Can a lawyer who sues some state agencies also represent a different state agency, or is the whole state government one client for conflict purposes?

Plain-English summary

A lawyer who has sued and is currently suing several state agencies under the Governor's jurisdiction over discrimination and employment matters is approached by a different state agency, apparently to be retained. The question is whether, for conflict purposes, each agency is a separate client or whether the entire state government is one client, which would create a conflict.

The Committee applies Rule 1.7(b) (a lawyer may not represent a client if the representation may be materially limited by responsibilities to another client) and Rule 1.13(a) (a lawyer for an organization represents the organization through its constituents). It extends its earlier holding in ISBA Op. 01-07, which concluded that representing one local government unit does not mean representing the entire local government, to state government. Relying on Gray v. Rhode Island Department of Children, Youth and Families, 937 F. Supp. 153 (D.R.I. 1996), and reports from the D.C., New York, and Montana bars, the opinion reasons that treating the whole government as the client would make conflicts "abound" whenever one agency sued another and would raise serious client-control and confidentiality problems.

The opinion concludes there is not one state-government entity composed of all agencies under the Governor, but cautions this does not mean every agency is automatically separate from every other. Whether two agencies are distinct for conflict purposes is decided case by case, considering factors drawn from ISBA Op. 01-07 and ABA Formal Op. 97-405, such as whether each entity has independent legal authority over the matter, whether one agency's representation matters to the other, and whether the same decision-makers are involved. The opinion also notes that under Rule 1.4(b) the lawyer may need to disclose the existing and ongoing lawsuits to the agency that wants to hire him and obtain consent where a conflict is foreseeable.

Currency note

This opinion was issued in 2007, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The cited rules use the pre-2010 numbering; the opinion was affirmed by the ISBA Board of Governors in January 2010 by reference to 2010 Rules 1.4(b), 1.7 and Comment [34], and 1.13(a). Verify against current rules before relying on any specific provision cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that a lawyer is not conflicted merely because the lawyer sues some agencies under the Governor while representing a different state agency, because the state government is not one client for conflict purposes. The opinion makes the separateness of any two specific agencies a fact-specific question turning on independent legal authority, mutual importance, and shared decision-makers, and it points to a possible Rule 1.4(b) duty to disclose the pending suits to the prospective agency client.

Common questions

Q: Is the entire state government one client for conflict-of-interest purposes?

A: No. The opinion concludes the state government is not a single entity composed of all departments under the Governor, so suing one agency does not by itself conflict the lawyer out of representing another.

Q: Does that mean every state agency is automatically a separate client?

A: No. The opinion cautions this is decided case by case, looking at whether each agency has independent legal authority over the matter, whether the representation matters to the other agency, and whether the same decision-makers are involved.

Q: Must the lawyer tell the new agency about the pending lawsuits against other agencies?

A: The opinion concludes that under Rule 1.4(b) the lawyer may have to disclose the existing and ongoing suits and obtain consent where a conflict between the agencies is foreseeable.

Background and rules framework

The opinion interprets Illinois Rule 1.7(b) (material-limitation conflicts), Rule 1.13(a) (organization as client), and Rule 1.4(b) (explaining a matter so the client can make informed decisions). The corresponding Model Rules are MR 1.7, MR 1.13, and MR 1.4. It applies the government-client analysis of ABA Formal Op. 97-405 and Gray v. Rhode Island DCYF.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest) / IL Rule 1.7(b)
• MR 1.13 (organization as client) / IL Rule 1.13(a)
• MR 1.4 (communication) / IL Rule 1.4(b)

Cases:

• Gray v. Rhode Island Dep't of Children, Youth and Families, 937 F. Supp. 153 (D.R.I. 1996), a lawyer for a government agency represents that agency, not the government as a whole

Other opinions cited:

• ISBA Op. 01-07: representing one local government unit is not representing the entire local government
• ABA Formal Op. 97-405: identifying the government client by functional considerations

See also

• ISBA Ethics Op. 12-12: Defending a Government Entity in a Matter Brought by a Law Firm Partner
• ISBA Ethics Op. 13-07: Serving as Both Municipal Prosecutor and Administrative Adjudicator

Source

• Landing page: https://www.isba.org/ethics/opinions/0701