The opinion of the court was delivered by: Justice Reid
Appeal from the Circuit Court of Cook County Honorable Mary Ellen Coghlan, Judge Presiding
This is an interlocutory matter before this court pursuant to Illinois Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). Following the granting by the trial court of a motion to disqualify defense counsel, defendant petitioned this court for leave to appeal. This court dismissed the petition. Defendant subsequently filed a petition for leave to appeal to the Illinois Supreme Court. Pursuant to its supervisory power, the Illinois Supreme Court denied the petition for leave to appeal and remanded the case back to this court with directions to hear the appeal.
Alvaro Ortega (Ortega) and Eugenio Natal (Natal) were arrested for the delivery of a controlled substance, namely 999.38 grams of cocaine, in violation of section 401(a)(2)(D) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(D) (West 1992)). The delivery took place on August 1, 1996, with the arrest occurring the following day. Though Robert Novelle, Sr., had previously appeared on the defendant's behalf in the pre-arraignment stages of the proceedings, he filed a formal appearance in October 1996.
Prior to trial, the People filed a motion to disqualify Robert Novelle on the grounds that Donald Novelle, his brother and law partner, had represented Juan Montez in four different criminal matters. Juan Montez, when Robert Novelle acted as his lawyer, used the aliases Valentine Mejia and Juan Soliz. It is possible that Montez was the alias and Mejia is the real name. Montez was working for the Metropolitan Enforcement Group (MEG), either for compensation or to work off pending criminal cases. The People's motion alleged that the representation of Montez created a per se conflict of interest.
Donald Novelle testified he learned Montez was a witness in a grand jury proceeding in which Ortega was a target. The work Montez was doing for the MEG involved organizing the cocaine purchase from which Ortega now appeals. Donald Novelle allegedly heard that Eugenio Natal was involved in this cocaine purchase but would not be charged. Donald Novelle claims he learned of the agreement between Montez and the MEG after the transaction. He also testified to representing Montez in his attempt to enforce the agreement whereby he worked for the MEG. The People deny that such an agreement exists. When Montez was called to testify before a grand jury, he invoked his fifth amendment right not to testify.
On September 6, 1996, in an informal conference with the trial court to resolve any conflicts, it was recommended that Donald Novelle have another lawyer represent Montez. This was suggested to eliminate any appearance of impropriety. Donald Novelle responded that, based on the purported conflicts waivers before the trial court, he could freely discuss both the cases involving Montez and the facts of any alleged conflict with members of the firm, including Robert Novelle. In subsequent proceedings, although Donald Novelle continued to represent Montez in pending criminal matters, Greg Ginex appeared on his behalf. On September 12, 1996, while being represented by Ginex, Montez testified before the grand jury. Montez ultimately did receive convictions in the cases involving him. His sentence was 30 months' probation. At the time of the conference between Novelle and the trial court in this case, Montez still owed Novelle's firm for legal services.
On April 20, 1999, the trial court asked Ortega and Natal if they understood the nature of the conflict of interest. Each defendant responded that he did. The trial court also questioned each defendant regarding his age, level of education and experience in the legal system. Both defendants indicated that they waived potential conflicts so that Robert Novelle could continue to represent them. Robert Novelle told the court that he had informed the defendants of every relevant fact of the potential conflict of interest. Despite the purported waivers, the trial court found the existence of a per se conflict of interest. The trial court also found that no waiver could satisfy the trial court's duty to ensure that a defendant received the undivided loyalty of his counsel.
The trial court's April 20, 1999, order was entered orally. The proceedings were then stayed pending appeal. On April 26, 1999, the trial court entered a written order on the substance of the April 20, 1999, oral order. On May 9, 1999, the petitioner filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(7). The People filed an answer to the petition. This court dismissed the petition. Defendant next filed a petition for leave to appeal to the Illinois Supreme Court. That petition to the supreme court was denied. In their denial, the supreme court remanded the case back to this court with directions to hear the appeal.
Ortega argues that the trial court erred in disqualifying defense counsel because the representation of Montez was neither contemporaneous with the current representation nor harmful to either client's interests. Ortega also argues that there was a knowing waiver of any conflict of interest such that, although the constitutional right to counsel of his own choosing and the sixth amendment right to the undivided loyalty of counsel are in competition, the right to counsel of his own choosing must prevail. Specifically, Ortega argues that the representation of Montez was over for two years by the time Ortega was arrested. He also maintains that the prior representation ended and did not resume at any point. Even if it did, Ortega claims that Montez's potential testimony would potentially exonerate Natal and not him. As a result, Ortega argues Montez's potential testimony was not truly opposed to his interests. Ortega also points out that, since the trial court found Montez's agreement unenforceable, any potential benefit Montez might have received at the cost of Ortega's interests was essentially mooted.
The People respond that the trial court was correct in disqualifying defense counsel in light of the per se conflict of interest which exists in this case. The People argue that, where an actual or possible conflict of professional interest is found to exist, prejudice is presumed. The People emphasize that, although Robert Novelle's firm no longer represents Montez, Donald Novelle did represent Montez during hearings that directly related to the facts and circumstances of the case sub judice. It argues the trial court was properly concerned with the appearance of impropriety, should the jury become aware of the prior representation of the People's witness in matters directly related to this case. The trial court also expressed concern that Robert Novelle's cross-examination might be subliminally restricted or limited, especially in light of any information he gained by way of the attorney-client privilege and Montez's belief that Natal was not supposed to be arrested or prosecuted for the crime.
