In which courts may a municipal city prosecutor appear as defense counsel in a criminal case?
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This page answers the general question as of 1985. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
At its October 15, 1985 meeting, the Ethics Committee discussed a May 9 request and reviewed its prior opinions. It determined that a city prosecutor in municipal court may appear as defense counsel in a criminal action in a different court, provided neither the lawyer nor another firm member regularly appears in that court as a city attorney or city prosecutor.
The committee called the response a “letter opinion” issued for advisory purposes only and said it was not binding on the recipient, North Dakota courts, disciplinary bodies, or other bar members. It said it intended to formulate a broader position on the roles of city attorneys, municipal judges, state's attorneys, county judges, and other part-time prosecutors or judges for later publication.
Currency note
This opinion was issued in 1985, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Did the committee permit a municipal prosecutor to defend criminal cases in other courts?
A: Yes, if neither the prosecutor nor another member of the prosecutor's firm regularly appears in that court as a city attorney or city prosecutor.
Q: Does the letter establish a binding rule for courts or disciplinary bodies?
A: No. The committee described it as an advisory letter opinion and expressly said it was not binding on North Dakota courts, disciplinary bodies, or bar members.
Background and rules framework
The letter says the committee reviewed prior Ethics Committee opinions before reaching its conclusion. It does not identify a specific rule or numbered prior opinion. Its stated boundary is the court where the lawyer or another firm member regularly appears for the city.
See also
- ND Ethics Op. 06-10: Part-Time State's Attorney Prosecuting a Former Civil Client
- Nebraska Ethics Op. 72-14: Municipal Prosecutor as Appointed Defense Counsel
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/85-01.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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