Can a law firm represent a personal injury plaintiff when one of its lawyers was an assistant state's attorney while related criminal charges against the defendant were pending, but had no role in the prosecution?

Plain-English summary

A law firm represented a plaintiff in a personal injury action arising out of a battery. The defendant in that civil case had also faced a criminal charge based on the same facts, which was resolved by a guilty plea and now-expired supervision. One member of the plaintiff's firm had been an assistant state's attorney in the county where the criminal charge was filed, but had no direct involvement in preparing or prosecuting the criminal case, and none in the civil litigation. The firm asked whether it could re-enter its appearance in the civil case, and whether any conflict on the former prosecutor's part would disqualify the rest of the firm.

The committee found ISBA Opinion 811 controlling: a partner of a former public official is not vicariously disqualified on matters arising during the partner's public service. It read former Rule 9-101, which bars a lawyer leaving public employment from later private work on a matter in which the lawyer participated personally and substantially or that was under his official responsibility, and found it inapplicable because the lawyer had no direct involvement in the criminal case. Under Rule 5-105, the firm would be disqualified only if the individual lawyer were himself barred from the representation, which he was not.

The committee cautioned that its conclusion rested entirely on the stated facts, that any deviation could implicate other provisions of the Code, and that if the lawyer had gained any information through his public employment the analysis would shift to preservation of confidences and the appearance of impropriety. It stressed the lawyer must ensure his past public position confers no special benefit on his client, and that any conflict with the public interest could not be waived on the public's behalf.

Currency note

This opinion was issued in January 1984, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.9, 1.10, and 1.11), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Is a former assistant state's attorney barred from a civil case related to a criminal matter handled by his old office?

A: Not automatically. Per the opinion, former Rule 9-101 disqualifies the lawyer only where he participated personally and substantially in the matter or it was under his official responsibility; here he had no direct involvement, so he was not disqualified.

Q: If the individual lawyer is clear, is his firm disqualified anyway?

A: No. The committee followed Opinion 811: a firm is vicariously disqualified only if the individual lawyer is himself barred under Rule 5-105, which was not the case here.

Q: What would change the result?

A: The opinion warned that if the lawyer obtained any information through his public role, the analysis would turn to preserving confidences and avoiding the appearance of impropriety, and a conflict with the public interest could not be waived on the public's behalf.

Background and rules framework

The opinion applied former Illinois Code Rule 5-105 (declining or withdrawing where independent professional judgment would be adversely affected, and the limited circumstances imputing that to a partner) and Rule 9-101 (a former public employee's later private employment, and avoiding the appearance of impropriety). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.9 (duties to former clients), 1.10 (imputation of conflicts), and 1.11 (former and current government officers and employees), corresponding to ABA Model Rules 1.9, 1.10, and 1.11.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 5-105, Rule 9-101 (applied in the opinion)
• Illinois RPC 1.9, 1.10, 1.11 (2010 equivalents per the Board's affirmation)
• MR 1.9 (former clients); MR 1.10 (imputation); MR 1.11 (former government officers)

Other opinions cited:

• ISBA Opinion 811: a partner of a former public official is not vicariously disqualified on matters arising during the public service

See also

• ISBA Ethics Op. 84-03: County Board Member as Special AG
• ISBA Ethics Op. 86-02: Part-Time Prosecutor in Civil Matters
• ISBA Ethics Op. 86-04: Same Firm as Criminal Defense Counsel

Source

• Landing page: https://www.isba.org/ethics/opinions/8405