Appellate review of a purely legal question is de novo. People v. Hall, 198 Ill. 2d 173 (2001); People v. Dameron, 196 Ill. 2d 156, 162 (2001); People v. Krause, 273 Ill. App. 3d 59, 62 (1995). A question of law arises when neither the credibility of the witnesses nor the facts are at issue. People v. Walker, 308 Ill. App. 3d 435, 438 (1999), citing People v. Oaks, 169 Ill. 2d 409, 447-48 (1996).
Ortega claims that defense trial counsel should not have been disqualified because, although there was the potential for a conflict of interest, harm to the defendants' position was nullified by the knowing waivers made in this case. "The right to the effective assistance of counsel is a fundamental right and entitles an accused to the undivided loyalty of his counsel." People v. Lawson, 163 Ill. 2d 187, 208-09 (1994); Ill. Const. 1970, art. I, §8; U.S. Const., amends. VI, XIV. This right was designed to assure fairness in the adversary criminal process. People v. Holmes, 141 Ill. 2d 204, 217 (1990), citing United States v. Morrison, 449 U.S. 361, 364, 66 L. Ed. 2d 564, 567, 101 S. Ct. 665, 667 (1981). The constitutional right to counsel includes the right to counsel of one's own choosing. People v. Basler, 304 Ill. App. 3d 230, 232 (1999); People v. Johnson, 75 Ill. 2d 180 , 185 (1979). "Where a constitutional right to counsel exists, there is a correlative right to representation, that is free from conflicts of interest." People v. Johnson, 322 Ill. App. 3d 117, 121 (2001). An attorney's relationships vis-a-vis certain clients can, without more, create a disabling conflict that taints the outcome of a trial. People v. Coleman, 301 Ill. App. 3d 290, 299 (1998). "Counsel's contemporaneous association with either the crime victim or a State's witness forms such a relationship and creates a conflict per se." Coleman, 301 Ill. App. 3d at 299, citing People v. Spreitzer, 123 Ill. 2d 1, 14 (1988). Where facts presenting an attorney's possible conflict of interests are made known to the court, the court must ascertain the extent of the risk and take whatever measures are necessary to protect the accused's guarantee of effective assistance of counsel. People v. Thomas, 131 Ill. 2d 104, 111 (1989), citing Holloway v. Arkansas, 435 U.S. 475, 484-85, 55 L. Ed. 2d 426, 434-35, 98 S. Ct. 1173, 1178-79 (1978).
"There are certain contemporaneous representations that we have decided not to tolerate, even in the absence of a showing that anyone was prejudiced by the existing conflict. Where the competing interests * * * are directly at odds, we presume ineffectiveness without any inquiry into how a lawyer actually performed." People v. Sims, 322 Ill. App. 3d 397, 413 (2001). Where no per se conflict of interest exists, the defendant must show the existence of an actual conflict and actual prejudice. People v. Becerril, 307 Ill. App. 3d 518, 525 (1999), citing People v. Taylor, 165 Ill. App. 3d 1016, 1021 (1988). Where an actual conflict of interest exists, the defendant is not required to prove that the conflict contributed to his conviction. Becerril, 307 Ill. App. 3d at 525, citing People v. Spreitzer, 123 Ill. 2d 1, 18 (1988). "'[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.'" Spreitzer, 123 Ill. 2d at 19, quoting Cuyler v. Sullivan, 446 U.S. 335, 349-50, 64 L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1719 (1980).
The supreme court has provided guidance for detecting per se conflicts of interest. Sims, 322 Ill. App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 16. "Where defense counsel has a tie to a person or entity, including his 'own previous commitments,' which would benefit from an unfavorable verdict for the defendant, a per se conflict arises." People v. Woidtke, 313 Ill. App. 3d 399, 409 (2000); Spreitzer, 123 Ill. 2d at 16. "In such a case, the defendant is not required to show prejudice as a result of the representation; the representation is deemed ineffective as a result of the inherent conflict. Sims, 322 Ill. App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 14-16.
Where defense counsel has represented a State witness, a per se conflict of interest exists if "'the professional relationship between the attorney and the witness is contemporaneous with counsel's representation of the defendant.'" Coleman, 301 Ill. App. 3d at 299, quoting People v. Free, 112 Ill. 2d 154, 168 (1986); see also People v. Robinson, 79 Ill. 2d 147 (1979), People v. Strohl, 118 Ill. App. 3d 1084 (1983). The per se conflict rule "'"is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties."'" Coleman, 301 Ill. App. 3d at 299, quoting People v. Lawson, 163 Ill. 2d 187, 210 (1994), quoting People v. Gerold, 265 Ill. 448, 477 (1914). Whether two things are contemporaneous logically must be determined based upon the unique facts and circumstances of the given situation.
In the case at bar, the trial court concluded that a per se conflict of interest existed. We agree. The trial court based this conclusion on the fact that defense counsel's firm had previously represented Montez, the confidential informant concerning the facts alleged in this case. The trial court placed great significance on its understanding that there were similar competing interests at stake. In so ruling, the trial court commented as follows:
"[I]t is clear that the * * * firm contemporaneously represented a potential State witness and Defendants in proceedings involving the facts of the instant case. It is well established that knowledge of one member of a law firm is imputed to other members of the firm. Conflicts of interest for one member extend to all members of a firm. People v. Dace, 153 Ill. App. 3d 891, 896.
It follows that since defense counsel's firm previously represented confidential informant Montez concerning the very facts alleged in this case, a per se conflict ...