Can two assistant public defenders who share an office, secretary, and investigators represent the opposing parent and child in an abuse case?

Plain-English summary

A county assigned two assistant public defenders to juvenile court to represent all indigent parents and children in neglect and abuse cases (under a statute conferring a parental right to counsel) and also to defend all juvenile delinquency charges there. The two shared a single secretary handling all filing, typing, and messages, the same three investigators who also worked the office's traffic, misdemeanor, and felony cases, and a supervisor who carried his own felony caseload. The inquiry asked whether two such attorneys, sharing resources and routinely cooperating, could be required to severally represent parents and children in abuse and neglect cases.

The opinion concluded the procedure seriously compromised confidentiality in violation of Rule 1.6, involved the attorneys in conflicts of interest contrary to Rule 1.7, prevented discharge of the duty to supervise nonlawyer assistants under Rule 5.3, and violated Rule 8.4(a)(5) by undermining the right to counsel. It reasoned that where parental neglect or abuse is alleged, the parent's interest is opposed to the child's as a matter of law, so the shared arrangement would be plainly unacceptable between private attorneys. It distinguished Opinion 85-14, which allowed part-time public defenders sharing an office but maintaining separate practices to represent conflicting criminal defendants with full disclosure and consent, while expressly cautioning that no disclosure justifies use of a common secretary; here the attorneys ran no separate practices, were full-time with joint responsibilities, and consent would be questionable for the parents and legally impossible for the children.

The opinion addressed People v. Robinson, which held a public defender office is not a law firm for imputed-disqualification purposes, but concluded Robinson was not controlling because the issue was not mere imputed disqualification but a close working relationship creating a serious potential for conflict when the attorneys were ordered to oppose each other. Citing People v. Lackey (other counsel must be appointed where a conflict clearly appears and staff cannot effectively represent all parties), the opinion concluded the arrangement forced conflicting representation without effective consent, defeated meaningful confidentiality, and exposed the attorneys to malpractice and civil-rights liability (Ferri v. Ackerman; Tower v. Glover), and was therefore improper.

Currency note

This opinion was issued in 1992, 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 (pointing to Rules 1.6, 1.7, 5.3, and 8.4(d)), while noting 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 public defenders sharing staff represent the opposing parent and child in an abuse case?

A: The opinion concluded this is improper, because sharing a common office, secretary, and investigators while opposing each other compromises confidentiality and creates a conflict of interest.

Q: Can client consent cure the problem?

A: No. The opinion concluded consent would be questionable for the parents and legally impossible for the children, so the arrangement could not be saved by disclosure and consent.

Q: Doesn't Robinson treat a public defender office as not a law firm?

A: The opinion concluded Robinson, which addressed imputed disqualification, did not control, because the issue here was a close working relationship that created a serious conflict when the attorneys were ordered to oppose one another.

Q: Which rules did the arrangement violate?

A: The opinion concluded it violated Rule 1.6 (confidentiality), Rule 1.7 (conflicts), Rule 5.3 (supervision of nonlawyer assistants), and Rule 8.4(a)(5) (undermining the right to counsel).

Background and rules framework

The opinion interpreted Rule 1.7 (conflicts of interest), Rule 1.6 (confidentiality), Rule 5.3 (responsibilities regarding nonlawyer assistants), and Rule 8.4(a)(5) (conduct undermining the administration of justice), reading the public defender conflict cases (Robinson, Lackey, Nelson, Spreitzer) against those rules (Model Rules 1.7, 1.6, 5.3, 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest) / Illinois Rule 1.7
• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6
• Model Rule 5.3 (supervision of nonlawyer assistants) / Illinois Rule 5.3
• Model Rule 8.4 / Illinois Rule 8.4(a)(5)

Statutes:

• Ill. Rev. Stat., ch. 37, para. 801-5 (parental right to appointed counsel)

Cases:

• Lassiter v. Department of Social Services, 452 U.S. 18 (1981), parental right to counsel
• People v. Robinson, 79 Ill. 2d 147 (1980), public defender office not a law firm for imputed disqualification
• People v. Lackey, 79 Ill. 2d 466 (1980), appointment of separate counsel where conflict appears
• Ferri v. Ackerman, 444 U.S. 193 (1979); Tower v. Glover, 467 U.S. 914 (1984), public defender liability

Other opinions cited:

• ISBA Opinion No. 85-14 (part-time public defenders sharing an office)

See also

• ISBA Ethics Op. 94-16: Special Prosecutor Conflicts
• ISBA Ethics Op. 92-18: Firm for Prosecutors, vs. Them Too

Source

• Landing page: https://www.isba.org/ethics/opinions/9117