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
1.10:100 Comparative Analysis of Illinois Rule
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.
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).
[The discussion of this topic has not yet been written.]
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
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. 1
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
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. 1
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. 1
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. 1
1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
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.
1.10:500 Client Consent
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. 1