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Legal Memorandum: Attorney's Conflict of Interest Issue

Issue: Under Illinois or similar law, do allegations of undue influence by a prospective guardian against the ward prohibit one attorney from representing both the ward and the guardian?

Area of Law: Ethics & Professional Responsibility
Keywords: Conflict of interest; Attorney; Prospective guardian and ward
Jurisdiction: Illinois
Cited Cases: 685 N.E.2d 871; 467 N.E.2d 1090
Cited Statutes: Illinois Rules of Professional Conduct, R. 8.3(a)
Date: 10/01/2007

It may be useful to note at the outset that based on the stated facts, even if a conflict exists, the guardian apparently lacks standing under Illinois law to move for the disqualification of Attorney in this guardianship proceeding.  Although outside the strict scope of issues under consideration, “[i]t is axiomatic that only a party who has been a client of the attorney whose conduct is in question may complain of the attorney’s [] representation of another.”  Schwartz v. Cortelloni, 177 Ill. 2d 166, 685 N.E.2d 871, 875 (1997); see Renard v. Colombia Broad. Sys., Inc., 126 Ill. App. 3d 563, 467 N.E.2d 1090, 1094 (1st Dist. 1984) (where there is a prohibited conflict, “[a]bsent a complaint by the affected client, a party has no status to object to the representation of an adverse party by an attorney of his choice.”). 

Moreover, although lawyers have a duty to report certain misconduct by another attorney to authorities, (Illinois Rules of Professional Conduct, R. 8.3(a)), generally this requires reporting only misconduct involving criminal acts, dishonesty, fraud or deceit, and not merely a conflict of interest.  On the other hand, to the extent the conflict here can be said to involve dishonesty or deceit, there may be an arguable basis for reporting the conduct to the Illinois Attorney Registration and Disciplinary Commission and Court.

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