Can a part-time Assistant State's Attorney defend criminal cases in a neighboring county?

Plain-English summary

An attorney served as a part-time Assistant State's Attorney in County A, prosecuting traffic, misdemeanor, and felony cases two to three days a week, and occasionally appeared as defense counsel in traffic and criminal matters in contiguous County B, in the same judicial district. The inquiry asked whether defending an accused in County B was a conflict of interest given the counties' proximity and shared circuit.

The opinion recalled Opinion 260 (1965), which held it a conflict for a State's Attorney or Assistant to continue representing a criminal defendant in another county, reasoning that the prosecutor's first obligation is to represent the public with undivided fidelity, following ABA Opinion 30. Applying Rule 1.7(a) and (b), the opinion explained that the analysis turns on who the Assistant State's Attorney's client is, an unsettled question: the State's Attorney is found in the judicial article of the Illinois Constitution and elected by a single county, so it is unclear whether the client is the people of the entire state or only of the electing county. Because the Assistant's authority flows through the State's Attorney, the Assistant's client is the same.

The opinion concluded that any conflict could be waived under Rule 1.7 if the Assistant reasonably believed the representation would not be adversely affected, a subjective standard producing different results depending on the counties involved, but that completing the waiver depended on identifying the client. If the client were the people of the entire state, a representative such as the Attorney General or a State's Attorney would have to consent (with public-body consent contemplated under Rule 1.11(a) and Opinions 86-4 and 91-1); if only the people of County A, the accused in County B alone would consent. The committee declined to determine who held the authority to waive, citing inherent incompatibilities among the Rules, the Constitution, and the statutes, and urged State's Attorneys to seek a systemic resolution from the Attorney General, the General Assembly, or the Supreme Court.

Currency note

This opinion was issued in 1992, 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 (pointing to Rules 1.7 and 1.11(a), and to Opinion 90-29 and 55 ILCS 5/40-2001(b)), while noting 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 defend criminal cases in a neighboring county?

A: The opinion concluded the prosecutor may not where a conflict of interest exists, absent appropriate consent, consistent with Opinion 260 and ABA Opinion 30.

Q: Who is the Assistant State's Attorney's client?

A: The opinion concluded this is unsettled: it is unclear whether the client is the people of the entire state or only of the electing county, and the Assistant's client tracks the State's Attorney's.

Q: Can the conflict be waived?

A: The opinion concluded a conflict could be waived under Rule 1.7 if the prosecutor reasonably believed the representation would not be adversely affected and the proper client consented, but it declined to decide who has authority to consent on the public's behalf.

Background and rules framework

The opinion interpreted Rule 1.7(a) and (b) (general conflict rule; directly adverse or materially limited representation, waivable on reasonable belief and consent), together with Rule 1.11(a) (successive government and private employment; public-body consent), against the constitutional and statutory framework defining the office of State's Attorney (Model Rules 1.7, 1.11).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: general rule) / Illinois Rule 1.7(a), (b)
• Model Rule 1.11 (government lawyers; conflicts) / Illinois Rule 1.11(a)

Statutes:

• Illinois Constitution of 1970, Art. V, Sec. 15; Art. VI, Sec. 19
• Ill. Rev. Stat. 1989, ch. 34, paras. 3-9000 et seq., 4-2001 et seq.

Other opinions cited:

• ISBA Opinions Nos. 117, 260, 86-4, 90-29, 91-1; ABA Opinion 30

See also

• ISBA Ethics Op. 92-19: Part-Time Prosecutor's Civil Cases
• ISBA Ethics Op. 92-18: Firm for Prosecutors, vs. Them Too
• ISBA Ethics Op. 94-16: Special Prosecutor Conflicts

Source

• Landing page: https://www.isba.org/ethics/opinions/9122