Can a state's attorney who used to be a public defender prosecute a person they once represented, when the new charge is unrelated to the old case?

Plain-English summary

A North Dakota state's attorney had previously worked as a public defender and periodically encountered criminal cases in which the suspect or defendant was a former indigent-defense client. The committee was asked whether it is a conflict for the prosecutor to pursue a former client when the new criminal case is completely unrelated to the prior one.

The committee analyzed the question under Rule 1.9 (duties to former clients). Rule 1.9(a) bars representing a new client in the same or a substantially related matter where interests are materially adverse to the former client, absent written consent. The committee explained that the first step is whether the new matter is the same or substantially related to the prior representation, drawing on Comment 3's definition (same transaction or legal dispute, or a substantial risk that confidential information from the prior representation would materially advance the new matter). It illustrated the line with the Oregon State Bar's robbery-versus-DUI example, and cautioned, citing Commonwealth v. Ford, that the inquiry is not simply whether the charges are identical; the prosecutor must consider shared or interrelated issues. It noted contrary authority (State v. Bryan; Gatewood v. State) treating an unrelated new case as disqualifying only where actual confidential information was gained.

The committee stressed that even where consent could cure the conflict, seeking a former client's consent to prosecute is fraught: full disclosure of the conflict and its consequences is required, consent must not be sought with an expectation of leniency, and sometimes the prosecutor should not even ask (quoting Texas Op. 538). It also applied Rule 1.9(c)'s prohibition on using or revealing the former client's confidential information to the client's disadvantage, and recognized the prosecutor's special role as a minister of justice under Rule 3.8. Citing New York Op. 492 and Reaves v. State, the committee underscored the danger of an appearance of impropriety and erosion of public trust, and noted the ABA Criminal Justice Standards go further by barring a prosecutor's involvement against a former client.

The committee concluded that a prosecutor may handle a case involving a former client only after the Rule 1.9 analysis and ethical safeguards. If the new case is the same or substantially related, the prosecutor must not be involved absent written consent, sought with great caution. The prosecutor must ensure compliance with Rule 1.9's bar on using or revealing the former client's information, and should avoid involvement that would create an appearance of impropriety. If involvement is inappropriate, a different prosecutor in the office should be assigned and the conflicted attorney screened out; if no one else is available or the state's attorney is a solo practitioner, a special prosecutor should be appointed.

In practice

This opinion, approved October 27, 2020, applies North Dakota Rules of Professional Conduct 1.9 and 3.8 as they stood at that time. The committee held that a state's attorney who formerly represented a defendant may handle a new, unrelated case against that person, but only after determining under Rule 1.9(a) whether the matters are the same or substantially related with materially adverse interests. If they are, the prosecutor must step aside unless the former client consents in writing, sought only with great caution and full disclosure. The committee held that the prosecutor must not use or reveal the former client's confidential information to the client's disadvantage, must avoid an appearance of impropriety consistent with the prosecutor's role as a minister of justice under Rule 3.8, and, where involvement is inappropriate, must be screened out in favor of another prosecutor in the office or, if none is available or the prosecutor is solo, a special prosecutor.

Common questions

Q: Can a former public defender now prosecute someone they used to represent?

A: Only after a Rule 1.9 analysis. The committee concluded the prosecutor may handle the new case if it is not the same or substantially related to the prior representation, and otherwise must step aside absent the former client's written consent.

Q: When are the old case and the new case 'substantially related'?

A: The committee applied Comment 3: matters are substantially related if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential information from the prior representation would materially advance the new matter; the prosecutor must look for shared or interrelated issues, not just identical charges.

Q: Can the prosecutor just get the former client's consent to prosecute?

A: It is possible but fraught. The committee, quoting Texas Op. 538, said consent requires full disclosure of the conflict and its consequences, must not be sought with an expectation of leniency, and sometimes should not even be requested.

Q: What if the prosecutor cannot ethically handle the case?

