If a prosecutor is conflicted out of a matter because it is adverse to a former client, are the other lawyers in the same state's attorney's office also disqualified?

Plain-English summary

Attorney A had represented John Doe in an abatement proceeding against a North Dakota county over a farmland tax exemption. The matter was still unresolved when Attorney A was appointed the county's state's attorney in 2005, putting the county (Attorney A's new client) directly against John Doe (his former client) in the same case. Attorney B was later hired as an assistant state's attorney, with no prior knowledge of the matter beyond reading the file. The requesting attorney asked whether Attorney A's conflict also barred Attorney B from handling the case for the county.

The committee first confirmed the underlying conflict. Under Rule 1.9(a), a lawyer who formerly represented a client may not later represent another in the same or a substantially related matter with materially adverse interests absent the former client's written consent. Reading the Rule 1.9 comment to cover entities, the committee treated the county as a "person" adverse to John Doe and concluded Attorney A could not represent the county in the abatement proceeding, the same matter in which he had represented John Doe.

The committee then turned to imputation under Rule 1.10, which bars lawyers "associated in a firm" from a representation any one of them could not undertake. The threshold question was whether the two lawyers in the office were a "firm." Drawing on its Opinions 98-04 and 06-07, the rule's comment, and a line of cases treating public defenders in the same office as a firm, the committee found no distinguishing facts: both lawyers worked in the same county state's attorney's office and shared letterhead. It analogized the office to the city attorney's office in City and County of San Francisco v. Cobra Solutions, Inc., where one lawyer's conflict disqualified the entire office, citing the concern about a supervising lawyer overseeing subordinates handling cases against his former clients. The committee concluded Attorney B was also prohibited from representing the county, which should secure outside counsel.

In practice

This 2006 opinion applies North Dakota's Rules of Professional Conduct as revised effective August 1, 2006 (the opinion states it references those rules). Under those rules, the committee held that a state's attorney who formerly represented a party in a matter is barred by Rule 1.9(a) from handling the office's same matter against that former client, absent the former client's written consent, and that the term "person" in Rule 1.9 reaches an entity such as a county. On imputation, the committee held that whether lawyers form a "firm" under Rule 1.10 is fact-specific, and that two lawyers in one county state's attorney's office who share letterhead and work together are a firm, so one lawyer's former-client conflict is imputed to the other. The committee held the county had to obtain separate counsel.

Common questions

Q: Can a prosecutor handle a case against someone the prosecutor previously represented in that same matter?

A: No. The committee concluded Rule 1.9(a) barred the state's attorney from representing the county in the same abatement proceeding in which he had represented the opposing party, absent that former client's written consent.

Q: Does one lawyer's former-client conflict disqualify the whole state's attorney's office?

A: On these facts, yes. The committee found the office was a "firm" under Rule 1.10 because the lawyers worked in the same office and shared letterhead, so the conflict was imputed to the assistant state's attorney.

Q: Does it matter that the assistant had no prior involvement in the matter?

A: No. The committee treated the question as one of imputation under Rule 1.10, which turns on whether the lawyers are associated in a firm, not on the second lawyer's personal knowledge of the matter.

Q: What should the county do?

A: The committee said both lawyers were prohibited from representing the county in the abatement proceeding and that the county should take steps to secure counsel in accordance with the procedures provided under law.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.9 (Model Rule 1.9, duties to former clients) and 1.10 (Model Rule 1.10, imputed disqualification) as revised effective August 1, 2006. The Rule 1.10 analysis depends on the definition of "firm" in the rule's comment, which makes the question fact-specific and points to factors such as whether the lawyers present themselves to the public as a firm, share access to client confidences, and work in the same unit. The committee applied that framework to a county state's attorney's office.

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 1.9 / N.D.R. Prof. Conduct 1.9 (duties to former clients)
• Model Rule 1.10 / N.D.R. Prof. Conduct 1.10 (imputed disqualification)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Cases:

• City and County of San Francisco v. Cobra Solutions, Inc., 43 Cal. Rptr. 3d 771 (Cal. 2006) (former-client conflict imputed to entire city attorney's office)
• Continental Resources, Inc. v. Schmalenberger, 2003 ND 26 (loyalty and continuing duty of confidentiality)
• Perkins v. State, 487 S.E.2d 365 (Ga. Ct. App. 1997); Kirkland v. State, 617 So. 2d 781 (Fla. Dist. Ct. App. 1993) (public defenders in one office treated as a firm)

Other opinions cited:

• SBAND Opinion 06-07 (when separately run public defender offices are not a firm)
• SBAND Opinion 98-04 (stock ownership in a professional law association as firm membership)
• S.C. Bar Ethics Advisory Op. 92-21 (public defender's office treated as a law firm for imputation)

See also

• SBAND Ethics Op. 06-07: Public Defender Offices as Firms
• AL Ethics Op. 1994-10: DA Office Not Disqualified
• ABA Formal Op. 497: Materially Adverse Conflicts

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_06-06.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 OPINION 06-06

Issue

Where a States Attorney is prohibited from representing a governmental entity
against a former client in the same matter, is the Assistant States Attorney also
prohibited from representing the governmental entity?

