Ezel / Ethics Opinions / SBAND

May a lawyer oppose future agency rules for one client after advising another client about related proposed rules?

Short answer The committee expressed concern that the proposed representation might violate the conflict rules. It identified possible concurrent-client adversity under Rule 1.7 and a substantially related former-client conflict under Rule 1.9, depending on the clients' status and consent.
Bar
SBAND
Issued
June 28, 1993
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1993. 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A lawyer had advised Client A on proposed agency rules that were later withdrawn. Client B then sought help analyzing and opposing future rules from the same agency. Client A viewed the proposed work for B as a conflict.

The committee said a Rule 1.7 conflict could arise if the lawyer represented both clients on opposing sides of the same regulatory issue, impairing her ability to represent each. If Client A was instead a former client, the committee viewed B's anticipated work as likely substantially related to the prior advice and potentially materially adverse to A under Rule 1.9. It said A's consent after consultation could matter to that former-client analysis.

The conclusion remained qualified: the committee said it had concern that the proposed representation “may” violate the ethics rules.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 withdrawal of the first proposed rule eliminate the conflict concern?

A: No. The committee still identified possible conflict issues in the contemplated work on future rules in the same regulatory area.

Q: Did the committee say the new representation definitely violated the rules?

A: No. It concluded that the proposed representation might violate the rules, discussing both current- and former-client possibilities.

Background and rules framework

The opinion applies North Dakota Rule 1.7 to concurrent representation and Rule 1.9 if Client A was a former client.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rules 1.7 and 1.9.

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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