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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.

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Illinois Legal Ethics

1.13   Rule 1.13 Organization as Client

1.13:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.13
Background References: ABA Model Rule 1.13, Other Jurisdictions

IRPC 1.13 is identical to MR 1.13.

There was no equivalent provision in the Illinois Code.

There was no parallel provision in the ABA Code. However, Ethical Consideration 5-18 of the Model Code states that a "lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity."

1.13:101      Model Rule Comparison

IRPC 1.13 is identical to MR 1.13.

1.13:102      Model Code Comparison

There was no parallel provision in the 1980 Illinois Code.

1.13:200   Entity as Client

Primary Illinois References: IL Rule 1.13
Background References: ABA Model Rule 1.13(a), Other Jurisdictions
Commentary: ABA/BNA § 91:2001, ALI-LGL §§ 155, 156, Wolfram § 8.3

Balla v. Gambro, 584 N.E.2d 104 (1991) is a prime illustration of the complex conflicts that may arise between a lawyer and the corporation's constituents. See also Jacobsen v. Knepper & Moga P.C., 1998 WL 90697 (Ill.); George W. Overton, Balla Revisited: Retaliatory Discharge Of Whistleblowing Attorney, CBA Record, 54 (Feb./Mar. 1999). Moreover, Balla shows the interplay between Rule 1.13 and its effects on the quality of attorney-client communication. The Illinois Supreme Court held against extending the tort of retaliatory discharge to in-house counsel. See id. The court's reasoning was that holding otherwise would have a "chilling effect" on the attorney-client privilege as it exists between employers and their in-house counsel. See id. The court explained that if in-house counsel had the right to sue for retaliatory discharge then employers would be less "forthright and candid" with their in-house counsel regarding legal advice on potentially illegal corporate conduct. See id. In sum, the court found the need to preserve the attorney-client privilege more important than the need to grant in-house counsel the general right to sue for retaliatory discharge. See id.; see also Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981) (the importance of safeguarding the attorney-client privilege).

It is important to note that where Rule 1.6 (Confidentiality) and Rule 1.13 overlap, Illinois limits the application of the attorney-client privilege between an attorney and a corporate client to communications between "control group" employees and an attorney. See Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250 (1982). The "control group" test limits the privilege to communications of top management and upon whose opinions and advice the decisionmakers rely. See id.; see also, Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 638 N.E.2d 322 (1994). The corporation has the burden of proof, when assuring the attorney-client privilege, of demonstrating that: the communication originated in a confidence that would not be disclosed; the communication was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; the communication remained confidential; and the employee who communicated with the attorney is a member of the "control group." See id. The "control group" test focuses on the individual people who substantially influence decision, not the facts that substantially influence decisions. See Archer Daniels Midland Co. v. Koppers Company, Inc., 485 N.E.2d 1301 (1985).

The Attorney Registration and Disciplinary Rule has construed Rule 1.13. In In re Schmeider, 92 SH 323 (September 6, 1995), the Review Board of the Attorney Registration and Disciplinary Commission affirmed the Hearing Board's decision to suspend the attorney for three years. The attorney participated in a scheme which defrauded an insurance company. See id. The attorney wrongly accepted checks from an insurance company, deposited the checks into his firm's account, and then remitted the proceeds to an employee of the insurance company, creditors of the employee, and other payees on behalf of the employee. See id. As a result of this scheme, the appellant was charged with failure to act in the best interest of an organization in violation of Rule 1.13. See id. In addition, attorney was found in violation of Rules 1.16(b)(1)(B) (Declining or Terminating Representation) and 8.4 (Misconduct). See id.

