Can a government lawyer lead a nonprofit that lobbies the legislature for a law change the lawyer's official client opposes?

Plain-English summary

An assistant state's attorney was president of a local genealogical society, an Illinois not-for-profit corporation. As president, he was organizing the society's members and other genealogical groups to petition the legislature to amend the Vital Records Act to allow broader access to birth records for genealogical research. By statute the state's attorney's office represents the county clerk, the custodian of birth records, in official-capacity matters, and the clerk had expressed individual opposition to the proposed amendment. The lawyer asked whether the Rules permitted him to advocate the change.

The opinion analyzed the inquiry under Rule 6.4 (adopted August 1, 1990, with no comparable provision in the former Code), which permits a lawyer to serve as a director, officer, or member of an organization involved in reform of the law notwithstanding that the organization's actions may affect a client's interests, requiring only that the lawyer disclose to the organization, without identifying the client, when the lawyer knows a client may be materially benefited by a decision in which the lawyer participates.

The committee concluded there was no impediment under Rule 6.4 to the assistant state's attorney's activities as a private individual. The office's duty to represent the clerk in an official capacity did not require the lawyer to support the clerk's opposition or to refrain from his own associational activity. The committee concluded further that although Rule 6.4 does not specifically name lawyers in public office, there was no reason to deny a publicly employed lawyer the freedoms of petition and association extended to other lawyers as citizens, noting the discriminatory effect such a restriction would have.

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 January 2010 as generally consistent with the 2010 Rules (Rule 6.4), 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 Treat this page as historical context, not current guidance.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 lawyer support a law change that a client opposes?

A: The opinion concluded Rule 6.4 permits a lawyer to serve in a law-reform organization whose actions may affect a client's interests; the lawyer need only disclose to the organization (without naming the client) when a client may be materially benefited by a decision the lawyer participates in.

Q: Does it matter that the lawyer is a government lawyer whose office represents the opposing client?

A: The opinion concluded it does not; the office's duty to represent the county clerk officially did not require the lawyer to support the clerk's position or to abstain from his own associational activity.

Q: Does Rule 6.4 cover lawyers in public office?

A: The opinion concluded that even though Rule 6.4 does not specifically name public-office lawyers, there is no reason to deny them the freedoms of petition and association extended to other lawyers as citizens.

Background and rules framework

The opinion interpreted Rule 6.4 (a lawyer's service in a law-reform organization notwithstanding effects on a client, subject to the disclosure duty), reading it to extend to lawyers in public office, against the backdrop of the state's attorney's statutory duty to represent the county clerk and the Vital Records Act's restrictions on birth-record access (Model Rule 6.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 6.4 (law reform activities affecting client interests) / Illinois Rule 6.4

Statutes:

• Ill. Rev. Stat. ch. 34, sec. 3-9005 (duties of the state's attorney)
• Vital Records Act, Ill. Rev. Stat. ch. 111 1/2, sec. 73-1 et seq. (access to birth records)

See also

• ISBA Ethics Op. 91-22: Part-Time Prosecutor Defending
• ISBA Ethics Op. 92-19: Part-Time Prosecutor's Civil Cases

Source

• Landing page: https://www.isba.org/ethics/opinions/9127