Can a state's attorney's office also run the community service program that monitors the sentences it helped obtain?

Plain-English summary

The committee was asked whether a state's attorney's office could assume the duties of a Community Service Coordinator, the official who monitors compliance with and assists people in completing the community service required by their criminal sentences. Prosecutors advocate for or against community service at sentencing, and if the office also ran the coordinator role it would simultaneously advocate for the state and county, advocate for victims and their families, push for a particular sentence, and then monitor the defendant's compliance with the sentence imposed.

The committee answered "yes," this creates an impermissible conflict. It focused on the program's funding: community service supervision is paid for in part by statutory monthly fees from the convicted persons being supervised (N.D. Cent. Code 12.1-32-07). If those fees fund the coordinator's salary, a steady flow of community service sentences may be needed to keep the position financially viable within the office. That budgeting reality, the committee reasoned, will likely pressure the office to recommend or agree to community service even when it might not serve just punishment, creating an irreconcilable conflict.

Applying the comment to Rule 1.7, the committee explained that paragraphs (a) and (b) describe conflicts where the lawyer is absolutely prohibited from the representation, while paragraph (c) describes conflicts the lawyer may take on with informed consent. Here the state's attorney's clients are the people of North Dakota, and the Community Service Coordinator is a third person whose financial stability the office would have to weigh against its clients' interests and the interests of crime victims who oppose community service. The committee concluded this dual relationship will or is likely to adversely affect the office's loyalty in sentencing matters and cannot always be resolved, so it is prohibited by Rule 1.7.

In practice

This 2008 opinion applies North Dakota Rule of Professional Conduct 1.7. Under that rule, the committee held that a state's attorney's office may not assume the community service coordinator role, because the program's reliance on fees paid by people sentenced to community service gives the office a financial incentive that will or is likely to adversely affect its sentencing advocacy on behalf of its clients (the people of North Dakota) and against the interests of victims. The committee held this is an irreconcilable, non-consentable dual relationship prohibited by Rule 1.7, not a potential conflict curable by consent.

Common questions

Q: Can a prosecutor's office run the community service program for the sentences it prosecutes?

A: No. The committee concluded this creates an irreconcilable conflict of interest prohibited by Rule 1.7.

Q: Why is funding the problem?

A: Because community service supervision is funded in part by monthly fees from the people being supervised, the office could need a steady stream of community service sentences to keep the coordinator position viable, which the committee said would likely pressure its sentencing advocacy.

Q: Can the conflict be cured with consent?

A: No. The committee treated it as a non-consentable conflict, concluding it could not always be resolved to the satisfaction of both the office's clients and the coordinator, so Rule 1.7 prohibits it.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.7 (Model Rule 1.7, conflicts of interest). The committee read the 2008 rule's comment as distinguishing absolutely prohibited conflicts (paragraphs (a) and (b)) from consentable conflicts (paragraph (c)), and placed the community service coordinator arrangement in the prohibited category because the office's financial interest in the program would adversely affect its loyalty to its clients in sentencing. The community service sentencing and fee structure is set by N.D. Cent. Code 12.1-32-07.

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 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts of interest, general rule)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D. Cent. Code 12.1-32-07 (community service as a sentencing option; supervision fees)

See also

• SBAND Ethics Op. 05-08: Prosecutor Accepting a Gift From a Victim
• DC Ethics Op. 210: Defense Lawyer Seeking a Prosecutor Job

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_08-03.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 NUMBER 08-03
The Ethics Committee received a letter request for an opinion, dated July 15,
2008, regarding whether a states attorney's office could assume the duties of a
Community Service Coordinator. Rule 1.7 (Conflict of Interest: General Rule) of the

North Dakota Rules of Professional Conduct applies to this issue.

ASSUMED FACTS

According to the requesting attorney, the primary duty of the Community Service
Coordinator is to monitor compliance with and to assist individuals in completing their
community service requirements of criminal judgments. Prosecutors, during the
sentencing phase of a criminal case, may have advocated for or opposed community
service for the same persons who are completing their community service obligation. If
community service is part of the sentence, monitoring compliance with the sentence is the
job of the Community Service Coordinator. If that position is allowed to be under the
control of a states attorney, the states attorney's office has the multiple functions of
advocating for the best interests of the state and the county, advocating for the victims
and victims' family, advocating for a certain type of sentence, and monitoring compliance
of the criminal defendant with the sentence imposed by the court. The ethical question
posed by these assumed facts is whether this multi-functional role is ethically

permissible.

