Can lawyers in a firm defend criminal cases in a county where their partners serve part-time as prosecutors on unrelated juvenile matters, and can the public entity consent?

Plain-English summary

The inquiring lawyer's firm included partners and associates employed by the county as special assistant state's attorneys whose work was limited to juvenile abuse and neglect proceedings. The firm asked whether its other lawyers could represent clients charged with non-juvenile crimes in that county after obtaining the clients' informed consent.

The committee applied former Rule 5-105(a) and (c): a lawyer must decline employment likely to adversely affect his independent judgment, except where it is obvious he can adequately represent each client and each consents after full disclosure. It reviewed its line of opinions finding no conflict where public and private practices are in different jurisdictions or where the public work is civil and unrelated, and finding a conflict where a criminal defense practice is combined with public criminal-enforcement work in the same jurisdiction. It noted People v. Fife, holding that a conflict existed even where the defense lawyer's public role was civil and unrelated, absent an informed client waiver, and Opinion 729, which followed Fife in allowing the representation only with a knowing client waiver and no actual prejudice.

The committee then reexamined the long-stated "rule," traced to ABA Formal Opinion 16 and Henry Drinker's treatise, that a public entity can never consent because "the public cannot consent." Reviewing In re A & B and In re LaPinska, it observed that those cases involved sole practitioners and dual representation in the same matter, and that no case addressed consent in vicarious-conflict or unrelated-matter situations. Concluding that a per se bar on public-entity consent was neither compelled by the case law nor needed to serve the Code's purposes, the committee held such consent may be appropriate where partners or associates of a part-time public lawyer represent clients adverse to the public entity in unrelated matters, provided the representation is otherwise consistent with the Code, including Canons 7 and 9.

Currency note

This opinion was issued in August 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 firm defend criminal cases where its partners are part-time prosecutors on unrelated matters?

A: The opinion concluded yes, but only with the informed consent of each affected client under former Rule 5-105(c), and where the public work is unrelated to the defense work.

Q: Can the public entity itself consent to the conflict?

A: Per the opinion, yes in this setting; the committee rejected a per se rule that a public entity can never consent, holding such consent may be appropriate where partners take unrelated matters adverse to the entity.

Q: Why did the committee revisit the old "the public cannot consent" rule?

A: It found that the rule, traced to ABA Formal Opinion 16 and Drinker's treatise, arose from cases involving sole practitioners and dual representation in the same matter, and was neither compelled nor necessary for vicarious or unrelated-matter conflicts.

Background and rules framework

The opinion applied former Illinois Code Rule 5-105(a), (c), and (d) (declining conflicting employment, the consent exception, and imputation), and Canons 7 and 9. 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), (c), (d) (conflicts, consent, and imputation, applied in the opinion)
• Illinois Code Canons 7 and 9
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts of interest)

Cases:

• People v. Fife, 76 Ill. 2d 418 (Ill. 1979), conflict despite civil and unrelated public role, absent informed waiver
• In re LaPinska, 72 Ill. 2d 461, 381 N.E.2d 700 (Ill. 1978), city attorney's impermissible dual representation
• In re A & B, 44 N.J. 331, 209 A.2d 101 (N.J. 1965), no consent where the public interest is involved

Other opinions cited:

• ABA Formal Opinion 16; ISBA Opinions 86-2, 852, 823, 791, 748, 729, 522, 455, 374, 364, 335

See also

• ISBA Ethics Op. 86-02: Civil Prosecutor's Defense Work
• ISBA Ethics Op. 86-13: City Counsel Defending Criminals
• ISBA Ethics Op. 90-29: Prosecutor Suing Other Police

Source

• Landing page: https://www.isba.org/ethics/opinions/8604