Can a lawyer keep representing a client who has filed a disciplinary complaint against the lawyer over that same matter?

Plain-English summary

A lawyer filed a claim for a client with the Illinois Industrial Commission, lost, and appealed on the client's behalf. The client then filed a complaint against the lawyer with the disciplinary commission about that proceeding, but told the Industrial Commission he had no objection to the lawyer continuing to handle the matter; the lawyer was willing to continue if no ethical violation existed. The inquiry asked whether the lawyer could continue the representation.

The committee explained that the lawyer may withdraw under former Rule 2-110(c)(1)(D), because filing a disciplinary action arguably makes it unreasonably difficult to carry out the employment and may signal a breakdown in the relationship. But it concluded the lawyer need not withdraw if the client is fully apprised of the resulting difficulties and the lawyer is confident he can continue without prejudice. Former Rule 5-107(a)'s "undivided fidelity" guides the situation; if the lawyer's interest in the related disciplinary matter would adversely affect his zealous representation, he must withdraw under Rules 2-110(b)(2) and 7-101(a)(3). Drawing on Opinion 822, the committee held that a lawyer facing potential divided loyalty need not withdraw if he reasonably believes the representation will not be adversely affected and makes full disclosure.

Because both the lawyer and the client appeared willing to continue, the committee concluded the lawyer may continue, provided his professional judgment is not adversely affected and the client consents after being fully apprised of the potential conflicting loyalties. It added, citing In re Jerome, that it is improper to condition settlement of civil litigation on withdrawal of a pending disciplinary matter, and the same may be true of conditioning further representation on the client withdrawing the disciplinary charge.

Currency note

This opinion was issued in November 1989, 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 May 2010 as generally consistent with the 2010 Rule (Rule 1.7), 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: Does a lawyer have to withdraw if a client files a disciplinary complaint against him about the case?

A: The opinion concluded the lawyer may withdraw but need not, so long as the client is fully apprised and the lawyer is confident he can continue without prejudice to the client.

Q: What is the condition for continuing?

A: Per the opinion, the lawyer's professional judgment must not be adversely affected and the client must consent after being fully apprised of the potential conflicting loyalties; if his judgment would be impaired, he must withdraw.

Q: Can the lawyer make the client drop the complaint as a condition of continuing?

A: The opinion concluded that, by analogy to In re Jerome (which bars conditioning a civil settlement on dropping a disciplinary matter), conditioning further representation on the client withdrawing the charge may be improper.

Background and rules framework

The opinion applied former Illinois Code Rule 2-110 (withdrawal), Rule 5-107(a) (undivided fidelity), and Rule 7-101 (zealous representation). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7, corresponding to ABA Model Rule 1.7; the withdrawal discussion corresponds to Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 2-110, 5-107, 7-101 (former Code, applied in the opinion)
• Illinois RPC 1.7 (2010 equivalent per the Board's affirmation)
• MR 1.7 (conflicts of interest), MR 1.16 (declining or terminating representation)

Cases:

• In re Jerome, 31 Ill. 2d 284, 201 N.E.2d 440 (Ill. 1964), improper to condition a civil settlement on withdrawing a disciplinary matter

Other opinions cited:

• ISBA Opinion No. 822: a lawyer facing potential divided loyalty need not withdraw if he reasonably believes the representation will not be adversely affected and makes full disclosure

See also

• ISBA Ethics Op. 89-04: A Prosecutor's Direct Talks With a Represented Defendant
• ISBA Ethics Op. 88-05: Sitting on a Bank's Board While Representing Its Competitor

Source

• Landing page: https://www.isba.org/ethics/opinions/8911