1.13:210      Lawyer with Fiduciary Obligation to Third Person

Generally, a lawyer representing an organization as a client does not have a duty to protect one constituent of the organization from another constituent of the organization. A lawyer's duty to protect one constituent from another is triggered only when one constituent breaches his fiduciary duties at the risk of interfering with the lawyer's client's best interests. This situation commonly arises when a lawyer represents a closely held corporation consisting of majority and minority stockholders. See Restatement (Third) of the Law Governing Lawyers: Representing Organization as Client § 155(g) (1997) (Tentative Draft No. 8, 1997); Exception for Fiduciary-Lawyer Communication § 134A (Proposed Final Draft No. 1, 1996), Exception for Organizational Fiduciary § 134B (Tentative Draft No. 1, 1997).

1.13:220      Lawyer Serving as Officer or Director of an Organization

There is currently no Illinois case law on the effect of Rule 1.13 when a lawyer serves as officer or director of a client-organization. However, in ISBA Advisory Opinion 95-15 (July 14, 1995), Conflict of Interest; Corporate Affiliations, 1996 WL 478489, the Illinois State Bar Association (ISBA) states its opinion on a related issue. A per se conflict of interest does not exist when a lawyer represents a private corporation of which his brother is the president and principal shareholder. See id. To safeguard himself from a potential conflict of interest, the ISBA suggests that the lawyer disclose to the other directors the nature of his relationship to the president and principal shareholder. See id. Upon disclosure, the lawyer should then ask these directors to consent to the representation. See id.

In ABA Formal Advisory Opinion 98-410 (February 27, 1998), Lawyer Serving as Director of Client Corporation, the American Bar Association (ABA) advises that a lawyer is not prohibited from serving as a director of a corporation while at the same time serving as its legal counsel. See id. However, there are ethical concerns that should be addressed by a lawyer occupying these two roles. See id. To begin, the lawyer should ensure, at the outset of the duel relationship, that both management and board members are clear as to the different responsibilities held by the lawyer as legal counsel and the lawyer as director. See id. The lawyer must also explain that in some situations the matters discussed at board meetings with the lawyer as director will not receive protection under the attorney-client privilege. See id. And lastly, the lawyer must brief the management and board members on the conflicts of interest that may arise requiring the lawyer to withdraw himself from his role as director or to refuse representing the corporation in a particular matter. See id.

For further reference, See Craig C. Albert, The Lawyer-Director: An Oxymoron?, 9 Geo J. Legal Ethics 413 (1996). See also George W. Overton, The Lawyer as Director— Why? And When?, CBA Record, 62 (Nov. 1998); Micalyn S. Harris and Karen L. Valihura, Outside Counsel as Director: The Pros and Pitfalls of Dual Service, 53 The Business Lawyer 479 (1998).

1.13:230      Divers Kinds of Entities as Organizations

There is currently no Illinois case law holding exactly what types of diverse entities constitute an organization for purposes of Rule 1.13. However, in ABA Formal Opinion 91-361 (July 12, 1991), Representation of a Partnership, the American Bar Association (ABA) stated that a partnership is an organization within the meaning of Rule 1.13. Generally, a lawyer representing a partnership represents the entity, not the individual partners. See id. However, confidential information received by the lawyer while representing the partnership must be disclosed to all individual partners, because it is information relating the representation of the partnership. See id.; See also Rice v. Strunk, 670 N.E.2d 1280, 1287 (Ind. 1996); ABA Formal Opinion 91-361 (July 12, 1991).

According to the Restatement (Third) of the Law Governing Lawyers: Representing Organizational Clients § 155(c) (Proposed Final Draft No. 1 1997), an "organization" constitutes": for-profit and non-profit corporations, limited liability companies, unincorporated associations (such as trade associations and labor unions), general and limited partnerships, professional corporations, business trusts, and joint ventures. See id. An informal entity such as a social club may be an organizational client, as well as any informal group with an established investment pool. See id. Whether the organization is a formal legal entity may be relevant, but is not determinative. See id.

