Government lawyers face all the ethical dilemmas faced by lawyers in private practice, in addition to some unique problems. This digest of ISBA ethics opinions covers opinions involving public officials and government lawyers. Opinions addressing ethical issues of State's Attorneys and Public Defenders will be the subject of a future Ethics Corner.
The ISBA Advisory Opinions are prepared as an educational service to members. The opinions provide guidance on proper professional and ethical conduct under the Illinois Rules of Professional Conduct. While not binding authority, the ethics opinions are frequently cited as persuasive authority by courts and attorneys. The opinions issued over the last twenty years are available on the ISBA Web site under Illinois Law, ISBA Ethics Opinions. Additionally, the Illinois Rules of Professional Conduct, found in Article VIII of the Illinois Supreme Court Rules, are also available on the ISBA Web site under Illinois Law, Supreme Court Rules.
Many of the opinions included in the digest involve actual or apparent conflicts of interest. Thus, the following Illinois Rules of Professional Conduct are frequently cited: Rule 1.7, Conflict of Interest: General Rule; 1.10, Imputed Disqualification: General Rule; Rule 1.11, Successive Government and Private Practice, and 5.4, Professional Independence of a Lawyer. In addition, Rule 8.4(b), Misconduct, specifically addresses lawyers in public office, and is cited in a number of the opinions. Where an opinion was issued by the ISBA prior to the passage of the Illinois Rules of Professional Conduct in 1991, citation is given both to the Illinois Code of Professional Responsibility, the predecessor to the current ethics rules, and to the current Illinois Rules of Professional Conduct. For brevity, the Illinois Code of Professional Responsibility is cited as "ICPR." The Illinois Rules of Professional Conduct is cited as "IRPC." I have taken the liberty to rephrase the topics of the opinions from those posted on the ISBA website in order to focus on the issues of relevance to government lawyers.
Opinions involving public officials
Opinion 699 (April 1981): lawyer-county board member; conflict of interest; imputation of disqualification
A lawyer who is a county board member may also engage in the private practice of law and may represent county employees so long as the lawyer is free of conflicting influences and loyalties and can exercise independent professional judgment. However, it is improper for the lawyer-county board member to represent persons charged with crimes by the State's Attorney or to represent persons in other matters involving the State's Attorney. If it is improper for the lawyer-county board member to handle a particular case, that disqualification is imputed to his/her partners and associates.
Opinion No. 803 (January 1983): lawyer-regional planning commission member; conflict of interest
A lawyer of his firm may not represent a regional planning commission on which the lawyer serves as a member. Rule 5-101 (predecessor to Rule 1.7(b) of the IRPC) of the ICPR prohibits such representation. A conflict of interest arises because the lawyer is a voting member of the commission which, by vote of its members, decides to employ the lawyer or his firm, then passes on the reasonableness and validity of the fee. The opinion notes that a waiver of the conflict after disclosure is not available here because the public interest is involved.
Opinion 817 (December 1982): lawyer-legislator; "of counsel" designation
A legislator may be listed as "of counsel" to a law firm without violating Rule 2-102(a) of the ICPR (predecessor to Rule 7.5(a)) if the relationship falls within the traditionally accepted test of what constitutes an "of counsel" relationship. In affirming this opinion in 1991, the ISBA refers to ABA Formal Opinion 90-357. In that opinion the ABA Committee on Professional Responsibility defines the "of counsel" relationship as a close, regular, personal relationship, but not that of partner or associate. The ABA opinion describes four typical kinds of relationships that may properly be designated as "of counsel" relationships: 1) a part-time practitioner, who practices in association with a firm but on a different basis than the mainstream lawyers in the firm; 2) a retired partner of the firm who remains associated with the firm; 3) a probationary partner-to-be; and a permanent associate of the firm with a status somewhere between associate and partner.
