ISBA Ethics Opinions by IRPC Rule 1.6

Under Rule 1.9(a), a lawyer who had previously represented a medical group in defending against medical malpractice claims may not subsequently represent a client in asserting a medical malpractice claim against a physician who is a member of the medical group if the matters are the same or substantially related, unless the former client provides informed consent. Even if there is no conflict under Rule 1.9, the lawyer should not use or reveal confidential information relating to the former representation except as otherwise permitted under IRPC 1.9(c).

A lawyer who knows about a client’s fraud may disclose otherwise confidential client information to third parties if done in such a manner as to prevent, lessen or rectify the client fraud. However, even if the information is not disclosed, the lawyer will still likely need to withdraw as client’s attorney and take other actions.

An Illinois lawyer may “outsource” legal and legal support services relating to a matter provided the lawyer reasonably believes that the other lawyers’ and nonlawyers’ services will contribute to the competent and ethical representation of the client and reasonable measures are taken to protect client information and to avoid conflicts of interest. Disclosure to, and informed consent by, the client will ordinarily be required. Informed client consent is always required if the lawyer delegates or transfers complete or substantial responsibility for a matter to an unaffiliated lawyer.

A lawyer who won a verdict for a client in litigation that is being appealed may allow the client to obtain financing and assist the client in obtaining financing from a third party during the pendency of such litigation. Although the Rules do not prohibit the lawyer’s assistance or cooperation, the lawyer’s assistance and cooperation are governed by several ethical limitations including the lawyer’s duty to render independent professional judgment and candid advice to the client free of third party interference, to maintain confidentiality of the client’s information and to obtain the client’s informed consent for the lawyer’s disclosure of any information to the finance company.

As a means to avoid imputation of a conflict within a lawfirm, screening is only available when a lawyer becomes associated with a firm. Screening is not available to insulate existing members of a firm from each other’s potential conflicts.

An in-house corporate lawyer may provide legal services to multiple subsidiaries of the same corporate parent, but nevertheless must be mindful of the application of the Rules of Professional Conduct, particularly those addressing conflict of interest and confidentiality.

A lawyer must maintain records that identify each client and reflect whether the client’s representation is active for an indefinite period of time. A lawyer must maintain all financial records related to the lawyer’s practice as well as complete records of trust account funds and other property of clients or third parties held by the lawyer for at least seven years. For other records and materials, if appropriate steps are taken to return or preserve actual client property or items with intrinsic value, it is generally permissible for a lawyer to dispose of closed file materials within a “reasonable” time after conclusion of a matter; and seven years should generally be considered a reasonable time. Sending former clients notice of the proposed disposal of a closed file generally should not be required. Any method of disposal must protect the confidentiality of client information.

A lawyer who represents the second wife in obtaining child support for her two young children from a former husband has a conflict of interest with the first wife of the same husband under Rule 1.9 because of his previous representation of the first wife in obtaining child support from that same husband for her child who is now 15 years old. The lawyer also has a “material interest” conflict under Rule 1.7 in connection with his representation of the second wife in her child support claim. These two Rules require the lawyer to obtain the informed consent of both wives in order to undertake the representation.

An attorney may not encourage a client to engage in the practice known as “taint shopping,” whereby a prospective client meets with an attorney for the sole purpose of disqualifying the attorney from representing an opponent. An attorney who participates in an initial consultation with a prospective client, but who is not retained by the prospective client, is not prohibited from later representing a client with materially adverse interests in the same or in a substantially related matter if: (a) before the consultation, the attorney obtained the prospective client’s informed consent of any conflict that might arise from the information disclosed by the prospective client; (b) even in the absence of an informed consent, the attorney did not receive information that could be significantly harmful if used in the matter; or (c) the attorney can establish that the prospective client revealed information to the attorney with no intention of retaining the attorney.

Use of a lawyer listserv or bar association online discussion group can be a useful and effective means to educate lawyers and can provide a resource when lawyers engage in research and decision-making. However, when lawyers consult with other lawyers who are not associated with them in the matter, both the consulting lawyer and the consulted lawyer must take care to protect client confidentiality and the attorney-client privilege and take care to avoid creating a conflict of interest with existing clients. In addition, an online discussion group is not a substitute for the consulting lawyer’s legal research.

Child sex abuse is “substantial bodily injury” for purposes of the Illinois Rules of Professional Conduct, so an Illinois lawyer must reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain child sex abuse. Whether an Illinois lawyer has a duty to report suspected child sex abuse under a federal statute is a question of law beyond the competence of the Committee.

