Can a city's part-time corporation counsel, or the lawyer's firm, defend people charged under state statutes when the conduct is also a city ordinance violation prosecuted with city police support?

Plain-English summary

A city's ordinances created a law department with a city attorney and a corporation counsel; the corporation counsel performed the statutory duties of that office and acted for the city in specified matters. In private practice, the corporation counsel was asked to defend clients charged with criminally violating state statutes where the alleged acts occurred within the city limits and the citations or indictments were brought or supported by city police officers.

The committee treated conflicts of public attorneys in private practice as the issue it had addressed most often, citing its recent Opinion 86-4 and a string of earlier opinions. Those opinions, grounded in former Rule 5-105(a) (a lawyer must not undertake or continue a representation if another client's interests might impair the lawyer's judgment), recognized that a public employee may accept private employment only in an area wholly unrelated to the lawyer's public duties. The committee found this inquiry most like Opinion 748, which had found it improper for a salaried city attorney or the firm to take criminal defense where the alleged crime occurred within the city, since such charges would also constitute city ordinance violations.

Here the conflict was sharper because the prosecutions were initiated or would be supported by the testimony of the city's own police officers. The committee concluded a conflict existed that disqualified not only the corporation counsel but also the other members of the firm under former Rule 5-105(d), and that the conflict was not waivable by the city under Opinion 86-4's guidelines because the matters were substantially related.

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 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 Treat this page as historical context, not current guidance.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 the corporation counsel personally take this criminal defense work?

A: The opinion concluded no; defending charges that are also city ordinance violations, prosecuted with city police support, conflicts with the lawyer's public role under former Rule 5-105(a).

Q: Does the disqualification extend to the lawyer's firm?

A: Yes. The committee held that under former Rule 5-105(d) the conflict disqualified not only the corporation counsel but also the other members of the firm.

Q: Can the city consent to let the lawyer take the case?

A: No. The committee found the conflict not waivable under Opinion 86-4's guidelines because the matters were substantially related.

Background and rules framework

The opinion applied former Illinois Code Rule 5-105(a) (declining or continuing employment that may impair judgment) and Rule 5-105(d) (imputing one lawyer's disqualification to 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 of the firm)
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts of interest)

Other opinions cited:

• ISBA Opinions 748, 86-4, and 84-11, among others: conflicts of public attorneys accepting private employment

See also

• ISBA Ethics Op. 90-29: Prosecutor Suing Other Police
• ISBA Ethics Op. 87-04: Public Defender vs. the County
• ISBA Ethics Op. 86-12: Ex-Client Officer vs. Defense Work

Source

• Landing page: https://www.isba.org/ethics/opinions/8613