1.13:300   Preventing Injury to an Entity Client

Primary Illinois References: IL Rule 1.13
Background References: ABA Model Rule 1.13(b) & (c), Other Jurisdictions
Commentary: ABA/BNA § 91:2001, ALI-LGL § 155, Wolfram § 13.7

1.13:310      Resignation Versus Disclosure Outside the Organization

When the constituents of an organization make decisions on behalf of the organization, these decisions must be accepted by the lawyer representing the organization. See In re Spanjer Brothers, Inc., 191 B.R. 738 (C.D. Ill. 1996). Further, the Spanjer court held that even if the lawyer doubts the "utility or prudence" of the decisions, the decisions must be accepted. Id. at 751. Regardless of whether "serious risk" may be taken at the organization's expense, the lawyer must accept the constituent's decision. See id. The court held that the lawyer may speak out against the decision only when he knows that the organization may be "substantially injured by action of a constituent that is in violation of the law." See id.

In this situation, the overlap between Rules 1.13 and 1.16(a)(2) (Declining or Terminating Representation) and 1.16(a)(4) becomes readily apparent. When simultaneously confronted with the ethical concerns of Rules 1.13 and 1.16, a lawyer, under Balla v. Gambro, 584 N.E.2d 104 (1991), is required to withdraw if continued representation would result in the violation of the IRPC.

The overlap between Rule 1.13 and 1.5 (Fees) is also visible. The court in Spanjer specifically held that it was permissible for the debtors' management to oppose the appointment of a Chapter 11 trustee. Id. at 751. It is only the lawyer's duty, as the debtors' lawyer, to defend against the motion to appoint upon instruction from management. See id. Therefore, if instructed to do so, it is not a breach of fiduciary duty to oppose the appointment of a trustee. See id. Consequently, when a debtor's attorney opposes appointment of a trustee and loses, the question of compensation often arises. See id. In re Spanjer holds that the lawyer should receive compensation. See id.

Issues of whether a lawyer should resign also arise when the client refuses to cooperate with his lawyer. In Advisory Opinion 92-4 (undated, untitled), the Chicago Bar Association speaks on how a lawyer of a private corporation should proceed when constituents of the corporation become impossible to contact. According to the CBA, a lawyer representing a private corporation in litigation may move to withdraw when the corporation's shareholder(s) proves impossible to contact. See id. However, the lawyer must have made reasonable efforts to locate other constituents of the corporation, if they exist. See id. Even if the lawyer believes the corporation's best interest would best be served if the case was dismissed without prejudice, Rule 1.13 neither obligates nor permits the lawyer to substitute the lawyer's business judgment for that of the absent client. See id.

1.13:400   Fairness to Non-Client Constituents Within an Entity Client

Primary Illinois References: IL Rule 1.13
Background References: ABA Model Rule 1.13(d), Other Jurisdictions
Commentary: ABA/BNA § 91:2001, ALI-LGL § 163, Wolfram § 13.7.5

In Bobbitt v. Victorian House, Inc., 545 F. Supp. 1124, 1126 (N.D. Ill. 1982), an action was brought seeking dissolution of a corporation and an accounting of corporate funds allegedly misapplied by its president. The plaintiff was the corporate director. He moved to disqualify defendants' attorney and its law firm from representing the defendants. The main issue here was whether the plaintiff could reasonably have thought the defendant was acting as his lawyer, not whether an express agreement of representation was met. Due to the scarcity of Illinois law on Rule 1.13, the district court relied on Wayland v. Shore Lobster & Shrimp Co., 537 F. Supp. 1220, 1223 (S.D.N.Y. 1982) in reaching its holding. The district court held that defendants' attorney and its law firm would not be disqualified. More specifically, the district court stated that the defendant cited no support, nor could the court find any support for his contention that "a law firm which acts as counsel to a close corporation acts as counsel to individual shareholders simply by suggesting amendments to a shareholder agreement or by drafting and negotiating on behalf of the corporation severance agreement with departing shareholders." Bobbitt, supra at 1126. As a result, defendants' firm was not disqualified. See id.

