Can a part-time prosecutor take private civil clients in matters that grow out of criminal cases he prosecuted?

Plain-English summary

A part-time assistant state's attorney was permitted to maintain a private law office while prosecuting criminal cases. In the course of those duties he came into contact with victims and witnesses who wanted civil representation in matters arising from the same facts as criminal cases he handled. The inquiry asked whether he could represent civil clients in matters arising out of pending or past criminal prosecutions he handled.

The opinion concluded that this is improper. It relied on the Illinois statute (then Ill. Rev. Stat. ch. 34, sec. 3-9009; now 55 ILCS 5/3-9009), which provides that a state's attorney shall not receive any fee from a private person for services within his official duties and shall not be retained or employed, except for the public, in a civil case depending on the same state of facts on which a criminal prosecution depends. It concluded that this provision precludes a part-time assistant state's attorney from representing a civil litigant in a matter arising out of a pending criminal matter with which he or she is involved.

The opinion concluded that prior ISBA Opinions Nos. 407 and 85-10 were extremely persuasive: both determined that an assistant state's attorney could not properly represent civil litigants and also represent the State or County in a criminal prosecution arising out of the same facts, whether the criminal matter is pending or has reached final disposition.

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 1.11 and 8.4(g)), 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 Treat this page as historical context, not current guidance.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 take a civil client in a matter arising from a case he prosecuted?

A: The opinion concluded he may not, because an Illinois statute bars the state's attorney from private employment in a civil case depending on the same facts as a criminal prosecution.

Q: Does it matter whether the criminal case is still pending?

A: No. The opinion concluded the bar applies whether the related criminal matter is pending or has reached a final disposition, citing Opinions Nos. 407 and 85-10.

Q: Which rules besides the statute are implicated?

A: The opinion referenced Rules 1.2(e) and 1.11(a) and (b) on successive government and private employment as the professional-conduct framework alongside the statute.

Background and rules framework

The opinion interpreted Rule 1.11(a) and (b) (successive government and private employment) and Rule 1.2(e), read together with the controlling Illinois statute (55 ILCS 5/3-9009) barring a state's attorney from private employment in a civil case depending on the same facts as a criminal prosecution (Model Rules 1.11, 1.2).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 (successive government and private employment) / Illinois Rule 1.11(a), (b)
• Model Rule 1.2 (scope of representation) / Illinois Rule 1.2(e)

Statutes:

• 55 ILCS 5/3-9009 (state's attorney barred from private civil employment on the same facts as a prosecution)

Other opinions cited:

• ISBA Opinions Nos. 407 and 85-10: assistant state's attorney may not represent civil litigants on the same facts as a prosecution

See also

• ISBA Ethics Op. 92-18: Representing Prosecutors While Opposing Them
• ISBA Ethics Op. 13-07: Lawyer Serving as Both Municipal Prosecutor and Administrator

Source

• Landing page: https://www.isba.org/ethics/opinions/9219