Could one firm represent two criminal defendants if defending one would require attacking the other as a witness?

Plain-English summary

The committee considered a firm’s proposed representation of Defendant A and Defendant B in criminal matters. It said effective representation of B would require attacking A as a witness and could involve information acquired while representing A.

The committee unanimously found a clear conflict and said the firm could not represent both defendants. It did not answer a second question concerning the state’s attorney, explaining that it would first need a request from that attorney.

Currency note

This opinion was issued in 1989, 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 Treat this page as historical context, not current guidance.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: Could the firm represent both defendants?

A: No. The committee found a clear conflict because representing B would require attacking A as a witness and might use information gained from representing A.

Q: Did the committee answer the question about the state’s attorney?

A: No. It reserved comment until the state’s attorney sought an advisory opinion.

Background and rules framework

The letter does not cite a numbered rule. Its conflict finding rests on adversity between the two criminal defendants and information learned through representation of Defendant A.

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/89-10.pdf

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.