Opinion 84-03 (October 1984): lawyer-county board member; conflict of interest
There is no per se conflict of interest that would prohibit a lawyer county-board member from representing the State of Illinois as a Special Assistant Attorney General in condemnation proceedings. In the facts proposed, the condemnation suit involved land held by a private landowner that the State sought to condemn for use by the State. The opinion notes that if the County were involved in a condemnation matter, there could be possible or foreseeable ethical issues involving conflict of interest and preservation of confidences and secrets of a client.
Opinion 84-11 (January 1985): lawyer in public office; conflict of interest
There is no all-encompassing rule governing whether a lawyer who holds public office has a conflict of interest when representing private clients. Whether a conflict of interest exists turns on the individual facts of a situation. In addition, whether a lawyer uses public office to attempt to influence a tribunal is also a question of fact. The opinion suggests a two part test: 1) does the public official hold a position that gives him/her power to influence the tribunal; and 2) did the official actually attempt to influence the tribunal? The mere appearance of a public official before a tribunal is not itself a violation of Rule 8-101 of the ICPR (predecessor to Rule 8.4(b) of the IRPC).
Opinion 88-6 (Feb. 9, 1989): lawyer-school board member; conflict of interest
A lawyer who is an elected member of a school board may not accept private employment from a municipality in a matter involving the municipality's opposition to an annexation of real estate supported by the school board. If the lawyer is to uphold his obligation as an elected school board member to act in the best interests of the school district, representation of a client who opposes the district's position is a direct conflict of interest. Such representation would also be a violation of Rule 8-101(a)(4)(predecessor to Rule 8.4(b)(3)) of the IRPC, which prohibits a lawyer in public office from representing a client in the promotion or defeat of matters pending before the public body of which he is a member. The opinion also points out an appearance of impropriety would be created by the representation because the lawyer was privy to confidential matters of the school board and contracting parties that could assist the prospective client to contest the annexation.
Opinion 90-17 (January 29, 1991): lawyer-city council member; conflict of interest
A lawyer who is a city council member cannot represent clients before the city counsel. Such representation is prohibited by Rule 1.7(b) and Rule 8.4(b)(1) and (3). The disqualification is also imputed to the lawyer's law firm, pursuant to Rule 1.10(a), even if the lawyer abstains from participating in the matter before the city council. The opinion notes that there could be "limited situations," pursuant to Rule 1.7(b), where the lawyer reasonably believes that representation of a client would not be adversely affected by the lawyer's duty to the city. In that instance, the lawyer or the lawyer's firm could undertake representation if the private client consents after disclosure and the representation does not violate Rule 8.4(b).
A lawyer and the lawyer's firm also should not accept employment from a party that the lawyer or firm knows will be appearing before the city council on any matter during the contemplated employment, even if the employment is regarding an unrelated matter. If an existing client of the lawyer or firm should appear before the city council, the lawyer-city council member should abstain from any consideration of such a matter even though the lawyer represents the client on a matter unrelated to the issue before the city council.
The opinion cites In re Vrdolyak, 137 Ill. 2d 407 (1990) as "additional guidance." In that case, Edward Vrdolyak, a lawyer who was an elected alderman for the City of Chicago was found to have violated 5-101(a) (predecessor to Rule 1.7) when he and members of his firm represented city employees in worker compensation cases against the city. The court found the respondent was subject to the ethics standards of the profession "even though there is no attorney-client relationship involved in the public office," and stated that as an alderman, the respondent "owed undivided fidelity and a fiduciary duty to the City," as well as to his clients. Even though the respondent did not vote on any personal injury or worker compensation claims against the city, he did participate in the annual budget process, including voting on the city budget. The court found that "by representing clients against the City, the competing fiduciary duties collided, and respondent became embroiled in a conflict of 'diverging interests' and divided loyalties, which even full disclosure could not avoid." Id. at 420-422.
The opinion also notes that public officers are subject to the Illinois Corrupt Practices Act, which prohibits public officer from acting or voting on matters in which the public officer is interested, either directly or indirectly.