Facts from Requesting Attorney

Attorney A sold a parcel of real property to John Doe. Later, in 2003, Attorney A
was retained by John Doe to handle an abatement proceeding in which a North Dakota
County entity would not allow John Doe to claim a farmland exemption on the parcel.
The abatement proceeding was appealed’ several times over the next several years.
The matter remains unresolved.

Attorney A was then appointed as a States Attorney for the County in 2005. The
abatement proceeding has been rescheduled several times “most notably because of
the inherent conflict of interest for Attorney A.” Attorney B was hired as an Assistant
States Attorney several months after Attorney A’s appointment. Attorney B “had no
prior knowledge of the details of the abatement proceedings” until after being hired and
has not discussed the matter with Attorney A other than to discuss the fact that John
Doe hired a new attorney. Attorney B gained knowledge of the abatement proceeding

by “reading the file and discussing the matter with County Tax Equalization.”

' The Requesting Attorney does not indicate to what appellate review entity the matter was appealed.

Discussion
For an “imputed conflict of interest” to exist, there first must be a conflict for
Attorney A such that it would bar Attorney A from participating in the matter. Rule
1.9(a), N.D.R. Prof. Conduct’ is squarely on point. It provides in part:
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.
N.D.R.Prof. Conduct 1.9 (a).° Confidentiality and loyalty, the cornerstones of the

attorney-client relationship, are promoted by the requirements of Rule 1.9. Continental

Resources, Inc. v. Schmalenberger, 2003 ND 26 {| 13. (stating "loyalty is an essential

element in the lawyer's relationship to a client." "The duty of confidentiality continues
after the client-lawyer relationship has terminated." "An integral purpose of the rule of
confidentiality is to encourage clients to fully and freely disclose to their attorneys all
facts pertinent to their cause with absolute assurance that such information will not be
used to their disadvantage." “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.") (citations omitted).

® This Opinion references the Rules of Professional Conduct that are effective August, 1, 2006.

3 While Rule 1.9 uses the term “person” to describe the new adverse party, the Comment to Rule 1.9 reveals that the
rule is intended to be broader that individuals and includes corporations and entities such as the County. For
example, the Comment states “a lawyer may not represent another client except in conformity with this rule.” There
are other examples in the Comment where the broad term client is used as opposed to “person.” Thus, the
Committee’s opinion is that the term “person” used in Rule 1.9 applies to the County.

lt is the Committee’s opinion that Attorney A may not represent the County in the
abatement proceeding against John Doe as it is the same matter and the County and
John Doe have materially adverse interests.

Having determined that a conflict exists for Attorney A, the question becomes
whether Attorney B, working in the same county state’s attorney's office, is also
precluded from representing the County. Rule 1.10, N.D.R. Prof. Conduct governs. It
provides, in pertinent part:

Lawyers associated in a firm may not knowingly represent a client when any one

of them practicing alone would be prohibited from doing so by these rules,

except as provided by N.D.R. Prof. Conduct 1.11 or N.D.R. ..

Whether Attorneys A and B constitute a “firm” is the threshold question in
applying Rule 1.10. The term “firm” is defined by the Rules of Professional Conduct. It
“denotes lawyers in law partnership, professional corporation, sole proprietorship or
other association authorized to practice law, or lawyers employed in a legal services
organization or the legal department of a corporation or other organization.” The
question of what a “firm” is was also addressed by the Committee in Opinions 06-07
and 98-04. In Opinion 98-04 it was the opinion of the Committee that continuing stock
ownership in a professional law association made the stock holding lawyer a member of
a “firm.”

