dissenting.
I respectfully dissent. Approaching the problem as the excellent opinion of Judge Easterbrook does creates the answer he proposes. Let me throw in an addendum: the majority states that “not every breach of a fiduciary duty works a criminal fraud.” I agree. And then the opinion proposes a possible way to cope with the problem: to limit criminal prosecution “to cases in which the defendant’s acts not only violated a fiduciary duty but also transgressed some other rule of law.”
Now let me proceed. The relationship of attorney and client is one of contract. The lawyer gives advice&emdash;-his stock in trade&emdash;and *658receives a fee. In addition, his fees are earned by the soundness of his advice; he has a direct interest in the successful results of his advice not only for the present fee but to ensure he will continue to be employed as counsel in the future. When his advice concerns the purchase of property or property sold for taxes, he has — with or without a contingency fee arrangement — both a direct and an indirect interest in the enterprise upon which he is rendering advice.
I think the above statements are a fair and reasonable analysis of the attorney-client relationship as affects our present situation. And if we need a statutory act upon which to hang our judicial opinion, Illinois has given us one: Chapter 65 ILCS 5/3.1-55-10 reads as follows:
Interests in contracts
(a) A municipal officer shall not be interested, directly or indirectly, in the officer’s own name or in the name of any other person, association, trust, or corporation, in any contract, work or business of the municipality or in the sale of any article whenever the expense, price, or consideration of the contract, work business, or sale is paid either from the treasury or by an assessment levied by statute or ordinance. A municipal officer shall not be interested, directly or indirectly, in the purchase of any property that (i) belongs to the municipality, (ii) is sold for taxes or assessments, or (Hi) is sold by virtue of legal process at the suit of the municipality. (emphasis added)
and later:
(e) An officer who violates this Section is guilty of a Class 4 felony. In addition, any office held by an officer so convicted shall become vacant and shall be so declared as part of the judgment of the court.
(See also Munic. Code of Chicago, 2-156-110 (1997).)
It can be seen then that, totally apart from the fact the “advice” constituted a plan, illegal in both execution and result, to cheat the city out of a tax revenue (and therefore made the alderman liable under the law which prohibits depriving another of “the intangible right of honest service”), the action of the alderman/lawyer is criminally prohibited.
Having established that the defendant is charged with violating both an ethical and a possible criminal act, I believe the indictment passes muster and the dismissal — or partial dismissal — was in error. It is, of course, possible for the defendant to persuade a jury that he is not guilty of the crime charged; I only suggest the indictment does charge a crime under 18 U.S.C. § 1346. Advising a client as to how to commit an illegal act (as the indictment charges) is more than an ethical breach, even assuming the attorney giving the advice had no connection with the government. But for an alderman — a municipal official — to advise a client as to how he can illegally reduce his tax burden is, I believe, a clear violation of the laws of the State of Illinois. My concern is not with the alderman’s ethics as a lawyer; that is a problem for the state. I am concerned when his activities as a lawyer involved a violation-criminal violation — of his duties as an aider-man.
If we can say, as a court, that a lawyer in giving of advice for a fee, to a client as to how to complete an illegal transaction does not involve the lawyer having an interest, direct or indirect, in the transaction itself then we have provided a defense to chicanery and illegality that I refuse to accept.
Some years ago, we upheld the conviction of an alderman who did virtually what the defendant in this case did — used an illegal fiction to avoid the payment of taxes and to secure clear title to property. I see little difference (other than a margin of profit) between using the dummy to acquire property rights for oneself and advising a client as to how to avoid the tax — to cheat — for a legal fee. The allegation of the indictment charges the defendant with cheating the city of honest service owed to the city by virtue of his election and acceptance of public trust. If the allegation is true, the defendant is guilty of a felony under state law and a felony under 18 U.S.C. § 1346.
The law does not compel a municipal official to buy only in the city so as to pay maximum taxes; it does compel municipal officials to refrain from counseling or advising others, for a fee, to engage in illegal *659activities which are detrimental to the interests of the city. Being a lawyer and giving legal advice does not permit the avoidance of the statutory duty to refrain from having an interest, direct or indirect, in “the purchase of property that is sold for taxes or assessments.” That is what the indictment charges the defendant with doing.
The opinion describes the position of aider-man as “part time.” (I presume, by a logical extension, that also makes him a “part-time” lawyer.) Many county, state and municipal officials are entitled to hold outside employment, but only provided that such employment does not involve any possible conflict with the primary duty of honest service to the governmental entity to which they have been elected or appointed. When they put on their lawyer (or other) hat, they keep the yoke of public office around their necks. It is a known burden, voluntarily assumed, and seems necessary to preserve both faith in government — if there is any left — and at least a chance that government can function.
I would reverse the district court with directions to reinstate the entire indictment and set the matter for trial.