Can two part-time assistant public defenders who share office space and a secretary represent codefendants with conflicting interests in the same case?

Plain-English summary

Two assistant public defenders shared office space and a common secretary but were not associated in practice, did not hold themselves out as practicing together, and used separate stationery. The county had no separate public defender office, and judges appointed lawyers as assistant public defenders case by case. The committee was asked whether it was an ethical violation or conflict for both to appear in the same case representing separate defendants with conflicting interests, and whether the answer changed if the common secretary was not involved.

The committee answered that there is no per se conflict. It relied on People v. Robinson and People v. Nelson, in which the Illinois Supreme Court declined to treat all lawyers in a public defender's office as a single entity disqualified whenever one had a conflict, requiring instead a case-by-case inquiry. The committee found that office sharing, where the lawyers keep separate practices and distinct professional identities and have no common financial interest or shared reputation, does not itself preclude representing adverse interests, so long as former Rules 5-101(a) and 5-105 are satisfied. Drawing on its Opinion 783, it explained that a financial, business, or property relationship with opposing counsel does not disqualify per se; what matters is whether the relationship will or reasonably may affect the lawyer's professional judgment. Under former Rule 5-105(c), the lawyers may proceed with full disclosure and each client's consent.

The committee drew a firm line at the shared secretary: no disclosure can justify using a common secretary on the conflicting cases, because of the risk of disclosing confidential information and the appearance of impropriety under Canon 9. It also cautioned, citing former Rule 5-105(d), that some office-sharing arrangements may amount to an "affiliation," and that close working relationships or the physical office layout may, in particular cases, preclude representing adverse interests or make protecting client secrets difficult; on the limited facts, there was no per se bar provided the common secretary was not used.

Currency note

This opinion was issued in May 1986, 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 1.7 and 1.10), 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: Can two office-sharing public defenders represent codefendants with conflicting interests?

A: The opinion concluded there is no per se bar; relying on People v. Robinson and People v. Nelson, the committee required a case-by-case inquiry rather than automatic disqualification of the whole office.

Q: What must the lawyers do to take such conflicting representations?

A: Per the opinion, each must fully disclose the office-sharing arrangement and obtain the client's consent under former Rule 5-105(c), and each must be able to exercise independent judgment and preserve confidences.

Q: Can the shared secretary work on both cases?

A: No. The committee held that no disclosure can justify using a common secretary on the conflicting cases, citing the risk of disclosing confidential information and the appearance of impropriety under Canon 9.

Background and rules framework

The opinion applied former Illinois Code Rule 5-101(a) (personal-interest conflicts), Rule 5-105 (declining or continuing conflicting employment, including the 5-105(c) consent exception), Rule 5-105(d) (imputation to affiliated lawyers), and Canons 4, 5, and 9. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 (concurrent conflicts) and 1.10 (imputation), corresponding to ABA Model Rules 1.7 and 1.10.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 5-101(a) and Rule 5-105, including 5-105(c) and 5-105(d) (conflicts and imputation, applied in the opinion)
• Illinois Code Canons 4, 5, 9
• Illinois RPC 1.7 and 1.10 (2010 equivalents per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.10 (imputation of conflicts)

Cases:

• People v. Robinson, 79 Ill. 2d 147 (Ill. 1980), no per se disqualification of a whole public defender's office
• People v. Nelson, 82 Ill. 2d 67 (Ill. 1980), case-by-case inquiry into public defender conflicts

Other opinions cited:

• ISBA Opinions 212, 316, 340, 482, 620, 644, 698, 701, 783, 822, 846: office sharing, conflicts, and public defender representation

See also

• ISBA Ethics Op. 86-13: City Counsel Defending Criminals
• ISBA Ethics Op. 87-04: Public Defender vs. the County
• FL Bar Ethics Op. 70-14: Office Sharing by Nonpartners

Source

• Landing page: https://www.isba.org/ethics/opinions/8514