In Formal Opinion 91-361 (July 12, 1991), Representation of a Partnership, the ABA notes the difficulties of representing both a partnership and one or more of its individual partners. The ABA advises that Rules 1.7(b)(2) and 1.13(d) suggest a procedure that may be helpful in such situations. See id. According to the procedure set forth, the lawyer for the partnership should explain in writing at the outset of the representation that his role is as counsel to the organization, not to the individual partners. See id. If asked to represent an individual partner, the lawyer should bring the question before the partnership or governing body. See id. The implications of dual representation should be adequately explained and informed consent of not only the partnership, but of all individual members as well, should be obtained. Following these procedures will significantly reduce the appearance of ethical impropriety on behalf of the lawyer.

In conducting an investigation, the lawyer of an organization client may interview constituents of his organizational client even if the constituent's interests are at odds with the interests of his client's. See Restatement (Third) of the Law Governing Lawyers: Dealings with Unrepresented Non-Client § 163(e) (Tentative Draft No. 8, 1997). When the constituent is under personal risk of criminal or civil prosecution, the lawyer must be very clear in explaining that the lawyer only represents the organization. See id. The lawyer's duty to explain the scope of his representation to the organization depends on the circumstances and several other considerations. See id. For instance, a duty to warn the non-client constituent does not exist where the lawyer reasonably believes that the constituent understands the lawyer only represents the best interests of the corporation. See id. Surprisingly, no warning is required even if the constituent provides information that is against the constituent's own best interest. See id. In such a situation, the absence of a warning clearly advantages the organization. See id.

If the lawyer reasonably believes that the constituent is not well informed as to the scope of the lawyer's representation, then the lawyer must fulfill his duty of clarifying that he represents only the best interests of the organization. See id. For example, if the constituent expresses that he believes the lawyer will be keeping their conversation confidential, then the lawyer's duty to clarify his role is triggered. See id. In sum, the lawyer must remain mindful of his duty not to mislead an unrepresented non-client about matters such as the scope of the lawyer's representation and the nature of the organizational client's interest in regard to the constituent. See id.; see also supra at 3.

When a constituent is represented by separate counsel, the lawyer of the organization must follow the limitations that normally apply to a represented non-client. See Restatement (Third) of the Law Governing Lawyers: Definition of Represented Non-Client § 159 (Tentative Draft No. 8 1997); Dealings with Unrepresented Non-Client § 163 cmt. e (Tentative Draft No. 8 March 21, 1997).

1.13:500   Joint Representation of Entity and Individual Constituents

Primary Illinois References: IL Rule 1.13
Background References: ABA Model Rule 1.13(e), Other Jurisdictions
Commentary: ABA/BNA § 91:2601, ALI-LGL §§ 156, 212, Wolfram § 13.7

By distinguishing itself from Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978) (holding that an attorney-client relationship may arise as a result of the "lay party's" subjective belief that the lawyer represents him ), the Seventh Circuit Court of Appeals held in U.S. v. Keplinger, 776 F.2d 678 (7th Cir. 1985), that the corporate employee-defendants failed to establish the existence of an attorney-client relationship between themselves individually and the corporate attorneys. More specifically, the Seventh Circuit held that an individual's mere subjective belief that he is represented individually will not be per se sufficient to prove that such a relationship existed for purposes of the attorney-client privilege. Id. at 700. The potential client's subjective belief must be shown to be minimally reasonable. See id. Keplinger has been followed in U.S. ex rel. Shore v. O'Leary, 833 F.2d 663, 667 (7th Cir. 1987) and Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987).

In Rice v. Strunk, 670 N.E.2d 1280, 1287 (Ind. 1996), the Supreme Court of Indiana followed ABA Formal Opinion 91-36, supra, in holding that a lawyer for a general partnership subject to the Uniform Partnership Act (UPA) matter of partnership law has an attorney-client relationship with both the partnership and each individual partner. See also Wooley v. U.S., 736 F. Supp. 1506, 1509-10 (S.D. Ind. 1990) citing In re Marriage of Wilson, 443 N.E.2d 31, 35 (5th Dist 1982) (effect of UPA in Illinois). However, because management rights under the UPA are subject to any agreement reached between the partners, to the extent that the agreement places management responsibility in the hands of less than all the partners, the attorney-client relationship will exist only between the attorney and those partners who have designated management responsibilities. See id. For purposes of Rule 1.13(a), only those partners to whom management responsibilities have been given constitute "duly authorized constituents." See id. Therefore, the attorney-client privilege does not extend to individual partners who have contracted out of management responsibility. See id.

