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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Illinois Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:

1.10:101      Model Rule Comparison

IRPC 1.10 is largely new language, although much has been borrowed from MR 1.10.

IRPC 1.10(a) roughly tracks MR 1.10(a). In the cross-references, Illinois omits any mention of a Rule 2.2, since that MR is omitted in the Illinois Rules. There are further cross-references to IRPC 1.11 (Successive Government and Private Employment) and IRPC 1.12 (Former Judge or Arbitrator).

IRPC 1.10(b) roughly parallels MR 1.10(b), but introduces the concept of screening as curative. It was felt by the Illinois drafters that the fairly absolute prohibitions of MR 1.10(b) would severely limit the movement of lawyers to and from different firms, and thereby the client's freedom of choice.

IRPC 1.10(c) is, substantially, MR 1.10(b), slightly reworded.

IRPC 1.10(d) is MR 1.10(c), slightly reworded.

Although IRPC 1.10(e) does not so state (a defect of draftsmanship) it is clear by logic and the existing case law that all of the steps described in IRPC 1.10(e) should normally be taken in advance of the occurrence of any incident. See 1.10:300.

IRPC 1.10(e) has no parallel in either the MRs or the Illinois Code.

Most of IRPC 1.10 is without parallel in the Illinois Code, except for Illinois Code 5-105(d).

1.10:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

1.10.103      Definition of "Firm"

A "firm" or "law firm" is "a lawyer or lawyers engaged in the private practice of law in a partnership, professional corporation, or other entity or in the legal department of a corporation, legal services organization or other entity." See 0.4:430. State entities such as a city prosecutor's or State's Attorney's office are firms, as are quasi-public organizations such as the public defender's office.

A governmental agency (e.g., the Illinois Department of Employment Security) that employs legal personnel or has a legal department is not itself a "firm" or "law firm." An entity that does not qualify as a "firm" may not be able to remove the taint of conflict through otherwise effective screening techniques. For example, where a governmental agency desires confidential information, for accounting purposes rather than legal purposes, from a legal services organization whose clients may be defendants in criminal or administrative actions, the agency's ability to screen the information from its legal personnel or from other state prosecutorial personnel is compromised because it is not subject to the discipline for ethical violations under the Rules. See ISBA 90-01 (November 6, 1990) (discussing the issue.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary Illinois References: IL Rule 1.10
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 203, Wolfram § 7.6

Imputed conflicts upon currently affiliated lawyers typically arise in one of two ways. A lawyer leaves a former practice, either private or public, for a new firm which handles or may handle clients and matters that are adverse to the clients and matters that the migrating lawyer previously represented. Or, two or more adverse matters are taken on by a firm or similar organization (e.g., the public defender's office) in which the lawyers working on the matters may have direct contact with each other or indirect conflict (e.g., through shared secretaries and other resources).

It is common for significant problems to arise when an attorney moves to a new firm—particularly a medium-sized to large-sized law firm—and that firm subsequently appears in litigation against the former firm. In Illinois, there is a presumption that the attorney has shared, or will share, confidences about a former client with his new colleagues. See SK Handtool Corp. v. Dresser Indust., Inc., 619 N.E.2d 1282, 1289 (Ill. App. 1st Dist. 1993). The presumption arises under both Illinois and federal law. See id.; see also Weglarz v. Bruck, 470 N.E.2d 21, 26 (Ill. App. 1st Dist. 1984); LaSalle Nat’l Bank v. County of Lake, 703 F.2d 252, 257 (7th Cir. 1983). The presumption is rebuttable, however, and the usual method for cleansing the attorney and his new firm of the taint of the former representation is through effective screening. See 1.10:300.

Screening may not be effective, however, where a potential conflict arises between lawyers who closely share resources. For example, two lawyers who share a secretary or paralegal may find themselves on opposite sides of a matter, or, one lawyer who formerly represented a party while at another firm now finds that client is involved in litigation with a client represented by his colleague in the next office who shares files and a paralegal with the other lawyer. These lawyers may not be able to rebut the presumption of shared confidences. See ISBA 85-14 (May 22, 1986) (public defenders who share a secretary may not represent defendants with conflicting interests). On the other hand, the mere sharing of office space or resources does not imply that the conflict is irrefutable. The inquiry is fact-specific, and the conflict may be irrefutable only where the facts demonstrate that inadvertent, improper disclosures are likely. See People v. Nelson, 411 N.E.2d 261 (Ill. 1980) (discussing the fact-based factors of the analysis).