Opinion 91-4 (Sept. 14, 1991): lawyer-county board member; conflict of interest
It is improper for a lawyer-county board member to represent criminal defendants being prosecuted by the State's Attorney for that county. The opinion essentially restates the holding of Opinion 699, supra, which was decided under the Rule 5-101 of the ICPR, the predecessor to the current Rule 1.7 of the IRPC. The opinion also cites as authority In Re Vrdolyak, supra.
Opinion 91-9 (October 25, 1991): lawyer-transportation commissioner for village; definition of public official
A lawyer who, as a volunteer, is an unpaid member of the transportation commission and plan commission of a village is not considered to be a "public official" under the IRPC. Both commissions are advisory only to the village board of trustees, exercise no public authority, and, hence, no fiduciary duty to the public entity arises from the lawyer's service. Therefore, where a lawyer reasonably believes that representation of a private client would not be adversely affected by the lawyer's service to the village, and the client consents after disclosure, the lawyer may represent the private client in matters relating to the village.
Opinion 94-20 (March, 1995): full-time municipal police officer; conflict of interest
It is improper for a lawyer who is a partner of a firm in which a full time municipal police officer is also a partner to represent a client with a claim against that municipality. A full time municipal police officer who is also a lawyer is considered to be holding "public office" within the meaning of rule 8.4(b). That lawyer would have a direct conflict of interest between the officer's duty to the municipality and to the claimant against the municipality, pursuant to Rule 1.7. That conflict would be imputed to the lawyer's partners under Rule 1.10(a). There also may be a possible violation of Rule 8.4(b)(2) if representation of the claimant by the police officer lawyer or his partner is seen as an attempt to obtain more favorable treatment for the client.
Opinion 95-9 (October, 1995): lawyer's support staff elected member of local government board; conflict of interest
It is improper for a lawyer to hire as a clerical support person an elected public official serving the governing board of a unit of local government when the lawyer has lawsuits pending against that unit of government. Even if the suits do not seek money damages from individual members of the governing board, the proposed employee is the adverse party and under Rules 1.7(b) (Conflict of Interest) 1.10(a) (Imputed Disqualification) and 5.3(a) and (c) (Responsibilities Regarding Nonlawyer Assistants), such an arrangement would be improper.
Opinions involving lawyers who are employed
by government entities
To the extent possible this section includes opinions involving full or part-time salaried government attorneys. Opinions involving attorneys in private practice who represent government entities are beyond the scope of this article. If an opinion does not clearly identify whether the lawyer is a salaried employee or lawyer in private practice, the opinion was included.
Opinion 748 (January 1982): city attorneys; conflict of interest; criminal defense
It is improper for a part-time salaried City Attorney, who prosecutes city ordinance violations and who provides advice to the city's police department, to represent criminal defendants charged by the State's Attorney with violations that occur within the city limits. Such representation would constitute an actual or apparent conflict of interest prohibited by Rule 5-101(a) of the ICPR (predecessor to Rule 1.7 of the IRPC). The opinion notes that many criminal charges prosecuted by the state also constitute city ordinance violations. The conflict also would be imputed to members of the lawyer's firm, under Rule 5-105(d) of the ICPR (predecessor to Rule 1.10 of the IRPC).
Opinion 823 (January 1983): municipal attorneys; conflict of interest; criminal defense
A municipal attorney who represents several municipalities in quasi-criminal matters and members of the attorney's firm, may represent criminal defendants charged with state crimes committed outside the territorial limits or jurisdiction of the municipality, where no municipal official or employee is involved and where the municipality is not affected by the prosecution. Such representation would not create a conflict of interest.
Opinion 852 (November 1983): municipal attorney; conflict of interest
A part-time municipal attorney who prosecutes state traffic charges occurring within the municipality's jurisdiction, pursuant to written permission by the State's Attorney, may represent criminal defendants charged with state traffic and criminal charges occurring outside the municipality's jurisdiction. The grant of permission by the State's Attorney gives the municipal attorney only limited jurisdiction and authority to act and does not create an impermissible conflict of interest under Rule 5-101(a) and (d) of the ICPR (predecessor to Rules 1.7 and 1.10 of the IRPC).
