Can a part-time public defender who learns of police misconduct through that work refer the civil case to another lawyer and collect a referral fee?

Plain-English summary

An attorney serving as the part-time public defender for an Illinois county, who also maintained a private practice, asked whether, when evidence of police misconduct came to his attention through his public defender work, he could refer the case to another lawyer and receive a referral fee if there was a recovery.

The committee saw no ethical problem. Although the public defender is technically a county employee in that the county pays his salary, the committee said this is not true in the sense that the county directs his activities or that he owes a duty of loyalty to the county rather than to the accused persons he is appointed to represent. The accused, not the county, are his clients; were it otherwise, no lawyer could ethically discharge a public defender's duties. There was thus no conflict of interest or loyalty, and the attorney could himself represent the indigent defendants in asserting civil claims against police officers and other public officials.

On the referral fee, the committee noted that under the former Code a fee could not be paid to a lawyer who took no part in handling the case, but that the new Code's Rule 2-107 changed this and allows a referral fee so long as there is full disclosure to the client, the referring lawyer retains responsibility, and the rule's other requirements are met. The committee added that a different result might follow where the public defender position is full-time and the defender and his assistants are barred by contract or appointment from private practice, but in that case the disability would flow from the individual's agreement with the county, not from an ethical rule.

Currency note

This opinion was issued in 1982, 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 January 2010 as generally consistent with the 2010 Rule (Rule 1.5(e)), 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 Treat this page as historical context, not current guidance.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 public defender refer a case and collect a referral fee?

A: The opinion concluded yes; with no conflict of interest, he may refer a police-misconduct case to other counsel and receive a referral fee under Rule 2-107, given disclosure and retained responsibility.

Q: Why is there no conflict of interest for the public defender?

A: Per the opinion, the accused persons he is appointed to represent, not the county that pays his salary, are his clients, so referring their civil claims against police does not pit him against his own client.

Q: Would the answer change for a full-time public defender?

A: The committee said a different rule might apply where a full-time defender is barred from private practice, but that any such disability would arise from the individual's agreement with the county, not from an ethical rule.

Background and rules framework

The opinion applied former Illinois Code Rule 2-107 (referral and division of fees with retained responsibility and client disclosure), after concluding there was no conflict of interest because the accused, not the county, were the public defender's clients. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.5(e) (division of fees between lawyers), corresponding to ABA Model Rule 1.5, with the conflict analysis tracking Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-107 (applied in the opinion)
• Illinois RPC 1.5(e) (2010 equivalent per the Board's affirmation)
• MR 1.5 (fees, including division between lawyers under 1.5(e)); MR 1.7 (concurrent conflicts)

See also

• ISBA Ethics Op. 776: "Of Counsel" and Referral Fees
• ISBA Ethics Op. 852: Part-Time Prosecutor's Defense Work
• ISBA Ethics Op. 03-06: Fee Share to Former Partner

Source

• Landing page: https://www.isba.org/ethics/opinions/784