Petition for Writ of Certiorari — Amy P. Campanelli, Petitioner v. Illinois

Supreme Court briefFeb 28, 2018

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No. ____

IN THE

Supreme Court of the United States

_________

AMY P. CAMPANELLI,

Petitioner,

STATE OF ILLINOIS,

Respondent.

________

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Illinois

________

PETITION FOR A WRIT OF CERTIORARI

________

MICHAEL A. SCODRO

SAMUEL D. BLOCK

PETER B. BAUMHART

MAYER BROWN LLP

71 S. Wacker Drive

Chicago, IL 60606

CLIFFORD W. BERLOW

Counsel of Record

BRIANA T. SPRICK SCHUSTER

NATHANIEL K.S. WACKMAN

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

(312) 840-7366

cberlow@jenner.com

QUESTION PRESENTED

Does the Sixth Amendment right to conflict-free

counsel forbid multiple attorneys in a single public

defender’s office from concurrently representing nonconsenting, adverse co-defendants?

TABLE OF CONTENTS

QUESTION PRESENTED ....................................................... i

TABLE OF APPENDICES .....................................................iii

TABLE OF AUTHORITIES ...................................................iv

PETITION FOR A WRIT OF CERTIORARI ...................... 1

OPINIONS BELOW ................................................................... 1

JURISDICTION ......................................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ................. 1

INTRODUCTION ....................................................................... 1

STATEMENT OF THE CASE ................................................ 6

REASONS FOR GRANTING THE WRIT............................ 9

Courts Are Divided Over The Question

Presented ............................................................................ 9

Courts In Some States Have Held That The

Constitution Forbids A Single, Centrally

Managed Public Defender’s Office From

Representing

Co-Defendants

With

Adverse Interests .................................................... 10

Other States Read The Constitution To

Allow A Single, Centrally Managed

Public Defender’s Office To Represent

Adverse Co-Defendants.

That does not mean, however, that the Illinois

Supreme Court is alone. Courts in other states follow

the constitutional rule announced by the Illinois

Supreme Court in this case. Like the Illinois high court,

these courts frequently begin by acknowledging that the

Sixth Amendment recognizes a right to conflict-free

counsel, but contrary to the rule that prevails in Florida,

Pennsylvania, and Louisiana, they ultimately conclude

that there is no conflict when multiple attorneys from

the same public defender’s office represent adverse codefendants.

For example, the Supreme Court of New Jersey has

held that representation of co-defendants by lawyers

from the same public defender’s office does not offend

the Sixth Amendment. State v. Bell, 447 A.2d 525 (N.J.

1982). Relying on earlier precedent from the Illinois

Supreme Court, the New Jersey court held that

although prejudice is assumed when associated private

attorneys represent criminal co-defendants, “the same

potential [for conflict] does not exist”—and therefore

prejudice is not assumed—when co-defendants are

represented by attorneys from the same public

defender’s office. Id. at 527-28 (citing People v.

Robinson, 402 N.E.2d 157 (Ill. 1980)).

The Colorado Supreme Court likewise refused to

disqualify the state public defender’s office based on the

imputation of conflicts between lawyers within the

office. People v. Shari, 204 P.3d 453, 456, 462 (Colo.

2009). Although the bulk of the opinion in Shari

addressed state rules of professional conduct governing

conflicts, the court framed its discussion in Sixth

Amendment terms. That is, the court held that conflicts

are not imputed within a single, centrally managed

public defender’s office despite acknowledging that

criminal defendants have a constitutional right to

conflict-free representation and warning that

“representation that is intrinsically improper due to a

conflict of interest” transgresses the Sixth Amendment.

Id. at 457 (quoting Dunlap v. People, 173 P.3d 1054, 1070

(Colo. 2007)).

The Idaho Supreme Court also takes the same view

as the Illinois Supreme Court. It made that clear in State

v. Severson by holding that a single public defender’s

conflict of interest was not imputed to an entire public

defender’s office. 215 P.3d 414, 423-27 (Idaho 2009). In

doing so, the court explicitly adopted the reasoning and

analysis of the court in State v. Cook, 171 P.3d 1282

(Idaho Ct. App. 2007), which “declined to impute one

public defender’s conflict to the entire office” when

analyzing a conflict of interest under the Sixth

Amendment. Severson, 215 P.3d at 426-27; see also

Cook, 171 P.3d at 1291 (citing Bell, 447 A.2d 525). The

Idaho Appellate Court has since relied on Severson and

Cook to hold that concurrent representation of codefendants by a single public defender’s office does not

violate the Constitution. See, e.g., Eby v. State, No.

