People v. Cole, 2017 IL 120997 (November). Episode 427 (Duration 10:00)

Cook County Public Defender wants to control who they get appointed to represent.

The Gist

Campanelli, The Cook County Public Defender, asked the court to hold her in friendly contempt and to impose a nominal sanction so that she could seek appellate review of the court’s decision.

The PD did not want to accept the appointment because they were already representing many of the other codefendants and this defendant was also charged with threats against some of the other clients.

Campanelli then filed a notice of intent to refuse appointment and to request appointment of counsel other than the public defender of Cook County. In her notice, Campanelli argued that every client has a right to be represented by conflict-free counsel and that concurrent conflicts of interest are prohibited by Rule 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010).

Eventually, the trial court also appointed private counsel to represent Cole in light of Campanelli’s refusal.

Rule 1.7 On Conflict of Interest

Rule 1.7(a) provides:

“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
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

Ill. R. Prof’l Conduct (2010) R. 1.7 (eff. Jan. 1, 2010).

Campanelli also points to comment 23 to Rule 1.7, which explains that:

“[S]imultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.”

Ill. R. Prof’l Conduct (2010) R. 1.7 cmt. 23 (eff. Jan. 1, 2010).

Campanelli noted that Rule 1.7 provided that conflicts arise whenever the interests of one client are directly adverse to the interests of another client or whenever the representation of a client is materially limited. Based upon Rule 1.7, Campanelli stated that she could not accept appointment to represent Cole when she was already representing five other codefendants.

Campanelli indicated that she also had moved to withdraw from representing codefendants Whitehead, Reed Jr., Morgan, and Sago, due to concurrent conflicts with one another and with codefendant Washington.

Because she was bringing the conflict of interest to the court’s attention at an early stage, Campanelli claimed that it was incumbent on the court to take action and alleviate the conflict by appointing private counsel.

Rule 1.10 On Firms: Is The Public Defender Office A Law Firm?

Campanelli contended that the office of the Cook County public defender had a conflict of interest in representing Cole because the office of the Cook County public defender is a law firm as set forth in Rule 1.10(a) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010).

In making this argument, Campanelli contends that representation by the office of the Cook County public defender is tantamount to representation by a single attorney for purposes of conflict of interest analysis. In support of this argument, Campanelli points to Rule 1.10 of the Illinois Rules of Professional Conduct of 2010. Rule 1.10(a) provides:

“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Comment 1 to Rule 1.10 explains:

“For purposes of the Rules of Professional Conduct, the term ‘firm’ denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts.”

Campanelli argues that the office of the public defender is a “firm,” which means that its associated members—the assistant public defenders—may not represent clients with conflicting interests.

The Counties Code Act

Campanelli then argues that appointing the office of the public defender to represent codefendants always presents a conflict of interest under Rule 1.7 because Campanelli, as the Cook County public defender, is counsel to all the defendants her office represents.

Campanelli points out that the Counties Code provides:

“The Public Defender, as directed by the court, shall act as attorney, without fee...for all persons who are held in custody or who are charged with the commission of any criminal offense...”

Counties Code 55 ILCS 5/3-4006 (West 2016).

Campanelli stated that she represents every client in the public defender’s office and had a right to know every fact, every strategy, and every defense of every case. If not allowed to know the confidences between lawyers, she would not be acting as the public defender of Cook County.

Multiple Defender Division

Campanelli conceded that she has a multiple defender division for multiple offender cases but contended that she was in conflict even in those cases.

Campanelli conceded that she had separate attorneys assigned to those defendants but contended that, under the Counties Code (55 ILCS 5/3-4006 (West 2016)), she was the attorney for every client assigned to her office. 

The office of the Cook County public defender describes the multiple defendant division as follows:

“Attorneys assigned to the Multiple Defendant Division (MDD) of the Law Office of the Cook County Public Defender represent clients in felony and first degree murder cases where more than one person is accused. These attorneys are very experienced and represent indigent accused throughout the county. They act independently of other divisions in the office to prevent any effects from a conflict between Public Defender clients.”

Divisions of the Public Defender’s Office, Cook County Gov’t, http://cookcountyil.gov/service/ divisions-public-defenders-office (last visited Nov. 8, 2017).

Campanelli also acknowledged that there were approximately 518 attorneys employed by the office of the Cook County public defender and those 518 attorneys did not all share the same supervisors. Further, the attorneys assigned to represent Cole’s codefendants were from different divisions of the public defender’s office, and each had a different supervisor.

Contempt Of Court

The trial court therefore found that Campanelli had willfully and contemptuously refused to accept the trial court’s appointment to represent Cole after being ordered to do so. The trial court found Campanelli’s refusal to be without basis, as there was no prejudice to Cole if Campanelli accepted the appointment.

The trial court therefore ordered that Campanelli was in direct civil contempt for her willful failure to obey a direct order of the court. The trial court imposed a sanction consisting of a fine of $250 per day until such time as Campanelli purged herself of direct civil contempt by accepting appointment as counsel for defendant Cole or until she was otherwise discharged by due process of law.

