Can a collection lawyer garnish a bank's account for one client when the lawyer also represents that bank in other collection matters?

Plain-English summary

A lawyer representing a collection agency pursued collections for the agency's customers. For one customer, the lawyer filed a garnishment action against the bank account of the customer's debtor. The debtor's account was at a bank that was also a customer of the collection agency and was represented in other collection matters by the same lawyer. The inquiry asked whether this created a conflict of interest.

The opinion first explained that a lawyer who represents a collection agency actually represents the agency's customers, so both the garnishing customer and the bank were the lawyer's clients, each owed loyalty and confidentiality (citing Opinions 123, 302, and 469). Applying Rule 1.7, the opinion concluded the facts did not show an actual conflict, because it was unknown whether the bank had any interest that would be adversely affected by the garnishment.

The opinion concluded that the conflict was merely potential: if the bank was a mere stakeholder of the depositor's funds with no set-off, counterclaim, or defense, there would appear to be no conflict. To ascertain the bank's position, full disclosure to both parties and their consents should be obtained. If the bank was represented by someone other than the collection lawyer in answering the garnishment and did not object, the lawyer could proceed, again with disclosure and consent, and withdrawal was not required so long as the lawyer reasonably believed the representation would not adversely affect the relationship with the other client under Rule 1.7(a) and (b).

Currency note

This opinion was issued in 1993, 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 1.7 and 5.5(a)), 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 Treat this page as historical context, not current guidance.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: Does representing both the creditor and the garnishee bank create a conflict?

A: The opinion concluded the conflict is only potential where the bank is a mere stakeholder with no set-off, counterclaim, or defense, so there may be no actual conflict at all.

Q: Can the lawyer proceed with the garnishment?

A: The opinion concluded the lawyer may proceed if he reasonably believes the representation will not adversely affect the relationship with the other client and both clients consent after disclosure, and that withdrawal is not required on these facts.

Q: Does representing a collection agency mean representing its customers?

A: Yes. The opinion concluded that a lawyer for a collection agency actually represents the agency's customers, each of whom is owed the lawyer's loyalty and confidentiality.

Background and rules framework

The opinion interpreted Rule 1.7 (general conflict-of-interest rule), which barred representation directly adverse to another client, or materially limited by responsibilities to another client, absent the lawyer's reasonable belief the representation would not be adversely affected and the clients' consent after disclosure (Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: general rule) / Illinois Rule 1.7(a), (b), (c)

Other opinions cited:

• ISBA Opinions Nos. 123, 302, 469 (collection lawyer represents the agency's customers); ABA/BNA Manual on Professional Conduct 51:101

See also

• ISBA Ethics Op. 93-18: Related Matter, Aligned Former Client
• ISBA Ethics Op. 05-01: Cross-Examining a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9302