Can a part-time assistant state's attorney who handles only civil matters, and the lawyer's firm, defend criminal cases in other counties?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
An attorney was an assistant state's attorney in County A, responsible primarily for civil matters, and was also a member of a six-lawyer firm that did no criminal work in County A. The firm was asked from time to time to represent defendants charged with crimes in counties other than A. The committee was asked whether the assistant state's attorney and his partners could do so.
The committee applied former Rule 5-105(a), barring a representation that might impair the lawyer's professional judgment because of another client's interests, and Rule 5-105(d), imputing such a disqualification to the lawyer's partners and associates. It surveyed its prior opinions: Opinion 729 had allowed a partner to defend a criminal prosecution even though another partner was a special assistant state's attorney responsible for civil matters only, and Opinion 852 had allowed part-time municipal attorneys who prosecuted local traffic charges to defend state traffic and criminal charges arising outside the municipality. By contrast, Opinions 737 and 291 barred private practice before the county officials or in the village where the lawyer held office.
The committee found this inquiry controlled by Opinions 729 and 852: because the lawyer and his partners handled no criminal work in the county where he served, and his post was primarily civil, accepting criminal defense work in other counties did not present a per se conflict barred by the Code.
Currency note
This opinion was issued in July 1986, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 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 Treat this page as historical context, not current guidance.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 part-time civil-only prosecutor defend criminal cases at all?
A: The opinion concluded yes, where the defense work arises in a county other than the one the lawyer serves and the lawyer's public duties are confined to civil matters; there was no per se conflict.
Q: Does the disqualification analysis extend to the lawyer's partners?
A: Yes. The committee applied former Rule 5-105(d), which imputes a 5-105(a) disqualification to partners and associates, but found no disqualifying conflict on these facts.
Q: Would the answer differ if the criminal cases arose in the lawyer's own county?
A: The committee's prior opinions found conflicts where a private criminal defense practice was combined in the same jurisdiction with public criminal-enforcement work; this opinion turned on the work being in other counties.
Background and rules framework
The opinion applied former Illinois Code Rule 5-105 (declining conflicting employment) and Rule 5-105(d) (imputed disqualification of the firm). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7, corresponding to ABA Model Rule 1.7 on concurrent conflicts of interest.
Citations and references
Rules of Professional Conduct:
- Illinois Code Rule 5-105(a) (conflicting employment, applied in the opinion)
- Illinois Code Rule 5-105(d) (imputed disqualification)
- Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
- MR 1.7 (concurrent conflicts of interest)
Other opinions cited:
- ISBA Opinions 729, 852, 823, 737, 291: conflicts of part-time public attorneys in private practice
See also
- ISBA Ethics Op. 86-04: Firm's Prosecutors and Defense Work
- ISBA Ethics Op. 90-29: Prosecutor Suing Other Police
- ISBA Ethics Op. 86-13: City Counsel Defending Criminals
Source
- Landing page: https://www.isba.org/ethics/opinions/8602
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