People v. Jackson, 2018 IL App (3d) 170125 (May). Episode 516 (Duration 14:55)

A per se conflict of interest is waveable.

Gist

Defendant was on trial for murder.

Defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because his appointed attorney who had a private practice labored under a per se conflict of interest, and defendant never validly waived the conflict.

Former ASA Involved

The parties agree that the attorney labored under a per se conflict of interest in that, a former assistant state’s attorney who represented the State during the pretrial proceedings prior to defendant’s stipulated bench trial, worked for his private law office at the time of the plea.

Per Se Conflict Of Interest

A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.

An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;
(2) where defense counsel contemporaneously represents a prosecution witness; and
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Issue

The parties dispute whether defendant validly waived this conflict.

A Knowing Waiver

The right to conflict-free counsel may be waived, but such a waiver must be knowing.

A defendant will not be deemed to have waived a conflict unless he is admonished as to the existence of the conflict and its significance. It is well settled that trial courts must adequately inform defendants of a conflict’s significance before any waiver of such a conflict can be accepted.

A defendant must actually understand how the conflict could affect his attorney’s representation, before his right to a conflict-free attorney can be knowingly waived.

This Case

The court advised defendant that an attorney in his attorney’s firm had previously worked as a coprosecutor on his case. The court told defendant that the former ASA currently worked at his attorney’s private law office as an associate. While defendant initially had concerns about the conflict, defendant told the court that he was fine with it after speaking with his attorney regarding the matter.

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really…He never talked to me about none of this.

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really…No, I’m fine. He explained to me the situation.

THE COURT: I’m going to phrase it this way, the fact that [the former ASA] at some point I guess, like I said I wasn’t involved in this case at that point, was one of the co-prosecutors in this case…And she is now part of his private law office; that gives you no concern, sir, you are comfortable?

THE DEFENDANT: Yeah, I’m all right.”

Holding

Here, the trial court adequately admonished defendant as to the conflict and its significance.

The duty to admonish the defendant as to the general nature of the conflict does not mean that the trial court must painstakingly detail every potential ramification of a potential conflict.

See Also

• Illinois Rules of Professional Responsibility
• Episode 375 – Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors
• People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues)
• Episode 056 – See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor)
• People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)