Can a lawyer defend criminal cases in a county where a partner serves as a part-time Special Assistant State's Attorney handling only civil matters?

Plain-English summary

A partner in a law firm was employed by the county as a Special Assistant State's Attorney to handle the county's tax matters and other civil litigation, with no responsibility for any criminal prosecution. The question was whether another member of the same firm could defend clients charged with crimes in that county.

The committee began with Rule 5-105(d): if one firm member is disqualified by a conflict, all members are. So the issue was whether the partner serving as Special Assistant State's Attorney for civil matters was himself disqualified from defending criminal cases. Drawing on People v. Fife, 76 Ill. 2d 418, where an attorney was a Special Assistant Attorney General for non-criminal matters, the committee noted the court found a conflict only where the client was not informed and did not knowingly waive, with no need to show actual prejudice; an adequately informed client can waive. It reviewed Opinions 335, 374, 364, and 572, which permitted private criminal-defense employment by a Special Assistant Attorney General (or his firm) where the public role was wholly unrelated, while distinguishing a broader-duty role such as corporation counsel.

Because this partner's duties were limited to taxation, not a general advisory role to the county or criminal prosecution, the committee found the position analogous to a Special Assistant Attorney General. Under Canon 5 and Rule 5-101(a), which allow a client to waive a potential conflict after full disclosure, and mindful of a defendant's right to counsel of choice, the committee concluded that so long as the prosecutor-partner's duties stay limited to tax matters, the criminal defendant is informed of the affiliation, the client knowingly waives, and no actual prejudice arises, the firm partner may defend the case.

Currency note

This opinion was issued in 1981, 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 Rule (Rule 1.7), citing also ISBA Opinions 91-1 and 91-22, 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 a lawyer defend criminal cases when a partner is a part-time prosecutor?

A: The opinion concluded yes, where the prosecutor-partner serves as a Special Assistant State's Attorney for civil matters only and has no criminal-prosecution duties, and the criminal defendant is informed and knowingly waives the potential conflict.

Q: Why does the prosecutor-partner's limited role matter?

A: Per the opinion, because his duties were confined to taxation and he had no general advisory or criminal-prosecution responsibility, his position was analogous to a Special Assistant Attorney General whose unrelated public work does not disqualify the firm.

Q: Is a client waiver required?

A: Yes; following People v. Fife, the committee required that the defendant be informed of the affiliation with the State's Attorney's office and knowingly and intelligently waive any potential conflict, with no actual prejudice arising.

Background and rules framework

The opinion applied Illinois Code of Professional Responsibility Canon 5, Rule 5-101(a) (waiver of a potential conflict after full disclosure), and Rule 5-105(d) (firmwide imputation of one lawyer's disqualification), informed by People v. Fife. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7 (concurrent conflicts), corresponding to ABA Model Rule 1.7, with the imputation reflected in Model Rule 1.10 and the government-lawyer dimension in Model Rule 1.11.

Citations and references

Rules of Professional Conduct:

• Illinois Code Canon 5; Rules 5-101(a), 5-105(d) (applied in the opinion)
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.10 (imputation); MR 1.11 (former and current government officers)

Cases:

• People v. Fife, 76 Ill. 2d 418, conflict where a defendant is not informed of counsel's Special Assistant status and does not waive

Other opinions cited:

• ISBA Opinions 335, 374, 364, 572: private criminal-defense employment where a lawyer's public role is wholly unrelated

See also

• ISBA Ethics Op. 871: County Prosecutor in Family Court Defending Others
• ISBA Ethics Op. 852: Part-Time Municipal Prosecutor Defending Crimes
• ISBA Ethics Op. 789: Part-Time Prosecutor in Matters Before the Board

Source

• Landing page: https://www.isba.org/ethics/opinions/729