39301, 2013 WL 5488758, at *3-5 (Idaho Ct. App. Mar. 28,

2013) (unpublished).

The Illinois Supreme Court thus has joined other

state courts, including the high courts of New Jersey,

Colorado, and Idaho to hold that the Sixth Amendment

does not forbid a single, centrally managed public

defender’s office from representing co-defendants with

adverse interests. Because the Sixth Amendment rule

in those jurisdictions conflicts with the rule in other

jurisdictions, this Court’s intervention is required.

II.

The Decision Below Conflicts With This

Court’s Precedent.

The decision below also conflicts with this Court’s

holding in Holloway v. Arkansas, 435 U.S. 475. There,

the Court held that when a court is alerted to a potential

conflict between co-defendants represented by the same

counsel, the court must either “appoint separate counsel

or … take adequate steps to ascertain whether the risk

[of conflict is] too remote to warrant separate counsel”

without requiring counsel to disclose confidential

information as part of that inquiry. Id. at 484. The

decision below defies that rule.

1. In Holloway, a public defender leading a threeperson office objected to an assignment to represent

three co-defendants, explaining to the court “that there

[was] a possibility of a conflict of interest in each of their

cases” and that he could not represent all three because

he had “received confidential information from them.”

Id. at 477-78. The trial court nevertheless refused to

appoint separate counsel and the Arkansas Supreme

Court affirmed, faulting the public defender for “fail[ing]

to outline to the trial court both the nature of the

confidential information received from his clients and

the manner in which knowledge of that information

created conflicting loyalties.” Id. at 481.

This Court reversed, rejecting Arkansas’s claim that

the public defender had to offer greater detail about the

potential conflict. Id. at 485-86. The Court explained

that “an attorney’s request for the appointment of

separate counsel, based on his representations as an

officer of the court regarding a conflict of interests,

should be granted.” Id. at 485. The Court emphasized

that the objecting attorney: (1) ‘“is in the best position

professionally and ethically to determine when a conflict

of interest exists or will probably develop in the course

of a trial”’; (2) has an ethical obligation to bring the

conflict to the court’s attention; and (3) makes

representations about the potential conflict that ‘“are

virtually … under oath.”’ Id. at 485-86 (citations

omitted).

Furthermore, the Court in Holloway rejected the

notion that a court may freely force a public defender to

choose between disclosing client confidences and

providing detail about the conflict needed to support the

request for separate counsel. To be sure, Holloway

allows courts to “explor[e] the adequacy of the basis of

defense counsel’s representations,” but the Court

admonished that it is “improper[]” to require counsel to

disclose confidential information as a part of that inquiry.

Id. at 487.

2. It is impossible to square the Illinois Supreme

Court’s decision here with Holloway. In representing

that a conflict of interest was likely, Ms. Campanelli

offered an explanation that is indistinguishable from the

one the public defender provided in Holloway. Compare

Pet. App. 4a, with Holloway, 435 U.S. at 477-78. And

much like the Arkansas Supreme Court’s decision in

Holloway, the Illinois Supreme Court faulted Ms.

Campanelli for “fail[ing] to provide any substantive

basis” for the conflict, labeling her representations

“mere speculation” and “bare allegations.” Compare

Pet. App. 26a-27a, with Holloway, 435 U.S. at 481.

The Illinois Supreme Court thus committed the same

basic error that the Arkansas Supreme Court did in

Holloway: it forced defense counsel to choose between

Given the nature of the underlying criminal case, Ms. Campanelli’s

explanation was far from speculative. The evidence here was

“interlocking,” meaning that if any co-defendant elected to plead

guilty and cooperate, it would have had grave implications for the

other co-defendants. See Holloway, 435 U.S. at 489-90 (“[I]n this

case [the conflict of interest] may well have precluded defense

counsel for [one defendant] from exploring possible plea

negotiations and the possibility of an agreement to testify for the

prosecution.”); see also United States v. Brock, 501 F.3d 762, 772

(6th Cir. 2007) (“[A] case with interlocking proof [is] a classically

‘suspect’ situation because it ‘tends to prevent’ an attorney from

vigorously representing each client.”) (citation omitted), abrogated

on other grounds by Ocasio v. United States, 136 S. Ct. 1423 (2016).

Moreover, the co-defendants here would inevitably be of “varying

stature” within the scheme, leading to critical differences in

culpability. Wheat v. United States, 486 U.S. 153, 163-64 (1988).

disclosing confidential information and failing to provide

the level of detail necessary to persuade the trial court

of a direct conflict. This is precisely the choice that

Holloway forbids.

