Can an Illinois city attorney keep advising the plan commission and city council after a partner in the same firm appears before those bodies to oppose a zoning change?

Plain-English summary

The inquiring lawyer is a city attorney whose firm represents the city; the lawyer sits with and advises the city council and plan commission. A partner in the firm personally opposes a zoning change in the partner's own neighborhood and has appeared and spoken against it before both the plan commission and the council. The lawyer asked whether the partner may appear before bodies the lawyer advises, whether the lawyer may keep advising those bodies on matters where a partner advocates a position, and whether the lawyer must resign to avoid the appearance of conflict or impropriety.

The opinion applies Rule 1.7 and Rule 1.10. Anyone may appear pro se before a public body, but where that person is a lawyer in a firm the appearance can create a conflict for the firm. If the partner is attacking an enacted zoning provision, the partner is acting directly adverse to the city under Rule 1.7(a)(1); a lawyer may not act against a current client even in a wholly unrelated matter (Comment 6), and the city attorney's recusal does not change that. If the partner is only advocating a policy position, there is still a Rule 1.7(a)(2) conflict where the lawyer's representation of the commission or city would be materially limited by responsibilities to the partner or the lawyer's personal interest in not alienating the partner, because the lawyer is unlikely to give detached, objective advice on the partner's matter (citing ISBA Op. 11-04). Either way, the partner's conflict is imputed to the whole firm under Rule 1.10(a), so the lawyer may not continue representing the city absent informed consent.

The opinion holds the firm may nonetheless continue in unrelated matters under Rule 1.7(b) if the lawyer reasonably believes it can keep providing competent and diligent representation and the commission and city give informed consent. It notes "reasonably believes" (Rule 1.0(i)) must be objectively reasonable and "informed consent" (Rule 1.0(e)) requires disclosure of the material risks. Illinois permits public entities to consent to their counsel's conflicts (Miller v. Norfolk & Western). Even if the partner's opposition is treated as litigation, Rule 1.7(b)(3) does not bar consent where the city is separately represented in that matter by outside counsel, since the clients are not aligned directly against each other in the same proceeding before the firm.

On the third question, the opinion concludes (following Op. 12-12) that the "appearance of impropriety" is no longer a standard of lawyer conduct in Illinois. It adds that Rule 3.9 (added to the Illinois rules in 2010) requires a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding to disclose the representative capacity and to comply with the candor and fairness duties of Rules 3.3(a)-(c) and 3.4(a)-(c); so if the partner appears to represent himself or others opposing the change, Rule 3.9 applies. The opinion notes it addresses only the Rules of Professional Conduct, and that Illinois statutes and local ordinances on public-entity conflicts may also be relevant.

In practice

The opinion holds that a partner's appearance against the firm's municipal client is a Rule 1.7 conflict imputed firm-wide under Rule 1.10, whether the appearance is directly adverse (1.7(a)(1)) or only materially limiting (1.7(a)(2)), and that the city attorney's recusal does not cure it because conflicts run to clients, not matters. It permits the firm to continue in unrelated matters under Rule 1.7(b) on an objectively reasonable belief it can stay competent and diligent plus the commission's and council's informed consent, noting Illinois public entities may consent. It holds the "appearance of impropriety" is no longer an Illinois disciplinary standard, and that a partner appearing before the commission or council in a representative capacity must comply with Rule 3.9. The opinion cautions that statutes and local ordinances on public-entity conflicts may also apply.

Common questions

Q: Does a partner appearing against the city conflict out the firm's city-attorney work?

A: Yes, absent consent. The opinion holds the partner's appearance is a Rule 1.7 conflict (directly adverse under 1.7(a)(1) if attacking an enacted provision, or materially limiting under 1.7(a)(2) if advocating a policy position) that Rule 1.10(a) imputes to the whole firm.

Q: Does the city attorney recusing from the partner's matter fix the conflict?

A: No. The opinion explains conflicts are determined with respect to clients, not particular matters, so recusal from the commission's or council's consideration of the partner's zoning matter does not remove the conflict.

Q: Can the firm keep handling the city'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 the commission and city give informed consent; Illinois allows public entities to consent to their counsel's conflicts.

Q: What must the partner do when appearing before the commission or council?

A: If appearing for himself or others, the partner must comply with Rule 3.9: disclose that the appearance is in a representative capacity and conform to the candor and fairness duties of Rules 3.3(a)-(c) and 3.4(a)-(c).

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 the Rule 1.0(i) definition of "reasonably believes," and applies Rule 3.9 (advocate in nonadjudicative proceedings; Model Rule 3.9). It draws on Illinois authority that public entities may consent to their counsel's conflicts and on the Rule 1.7(b)(3) limit on consent where clients are aligned against each other in the same proceeding before the same firm.

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
• Illinois RPC 3.9 (advocate in nonadjudicative proceedings) / MR 3.9

Cases:

• Miller v. Norfolk & Western Railway Co., 183 Ill. App. 3d 261, 538 N.E.2d 1293 (4th Dist. 1989), public entities may consent to counsel's conflicts

Other authorities:

• Restatement (Third) of the Law Governing Lawyers § 122, cmt. g (2000)

Other opinions cited:

• ISBA Opinions 12-12, 11-04, 09-02, 94-21, 86-4

See also

• ISBA Ethics Op. 12-12: A Partner's Proceeding Against the Firm's Government Client
• NYC Bar Ethics Op. 2004-03: Government Lawyer Conflicts Representing a Government Agency
• NY State Bar Op. 510: Deputy Town Supervisor Representing Against the Town
• RI EAP Op. 2003-06: Representing a Town in Litigation Conflicts With Existing Zoning and Planning Board Clients

Source

• Landing page: https://www.isba.org/ethics/opinions/1213