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ISBA 2014

Can a State's Attorney negotiate a labor contract with county police while also calling those officers as witnesses in criminal cases?

Short answer: Yes, after a case-by-case Rule 1.7 conflict analysis. The two roles are generally not directly adverse, but the State's Attorney must check whether the criminal-witness relationships would materially limit the labor representation, and get the county's consent if so.

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This page answers the general question as of 2014. 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 2014
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 Not binding precedent.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 State's Attorney wants to represent the county in union negotiations with county law enforcement personnel, while continuing to call those same officers as witnesses in criminal prosecutions. The committee was asked whether the two roles can coexist, and whether it matters that the State's Attorney negotiates with union officials rather than directly with the officers.

The opinion applies Rule 1.7, the concurrent-conflict rule (a State's Attorney is subject to the rules per Rule 1.11 cmt. 1). The committee begins by identifying the clients: under Section 3-9005 of the Counties Code, a State's Attorney represents the People of the State of Illinois in criminal matters and the county in civil matters. So in a prosecution, the State's Attorney does not represent the officer-witnesses, and representing the county in labor negotiations is not directly adverse to representing the People in criminal cases.

The committee concludes that generally the county representation will not be materially limited by the State's Attorney's interests regarding criminal witnesses, but each lawyer must apply Rule 1.7(a)(2) case by case. The opinion gives an example: in a small county, a close personal or working relationship with an officer could materially limit the State's Attorney's ability to represent the county against that officer in labor negotiations. Where that occurs, the State's Attorney must determine whether the representation can continue with the county's informed consent under Rule 1.7(b). The same analysis applies whether the negotiation is with the officers directly or with union officials. The committee also directs the State's Attorney to check any other statutes or regulations on conflicts and confidential information.

In practice

Under this opinion, an Illinois State's Attorney is not categorically barred from representing the county in police labor negotiations while prosecuting cases that use those officers as witnesses. The opinion holds that the two roles are generally not directly adverse, but each matter must be evaluated under Rule 1.7(a)(2) for a material-limitation conflict (for example, a close relationship with an officer in a small county), and if such a conflict exists the representation may continue only with the county's informed consent under Rule 1.7(b). The opinion directs the lawyer to also check other applicable conflict statutes and regulations.

Common questions

Q: Who is the State's Attorney's client in a criminal case versus a civil matter?

A: Per the opinion and Section 3-9005 of the Counties Code, the State's Attorney represents the People of the State of Illinois in criminal matters and the county in civil matters, so the officer-witnesses are not the State's Attorney's clients.

Q: Is calling officers as witnesses while negotiating against their union a conflict?

A: Generally not directly adverse, but the opinion requires a case-by-case Rule 1.7(a)(2) analysis of whether the criminal-witness relationships would materially limit the labor representation.

Q: Does negotiating through union officials instead of the officers change the analysis?

A: No. The opinion states the same Rule 1.7 analysis applies whether the State's Attorney negotiates directly with the officers or with union officials.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.7 (concurrent conflicts; Model Rule 1.7), with Rule 1.11 (government lawyers; Model Rule 1.11) confirming that a State's Attorney is subject to the conflict rules. The client-identification step rests on Section 3-9005 of the Illinois Counties Code (55 ILCS 5/3-9005).

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 1.7 (Model Rule 1.7): concurrent conflicts of interest
  • Illinois RPC 1.11 (Model Rule 1.11): special conflicts for government lawyers

Statutes:

  • Illinois Counties Code, 55 ILCS 5/3-9005: powers and duties of the State's Attorney

See also

Source

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