To be sure, the Illinois Supreme Court purports to

acknowledge that under Holloway “counsel cannot be

ordered to divulge attorney-client privileged

information.” Pet. App. 24a. But the court effectively

negated this rule by reasoning that no information public

defenders could ever learn through such attorney-client

communications—which may include an intent to plead

guilty and testify against a co-defendant, to accuse the

co-defendant of sole responsibility, or to testify that the

co-defendant orchestrated the illegality—can ever

establish a conflict of interest. See Pet. App. 25a-26a.

According to the Illinois Supreme Court, the only factors

relevant to determining whether representation of codefendants by affiliated public defenders creates a

conflict involve ‘“how the working relationship between

the public defenders create[s] an appearance of

impropriety.”’ Pet. App. 25a (quoting People v. Hardin,

217 Ill. 2d 289, 303 (2005)).

This is no work-around to Holloway. A central

teaching of Holloway is that “joint representation” over

“express objections … prejudice[s] the accused in some

degree” and that this “prejudice is presumed regardless

of whether it was independently shown.” Holloway, 435

U.S. at 489. The Illinois Supreme Court failed to explain

why that prejudice, the substance of which frequently is

revealed through attorney-client communications, is all

but inevitable when colleagues from a single law firm

represent adverse co-defendants, but unlikely to occur

when colleagues from a single public defender’s office

represent adverse co-defendants. See Pet. App. 19a,

25a-26a.

3. This Court has reaffirmed Holloway repeatedly.

See, e.g., Mickens 535 U.S. at 176 (“The purpose of our

Holloway … exception[] … [is] to apply needed

prophylaxis … to assure vindication of the defendant’s

Sixth Amendment right to counsel.”); accord Wheat v.

United States, 486 U.S. 153, 160 (1988); Wood, 450 U.S.

at 271. Furthermore, Holloway’s instruction that courts

must rely on the “good faith and good judgment” of

defense counsel in raising potential conflicts is the

foundation of this Court’s subsequent conflict

jurisprudence. Cuyler v. Sullivan, 446 U.S. 335, 347

(1980); see also Mickens, 535 U.S. at 167-68.

For example, Cuyler cited Holloway in holding that

courts could trust that defense counsel would raise

potential conflicts at the outset of proceedings, obviating

the need to affirmatively inquire into conflicts prior to

trial “[a]bsent special circumstances.” 446 U.S. at 34647. And courts and commentators alike agree that under

Holloway, there are virtually no circumstances in which

the risk of conflict is “too remote” to warrant

appointment of alternative counsel. See 3 Wayne R.

LaFave et al., Criminal Procedure § 11.9(b) (4th ed.

2015)

(“Commentators

analyzing Holloway have

suggested … that th[e] option [to find a conflict ‘too

remote’] might prove largely illusory …. Lower court

rulings since Holloway strongly support th[is]

wisdom[.]”). So it makes little sense to reason, as the

Illinois Supreme Court’s decision does, that the

possibility that a prejudicial conflict may result from

having colleagues from the same government office

represent co-defendants will virtually never occur. See

Pet. App. 25a-26a.

In sum, this Court’s precedent is clear: “[A] court

confronted with and alerted to possible conflicts of

interest must take adequate steps to ascertain whether

the conflicts warrant separate counsel.” Wheat, 486 U.S.

at 160. And Holloway teaches that those steps may not

require the disclosure of confidential information and

that counsel may not be faulted for failing to provide

enough information about the conflict. 435 U.S. at 48182, 487. Because the Illinois Supreme Court’s decision

directly contravenes this precedent, certiorari is

warranted.

III.

This Case Presents An Important Issue And

Provides An Excellent Vehicle To Answer The

Question Presented.

The Court should use this case to resolve the split

over the question presented. The ubiquity of public

defenders in our criminal justice system means that the

Sixth Amendment rights of millions of Americans are

affected by this issue. Cf. Luis v. United States, 136 S.

Ct. 1083, 1110 (2016) (Kennedy, J., dissenting)

(describing “the large volume of defendants in the

criminal justice system who rely on public

representation”). Forty-nine states and the District of

Columbia have designated public defender’s offices.

Many are organized like Cook County’s, with a single

See Donald J. Farole, Jr. & Lynn Langton, U.S. Dep’t of Justice,

NCJ 231175, County-based & Local Public Defender Offices, 2007,

at 1 (Sept. 2010).

public defender responsible for every representation

that his or her office undertakes. And public defenders

provide representation to an outsize percentage of the

criminal matters adjudicated in the Nation’s courts. In

2007 alone, public defender’s offices received over 5.5

million cases. Every corner of the Nation’s federal,

state, and local criminal justice system thus will be

affected by the resolution of the split described in this

Petition.