More recently, in Opinion 06-07, the committee stated:

The Comment to Rule 1.10 provides the following guidance regarding
the definition of “firm”:

For purposes of the Rules of Professional Conduct, the term
“firm” includes lawyers in a private firm, and lawyers
employed in the legal department of a corporation or other

4 The former client may waive the prohibitions of Rule 1.9 in writing. The committee will assume for purposes of
this opinion that John Doe will not agree to waive Rule 1.9 in writing.

organization, or in a legal services organization. Whether two
or more lawyers constitute a firm within this definition can
depend on the specific facts. For example, two practitioners
who share office space and occasionally consult or assist
each other ordinarily would not be regarded as constituting a
firm. However, if they present themselves to the public in a
way suggesting that they are a firm or conduct themselves as
a firm, they should be regarded as a firm for purposes of the
Rules. The terms of any formal agreement between
associated lawyers are relevant in determining whether they
are a firm, as is the fact that they have mutual access to
confidential information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the
underlying purpose of the rule that is involved. A group of
lawyers could be regarded as a firm for purposes of the rule
that the same lawyers should not represent opposing parties
in litigation, while it might not be so regarded for purposes of
the rule that information acquired by one lawyer is attributed
to another.

Similar questions can also arise with respect to lawyers in
legal aid. Lawyers employed in the same unit of a legal
service organization constitute a firm, but not necessarily
those employed in separate units. As in the case of
independent practitioners, whether the lawyers should be
treated as associated with each other can depend on the
particular rule that is involved, and on the specific facts of the
situation.

As plainly stated in the Comment, whether lawyers should be treated
as associated with each other depends on the specific facts of the
situation. Some of those factors, as identified in the Comment,
include whether the attorneys present themselves to the public as a
firm, whether the attorneys conduct themselves as a firm, whether the
attorneys have mutual access to confidential information, and whether
the attorneys work in separate units of the same organization.
Numerous judicial opinions have elaborated on these factors while
addressing whether public defenders should be treated as members
of a law firm.

Courts have repeatedly held that public defenders in the same office
are treated as members of a law firm. See, €.g., Perkins v. State, 487
S.E.2d 365, 368 (Ga. Ct. App. 1997) (stating “public defenders in the
same office are treated as members of a law firm”); Kirkland v. State,

617 So.2d 781, 781 (Fla. Dist. Ct. App. 1993) (holding “the public
defender’s office is the functional equivalent to a law firm”); People v.
Simmons, 385 N.E.2d 758, 761-62 (Ill. App. Ct. 1978) (holding co-
defendants are being represented by one officer when they are
assigned separate assistant public defenders in the same office); S.C.
Bar. Eth. Adv. Comm. Op. 92-21 (concluding the “public defenders
office is treated as a law firm for purposes of imputing disqualification”
and that disqualification of a public defender “would be imputed to
other members of the same office”); see also People ex rel. Peters v.
District Court, 951 P.2d 926, 930 (Colo. 1998) (holding the rule of
imputed disqualification applies to the office of the state public
defender); Commonwealth _v. Westbrook, 400 A.2d 160, 162 (Pa.
Commw. Ct. 1979) (observing a public defender’s association is a
“law firm” and members of the office are prohibited from representing
multiple clients).

In Opinion 06-07 the Committee was presented with different facts than
presented here. In 06-07, the public defenders had separate offices, each had their
own filing system, separate computer systems, and their own letterhead. Based on
those facts, the Committee opined that the public defenders were not a “firm” for
purposes of the rules of professional conduct. Here, there are no such distinguishing
facts. Both Attorney A and Attorney B work in the same county states attorney’s office
and share letterhead.

in City and County of San Francisco v. Cobra Solutions, Inc., 43 Cal Rptr.3d 771

(Cal 2006) it was held that an attorney who had represented a company while he was
in private practice and thereafter joined the city attorney's office had a conflict of
interest that was imputed to the entire city attorney’s office, thereby disqualifying all
attorneys in the office.

The Committee’s opinion is that the State’s Attorney's office and the attorneys

working in it are analogous to the Cobra Solutions case. In Cobra, the court was

concerned about ramifications connected with a city attorney's oversight of

subordinates handling cases against the city attorney’s former clients. The Committee
shares this concern given the facts presented for this opinion.

Thus, it is the committee’s opinion that Attorney B is prohibited from
representing the County in the abatement proceeding. This opinion is consistent with
the reasoning in Cobra and Opinion 06-07.

Conclusion

Both Attorney A and Attorney B are prohibited from representing the county in
the abatement proceeding. The county should take steps to secure counsel for it in
accordance with the procedures provided under law.

This opinion was drafted by Joseph A. Wetch, Jr. and adopted by a majority vote

of the Committee on June 28, 2006.

Hafson, Chair