1.10:300   Removing Imputation by Screening

Primary Illinois References: IL Rule 1.10(b)
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 204, Wolfram § 7.6

IRPC 1.10(b) posits screening as curative, a view that had already taken hold in Illinois courts by the time the Illinois Rules were adopted in 1990. Prior to 1985, however, the effectiveness of screening as a method for removing the imputed conflict of a migratory lawyer was in dispute in Illinois state courts. In Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. 1st Dist. 1984), a divided appellate court held that a "Chinese wall" is an effective way to remove the taint of the former representation only where the attorney could also show that he had no knowledge of the former client's secrets and confidences. This rather harsh rule essentially ruled out screening as anything other than a bandage applied by the new firm for appearance's sake.

The following year, however, a sister appellate court held that effective screening could completely dissipate the appearance of impropriety. Marriage of Thornton, 486 N.E.2d 1288, 1294-97 (Ill. App. 1985). Thornton involved a judge who, after ruling against a wife's discovery requests in a divorce action, subsequently left the bench and joined the husband's law firm during the pendency of the case. Thornton marked a sea-change; Illinois courts began to accept screening as an effective method for removing imputed conflict for migratory lawyers. See SK Handtool Corp. v. Dresser Indust., Inc., 619 N.E.2d 1282, 1290 (Ill. App. 1st Dist. 1993) ("[T]he trend of Illinois and federal case law, as well as the adoption of the Illinois Rules, is toward allowing the existence of effective screening to rebut the presumption of shared confidences between a newly associated attorney and his new firm."); ISBA 88-02 (discussing effective screening techniques where a former public defender joins the State's Attorney's office).

A question that has consistently troubled courts is whether a screening system must be in place prior to the appearance of the conflict or whether effective screening can be imposed after the conflict becomes known. The Seventh Circuit has consistently held that the imputed conflict that arises when a new lawyer joins a firm cannot be rebutted by affidavits produced by the new firm after the fact to the effect that no confidences and secrets have been shared. Rather, only where "specific institutional mechanisms" were established prior to the time that the attorney joins the firm will the presumption of conflict dissipate. In LaSalle Nat’l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), for example, the court affirmed the disqualification of an attorney and firm because the firm did not institute screening mechanisms until the motion to disqualify was made, a full six months after the new attorney joined the firm. The court did not accept the affidavits of firm members as sufficient to rebut the presumption that confidences were shared. In SK Handtool, 619 N.E.2d at 1293, the court held that the institution of full screening mechanisms a full five weeks after a new attorney joined the firm was not timely.

These decisions are consistent with IRPC 1.10(e)(4), under which screening is be deemed effective only if the "firm has taken affirmative steps" to institute screening mechanisms that satisfy the requirements of IRPC 1.10(e)(1) through (3). A law firm has a duty "to make some effort to ascertain in advance whether the hiring of a new attorney will require screening." SK Handtool, 619 N.E.2d at 1292; LaSalle, 703 F.2d at 259 & n. 3; Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983).

The text and construction of IRPC 1.10(e) suggests that, for screening to be effective, all of the steps described in IRPC 1.10(e) must have been taken prior to the event giving rise to the conflict. This view is consistent with the trend in the case law. Nevertheless, no Illinois state court appears to have held that there is a per se rule of disqualification where screening mechanisms are not in place on the day that a new attorney arrives laden with potential conflicts with former clients, and the law remains uncertain. See SK Handtool, 619 N.E.2d at 1292 ("Nor does this court need to decide today whether screening must be in place on the day an attorney joins a firm to prevent disqualification as a matter of law."); see also ISBA 88-02 (screening mechanisms "should be in place immediately upon the attorney's arrival") (italics added), and North American Philips Corp. v. American Vending Sales, Inc., 1993 U.S. Dist. LEXIS 16216, 1993 WL 47 3630 (N.D. Ill. Nov. 15, 1993), rev’d on other grounds, 35 F. 3d 1576 (Fed. Cir. 1994). Kapco Mfg. Co. v. C & O Enterprises, Inc., 637 F. Supp. 1231 (N.D. Ill. 1985) suggests that screening will work for a migratory secretary. Where the disqualification of an attorney's new firm is sought by a former client, the presumption of shared confidences cannot be rebutted by affidavits from the members of the new firm. See LaSalle Nat’l Bank v. County of Lake, 703 F.2d at 252, 257 (7th Cir. 1983); SK Handtool Corporation v. Dresser Indust., Inc., 619 N.E.2d 1282, 1291 (Ill. App. 1st Dist. 1993) (discussing the issue).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary Illinois References: IL Rule 1.10(c)
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2008, ALI-LGL § 204, Wolfram § 7.6.3

