Can a lawyer who once worked for a state child-welfare agency as a non-lawyer supervisor now represent clients in juvenile court against that agency?

Plain-English summary

A lawyer had worked seven years for the Illinois Department of Children and Family Services (DCFS) as a child-welfare supervisor, not as a lawyer, and now wished to serve as a "conflicts" lawyer in juvenile court, representing children as a guardian ad litem or parents with a conflict with the Public Defender. Many families in juvenile court had been involved with DCFS during the lawyer's tenure. The questions were whether the lawyer could represent such persons, including where the lawyer's former staff (whom the lawyer supervised) had personal contact with them.

Because the lawyer had not served DCFS as a lawyer, the opinion applied Rule 1.11 (successive government and private employment). Under Rule 1.11(a), the opinion concluded the lawyer cannot represent a private client in a matter in which the lawyer participated personally and substantially as a public employee unless DCFS consents after disclosure; the lawyer must determine whether prior involvement was "personal and substantial," with personal contact being one factor. If it was, DCFS could still consent, and the opinion added that under Rule 1.7(b) the lawyer should then also disclose the prior involvement to the client and let the client decide.

Under Rule 1.11(b), the opinion concluded that even without personal and substantial involvement, if the lawyer acquired confidential government information about a person, the lawyer may not represent a client adverse to that person where the information could be used to the person's material disadvantage, and either the disadvantaged person or DCFS could seek disqualification. The opinion noted the lawyer could rebut a claim of holding confidential information by proof of no such information or by a timely screen, and that being unable to use information against persons in the case could create a Rule 1.7(b) conflict requiring disclosure and the client's consent. It concluded that, in appropriate circumstances, a waiver by DCFS, the client, and the adverse person could avoid disqualification.

Currency note

This opinion was issued in 1997, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.7 and 1.11), 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 Rule 1.11 apply to someone who worked for the agency in a non-lawyer role?

A: Yes. The opinion applied Rule 1.11 to a lawyer who had worked for DCFS as a supervisor rather than as a lawyer, treating the successive-employment rule as the pertinent authority.

Q: When is the former agency employee barred from a juvenile-court case?

A: The opinion concluded the lawyer is barred under Rule 1.11(a) from a matter in which the lawyer participated personally and substantially while at the agency, unless the agency consents after disclosure.

Q: What about confidential information the lawyer learned at the agency?

A: Under Rule 1.11(b), the opinion held the lawyer may not represent a client adverse to a person about whom the lawyer holds confidential government information where that information could be used to the person's material disadvantage.

Q: Can a screen or a waiver cure the problem?

A: The opinion concluded the lawyer could rebut a claim of holding confidential information with proof of none or a timely screen, and that a waiver by DCFS, the client, and the adverse person could, in appropriate circumstances, avoid disqualification.

Background and rules framework

The opinion interpreted Illinois Rule 1.11 (successive government and private employment; Model Rule 1.11), including its definitions of "matter" and "confidential government information," and Rule 1.7(b) (conflict from the lawyer's responsibilities or own interests; Model Rule 1.7). It applied federal screening and disqualification case law from the Seventh Circuit and the Northern District of Illinois.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 (successive government and private employment) / Illinois Rule 1.11
• Model Rule 1.7 (conflict of interest) / Illinois Rule 1.7(b)

Cases:

• LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), disqualification of a former government supervisor and his new firm
• Cromley v. Board of Education of Lockport Township HSD 205, 17 F.3d 1059 (7th Cir. 1994), timely screening avoided disqualification
• SK Handtool Corp. v. Dresser Industries, 246 Ill.App.3d 979, 619 N.E.2d 1282 (1st Dist. 1993), late screen, firm disqualified
• Dugar v. Board of Education, 1992 WL 142302 (N.D. Ill. 1992), former agency lawyer not disqualified
• Porter v. Board of Education, 1992 WL 166570 (N.D. Ill. 1992), access to government confidences

See also

• ISBA Ethics Op. 99-01: Concurrent Representation in Related Family Matters
• ISBA Ethics Op. 98-06: One Spouse in Divorce, Both Spouses in Bankruptcy

Source

• Landing page: https://www.isba.org/ethics/opinions/9607