III. ADVOCATE
Rule 3.8 Special Responsibilities of a Prosecutor

A city prosecutor can ethically dismiss a criminal case initiated by an individual's complaint which was allowed by the municipal judge, when requested by the city council due to the cost of paying for court-appointed counsel. Pursuant to case law, a prosecutor's "duty" to initiate prosecution does not arise by the mere submission of a sworn complaint, but only upon the prosecutor's decision, after due inquiry and consideration, that a criminal charge is proper under the circumstances. The prosecutor must exercise discretion and professional judgment in deciding whether to initiate prosecution. The prosecutor may, in certain circumstances and for good cause consistent with the public interest, decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. The prosecutor may also forego legitimate charges already brought in an effort to save the time and expense of trial. Thus, the Committee was of the opinion that the decision of whether to prosecute the criminal complaint lies with the city attorney. His actions cannot be controlled by the city council in its desire to save the cost of court-appointed counsel. However, in making the determination, the prosecutor is entitled to consider the public interest as well as the time and expense of trial.
A states attorney, or other attorneys in his office, are not disqualified from prosecuting a criminal charge against an attorney who actively represents criminal defendants in the same court in which both the states attorney and the attorney-defendant practices. If, however, the states attorney subjectively believes that he, or any other attorneys in his office, has an actual conflict of interest, he should disqualify himself.
A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct.

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