A: The committee concluded a different prosecutor in the office should be assigned and the conflicted attorney screened out; if no one else can handle it, or the state's attorney is a solo practitioner, a special prosecutor should be appointed.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.9 (Model Rule 1.9, duties to former clients), including Rule 1.9(a)'s same-or-substantially-related-matter test, Comment 3's definition, and Rule 1.9(c)'s prohibition on using or revealing a former client's information. It also invokes Rule 3.8 (Model Rule 3.8, special responsibilities of a prosecutor) and its Comment 1 on the prosecutor's role as a minister of justice. The committee surveys persuasive authority from Oregon, Texas, New York, Pennsylvania, and Florida and the ABA Criminal Justice Standards.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / N.D.R. Prof. Conduct 1.9 (duties to former clients; 1.9(a) substantially related matters; 1.9(c) using or revealing information)
• Model Rule 3.8 / N.D.R. Prof. Conduct 3.8 (special responsibilities of a prosecutor; minister of justice)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Cases:

• Commonwealth v. Ford, 122 A.3d 414 (Pa. Super. Ct. 2015), substantially related prior representation disqualifies
• State v. Bryan, 227 So. 2d 221 (Fla. Dist. Ct. App. 1969), disqualification only on actual confidential information
• Gatewood v. State, 880 A.2d 322 (2005), no close relation between matters
• Reaves v. State, 574 So. 2d 105 (Fla. 1991), appearance of impropriety required reversal

Other opinions and standards cited:

• Oregon Op. 2005-120; Texas Op. 538; New York Op. 492
• ABA Criminal Justice Standards, Prosecution Function, Standard 3-1.7(d) (4th ed. 2017)

See also

• ND Op. 06-10: Prosecuting a Former Client
• ND Op. 06-06: Conflict in a Prosecutor Office
• AL Ethics Op. 1991-44: Disqualifying a DA's Office

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/ethics/opinion_2020-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 2020-02
THIS OPINION IS ADVISORY ONLY
FACTS
A state’s attorney (“attorney”) in a North Dakota county previously worked as a public
defender. Periodically, the attorney encounters criminal cases in which the suspect or defendant
is a former indigent defense client.
QUESTION PRESENTED
Is it a conflict of interest for a state’s attorney to prosecute a person whom the attorney
previously represented as an indigent defense client, where the new criminal case is completely
unrelated to the prior case?
OPINION
I. APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Rule 1.9 of the North Dakota Rules of Professional Conduct addresses the ethical duties
owed to former clients. The Rule states in pertinent part:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless

the former client consents in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the
former client in the same or a substantially related matter except as these
Rules would require or permit with respect to a client, or when the
information has become generally known; or

(2) reveal information relating to the representation except as these Rules
would permit or require with respect to a client.

II. DISCUSSION

The question presented is whether a state’s attorney who formerly worked as a public
defender may prosecute a former client for charges unrelated to the subject of the prior
representation. N.D. Rule Prof. Conduct 1.9 does not prohibit an attorney from representing a
new client in matter that is entirely unrelated to the former client’s case. Therefore, the first
issue to consider is whether the new criminal matter has any connection with the previous case(s) _
in which the attorney represented the former client. Subsection (a) of Rule 1.9 pertains to
representation of a new client in the “same or substantially related matter.” Comment 3 to Rule
1.9 explains that matters are “substantially related for purposes of this Rule if they involve the
same transaction or legal dispute or if there otherwise is a substantial risk that confidential

• factual information as would normally have been obtained in the prior representation would
  materially advance the client’s position in the subsequent matter.”

The Oregon State Bar Association Board of Governors provided an example to illustrate
the distinction between the “same” and “substantially related” matters in the context of criminal
law:

If [a district attorney] endeavored to bring a robbery prosecution against a former

client and the robbery appeared to be part of a pattern of robberies, and if [the
district attorney] had previously participated in the defense of the former client in
one of those robberies, the new prosecution would be substantially related to [the
district attorney]’s prior defense of the former client and would constitute a
former client conflict under Oregon RPC 1.9(a). Conversely, if the robbery
defendant previously had been defended by [the district attorney] in a DUII
matter, there would be a conflict only if [the district attorney] acquired

• confidential information while representing the former client that could materially

advance the prosecution of the robbery case.
OR Eth. Op. 2005-120 (June 2007).

