Ezel / Ethics Opinions / SBAND

Must a state’s attorney step aside from prosecuting a defense lawyer who regularly practices in the same court?

Short answer The committee said disqualification was not required on the stated facts merely because the defendant was a practicing local defense lawyer. It left the assessment of any actual conflict to the prosecutor.
Bar
SBAND
Issued
March 25, 1997
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1997. 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 state’s attorney faced prosecuting a lawyer charged with a misdemeanor traffic offense. The defendant lawyer represented other criminal defendants in the same court.

The committee said ordinary professional familiarity and possible effects on future dealings did not themselves require recusal. A potential conflict would need to rise to a reasonable likelihood of actual conflict, and the prosecutor’s own subjective belief in an actual conflict could warrant stepping aside. It did not purport to control a court’s disqualification decision.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 the lawyer-defendant’s local practice itself disqualify the prosecutor?

A: No. The committee found no required disqualification on those facts.

Q: Who assessed a possible actual conflict?

A: The committee left the ethical decision to the prosecutor and distinguished it from any court ruling on a special prosecutor.

Background and rules framework

The opinion discusses North Dakota Rules 1.7, 1.10, 3.8 in addressing the stated request.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.7.
  • North Dakota Rule 1.10.
  • North Dakota Rule 3.8.

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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