State Bar Association of North Dakota Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar Association of North Dakota, with full citations and source links on every page.
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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?
Sometimes, but only after a careful Rule 1.9 analysis and safeguards. The committee concluded a prosecutor may handle a case against a former client if the new matter is not the same or substantially …
Can a firm that represents a government entity in unrelated matters defend a private client against that same government entity in a fraud investigation, if both clients consent?
The committee concluded Rule 1.7 does not explicitly prohibit the representation, but applies Rule 1.7(c): because the representation only might be adversely affected, the firm may proceed only if it …
Can a lawyer employed in a non-attorney capacity as a state-court case officer also run a limited real-estate and title practice on the side?
The committee concluded the Rules of Professional Conduct contain no express prohibition on dual practice or second occupations. Rule 5.7 supplies the framework: to the extent the case-officer job is …
When a court asks a public defender about contacts with an absent client, what may the lawyer disclose, and can the lawyer still represent the client on the original and new bail-jumping charges?
A public defender may disclose only nonprivileged facts about contacts with the client, and only when the court orders the answer, not on a mere question, under Rule 1.6(c)(5). On the limited facts, t…
When a lawyer leaves a firm and some clients choose to follow, does the lawyer automatically represent them, and can the lawyer require new fee agreements?
No automatic relationship, but the lawyer may represent them. The committee concluded that clients who chose to follow a departing lawyer are former clients of the old firm, not automatic clients of t…
If a lawyer practices under a temporary North Dakota license through a required supervising associate, can the lawyer take a case the associate must decline for a conflict of interest?
No, absent informed consent. The committee concluded that because a temporarily licensed lawyer must associate with a designated North Dakota attorney who actively participates and shares actual respo…
Is it ethical for a North Dakota lawyer to practice collaborative law, where the lawyer agrees to withdraw if the parties cannot settle and litigation becomes necessary?
Yes. The committee concluded that collaborative law is a permissible limited-scope representation under Rule 1.2(c), so long as the client gives informed consent after being told the process's advanta…
Does a firm's past collection work for a company bar it from defending a lawyer in a disciplinary case arising from that company's later sale?
No, on the facts. The committee concluded the firm's former collection work for the company was not the same as or substantially related to the lawyer's disciplinary proceeding (which arose from a sal…
Can a licensed lawyer who works as a clerk of court take pro bono cases through a volunteer lawyer program, especially defending child-support cases in her own district?
No. The committee concluded that the lawyer's position as clerk of court, her statutory duties to the district judges, her access to the state child-support computer system, and her prior work for the…
Can a firm that represents a city in civil matters also take a contract to defend indigent defendants the city is prosecuting?
No. The committee concluded that a firm which represents the city (through contracts with the city attorney) cannot also serve as contract indigent-defense counsel against the city's own prosecutions.…
Can a state's attorney's office also run the community service program that monitors the sentences it helped obtain?
No. The committee concluded that taking on the community service coordinator role creates an irreconcilable conflict under Rule 1.7, because the program is funded in part by fees from people sentenced…
When an agent under a durable power of attorney hires a lawyer to get a client onto Medicaid, and the agency claims the agent mismanaged the client's money, does that create an unwaivable conflict?
The committee concluded the only client is the Medicaid applicant, not the agent, so the agency's claim that the agent mismanaged funds does not by itself create an unwaivable conflict. It is at most …
If a prosecutor is conflicted out of a matter because it is adverse to a former client, are the other lawyers in the same state's attorney's office also disqualified?
The committee concluded that a state's attorney who formerly represented a party may not handle the office's same matter against that former client under Rule 1.9(a), and that because the lawyers in a…
Does a part-time state's attorney's earlier civil work for someone bar the attorney from later prosecuting that former client?
The committee concluded the question turns on whether the prior civil work is 'substantially related' to the criminal charges, or whether confidential information from it would be used against the for…
If a lawyer's law partner sits on the city council, can the lawyer still defend criminal cases in that city's court?
No. A lawyer who sits on a city council has a non-waivable conflict in defending criminal cases in that city (Opinion 05-06), and Rule 1.10 imputes that conflict to the partner's firm. The committee c…
Can a lawyer let a former client (someone she represented in a mental-health commitment) live in her home to help with the transition to independent living?
The committee concluded that no North Dakota Rule of Professional Conduct directly addresses this and that the arrangement does not violate the rules, so long as the lawyer does not take a position ad…
Can separately located public defender offices run by one state commission be treated as separate law firms, so a conflict in one office is not imputed to the others?
On the facts presented (offices in different cities with separate staff, files, computer systems, and letterhead, no shared access to client confidences, and only administrative oversight by the commi…
Can a lawyer who serves on the city council and its police commission defend criminal cases in that city's court, and can resigning a seat cure the conflict?
The committee concluded a sitting city council member may not defend city cases moved to district court (a non-waivable conflict that requires resigning the council seat to take such cases). Defending…
If opposing counsel in a divorce claims my firm once represented the other spouse, must I withdraw when no clear attorney-client relationship with that spouse was ever formed?
The committee held that, because it does not act as a fact finder and was given no facts showing the other spouse had ever formed an attorney-client relationship with the firm (no express agreement, n…
Can a law firm sue a company it did transactional work for years ago on behalf of a personal-injury plaintiff, when the firm also represents a bank that lent the company money?
The committee concluded the firm could treat the company as a former client because more than two years had passed with no contact, so Rule 1.9 did not bar a new, unrelated personal-injury suit agains…
Does a law firm's earlier insurance-coverage opinion for a company create a conflict that bars the firm from later bringing a shareholder derivative or class action on that company's behalf?
Because a derivative action is brought in the right of the corporation, the committee concluded the firm represented the same client (the company) in both matters, so no Rule 1.9 conflict arose on the…
Can a lawyer who once did legal work for a company later sue that company's parent corporation, or the company itself, on behalf of the company's former owners?
Prior work for a subsidiary does not automatically make its corporate parent a former client; whether the parent counts as a client turns on alter-ego and unity-of-interest factors. On the facts prese…
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Legal ethics opinions from the State Bar Association of North Dakota interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.