Can a part-time assistant state's attorney assigned to civil cases represent private clients on zoning matters before the county board?

Plain-English summary

A part-time assistant state's attorney was assigned civil matters on a case-by-case basis and also ran a private practice from his own office, occasionally representing private clients with zoning matters in the county. The committee was asked whether he could represent such clients on zoning matters before the county board.

The committee applied Rule 5-105 (declining or discontinuing employment where the lawyer's independent judgment for a client will be or is likely adversely affected, with a multiple-representation exception on adequate representation plus consent after full disclosure) and Rule 5-107(a) (undivided fidelity). It reasoned that this assistant owed a duty to the county, was answerable to the county board and to the state's attorney, and that even if there were no per se conflict in the particular legal matters, the question of influences that could be detrimental to either client, and of undivided fidelity, was always present.

The committee distinguished situations where the public and private duties are wholly unrelated, such as an attorney handling only civil matters for the public body who asks whether he can handle private criminal matters. Here, the assistant took direction from the state's attorney, whose office advises the county board on zoning, and civil matters carry a greater potential to impact the board directly than a criminal case. Citing Opinion 298 (a township officer may not represent private clients before township boards) and Opinion 670 (improper to be a part-time assistant public defender while a partner sits on the county board that approves that office's budget), and invoking Canon 9's direction to avoid even the appearance of professional impropriety, the committee concluded the relationship could give rise to that appearance and could not be maintained.

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 July 2010 as generally consistent with the 2010 Rules (Rule 1.7 and Rule 8.4(k) with its Comment [5]), 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 assistant state's attorney handle private zoning work before the county board?

A: The opinion concluded no; his duty to the county and the appearance of impropriety conflict with the undivided fidelity owed to a private client on matters before the board.

Q: Why did this differ from a prosecutor doing unrelated private work?

A: Per the opinion, the assistant took direction from the state's attorney, whose office advises the county board on zoning, so the civil work had a greater potential to impact the board directly than wholly unrelated private matters would.

Q: Did the committee require an actual conflict?

A: No. The committee relied on the potential for detrimental influences and Canon 9's direction to avoid even the appearance of professional impropriety, which it found this relationship could create.

Background and rules framework

The opinion applied former Illinois Code Rule 5-105 (conflicting employment) and Rule 5-107(a) (undivided fidelity), invoking Canon 9 (appearance of impropriety) and prior Opinions 298, 670, and 729. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7 (concurrent conflicts) and Rule 8.4(k) (a lawyer holding public office), corresponding to ABA Model Rule 1.7, with the government-officer dimension addressed by Model Rule 1.11.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 5-105, Rule 5-107(a); Canon 9 (applied in the opinion)
• Illinois RPC 1.7, 8.4(k) with Comment [5] (2010 equivalents per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.11 (government officers and employees)

Other opinions cited:

• ISBA Opinion 298: a township officer may not represent private clients before township boards or committees
• ISBA Opinion 670: improper to serve as part-time assistant public defender while a partner sits on the county board that approves that office's budget
• ISBA Opinion 729: review of conflict rules for part-time public attorneys

See also

• ISBA Ethics Op. 871: Prosecutor's Private Practice
• ISBA Ethics Op. 852: Part-Time Prosecutor's Defense Work
• ISBA Ethics Op. 803: Lawyer-Commissioner Repping the Body

Source

• Landing page: https://www.isba.org/ethics/opinions/789