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

March 2001, vol. 2, no. 2

Opinions involving state’s attorneys

Opinion No. 762 (June, 1982) Disqualification; former assistant state's attorney

A former assistant state's attorney is not disqualified from handling litigation for his firm regarding the same subject area or areas to which he was assigned as an assistant state's attorney, but, pursuant to Rule 9-101(b) of the ICPR (predecessor to Rule 1.11 of the IRPC) he may not represent any clients in matters if he participated personally or substantially in the matters as an assistant state's attorney, or if the matters were under his official responsibility. Pursuant to Rules 5-105 and 9-101 (predecessors to Rules 1.7 and 1.11 of the IRPC), the lawyer's personal disqualification is not automatically imputed to the rest of his firm.


Opinion No. 789 (June 28, 1982) Conflict of interest; part-time state's attorney

It is improper for a part-time assistant state's attorney handling civil matters to represent private clients on zoning matters before the county board. The Office of the State's Attorney is responsible for advising the county board on matters of zoning, and as a member of the staff of the Office of the State's Attorney, the part-time assistant has a duty to that employer. Representation of private citizens in zoning matters would give rise to the appearance of an impermissible conflict of interest.


Opinion No. 871 (April, 1984) Conflict of interest; part-time state's attorney

It is impermissible for a part-time assistant state's attorney who is responsible for all family court matters for the state's attorney's office to represent private parties in dissolution of marriage cases. The rules regarding conflict of interest clearly prohibit an assistant state's attorney from representing private clients in dissolutions involving custody or child support. Even if the matters are agreed at the time of dissolution, subsequent non-compliance issues may arise that would involve the state's attorney's office prosecuting issues of custody or support. Additionally, even if the dissolution of marriage case does not involve children, matters may arise that would involve the Office of the State's Attorney, such as Domestic Violence Act cases, or enforcement of maintenance actions for recipients of public assistance. Therefore Rules 5-101(a) and 5-105 of the ICPR (predecessors to Rule 1.7 of the IRPC) would preclude such multiple representation.


Opinion No. 85-10 (January, 1986) Conflict of interest; former state's attorney

It is impermissible for a former assistant state's attorney, now in private practice, to accept employment on behalf of a minor injured in an automobile accident, as a result of which the attorney, as assistant state's attorney, prosecuted and convicted the proposed civil defendant for reckless driving. Pursuant to Rule 9-101(a) and (b) of the ICPR, (predecessor to Rule 1.11 of the IRPC) the lawyer may not accept subsequent private employment regarding a matter in which he participated personally and substantially while in public employment.


Opinion No. 86-2 (July 1986) Conflict of interest: part-time state's attorney

It is not a per se impermissible conflict of interest for a part-time assistant state's attorney, who primarily is responsible for civil matters, or members of his firm, to represent defendants in criminal matters where the violations occurred in counties other than the county where the attorney serves as assistant state's attorney.


Opinion No. 86-4 (August, 1986) Conflict of interest; special assistant state's attorney

It is not a per se impermissible conflict of interest for an attorney, whose firm includes lawyers employed by the county as special assistant state's attorneys in abuse and neglect actions in juvenile court, to represent clients charged with crimes in that county. Both the public entity and the private clients must consent after full disclosure, pursuant to Rule 5-105 of the ICPR (predecessor to Rule 1.7 of the IRPC). In this opinion, the ISBA ethics committee overturns previous opinions, including opinions 791 and 522, which held that public entity clients could not grant such consent.


Opinion No. 88-2 (August, 1988) Conflict of interest; vicarious disqualification; former public defender hired as assistant state's attorney

A state's attorney's office may hire a former part-time public defender and private defense counsel representing defendants in the same county without causing the vicarious disqualification of members of the state's attorney's office from cases formerly involving the attorney if the state's attorney's office appropriately screens the new attorney from his former cases. The state's attorney's office promulgated a policy whereby the new assistant state's attorney had neither contact with any case in which he had involvement as a public defender, nor communication with any assistant state's attorney handling these matters, and he was required to avoid contact with any matter handled by his former associates in private practice. These policies were deemed to be adequate to prevent the vicarious disqualification of other members of the state's attorney's office.


Opinion No. 88-10 (March, 1989) Communication with adverse party; state's attorney

It is improper for a state's attorney to communicate with a person, a minor under court supervision in a juvenile court action, regarding other parties to the incident without prior consent of the minor's attorney. The opinion notes that the matter involving the minor is still pending and rejected the argument that the "matter" which was the subject of the communication was outside the matter concerning the minor because it concerned other defendants.


