Can a lawyer's firm represent a public planning commission on which the lawyer serves as a voting member and committee chair?

Plain-English summary

A lawyer served as a commissioner of a regional planning commission, and as chairman of its loan review committee, which reviewed Small Business Administration loan applications and recommended them to the commission; under newer legislation the commission incurred part of the guarantee liability on approved loans. When a loan was approved, the commission engaged the lawyer's firm to represent it at closing, paying the firm from a charge the commission imposed on the applicant. The committee was asked whether the lawyer had a conflict arising from his official role on the commission and his firm's engagement to represent the commission.

The committee, finding no prior opinion on these facts, reviewed analogous authority: ABA Formal Opinion 181 (1938) (lawyer-receiver whose firm acts as attorney for the receivers has a conflict over both fees), ABA Formal Opinion 272 (1946) (overruling 181 for trustees in bankruptcy because fees are subject to judicial discretion and challenge), ABA Informal Opinion 930 (1966) (no impropriety in serving as both bank director and bank counsel), and ISBA Opinion 483 (1975) (lawyer-director may represent the corporation only with consent after disclosure of the possible loss of privilege and with safeguards against diluting loyalty to the entity).

The committee also pointed to the Illinois Officers Act ("Conflict of Interest Statute"), Section 3(a) of which bars a public officer from being interested in any contract or work on which he may be called to act or vote, and observed that the planning commission was a public or quasi-public body. While declining to interpret the statute conclusively, the committee found the conflict prohibited by Rule 5-101 regardless, because the lawyer was a voting member of the commission that decided to employ him and then passed on the validity and reasonableness of his fee bills. Critically, because a public officer and public body were involved, the committee held that consent after full disclosure was unavailable, since waiver is not possible where the public interest is at stake (citing Opinion 791 and EC 8-6). It concluded that neither the lawyer-commissioner nor any of his partners, associates, or affiliates may represent the commission.

Currency note

This opinion was issued in 1983, 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 In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), and Opinion 90-17, 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 who sits on a public commission have his firm represent that commission?

A: The opinion concluded no; a conflict exists that bars the lawyer-commissioner and all his partners, associates, and affiliates from representing the commission as its attorney.

Q: Can the commission consent to waive the conflict?

A: No. The committee held that where a public officer and a public body are involved, consent after full disclosure is unavailable, because waiver is not possible where the public interest is at stake.

Q: What made the conflict concrete here?

A: Per the opinion, the lawyer was a voting member of the commission that decided to employ him and then approved his fee bills, so he would in effect be advising himself and passing on his own compensation.

Background and rules framework

The opinion applied former Illinois Supreme Court Rule 5-101 (the lawyer's own interest affecting independent judgment) and EC 8-6, against the backdrop of the Illinois Officers Act (Conflict of Interest Statute), Ill. Rev. Stat. ch. 102, Section 3. 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.

Citations and references

Rules of Professional Conduct:

• Illinois Supreme Court Rule 5-101 (applied in the opinion); ISBA EC 8-6
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts, including personal-interest conflicts)

Statutes:

• Ill. Rev. Stat. ch. 102, Section 3 (Illinois Officers Act / Conflict of Interest Statute)

Cases:

• In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (Ill. 1990) (cited in the Board's 2010 affirmation)

Other opinions cited:

• ABA Formal Opinions 181 and 272; ABA Informal Opinion 930 (lawyer serving as fiduciary or director and also as counsel)
• ISBA Opinions 483 (lawyer-director representing the corporation) and 791 (no waiver where the public interest is involved)

See also

• ISBA Ethics Op. 02-01: Lawyer on a Reinsurer's Board
• ISBA Ethics Op. 88-05: Board Seat and a Rival Client
• ISBA Ethics Op. 871: Prosecutor's Private Practice

Source

• Landing page: https://www.isba.org/ethics/opinions/803