See People v. Shepherd, 2015 IL App (3d) 140192 (February). Episode 056 (Duration 19:54)
Trial court found an ethical violation of defense counsel. This attorney takes a meeting with the prosecution in one case, then is found to be unethical in another case. Find out who did what in podcast Episode 056 of the Criminal Nuggets Podcast.Originally published on 2/24/2015.
There is nothing like a nice little real-life example to help a rule of professional conduct come alive.
The story can get a little convoluted but here are the main points.
A criminal defense attorney was on record as representing inmate B. The same attorney had one discussion with inmate A who was also being detained in the same jail.
Inmate A had not paid the attorney yet, but it appears he was ready to have family members leave the retainer at the attorney’s office.
In the jail, inmate A was talking to inmate B about inmate B killing some or all of the witnesses who could testify against inmate A.
Inmate B, quickly turns over the map (to the victim’s home) and a statement (inmate A wanted to send a message to victims right before the killing) to jail authorities.
A prosecutor then talks to the attorney about the possibility of inmate B agreeing to wear a wire to record inmate A talking about the planned murders.
The attorney tells the prosecutor that he was talking to inmate A about possible representation and decides at that point that he cannot represent inmate A. The family is called and informed not to bring any money because counsel would not represent inmate A.
Of course, inmate B wears the wire.
Incriminating recordings of inmate A are created. And inmate A is charged with several counts of solicitation of murder for hire.
Defendant A then files a motion to dismiss and suppress the recordings. Defendant alleged that the attorney violated Illinois Rules of Professional Conduct Rule 1.18 in that counsel owed a duty to defendant A not to engage in an attorney-client relationship with inmate B when B’s interests were materially adverse to his own.
Keep in mind, no actual attorney-client relationship was formed between inmate A and counsel.
Illinois Rules of Professional Conduct Rule 1.18
The Illinois Rules of Professional Conduct of 2010 which, sets out the ethical behavior of lawyers, Rule 1.18, specifically says that:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and that lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
Defendant did not actually call the attorney in his motion nor did the defendant himself testify.
He was asking the court to infer that information that could be “significantly harmful” to a prospective client is communicated to an attorney if the attorney would have normally received that type of information in his consultation with the prospective client.
Defendant pointed out that this is exactly what the court does in Rule 1.9, Duties to Former Clients.
So the trial court did find that incriminating information against defendant was gained by the State as a direct result of the ethical lapse on the part of defense counsel.
Thank goodness, the appellate court came in to say, “Hold on!”
Prospective Client Not Actual Client
We are talking about prospective client not a current client nor a former client.
Thus, Rule 1.18(c) required the defendant to establish that defense counsel received in his consultations with defendant information that could be significantly harmful to defendant in either the case he was incarcerated for or the solicitation case.
Defendant failed to meet his burden.
The appellate court found that, in the instant case, defendant presented absolutely no evidence of the information the attorney learned from Defendant during the consultations to consider his representation.
Did I mention that Defendant chose not to testify himself and chose not to call the attorney as a witness?
Instead, defendant relied entirely upon speculation as to the information that counsel might have learned. This kind of rank speculation is not enough to establish that a violation of Rule 1.18 occurred.
“Indeed, the comments to Rule 1.18 recommend that an attorney limit the initial interview with a prospective client to only that information that is reasonably necessary for the attorney to determine whether he or she will take the case, so as to avoid acquiring disqualifying information from the prospective client.” ¶ 31.
The Scary Thing Here
This attorney did not do anything wrong. This guy was minding his own business representing his clients when he gets the call that the prosecutor wants to meet with him.
You always have to take that meeting. Then before he knows it, there is a trial judge making a finding that he acted unethically.
However, this case does a great job of highlighting the risks involved with each and every consultation we engage in with prospective clients.
There is great wisdom in having the discussion limited to the single question of whether or not the representation will happen.
You don’t have to hash out the entire case in these consultations, nor should you.
Holding: No Rule 1.18 Ethical Violation
Defendant failed to establish that the attorney received information that could be significantly harmful to defendant, and he failed to establish a violation of Rule 1.18.
Reversed and remanded.
Mountain Out Of A Molehill
In many ways, the trial judge made a mountain out of a molehill.
You see, the prosecutor had originally failed to disclose the meeting with the attorney to the new defense counsel. This prosecutor also failed to inform his own collegaues of the meeting.
The prosecutor simply did not appreciate that this could blow up into a significant issue.
There are more dark scenarios where we would want a proactive judge to get involved and stop collusion between the state and a defense attorney against a jail inmate. This just was not one of those cases.