Can a part-time State's Attorney refer a wrongful-death case and take a referral fee when an ordinance he could prosecute is at issue?

Plain-English summary

In a county of about 15,000 where the State's Attorney may engage in private practice, the inquiry asked whether, "within the confines of" Opinion 263, it was improper for the State's Attorney to refer a death case to another firm and accept a referral fee based on the ultimate recovery, where a city or county ordinance violation was part of the wrongful-death case.

The committee built on Opinion 263, which had found it improper for a State's Attorney to represent a civil plaintiff where the defendant received a traffic ticket, or allegedly violated a state statute, in the same occurrence in the prosecutor's county. That conclusion rested on the statute (Ill. Rev. Stat. ch. 14, sec. 7) barring a State's Attorney from receiving any fee from a private person for services within his official duties, or being retained except for the public in a civil case depending on the same facts as a criminal prosecution. The committee noted the statute remained unchanged.

Applying that here, the committee concluded that where the State's Attorney has discretion to prosecute or decline to prosecute the ordinance violation, he may not act in conflict with that duty; accepting a referral fee as referring lawyer is, for ethical purposes, no different from accepting the case outright, because former Rule 2-107 makes the referring lawyer retain the same legal responsibility as a partner of the receiving lawyer. The same conflict standard therefore applies, and the referral fee is improper.

Currency note

This opinion was issued in July 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 January 2010 as generally consistent with the 2010 Rule (Rule 1.5(e)), 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 Treat this page as historical context, not current guidance.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 part-time prosecutor take a referral fee in a civil case connected to a violation he could prosecute?

A: The opinion concluded no; where the State's Attorney has discretion to prosecute the ordinance violation tied to the wrongful-death case, taking a referral fee is improper.

Q: Why is taking a referral fee treated like taking the case?

A: Per the opinion, former Rule 2-107 makes a referring lawyer retain the same legal responsibility as a partner of the receiving lawyer, so the referral fee carries the same conflict as handling the case outright.

Q: Does it matter whether the prosecutor personally investigated the incident?

A: The opinion, following Opinion 263, concluded it is immaterial whether the State's Attorney investigated or passed on the incident; the statutory duty to exercise prosecutorial discretion controls.

Background and rules framework

The opinion applied former Illinois Code Rule 2-107 (division of fees and the referring lawyer's retained responsibility) together with the statutory bar on a State's Attorney receiving private fees for matters within his official duties (Ill. Rev. Stat. ch. 14, sec. 7). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.5(e), corresponding to ABA Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-107 (former Code, applied in the opinion)
• Illinois RPC 1.5(e) (2010 equivalent per the Board's affirmation)
• MR 1.5 (fees; division of fees)

Statutes:

• Ill. Rev. Stat. ch. 14, sec. 7 (State's Attorney may not receive private fees for matters within official duties)

Other opinions cited:

• ISBA Advisory Opinion No. 263: a State's Attorney may not handle a civil case depending on the same facts as a possible prosecution in his county

See also

• ISBA Ethics Op. 89-04: Prosecutor Communicating With a Represented Defendant Who Reached Out
• ISBA Ethics Op. 88-06: School Board Member Representing a Client Against the District

Source

• Landing page: https://www.isba.org/ethics/opinions/8902