Further, given the importance of public defenders to

the Nation’s criminal justice system, it is essential that

this Court draw clear lines when it comes to multiple

representations by their offices. The Court has

frequently recognized the value of bright-line rules for

police and prosecutors. See Arizona v. Roberson, 486

U.S. 675, 681 (1988) (collecting cases). Unambiguous

guidance is no less vital here: “overworked and

underpaid public defenders,” Luis, 136 S. Ct. at 1095,

also need straightforward and administrable rules to

ensure that they protect their clients’ Sixth Amendment

rights and adhere to their attendant ethical obligations.

This case also presents an excellent vehicle for

resolving the question presented. Ms. Campanelli’s

statement to the trial court regarding the conflict in

having her office represent adverse co-defendants was

See generally Stephen D. Owens et al., U.S. Dep’t of Justice, NCJ

246683, Indigent Defense Services in the United States, FY 20082012 (July 2014).

See Farole & Langton, supra note 3, at 3 tbl. 1.; see also Caroline

Wolf Harlow, U.S. Dep’t of Justice, NCJ 179023, Defense Counsel

in Criminal Cases, at 1 (Nov. 2000).

indistinguishable from the representation made by the

public defender to the trial court in Holloway regarding

the conflict in having a single lawyer represent adverse

co-defendants there. In light of that fact, this case

squarely implicates the meaning of the Sixth

Amendment. That is so notwithstanding the State’s

argument below that the Sixth Amendment is irrelevant

to this case because determining whether a conflict of

interest exists depends solely on each state’s individual

rules of legal ethics. Regardless of any specific

provisions in a state’s rules of ethics, there is a federal

constitutional “right to representation that is free from

conflicts of interest.” Wood, 450 U.S. at 271 (emphasis

added). Whether a conflict exists for purposes of the

Sixth Amendment thus cannot vary from state to state

depending on the vagaries of each state’s rules of

professional responsibility or the interpretation of those

rules by state courts.

Also meritless is the State’s contention below, which

the Illinois Supreme Court rightly ignored, that the

constitutional implications of this case are nonjusticiable because only a criminal defendant may raise

a Sixth Amendment argument.

This Court has

recognized that an appeal from a contempt order is a

proper way to obtain review of an order directing the

disclosure of attorney-client privileged information,

which is also a context where the client, not the attorney,

possesses the substantive right. Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 111 (2009). Moreover, Ms.

Campanelli was held in civil contempt of court for her

refusal to accept the appointment to represent Ms. Cole.

That caused her legally cognizable harm. See, e.g., Balt.

City Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 55354 (1990); In re Roche, 448 U.S. 1312, 1314-15 (1980). The

contempt order thus is based on the legal conclusion that

Ms. Campanelli would not violate the rights of either her

office’s existing clients or its prospective client, Ms.

Cole, if she accepted the appointment. Because the

rationale for the contempt order therefore depends on a

state court’s resolution of a question of federal

constitutional law, the resolution of that question is

squarely before the Court.

Finally, Ms. Campanelli has a concrete interest in

having the question presented resolved in her favor and

her contempt vacated in its entirety, notwithstanding

that the Illinois Supreme Court vacated the trial court’s

imposition of sanctions. Pet. App. 31a; see Chafin v.

Chafin, 568 U.S. 165, 172 (2013). The Illinois Supreme

Court affirmed the trial court’s judgment finding

Petitioner in contempt. Pet. App. 31a. That has

consequences for Ms. Campanelli, both individually and

professionally. Most tangibly, it will impact her practice

of law in the future because any time she seeks

admission to practice in a new court or jurisdiction, she

will have to disclose that she has been held in contempt

of court and that the contempt judgment was affirmed

by the state’s highest court. In addition, it will cause her

For example, admission to the Bar of this Court requires the

disclosure of whether a lawyer has ever previously been

“sanctioned” by a state or federal court. See Supreme Court of the

United States, Application for Admission to Practice, available at

https://www.supremecourt.gov/bar/barapplication_new.pdf

(last

accessed Feb. 25, 2018). Many courts have similar requirements.

E.g., D.D.C. R. 83.8(b)(4) (requiring disclosure of whether

reputational harm among the bar and the judiciary,

impairing her ability to effectively lead her office and

represent her indigent clients. Cf. Meese v. Keene, 481

U.S. 465, 479 n.14 (1987) (“The risk of . . . reputational

harm . . . is sufficient to establish . . . standing to litigate

the claim on the merits.”). And in all events, Ms.

Campanelli and her office have a concrete stake in the

resolution of the question presented. The decision below

has a “prospective effect” on the way she discharges her

office—she “must either change the way s[he] performs

h[er] duties or risk a meritorious [contempt] action.”

