Does representing a police officer in a disciplinary case bar a lawyer from later defending criminal cases investigated by that department or officer?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had represented a police officer in a concluded administrative disciplinary proceeding that ended with the officer keeping employment. The lawyer was then asked to defend persons charged with crimes in cases investigated by the same police department, and possibly by the officer the lawyer had defended. The inquiry asked whether either representation created a disqualifying conflict.
The committee distinguished its earlier Opinion 477 (1976), which barred a lawyer who represented a police association and its members on a continuing basis from defending criminal cases investigated by that department. Here, by contrast, the committee found only a one-time or at most occasional, concluded engagement, with no ongoing relationship. It analyzed the question under former Rule 5-105, which governs when a lawyer's independent professional judgment may be impaired by another client's interests, and former Rule 4-101 on confidences. Because the disciplinary matter and the criminal cases did not arise from the same facts, and the criminal defendants were not parties or witnesses to the disciplinary proceeding, the committee saw no relationship between the matters.
Citing Opinion 753 (1981), the committee concluded that the Code does not bar a lawyer from handling a matter adverse to a former client unless the lawyer gained special knowledge through the relationship, or the matters share a factual background, or facts from one case could be used to the former client's disadvantage in the other. Absent such a connection, no conflict barred the criminal defense work.
Currency note
This opinion was issued in January 1987, 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 Rules (Rules 1.6 and 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: Did representing the officer in a disciplinary case bar defending criminal cases probed by the department?
A: The opinion concluded no, where the representation was concluded and one-time and the matters were unrelated; it distinguished the continuing-relationship situation barred in Opinion 477.
Q: What if the same officer investigated the new criminal case?
A: Per the opinion, that alone did not disqualify the lawyer absent a factual connection between the matters or confidential information from the disciplinary case that could affect the criminal case.
Q: When would a former-client conflict arise?
A: Citing Opinion 753, the opinion concluded a conflict arises if the lawyer gained special knowledge through the relationship, the matters share a factual background, or facts from one could disadvantage the former client in the other.
Background and rules framework
The opinion applied former Illinois Code Rules 5-105 (declining or continuing employment that impairs independent judgment) and 4-101 (confidences of a client). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.6 and 1.7, corresponding to ABA Model Rules 1.6 (confidentiality), 1.7 (current-client conflicts), and 1.9 (duties to former clients).
Citations and references
Rules of Professional Conduct:
- Illinois Code Rules 5-105 and 4-101 (former Code, applied in the opinion)
- Illinois RPC 1.6 and 1.7 (2010 equivalents per the Board's affirmation)
- MR 1.6 (confidentiality); MR 1.7 (current-client conflicts); MR 1.9 (former-client duties)
Other opinions cited:
- ISBA Opinion 477 (1976): continuing representation of a police association and its members
- ISBA Opinion 753 (1981): when a matter adverse to a former client is barred
See also
- ISBA Ethics Op. 88-02: Screening a Side-Switching Lawyer
- ISBA Ethics Op. 90-04: Former Judge Now Representing
- ISBA Ethics Op. 92-22: Using Former-Client Information
Source
- Landing page: https://www.isba.org/ethics/opinions/8612
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