Can a lawyer who serves on a school board take private work opposing a development the board supports?

Plain-English summary

An elected school board member, who is also a lawyer, faced a situation where his school district was a third-party beneficiary of a contract between a municipality and real-estate developers. The board had voted to support annexing the property to the district, and board members and officials had testified at an annexation hearing in favor of the development. The lawyer then accepted employment from a municipality opposing the development, while remaining privy to confidential matters of the district and the contracting parties that could help his private client contest it.

The committee found the conduct improper on three grounds. First, under former Rule 5-101(a), a lawyer may not accept employment if his professional judgment will be or reasonably may be affected by his own personal interests absent client consent; assuming the lawyer intended to uphold his duty as a board member to act in the district's best interests, representing a client opposing the district was a direct conflict. The committee pointed to its earlier Opinion 457, which barred a lawyer-school-board-member from representing private clients seeking to reduce assessed valuations within the district. Second, under Rule 8-101(a)(4), a lawyer holding public office may not represent any client in the promotion or defeat of proposals pending before the body of which he is a member; the committee read that to bar private employment opposing the district's position.

Third, the committee noted the lawyer had access to district confidential information usable against the district. While Rule 4-101 bars misuse of a client's confidences and the district was not technically the lawyer's client, the committee concluded the situation created an obvious appearance of impropriety within the meaning of Canon 9, which counsels lawyers to avoid even the appearance of professional impropriety.

Currency note

This opinion was issued in February 1989, 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 1.7 and 8.4(b)), 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 lawyer who holds elected office represent a private client against the body he serves on?

A: The opinion concluded no, where the client opposes a position the body has taken; it was a direct conflict under former Rule 5-101(a) and barred by Rule 8-101(a)(4), which forbids a public official from representing clients on proposals pending before his own body.

Q: Does it matter that the school district was not technically the lawyer's client?

A: Per the opinion, yes for the confidentiality rule (Rule 4-101 protects "a client's" confidences), but the lawyer's access to district confidences still created an appearance of impropriety under Canon 9.

Q: Did the committee rely on an earlier opinion?

A: Yes. The committee cited Opinion 457, which held a lawyer-school-board-member could not represent private clients seeking to reduce assessed valuations of real estate within the district, and applied the same reasoning here.

Background and rules framework

The opinion applied the former Illinois Code of Professional Responsibility: Rule 5-101(a) (personal-interest conflicts), Rule 5-107(a) (undivided loyalty), Rule 8-101(a)(4) (lawyer holding public office), Rule 4-101 (client confidences), and Canon 9 (avoiding the appearance of impropriety). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 and 8.4(b), which correspond to ABA Model Rules 1.7 and 8.4.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 5-101(a), 5-107(a), 8-101(a)(4); Canon 9 (former Code, applied in the opinion)
• Illinois RPC 1.7, 8.4(b) (2010 equivalents per the Board's affirmation)
• MR 1.7 (conflicts of interest), MR 8.4 (misconduct)

Other opinions cited:

• ISBA Opinion No. 457: a lawyer-school-board-member may not represent private clients seeking to reduce assessed valuations of property within the district

See also

• ISBA Ethics Op. 89-18: University Instructor Defending a Terminated Employee
• ISBA Ethics Op. 88-05: Sitting on a Bank's Board While Representing Its Competitor

Source

• Landing page: https://www.isba.org/ethics/opinions/8806