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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

November 2000, vol. 2, no. 1

Attorneys general issue opinions addressing ethical concerns

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 1998)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary of those official and informal opinions issued by the office of the Attorney General that address ethical issues arising from service as a public officer-lawyer or as a government attorney.

Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield office.

Opinion No. 92-009, issued May 26, 1992: conflict of interest­county board member-lawyer representing a criminal defendant. Neither the county nor any other unit of government is ordinarily a party to a criminal prosecution. Therefore, a county board member who is also a lawyer may represent a defendant in a criminal case prosecuted by the state's attorney of the county in which he or she holds office, unless there are particular factors present in the case that could cause the representation of the lawyer's client to be materially limited. If there is any possibility that his or her professional judgment could be materially limited by responsibilities to another client or to a third party, or by the lawyer's own interests, Rule 1.7(b) of the Rules of Professional Conduct requires the county board member-lawyer to decline the proffered representation. 134 Ill. 2d R. 1.7(b); In re Vrdolyak (1990), 137 Ill. 2d 407.

Opinion No. 82-060, issued December 30, 1982: conflict of interest­county board member/lawyer. A county board member, who is also an attorney, may represent defendants in criminal cases prosecuted by the state's attorney of the county. No conflict of interest arises out of the relationship between the county board and the state's attorney of a county, the duty of a county board member to represent the county with undivided loyalty or the duty of the state's attorney to represent the county board. Ill. Rev. Stat. 1981, ch. 110A, art. VIII; In re Becker (1959), 16 Ill. 2d 488.

Informal Opinion No. I-00-006, issued February 25, 2000: conflict of interest­participation of a public officer on an issue previously advocated as counsel. A prohibited conflict of interest does not arise where a member of the Property Tax Appeal Board, who is also an attorney, participates in the deliberations of the Board concerning a policy issue, after having previously represented the interests of a private client in legal proceedings before the Board relating to that issue. The member of the Board does not have a "personal interest" in the subject matter of any particular case before the Board. Moreover, the Board is acting in a quasi-legislative capacity by considering a general rule to be applied relating to the method of determining assessments.

Informal Opinion No. I-99-006, issued January 15, 1999: conflict of interest­state's attorney serving as a director for a not-for-profit corporation contracting with the county. Under Rule 1.7 of the Illinois Rules of Professional Conduct, lawyers are generally prohibited from representing a client in circumstances in which the lawyer's judgment and actions are materially limited by the lawyer's responsibilities to a third party. This disqualification may be cured, however, if: (1) the lawyer believes that the representation of the client will not be adversely affected; and (2) the client waives the conflict. Because of a conflict in duties, a state's attorney who represents the county board in contract negotiations with a not-for-profit corporation, which he also serves as a director, would have a conflict of interest within the meaning of Rule 1.7 of the Rules of Professional Conduct. Moreover, because the conflict of interest arises by virtue of the very nature of the duties of the office of the state's attorney, a waiver cannot cure it. Consequently, it is not proper for a state's attorney to serve on the board of directors of a not-for-profit corporation that has entered into a contract with the county, while the contract is in effect. 134 Ill. 2d R. 1.7.

Informal Opinion No. I-94-002, issued January 7, 1994: attorney-client privilege and part-time state's attorney. Application of the attorney-client privilege is a question of fact, to be determined in light of the purpose of the privilege and guided by judicial precedents. If the attorney made it clear to the would-be client that there is no attorney-client relationship and if the evidence further reflects that the would-be client should have known that the relationship had not advanced to the point at which it could be deemed a representation, then there would be no attorney-client relationship despite the would-be client's subjective belief. In such instances, a state's attorney could undertake a criminal prosecution based upon the would-be client's admission of criminal conduct. Ill. Rev. Stat. 1991, ch. 110A foll. par. 777, R. 1.2(g), (h) and 1.6.

Informal Opinion No. I-89-022, issued March 22, 1989: conflict of interest­representation by a former state's attorney of an individual formerly prosecuted by such state's attorney. To protect a defendant's constitutional right to effective assistance of counsel and to preserve the integrity of the judicial system, a public defender may only represent a defendant charged with a criminal offense who was formerly prosecuted by him if there is no relationship between the former offense and the subsequent crime, and the potential conflict is fully explained to the defendant and he or she waives any potential conflict. If, however, there is any possibility that confidences or secrets gained through his or her public employment could be used in the defense of an individual, the former state's attorney should refuse to accept the employment because the public interest cannot be waived. Ill. Rev. Stat. 1987, ch. 110A, par. 9-101.

