Ezel / Ethics Opinions / ISBA
ISBA 2012

Can an Illinois lawyer keep representing a school district when a partner in the same firm has brought a proceeding against the district?

Short answer: Only with informed consent. The partner's proceeding is directly adverse to a current firm client, creating a Rule 1.7 conflict imputed to the whole firm under Rule 1.10; recusing from the matter does not cure it because conflicts run to clients, not matters. The firm may continue in unrelated matters only if it reasonably believes it can stay competent and diligent and both the school board and the partner give written informed consent. 'Appearance of impropriety' is no longer an Illinois disciplinary standard.

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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2012
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer who is a partner in a firm regularly represents a school district. Another partner has brought a due-process proceeding against the district to require it to place the partner's child in a private school. The inquiring lawyer has excused himself from school board sessions discussing his partner's matter, and the board is separately represented in that matter by special counsel. Some in the community say the situation creates an appearance of impropriety requiring the firm to withdraw. The lawyer asked whether he may continue representing the district in other matters and whether he must resign to avoid an appearance of conflict.

The opinion applies Rule 1.7 and Rule 1.10. The partner's proceeding is "directly adverse" to the district, a current firm client, producing a Rule 1.7(a)(1) conflict; it does not matter that the inquiring lawyer recused himself or that the proceeding is unrelated to the firm's other district work, because a lawyer may not act against a current client even in a wholly unrelated matter (Comment 6). The partner's conflict is imputed to every firm lawyer under Rule 1.10(a), so the inquiring lawyer may not continue any district representation absent informed consent. The opinion adds that if the partner had retained outside counsel for his own proceeding, the inquiring lawyer would still have a Rule 1.7(a)(2) material-limitation conflict, since he could not plausibly give detached advice about his partner's matter (citing ISBA Op. 11-04). Because conflicts run to clients, not matters, recusal does not remove the conflict.

The opinion holds the firm may nonetheless continue representing the district in unrelated matters under Rule 1.7(b) if the inquiring lawyer reasonably believes the firm can keep providing competent and diligent representation and both the school board and the partner give informed consent confirmed in writing. It notes "reasonably believes" (Rule 1.0(i)) requires an objectively reasonable belief, and "informed consent" (Rule 1.0(e)) requires adequate disclosure of the material risks. Because the district is separately represented in the partner's proceeding, Rule 1.7(b)(3) does not bar consent (the clients are not aligned against each other in the same proceeding before the same firm). Illinois permits public entities to consent to their counsel's conflicts.

On the second question, the opinion concludes the "appearance of impropriety" is no longer a standard of lawyer conduct in Illinois. The concept came from Canon 9 of the 1980 Code, was dropped from the 1983 ABA Model Rules and the 1990 Illinois Rules as subjective and question-begging (Schwartz v. Cortelloni), and does not appear in the 2010 Illinois Rules.

In practice

The opinion holds that a partner's directly adverse proceeding against a current firm client is a Rule 1.7 conflict imputed firm-wide under Rule 1.10, not cured by recusal, so the firm cannot continue without consent. It permits continued representation in unrelated matters under Rule 1.7(b) on the firm's objectively reasonable belief it can stay competent and diligent plus written informed consent from both the school board and the partner, noting Illinois allows public entities to consent. It holds the "appearance of impropriety" is no longer an Illinois disciplinary standard, while cautioning that statutes and local rules on public-entity conflicts may still apply.

Common questions

Q: Does one partner suing a client conflict out the whole firm?

A: Yes. The opinion holds the partner's directly adverse proceeding is a Rule 1.7(a)(1) conflict imputed to every firm lawyer under Rule 1.10(a), so absent consent no firm lawyer may continue representing the client.

Q: Does recusing from the matter fix the conflict?

A: No. The opinion explains conflicts are determined with respect to clients, not matters, so the inquiring lawyer's recusal from school board discussions of the partner's proceeding does not remove the conflict.

Q: Can the firm keep handling the client's unrelated matters?

A: Yes, with consent. Rule 1.7(b) permits it if the lawyer reasonably believes the firm can provide competent and diligent representation and both the school board and the partner give informed consent confirmed in writing.

Q: Must the firm withdraw to avoid an "appearance of impropriety"?

A: No. The opinion concludes the "appearance of impropriety" is no longer a standard for lawyer discipline in Illinois, tracing its removal from the rules through Schwartz v. Cortelloni and the 2010 Illinois Rules.

Background and rules framework

The opinion interprets Illinois Rules 1.7 (concurrent conflicts; Model Rule 1.7) and 1.10(a) (imputation; Model Rule 1.10), with the Rule 1.0(e) definition of "informed consent" and Rule 1.0(i) definition of "reasonably believes." It addresses the consentability limits of Rule 1.7(b)(3) and Illinois authority that public entities may consent to their counsel's conflicts, and traces the elimination of the "appearance of impropriety" standard from the Illinois rules.

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 1.7 (concurrent conflicts) / MR 1.7
  • Illinois RPC 1.10(a) (imputation) / MR 1.10
  • Illinois RPC 1.0(e), 1.0(i) (informed consent; reasonably believes) / MR 1.0

Cases:

  • Schwartz v. Cortelloni, 177 Ill. 2d 166, 685 N.E.2d 871 (1997), rejection of "appearance of impropriety" standard
  • In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), lawyer-legislator may not represent adverse to own government unit
  • Miller v. Norfolk & Western Railway Co., 183 Ill. App. 3d 261, 538 N.E.2d 1293 (4th Dist. 1989), public entities may consent

Other opinions cited:

  • ISBA Opinions 11-04, 09-02, 94-21, 86-4

See also

Source

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