In the last issue of our newsletter, the Ethics corner included the first installment of a digest of ISBA ethics opinions of interest to government lawyers. That installment covered ethical dilemmas facing public officials and lawyers employed by government agencies. This second installment includes a digest of ISBA ethics opinions that specifically address problems of state's attorneys and public defenders.

The ISBA Advisory Opinions are published as an educational service to ISBA members. While not binding authority, they provide guidance to lawyers regarding the interpretation and application of the Illinois Rules of Professional Conduct, and they are frequently cited in caselaw. The opinions issued over the last twenty years are available on the ISBA Web site under Illinois Law, ISBA Ethics Opinions. The Illinois Rules of Professional Conduct are found in Article VIII of the Illinois Supreme Court Rules. The Rules are also available on the ISBA Web site, under Illinois Law, Supreme Court Rules.

Where an ethics opinion was adopted prior to the passage of the Illinois Rules of Professional Conduct in 1991, citation is given both to the Illinois Code of Professional Responsibility, the predecessor ethics code (cited as "ICPR"), and to the current Illinois Rules of Professional Conduct (cited as "IRPC.") I have taken the liberty of rephrasing the topic of the opinion from that posted on the ISBA Web site in order to focus on the issues of relevance to government lawyers.

Opinions involving public defenders

Opinion No. 784 (July 1982) Public defender's referrals of cases; attorney fees

It is not improper for a part-time public defender to refer cases involving police misconduct to other private counsel and to receive a referral fee. While the public defender is a county employee, the county does not direct his activities and the public defender's client is the accused person and not the county. Thus no conflict of loyalty exists. The public defender could personally represent the defendant in the civil claim, and as long as the public defender observes the requirements of Rule 2-107 of the ICPR involving referral fees, (predecessor to Rule 1.5 of the IRPC) he can refer the matter to other counsel and receive a referral fee. A different rule may apply, however, if the office of the public defender was a full time position and if the public defender or his or her assistants are prohibited by contract or by the terms of the appointment from engaging in the private practice of law.

Opinion No. 85-14 (May 1986) Conflict of interest; sharing office space

There is no per se rule against two assistant public defenders who share office space but maintain separate law practices representing defendants with conflicting interests. Pursuant to People v. Robinson, 79 Ill. 2d 147 (1980) and People v. Nelson, 82 Ill. 2d 67 (1980), office sharing alone does not preclude the attorneys from exercising independent professional judgment on behalf of the clients. Instead, a careful analysis of the nature of the friendship and working relationship between the attorneys must be made to determine whether the office sharing arrangement amounts to an "affiliation" between the two lawyers, which would preclude the representation. Pursuant to Rules 5-101(a) and (c), (predecessor to Rule 1.7 of the IRPC) full disclosure of the possible effects on the representation and consent of the client must be obtained. In addition, pursuant to Canon 4 (predecessor to Rule 1.6 of the IRPC), each attorney must be able to preserve the confidences and secrets of his or her client. Finally, the attorneys must not utilize a common secretary in any way in connection with the case.

Opinion No. 87-4 (January 1988) Conflict of interest; representation of client adverse to county

A part-time public defender may represent a private client against the county. The public defender has no attorney-client relationship with the county, and is permitted by statute to engage in the private practice of law. However, because the public defender's compensation is fixed by the county board, the public defender may have a personal interest in maintaining the good will of the county government. Hence, pursuant to Rule 5-101 of the ICPR (predecessor to Rule 1.7 of the IRPC), full disclosure of the potential conflict of interest caused by the public defender's employment relationship with the county and consent from the private client is required.

Opinion No. 89-7 (November 1989) Duty to report lawyer misconduct to ARDC

A public defender preparing post-conviction petitions who becomes aware of allegations of ineffective assistance of counsel is not required to report every such allegation to the ARDC. If the lawyer obtains knowledge that the claimed ineffective assistance of counsel includes misconduct involving illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit or misrepresentation, and that knowledge is not privileged, the lawyer must report the misconduct to the ARDC, pursuant to ICPR Rules 1-102(a)(3) and (4) and 1-103(a) (predecessor to IRPC Rules 8.3 and 8.4). See also In re Himmel, 125 Ill.2d 531 (1988).

