Does a part-time state's attorney's earlier civil work for someone bar the attorney from later prosecuting that former client?

Plain-English summary

A part-time state's attorney was prosecuting a married couple on possession of stolen property, drug charges, and game-and-fish violations. The same lawyer had earlier done civil work for the couple: preparing tax returns through 2003, taking a 2002 retainer for a bankruptcy that was never filed (the retainer instead went to defending other suits against them), and eventually withdrawing from all civil matters by late 2005. The lawyer had earlier prosecuted the husband on a 2004 charge, to which the husband pleaded guilty without objecting to his former civil lawyer prosecuting him. The committee was asked whether the prior civil representation barred the attorney from the current prosecutions.

The committee worked through Rule 1.9. Under subparagraph (a), the record did not show whether any prior matter was the "same matter" as a current charge. Under subparagraph (b), a lawyer cannot prosecute a former client if the prior representation is "substantially related" to the later charge; quoting the comment, the test is whether the lawyer was so involved that the new representation can be regarded as "changing sides." Surveying authority (the South Carolina and Texas committees, and cases including Gajewski, State v. Allen, and In re Ockrassa), the committee noted that prior matters of a purely pecuniary nature are not automatically unrelated, and that even prior representations that do not supply an element of the new offense can create a substantial relationship where confidences are at risk. Under subparagraph (c), the prosecutor may not use information from a substantially related prior representation against the former client, and would have to withdraw if such information became necessary to the prosecution.

The committee also flagged Rule 1.11(d) (a public officer may not participate in a matter in which the lawyer participated personally and substantially in private practice, absent consent), with "matter" defined in Rule 1.7(e), and noted no indication that N.D.C.C. 11-16-05 or county conflict rules applied. Under Rule 1.7, the lawyer is precluded if the prior representation would or is likely to diminish his capacity to prosecute, and must obtain informed consent even if it only "might." Citing its Opinion 97-01, the committee said that where it can find no conflict on the facts but the lawyer subjectively feels an actual conflict, the lawyer ought to withdraw. Because the requestor supplied so little factual background, the committee concluded no conflict was readily apparent but a proper analysis was impossible.

In practice

This 2006 opinion applies North Dakota Rules of Professional Conduct 1.9, 1.11, and 1.7 (the opinion notes the Rule 1.7 comments were revised effective August 1, 2006). Under those rules, the committee held that whether a part-time state's attorney may prosecute a former civil client turns on a fact-by-fact comparison: whether any prior matter is the same matter as a charge (Rule 1.9(a)), whether the prior civil work is substantially related to the charge (Rule 1.9(b)), and whether confidential information from the prior work would be used against the former client (Rule 1.9(c)), in which case withdrawal is required. The committee held that prior pecuniary matters are not automatically unrelated, that Rule 1.7 bars prosecution if the prior work would diminish the lawyer's capacity (and requires informed consent if it merely might), and that a lawyer who subjectively believes an actual conflict exists should withdraw. It declined to find a conflict on the thin record presented.

Common questions

Q: Can a part-time prosecutor prosecute someone the prosecutor previously represented in civil matters?

A: It depends. The committee said the analysis turns on whether the prior civil work is the same as, or substantially related to, the criminal charge, or whether confidential information from it would be used against the former client. On the facts given, it could not say a conflict existed.

Q: Does it matter that the prior work was only financial (taxes, a bankruptcy retainer)?

A: The committee said prior matters of a purely pecuniary nature are not automatically unrelated to a later prosecution; the substantial-relationship test still requires comparing the facts and issues of both representations.

Q: When must the prosecutor withdraw?

A: Under Rule 1.9(c), if information obtained through the prior representation becomes necessary to the prosecution, the attorney would have to withdraw. The committee added that a lawyer who subjectively believes an actual conflict exists should withdraw even where the committee found none on the facts.

Q: Why didn't the committee give a yes-or-no answer?

A: The committee said the requesting attorney supplied so little factual background about the prior representations and the current charges that a reasonably thorough analysis was impossible.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.9 (Model Rule 1.9, duties to former clients), 1.11 (Model Rule 1.11, special conflicts for former and current government officers, including the "matter" definition the opinion draws from Rule 1.7(e)), and 1.7 (Model Rule 1.7, conflicts of interest). The central inquiry is the "substantially related matter" standard and the risk that confidences from prior civil work could be turned against a former client now being prosecuted.

