Must a lawyer withdraw when opposing counsel threatens to sue the lawyer personally over conduct in the case?

Plain-English summary

A lawyer filed a debt-collection suit for a client. The defendant's lawyer responded by letter claiming the suit's lawyer had violated the Fair Debt Collection Practices Act in pre-litigation communications, and offered to release the lawyer from any FDCPA claim in exchange for dismissing the collection case with prejudice. The lawyer asked whether he was obligated to withdraw from representing his client.

The opinion concluded he was not. Under Rule 1.7(b), a lawyer may not represent a client where the representation may be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after disclosure. The committee acknowledged the lawyer's interests could put him in potential conflict with his client, but concluded that did not preclude continued representation if he reasonably believed his representation would not be adversely affected and the client consented after disclosure of the potential conflict; it would not say, on these facts, that such a belief would be unreasonable.

The committee drew support from its Opinion 89-11, which recognized that, with the client's informed consent, a lawyer may continue representing a client even where the client has a disciplinary complaint pending against the lawyer in the same proceeding, and that withdrawal (then permitted under former Rule 2-110(c)(1)(D), now Rule 1.16(b)(1)(D)) was not mandated where both lawyer and client wished to continue. The committee concluded the same rationale applied even more clearly here, so the representation could continue if Rule 1.7(b) was satisfied.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois 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, 1.16(b)(6), and 8.4(g)), 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 Treat this page as historical context, not current guidance.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: Must a lawyer withdraw if opposing counsel threatens to sue the lawyer over the case?

A: No. The opinion concluded withdrawal is not mandated; under Rule 1.7(b) the lawyer may continue if he reasonably believes the representation will not be adversely affected and the client consents after disclosure.

Q: What must the lawyer do to keep representing the client?

A: The opinion concluded the lawyer must reasonably believe his representation will not be adversely affected by the potential conflict and obtain the client's consent after disclosing the potential conflict.

Q: Does a pending complaint or threatened claim against the lawyer change the answer?

A: The opinion concluded it does not by itself; citing Opinion 89-11, it concluded that even a pending disciplinary complaint in the same matter does not mandate withdrawal where both lawyer and client, after disclosure, want the relationship to continue.

Background and rules framework

The opinion interpreted Rule 1.7(b) (a personal-interest conflict does not bar representation where the lawyer reasonably believes the representation will not be adversely affected and the client consents after disclosure), read alongside Rule 1.16(b)(1)(D) (permissive withdrawal) and Opinion 89-11 (Model Rules 1.7, 1.16).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest; personal interest) / Illinois Rule 1.7(b)
• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16(b)(1)(D)

Statutes:

• Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (basis of the threatened claim)

Other opinions cited:

• ISBA Opinion No. 89-11 (continued representation despite a pending complaint, with informed consent)

See also

• ISBA Ethics Op. 91-26: Suing a Client-Insurer
• ISBA Ethics Op. 91-28: Who Paying the Bill Makes a Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9030