Can a student-legal-services lawyer represent one fee-paying student against another fee-paying student?

Plain-English summary

A university's Student Legal Services office was funded by a portion of student activity fees paid by all students, and any enrolled fee-paying student was eligible for services. The attorney director was sometimes asked to defend a student against a criminal battery charge brought by another eligible student, or to represent one eligible student in a civil matter against another eligible student. He had discretion to decline cases and, in the situations asked about, had never represented or consulted with the opposing student as attorney and client.

The committee concluded that, unless an agreement with the students provided otherwise, the mere payment of a student activity fee, part of which funds the office, does not create an attorney-client relationship between each student and the director. The director is therefore free to defend a student against a battery charge brought by another eligible student he never represented, and to represent one eligible student in a civil matter against another eligible student he never represented. Because no attorney-client relationship exists with a student who has not consulted him, former Rules 5-105 (conflicting representation) and 5-107(a) (undivided fidelity) do not apply. The committee noted the opinion supersedes Opinion 732 to the extent that opinion is inconsistent.

Currency note

This opinion was issued in May 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 1.7 and 5.4(c)), 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 Treat this page as historical context, not current guidance.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: Does paying a fee that funds a legal-services office make a person that office's client?

A: The opinion concluded no; absent an agreement otherwise, paying the student activity fee does not by itself create an attorney-client relationship between each student and the director.

Q: Can the office represent one eligible student against another eligible student?

A: Per the opinion, yes, in both criminal-defense and civil matters, so long as the director never consulted with or represented the opposing student as attorney and client.

Q: Why don't the conflict rules apply?

A: The opinion concluded that because no attorney-client relationship exists with a student who has not consulted the director, former Rules 5-105 and 5-107(a) are not implicated.

Background and rules framework

The opinion applied former Illinois Code Rules 5-105 (declining or continuing conflicting employment) and 5-107(a) (undivided fidelity), concluding neither applied absent an attorney-client relationship with the opposing student. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 and 5.4(c), corresponding to ABA Model Rules 1.7 and 5.4.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 5-105, 5-107(a) (former Code, applied in the opinion)
• Illinois RPC 1.7, 5.4(c) (2010 equivalents per the Board's affirmation)
• MR 1.7 (conflicts of interest), MR 5.4 (professional independence)

Other opinions cited:

• ISBA Opinion No. 732 (superseded to the extent inconsistent)

See also

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

Source

• Landing page: https://www.isba.org/ethics/opinions/8816