Can a lawyer who serves on the county board defend criminal cases prosecuted by that county's state's attorney?

Plain-English summary

The inquiring attorney was a member of the county board who also defended criminal defendants prosecuted by that county's state's attorney's office. The inquiry asked whether such representation violates the Rules.

The committee found the question governed by the Illinois Supreme Court's decision in In re Vrdolyak, where a Chicago alderman was found to have a conflict in representing private clients in workers' compensation claims against the city. The Court held that the public official's undivided duty of loyalty and fiduciary duty to the city created a conflict under the former Code's Section 5-101(a), and that even full disclosure and presumably client consent could not overcome it. The committee concluded the same result follows under current Rule 1.7(b), which bars a representation that may be materially limited by the lawyer's responsibilities to a third person or by the lawyer's own interests, absent the lawyer's reasonable belief and the client's consent; in light of Vrdolyak, consent cannot be relied on to cure a public official's representation of clients adverse to his public body.

The committee held that, as a general proposition, the county board member cannot represent defendants in actions prosecuted by the county state's attorney. It noted this was consistent with prior opinions cited approvingly in Vrdolyak, especially Opinion 699 (a lawyer county board member may not represent persons charged by the county state's attorney), and pointed to Opinion 90-17 for the broader analysis of Vrdolyak and Opinion 91-1 on public-official conflicts. The committee acknowledged Opinion 90-17 had recognized certain limited situations where disclosure and consent might permit representation involving the affiliated body.

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 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 Treat this page as historical context, not current guidance.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: Can a county board member defend criminal cases prosecuted by that county's state's attorney?

A: No. The opinion concluded such representation is improper, because the board member's duty of loyalty to the county conflicts with defending clients against the county's prosecutor under Rule 1.7(b) and In re Vrdolyak.

Q: Can the client's consent cure the conflict?

A: The opinion concluded that, in light of Vrdolyak, consent after disclosure cannot be relied on to overcome a public official's conflict in representing clients adverse to his public body.

Q: Are there any situations where a public official may represent clients involving the affiliated body?

A: The opinion noted, citing Opinion 90-17, that certain limited situations may exist where disclosure and consent permit representation involving the affiliated body, depending on the circumstances.

Background and rules framework

The opinion applied Rule 1.7(b) (a representation that may be materially limited by the lawyer's responsibilities to a third person or by his own interests), read through the lens of In re Vrdolyak and the former Code's Section 5-101(a), to a lawyer who is both a county board member and a criminal defense lawyer in that county (Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest) / Illinois Rule 1.7(b)
• Former Illinois Code of Professional Responsibility, Rule 5-101(a)

Cases:

• In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), public official's conflict in representing clients adverse to his public body.

Other opinions cited:

• ISBA Opinions 544, 699, 791, 84-11, 87-13, 90-17, 91-1: public-office conflicts.

See also

• ISBA Ethics Op. 90-17: City Council Member and the Lawyer's Firm
• ISBA Ethics Op. 90-29: Part-Time Prosecutor Representing Prisoners
• ISBA Ethics Op. 90-34: City Prosecutor and Public Defender Partnership

Source

• Landing page: https://www.isba.org/ethics/opinions/9104