Opinion No. 89-4 (July, 1989) Communication with adverse party; state's attorney

It is improper for a newly elected state's attorney to communicate directly with an accused person represented by counsel even though the former state's attorney had the consent of the counsel for the accused, where the communication expanded to matters beyond that the parameters of the original consent. Such communication is prohibited under Rule 7-104(a) of the ICPR (predecessor to Rule 4.2 of the IRPC). The accused's attorney is not mandated under Rule 1-102 of the ICPR (predecessor to Rule 8.4 of the IRPC) to report the conduct of the state's attorney to the ARDC because the violation did not involve unprivileged knowledge of illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit or misrepresentation.


Opinion No. 89-10 (November, 1989) Conflict of interest; representation by assistant state's attorney in both criminal and civil matters involving same set of facts

It is improper for an assistant state's attorney to prosecute a criminal action for abuse of patients against a former employee of a county-operated care facility while also representing the county facility in a civil suit filed by a third party for injuries allegedly resulting from the conduct of the former employee, even if the state's attorney's office is not representing the former employee in the civil suit. An impermissible conflict of interest may arise because the state's attorney may have to take inconsistent positions in the two suits: e.g. in the criminal suit, the state's attorney must prove that the former employee committed the abuse, while in the civil suit, the state's attorney may have to argue that the employee did not commit abuse. If the assistant state's attorney has already been involved in both actions, the entire state's attorney's office may have to withdraw from both matters.


Opinion No. 89-16 (April, 1990) Threatening criminal charges to gain advantage in civil matter

It is not improper for a state's attorney to offer court supervision on a DUI charge only if the defendant agrees to dismiss the civil proceeding to rescind a statutory summary suspension (a statutorily based suspension of driver's license related to the DUI). Generally Rule 7-105 of the ICPR (predecessor to Rule 1.2(d) and (e) and 3.3(a)(7) of the IRPC) prohibits threats of criminal charges to coerce adjustment of a civil, private, claim. Here the criminal charges are already pending, and the civil proceeding does not involve private claims, but rather the public interest in safety on public streets. In this situation, the conditional plea agreement does not prejudice the administration of justice and is not improper provided the defendant is adequately informed of the consequences of the plea agreement.


Opinion No. 90-29 (March, 9, 1991) Conflict of interest; part-time assistant state's attorney

It is improper pursuant to Rule 1.7(a) of the IRPC for a part-time assistant state's attorney representing the people in felony cases to represent prisoners in civil rights actions against law enforcement officials in an adjacent county. ABA Opinion No. 278 sets out the following tests to determine whether the representation in the civil matter is improper: 1) Would it lessen the confidence of the public in the integrity and impartiality of the administration of justice; 2) Would it be a reflection on members of the legal profession; and 3) Would it interfere with the cooperation between state and federal prosecuting attorneys. Applying these tests, the civil representation would be improper because it would be detrimental to the cooperation between the two counties for future criminal prosecutions.


Opinion No. 91-22 (April 3, 1992) Conflict of interest: part-time state's attoney

It is improper for a part-time assistant state's attorney prosecuting criminal cases to represent criminal defendants in a contiguous county, absent the attorney's reasonable belief that the representation would not be adversely affected and consent of both clients after disclosure. The ISBA Ethics Committee declined to determine whether the public client of the state's attorney is the people of the entire state or the people in the particular county served by that state's attorney, deeming this issue one of constitutional or statutory interpretation, but notes that determination of this issue is necessary to decide who has capacity to waive a conflict on the part of the state, county or people.

[Editor's note: This opinion appears to be somewhat in conflict with opinion 90-29. While the opinions deal with slightly different matters--i.e. civil rights representation in a contiguous county and criminal defense in a contiguous county, the policy issues of public confidence, loyalty and effectiveness of public representation would appear similar in both. Yet Opinion 90-29 prohibits the representation without qualification, but this opinion would allow representation qualified on the attorney's reasonable beliefs and client consent]


Opinion No 91-27 (April 3, 1992) Law reform activities affecting client interest

An assistant state's attorney who is the president of a not-for-profit genealogical society may advocate an amendment to the Vital Records Act despite opposition from the local county clerk, whose office is represented by the state's attorney's office pursuant to statute. Pursuant to Rule 6.4 of the IRPC, a lawyer may serve as a member of an organization advocating for law reform despite the effect on the interests of the lawyer's clients. This rule applies to lawyers in public office as well as lawyers in the private sector.


Opinion No. 92-11 (January 22, 1993) Conflict of interest; state's attorney opposing sister and former partner

It is not per se improper for a state's attorney to prosecute a criminal matter in which the sister of the state's attorney represents the defendant. Illinois has not adopted the ABA Model Rule 1.8(i), which prohibits the representation unless the client has consented after consultation about the relationship, or ABA Criminal Justice Standard 3-1.3, which prohibits a prosecutor from participating in a case if his parent, child, sibling or spouse represents the defendant. Given the delicacy of the situation, the attorney should follow carefully Rule 1.7(b) of the IRPC that requires the prosecutor to decline representation if his relationship with the adverse counsel would adversely affect his representation. If the lawyer reasonably believes the representation would not be adversely affected, Rules 1.7(b) and 1.4(b) require client consent after careful disclosure.