Camreta v. Greene, 563 U.S. 692, 702-03 (2011).

Ms. Campanelli is a dedicated public servant whose

indigent clients are among the most vulnerable members

of society. To carry out her duty to them, she subjected

herself to a contempt order in the only trial court where

she regularly appears. She did so to challenge the

constitutionality of requiring her and her assistants to

represent adverse co-defendants. Because the Illinois

courts’ rejection of her Sixth Amendment claim formed

the basis for that contempt, this case presents an

excellent vehicle for this Court to resolve the question

presented.

applicants for admission to practice before the court have “been held

in contempt of court and, if so, the nature of the contempt and final

disposition thereof”); S.D.N.Y./E.D.N.Y. R. 1.3(a) (same); E.D.

Mich. R. 83.20(c) (similar); see also United States District Court,

Northern District of Illinois, Motion for Leave to Appear Pro Hac

Vice,

available

http://www.ilnd.uscourts.gov/_assets/_documents/_forms/_online/

A%20Motion%20and%20application%20to%20Appear%20Pro%20

Hac%20Vice.pdf (last accessed Feb. 25, 2018) (requiring applicant

to disclose whether she has “ever been held in contempt of court”).

IV.

The Ruling Below Is Wrong On The Merits.

Finally, the Illinois Supreme Court erred in holding

that multiple lawyers in the same public defender’s

office may represent potentially adverse co-defendants

without jeopardizing the Sixth Amendment right to

conflict-free counsel.

A settled rule of conflicts of interest is that “[w]hile

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”

because of a conflict. E.g., Model Rules of Prof’l Conduct

r. 1.10 (Am. Bar Ass’n 2016). This rule is the product of

practical realities. Broadly, there is an obvious risk in

allowing a single legal organization to see its

institutional loyalties divided among clients facing

criminal charges. See Holloway, 435 U.S. at 490. More

narrowly, there are practical problems for the individual

lawyers because “lawyers who practice together share

professional … interests and are concerned with

furthering each other’s interest.” Geoffrey C. Hazard,

Jr., The Law & Ethics of Lawyering 705 (2d ed. 1994).

And there is also the risk that when lawyers share office

space, harmful confidential information can easily make

its way from one affiliated lawyer to another. See

Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d

1311, 1321-22 (7th Cir. 1978).

For many of these same reasons, it is widely accepted

that ethical screens do not ameliorate conflicts between

current clients. Screens do not reduce the pull of divided

loyalties between attorneys and clients—the driving

force behind the imputation of conflicts. See Model

Rules of Prof’l Conduct 1.10, cmt. 2. The duty of loyalty

to a client—as well as the more subtle duty to an

attorney’s professional colleagues—persists regardless

of the strength of the wall erected.

These risks do not go away because lawyers work

together in a public defender’s office rather than a

private law firm. That is why the only national ethical

standards addressing the question presented recognize

that “[i]n a public-defender office, conflict-of-interest

questions commonly arise when the interests of two or

more defendants so conflict that lawyers in a privatepractice defense firm could not represent both or all the

defendants,” which is why “[t]he rules on imputed

conflicts and screening of this Section apply to a publicdefender organization as they do to a law firm in private

practice in a similar situation.” Restatement (Third) of

the Law Governing Lawyers § 123 cmt. d(iv) (2000). The

oft-cited standards from the American Bar Association

are to the same effect: “Except where necessary to

secure counsel for preliminary matters such as initial

hearings or applications for bail, a defense counsel (or

multiple counsel associated in practice) should not

undertake to represent more than one client in the same

criminal case.” ABA, Criminal Justice Standards for the

Defense Function § 4-1.7(d) (emphasis added) (as cited,

in previous form, in Holloway, 435 U.S. at 486 n.8); see

also Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010)

(collecting cases from this Court recognizing that ABA

standards are often “valuable measures of the prevailing

professional norms of effective representation”).

Further, the Sixth Amendment guarantee that an

indigent criminal defendant will have a “guiding hand”

and “effective assistance” from legal counsel requires a

foundation of trust and confidence between attorney and

client. See Powell v. Alabama, 287 U.S. 45, 69 (1932);

Strickland v. Washington, 466 U.S. 668, 686 (1984). That

follows from this Court’s precedent, which not only

trumpets that “faithful, devoted service to a client .… is

th[e] kind of service for which the Sixth Amendment

makes provision,” Von Moltke, 332 U.S. at 725-26, but

also allows a criminal defendant to go it alone if that

trust is lacking, see Faretta v. California, 422 U.S. 806

(1975). Requiring an indigent defendant to accept a

public defender from the same office as the attorney

representing that defendant’s adverse co-defendant

undermines that relationship, making it all the more

difficult for the defendant to aid in his or her own

defense. “It is no secret that indigent clients often

mistrust the lawyers appointed to represent them.”

