Conflict Of Interest

Conflict Of Interest Definition

The rule against a conflict of interest is an ethics rule that prevents attorneys from entering into a representation of a client when that representation conflicts with interests of another client or with the interests of the attorney.

The rules of professional responsibility in most states spell out the ethical obligations attorneys have to follow.

Every state has their own conflict of interest definition.

Conflict Of Interest Rule 1.7

In Illinois the conflicts of interest prohibition is outlined by Rule 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). See also this Professional Responsibility Page.

Rule 1.7(a) provides:

“Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

Ill. R. Prof’l Conduct (2010) R. 1.7 (eff. Jan. 1, 2010).

Comment 23 To Rule 1.7

The comments to the rule make it clear that conflicts of interest can occur in criminal cases as well as civil case. The comment says:

“Simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.”

Ill. R. Prof’l Conduct (2010) R. 1.7 cmt. 23 (eff. Jan. 1, 2010).

Two Kinds Of Conflict Of Interest

There are two types of conflicts of interest:

Per se conflicts and
Actual conflicts.

Conflict of Interest Definition

Actual Conflict

In order to prevail on a claim of actual conflict of interest, a defendant must show some specific defect in his counsel’s strategy, tactics, or decision making attributable to a conflict.

A defendant who can demonstrate that his attorney labored under a real and actual conflict then that defendant may be eligible for some kind of relief from the court.

Per Se Conflict of Interest

A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.

An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.

When a per se conflict of interest exists, the defendant need not show that the conflict prejudiced him, and the court on appeal must reverse unless the defendant affirmatively waived the conflict. People v. Spreitzer, 123 Ill. 2d 1, 14-17 (1988).

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) Where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;
(2) Where defense counsel contemporaneously represents a prosecution witness; and
(3) Where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Responsibility To Potential Clients

A conflict of interest may also develop with perspective clients. In other words, attorneys may owe some obligations to people they never actually represent.

Illinois Rules of Professional Conduct Rule 1.18 | Duties to Prospective Client.

The Illinois Rules of Professional Conduct of 2010 which, sets out the ethical behavior of lawyers, Rule 1.18, specifically says that:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and that lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

Rule 1.18, Duties to Prospective Client.

We are talking about prospective client not a current client nor a former client. See also

► People v. Shepherd, 2015 IL App (3d) 140192 (February). Episode 056 (Duration 19:54) (Ethical Violation After a Meeting With Prosecutor)

A Few More Conflict Of Interest Examples

► People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07) (Prosecutor Probably Had a Conflict of Interest But Appellate Court Didn’t Look At The Issue)

► People v. Peterson, 2015 IL App (3d) 130157 (November). Episode 106 (Duration 15:28) (Attorney Media Deal Are They A Conflict Of Interest? Lessons From The Drew Peterson Case)

► People v. Nelson, 2017 IL 120198 (June). Episode 352 (Duration 13:20) (Did This Trial Attorney’s Conflict Of Interest Cause Him To Pick The Wrong Defense?)

► People v. Alexander, 2019 IL App (4th) 170425 (December). Episode 718 (Duration 5:33) (This Public Defender Defended And Prosecuted The Same Defendant)

Conflict Of Interest Definition In Illinois