1.13:510      Corporate Counsel's Role in Shareholder Derivative Actions

In Cannon v. U.S. Acoustics, 532 F.2d 1118 (7th Cir. 1976), a stockholders' suit, the Court granted a motion by defendants to disqualify a plaintiff, a lawyer, and enjoined such plaintiff from disclosing any information received from defendants during the course of his representation. Based on the facts, the Court found it reasonable to infer that the plaintiff received confidential information material to the subject matter of the suit. Thus, the Seventh Circuit found disqualification of the lawyer as a party-plaintiff was warranted.

1.13:520      Representing Client with Fiduciary Duties

In ABA Formal Opinion 92-364 (July 6, 1992), Sexual Relations With Clients, the ABA plainly states that a sexual relationship between a lawyer and a client "may involve unfair exploitation of the lawyer's fiduciary position, and/or significantly impair a lawyer's ability to represent the client competently." In respect to the corporate setting, the lawyer's client is the corporation, rather than an individual employee. See id. As a result of instructions from the client, the lawyer may be instructed to follow "the established corporate chain of command in fulfilling counsel's obligation to report to the entity client." See id. Therefore, the ABA states that a potential conflict of interest arises when the a lawyer, engaging in a sexual relationship with a representative of a corporate client, learns information which may "redound to the detriment of the sexual partner, but which should be reported to a higher authority." See id.

In ABA Formal Opinion 94-380 (May 9, 1994), Counseling A Fiduciary, the ABA notes that in some jurisdictions, a lawyer representing a fiduciary also owes fiduciary duties to the fiduciary's beneficiaries. Moreover, in some cases these duties to the beneficiaries will override obligations otherwise owed by the lawyer to the fiduciary, such as the duty of confidentiality. There is competing authority for the view that when a lawyer represents a fiduciary in a trust or estate matter, the client is not the fiduciary, but rather the trust estate. See Steinway v. Bolden, 460 N.W.2d 306 (Mich. App. 1990). In a jurisdiction where that is the prevailing law, the trust or estate would presumably be the "entity as client" that is contemplated by Rule 1.13. In Illinois, it has been held that "when an attorney advises a fiduciary about a matter dealing with the administration of an employees' benefit plain, the attorney's client is not the fiduciary personally, but rather, the trust's beneficiaries." See McGinn v. DeSoto, 1990 WL 251753 (N.D. Ill. 1990) (not reported in F. Supp); Hammond v. Trans World Airlines, Inc., 1991 WL 93498 (N.D. Ill. 1991) (not reported in F. Supp.) (both cases citing Donovan v. Fitzsimmons, 90 F.R.D. 583 (N.D. Ill. 1981); Wash.-Baltimore Newspaper Guild, Local 35 v. Wash. Star Co., 543 F. Supp. 906, 910 (D.D.C. 1982)).

Generally speaking, the Restatement of the Law Governing Lawyers: Representing Organization as Client § 155(g) (Proposed Final Draft No. 1 March 29, 1996), states that a lawyer representing an organization as a client does not have a duty to protect one constituent of the organization from another constituent of the organization. A lawyer's duty to protect one constituent from another is triggered only when one constituent breaches his fiduciary duties at the risk of interfering with the lawyer's client's best interests. See id. This situation commonly arises when a lawyer represents a closely held corporation consisting of majority and minority stockholders. See id.