When a lawyer-mediator learns that a lawyer representing a party in a mediation has violated Rule 8.4(c), the lawyer-mediator has an obligation to report that lawyer’s misconduct. Provisions in the Uniform Mediation Act or the Not-For-Profit Mediation Center Act generally do not prevent such disclosure.

A lawyer may represent a client in a matter unrelated to a prior divorce proceeding in which the lawyer represented former client who now may testify against his current client. However, the lawyer may not cross-examine the former client unless it can be done both without using information relating to the prior representation to the disadvantage of the former client and without materially limiting his ability to effectively cross-examine the former client to the detriment of the current litigation client.

A lawyer who, without notice of the inadvertent transmission, receives and reviews an opposing party’s confidential materials through the error or inadvertence of opposing counsel, may use information in such materials. A lawyer who knows of an inadvertent transmission before confidential materials of an opposing party have been opened and reviewed should return such materials without examination. A lawyer has a duty to advise a client that confidential information was inadvertently transmitted to and read by opposing counsel.

Lawyer may represent a beneficiary of a trust in an action against the trustee even though lawyer had previously represented trust, beneficiary and trustee in condemnation suit involving trust property.

Lawyers may use electronic mail services, including the Internet, without encryption to communicate with clients unless unusual circumstances require enhanced security measures. The creation and use by a lawyer of an Internet “web site” containing information about the lawyer and the lawyer’s services that may be accessed by Internet users, including prospective clients, is not “communication directed to a specific recipient” within the meaning of the rules, and therefore only the general rules governing communications concerning a lawyer’s services and advertising should apply to a lawyer “web site” on the Internet. If a lawyer uses the Internet or other electronic mail service to direct messages to specific recipients, then the rules regarding solicitation would apply.

Upon termination of representation, a lawyer is required to return all papers and property received from the client, but may retain copies at the lawyer's expense. If the client requests copies of other parts of the lawyer's file, the lawyer should make copies of those materials in the lawyer's file to which the client is entitled to access available at the client's expense.

Where lawyer's knowledge of client's past violations of tax laws is either privileged or "secret" under Rule 1.6, the lawyer may not properly voluntarily disclose such violations to tax authorities or other persons without the consent of the client.

1. Use of any information relating to representation cannot be used by attorney to disadvantage of former client.
2. Absent consent, confidences and secrets of client gained in the course of professional relationships cannot be disclosed.
3. Use of client confidences and secrets as well as any information relating to the representation of a client, may be used or revealed by attorney to the extent necessary to defend accusation of wrongful conduct.
4. Discharged attorney entitled to quantum meruit compensation.

An attorney is not required to report misconduct of another attorney learned through a privileged attorney/client communication.

An attorney is obligated to report only certain forms of misconduct by another attorney, and only if he has "knowledge" of such misconduct as defined in the Rules of Professional Conduct.

An attorney is prohibited from representing a client in a negotiation of a lease against a former client when the representation is of the same or substantially related matter unless the former client consents after disclosure.

Improper for Public Defender's Office to disclose secret of one client to another client represented by different Assistant Public Defenders in unrelated cases.

1. There is no duty to report knowledge of professional misconduct protected as a confidence by the lawyer-client privilege.
2. The duty to report knowledge of professional misconduct of another lawyer should not apply to a lawyer retained to represent the lawyer whose professional conduct is in question.
3. There is a duty to report professional misconduct which is otherwise subject to mandatory reporting even if the ARDC has learned of the same misconduct from another source.

1. Lawyer is prohibited from representing husband in divorce action where lawyer had previously represented husband and wife in other joint matters;
2. Prohibition extends to lawyer's partner and firm.

A defense attorney whose client has disappeared may reveal such confidences or secrets upon requesting a continuance at a status call if required by court order or law to do so, but such attorney may not give a false reason for requesting a continuance.

1. It is professionally proper for a lawyer to represent two competing institutions where matters related thereto are substantially unrelated.
2. It is professionally proper for a lawyer to represent two competing lending institutions, one of whom he also serves as a member of the Board of Directors, as long as he secures consent to such representation from both institutions.

Duties owed by an attorney to his client are not transferred for the benefit of another to whom the client transfers its interest in the subject matter of the representation.

Practice of law and accounting in same office now permissible due to repeal of Code section that required physical separation of dual practices.