Conflict Of Interest Defintion
The rules of professional responsibility in most states spell out the ethical obligations attorneys have to follow.
Every state has a rule against entering into a conflict of interest.
Rule 1.7 On Conflict Of Interst
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:
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:
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.
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:
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.
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)
► People v. Jackson, 2018 IL App (3d) 170125 (May). Episode 516 (Duration 14:55) (How To Remember The 3 Per Se Conflicts Of Interest)
► Episode 375 (Duration 23:20) (Former prosecutor runs through the analysis of a potential conflict of interest.)
► People v. Guerrero, 2018 IL App (3d) 170786 (September). Episode 544 (Duration 6:00) (An Example Of A Conflict Of Interest When A Prosecutor Moves To The Public Defender Office)
► People v. Brown, 2017 IL App (3d) 140921 (June). Episode 383 (Duration 6:25) (An Attorney Can Argue Their Own Ineffectiveness: But It’s Discouraged)
► People v. Short, 2014 IL App (1st) 121262 (October). Episode 039 (Duration 19:26) (Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself?)
► People v. Cole, 2017 IL 120997 (November). Episode 427 (Duration 10:00) (Cook County Public Defender wanted the power to declare their own conflict of interest cases.)
► People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Duration 7:55) (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues)
► People v. Buckhanan, 2016 IL App (1st) 131097 (September). Episode 244 (Duration 8:41) (A Father-Son Lawyer Duo Accused of Conflict of Interest)
► People v. Wilkerson, 2016 IL App (1st) 151913 (August). Episode 229 (Duration 9:25) (Is It A Conflict of Interest When Codefendant Pays Attorney Fees For Another Defendant?)
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)