Can a part-time public defender also take contract work writing appellate briefs for the state's prosecutor's office in other districts?

Plain-English summary

A part-time public defender and criminal defense lawyer in County A asked whether he could contract, case by case, with the State's Attorneys Appellate Prosecutor's Office to write briefs for the state in appellate districts other than his own, and whether he had to disclose that work to his County A criminal defense clients.

The opinion reviewed the committee's body of prior opinions on public officials who also take private clients, from which a general standard had emerged: where ongoing attorney-client obligations arise from a public office, the lawyer is generally barred from accepting cases against the public-body client, but when the scope of the public representation is limited by subject matter, geography, or otherwise, the conflict is mitigated or eliminated. The committee treated the appellate-brief contract as a limited, "quasi-official" engagement with no ongoing responsibilities to the state beyond preparing an individual brief in an individual case (Rule 1.2(c)), so the lawyer would not represent the state as a whole, only the state in that case.

The committee concluded the state, through the State's Attorneys Appellate Prosecutor, could properly waive any potential conflict under Rule 1.7, and that such limited representation would not per se be materially limited by the lawyer's criminal-defense work; where the lawyer takes contrary legal positions that may materially limit either representation, both clients must consent after disclosure under Rule 1.7(b). It noted that, unlike a state's attorney representing the state generally, the brief-writer's work is not directly adverse to his criminal-defense clients, and that treating the state as one monolithic client is rejected by Rule 1.11. In all cases, under People v. Fife, the lawyer must disclose to and obtain consent from both the state and his individual criminal-defense clients.

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 (Rules 1.2, 1.7 with Comment [24], and 1.11(a)), 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 public defender write appellate briefs for the state's prosecutor's office?

A: The opinion concluded he may, on an individual case-by-case contract basis in other appellate districts, but only with full disclosure to and consent of the affected clients.

Q: Why doesn't this make the lawyer adverse to his own criminal clients?

A: The opinion concluded the limited scope means he represents only the state in a particular case, not the state as a whole, and his brief-writing is not directly adverse to the criminal defendants he simultaneously represents.

Q: Can the state agency consent to the arrangement?

A: The opinion concluded the state, through the State's Attorneys Appellate Prosecutor, may properly waive any potential conflict under Rule 1.7, consistent with Rule 1.11(a).

Q: What disclosure is required?

A: The opinion concluded that under People v. Fife the lawyer must disclose to and obtain consent from both the state and his individual criminal-defense clients.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts and consent), Rule 1.2(c) (limiting the scope of a representation), and Rule 1.11(a) (former and current government lawyers; rejecting the view of the state as one monolithic client), concluding a limited brief-writing engagement is permissible with informed consent (Model Rules 1.2, 1.7, 1.11).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest) / Illinois Rule 1.7
• Model Rule 1.2 (scope of representation) / Illinois Rule 1.2(c)
• Model Rule 1.11 (government lawyers; agency consent) / Illinois Rule 1.11(a)

Statutes:

• Ill. Rev. Stat., ch. 14, sec. 201 et seq. (State's Attorneys Appellate Prosecutor's Office)

Cases:

• People v. Fife, 76 Ill.2d 418, 392 N.E.2d 1345 (1979), client must be informed and consent to counsel's special-assistant status

Other opinions cited:

• ISBA Opinion Nos. 260, 543, 729, 784, 871, 85-13, 86-2, 86-4, 87-4

See also

• ISBA Ethics Op. 90-29: Prosecutor Suing Other Police
• ISBA Ethics Op. 91-22: Part-Time Prosecutor Defending
• ISBA Ethics Op. 90-17: Council Member's Firm Conflicts

Source

• Landing page: https://www.isba.org/ethics/opinions/9101