How did a public interest law firm address conflicts from declined applicants, contractors, spouses, and volunteer staff?

Short answer The committee allowed representation against a declined applicant while protecting intake information. It made contractor imputation depend on whether the firms were one firm, applied Rule 1.7 to opposing lawyer-spouses, and imputed conflicts involving volunteers with general file access.
Bar
SBAND
Issued
February 28, 1996

Apply this to your situation

This page answers the general question as of 1996. 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

The public interest law firm asked about four sets of conflicts: information from applicants it declined, private firms under contract, spouses on opposing sides, and volunteer secretaries or legal assistants.

For declined applicants, the committee said the firm generally could represent the opponent but could not use the applicant’s intake information absent consent or that information becoming generally known. A confidentiality waiver required the declined applicant’s informed consent. The committee said the duties did not expire on a proposed time line.

For a contracting private firm, imputation turned on whether the relationship met Rule 1.10’s definition of a firm. Screening could not avoid imputation if it did; strict screening could be used if it did not. The committee applied Rule 1.7 to opposing lawyer-spouses and described client consent after consultation as the minimum where the relationship might adversely affect representation. For a volunteer with general access to an employing firm’s files, it found conflicts imputed to the public interest firm.

Currency note

This opinion was issued in 1996, 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 an opponent of an applicant it had declined?

A: Generally yes, but it could not use that applicant’s information without consent or unless the information became generally known.

Q: Did every private contract automatically merge the firms for conflict purposes?

A: No. The committee made firm status depend on the agreement, file access, and the rules implicated in the specific case.

Q: What did the committee say about a volunteer’s file access?

A: Where the volunteer had general access to an employing firm’s files, the committee imputed conflicts between the private and public interest firms.

Background and rules framework

The opinion discusses North Dakota Rules 1.6, 1.7, 1.9, 1.10, and 5.3, and cites ABA Formal Opinion 90-358 on information from potential clients.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.6.
  • North Dakota Rule 1.7.
  • North Dakota Rule 1.9.
  • North Dakota Rule 1.10.
  • North Dakota Rule 5.3.

Other opinions cited:

  • ABA Formal Opinion 90-358, on information disclosed by a potential client.

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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