1.13:530      Representing Government Client

The judiciary's power to appoint a private prosecutor is affirmed in Young v. U.S. ex. Rel. Vuitton Et Fils v. U.S. S.A., et al. Klayminc v. U.S. ex. rel. Vuitton Et Fils S.A., 481 U.S. 78, 801 (1987); See also EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1987) (application of Young to a civil suit involving a special assistant for the EEOC). The Court holds that "counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." Id. at 807. In reaching this conclusion, the U.S. Supreme Court clearly points out that first the appropriate prosecuting authority should be asked to prosecute (in the case of contempt citations). See id. Only if the request is denied, should a private attorney be appointed. See U.S. v. Vlahos, 33 F.3d 758, 763 (7th Cir. 1994) (district court erred when it appointed private attorney to prosecute in a criminal contempt case); See also People v. Wilkinson, 674 N.E.2d 794 (3rd Dist. 1996) (a public official acts outside his scope of authority when he fails to obtain a court appointment of legal counsel to act as a Special Assistant State's Attorney and accepts public funds to pay for that same privately retained legal counsel). The U.S. Supreme Court maintains that "such a procedure ensures that the court will exercise its inherent power of self-protection only as a last resort." See Young v. U.S. ex. Rel. Vuitton Et Fils v. U.S. S.A., et al. Klayminc v. U.S. ex. rel. Vuitton Et Fils S.A., 481 U.S. 78, 807 (1987). This power arises out of necessity. Id. at 801. If the Judiciary were completely dependent on the Executive branch to initiate prosecutions, then the Judiciary branch would be rendered helpless every time the Executive Branch declined a prosecution. Id. at 801. Appointed prosecutors in a criminal contempt action represent the U.S., not the party that is the beneficiary of the court order that is supposedly violated. Id. at 804. The only goal of an appointed prosecutor is to " . . . pursue the public interest in vindication of the court's authority." Id. at 804. Thus, an appointed prosecutor is expected to be every bit as disinterested as the public prosecutor who takes on such prosecution. Id. at 804.

Such an extreme lack of bias is mandated. For example, "if a Justice Department attorney pursued a contempt prosecution for violation of an injunction benefiting any client of that attorney involved in the underlying civil litigation, that attorney would be open to a charge of committing a felony under 18 U.S.C.A. § 208(a)." See id. In addition, such a conflict violates the ABA ethical provisions. Id. at 804. However, it is important to realize that prosecutors are not held to the same level of neutrality as judges. See Marshall v. Jerrico, Inc. 446 U.S. 238, 248 (1980).

In People v. Fife, 392 N.E.2d 1345 (1979), the defense counsel was a Special Assistant Attorney General who specifically worked on non-criminal matters. However, the Illinois Supreme Court held that a conflict of interest existed, because his client in a criminal case was not informed of his lawyer's affiliation with the Attorney General. See id. Thus, a knowing and intelligent waiver was made impossible. See id. In such a circumstance, the court held that prejudice on behalf of the defendant need not be shown, because a per se conflict of interest exists. Id. at 804. The court states that this holding is applicable to those cases where a member of the same law firm has an affiliation with the Attorney General while another member represents the criminal defendant. See People v. Stoval, 239 N.E.2d 441 (1968); see also People v. McKowan, 431 N.E.2d 704 (3rd Dist. 1982) (Fife rule applied where lawyer was appointed, not retained, and defendant made knowing and intelligent waiver)).

The Seventh Circuit Court of Appeals addressed this conflict of interest issue in U.S. v. Brocksmith, 991 F.2d 1363, 1368 (7th Cir. 1993). In Brocksmith, a Special Assistant Attorney General would have been disqualified had his client not made a knowing and intelligent waiver of his right to have other counsel appointed. The Seventh Circuit relied on U.S. v. Cirrincione, 780 F.2d 620, 624 (7th Cir. 1985). The Cirrincione court noted that the Sixth Amendment right to effective assistance of counsel clearly includes the right to "conflict-free" representation. Id. at 623 citing Cuyler v. Sullivan, 446 U.S. 335 (1980).

See also ABA Formal Op. 97-405 (April 19, 1997).

