Can a city attorney draft and advocate for an ordinance that would financially benefit him without disclosing his interest, and must another lawyer report that conduct?

Plain-English summary

A city attorney drafted an ordinance implementing tax increment financing and an enterprise zone, and spoke positively about it at public hearings, after which it was adopted. He did not disclose, publicly or privately, that he and members of his family, and his law partners, owned property in the affected area. His wife and a third-party lessee later received low-interest loans for new businesses. The inquiry asked whether the city attorney could draft and give legal opinions on ordinances that produced favorable tax benefits to him without disclosing his business interest, and whether a lawyer must report conduct that might be an ethics violation but is not illegal conduct involving moral turpitude or dishonesty.

On the first question, the committee applied former Rule 5-101, under which a lawyer shall not accept employment if his professional judgment may be affected by his own financial interest without the client's consent. The committee extended this to the situation: although the initial employment posed no difficulty, the problem arose when the pending ordinance would clearly benefit him financially, and he should have declared his potential personal interest and secured the city's consent before proceeding, or recused himself from further activity on the ordinance. Failure to secure consent would violate Rule 5-101. The committee added that former Rule 8-101(a)(1) did not prohibit the conduct, as the ordinance did not appear obviously contrary to the public interest.

On the reporting question, the committee noted former Rule 1-103(a) requires reporting unprivileged knowledge of a violation of Rule 1-102(a)(3) or (4) (illegal conduct involving moral turpitude, or dishonesty, fraud, deceit, or misrepresentation). Because the benefit to the attorney was not unique to him and the failure to disclose his property ownership in advance may not amount to fraud or deceit, the committee had insufficient information to determine whether such a violation occurred and expressed no opinion.

Currency note

This opinion was issued in 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 Rules (Rules 1.7 and 8.3), 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 a city attorney advocate for an ordinance that would benefit him financially?

A: The opinion concluded he should not participate unless he discloses the personal financial interest and the city consents, or he recuses from further activity on the ordinance; failure to secure consent would violate former Rule 5-101.

Q: Does the city attorney have to disclose family or law-partner property interests in the affected area?

A: The opinion treated the undisclosed financial interest as the core problem, concluding the attorney should have declared his potential personal interest and obtained the city's consent before proceeding.

Q: Must another lawyer report the nondisclosure to the ARDC?

A: The opinion concluded it had insufficient information to find a reportable violation of Rule 1-102(a)(3) or (4) and expressed no opinion, noting the benefit was not unique to the attorney and the nondisclosure may not amount to fraud or deceit.

Background and rules framework

The opinion applied former Rule 5-101 (a lawyer's personal financial interest affecting judgment) and the former reporting rule (Rule 1-103(a), keyed to Rule 1-102(a)(3) and (4)), which the Board later mapped to the conflict-of-interest and misconduct-reporting rules (Model Rules 1.7 and 8.3).

Citations and references

Rules of Professional Conduct:

• Former Illinois Code Rule 5-101 (personal financial interest) / current Model Rule 1.7
• Former Illinois Code Rule 1-103(a) (reporting), keyed to Rule 1-102(a)(3), (4) / current Model Rule 8.3
• Former Illinois Code Rule 8-101(a)(1) (lawyer holding public office)

See also

• ISBA Ethics Op. 91-04: County Board Member Defending County Prosecutions
• ISBA Ethics Op. 91-09: Lawyer on an Unpaid Advisory Village Commission
• ISBA Ethics Op. 90-28: Reporting Triggered by Actual Knowledge

Source

• Landing page: https://www.isba.org/ethics/opinions/8915