May a part-time state's attorney represent a crime victim in a later civil damages case?

Plain-English summary

The opinion asks whether a part-time state's attorney may be retained by a crime victim to pursue civil damages after the time for appeal in the criminal case has expired, regardless of the criminal verdict. The committee answered yes, on the condition that no discussion established a lawyer-client relationship concerning the civil action while the criminal case was still pending.

The committee recognized that the prosecutor and victim might preliminarily discuss the victim's alternatives. It said those preliminary discussions were not meant to preclude forming a lawyer-client relationship later.

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 Treat this page as historical context, not current guidance.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: Does the criminal verdict affect this opinion's answer?

A: The question expressly asks about the later civil suit “regardless of the verdict in the case,” and the committee answered yes subject to its stated condition.

Q: Do preliminary discussions with the victim rule out later representation?

A: No. The committee said a preliminary discussion of available alternatives was not meant to preclude a later lawyer-client relationship.

Background and rules framework

The opinion is labeled an “ETHICS COMMITTEE INFORMAL OPINION.” It states the timing and relationship condition without citing a numbered professional-conduct rule.

See also

• ND Ethics Op. 1985-01: City Prosecutor's Criminal Defense Work
• ND Ethics Op. 06-10: Part-Time State's Attorney Prosecuting a Former Civil Client

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/85-41.pdf

Original opinion text

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

ETHICS COMMITTEE INFORMAL OPINION

QUESTION:

Can a part-time states attorney be retained by a victim to act as a private attorney in pursuing a lawsuit to recover damages after the time for appeal has expired in the criminal action, regardless of the verdict in the case?

ANSWER:

Yes, providing that there has been no discussion which would lead to the establishment of a lawyer-client relationship based on a civil action while the criminal action is pending. The committee recognizes that in certain instances a preliminary discussion of the various alternatives available to the victim is inevitable between the victim and the part-time states attorney. Such preliminary discussions, are not meant to preclude the later establishment of an attorney-client relationship.

(Composed by Neil Fleming,
edited by Linda Catalano)