Informal Opinion No. I-88-032, issued August 31, 1988: conflict of interest­airport authority commissioner as principal of law firm whose client contracts with the authority. Under section 3 of the Corrupt Practices Act and Supreme Court Disciplinary Rule 5-105, an airport authority commissioner may not approve the letting of a contract to a client of his firm although the commissioner had no involvement in the negotiation of the contract on behalf of the client. As principals in a law firm, the commissioner and his or her partners are agents for one another in the firm business and the knowledge of one partner is attributed to the others. Therefore, the commissioner has joint liability with his partners with respect to the client, and has a right to share in fees generated by representation of the client. Because of his interest in the firm business and imputed knowledge, the representation of the client by his firm in negotiations with the authority is the legal equivalent of the commissioner's representation of the client. Ill. Rev. Stat. 1987, ch. 102, par. 3; Ill. Rev. Stat. 1987, ch. 110A, Rule 5-105.

In addition to the foregoing ethics opinions, the office of the Attorney General recently issued the following official and informal opinions which may be of general interest to the government bar.

Opinion No. 00-001, issued March 7, 2000: expungement of records. (1) The expungement procedures set forth in section 5 of the Criminal Identification Act apply to the official records of the "arresting authority." A state's attorney is not an "arresting authority"; therefore, the records within the custody of a state's attorney are not subject to expungement pursuant to an order entered under section 5 of the Criminal Identification Act. (2) Section 5 of the Criminal Identification Act does not authorize the circuit court to enter an order requiring the state's attorney to expunge or surrender identification materials under his or her control. (3) A county sheriff's records related to an arrest generally are subject to physical destruction pursuant to an order of expungement, except where destruction would be inconsistent with other statutory mandates. 20 ILCS 2630/5 (West 1998).

Opinion No. 00-002, issued March 7, 2000: applicability of the State Gift Ban Act to judges of election. The position of judge of election is a public office generally subject to the provisions of the State Gift Ban Act. Because a person who holds the position of judge of election is considered an "officer of the court," however, a judge of election is not subject to the provisions of the State Gift Ban Act pursuant to the court's order in Illinois State Bar Association v. Ryan, Docket No. 98-MR-363 (Circuit Court, Sangamon County). 5 ILCS 425/5 (West 1998).

Opinion No. 00-004, issued March 7, 2000: duty of a county clerk to take minutes. The statutory duty of the county clerk to keep an accurate record of the proceedings of the county board requires that the clerk take the minutes of all board meetings, including closed meetings, either in person or by deputy. Therefore, the clerk or his or her deputy may not ordinarily be excluded from a county board meeting that is closed to the public. 55 ILCS 5/3-2013, 5-1087 (West 1998).

Opinion No. 00-005, issued March 7, 2000: voting for drainage district commissioners. Because no provision is made either in the Illinois Drainage Code or in the Election Code for absentee voting in drainage district elections, nonresident landowners are not entitled to vote for drainage district commissioners by absentee ballot. Moreover, only the beneficiaries of land held in trust, and not the trustees of such trusts, may vote in drainage district elections. 10 ILCS 5/19-2.1 (West 1998); 70 ILCS 605/4-5 (West 1998).

Opinion No. 00-008, issued April 24, 2000: county's authority to regulate the location of "peaker plants." Non-home-rule counties have the authority, through the exercise of their zoning powers, to regulate and restrict the use of real property. County zoning powers may not be exercised with respect to the uses, buildings or structures of a "public utility." A peaker plant is not a "public utility" within the meaning of section 3-105 of the Public Utilities Act. Therefore, a non-home-rule county has the authority to regulate the location of peaker plants through the exercise of its zoning powers. 55 ILCS 5/5-12001 (West 1998); 220 ILCS 5/3-105 (West 1998).