Jones v. Barnes, 463 U.S. 745, 761 (1983) (Brennan, J.,

dissenting); see also Upjohn Co. v. United States, 449

U.S. 383, 389 (1981) (explaining that attorney-client

privilege rests on both: (1) the attorney’s need ‘“to know

all that relates to the client’s reasons for seeking

representation”’ and (2) the client’s need to be ‘“free

from the consequences or the apprehension of

disclosure”’) (citation omitted).

As this Court has explained, “in a case of joint

representation of conflicting interests the evil—it bears

repeating—is in what the advocate finds himself

compelled to refrain from doing, not only at trial but also

as to possible pretrial plea negotiations and in the

sentencing process.” Holloway, 435 U.S. at 490. In such

circumstances, it is “virtually impossible” to “assess the

impact of a conflict of interest on the attorney’s options,

tactics, and decisions ….” Id. at 491; cf. United States v.

Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (“It is

impossible to know what different choices [a different

lawyer] would have made, and then to quantify the

impact of those different choices on the outcome of the

proceedings.”); Wheat, 486 U.S. at 162-63. The Illinois

Supreme Court’s decision is incorrect because these

concerns do not vanish when colleagues from the same

public defender’s office represent co-defendants. The

Court thus should grant certiorari to make clear that the

artificial distinction the Illinois Supreme Court

embraced between private law firms and public

defender offices falls far short of what the Sixth

Amendment demands.

CONCLUSION

The petition for a writ of certiorari should be

granted.

February 28, 2018

Respectfully submitted,

MICHAEL A. SCODRO

SAMUEL D. BLOCK

PETER B. BAUMHART

MAYER BROWN LLP

71 S. Wacker Drive

Chicago, IL 60606

CLIFFORD W. BERLOW

Counsel of Record

BRIANA T. SPRICK SCHUSTER

NATHANIEL K.S. WACKMAN

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

(312) 840-7366

cberlow@jenner.com

Appendix A

2017 IL 120997

In the

Supreme Court

The State Of Illinois

___________________

(Docket No. 120997)

PEOPLE OF THE STATE OF ILLINOIS,

Appellee,

SALIMAH COLE (Amy P. Campanelli),

Appellant.

___________________

Opinion filed November 30, 2017.

___________________

JUSTICE THOMAS delivered the judgment of the

court, with opinion.

Chief Justice Karmeier and Justices Freeman,

Kilbride, Garman, Burke, and Theis concurred in the

judgment and opinion.

OPINION

¶ 1. On June 15, 2016, the circuit court of Cook

County entered an order of adjudication of direct civil

contempt against contemnor, Amy P. Campanelli, the

Cook County public defender, and sanctioned

Campanelli $250 per day until she purged herself of

direct civil contempt or was otherwise discharged by

due process of law. Campanelli filed a notice of appeal to

the Appellate Court, First District. Campanelli also

filed an emergency motion to stay the fines imposed by

the trial court. The appellate court granted Campanelli’s

motion to stay the fines.

¶ 2. The State then filed a motion for direct appeal

to this court pursuant to Illinois Supreme Court Rule

302(b) (eff. Oct. 4, 2011). On July 29, 2016, this court

allowed the State’s motion for direct appeal and

transferred the appeal of the case from the appellate

court to this court. This court also allowed the National

Association of Criminal Defense Lawyers, the National

Association for Public Defense, and Professors Vivian

Gross, Steven Lubet, and Robert Burns to file amicus

curiae briefs in support of contemnor Campanelli. Ill. S.

Ct. R. 345 (eff. Sept. 20, 2010).

¶ 3.

BACKGROUND

¶ 4. Defendant Salimah Cole was charged in a 16count indictment with 6 counts of first degree murder, 2

counts of armed robbery with a firearm, 5 counts of

aggravated kidnapping, 1 count of aggravated arson, and

2 counts of possession of a stolen motor vehicle. The

charges stemmed from the September 30, 2015,

shooting, robbery, and kidnapping of La Prentis Cudjo

and the robbery and kidnapping of Charles Morgan.

Ashley Washington, Allen Whitehead, Zacchaeus Reed,

Jr., Julian Morgan, and Brianna Sago were also charged

in connection with those crimes.

¶ 5. Cole appeared in court on April 12, 2016. A

Cook County assistant public defender appeared as a

friend of the court, as well as to defendant Cole, and

informed the court that Cole’s mother had retained

private counsel, who would need a continuance of a week

or two. Accordingly, the trial court set the next court

date for May 10, 2016.

