Can a part-time city attorney who prosecutes ordinance violations, or his firm, defend people charged with crimes committed within the city?
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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
The inquiry asked whether a part-time, salaried city attorney, whose duties include prosecuting city ordinance violations and advising the city's police department, may represent persons charged by the State's Attorney for violations occurring within the city limits, and whether members of his firm may take such cases. The committee noted it had answered "no" on several prior occasions.
The committee applied Rule 5-105(a), under which a lawyer must decline employment if his independent professional judgment for an existing client will be, or is likely to be, adversely affected, unless it is obvious he can adequately represent both. Citing Opinions 186, 323, 543, 477, and 291, it reasoned that an actual or apparent conflict results when a city attorney defends a client charged with a crime committed within the city, because many such charges also constitute ordinance violations, and the city's citizens, whom the lawyer represents, have an interest in the prosecution.
On imputation, the committee applied Rule 5-105(d): if a lawyer must decline under Rule 5-105, no member of his firm may accept the employment. Citing Opinion 364 (corporation counsel) and Opinions 455 and 522, it concluded the city attorney is precluded by Rule 5-105(a) from defending such cases, and his firm members are precluded by Rule 5-105(d).
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 Rules (Rules 1.7 and 1.10), 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 Treat this page as historical context, not current guidance.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 part-time city attorney defend someone charged with a crime committed in the city?
A: The opinion concluded no; the city attorney prosecutes ordinance violations and advises the police, so defending a crime committed within the city creates an actual or apparent conflict under Rule 5-105(a).
Q: Does the bar extend to the city attorney's law partners?
A: Yes; under Rule 5-105(d), because the city attorney must decline, no member of his firm may accept the same employment.
Q: Why does the city attorney's prosecutorial role create the conflict?
A: Per the opinion, many crimes prosecuted by the State's Attorney also constitute city ordinance violations, and the city's citizens, whom the lawyer represents, have an interest in the prosecution of those charges.
Background and rules framework
The opinion applied Illinois Code of Professional Responsibility Rule 5-105(a) (declining employment that would adversely affect independent judgment) and Rule 5-105(d) (firmwide imputation). 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, with the government-lawyer dimension addressed by Model Rule 1.11.
Citations and references
Rules of Professional Conduct:
- Illinois Code Rules 5-105(a), 5-105(d) (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); MR 1.11 (government officers and employees)
Other opinions cited:
- ISBA Opinions 186, 323, 543, 477, 291: a city attorney should not defend crimes committed within the municipality
- ISBA Opinions 364, 455, 522: imputation of a government-lawyer's conflict to the firm
See also
- ISBA Ethics Op. 729: Defending With a Prosecutor Partner
- ISBA Ethics Op. 852: Part-Time Municipal Prosecutor Defending Crimes
- ISBA Ethics Op. 871: County Prosecutor in Family Court Defending Others
Source
- Landing page: https://www.isba.org/ethics/opinions/748
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