Can a lawyer represent another lawyer in the other lawyer's own case while the two regularly oppose each other on behalf of their clients?

Plain-English summary

Lawyer A and Lawyer B frequently represented clients adverse to each other and were then on opposite sides of several pending cases. Lawyer A wanted to engage Lawyer B to represent A in a suit in which A was a party, and the committee was asked whether B could accept that employment.

The committee revisited its earlier Opinion 724, which had said that an existing lawyer-client relationship between two opposing lawyers created an appearance of impropriety dictating refusal of or withdrawal from employment. On further reflection, the committee found that part of Opinion 724 too definitive. It reasoned that while Canon 9 directs lawyers to avoid the appearance of impropriety, the committee had never intended to hold that the mere existence of circumstances giving rise to such an appearance requires automatic withdrawal or refusal; whether to represent a client where an appearance exists is ultimately a matter for the lawyer's own conscience, guided by the whole Code, including Canon 5.

Turning to the operative rule, the committee noted that Rule 5-105(a) and (b) prohibit accepting or continuing employment where independent professional judgment will be or is likely to be adversely affected, but that Rule 5-105(c) permits multiple representation if the lawyer can obviously represent each client's interest adequately and each consents after full disclosure. Finding nothing to suggest that A's or B's clients would be prejudiced, and no appearance of impropriety that alone would bar the employment, the committee concluded that, because the representation could affect B's independent judgment for clients adverse to A's clients, Rule 5-105(c) compels both lawyers to make full disclosure to the affected clients and obtain their consent (presuming each lawyer, under Canon 4, has authorized the disclosure). To the extent Opinion 724 was inconsistent, the committee overruled it.

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), 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 represent an opposing counsel in that counsel's own case?

A: The opinion concluded yes, provided both lawyers make full disclosure to and obtain consent from the clients whose interests are adverse to the lawyer being represented, because the representation could otherwise affect independent judgment.

Q: Does the appearance of impropriety alone bar the representation?

A: No. The committee held that the mere existence of an appearance of impropriety does not require automatic withdrawal or refusal; the lawyer must weigh the whole Code, and here found no appearance that alone would preclude the employment.

Q: What happened to Opinion 724?

A: The committee found its earlier Opinion 724 too definitive on this point and overruled it to the extent it was inconsistent, replacing the automatic-withdrawal approach with the disclosure-and-consent analysis of Rule 5-105(c).

Background and rules framework

The opinion applied former Illinois Code Canon 5 and Rule 5-105(a), (b), and (c) (declining or continuing conflicted employment, with the multiple-representation exception turning on adequate representation plus consent after full disclosure), and discussed Canon 9 (appearance of impropriety) and Canon 4 (authorizing disclosure of client information). 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 Code Canons 4, 5, 9; Rule 5-105(a), (b), (c) (applied in the opinion)
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts, including personal-interest conflicts)

Other opinions cited:

• ISBA Opinion 724: earlier view that an existing lawyer-client relationship between opposing lawyers required withdrawal; overruled here to the extent inconsistent

See also

• ISBA Ethics Op. 801: Taking a Referral From a Spouse
• ISBA Ethics Op. 870: Representing a Client's Competitor
• ISBA Ethics Op. 790: Suing a Former Joint Client

Source

• Landing page: https://www.isba.org/ethics/opinions/822