Can a former village attorney sue the village over a matter he worked on, if he says the information he learned is now public?

Plain-English summary

A lawyer who had previously served as attorney for a village board later filed an annexation lawsuit against that same board. While serving as village attorney, he had discussed both procedural and substantive matters about the annexation that became the subject of his later suit. He asserted he had learned no secrets, strategy, or privileged information beyond matters of public knowledge. The inquiry asked whether he could prosecute the annexation claim, and whether a client's disclosure of confidential information to the public amounts to a waiver of confidentiality.

The committee answered that the representation was improper on three grounds. Under former Rule 4-101(a) and (b), a lawyer should not accept employment where a former client's confidence or secret could be used to a third person's advantage without the client's consent after full disclosure; the committee analogized to Opinion 810 (a lawyer who had defended a traffic charge could not later prosecute a wrongful-death claim from the same accident). Under former Rule 5-105(a), the lawyer must refuse employment if the former representation would interfere with his independent professional judgment, citing Opinion 85-11. And under former Rule 5-101(b), the lawyer must decline if he knows or it is obvious he ought to be called as a witness about the annexation discussions.

On the waiver question, the committee concluded that even though the lawyer asserted the information had been made public, until the client consents after full disclosure to any release, the lawyer should treat the subject matter as confidential and secret.

Currency note

This opinion was issued in March 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 1.6, 1.7, 1.9, 1.11, 3.7, 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 Treat this page as historical context, not current guidance.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 sue a former client on a matter the lawyer previously handled for that client?

A: The opinion concluded no, where the former client's confidences could be used against it without consent; the committee analogized to barring a former defense lawyer from later prosecuting a claim arising from the same incident.

Q: If the confidential information has become public, is it still protected?

A: Per the opinion, yes; until the client consents after full disclosure to its release, the lawyer should continue to treat the subject matter as confidential and secret.

Q: Could the lawyer also be disqualified as a potential witness?

A: The opinion concluded that if the lawyer knows or it is obvious he ought to be called as a witness about the annexation discussions, former Rule 5-101(b) bars him from accepting the employment.

Background and rules framework

The opinion applied the former Illinois Code of Professional Responsibility: Rule 4-101(a) and (b) (preservation and use of client confidences and secrets), Rule 5-105(a) (declining employment that impairs independent judgment), and Rule 5-101(b) (the lawyer-as-witness bar). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.6, 1.7, 1.9, 1.11, 3.7, and 8.4(b), corresponding to ABA Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 4-101(a),(b); 5-101(b); 5-105(a) (former Code, applied in the opinion)
• Illinois RPC 1.6, 1.7, 1.9, 1.11, 3.7, 8.4(b) (2010 equivalents per the Board's affirmation)
• MR 1.6 (confidentiality), MR 1.9 (duties to former clients), MR 3.7 (lawyer as witness)

Other opinions cited:

• ISBA Opinion No. 810: a lawyer who defended a traffic charge may not later prosecute a wrongful-death claim from the same accident
• ISBA Opinion No. 85-11: a lawyer may act against a former client's spouse in an unrelated matter only without using prior confidences or impairing independent judgment

See also

• ISBA Ethics Op. 88-06: School Board Member Representing a Client Against the District
• ISBA Ethics Op. 88-05: Sitting on a Bank's Board While Representing Its Competitor

Source

• Landing page: https://www.isba.org/ethics/opinions/8807