Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit Nos. 08-JA-200, 08-JA-202, and 08-JA-203 Honorable Paula A. Gomora, Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.
¶ 1 This matter comes before this court on an interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(1) (eff. Feb. 16, 2011). The State appeals the trial court's order granting the respondent-mother, Keisha C., a new trial due to a per se conflict of interest. Specifically, the trial court found that a per se conflict of interest existed under Rule 1.12(a) of the Rules of Professional Conduct (Ill. Rs. Prof'l Conduct R. 1.12(a) (eff. Jan. 1, 2010)) because one of the respondent-fathers was represented by an attorney who had mediated a prior family court case between the respondent-father and respondent-mother. On appeal, the State argues that: (1) Rule 1.12(a) does not apply to this case; (2) even if the rule does apply, there is no per se conflict of interest; and (3) the respondent-mother did not have standing to complain about the alleged conflict of interest. We affirm.
¶ 3 On August 28, 2008, the State filed petitions alleging that the minors, W.R., E.H., and V.R., were neglected because their environment was injurious to their welfare. The basis of the petition was that the respondent-mother had allowed a convicted sex offender to pick up her children from day care and have unsupervised contact with them.
¶ 4 Attorney Lea A. Drell was appointed to represent W.R., Sr., father of W.R., in the juvenile court proceeding. On April 14, 2009, Drell filed a motion for custody for W.R. In that motion, Drell asserted that W.R. had eczema "all over his body" when he came to live with the respondent-father but that it was "now almost cleared up through the actions of [W.R., Sr.]" The motion further alleged that W.R. had been integrated into his father's family.
¶ 5 The matter proceeded to an adjudicatory hearing on March 2, 2010. During the hearing, Drell asked the respondent-mother a series of questions about W.R. to show "that her level of involvement with her child [was] very little."
¶ 6 At closing arguments, Drell recommended that W.R., Sr., be given custody of his son, and she argued that W.R. had been given stability over the past two years. The guardian ad litem (GAL) also recommended that the respondent-father should receive custody of W.R. During her closing argument, the GAL referred to a prior family court case to argue that the court may be an appropriate forum for the respondent-mother to seek visitation once the case was closed. The trial court then questioned the attorneys with regard to the prior family court case, and Drell revealed that she had been the mediator in that case involving the respondent-mother and W.R., Sr.
¶ 7 The parties took a break to investigate the matter further. The State produced a document showing the result of the mediation and the agreement regarding the custody of the minor. The State then said, "I think some interest could have been affected if there [was] a conflict of interest, not the State's interest, but apparently there are two parents at odds with the request for a disposition in this case regarding [W.R.]" Drell apologized to the court, and responded that she had not recognized any of the parties. She further explained that, "I assume [the parties] came to see me once. And we had an agreement. And that was it."
"Judge, looks from the document that the appointment was made June 21st, 2005 to mediate the issues of custody and visitation.
And then sometime shortly after that, July 28th of '05, a mediation agreement was entered. And then there is no reference any further even though there are some other proceedings in 2008 and 2009. It doesn't look like any further."
¶ 9 The case was continued November 9, 2010, in an effort to secure informed consent from the parties. The respondent-mother did not give her consent, and instead she filed a motion for a new trial based on a violation of Rule 1.12 of the Rules of Professional Conduct. After a hearing on the motion, the trial court found:
"[A]fter reading the case law *** what has happened is that after it was discovered that *** Drell was also the mediator in a custody proceeding between [the respondent-mother] and [W.R., Sr.], and she didn't even remember that she was the mediator--she was not your attorney in that proceeding. However, the ...