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 1.11 / N.D.R. Prof. Conduct 1.11(c), (d) (government officers and employees)
• Model Rule 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts; "matter" definition in 1.7(e))
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. 11-16-05 (restrictions on powers of state's attorney)

Cases:

• Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963) (prior unrelated representation did not bar later prosecution)
• State v. Allen, 539 So. 2d 1232 (La. 1989) (pecuniary prior matter substantially related to later charge)
• In re Ockrassa, 799 P.2d 1350 (Ariz. 1990) (former defense lawyer disqualified from prosecuting former client)
• State ex rel. McClanahan v. Hamilton, 430 S.E.2d 569 (W. Va. 1993); Lawyer Disciplinary Bd. v. Printz, 452 S.E.2d 720 (W. Va. 1994) (substantial-relationship analysis)

Other opinions cited:

• SBAND Opinion 2001-01 (substantial relationship liberally construed in family-law matters)
• SBAND Opinion 97-01 (lawyer should withdraw on a subjective belief of actual conflict)
• South Carolina Bar Ethics Advisory Op. 03-02; Texas Ethics Op. 538 (prosecuting former clients)

See also

• SBAND Ethics Op. 06-06: Conflict in a Prosecutor Office
• NY State Bar Op. 1029: Government Lawyer Conflicts
• AL Ethics Op. 1993-09: Part-Time ADA and Victim's Estate

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_06-10.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. 06-10
Issue
The issue is whether a part-time state’s attorney’s previous civil representation creates an
ethical preclusion to the attorney prosecuting the former clients.

Information Provided by the Requesting Attorney

A part-time state’s attorney [hereinafter attorney] prosecuting two former clients (a married
couple) on possession of stolen property, "drug charges", and game and fish violations, had up
until 2003, prepared the married couple’s tax returns and in 2002, received a retainer from the
couple to perform a bankruptcy filing. At the clients’ request, the attorney never filed the
bankruptcy, but by January 2003, the retainer was exhausted responding to the couple’s other
legal matters including persons filing suit against them.

In early 2004 and again in August 2004, the attorney orally informed the couple that the
attorney wanted to withdraw from all representation. Despite the oral notices, the wife dropped
off more legal documents. Still later in 2004, the husband was charged (not specified by whom)
criminally and the attorney moved to withdraw from all civil matters with the couple.
Withdrawal was granted. The attorney handled the 2004 criminal prosecution of the husband
who pled guilty without objection to his one-time civil attorney prosecuting him.

In September 2005, the attorney gave written notice to the couple "to confirm that [the
attorney] formally withdrew from all representation of [the couple]." Since the earlier civil legal

work had not only consumed the $1,000 retainer but also resulted in $1,100 in unpaid bills for

further services, the attorney suggested to the couple clearing up the billing by listing the
remainder of the bill on the couple’s bankruptcy filing. Meanwhile, the attorney asserted that the
attorney would "just cancel any remaining bill."

An early December 2005 incident and subsequent execution of a search warrant resulted in
criminal charges being filed in February of 2006 against the couple by the attorney.

Discussion
Rule 1.9 of the North Dakota Rules of Professional Conduct follows.
A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) Represent another person in the same matter in which that person's
interests are materially adverse to the interests of the former client; or

(b) Represent another person in 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 after consultation; or

(c) Use information relating to the representation to the
disadvantage of the former client in the same or a substantially
related matter except as Rule 1.6 would require or permit with
respect to a client.

As to subparagraph (a) of Rule 1.9, the information the requesting attorney provided to this
Committee gave no indication whether the prior representation was on the same matter as any of
the current criminal charges. The requestor did offer that the prior representation involved
regular filing of the couples’ tax return, a request (later withdrawn) to file a bankruptcy petition,
and later efforts to fend off". . . various legal matters including persons filing suit against [the
couple]." Meanwhile, the current prosecutions involve unspecified incidents of possession of
stolen property, "drug charges", and game and fish violations.

Under subparagraph (b) of Rule 1.9, a lawyer can not ethically prosecute a former client if

the prior representation is "substantially related" to the later criminal charge. The comment to

Rule 1.9 instructs: "[t]he underlying question is whether the lawyer was so involved in the matter

2

that the subsequent representation can be justly regarded as changing sides in the matter in
question."

This Committee has liberally construed the term "substantially related matter" when the
prior representation involved family law. SBAND Ethics Committee Op. 2001-01. In the case
now before this Committee, it appears from the limited information provided by the requesting
attorney that the prior civil subject matter was primarily of a pecuniary nature, not familial.

The approach taken by a majority of the courts involves a comparison of the facts,
circumstances, and legal issues of the past and present representations to determine whether they
are related in some substantial way. Annotation, Disqualification of Prosecutor, 42 ALR. 5"
581, 646 (1996) (citing State ex rel. McClanahan v. Hamilton, 189 W.Va. . 290, 430
S.E.2d 569, 572-73 (1993) ("determining whether an attorney's current representation
involves a substantially related matter to that of a former client requires an analysis of
the facts, circumstances, and legal issues of the two representations."); Lawyer
Disciplinary Bd. v. Printz, 452 S.E.2d 720, 723 (W. Va. 1994) (quoting McClanahan,
"[uJnder Rule 1.9(a) of the Rules of Professional Conduct, determining whether an
attorney's current representation involves a substantially related matter to that of a
former client requires an analysis of the facts, circumstances, and legal issues of the
two representations.").

The South Carolina Bar Ethics Advisory Committee, applying the similar Rule 1.9(a) of the
South Carolina Rules of Professional Conduct, advised that a prosecutor’s previous estate
planning representation was not substantially related to and did not bar the lawyer from

prosecuting the former client. South Carolina Bar Ethics Advisory Op. 03-02.

