Can two lawyers in the same firm separately represent a city and a park district located within it?

Plain-English summary

A small city employed Partner A as part-time city attorney; Partner B of the same firm was then appointed part-time attorney for a park district located within the city. The two units were governed by separate boards, operated under different rules and statutory authority, and had no history of direct conflict. The question was whether one firm representing both units created a conflict of interest.

The Committee first asked whether the city and the park district were separate clients. Following ABA Formal Opinion 97-405, it treated related government entities under the same analysis used for corporate affiliates: the client's identity may be inferred from whether each entity has independent legal authority over the matter, whether representing one is of importance to the other, and whether the same decision-makers are involved. Because the city and park district had separate boards, separate rules and statutory authority, presumably separate supervisors and funding, and no general importance to each other, the Committee treated them as separate clients.

The Committee then applied Rule 1.7. There was no current direct adversity, so the mere possibility of a future dispute did not create a Rule 1.7(a) conflict; and because the units were not adverse on any present matter, neither partner appeared materially limited under Rule 1.7(b). If the units later became directly adverse, both partners would have to disclose the conflict and obtain consent or withdraw from both representations. The Committee added that to the extent a partner foresaw a future conflict, Rule 1.4(b) might require informing the clients of the potential conflict and its limits, including that the clients would have to seek other counsel if a conflict were unwaivable or consent were refused.

Currency note

This opinion was issued in 2002, before Illinois adopted its current Rules of Professional Conduct, effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. The ISBA notes the opinion was affirmed by its Board of Governors in January 2010 as generally consistent with the 2010 Rules (it points to current Rules 1.4, 1.7 with Comment [34], and 1.13 with Comment [9]), though the specific standards may differ. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that two lawyers in one firm may separately represent two distinct local government units where the units are separate clients and not currently directly adverse. It identifies the operative factors for separateness (independent legal authority, separate boards and rules, separate decision-makers and funding, and the lack of mutual importance) drawn from ABA Formal Opinion 97-405's affiliate analysis, and treats the mere possibility of a future dispute as insufficient to create a Rule 1.7(a) conflict, while noting a Rule 1.4(b) duty to disclose foreseeable conflicts and the limits they would impose.

Common questions

Q: Are a city and a park district within it the same client for conflict purposes?

A: Not necessarily. The Committee concluded that, applying ABA Formal Opinion 97-405's affiliate analysis, the units were separate clients because they had separate boards, rules, statutory authority, and presumably separate supervisors and funding.

Q: Does the chance of a future dispute between the units create a conflict now?

A: No. The opinion concludes that the mere possibility of a future dispute does not give rise to a Rule 1.7(a) conflict where there is no current direct adversity.

Q: What must the lawyers do if a conflict becomes foreseeable or actual?

A: The Committee concluded that a foreseeable conflict may trigger a Rule 1.4(b) duty to inform the clients of the potential limits, and that an actual direct adversity would require disclosure and consent or withdrawal from both representations.

Background and rules framework

The opinion applied Illinois Rule 1.7(a) and (b) (conflicts among current clients) and Rule 1.4(b) (communication sufficient for informed decisions), corresponding to ABA Model Rules 1.7 and 1.4, and relied on ABA Formal Opinion 97-405 for determining when related government entities are separate clients.

Citations and references

Rules of Professional Conduct:

• Illinois Rules 1.4(b), 1.7(a), 1.7(b) (Model Rules 1.4, 1.7)

Other opinions cited:

• ABA Formal Opinion No. 97-405 (conflicts involving government entities)

See also

• ISBA Ethics Op. 17-05: In-House Counsel Representing Multiple Subsidiaries
• ISBA Ethics Op. 13-07: Lawyer as Both Municipal Prosecutor and Administrator

Source

• Landing page: https://www.isba.org/ethics/opinions/0107