Can a lawyer who defends criminal and traffic clients also serve as a part-time special prosecutor for juvenile cases in the same county?

Plain-English summary

An incoming state's attorney, formerly with the public defender's office, asked Lawyer A to act as a special prosecutor in juvenile cases where the state's attorney had a conflict. Lawyer A was a private practitioner who already represented five adults in juvenile proceedings and periodically defended criminal and traffic cases in the same county. The question was whether the proposed arrangement created a conflict.

The opinion assumed Lawyer A would be appointed case-by-case under 55 ILCS 5/3-9008 rather than becoming an employee of the state's attorney's office (so Rule 1.11, which addresses public officers and employees, did not apply), and that Lawyer A would not be appointed in any case where he already represented or had represented a party (which would be a non-consentable conflict). The opinion analyzed the arrangement under Rule 1.7. It concluded that prosecuting some juvenile cases for the state while defending unrelated traffic or criminal cases is the kind of representation a lawyer could reasonably believe would not be adversely affected, citing prior opinions (92-18, 91-26) in which lawyers represented and opposed the same parties in different types of litigation.

The opinion concluded the controlling questions are whether any conflict would affect the lawyer's ability to perform, whether the client is fully informed, and whether the client consents. It directed Lawyer A to analyze each current and future representation case-by-case, to protect his professional independence from financial dependence on the county, and noted that statutory limits (such as 55 ILCS 5/3-9009) can bar particular combinations. The opinion concluded the proposed arrangement is not improper, but only with full disclosure and consent of any affected clients.

Currency note

This opinion was issued in 1995, 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 1.7 and 1.11), 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 Treat this page as historical context, not current guidance.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 private defense lawyer also act as a part-time special prosecutor?

A: The opinion concluded yes, on a case-by-case appointment for juvenile matters, provided the lawyer makes full disclosure to and obtains consent from any affected clients.

Q: What is the one combination the lawyer can never take?

A: The opinion concluded the lawyer may not serve as special prosecutor in any case where he already represents, or has represented, a party. That direct conflict could not be cured by consent.

Q: Does Rule 1.11 (former government lawyer) apply here?

A: The opinion concluded it does not, because it assumed the lawyer would be appointed case-by-case and would not become a public officer or employee of the state's attorney's office.

Q: What did the opinion say about the lawyer's independence?

A: The opinion concluded the lawyer must protect his professional independence so that financial dependence on the county in the special-prosecutor role does not interfere with obligations to private clients.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts of interest, including the reasonable-belief and consent requirements; Model Rule 1.7) and addressed why Rule 1.11 (former and current government officers and employees; Model Rule 1.11) did not apply. It also noted statutory constraints on special prosecutors under 55 ILCS 5/3-9008 and 5/3-9009.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7(a), (b)
• Model Rule 1.11 (special conflicts for government officers and employees) / Illinois Rule 1.11

Statutes:

• 55 ILCS 5/3-9008 (appointment of special prosecutor)
• 55 ILCS 5/3-9009 (state's attorney barred from private fee in related civil case)

Cases:

• Miller v. Norfolk & Western Ry. Co., 183 Ill. App. 3d 261, 538 N.E.2d 1293 (1989)
• People v. Bowman, 96 Ill. App. 3d 136, 420 N.E.2d 1132 (1981), knowing waiver of conflict

Other opinions cited:

• ISBA Opinions 708, 729, 791, 90-29, 90-30, 91-17, 91-22, 91-26, 92-18, and 92-19

See also

• ISBA Ethics Op. 95-15: Adverse Representation of a Corporate Affiliate
• CA COPRAC Op. 2002-158: Physically Separate Public Defender Office
• CA COPRAC Op. 1984-083: Public Defender's Spouse Representing an Accused

Source

• Landing page: https://www.isba.org/ethics/opinions/9416