According to the Restatement (Third) of the Law Governing Lawyers: Representing Governmental Client § 156 (Proposed Final Draft No. 1, 1996), a lawyer representing a governmental client has a duty to act in a manner reasonably calculated to advance the lawful objectives of the client entity as defined by the person who is "authorized to instruct the lawyer on behalf of the client." See id. Representation of a governmental client may differ in three significant respects from that of representation of a client in private practice. First, the goals and objectives of a governmental client include advancement of the public interest. See id. The public interest is identified by the law and government officials. See id. Second, government lawyers and officials who authorize the activities of government lawyers are subject to "greater legal constraint" than that of lawyers representing non-governmental clients. See id. Third, a government lawyer often possesses authority not had by those representing non-governmental clients. See id.

Generally, the ISBA Ethics Advisory Committee has found that a conflict of interest exists where a lawyer combines his private criminal defense practice with public criminal law enforcement work in the same jurisdiction. See ISBA Advisory Opinion 86-4 (August 29, 1986), Conflicts; Consent After Disclosure; Consent By Public Entity, 1986 WL 352861; See also ISBA Advisory Opinion (January 25, 1985), Lawyer In Public Office, 1985 WL 286864. Moreover, the ISBA believes that a per se rule stating that a public entity may never grant consenting within the meaning of DR 5-105(c) is not justified. See id. Such a strict rule is neither called for under the relevant case law nor required to meet the purpose of the IRPC. See id. Therefore, in a situation where a part-time public lawyer wants to represent clients who are adverse or potentially adverse to the public entity in an unrelated matter, consent, as discussed below, is required. See id.

In ISBA Advisory Opinion 729 (April 30, 1981), Conflict of Interest, 1981 WL 167089, the Committee views were in accord with People v. Fife, 392 N.E.2d 1345 (1979). See also ISBA Advisory Opinion 86-2 (July 7, 1986), Conflict of Interest, 1986 WL 352859. It was held that lawyers working at the same firm as a Special Assistant State's Attorney hired to represent the County in civil tax litigation can act as defense counsel so long as three requirements are met. One, the potential client must be informed of the lawyer's affiliation with the State's Attorney's Office. Two, the client must knowingly and intelligently waive any potential conflict of interest. And three, actual prejudice to the client cannot arise. See id. The ISBA reasoned that as a Special Assistant State's Attorney the lawyer will only be handling civil taxation matters. See id. Therefore, the lawyer will not be acting as general advisory counsel to the County or prosecuting criminal cases. See id. As a result, all that is required is consent.

Likewise, in ISBA Advisory Opinion 84-3, Conflict of Interest (October 29, 1984), 1984 WL 262806, the ISBA held that a per se conflict of interest does not exist where a lawyer acts a member of a County Board and simultaneously represents the State of Illinois as a Special Assistant Attorney General in condemnation proceedings. See id.; see also ISBA Advisory Opinion 789, Conflict of Interest (June 28, 1982), 1982 WL 212407 (lawyer must adhere to his duty of client loyalty). The ISBA reasoned that because the private practice of the Special Assistant Attorney General would be in areas unrelated to those in which he would have responsibilities as a public official, a per se conflict does not exist. See id.

According to ISBA Advisory Opinion 91-01, Conflict of Interest: Criminal Defense Attorney and Public Defender Representing the People Through the State's Attorney's Appellate Prosecutor (September 14, 1991), 1991 WL 735058, a per se conflict of interest does not exist when a part-time public defender and criminal defense attorney in County A contracts on a case-by-case basis with the State's Attorney's Appellate Prosecutor's Office to write briefs on State criminal and civil matters. However, full disclosure and consent is required. See id. The ISBA critically differentiates between a lawyer working for the State on a case-by-case basis and a lawyer employed by the State on a full or part-time basis as a Special Assistant State's Attorney or Special Assistant Attorney General. See id. Depending on the facts of the individual cases, the Committee comments that there is much less of a chance that the representation of the State in appellate matters on a case-by-case basis, rather than as a tradition Special Assistant State's Attorney, will material limit the lawyer's duties to his criminal defense clients. See id.