Who Should Make The Call?

The trial court observed that it had not found Cole’s rights to be prejudiced, so that Campanelli’s refusal to represent Cole was contemptuous.

Issue

In reviewing the contempt order, we must examine the propriety of the trial court’s order directing Campanelli to accept appointment as counsel for Cole. If the order was invalid, the contempt order must be reversed.

Analysis On Rule 1.10(a):
Public Defender Is A Firm

In making her argument, Campanelli misunderstands this court’s case law concerning the interpretation of statutes and court rules.

In enacting the Illinois Code of Professional Responsibility, and later the Illinois Rules of Professional Conduct and the 2010 amendments to those rules, we presume that the court was well aware of its own case law holding that the office of the public defender is not a law firm for purposes of conflict of interest.

This court has never departed from its precedent to expressly include the office of the public defender within the definition of a law firm, “association authorized to practice law,” or “a legal services organization” in its Code of Professional Responsibility or Rules of Professional Conduct. We again point out that the plain meaning of “firm” in Rule 1.10 necessarily excludes public defender offices from its definition.

Analysis On Rule 1.7: Conflicts of Interest

While Rule 1.7 and comment 23 warn of the risk of joint representation of codefendants, the rule and comment address the representation of multiple defendants by one attorney. The issue here, in contrast, is whether representation of codefendants by different assistant public defenders presents a conflict of interest.

As discussed, with regard to the public defender’s office, this court has declined to adopt a per se rule finding a conflict of interest where different assistant public defenders represent codefendants in a case. Consequently, with regard to the public defender’s office, a case-by-case inquiry “is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office.”

The mere fact that codefendants in a case are represented by separate members of the public defender’s office does not violate Rule 1.7.

Analysis On The Counties Code Act

The fact that the trial court appoints the office of public defender to represent an indigent defendant, rather than appointing specific assistant public defenders, does not thereby transform the office of the public defender into a single entity for purposes of conflict of interest analysis.

Similarly, the fact that the appointed public defender has supervisory authority over his or her assistant public defenders does not override an assistant public defender’s undivided loyalty to his client.

The statute cited by Campanelli and the case law around it developed to stop judges from appointing specific assistant PD’s.

The case law is quite clear that an assistant public defender’s loyalty to his client supersedes his allegiance to the office of the public defender.

While Campanelli has oversight of the approximately 518 assistant public defenders in her office, it is the assistant public defender appointed to represent a defendant who provides the legal services to that defendant. The assistant public defender’s loyalty to his office has not been deemed great enough to impute to him the conflicts of other assistant public defenders.

The fact that Campanelli has supervisory authority over all the assistant public defenders in the office of the Cook County public defender is not sufficient grounds, in and of itself, to disqualify the entire office from representing codefendants.

Holding

Here, the trial court found that Campanelli failed to provide any substantive basis that a conflict of interest prohibited her from providing legal representation to Cole. Upon review, we find no abuse of discretion in the trial court’s finding.

Although a defendant need only present the gist of a conflict, we find that Campanelli proffered only the bare allegations of a conflict, based on mere speculation. Despite Campanelli’s attempt to assert a conflict in the public defender’s representation of Cole, it is clear that basis for Campanelli’s conflict or potential conflict in representing of Cole arises solely from the fact that the office of public defender was appointed to represent more than one defendant in this multiple defendant case.

Nonetheless, the United States Supreme Court and this court have declined to find a per se conflict of interest simply because multiple representation may involve a conflict of interest.

At best, Campanelli’s claims of conflict are based upon mere speculation that joint representation of codefendants by assistant public defenders will, at some point, result in conflict. These claims fail to provide an evidentiary record of conflict, and a conflict cannot be created on mere speculation. As noted, under Holloway and Spreitzer, when a potential conflict is brought to the attention of the trial court at an early stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel.

Here, the trial court took adequate steps to ascertain that the risk of conflict was too remote to warrant separate counsel. Under the circumstances, then, the trial court did not abuse its discretion in finding that there would be no prejudice to Cole in appointing the office of the Cook County public defender to represent her. 

Accordingly, we affirm the trial court’s judgment finding Campanelli to be in direct civil contempt and imposing sanctions for that contempt. We note, however, that the record is clear that the trial court understood Campanelli’s contempt was purely a formal one and that the motivation for the contempt was solely to permit an appeal of the issue of multiple representation of defendants in light of the 2010 revisions to the Illinois Rules of Professional Conduct. Given these circumstances, we vacate the order of the trial court holding Campanelli in contempt and vacate the award of sanctions, despite our finding that the contempt order and award of sanctions were valid.

Moreover, because the underlying case against Cole has continued to proceed with appointed counsel since May 19, 2016, we find, for purposes of judicial economy, that appointed counsel shall continue to represent Cole in the underlying case.

We decline to order Campanelli to now accept representation of Cole.