While I concur in the decision of the court, I cannot accept all that is said in the opinion. I agree with the conclusion that private representation should be avoided where the dispute is subject to determination or review by the body of which the lawyer is a member. Of course it is improper for a legislator, a. judge, an administrative official, or any other public officer to place himself in a position where a misuse of public functions is possible. (See In re Harriss, 364 Ill. 290.) But it is also- improper for a lawyer, whether or not he is also a public officer, to undertake duties in which a misuse of professional functions is possible. In the usual form of conflicting representation the lawyer acts for two private interests in his professional capacity. But he may, with equal impropriety, represent the public on one side and a private interest on the other, in a matter in which they are adversely interested. A lawyer who is also a trustee or an executor cannot with propriety represent a claim against the trust or the estate to which he stands in a fiduciary relationship, even though the latter is not a lawyer-client relationship. Precisely the same situation is presented when an alderman sues the city or a legislator sues the State as such, on behalf of private parties. The fact that he is not at the same time the city attorney or the Attorney General, as the case may be, is irrelevant if his relationship to the defending governmental unit is fiduciary in nature.
I would thus condemn conduct shown by those specifications wherein litigation was undertaken against the city to declare void its zoning ordinance. The fact that the court may be impartial is no answer to the charge. Such is the case in any suit prosecuted by a lawyer against another litigant whom he also represents. It is the conflicting loyalties, not the presence of power or influence, which is the determining factor in these situations. The fear that this conclusion would cause able members of the bar to avoid cases in certain fields of the law, if justified, is an argument for outlining with clarity the areas in which representation is ethically proscribed. It is no argument for condoning conduct which falls squarely within the meaning of existing rules of ethics.
I do not mean by the views I have expressed to say that a lawyer-alderman or lawyer-legislator should in all cases avoid a representation of private interests before administrative bodies, whose function, essentially, is to implement and complement legislation necessarily expressed in general terms. In such cases the city or the State, as such, is not sued as an adverse party. It has created the agency in question for the very purpose of affording a continuation, in some aspects, of the legislative process, although in an adversary setting. While even here the partiality involved in private representation affords temptation for a use of influence or a disregard of public interest, the realities of public employment may warrant an application of the canon which depends to some extent upon the circumstances of the particular case. The subject may not be entirely amenable to hard and fast rules, for as Mr. Justice Holmes has said with respect to another problem, the areas “shade into each other by imperceptible degrees.” (The Common Law, p. 334.) Lawyers must be credited with some measure of judgment in areas of doubtful status, and if conduct is within the letter but outside the thought of ethical proscriptions it should not be subject to censure.
From what seems to me a realistic variation of the canons I would agree with the court that because variations during the period in question were subject to determination by the body of which respondent was a member, it was unprofessional of him to handle such matters for private applicants. On the other hand I cannot accede to the sweeping proposition that a legislator may, regardless of the nature of the dispute, appear professionally before administrative agencies of the governmental unit he represents as a legislator; and I think that under no circumstances is it proper for him to engage in litigation against his city or his State, as the case may be.
One other area of my disagreement deserves mention. The majority opinion places importance, apparently, upon “public disclosure” of participation. Whatever that may entail in the way of publicity, it hardly contributes to a rational solution of the present problem. If the conduct per se is not reprehensible I can see no logical purpose for requiring exposure, with possible misrepresentation to a public hardly in a position to pass upon matters of professional ethics. In any event I doubt the need for this court to add fuel to the machineries for public exposure which operate in every contested election; and as for enlightenment, the “bright light of public opinion” may well blind instead of provide illumination.
If, on the other hand, the conduct constitutes an “abuse of his privilege to practice” the penalty is disciplinary action by this court, not unwanted publicity. I cannot accept the implication that an attorney must appear “of record” in these matters, either formally or by informal disclosure, before he can properly accept a fee or undertake a professional representation otherwise permissible. Compliance with standards of professional conduct, it seems to me, is a matter for professional and judicial determination, not for decision or sanction by public opinion.
For the reasons expressed I concur in the decision to censure.