Opinion 86-13 (January 9, 1987): city corporation counsel; conflict of interest
It is improper for a city corporation counsel and members of the counsel's firm to represent criminal defendants charged with violation of state statutes where the prosecutions were initiated by or supported by the testimony of city police officers. Such representation would cause an impermissible conflict of interest under Rules 5-105(a) and (d) of the ICPR (predecessors to Rules 1.7 and 1.10 of the IRPC). The opinion cites with approval the rationale in ISBA Opinion 748 (digested, supra).
Opinion 87-13 (May 1988): assistant attorney general; conflict of interest; dual representation
Generally, an Assistant Attorney General ("Asst. A.G") may engage in dual representation of the Illinois Department of Public Aid and an AFDC recipient in a paternity and child support matter if the requirements of Rule 5-105(c) of the ICPR (predecessor to Rule 1.7) are met. That Rule allows representation of multiple clients "if it is obvious that [the lawyer] can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment."
Given the facts proposed by the inquirer, the Asst. A.G. violated the rule regarding multiple representation. The Asst. A.G. settled the child support matter without the knowledge and consent of the AFDC recipient for a nominal amount in order to avoid the opposing party from separating from his current wife and children and having his new family obtain AFDC. Under these facts, the Asst. A.G. had divided loyalties from the onset and failed to obtain consent from the client for the multiple representation. The Asst. A.G. should have advised the AFDC recipient client of her right to independent counsel and her right to refuse the tendered offer. If she refused the tendered offer, the Asst. A.G. should have withdrawn pursuant to rule and advised the court of the client's need for appointed counsel.
Opinion 88-7 (March 1989): village attorney; confidences and secrets; independent professional judgment
It is improper for an attorney who previously was Village Attorney to file an annexation lawsuit against the Village Board, when as Village Attorney, the lawyer had discussed both procedural and substantive matters related to the annexation, despite the lawyer's assertion that he had knowledge of no secrets, strategy or privileged information other than matters of public knowledge. Rule 4-101(a) and (b) of the ICPR (predecessor to Rule 1.6 of the IRPC) was found to apply. That rule protects confidences and secrets of a client from use for the advantage of a third party without the consent of the client after full disclosure. The lawyer must refuse employment if the lawyer cannot exercise independent professional judgment on behalf of a client, and if the former representation would interfere with the proposed employment, the lawyer must not undertake representation in the new matter. The lawyer must also refuse the new employment if he might be called as a witness regarding conversations he had about the annexations, under rule 5-101(b) of the ICPR (predecessor to Rule 3.7 of the IRPC). Finally, the opinion states that while the inquiring attorney asserts that the information he learned while Village Attorney was made public, he should consider the subject matter confidential and secret until the Village consents after full disclosure to any release of information.
NOTE: While this opinion was decided prior to the adoption of the IRPC, Rule 1.11, Successive Government and Private Employment, would apply today to this situation. Rule 1.11(a) prohibits an attorney from representing a private client in a matter in which the lawyer participated "personally and substantially as a public officer or employee unless the appropriate government agency consents after disclosure." Subsection (b) prohibits a lawyer from using "confidential government information" about a person in a manner in which the information could be used to the material disadvantage to that person. "Confidential government information" is defined as information obtained by governmental authority which the government is either prohibited from revealing or has a legal privilege not to reveal and which is not otherwise available to the public. Rule 1.11(e).
Opinion 89-15 (April, 1990): city attorney; conflict of interest
A city attorney may draft a city ordinance that potentially may benefit him on a personal basis and participate in public hearings on that ordinance if the lawyer discloses his personal interest and the city consents after disclosure. If the city does not consent, the lawyer should recuse himself pursuant to Rule 5-101(a) of the ICPR (predecessor to Rule 1.7(b) of the IRPC.