Similarly, in the Gajewski case, the Eighth Circuit Court of Appeals affirmed the
U.S. District Court Judge’s decision that then U.S. Attorney, John Garaas’s, prior
representation of the Gajewskis involving cancellation of oil leases was not conceivably
related to their prosecution by the U.S. Attorney’s office on defrauding the United States
by defeating operation of the Agricultural Adjustment Act and conspiracy to file
fraudulent tax returns. Gajewski v. U.S., 321 F.2d 261, 267-268 (8" Cir. 1963): see also,
63C Am. Jur. 2d Prosecuting Attorneys, disqualification §§27 and 48 (1998); Annotation,
Disqualification or Recusal of Prosecuting Attorney Because of Relationship with Alleged Victim
or Victim’s Family,12 A.L.R.5th 909 (1993).

One cannot, however, conclude from these examples that prior representations of a
pecuniary nature are irrelevant to later criminal prosecutions. In State v. Allen, for example, the
Supreme Court of Louisiana applied the "substantially related matter" portion of Rule 1.9(a) of
Louisiana’s Rules of Professional Conduct to reverse and remand the lower courts’ decisions that
the prosecutor was properly allowed to continue with an arson prosecution where the defense was
there was no monetary benefit to be gained by burning down the house the defendant had turned
over to a bankruptcy trustee. State v. Allen, 539 So.2d 1232, 1234-35 (La. 1989).

In the case before this Committee, the requesting lawyer has supplied so little factual
background on any of the prior representations or the current prosecutions that conducting a
reasonably thorough factual analysis is impossible. We could conclude, that based on the limited
information provided, no substantial relationship between the prior representations and the
current prosecutions is apparent, but we have no information about the forces that drove the

couple to bankruptcy, the types of claims that were being made against the couple and defended

by the lawyer; nor are we informed whether the "drug charges" involve dealing or simple
possession, whether the possession of stolen property charge has any relation to the couple’s
historic financial problems or the claims brought against them, nor any indication of the character
of the game and fish violations.

Under Rule 1.9(c) the prosecutor is precluded from using any information from a
substantially related prior representation to the detriment of the former client. Based on the
limited information provided, no apparent conflict exists, but if information obtained through the
prior representation becomes necessary to the criminal prosecution, the attorney would need to
withdraw. In the Arizona disciplinary case, Ockrassa, a former defense attorney-turned
prosecutor was sanctioned for prosecuting a third DUI in five years when the prosecutor had
represented the defendant in two prior DUIs. The Court found that even though the two prior
DUI convictions were not needed to prove an element of the offense, the fact that the prosecutor
had been the Defendant’s attorney in the two prior DUI cases created a substantial relationship
for purposes of 1.9(c) in that there was a substantial danger that confidential information the
Defendant had revealed during the two prior cases would be used against him by his former
attorney. In re Ockrassa, 799 P.2d 1350, 1352 (Ariz. 1990). See also, Texas Commission on
Professional Ethics Opinion 538 (requiring little if any substantial relationship to constitute a
conflict due to the inherent tension between zealous prosecution and maintaining prior
confidences).

Note the related section for government lawyers in Rule 1.11(d) specifying ". . . a lawyer
serving as a public officer or employee shall not participate in a matter in which the lawyer

participated personally and substantially while in private practice or nongovernment employment

... unless all persons and entities involved in the former representation consent." The term
matter is defined in Rule 1.7(e) to include, "any Judicial or other proceeding, application,
request for a ruling or other determination, contract, claim, controversy, investigation,
charge, accusation, arrest, or other particular matter involving a specific party." Rule
1.11(c) layers onto that list of possibilities the added circumstance of "any matter
covered by the conflict of interest rules of the appropriate government agency." There
is no indication that any provision of N.D.C.C. 11-16-05 "Restrictions on powers of
state’s attorney" applies to this case or that the attorney’s county has its own conflict
rules. Based on the limited information provided by the requestor, there is no proof that any of
the earlier civil matters constitute the same matter as one of the current criminal charges.

Under Rule 1.7, the lawyer is precluded from prosecuting if the prior representation would
or is likely to diminish the attorney’s capacity to do the job. Even when the former
representation simply "might" affect the attorney’s capacity to zealously prosecute, the attorney
must gain informed consent from the parties to continue.

As noted by this Committee in Opinion 97-01, where, as here, the Committee can based on
the facts presented find no conflict, if the lawyer, subjectively feels there is an actual conflict, the
lawyer ought to withdraw. The comments to rule 1.7 contain revisions effective on the first of
August 2006. The requestor may wish to consider consulting those comments for guidance.

Conclusion

On the surface, no conflict is readily apparent. But analysis of these issues requires

comparison of the facts of both the underlying prior civil matters and the current charges to

determine whether they revolve around the same matter or are so interwoven as to create a

conflict. The requestor has provided insufficient facts to facilitate such a review.

This opinion was drafted by Fritz Fremgen and adopted by unanimous vote of the

Committee on the 21" of June 2006.

ark R. Hanson
Chair, SBAND Ethics Committee