It is important to note, however, that the analysis is not as simple as whether the new

charge-and prior charge are the same. The attorney must also determine whether the cases share

any similarities or interrelated issues. In Commonwealth v. Ford, the Pennsylvania Superior
Court considered the question of whether the trial court properly disqualified an assistant district
attorney who had previously represented the defendant. 122 A.3d 414, 417 (Pa. Super. Ct.
2015). The defendant was charged with crimes related to the delivery of heroin. Id. at 415. The
assistant district attorney previously represented the defendant on a theft charge and “in
connection with a revocation matter incident to.a prosecution where [the defendant] was also
charged with possession with intent to distribute controlled substances.” Id. at 415-16. The
State argued that the prior cases were. unrelated to the new drug case. Id. at 416. However, the .
Court held that “[u]pon review of the plain language of Rule 1.9 and its comment, we conclude
that a conflict of interest exists.” Id. at 417. The Court concluded that because the assistant
district attorney was directly involved in the defendant’s prior drug case, “his subsequent
representation of the Commonwealth in this drug case—with its materially adverse interests— _
‘clearly is prohibited.’” Id. at 417.
But see State v. Bryan, 227 So. 2d 221, 223 (Fla. Dist. Ct. App. 1969) (holding in a new

criminal case unrelated to the prior representation that “the State Attorney can only be
‘disqualified if it were shown that as Public Defender he had actually gained confidential
information from a prior attorney-client relationship with the defendant, which information

would be useable in the new matter to defendant's prejudice”); Gatewood v. State, 880 A.2d 322,

335 (2005) (concluding that the lower court did not abuse its discretion in rejecting the
- defendant’s motion to disqualify a prosecutor, noting that the lower court found no “close
relation between the present case and the past representations”).

If the attorney determines that the new case and the prior case are the same or substantially

related, Rule 1.9(a) still allows the attorney to represent the new client if the former client

consents in writing. In the context of a criminal case, however, the idea of obtaining consent to
prosecute a former client is fraught with problems. As the Supreme Court of Texas Professional
Ethics Committee noted, “[t]o obtain the consent of the former client to criminally prosecute him
requires full disclosure of the existence, nature and implications of the conflict of interest and the
many possible adverse consequences of consenting to such a prosecution.” TX Eth. Op. 538
(June 2001). Certainly, “consent should not be obtained with an inappropriate expectation of
leniency.” Id. The prosecutor should also keep in mind that “there may be occasions where the
lawyer should not even ask for the former client’s consent.” Id. “Where a disinterested lawyer
would conclude that the client should not agree to give the requested consent, the Rules
discourage, if not prohibit, the lawyer from even asking for the former client's consent.” Id: The
Committee agrees with this analysis and urges extreme caution when seeking consent from a
former client to prosecute him or her.

Subsection (c) of Rule 1.9 prohibits use of information relating to a former client to the -
disadvantage of the former client “in the same or a substantially related matter except as these
Rules would require or permit with respect to a client, or when the information has become
generally known.” It also prohibits an attorney from revealing information related to the
representation of the client except as the Rules permit or require. N.D.R. Prof. Conduct 1.9(c).
To avoid the disclosure of confidential information about the former client, the prosecutor would
need to “proceed cautiously, ignoring any fact known by the new prosecutor about the former
client as a result of the former representation.” TX Eth. Op. 538 (June 2001). Prosecutors have
“the responsibility to see that justice is done and not simply be an advocate.” Id. However,
prosecutors are “still obligated to act with competence, commitment and dedication on the State's

behalf.” Id.

The Supreme Court of Texas Professional Ethics Committee aptly explained the ethical
conundrum that a state’s attorney would face in prosecuting a former client:

Adherence to the Rules-places an impossible burden on an effective prosecutor
and creates an almost certain probability that in the adversarial trial setting,
confidentiality will be compromised. Similarly, to obtain and ensure protection,
the objecting former client is forced to divulge the very same confidential
information he seeks to prevent from disadvantageous use, thus defeating the

~ purpose of the rules. These conflicting obligations impose conflicting duties on
both the prosecutor and the former client and thus requires prohibition of this
practice, absent the former client's consent.

Even if consent from the former client is obtained to prosecute him, the
Committee believes that the new prosecutor’s use in evidence, in a new criminal
proceeding of a prior conviction in which she was defense counsel, for purposes
of impeachment, or for use against a former client as character evidence or
punishment evidence is prohibited.

