Ezel / Ethics Opinions / SBAND

May a city council direct its prosecutor to dismiss a criminal case to avoid defense-counsel costs?

Short answer The committee said the charging decision belongs to the city prosecutor, not the council. The prosecutor may consider resources and trial costs among the factors in exercising independent discretion.
Bar
SBAND
Issued
March 30, 1995
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1995. 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 city council asked its attorney to dismiss a criminal complaint after the defendant requested a jury trial, citing the cost of appointed counsel. The committee treated the question as one about prosecutorial discretion.

The opinion says the council cannot control the prosecutor’s decision whether to charge or continue the case. It allows the prosecutor to consider available resources, the governing body’s interests, and the time and expense of trial, while making the decision personally in light of the charge and alleged harm.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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: Can the council order dismissal based on appointed-counsel costs?

A: No. The committee says the city attorney and prosecutor must exercise independent judgment, which the council cannot control for that reason.

Q: Can the prosecutor consider litigation expense?

A: Yes. The opinion says resources and the time and expense of trial may be considered, along with the nature of the charge and gravity of alleged harm.

Background and rules framework

The opinion applies North Dakota Rules 3.8(a) to the facts described above.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 3.8(a).

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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