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August 18, 2022

Shelby County State’s Attorney Files Affidavit – Treasurer To Receive Representation

By Kirk Allen & John Kraft

On July 21, 2020

Shelby Co. (ECWd) –

We covered the 4th Judicial Circuit Court Chief Judge’s ruling in a previous article where she directed the Shelby County State’s Attorney to file an affidavit pertaining to any conflict she has related to the lawsuit brought by the illegally hired attorney Ed Flynn.  (article here)

The Shelby County State’s Attorney Gina Vonderheide filed the requested Affidavit today and while we know it has become a common phrase, you really can’t make this stuff up.

Item number 4 and 5 of her affidavit state:

“4. That as Shelby County State’s Attorney, it would be my statutory duty to represent both a Shelby County officeholder and the Shelby County Board in any litigation.”

“5. That it is my opinion that there is a direct conflict that prevents me from representing both the Shelby County Board and the Shelby County Treasurer in this litigation as the positions of the Board and the Treasurer are in direct opposition.”

What does the law say her statutory duty is?

Powers and Duties of a State’s Attorney:

  • (4) To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county

Attorney Ed Flynn filed a lawsuit against the county and Treasurer on May 8th, 2020, and then filed an amended complaint on May 18, 2020.  To date, the State’s Attorney has not responded to that complaint. Failure to respond to such a complaint opens up the County to a potential default judgement.  While we appreciate the fact the State’s Attorney has acknowledged she has a statutory duty to represent county officeholders and the County Board, her push to allow someone else to represent the County by hiring private counsel is inconsistent with her affidavit.  Nevermind the fact she has failed to defend the action brought against the County. That is a failure to perform her statutory duty in our opinion.

Of interest in this new affidavit addressing the direct conflict issue, she confirms there is a direct conflict that prevents her from representing both the Shelby County Board and the Shelby County Treasurer.  However, the Judge has only ordered the appointment of counsel for the Treasurer. (docket entry here) If the Judge read the affidavit to mean the SA can only represent one or the other and intends on allowing the SA to represent the County Board, let the red flags raise high in Shelby County.

For starters, the SA has an obligation to three clients, the people, the officers of the County, and the County Board. Case law outlines she has a duty to pick who is right and defend that entity.

“Courtney v. Ashton, supra, held in effect, that in a case involving a possible conflict between the people’s interest and a county officer’s exercise of his power, the state’s attorney must determine which position is correct and represent that party. This implies that his office is not required to act in a dual capacity and provide counsel for the opposing party.” (AG opinion here)

It is clear the State’s Attorney is unable to determine who is correct by her own admission when she asked the Illinois Attorney General for an opinion on the matter and can’t even advise what to do when asked by her client at the time, the Treasurer (SA legal opinion letter).

With that last point, the Shelby County State’s Attorney must recuse herself from representing the County Board for a litany of reasons.

  • She was actively advising her client, the County Treasurer, on the matter in question and even discussing strategy on how to resolve the matter. If she were to represent the County Board, who she admits has a position that is in direct opposition of the Treasurer who was her client, she places herself in direct conflict of a prior client. We believe such representation of the County Board would be a direct breach of her duties to a prior client and violates Supreme Court Rule 1.7(a)(1) and 1.9(a)…..for starters.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or

RULE 1.9: DUTIES TO FORMER CLIENTS
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

  • She has issued an Affidavit used in support of a Summary Judgement motion presented by Ed Flynn, the Plaintiff.  Such action and the content of the Affidavit make her a fact witness in the case.  Attorney’s can not be both counsel and fact witness in a case.  Doing so violates Supreme Court rule 3.7(a).

RULE 3.7: LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

  • If she does not recuse herself from the case an additional Supreme Court Rule appears to trigger that could be very problematic for her, rule 8.4(a), (d), and possibly already in violation of (k)(1).

RULE 8.4: MISCONDUCT

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
(d) engage in conduct that is prejudicial to the administration of justice.
(k) if the lawyer holds public office:
(1) use that office to obtain, or attempt to obtain, a special advantage in a legislative matter for a client under circumstances where the lawyer knows or reasonably should know that such action is not in the public interest;

As far as the applicability to 8.4(k)(1), the legislative matter is the County Board’s adopting a resolution that was not legal.  What advantage was obtained?  The hiring of an attorney to do the job she is supposed to do, thus getting paid for not even doing the work.  Such an advantage is not in the public interest nor is it consistent with established case law.

We suspect as this moves forwards in the court we will see the Judge issuing yet another docket entry for the County Board to have legal counsel appointed to them which clearly would be in the best interest of every taxpayer in Shelby County.

A copy of her Affidavit can be downloaded at this link or viewed below.

AFFIDAVIT OF STATE'S ATTORNEY

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