When a former public defender becomes a prosecutor in the same county, can the rest of the office handle his old cases if he is screened?

Plain-English summary

A former part-time Assistant Public Defender was hired as an Assistant State's Attorney in the same county; he had also been in private practice with his father and brother, whose firm shared space with a firm of his uncle and cousin, and he severed all those relationships on joining the prosecutor's office. Several cases in which he had represented defendants were awaiting sentencing. The State's Attorney imposed a policy barring the new assistant from any contact with cases he had handled as a public defender, from communicating with the prosecutors handling them, and from contact with matters being handled by his former firm, the firm that shared its space, and his cousin as an assistant public defender. The inquiry asked whether these insulation steps were enough to let other prosecutors handle the matters the new assistant must avoid, or whether special prosecutors were required.

The committee concluded the steps were sufficient to permit other attorneys in the office to handle the matters. It surveyed the screening case law (In re Marriage of Thornton; LaSalle National Bank v. Lake Co.; Analytica v. N.P.D. Research; Kovacevic; and Opinion 762), noting those authorities hold that appropriate screening of an attorney from matters in which he had a substantial relationship permits his new firm or employer to continue in those matters (while disagreeing with Weglarz v. Bruck). It listed factors bearing on the sufficiency of screening: barring the attorney from consulting or discussing the case with others in the office, barring discussion in his presence, denying him access to files and documents, and generally ensuring he does not work on the matters or use prior-employment knowledge for the new employer.

The committee added that screening should result from "specific institutional mechanisms" established for that purpose and be in place immediately on the attorney's arrival. Finding the steps taken consistent with those standards, it concluded other prosecutors in the office may ethically handle the matters.

Currency note

This opinion was issued in August 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 May 2010 as generally consistent with the 2010 Rules (Rules 1.10 and 1.11), 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: When a defense lawyer becomes a prosecutor in the same county, must the office hand his old cases to special prosecutors?

A: The opinion concluded no, where the office screens him properly; appropriate screening lets other prosecutors handle his former cases without appointing special prosecutors.

Q: What makes screening sufficient?

A: Per the opinion, the screen should bar the lawyer from consulting on or discussing the case, bar discussion in his presence, deny him access to the files, and ensure he does not work on the matters or use prior-employment knowledge for the new employer.

Q: When must the screen be put in place?

A: The opinion concluded screening should arise from specific institutional mechanisms and be in place immediately upon the attorney's arrival.

Background and rules framework

The opinion addressed imputed disqualification and screening when a lawyer changes sides, drawing on Illinois and federal case law rather than a single Code rule. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.10 (imputation of conflicts) and 1.11 (former and current government officers and employees), corresponding to ABA Model Rules 1.10 and 1.11.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.10, 1.11 (2010 equivalents per the Board's affirmation)
• MR 1.10 (imputation of conflicts), MR 1.11 (former and current government lawyers)

Cases:

• In re Marriage of Thornton, 138 Ill. App. 3d 906, 486 N.E.2d 1288 (Ill. App. 1985), screening
• LaSalle National Bank v. Lake Co., 703 F.2d 252 (7th Cir. 1983); Analytica, Inc. v. N.P.D. Research, Inc., 708 F.2d 1263 (7th Cir. 1983); Kovacevic v. Fair Automotive Repair, Inc., 641 F. Supp. 237 (N.D. Ill. 1986)
• Weglarz v. Bruck, 128 Ill. App. 3d 1, 470 N.E.2d 21 (Ill. App. 1984) (disagreed with)

Other opinions cited:

• ISBA Advisory Opinion No. 762 (1982): screening to avoid disqualification

See also

• ISBA Ethics Op. 88-07: Suing a Former Government Client With "Public" Confidences
• ISBA Ethics Op. 90-05: Representing a Spouse in a Divorce After Joint Representation

Source

• Landing page: https://www.isba.org/ethics/opinions/8802