Opinion No. 90-24 (March 9, 1991) Conflict of interest; married lawyers

An assistant public defender is not automatically disqualified from representing clients in felony cases involving officers employed by cities represented by the public defender's spouse's firm. The ABA Model Rules specifically permit such representation with disclosure and client consent, although some other jurisdictions have found such representation to be, per se, an impermissible conflict of interest. The IRPC contain no express prohibition against married lawyers representing opposing parties, and, thus, the general rules regarding conflict of interest apply. If the lawyer reasonable believes the representation would be materially limited by the marriage relationship, the representation must be declined. If the lawyer believes the representation would not be affected, the lawyer should disclose the marriage relationship and obtain client consent. See IRPC 1.7(b).

Opinion No. 90-27 (March 9, 1991) Confidences and secrets; multiple clients

It would be improper for the public defender's office to disclose a confidence or secret of a client represented by one attorney to another client of the office represented by a different public defender in an unrelated case. Such disclosure would violate Rule 1.6(a). In the fact pattern posed to the committee, the public defender's office withdrew from both matters after information was learned that would put the interests of the two clients into conflict.

Opinion No. 90-34 (May 15, 1991) Conflict of interest; partnership between part-time city attorney and public defender

It is not improper for a part-time city attorney and part-time public defender to enter into a partnership as long as neither defends clients charged with violations of city ordinances or charged with state violations initiated or supported by the city's police force. Such a restriction will allow the lawyers to avoid an impermissible conflict of interest, as defined in Rule 1.7 of the IRPC.

Opinion No. 91-1 (September, 1991) Conflict of interest; part-time public defender accepting cases for the People through the State's Attorney's Appellate Prosecutor's Office

It is not improper for a part-time public defender to accept appellate cases on a case by case basis from the State's Attorney's Appellate Prosecutor's Office while also representing criminal defendants as a part-time public defender. Representation of the state on a case by case basis would not, per se, be materially limited by the attorney's responsibilities to individual criminal defense clients. The attorney, however, must generally disclose and receive consent from both the state and the individual criminal defense clients. Additionally, where the attorney is taking contrary legal positions in the representation of the state and the criminal defense clients that may materially limit the representation of either, this must be disclosed and both clients must consent after disclosure.

Opinion No. 91-17 (January, 1992) Conflict of interest; public defenders sharing common offices and representing adverse interests in a single proceeding

It is improper for two assistant public defenders, who share secretarial, investigatory, and office resources and who routinely cooperate in the performance of their duties, to individually represent parents and children in a cases involving allegations of child abuse and neglect. Parents have a right to counsel in abuse and neglect proceedings, and the interest of the parent is opposed to that of the child as a matter of law. Appointment of public defenders who share an office and resources to represent the child and the parent in the same case would create an impermissible conflict of interest under Rule 1.7 of the IRPC and a violation of the duty to preserve client confidences and secrets under Rule 1.6.

Opinion No. 95-14 (May 17, 1996) Confidentiality; duty to disclose to the court information adverse to client

A public defender who learns that a client failed to disclose significant assets in an affidavit to the court that the court relied upon in appointing the public defender may disclose this information to the court. Three ethics rules are implicated by these facts: Rule 1.2(g), which requires a lawyer, who knows that a client has in the course of the representation perpetuated a fraud upon the court, to request the client to rectify the same, or to disclose the fraud to the court if the client refuses to do so, unless the information is privileged; Rule 1.6, which generally protects client confidences or secrets, but allows disclosure where permitted under the Rules or required by law or court order; and Rule 3.3, which places on a lawyer a continuing obligation to disclose to the tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, even if the information is protected under Rule 1.6.

Given these facts, Rule 1.2 is not applicable because the client's fraud occurred before the public defender was appointed by the court, and, thus, the fraud did not occur during the course of the representation. If disclosure of the concealed asset would have precluded the court from appointing the public defender, it is a "material fact" under Rule 3.3. Disclosure is permitted, and may be required if the client refuses to rectify the fraud, in order for the lawyer to avoid assisting the client in continuing the fraud upon the court, even if the information is otherwise protected under Rule 1.6.