TX Eth. Op. 538 (June 2001). The American Bar Association (ABA) standards go even further, .
completely prohibiting the prosecution of a former client. According to the standards, a
“prosecutor should not be involved in the prosecution of a former client” and “should not use
information obtained from that representation to the disadvantage of the former client.”. ABA
Criminal Justice Standards, Prosecution Function, Standard 3-1.7(d), 4" ed. 2017 .

The New York State Bar Association Committee on Professional Ethics warned that
prosecuting ‘a former client could create an appearance of impropriety:

Because of the broad discretion with which the district attorney is vested,
prosecution of persons that he has personally represented in private practice
immediately prior to the assumption of his new office presents an unacceptably
high risk that the prior representation will bias the manner in which he will
discharge the functions of his office and, at the very least, may give rise to
speculation concerning the propriety of his motives. Such speculation, or a
reasonably high probability of such speculation, would understandably place
unwarranted pressure upon the district attorney in the performance of his official
duties. The public's confidence in the integrity of the district attorney's office
should not needlessly be so tested. Its confidence in the proper administration of
justice should not be compromised or unnecessarily put at risk. .

NY Eth. Op. 492 (Sept. 13, 1978).

The Florida Supreme Court has also recognized the danger of negative public perception

when a prosecutor brings charges against a former client. In Reaves v. State, a state’s attorney
prosecuting the defendant for murder had previously represented the defendant as an assistant
public defender on grand larceny charges. 574 So. 2d 105, 106-07 (Fla. 1991). The defendant
appealed his murder conviction, contending that “many of the issues involved in the present.
case—particularly mitigating factors during the penalty phase—were similar to issues raised in
this prior criminal proceeding.” Id. at 106. The defendant claimed that “an appearance of
impropriety was created that demanded the disqualification of [the] prosecutor.” Id. The Court
agreed, holding that reversal of the defendant’s conviction was necessary “‘[t]o implement these
ethical considerations and prevent the perception or actuality of a breach of confidentiality.” Id.
at 107. |
Ill. CONCLUSION

A state’s attorney may handle a criminal case involving a former client, but only
after conducting the proper analysis under N.D.R. Prof. Conduct 1.9 and ensuring that
certain ethical safeguards are in place. First, the attorney must consider whether the new
case is “the same or a substantially related matter” in which the State’s interests are
“materially adverse to the interests of the former client.” N.D.R. Prof. Conduct 1.9(a). If
the answer is yes, then the attorney must not be involved in the new case unless the former
client consents in writing. If the attorney decides it is appropriate to request consent, the
attorney must exercise great caution. The attorney should fully disclose “the existence,
‘nature and implications of the conflict of interest and the many possible adverse

consequences of consenting to such a prosecution.” ‘TX Eth. Op. 538 (June 2001).

Second, before undertaking the new case, the attorney must evaluate whether it is
possible to meet the requirements of N.D.R. Prof. Conduct 1.9(b). That is, the attorney
must ensure that he or she will not use information obtained during the prior representation
to the former client’s disadvantage or reveal information relating to the representation,
unless there is an applicable exception under the Rules of Professional Conduct.

Finally, the attorney should also avoid involvement in the new case if it would
create an appearance of impropriety or erode public trust in the prosecutor’s office.
Prosecutors have special responsibilities, including “the responsibility of a minister of
justice and not simply that of an advocate.” N.D.R. Prof. Conduct 3.8, Comment 1.

If the attorney concludes that prosecuting the new case would be inappropriate, then
a different prosecutor in the office should be assigned. The attorney with the conflict

should be screened out of any involvement in the case. If none of the other attorneys in

the office can handle the case, or the state’s attorney is a solo practitioner, then the state’s _

attorney should appoint a special prosecutor to perform all prosecutorial duties with respect
to the case.
This opinion was drafted by Renata Olafson Selzer and was unanimously approved

by the Ethics Committee on the 27th day of October 2020.

Ethics Committee Chairperson

This opinion is provided under Rule 1.2(B), North Dakota Rules for Lawyer Discipline,

• which states:

A lawyer who acts with good faith and reasonable reliance on a written
opinion or advisory letter of the ethics committee of the association is not.
subject to sanction for violation of the North Dakota Rules of Professional
Conduct as to the conduct that is the subject of the opinion or advisory letter.