.

Il. DISCUSSION.

The issue is whether the ASA may accept the gift certificate. It does not appear
to the Committee that any of North Dakota’s Rules of Professional Conduct address this
issue. It does appear to the Committee, however, that N.D.C.C. § 11-16-05 may
address this issue and the requesting attorney is directed to that section. It is not the
Committee’s duty, or within its power, to interpret the North Dakota Century Code but to

interpret and apply the North Dakota Rules of Professional Conduct. If the ASA has a

concern with respect to compliance with a statute, the Committee suggests that an
Attorney General’s opinion be requested with respect to issues surrounding the
interpretation of that statute. The Committee also suggests that the ASA be aware that
a violation of the Century Code may be considered misconduct under Rule 8.4 of the
Rules of Professional Conduct.

Ill. CONCLUSION.

North Dakota’s Rules of Professional Conduct do not address the request from
the ASA.

This opinion is provided pursuant to North Dakota Rule for Lawyer Discipline
1.2(B), which provides:

A lawyer who acts with good faith and reasonable reliance on a written

opinion or advisory letter of the ethics committee of the association is not

subject to sanction for violation of the North Dakota Rules of Professional

Conduct as to the conduct that is the subject of the opinion or advisory

letter.

This Opinion was drafted by Anthony J. Weiler and was adopted by the

Committee on October 18, 2005, by a majority vote.

Parransen Chair ™