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Legal Memorandum: Attorney's Conflict of Interest Issue

Issue: Under Illinois or similar law, to what extent may an attorney continue to represent clients once a conflict of interest is created?

Area of Law: Ethics & Professional Responsibility
Keywords: Conflict of interest; Continued representation
Jurisdiction: Illinois
Cited Cases: 494 N.E.2d 562
Cited Statutes: Rules 1.7 through 1.9
Date: 10/01/2007

In Illinois, as well as most other jurisdictions which have adopted some version of the Model Rules of Professional Conduct, conflicts of interest are addressed in Rules 1.7 through 1.9.  In the instant case, the applicable rule is either 1.7, dealing with conflicts involving two or more current clients, or Rule 1.9 involving a conflict between a current and a past client.  Applicable authority indicates Rule 1.7 involving current clients is probably the applicable rule under the stated facts of this matter.

Rule 1.7, not Rule 1.9, is implicated even when, as here, the attorney has moved to withdraw representation from one of his clients before conclusion of the matter after simultaneously representing two clients at the outset of a particular matter.  Blanchard v. EdgeMark Fin. Corp., 175 F.R.D. 293, 306 n.18 (N.D. Ill. 1997) (“[E]ven if [attorney] had withdrawn prior to taking the position alleged to have created the conflict, Rule 1.7 would still apply[;] . . . withdrawal is only effective to render representation ‘former’ . . . if it occurs at a point that [both] the client and lawyer contemplated as the end of the representation.”). 

With respect to Rule 1.7, there is conflicting authority regarding whether the Rule prohibits both actual as well as potential “conflicts.”  At least one federal court construing the similar federal district court version of Illinois Rule 1.7 has held that only actual, not merely potential conflicts are prohibited.  Guillen v. City of Chicago, 956 F. Supp. 1416, 1426 (N.D. Ill. 1997) (“the mere […]

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