Can a firm that defends a city in one case also sue that same city for a different client in an unrelated matter?

Plain-English summary

The inquiry asked the Committee to review its earlier Opinion No. 603 under Rule 1.7. Opinion 603 had concluded that a firm hired to defend a city in a personal injury suit could later sue the same city seeking zoning variations for a different client. The question was whether that remained proper under the 1990 Rules.

The opinion explained Rule 1.7's structure: a lawyer may not represent a client directly adverse to another client, or where the representation may be materially limited, unless the lawyer reasonably believes the representation will not be adversely affected and each client consents after disclosure. It emphasized that the "reasonable belief" and "consent" requirements are conjunctive, not alternative, so that if a disinterested lawyer would conclude the client should not agree, the representation is barred even with consent. It concluded that "reasonably believes" is judged by an objective standard, the "disinterested, reasonable lawyer," not the subjective view of the particular attorney.

The opinion surveyed its prior opinions rejecting per se disqualification rules in favor of case-by-case consent, and addressed the special treatment of public bodies. While public bodies were historically viewed as unable to consent to conflicting representation, the opinion noted that Opinion No. 86-4 had concluded a public body may consent where the conflicting representation is unrelated to the matter in which the lawyer represents the body, and that a per se bar remains for substantially related matters and for the Vrdolyak situation. It concluded that the result in Opinion 603 may still be correct, but that the duty of full and ongoing disclosure and communication (Rule 1.4) is far greater under the new Rules, so the firm may represent both only with full, ongoing disclosure and the consent of both 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 1.4 and 1.7 with Comments [23] and [29-33]), 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 firm sue a city it currently represents in another case?

A: The opinion concluded it is not per se improper in an unrelated matter, provided both clients consent after full disclosure and a disinterested lawyer could reasonably believe neither representation would be adversely affected.

Q: Is the "reasonable belief" judged from the individual lawyer's point of view?

A: No. The opinion concluded it is an objective standard, measured by what a disinterested, reasonably prudent and competent lawyer would believe, not the subjective view of the particular attorney.

Q: Can a public body consent to a conflict at all?

A: The opinion concluded a public body may consent where the conflicting representation is unrelated to the matter in which the lawyer represents the body, but not for substantially related matters or in the Vrdolyak situation.

Q: Is consent a one-time event?

A: No. The opinion concluded the duty of disclosure and communication is ongoing under Rule 1.4, requiring continued full disclosure to both clients after consent is obtained.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts, the conjunctive belief-and-consent requirement, and the objective "reasonable belief" standard; Model Rule 1.7) and Rule 1.4 (ongoing communication and disclosure; Model Rule 1.4). It applied its prior opinions on consent and public bodies and the limits set by In re Vrdolyak.

Citations and references

Rules of Professional Conduct:

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

Cases:

• In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), non-waivable conflict for a public official

Other opinions cited:

• ISBA Opinions 603, 86-4, 85-5, 86-13, 90-3, 90-26, and 91-4 (among others)

See also

• ISBA Ethics Op. 94-20: Suing a City That Employs a Partner as a Police Officer
• ISBA Ethics Op. 95-15: Adverse Representation of a Corporate Affiliate
• ISBA Ethics Op. 96-05: Conflicts of Interest in Estate Matters

Source

• Landing page: https://www.isba.org/ethics/opinions/9421