Can an assistant state's attorney who handles all of a county's family court matters also represent private divorce clients in that same county?

Plain-English summary

An Assistant State's Attorney was responsible for all family court matters in a county and also maintained a private practice handling marriage dissolution cases in that same county. The lawyer declined contested-custody cases and took only matters with no minor children or with undisputed custody and support, imposing limits such as representing only the spouse who would have custody, advising clients that no criminal non-support case could later be filed, filing any non-compliance proceeding as a civil Rule to Show Cause without charge, and withdrawing if the opposing spouse sought a custody change. The committee was asked whether the lawyer could ethically represent dissolution clients under those conditions, with or without children involved.

The committee concluded the private representation was inappropriate in either situation. It relied on prior opinions (503, 572, 729) holding that an Assistant State's Attorney may accept private employment only in an area wholly unrelated to areas in which the lawyer might have public duties, and on the principle from Opinion 729 that the relevant inquiry is whether a conflict may exist, not whether one necessarily exists. The committee tied this to Code Rules 5-101(a) and 5-105, which bar accepting employment where the lawyer's independent judgment might be affected by personal financial or business interests or by another client's interests, and to EC 8-6, under which a lawyer who is a public officer should not engage in activities where personal or professional interests may conflict with official duties.

For dissolutions involving custody or support, the committee found a clear prohibition: even matters settled by agreement may resurface in later non-compliance proceedings in which the State's Attorney's office would participate, and this lawyer would be the very person responsible for prosecuting those issues (citing Opinion 503). The lawyer's self-imposed limits did not negate the conflict and, by foreclosing criminal non-support proceedings, were in some respects inconsistent with the duty to the public. For dissolutions not involving children, the committee found a lesser but still disqualifying potential for conflict, because the office might later prosecute a spouse on facts related to the dissolution, for example under the Illinois Domestic Violence Act (citing Opinion 277) or in enforcing maintenance when a recipient goes on public aid.

Currency note

This opinion was issued in 1984, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 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, and noting Opinion 91-1. 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 an assistant state's attorney privately handle divorces in the county where they oversee family court?

A: The opinion concluded no; the committee found the private representation inappropriate whether or not children were involved, because the matters could later require the prosecutor's office to act on related custody, support, domestic-violence, or maintenance issues.

Q: Did the lawyer's self-imposed limits cure the conflict?

A: No. The committee said the limitations did not negate the possibility of conflict, and that foreclosing criminal non-support proceedings was in some respects inconsistent with the obligation to the public.

Q: Why were even no-children dissolutions barred?

A: Per the opinion, the office might later prosecute a spouse on facts related to the dissolution, such as under the Illinois Domestic Violence Act (Opinion 277) or in enforcing maintenance after a recipient goes on public aid, so the matters were sufficiently related to the lawyer's public responsibilities.

Background and rules framework

The opinion applied former Illinois Code Rules 5-101(a) (the lawyer's own interests affecting independent judgment) and 5-105 (declining employment that another client's interests may impair), together with EC 8-6 (a lawyer who is a public officer should avoid activities conflicting with official duties). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7 (concurrent conflicts), corresponding to ABA Model Rule 1.7, with the public-office dimension addressed by Model Rule 1.11 (current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 5-101(a), 5-105 (applied in the opinion); EC 8-6
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.11 (government officers and employees)

Other opinions cited:

• ISBA Opinion 503: a State's Attorney may not represent a divorce party where the action involves support or custody
• ISBA Opinion 277: a State's Attorney may not represent a divorce respondent where allegations constitute crimes the office may have to prosecute
• ISBA Opinions 572, 729: private employment by an assistant prosecutor is proper only in an area wholly unrelated to public duties; the test is whether a conflict may exist

See also

• ISBA Ethics Op. 13-07: Municipal Prosecutor and Hearing Officer
• ISBA Ethics Op. 14-05: State's Attorney in County Labor Talks
• ISBA Ethics Op. 12-13: Partner Opposing the City's Zoning

Source

• Landing page: https://www.isba.org/ethics/opinions/871