Can a part-time assistant state's attorney represent a prisoner suing law enforcement officers in a neighboring county?

Plain-English summary

A part-time assistant state's attorney who handled felony matters asked whether it was a conflict of interest for him to represent a prisoner in a civil rights action against law enforcement officials in an adjacent county. The adjacent county's state's attorney had refused to waive any conflict, and the prisoner himself had told the federal court he did not want the assistant state's attorney to represent him.

The opinion concluded the representation would be a conflict of interest under Rule 1.7(a). The committee explained that a part-time assistant state's attorney assigned to felony cases has two clients: the prisoner and, so long as he holds office, the people of the state, whom he has a statutory duty to represent with undivided fidelity. Drawing on prior opinions about lawyers in public office and the ABA's tests for whether a prosecutor's outside practice is proper (whether it would lessen public confidence in the administration of justice, reflect on the profession, or interfere with cooperation between prosecuting attorneys), the committee focused on the third concern.

The committee concluded the representation would be detrimental to the cooperation required between the two counties for future prosecutions, both because cooperation from the adjacent county's law enforcement officials would foreseeably be impaired and because the adjacent county's state's attorney is required by statute to defend those officials. Because the assistant state's attorney's participation would interfere with cooperation between the prosecuting authorities, the committee concluded it was detrimental to the public interest and a conflict under Rule 1.7(a).

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rule 1.7, and noting Opinion 90-22 and 55 ILCS 5/4-2001(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 Treat this page as historical context, not current guidance.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 part-time prosecutor represent a prisoner suing police in another county?

A: The opinion concluded he should not, because it would impair the cooperation required between the two counties' prosecuting authorities and is contrary to the public interest, a conflict under Rule 1.7(a).

Q: Who are the prosecutor's clients in this situation?

A: The opinion concluded the part-time assistant state's attorney has two clients, the prisoner and the people of the state, to whom he owes a statutory duty of undivided fidelity while in office.

Q: Does it matter that the civil rights suit is in a different county?

A: The opinion concluded the different-county posture is what creates the problem, because the adjacent county's state's attorney must defend its officials and inter-county prosecutorial cooperation would be impaired.

Background and rules framework

The opinion interpreted Rule 1.7(a) (a lawyer may not represent a client directly adverse to another client) as applied to a part-time prosecutor whose second client is the public, concluding the public interest in inter-county prosecutorial cooperation made the representation a conflict (Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest; directly adverse) / Illinois Rule 1.7(a)

Statutes:

• Ill. Rev. Stat. 1989, ch. 34, sec. 3-9005 (duties of state's attorneys)

Other opinions cited:

• ISBA Opinion Nos. 260, 791, 84-11, 91-01
• ABA Opinion Nos. 30 and 278

See also

• ISBA Ethics Op. 91-22: Part-Time Prosecutor Defending
• ISBA Ethics Op. 90-17: Council Member's Firm Conflicts
• ISBA Ethics Op. 92-19: Part-Time Prosecutor's Civil Cases

Source

• Landing page: https://www.isba.org/ethics/opinions/9029