In the facts posed by the inquirer, the attorney was asked by the city to draft an ordinance to implement a special taxation zone, and the attorney spoke positively about the ordinance at a public hearing. At no time prior to the adoption of the ordinance did the attorney disclose that he and/or members of his family own property in the affected area. The failure of the attorney to disclose in advance his interest and to secure consent was found to be a violation of Rule 5-101(a) but not Rule 8-101(a)(1) of the ICPR (predecessor to Rule 8.4(b)(1) of the IRPC) because the ordinance did not appear to be contrary to the public interest. The lawyer's actions did not amount to fraud or deceit, and thus, another attorney having unprivileged knowledge of the lawyers actions would not be under an absolute duty to report the lawyer to the ARDC pursuant to rule 1-103(a) of the ICPR (predecessor to Rule 8.3 of the IRPC).
Opinion 92-15 (Jan. 22, 1993): personnel officer for municipality; unauthorized practice of law
Whether an out-of-state attorney hired to be the personnel officer for a municipality is engaging in the unauthorized practice of law is dependent on the nature of the activities taken by the attorney/personnel officer. The officer, for example, may not draft contracts without consultation and/or approval of the city attorney, but the officer may negotiate a labor contract with an employee union without violating Rule 5.5 of the IRPC, which prohibits an attorney from engaging in unauthorized practice of law.
Opinion 94-14 (January 1995): village attorney duty to return client's papers
A lawyer who formerly served as village attorney is required, pursuant to Rules 1.16(d), (Declining or Terminating Representation), 1.15(a), (Safekeeping Property), and 1.4(a) (Communication), to return to the village the original papers and property of the village, in both active and inactive files. The lawyer is entitled to keep copies of tendered material. For other materials in the lawyer's files that the client is entitled to access, including documents already tendered to the client and other material that the client may not have received, the attorney may charge for the reasonable expense of retrieving the files and providing copies. The village may not provide personnel to assist the attorney in sorting through all his closed files to find the village's materials because the confidences and secrets of other clients would be revealed to the village personnel, in violation of Rule 1.6 of the IRPC.
Opinion 96-7 (January, 1997) DCFS supervisor; successive government and private employment
A licensed lawyer who previously worked for DCFS as a child welfare supervisor and not as a lawyer may represent clients in juvenile court as long as the lawyer adheres to the requirements of the IRPC. Under Rule 1.11(a), (Successive Government and Private Employment), the lawyer cannot represent a client in a juvenile court case if the matter is one in which the lawyer participated personally and substantially while a public employee, unless DCFS consents after disclosure. Personal contact with the client or client's family would be one factor to be weighed in determining whether the lawyer's involvement in the matter was "personal or substantial." The lawyer also must adhere to Rule 1.11(b)'s prohibition of the use of confidential information acquired as a government employee. If the lawyer learned confidential information about a person during his work at DCFS, such as a family member of the prospective client, the lawyer cannot represent the client in the matter if use of the confidential information would work to the material disadvantage of that person. Likewise, if the lawyer acquired confidential and privileged information about the department while at DCFS, the lawyer would likely be barred from disclosing it or using it against DCFS.
If the lawyer determines that Rule 1.11 does not bar representation of the client, the lawyer must also follow the requirements of Rule 1.7 of the IRPC before undertaking representation. If the lawyer had personal and substantial involvement in the matter and obtained the consent of DCFS to represent the client, pursuant to Rule 1.7(b) of the IRPC, the lawyer must also disclose to the client the lawyer's previous involvement with the matter and obtain the client's consent before undertaking representation. Additionally, if the lawyer had confidential information about DCFS or a person but cannot use it, the lawyer would have to have a reasonable belief that the representation would not be adversely affected and must disclose this to the client and obtain consent before undertaking representation. In some situations, DCFS or the person adverse to the client could waive objection to the lawyer's representation of the client.
Editor's note: In our next issue, Judge Katz will again write about ethics for government attorney's in our "Ethics corner."