Can a firm use screening to avoid imputing one existing partner's conflict to another partner in the same firm?

Plain-English summary

In 2003, while a solo practitioner, Attorney A served as a guardian ad litem in a visitation matter involving very young children. Attorney A later married Attorney B, and in 2013 they formed the A&B firm. The father in the old matter now asks Attorney B to handle child custody and abatement of child support, and the firm has a standing procedure to screen Attorney B from Attorney A's prior solo work. The question is whether Attorney B is disqualified.

The opinion first analyzes Attorney A's GAL role. Under Section 506 of the Illinois Marriage and Dissolution of Marriage Act, a GAL serves an investigative function and does not form an attorney-client relationship with the child, so Rule 1.9(a) (duties to a former client) does not literally apply because A never "formerly represented a client." But Illinois Supreme Court Rule 907(a) requires every GAL, child representative, and attorney for a child to follow the ethics rules and avoid conflicts, so Attorney A, practicing alone, would be barred by the logic of Rule 1.9(a) from later representing either parent in a subsequent custody matter.

The opinion then turns to imputation. Because Attorney A's conflict is not based on a personal interest, it is imputed to Attorney B under Rule 1.10(a). The decisive question is whether the screening provision in Rule 1.10(e) removes that imputation. Tracing the history of the rule, the opinion explains that Illinois adopted private-firm screening in 1990, but only for a lawyer "becom[ing] associated with a firm." When the ABA finally added private-firm screening in 2009 with broader "while lawyers are associated in a firm" language, Illinois (effective January 2010) instead adopted the narrower formulation the ABA had rejected in 2001, keeping "when a lawyer becomes associated with a firm" in Rule 1.10(e). The opinion notes Illinois Rule 1.10(a)'s general imputation uses the broad "while lawyers are associated" language, but the screening exception in 1.10(e) uses the narrow "becomes associated" language, and says that is not a distinction without a difference. It concludes the Illinois screening provision applies only when a newly associated lawyer joins a firm, so it cannot relieve Attorney B; Attorney A's conflict is imputed and Attorney B is disqualified.

In practice

Under this opinion, an Illinois firm cannot cure an existing member's imputed conflict by screening; the opinion holds Rule 1.10(e) screening is available only for a lawyer who becomes newly associated with the firm. It holds that a Section 506 GAL does not form an attorney-client relationship but, under Supreme Court Rule 907(a), must still avoid conflicts as if Rule 1.9(a) applied, so the GAL could not later represent a parent in the same custody matter. Because that disqualification is not personal to the GAL, the opinion holds it is imputed to the partner under Rule 1.10(a) and the firm's internal screen does not remove it. The opinion notes the Illinois screening rule is narrower than the ABA Model Rule, which uses broader "while lawyers are associated in a firm" language.

Common questions

Q: Can my firm screen off one partner's conflict from the rest of us?

A: Not if the conflict belongs to an existing member. The opinion concludes Illinois Rule 1.10(e) screening applies only to a newly associated lawyer, so an existing partner's conflict is imputed to the firm.

Q: Does a former guardian ad litem have a conflict in a later custody case?

A: The opinion concludes that although a Section 506 GAL has no attorney-client relationship, Supreme Court Rule 907(a) requires the GAL to avoid conflicts, so the GAL could not later represent a parent in the same matter.

Q: Is the Illinois screening rule the same as the ABA Model Rule?

A: No. The opinion explains Illinois kept the narrower "when a lawyer becomes associated with a firm" language, while the ABA Model Rule uses the broader "while lawyers are associated in a firm."

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.10 (imputation of conflicts, including the 1.10(e) screening provision), Rule 1.9(a) (duties to former clients), and Rule 1.6 (confidentiality), together with Illinois Supreme Court Rule 907(a) (ethics duties of GALs and child representatives) and Section 506 of the Illinois Marriage and Dissolution of Marriage Act. These correspond to Model Rules 1.10 and 1.9.

Citations and references

Rules:

• Illinois RPC 1.10(a), (e) (MR 1.10): imputation and screening
• Illinois RPC 1.9(a) (MR 1.9): duties to former clients
• Illinois RPC 1.6 (MR 1.6): confidentiality of information
• Illinois Supreme Court Rule 907(a); Rule 506: ethics duties and appointment of GALs

Statutes:

• 735 ILCS 5/506: guardian ad litem and child-representative appointments

See also

• NY State Bar Op. 1186: Legal Aid Society Screening and Separate Law Firms
• NY State Bar Op. 1064: Former Judge Conflict and Firm Screening
• ISBA Ethics Op. 13-06: Obligations of a Lawyer Acting as a Guardian ad Litem in Adoptions

Source

• Landing page: https://www.isba.org/ethics/opinions/1802