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New ISBA ethics opinions say non-Illinois lawyers can practice immigration law in the state, a lawyer can't be a municipality's prosecutor and hearing officer at the same time, and more.
The ISBA recently issued formal opinions on legal matters involving "foreign" immigration lawyers, municipal prosecutors and adjudicators, and attorney communications with governmental officials who are represented by counsel.
ISBA General Counsel Charles J. Northrup said the opinions received "overwhelming support" from the ISBA Professional Conduct Committee, which is attempting to provide guidance for Illinois lawyers on attorney-conduct issues that are not clearly explained in the relevant statutes, prior court decisions, or opinions from other bar groups.
No serving simultaneously as municipal prosecutor, hearing officer
In opinion 13-07, the Professional Conduct Committee determined that Illinois Rules of Professional Conduct, including the canons that apply to judges and administrative hearing officers, prohibit an attorney from being a municipality's prosecuting attorney while also serving as the municipal hearing officer or adjudicator.
"This inquiry raises the question of whether a lawyer who serves in a dual role as prosecutor for a municipality and administrative hearing officer for that same municipality, albeit in connection with different matters, has a disabling conflict of interest," the opinion states. "The answer is yes."
A municipal prosecutor is an attorney hired by a city or village to represent the government in prosecutions of local ordinance violations in cases heard by circuit court judges. The municipality is the prosecutor's client.
A similar but different role is that of the municipal adjudicator, who is paid by the city or village to serve as a neutral hearing officer for administrative adjudications of other kinds of local ordinance violations. Rather than taking these cases to court, the adjudicator enters written administrative decisions that can be appealed to the circuit court. The municipality is not the adjudicator's client, but is a party who appears before the adjudicator while sitting as the hearing officer on those cases.
The ISBA Committee opined that such dual attorney services for a single unit of government could create a concurrent conflict of interest under the Illinois Rules of Professional Conduct, including Rule 1.7(a)(2), which states that a conflict exists if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."
The opinion also states that a single lawyer providing both services for a municipality could be violating canons of judicial ethics, rules for administrative hearing officers, and the "fundamental premise of the American jurisprudence system...that litigants are entitled to fair and impartial hearings before fair and impartial tribunals."
Although a municipal prosecutor generally does not handle the same kinds of cases as those ruled upon by the adjudicator, that fact "does not alter the conclusion that the lawyer's representation of the municipality as a prosecutor may be materially limited by the lawyer's obligation to be a fair and impartial decisionmaker in his or her role as a hearing officer in ruling on ordinance violations for the same municipality."
Northrup said the conflict for a single attorney would likely be imputed to others in that lawyer's firm, although the formal opinion did not address that issue.
"A draft of this opinion was shared with the ISBA's Local Government Section Council and there were some who disagreed with it," Northrup said. "Nevertheless, there was overwhelming support for the opinion on the Professional Conduct Committee."
Out-of-state lawyers can practice immigration law in Illinois
Opinion 13-08 finds no ethical problems or conduct violations with an out-of-state lawyer, not licensed to practice in Illinois, who nonetheless practices federal immigration law in Illinois with the assistance of a properly supervised nonlawyer who collects information to be used by the lawyer in preparing immigration forms.
The opinion addresses two questions related to that scenario: "Would the out-of-state attorney be in violation of the ethical constraints on practicing law in Illinois without a license?" and "Would the nonlawyer be practicing law in Illinois without a license."
Although Illinois Rule of Professional Conduct 5.5 prohibits the practice of law in the state by people not licensed as attorneys here, the Committee held that practicing federal immigration law is permissible for out-of-state lawyers.
Rule 5.5(b)(2) creates an exception to the general rule for lawyers who are admitted to practice in at least one U.S. jurisdiction, if the services provided in Illinois "are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction."
The Committee found that under federal law, "a lawyer authorized to practice immigration law may be a member of the bar of any state. 8 C.F.R. §§ 1.2, 292.1(a)(1). There is no requirement that such a lawyer be a member of the bar of the state in which he or she practices immigration law, and the imposition of such a requirement by a state would be in contravention of the Supremacy Clause of the U.S. Constitution."
Similarly, the nonlawyer providing services for the out-of-state lawyer is functioning like a law clerk or paralegal, not an attorney, and therefore is not violating any laws or ethical requirements if properly supervised by the attorney.
Northrup said the unauthorized practice of law is a major topic for the Committee, which found ample support for this opinion in the clear language of the relevant conduct rules.
"Notwithstanding that clarity, the Committee provided significant cautionary language with respect to what activities would be acceptable by both the non-Illinois lawyer and his or her assistants in Illinois," Northrup said.
Can a lawyer for a tax-objector communicate directly with the city, bypassing the city attorney?
Opinion 13-09 involves the relatively narrow issue of a lawyer representing a client in a tax-objection case who wants to discuss issues directly with one of the city's decision-makers related to application of the tax law to the subject property. The lawyer knows the decision-maker is represented by the city attorney, yet has a conversation directly with the city decision-maker without first obtaining consent for such conversation from the city attorney.
The Committee found that Illinois RPC 4.2, entitled "Communication with Person Represented by Counsel," controls this scenario. Generally, a lawyer "shall not communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
However, the Committee believes this "no-contact rule" can sometimes be trumped by a person's constitutional right to redress of grievances with government officials. Although the taxpayer's attorney should not discuss settlement options with the decision-maker without first obtaining approval from the city attorney, the taxpayer's attorney can discuss the ways in which the city is assessing and enforcing the relevant tax laws.
"We are of the opinion that an attorney is not precluded from direct communications with a City decision maker as to underlying tax law policy issues, even when there is a pending tax case between the City and the attorney's client," the Committee wrote. "Moreover, in such instance, prior notice to the City's attorney is not required by Rule 4.2"
"This is an opinion with real-world applicability," Northrup said. "I think it is significant for its much clearer guidance in this area of communication between government representatives and lawyers, as well as its departure from early [American Bar Association] opinions."