Additionally, it is not per se improper for the state's attorney to prosecute a criminal matter in which the former partner of the state's attorney represents the defendant. Under Rule 1.9 the state's attorney would be prohibited, however, from prosecuting any case which was pending in the partnership office. Moreover, both attorneys must comply with Rule 1.7(b) and the relationship between the attorneys must be disclosed to the criminal defendant pursuant to Rule 1.4(b).


Opinion 92-19 (March 26, 1993) Conflict of interest; part-time state's attorney

It is improper for a part-time assistant state's attorney who prosecutes criminal matters from representing privately victims and witnesses in related civil matters. State law prohibits a state's attorney both from receiving any fee or award from a private person for services within the state's attorney's official duties and from accepting employment in a civil case depending on the same set of facts on which a criminal prosecution depends.


Opinion 93-8 (January, 21, 1994) Conflict of interest; state's attorney's personal business interests

A state's attorney may retain an interest in a land trust that leases office space to the attorney's former law partners who may be adversaries in criminal cases. Rule 1.7(b) of the IRPC prohibits an attorney from representing a client if the representation would be materially limited by the lawyer's responsibilities to other persons or by the lawyer's own interests unless the lawyer reasonably believes the representation would not be adversely affected and the client consents after consultation. Because the conflict here is not a direct one between attorney and client and is somewhat attenuated, the attorneys involved may represent their clients subject to client consent after consultation. The private attorneys must disclose to their individual clients and the state's attorney may be required to disclose his interest in the trust prior to election, if possible, by including the disclosure in his Statement of Economic Interest required under the Election Code.


Opinion No. 93-12 (March, 1994) Ex parte communication with judge; state's attorney

It is improper for a state's attorney to communicate ex parte with a judge to obtain an emergency stay of a bail reduction order, except as allowed by law. In the facts presented, after a bail reduction hearing is heard and granted and defendant is in the process of posting bail, the state's attorney learned of further information bearing on the amount of bail, including that the defendant had threatened harm to the victim if released. The state's attorney tells the judge, ex parte, that previously unknown information had been discovered and seeks a stay so that an emergency motion to reconsider can be heard. The stay is granted and the state's attorney is directed to notify the defense counsel. The hearing is held and the original amount of bail was restored.

Rule 3.5(i) of the IRPC prohibits ex parte communication as to the merits of a cause with a judge before whom the proceeding is pending except as permitted by law. The information disclosed to the judge under these facts went beyond procedural matters and concerned the merits. The criminal code requires the state to give the defense reasonable notice of any request for a bail increase unless, on verified application, facts or circumstances are stated that would constitute a violation or threat to violate conditions of bail. Thus, if the state's attorney spoke to the judge, ex parte, before a verified motion or application to increase bail was filed, the communication violated Rule 3.5(i).


Opinion No. 94-16 (March, 1995) Conflict of interest; special prosecutor

It is not improper for a lawyer who represents criminal and traffic defendants in a county to accept appointment as a special prosecutor in individual juvenile cases on behalf of the state's attorney's office in that county. It is reasonable to believe that the attorney's representation of his clients would not be adversely affected, so pursuant to Rule 1.7, after full disclosure and consent of affected clients, he may accept the representation. The lawyer also should continuously analyze his practice to prevent any financial dependence upon the county from interfering with his obligations to private clients and the lawyer must also carefully screen his current and future clients to avoid case-by-case actual conflicts of interest.

[Editor's note: Curiously, this opinion does not cite Opinion 86-4, which allowed lawyers in the firm of a special prosecutor in juvenile matters to represent defendants in criminal matters]


Opinion No. 99-5 (October, 1999) State's attorney; plea bargain

It is not improper for a state's attorney to engage in plea bargaining and to offer to drop more serious charges in return for the defendant dropping pretrial motions and accepting a guilty plea to a lesser charge. However, a state's attorney cannot withdraw a plea bargain agreement because the defense counsel made critical comments regarding the offer to a third person. The prosecutor's decision to renege on the agreement for personal reasons violates Rule 1.2(f) of the IRPC, which prohibits a lawyer from asserting a position when such action would serve merely to harass or maliciously injure another; Rule 3.3(a), which prohibits a lawyer from engaging in conduct in violation of the Rules; and Rule 8.4(a)(5), which prohibits a lawyer from engaging in conduct prejudicial to the administration of justice.