Illinois out-of-state retailer suit takes surreal ethical turn as Illinois AG files brief to bar plaintiffs’ proposed expert for being involved on the defense side of the case when previously working for the Illinois Liquor Control Commission.

In what must be a truly absurdist moment for the Illinois Attorney General’s office defending the Illinois Liquor Control Commission in this liquor shipping case concerning Illinois liquor law, the latest issue arising in the Lebamoff suit finds the Illinois AG filing this Motion to Bar the plaintiffs’ expert with the lead counsel for the Illinois Attorney General filing these two affidavits supporting their claims that the proposed expert has inside knowledge about the matter gained while working at the Illinois Liquor Control Commission.  The case is about an alcohol direct to consumer shipping dispute where out-of-state alcohol retailers claim it is a Commerce Clause violation to allow in-state liquor retailers to ship direct to Illinois consumers but to not afford the same rights to out-of-state retailers. But instead of getting at the heart of the dispute in an expeditious fashion, this Illinois liquor law dispute has now become an Illinois revolving door and attorney ethics dispute. 

The introduction to the motion is a perfect summary of the claims that have led to this side-dispute in an issue over Illinois liquor law:

The conflict of interest created by [the proposed expert]’s services as an expert witness for the plaintiffs is egregious. He directly participated in the legal defense of the ILCC Defendants throughout much of this litigation, during which time he personally: 

• Served as the primary point of contact between the ILCC and the assistant attorney general representing the ILCC Defendants, whereby [the proposed expert] was provided with information regarding the defense strategy of the ILCC Defendants in this litigation;
• Attended multiple meetings with the assistant attorney general representing the ILCC Defendants, wherein the parties discussed their mental impressions of this case and exchanged highly privileged and confidential information regarding the defense strategy of the ILCC Defendants;
• Received and reviewed confidential drafts of motions filed on behalf of the ILCC Defendants, including the ILCC Defendants’ motion to dismiss and the reply in support of their motion to dismiss;
• Received and reviewed confidential drafts of the ILCC Defendants’ appellate briefs, which contained the ILCC Defendants’ proposed legal strategy and legal arguments before the Seventh Circuit Court of Appeals; and
• Attended a private moot court argument held by counsel for the ILCC Defendants, wherein [the proposed expert] received and provided feedback regarding the confidential strategies and mental impressions of the ILCC Defendants’ counsel.

In his role as the ILCC’s Chief Legal Counsel, [the proposed expert]’s involvement in this litigation was substantial. He was privy to confidential communications with counsel for the ILCC Defendants, including communications regarding their defense strategy and their thoughts and impressions of this case. Pursuant to controlling law of this Court, [the proposed expert] is not permitted to switch teams and testify as an expert witness against the ILCC. [the proposed expert]’s exposure to eighteen months of confidential communications with counsel for the ILCC Defendants disqualifies him from any further participation in this litigation, as the plaintiffs’ expert witness or otherwise. 

Briefing in the matter is ongoing with the response due March 12 and the reply due March 19. The issue is important. Illinois has tried many times to fashion a working revolving door policy and continually amends and edits its own statute regarding the matter when different issues crop up. Additionally, there are questions as to what and where the privilege and representation for general counsel to a state agency lie, what the ethical rules for attorneys mandate regarding prior representations, and what state ethics rules and attorney-client privilege issues come into play with former state employees who functioned as attorneys for state agencies.