ISBA Ethics Opinions on Conflict of Interest

A law firm seeking to represent the employees of an adverse corporate entity in matters unrelated to the current dispute may do so, but only if the firm determines it can comply with Rule 1.7 and the appropriate parties provide informed consent.

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.

The Illinois Rules of Professional Conduct prohibit a lawyer from representing a husband and wife in a short sale if the husband is currently a client of the lawyer who is investigating filing a divorce petition for the husband, unless both the husband and wife give informed consent to the conflict and the lawyer “reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

A lawyer concentrating his or her practice in tax law may be “of counsel” to a law firm if the relationship with the firm is close and continuing. The lawyer will not be considered as being in a separate firm for the purposes of Rule 1.5(e) or for the purposes of disqualification due to a conflict of interest.

A State’s Attorney may represent his county in union negotiations while simultaneously calling law enforcement personnel as witnesses in criminal cases provided the attorney has completed an analysis of any conflicts of interest pursuant to Rule 1.7 of the Illinois Rules of Professional Conduct.

A lawyer may not serve concurrently as a municipal prosecutor and as an administrative hearing officer for that same municipality.

A lawyer ordinarily represents a partnership as an entity for conflicts of interest purposes. Where a lawyer has represented a partnership and all individual partners in various matters in a common representation, and one partner subsequently files an arbitration matter against another partner, whether the lawyer may represent the defending partner with informed consent will depend on the circumstances. Similarly, whether the lawyer can continue to represent the partnership or any of the partners in other matters with informed consent will depend on the circumstances.

Formal mentoring programs create an opportunity for a new or recently licensed lawyer to receive professional guidance and practical knowledge from a more experienced lawyer. However, both the new lawyer and the mentor 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.

A conflict of interest would be created between Lawyer’s representation of one client and other similar clients if Lawyer were to sign a confidentiality agreement required by an accounting firm that would prohibit Lawyer from divulging a package of ideas developed by the accounting firm that would reduce the client’s tax obligations. For purposes of the Illinois Rules of Professional Conduct, a lawyer cannot agree to keep confidential interpretations of the law.

Because state government is not one entity composed of all departments under the jurisdiction of the Governor for purposes of resolving conflict of interest questions, a lawyer may represent one state government agency while representing a private party adverse to another state government agency.

Two lawyers in the same law firm may continue to represent two different governmental units at the same time where the agencies interest are potentially in conflict, but there is no current direct adversity between the clients. Under traditional methods for separating organizational entities, the units of government are separate clients for conflicts of interest purposes; the units function under separate boards, a different set of rules, and the representation of one entity is not of significant importance to the other entity.

Patent law firm may not provide or receive a royalty-type fee for services matching client-inventors with client-product promoters, unless the firm can rebut the presumption of undue influence and the firm obtains informed written consent of all affected clients to the fee arrangement, to the potential disclosure of confidential information, and to the inherent conflicts of interest. The specific facts of particular situations may make consent to certain conflicts of interest unreasonable.

A lawyer acting as a guardian ad litem has a duty to act in the best interests of the ward and to avoid any conflict of interest that may arise from representing the ward in subsequent litigation arising from his role as a guardian ad litem.