Can a part-time county public defender represent a private client in a civil suit against the same county?

Plain-English summary

A county's public defender and two assistant public defenders, all part-time, filed a civil action for a private client against the county over alleged wrongful acts of county animal-control personnel. The inquiry asked whether part-time public defenders may represent private clients in litigation adverse to the county.

The committee reviewed the Public Defender Act: public defenders are appointed by the circuit judges, act as counsel for indigent criminal defendants, have their compensation fixed by the county board, and may engage in private practice; an assistant public defender is a public officer. Because the public defenders have no attorney-client relationship with the county, former Rule 5-105 (multiple clients) does not apply. But as public officers whose compensation is set by the county board, they could have an interest in maintaining the county's goodwill, implicating former Rule 5-101(a), which bars accepting employment where the lawyer's professional judgment may be affected by his own personal interests absent client consent after full disclosure.

The committee concluded that the public defenders may not represent a private client against the county unless the client consents after full disclosure of all the facts and circumstances of their relationship with the county. It added that even with consent, they remain subject to former Rule 8-101(a)(2), which bars a lawyer holding public office from using that position to influence a tribunal in favor of himself or a client; the committee lacked sufficient information to opine on whether that provision was violated here.

Currency note

This opinion was issued in January 1988, 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 1.7 and 8.4(k) with its Comment [5]), 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 Treat this page as historical context, not current guidance.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 public defender sue the county on behalf of a private client?

A: The opinion concluded yes, but only with the private client's consent after full disclosure of the public defenders' employment relationship with the county.

Q: Why is consent required if the county is not the lawyer's client?

A: Per the opinion, although there is no attorney-client relationship with the county (so Rule 5-105 does not apply), the public defenders' personal interest in the county's goodwill implicates former Rule 5-101(a)'s personal-interest conflict, curable by client consent after disclosure.

Q: Are there limits even after the client consents?

A: The opinion concluded the public defenders remain subject to former Rule 8-101(a)(2), barring use of public office to influence a tribunal for a client; the committee did not have enough facts to decide whether that rule was implicated.

Background and rules framework

The opinion applied former Illinois Code Rule 5-101(a) (personal-interest conflicts) and Rule 8-101(a)(2) (lawyer holding public office), and the Public Defender Act (Ill. Rev. Stat. ch. 34, par. 5601 et seq.). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 and 8.4(k), corresponding to ABA Model Rules 1.7 and 8.4.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 5-101, 8-101 (former Code, applied in the opinion)
• Illinois RPC 1.7, 8.4(k) (2010 equivalents per the Board's affirmation)
• MR 1.7 (conflicts of interest), MR 8.4 (misconduct)

Statutes:

• Ill. Rev. Stat. ch. 34, par. 5601 et seq. (Public Defender Act)

Cases:

• People ex rel. Cook Co. v. Majewski, 28 Ill. App. 3d 269 (Ill. App. 1st Dist. 1975), assistant public defender is a public officer

See also

• ISBA Ethics Op. 88-06: School Board Member Representing a Client Against the District
• ISBA Ethics Op. 89-18: University Instructor Defending a Terminated Employee

Source

• Landing page: https://www.isba.org/ethics/opinions/8704