Ezel / Ethics Opinions / SBAND

Could a lawyer serve as a city prosecutor while taking county felony defense assignments?

Short answer The committee said Rule 1.8(j) permitted both roles, but barred a defense likely to require an appearance in the court of the prosecutorial appointment and required case-specific conflict review.
Bar
SBAND
Issued
August 15, 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 lawyer holding a county felony-defense contract asked whether the lawyer could also become a city prosecutor. The committee said Rule 1.8(j) permitted the two roles on the described facts.

The committee limited that conclusion: the rule did not permit representation likely to require a pleading or appearance in the court of the prosecutorial appointment. It also quoted the rule comment that a matter in another court could still be barred if it “involved parties or issues with which the part-time official had any involvement as a judge or prosecutor.”

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 Treat this page as historical context, not current guidance.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 lawyer combine the city prosecutor job with county felony defense?

A: The committee said Rule 1.8(j) allowed that combination on the stated facts.

Q: What defenses remained outside that permission?

A: A case likely to require an appearance in the court served as prosecutor, or a matter involving parties or issues from prosecutorial work, remained barred under the committee's analysis.

Background and rules framework

The letter applies North Dakota Rule 1.8(j) and its comment to a part-time municipal prosecutor who also holds felony-defense assignments.

Citations and references

Rules of Professional Conduct:

  • Rule 1.8(j), part-time prosecutor and defense limits.

See also

Source

Original opinion text

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

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