Informal Opinion No. I-00-008, issued March 14, 2000: county board member's interest in a matter before a county board committee. Where a county board member has a personal interest in a matter coming before the county board, under the common law, he is disqualified from acting or voting upon that matter. Given the advisory nature of committees of the county board, which are made up of fellow county board members, and the fiduciary duty a county board member owes to the county, a county board member who is prohibited by a common law conflict of interest from acting or voting upon a proposal coming before the county board, would likewise be prohibited from advocating its adoption before a committee of the county board.

Informal Opinion No. I-00-015, issued April 5, 2000: rules regarding the use of recording devices at public meetings. Section 2.05 of the Open Meetings Act grants public bodies holding meetings the authority to regulate a person's exercise of his or her right to record public meetings by prescribing reasonable rules related thereto. The guidelines for recording a meeting in the resolution reviewed were not reasonable. As a result, the guidelines were found to impermissibly limit the statutory right of persons to record proceedings of public bodies. 5 ILCS 120/2.05 (West 1998).

Informal Opinion No. I-00-017, issued April 19, 2000: procurement of professional engineering services. The Architectural, Engineering and Land Surveying Qualifications Based Selection Act, rather than the Illinois Procurement Code, will apply to and govern the selection of professional engineering services by a state agency, even when the services to be performed are not construction related. 30 ILCS 500/ 1-5, 20-15, 30-15 (West 1998); 30 ILCS 535/15 (West 1998).

Informal Opinion No. I-00-019, issued April 24, 2000: disclosure of social security number on an application for a hunting or fishing license. For child support collection purposes, the Social Security Act requires states to have in effect procedures that require the disclosure of an applicant's social security number on applications for "recreational licenses." Both hunting and fishing licenses are "recreational licenses." Therefore, applications for hunting and fishing licenses must include the applicant's social security number. 5 ILCS 100/10-65 (West 1998), as amended by Public Act 91-0613, effective October 1, 1999; 42 U.S.C. § 666(a)(13)(A).

Informal Opinion No. I-00-021, issued May 18, 2000: disclosure off-site consequence analysis. The Federal prohibition on release off-site consequence information is specific to a particular portion of a risk management plan, and does not prohibit the release of hazardous chemical inventory reports or other raw data from which a sophisticated user might project off-site consequences. The criminal penalties attach to the actions of individuals and do not provide for agency liability. 42 U.S.C. § 7412(r)(7), as amended by P. L. 106-40.

Informal Opinion No. I-00-022, issued May 18, 2000: reconsideration of property tax extension limitation law resolution at subsequent meeting. Where a deliberative body, such as a county board, has finally voted upon a proposition and no motion for reconsideration or other motion is pending thereon, such body, upon adjournment of its meeting, has no power to reconsider its action where the rights of other persons have intervened. Due to the lack of any intervening rights, a county board which failed to pass a resolution to submit to voters the question of whether to make all non-home-rule taxing districts subject to the Property Tax Extension Limitation Law may reconsider the resolution. Moreover, there is no statutory restriction that would prevent a county board from entertaining a new resolution to place the proposition before the voters. 35 ILCS 200/18-213 (West 1998).

Informal Opinion No. I-00-023, issued June 7, 2000: eavesdropping--audio and video recording in designated areas of university department of public safety. Because acquiescence to recording may constitute consent for purposes of the eavesdropping statute, a person who reads and understands signs notifying patrons that an area of a University Department of Public Safety is subject to audio and video recording and who enters such area and engages in conversation therein, may be deemed to have consented to the recording if surrounding circumstances indicate acquiescence to such recording. Whether a person read and understood the notice, or should have read and understood the notice, are questions of fact that must be decided based upon the circumstances of each particular situation. 720 ILCS 5/14-2 (West 1998), as amended by Public Act 91-0657, effective January 1, 2000.

Informal Opinion No. I-00-026, issued July 6, 2000: State's Attorney's interest in an abstracting or a title insurance company. As of December 1, 2000, section 4-2001 of the Counties Code prohibits state's attorneys from "engaging in the private practice of law." Possessing an ownership interest in a title insurance company or an abstracting company would not constitute engaging in the private practice of law. Taking an active role in providing title insurance or abstracting services, including the supervision of others performing such services, however, would constitute engaging in the private practice of law in violation of section 4-2001 of the Counties Code. 55 ILCS 5/4-2001 (West 1998), as amended by Public Act 91-273, effective January 1, 2000, and Public Act 91-440, effective August 6, 1999.