Under IRPC 1.10(c), the former law firm of a departed attorney may represent a new client in a materially adverse matter to that of the former attorney's client only if "the matter is not the same or substantially related to that in which the formerly associated lawyer represented the client," and where "no lawyer remaining in the firm has information protected by IRPC 1.6 and IRPC 1.10 that is material to the matter."

Where the disqualification of an attorney's new firm is sought by a former client, the presumption of shared confidences cannot be rebutted by affidavits from the members of the new firm. See LaSalle Nat’l Bank v. County of Lake, 703 F.2d at 252, 257 (7th Cir. 1983); SK Handtool Corporation v. Dresser Indust., Inc., 619 N.E.2d 1282, 1291 (Ill. App. 1st Dist. 1993) (discussing the issue). However, the presumption of shared confidences among the lawyers in the former firm may be rebutted by affidavits by all of the remaining lawyers at the firm to the effect that they did not receive confidential or secret information from the departed attorney. See, e.g., Novo Therapeutisk Lab. v. Baxter Travenol Lab., 607 F.2d 186 (7th Cir. 1979) (en banc). In Novo Therapeutisk, the defendant in a patent infringement case was represented by an attorney who formerly worked for the firm representing the adverse party. The attorney moved to disqualify his former firm because, he asserted, he had reviewed some documents and billed just over two hours to the adverse party on work substantially related to the present litigation. The Seventh Circuit found that, while the matters were substantially related, the presumption of conflict and disqualification was effectively rebutted by affidavits from all of the members of the former firm to the effect that they had received no confidential disclosures from their former colleague regarding the related matter. In addition, the court found it telling that the accusing attorney did not himself allege that he had revealed confidences to his former colleagues. Id. at 195-97.

1.10:500   Client Consent

Primary Illinois References: IL Rule 1.10(d)
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 202, Wolfram §§ 7.2, 7.3

IRPC 1.10(d) provides that a "disqualification prescribed by Rule 1.10 may be waived by the affected client under the conditions stated in IRPC 1.7." IRPC 1.7, which tracks MR 1.7 except for paragraph structure, provides that an attorney may represent a client against a former client if the former client consents after "disclosure" (after "consultation" under MR 1.7). This accords with IRPC 1.9(a)(1), which provides that such representation is allowed if the "former client consents after disclosure." The concept is one of "informed consent."

Informed consent can be either express or implied, and the vast majority of litigation in this area is fought over the parameters of implied consent. A former client can waive the right to disqualify an attorney by failing to move for disqualification in a timely fashion: "A party waives any objection to an alleged attorney conflict of interest if it fails to assert that conflict promptly." International Ins. Co. v. City of Chicago Heights, 643 N.E.2d 1305, 1313 (Ill. App. 1st Dist.1994) (client gave implied consent to representation by waiting sixteen months after conflict arose to move for disqualification of former attorney); Chemical Waste Management v. Sims, 870 F. Supp. 870 (N.D. Ill. 1994) (twenty-one month delay); Nuccio v. Chicago Commodities, Inc., 628 N.E.2d 1134 (Ill. App. 1st Dist. 1993) (six year delay); Tanner v. Board of Trustees, 459 N.E.2d 324, 329 (Ill. App. 4th Dist. 1984) (ninth month delay); Roth v. Roth, 405 N.E.2d 851, 855 (Ill. App. 3rd Dist. 1980) (two year delay). The client's delay is but one factor; others include whether the former client was represented by counsel during this period, and whether and to what degree a disqualification would harm the attorney's present client. See Chemical Waste Management v. Sims, 870 F. Supp. 870 (N.D. Ill. 1994) (discussing factors).