Can a State's Attorney keep a shared building investment with former partners who will appear against the office in criminal cases?

Plain-English summary

Three attorneys in a professional corporation jointly held a land trust (each a one-third beneficial owner) that owned the building housing their practice. One was elected State's Attorney and left the corporation, but he would remain a co-owner of the building leased to his two former partners and would, from time to time, be their adversary in criminal cases. The question was whether his continued interest in the trust created a conflict and what disclosure was required.

The opinion applied Rule 1.7(b), under which a lawyer may not represent a client if the representation may be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after disclosure. It concluded the conflict here is more attenuated than a direct conflict, but that Rule 1.7(b) still applies, reflecting the ethic (per the ABA comment) that a lawyer's related business interests should not affect representation of a client.

The opinion concluded that full disclosure and client consent are required. For the two private-practice attorneys, this could be done through a waiver-and-consent form. For the State's Attorney, disclosure is less simple, because his "client" is the county or "the people"; the opinion concluded he may need to disclose the nature of his trust interest, including in the Statement of Economic Interest required under the Election Code, when possible before his election.

Currency note

This opinion was issued in 1994, 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 Rule 1.7 with Comment [6]), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a prosecutor co-own a building with lawyers who appear against the office?

A: The opinion concluded yes, the State's Attorney may keep his land-trust interest, provided each affected lawyer discloses the interest and the potential conflict and obtains client consent under Rule 1.7(b).

Q: Why does Rule 1.7(b) apply to a building investment?

A: The opinion concluded that a lawyer's own related business interests should not affect representation of a client, so the shared-building interest is a potential material limitation requiring disclosure and consent even though the conflict is attenuated.

Q: How does the State's Attorney "disclose" to a client like the public?

A: The opinion concluded the State's Attorney may need to disclose the nature of his trust interest, including through the Statement of Economic Interest under the Election Code, since his client is the county or "the people."

Background and rules framework

The opinion interpreted Rule 1.7(b) (a lawyer's own interests as a material limitation on representation, curable by reasonable belief plus client consent after disclosure; Model Rule 1.7), drawing on the ABA comment that a lawyer may not let related business interests affect representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: current clients; personal-interest conflicts) / Illinois Rule 1.7(b)

Other opinions cited:

• ISBA Opinion No. 90-30

See also

• ISBA Ethics Op. 94-16: Defense Lawyer Serving as Special Prosecutor
• ISBA Ethics Op. 94-20: Suing a City That Employs a Partner as a Police Officer

Source

• Landing page: https://www.isba.org/ethics/opinions/9308