Can different lawyers in the same public defender's office represent co-defendants who have an actual conflict, and does a court 'gag order' cure it?

Plain-English summary

A public defender and his four full-time assistants worked out of the same office, with the assistants supervised by the public defender and a free interchange of duties on cases. The inquiry asked whether separate attorneys in that office could represent co-defendants where an actual conflict exists, and whether a judge's order forbidding the public defender to discuss the cases with his assistants relieved the public defender of responsibility for the assistants' actions.

The committee relied on Opinion 620, which had found a conflict where a public defender's office represented co-defendants and one wished to plead guilty while the other did not, to be resolved by withdrawal from one. It noted that the 1980 Supreme Court Code was substantially identical to the prior ISBA Code, except that Rule 5-105(d) now extended imputed disqualification to "any other lawyer affiliated with him or his firm," which strengthened Opinion 620's application to a public defender's office. The committee concluded that separate attorneys in the office cannot represent conflicted co-defendants unless it is obvious the office can adequately represent each and each consents after full disclosure under Rule 5-105(c).

On the second question, the committee concluded a "gag order" would not relieve the public defender or his assistants of their responsibility under Rule 5-105. The Code had been adopted by the Illinois Supreme Court as rules of court and takes precedence over any order of an inferior court, and a gag order would not eliminate the appearance of impropriety addressed by Canon 9 and Rule 9-101.

Currency note

This opinion was issued in 1980, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.7 and 1.10), citing also People v. Robinson, 79 Ill. 2d 147 (1980), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can different lawyers in one public defender's office represent conflicted co-defendants?

A: The opinion concluded no, where an actual conflict exists, unless it is obvious the office can adequately represent each co-defendant and each consents after full disclosure under Rule 5-105(c).

Q: Does a court gag order between the public defender and assistants cure the conflict?

A: Per the opinion, no; the Code is adopted as rules of court that take precedence over an inferior court's order, and a gag order would not eliminate the appearance of impropriety.

Q: Why does the conflict reach the whole office?

A: The committee pointed to Rule 5-105(d), which extends a required disqualification to any lawyer affiliated with the lawyer or firm, an addition that strengthened the rule's application to a public defender's office.

Background and rules framework

The opinion applied Illinois Code of Professional Responsibility Rule 5-105 (declining or withdrawing from conflicting employment), including Rule 5-105(c) (consent after full disclosure) and Rule 5-105(d) (imputation to affiliated lawyers), and Canon 9 with Rule 9-101 (appearance of impropriety). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 (concurrent conflicts) and 1.10 (imputation of conflicts), corresponding to ABA Model Rules 1.7 and 1.10.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 5-105 (including 5-105(c), (d)); Canon 9; Rule 9-101 (applied in the opinion)
• Illinois RPC 1.7, 1.10 (2010 equivalents per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.10 (imputation of conflicts)

Cases:

• People v. Robinson, 79 Ill. 2d 147 (1980), public-defender office and co-defendant conflicts (cited in the Board's affirmation)

Other opinions cited:

• ISBA Opinion 620: a public defender's office may not represent co-defendants with conflicting plea positions

See also

• ISBA Ethics Op. 748: A City Attorney Defending Crimes Charged in the City
• ISBA Ethics Op. 729: Defending With a Prosecutor Partner
• ISBA Ethics Op. 871: County Prosecutor in Family Court Defending Others

Source

• Landing page: https://www.isba.org/ethics/opinions/698