¶ 6. At the May 10, 2016, court date, Cole informed

the trial court that she was not able to afford private

counsel. The trial court stated that it would appoint the

public defender to represent Cole. Contemnor Amy P.

Campanelli, the public defender of Cook County, then

asked the court not to appoint the office of the public

defender to represent Cole. Campanelli asked for leave

of court to file a notice of intent to refuse appointment

and to ask for appointment of counsel other than the

public defender. When asked to explain her motion,

Campanelli stated that she actually was refusing the

appointment. Campanelli informed the court that the

public defender could not represent Cole because there

was a conflict of interest due to the codefendants in the

case. Campanelli explained that four of Cole’s five

codefendants were charged with the exact same offenses

as Cole. In addition, codefendants Reed and Whitehouse

were also charged with intimidation of codefendant

Washington, for threatening to harm Washington and

her family if she worked with the police on the murder

case.

¶ 7. The trial court then asked Campanelli to

explain the direct conflict to the court. Campanelli

clarified that there was a potential for conflict.

Campanelli asserted that she did not have to wait until a

conflict developed, nor could she divulge attorney-client

privileged information in order to inform the court of

those conflicts. After considering the matter, the trial

court appointed the public defender of Cook County to

represent Cole, over Campanelli’s objection. Campanelli

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 trial court

took the request under advisement and asked

Campanelli to put the basis for her refusal to represent

Cole in writing.

¶ 8. 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). 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.

¶ 9. In addition to citing Rule 1.7, 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 of the Illinois Rules

of Professional Conduct of 2010 (eff. Jan. 1, 2010).

Consequently,

Campanelli

refused

appointment to represent Cole.

¶ 10. At a hearing on May 19, 2016, the trial court

found that Cole was indigent and should be represented

by the office of the Cook County public defender.

Campanelli again told the court that she could not

represent Cole because she was in conflict due to her

representation of five other codefendants in the case.

Campanelli stated that, pursuant to the Illinois Rules of

At a hearing on July 18, 2016, the trial court granted Campanelli’s

motion to withdraw from the representation of codefendants

Whitehead and Reed, finding a conflict of interest existed where

Whitehead and Reed had been charged with intimidating

codefendant Washington.

Professional Conduct adopted in 2010, she could not

represent more than one client on a case because of the

potential conflict. Campanelli also noted that the

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

court to appoint counsel other than the public defender

if the appointment of the public defender would

prejudice the defendant. The trial court pointed out that

it had not made a finding that appointment of the public

defender would prejudice the defendant. Campanelli

conceded that the trial court had not made a finding of

prejudice but stated she had given the trial court enough

testimony that she would be in conflict of interest if

forced to represent Cole.

¶ 11. In response to further questioning from the

trial court, Campanelli stated that there were

approximately 518 attorneys in the office of the Cook

County public defender and that those 518 attorneys did

not all share the same supervisors. With regard to the

four other motions to withdraw that Campanelli had

filed concerning Cole’s codefendants, Campanelli

acknowledged that she had four separate attorneys from

different divisions in her office representing those

defendants. In addition, those assistant public defenders

each had a different supervisor, but those supervisors

might report to the same deputy director. Campanelli

conceded that she has a multiple defender division for

multiple offender cases but contended that she was in

conflict even in those cases.

¶ 12. The trial court then reiterated that defendant

Cole was in custody without legal representation, that

Cole was indigent and had a right to counsel, and that,

as public defender of Cook County, Campanelli was

sworn to represent an indigent defendant unless the

court finds that the defendant’s rights would be

prejudiced. 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.

Campanelli continued to refuse to follow the order of the

court to represent Cole, repeating that she could not

represent Cole due to a conflict. Campanelli denied that

she was violating the Counties Code in refusing to

represent Cole, arguing that in fact she would be

violating the Illinois Rules of Professional Conduct of

2010 in representing Cole.

¶ 13. The trial court again stated that Campanelli

was sworn to represent an indigent defendant unless the

court finds that the defendant’s rights would be

prejudiced. The trial court did not find Cole’s rights to

be prejudiced and asked Campanelli to carefully

consider her refusal to represent Cole. The trial court

then continued the case for ruling on Campanelli’s

request for contempt. The trial court also appointed

private counsel to represent Cole in light of Campanelli’s

refusal.

¶ 14. Campanelli next appeared before the court on

June 15, 2016. The trial court noted that it had appointed

private counsel for Cole because she was an indigent

defendant without representation of counsel. The trial

court repeated that it had found there was no conflict in

Campanelli representing Cole and again ordered

Campanelli to represent Cole, indicating that it would

vacate the appointment of private counsel upon

Campanelli’s acceptance of the appointment.

