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ISBA 1993

If a firm represents prosecutors in a private civil case, can the firm's lawyers still defend criminal cases against those same prosecutors?

Short answer: The opinion concluded that a firm representing prosecutors in an unrelated civil matter is not per se disqualified from opposing them in criminal cases; because criminal defense is not directly adverse to the prosecutors under Rule 1.7(a), the firm may proceed if its criminal clients consent after disclosure under Rule 1.7(b), and those clients must be told of the firm's representation of the prosecutors.

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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 1993
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A firm represented two assistant state's attorneys in a civil case unrelated to their official duties, while one of the firm's associates served as an assistant public defender who frequently opposed those prosecutors in criminal cases. The inquiry asked whether the associate could continue as a public defender.

The opinion concluded that the question was framed too narrowly: there is no basis to distinguish a public defender from any other attorney for disqualification purposes, so the real issue was whether anyone associated with the firm could oppose the client-prosecutors or their office. Relying on Opinion No. 822 (no impropriety where a lawyer represents another lawyer whose clients are adverse, with disclosure and consent), and distinguishing Opinion No. 477 (which found impropriety where representation touched the officials' official duties), it concluded that because neither the official status nor the official duties of the client-prosecutors were implicated by the civil suit, a firm member may undertake criminal defense opposing those prosecutors.

The opinion concluded that this is permitted provided Rule 1.7(b) is met: the lawyer reasonably believes the criminal representation will not be adversely affected by the prosecutors' client status, and the criminal client consents after disclosure. It concluded that Rule 1.7(a) is inapplicable because criminal defense is not representation directly adverse to the prosecutors, so the prosecutor-clients' consent is not required; but under Rule 1.4(b) together with Rule 1.7(b)(2), every firm client in a matter adverse to the state's attorney must be told that the firm represents the two prosecutors, with enough explanation to appreciate the significance of that relationship.

Currency note

This opinion was issued in 1993, 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 (referring to Rules 1.4(b) and 1.7), 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 firm defend criminal cases against prosecutors it represents in a private civil matter?

A: The opinion concluded the firm is not per se disqualified and may do so if the criminal clients consent after disclosure under Rule 1.7(b), because criminal defense is not directly adverse to the prosecutors.

Q: Do the prosecutor-clients have to consent?

A: No. The opinion concluded that because Rule 1.7(a) does not apply (criminal defense is not directly adverse to them), the prosecutor-clients' consent is not required.

Q: What must the criminal clients be told?

A: The opinion concluded that under Rule 1.4(b) and Rule 1.7(b)(2), each criminal client in a matter adverse to the state's attorney must be informed that the firm represents the two prosecutors, with enough explanation to appreciate the relationship.

Background and rules framework

The opinion interpreted Rule 1.7(a) (direct adversity), Rule 1.7(b) (material-limitation conflicts requiring reasonable belief and client consent), and Rule 1.4(b) (disclosure to the client) (Model Rules 1.7, 1.4).

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7(b)
  • Model Rule 1.4 (communication) / Illinois Rule 1.4(b)

Other opinions cited:

  • ISBA Opinion No. 822: lawyer representing a lawyer with adverse clients, permitted with disclosure and consent
  • ISBA Opinion No. 477: impropriety where representation touched officials' official duties, distinguished

See also

Source

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