FURTHER INFORMATION ABOUT COMMUNITY SERVICE

Community service is a sentencing option allowed in conjunction with probation

for certain crimes pursuant to N.D.CENT. CODE §12.1-32-07(3)(a) and (4)(q) (2007). If

such a sentence is imposed by the court after advocacy efforts of the prosecution and
defense, the court must order that supervision costs and fees, not less than $45.00 per
month, be paid by the convicted person, unless undue hardship can be shown.

N.D.CENT. CODE §121-32-07(2) (2007). The money eventually would be paid to the
entity supervising the community service. In the scenario posed to the Ethics Committee,
the money for supervision would be paid to the states attorney's office. The Community
Service Coordinator would not be a client, but would be an employee of the office.

It is the understanding of the Ethics Committee that community service
supervision, until recently, was within the functions of the Department of Corrections;
but, when funding was lost this function was discontinued. In some jurisdictions,
community service programs were created locally to fill the void. These programs are
funded by a combination of local or other government taxes and the statutory fees paid by
the persons who are on probation and undertaking their community service obligation. If
an individual is hired to supervise community service compliance, sufficient funding
must be available from someplace to pay for the salary and overhead of the person

performing the job.

QUESTION

Does the assumption of the Community Service Coordinator's role by a states

attorney's office create an impermissible conflict of interest?

ANSWER

Yes.

DISCUSSION

The scenario posed by the requesting attorney creates an impermissible conflict of
interest. Inherent in the statutory framework for community service is payment of
monthly fees by the convicted person. In budgeting for the Community Service
Coordinator, it is likely that these fees will be used to pay at least a portion of the salary
of the person assigned to monitor community service. Depending on whether, or how
much, a political subdivision funds the Community Service Coordinator position, a
steady flow of persons being sentenced to community service may be required to
maintain the financial viability of the Community Service Coordinator position within the
states attorney's office. This budgeting reality, especially in light of traditionally tight
governmental funding, will likely affect the states attorney's office's advocacy regarding
sentencing. In particular, states attorney's offices will naturally be pressured to
recommend, or agree to, community service when it might not be in the best interests of
others in obtaining just punishment for convicted criminals. Such a dichotomy will or is
likely to create an irreconcilable conflict.

The Comment to N.D.R.Prof. Conduct 1.7 provides guidance regarding how to
determine whether a dual relationship is impermissible:

Paragraphs (a), (b), and (c) of this Rule [Rule 1.7] address three separate

and distinct conflict of interest situations. Paragraph (a) addresses the

situation in which the lawyer's own interests or the lawyer's responsibilities

to another client or to a third person will adversely affect the lawyer's

representation of a client. Paragraph (b) addresses the situation in which

the lawyer's own interests are likely to adversely affect the representation.

In both of these conflict situations, the lawyer is absolutely prohibited from

undertaking or continuing representation of the client. Paragraph (c)

addresses the situation in which the lawyer's own interests or the lawyer's
responsibilities to another client or to a third person simply might adversely

affect the lawyer's representation of a client. In this situation the lawyer is

permitted to undertake the representation if the lawyer reasonably believes

there will be no adverse effect on the representation and if the clients

consent after consultation.

The fact situation presented by the requesting attorney will or is likely to adversely
affect loyalty to an existing client. Here, the states attorney's clients include the people of
the State of North Dakota. The third person is the Community Services Coordinator. It
is inevitable that at times victims of crime, or their families, will be opposed to
community service as an alternative sentence. The states attorney will inevitably have to
balance that interest against the interest of ensuring the financial stability and continued
employment of the Community Service Coordinator. This will or is likely to adversely
affect the states attorney's duties in sentencing matters. It does not appear to the Ethics

Committee that this conflict can always be resolved to the satisfaction of the best interests

of the client and to the third person, the Community Services Coordinator.

CONCLUSION

The scenario posed by the requesting attorney creates an irreconcilable dual

relationship that is prohibited by Rule 1.7

This opinion was drafted by Alvin O. Boucher and approved by the Ethics

Committee on November 17, 2008

Dann E. Greenwood, Chair