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.

Rule 1.18, Duties to Prospective Client.

Analysis

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!”

Conflict of Interest

For purposes of conflict of interest analysis, the law considers the representation of codefendants by law partners or associates the same as the representation of codefendants by one attorney.

However, the mere fact of joint representation of multiple defendants does not create a per se violation of the right to effective assistance of counsel.

Moreover, the Supreme Court has noted that, when joint representation is undertaken but the defendants are tried separately, it is less likely counsel will face a conflict.

Here, the issue was only raised on appeal, so defendant must establish an actual conflict. The Illinois Supreme Court has changed the standard here. 

The Echols Rule

In Echols, this court held that the mere availability of a strategy that would have helped the defendant at the expense of a codefendant does not create hostility between the interests of the two.

Thus, even assuming that defendant had a plausible, alternative defense that could have been pursued by her attorneys, that fact could not establish that his interests were hostile to those of other codefendants.

So long as there was a viable joint defense, the interests of codefendants were not hostile.

The New Rule

The Echols rule fails to recognize that a common defense for two clients does not necessarily demonstrate the absence of a conflict between their interests. See People v. Echols, 74 Ill. 2d 319 (1978) and Cuyler v. Sullivan, 446 U.S. 335 (1980).

The rule does not take into account the fact that a conflict of interest may arise when defense counsel must make the choice of strategy or defense to pursue in representing defendant.

The Echols rule is therefore in conflict with the Sullivan standard for establishing an actual conflict and must be overruled.