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People v. Mckown

OPINION FILED JANUARY 28, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FREDERICK L. MCKOWN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Fulton County; the Hon. CHARLES H. WILHELM, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The defendant, Frederick L. McKown, appeals from his aggravated battery conviction following a jury trial in the Circuit Court of Fulton County. The circuit court sentenced the defendant to 2 years probation conditional upon serving 14 days' imprisonment and payment of $500 in restitution. The issues presented on appeal are whether a conflict of interest existed by virtue of defense counsel's relationship with the Attorney General's office and whether the defendant knowingly and intelligently waived the conflict of interest. We affirm.

The defendant was initially represented by the Fulton County public defender, who withdrew because of a conflict of interest arising from his representation of the two co-defendants in the case. Attorney Ronald J. Weber then entered his appearance on behalf of the defendant. But Weber, who was privately retained, also presented a potential conflict of interest in that a member of his firm was then employed as a special assistant Attorney General for condemnation litigation. Prior to trial, Weber informed the defendant of the existence of the potential conflict and, pursuant to section 5 of the Attorney General's internal code of conduct, attempted to gain his client's written waiver of the conflict by means of the following preprinted form:

"ATTORNEY'S DISCLOSURE OF CONFLICT OF INTEREST

You are hereby informed that Ronald Weber and C. Eugene Taylor, members or associates of the law firm of Froehling, Taylor & Weber are Special Assistant Attorneys General for condemnation. The Illinois Courts have ruled that where a defendant in a criminal case is represented by an attorney who is a Special Assistant Attorney General for the handling of any matters, whether civil or otherwise, there is a conflict of interest. That conflict bars the attorney from acting for the defendant unless the defendant waives it freely upon a full disclosure of the facts. We are now making that disclosure so that you can, if you choose, waive the conflict and retain us as your lawyer.

The conflict arises from the commitment of every Special Assistant Attorney General to the People of Illinois to seek enforcement of the law, and it exists even though a particular Special Assistant may never be employed in any criminal proceeding on behalf of the State. In any criminal case in Illinois, the Attorney General's office may be called upon to aid in the prosecution. Although neither Ronald Weber nor C. Eugene Taylor are likely to be called upon to represent the State in your case or in any other criminal proceeding, nonetheless you should be aware that the courts have held that because of their relationship with the Attorney General a conflict of interest exists. You are entitled to be informed about that conflict so that you can determine whether it might or might not be detrimental to you.

Dated: May , 1980.

s/ Ronald Weber."

The waiver form involved is as follows:

"DEFENDANT'S RECEIPT AND WAIVER

I, Frederick McKown, being a defendant in the above-entitled action, acknowledge receipt of a copy of the above disclosure. I have read it and I understand that my lawyers, because of their position with the Attorney General's Office do have commitments to the People of Illinois generally to seek enforcement of the law and could therefore have other interests than mine as they work on my case. I am satisfied that the firm of Froehling, Taylor & Weber, including Ronald Weber and C. Eugene Taylor, will represent me fairly and competently in the above-entitled action and I hereby freely consent to their doing so. I hereby waive any right that I may now have, or have had, or may hereafter have, to claim that I was harmed or not fairly or competently represented because of any conflict of interest by reason of the matters and things set forth above or because said firm or any member of associate of the firm is now a Special Assistant Attorney General.

Dated: May , 1980.

s/ Fred McKown Defendant."

At a pretrial hearing held to apprise the court of the potential conflict and the defendant's purported waiver, the following colloquy took place:

"BY MR. WEBER: Your Honor, I would at this time like to state for the record that my office represents the Attorney General's Office, specifically Gene Taylor is an Assistant Attorney General for the purpose of condemnation, and I believe the law now provides that pursuant to our representation of the Attorney General's Office, we could be called upon to do appellate work for the State's Attorney's Office, and pursuant to that, we are required to disclose this to my client, Mr. McKown, which I have previously done; that that potential conflict does exist, and while I feel that in no way would it affect my representation of him, I do feel that this disclosure ...


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