Could a part-time state’s attorney defend criminal cases in another county?

Short answer The committee said Rule 1.8(j) allowed criminal defense in counties outside the prosecutor’s appointment, provided the defense did not involve parties or issues the lawyer had handled as a state’s attorney.

Bar

SBAND

Issued

March 22, 1991

Source

View Original PDF

Apply this to your situation

This page answers the general question as of 1991. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

A part-time state’s attorney asked whether criminal defense work in other counties violated the professional-conduct rules. The committee said Rule 1.8(j) permitted that work outside the county of the prosecutorial appointment.

The committee quoted the rule comment that public functions were not compromised by defense in another county. It emphasized a limit: the lawyer could not take a defense involving parties or issues with which the lawyer had been involved as a part-time state’s attorney.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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 part-time prosecutor defend a case in another county?

A: Yes, under the committee’s interpretation of Rule 1.8(j), if the matter did not involve parties or issues from the lawyer’s prosecutorial work.

Q: What prior involvement barred the defense?

A: The committee identified parties or issues with which the lawyer had been involved as a part-time state’s attorney.

Background and rules framework

The letter applies North Dakota Rule 1.8(j) and its comment to defense in counties other than the county of the lawyer’s prosecutorial appointment.

Citations and references

Rules of Professional Conduct:

Rule 1.8(j), cited for the county-of-appointment limit and prior-involvement caveat.

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/91-02.pdf

Original opinion text

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

What do the rules say today, for your facts?

This opinion is from 1991. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

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