¶ 15. Campanelli again stated that she was in

conflict in representing Cole, the sixth defendant in a

six-defendant murder case, when she already

represented five of those defendants. Campanelli

indicated that she had filed motions to withdraw with

regard to four of the five other defendants, as she was in

conflict of interest with those defendants also.

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.

Campanelli also asserted that her office was a law firm

and wanted to be treated like any other law firm in the

state of Illinois for purposes of conflict of interest.

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.

¶ 16. The trial court again ordered Campanelli to

represent Cole and warned that her refusal to represent

Cole would be in direct contempt of court. Campanelli

responded that she continued to refuse to represent

Cole. 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.

¶ 17. ANALYSIS

¶ 18. This case comes before this court on appeal of

the trial court’s order finding Campanelli to be in direct

civil contempt and imposing sanctions. A court is vested

with the inherent power to enforce its orders and to

preserve the dignity of the court by the use of contempt

proceedings. In re Baker, 71 Ill. 2d 480, 484 (1978). An

order cast in terms of a contempt proceeding imposing

sanctions is a final and appealable order. People ex rel.

Scott v. Silverstein, 87 Ill. 2d 167, 171-72 (1981). This is

because the imposition of a sanction for contempt, while

occurring within the context of another proceeding, “is

an original special proceeding, collateral to and

independent of, the case in which the contempt arises.”

Id. at 172. 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. People v. Shukovsky, 128 Ill. 2d 210, 222

(1988).

¶ 19. Whether a party is guilty of contempt is a

question of fact for the trial court. In re Marriage of

Logston, 103 Ill. 2d 266, 286-87 (1984). Logston held that

a reviewing court will not disturb the trial court’s finding

unless it is against the manifest weight of the evidence

10a

or the record reflects an abuse of discretion. Id. at 287.

In Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001), the court

clarified that the proper standard of review depends on

the question that was answered in the trial court. Thus,

if the facts are uncontroverted and the issue is the trial

court’s application of the law to the facts, a reviewing

court may apply de novo review. Id.

¶ 20. In this case, to the extent our review concerns

application of this court’s rules, we find that de novo

review is appropriate. When interpreting supreme

court rules, this court is guided by the same principles

applicable to construction of statutes. People v. Salem,

2016 IL 118693, ¶ 11. The construction of a statute is a

question of law that is reviewed de novo. People v.

Smith, 236 Ill. 2d 162, 167 (2010). To the extent our

review concerns the trial court’s adjudication of

contempt, we find it is appropriate to apply an abuse of

discretion standard.

¶ 21. In this court, as in the trial court, Campanelli

argues that she is barred from representing Cole due to

a conflict of interest between Cole and her codefendants.

Campanelli asserts that any representation of more than

one defendant in a multiple defendant case presents a

conflict of interest for the office of the public defender.

Campanelli claims a conflict based upon the sixth

amendment to the United States Constitution (U.S.

Const., amend. VI), article I, section 8, of the Illinois

Constitution (Ill. Const. 1970, art. I, § 8), and Rules 1.10

and 1.7 of the Illinois Rules of Professional Conduct of

2010 (eff. Jan. 1, 2010).

11a

¶ 22. Those accused of crime have a sixth

amendment right to the effective assistance of counsel.

People v. Spreitzer, 123 Ill. 2d 1, 13 (1988) (citing Cuyler

v. Sullivan, 446 U.S. 335, 343 (1980), and Glasser v.

United States, 315 U.S. 60, 70 (1942)). Effective

assistance of counsel means assistance by an attorney

whose allegiance to his client is not diluted by conflicting

interests or inconsistent obligations. Spreitzer, 123 Ill.

2d at 13-14. The United States Supreme Court has held

that requiring or permitting a single attorney to

represent codefendants is not per se violative of the

constitutional guarantee of the effective assistance of

counsel. Holloway v. Arkansas, 435 U.S. 475, 482 (1978).

The court in Spreitzer also recognized that treating

multiple representation of codefendants as creating a

per se conflict would put an end to multiple

representation altogether, “since a ‘possible conflict

inheres in almost every instance of multiple

representation,’ and a per se rule would ‘preclude

multiple representation even in cases where “[a]

common defense *** gives strength against a common

attack.” ’ ” Spreitzer, 123 Ill. 2d at 17 (quoting Cuyler,

446 U.S. at 348, quoting Glasser, 315 U.S. at 92). Cuyler

recognized, however, that since a possible conflict of

interest inheres in almost every instance of multiple

representation, a defendant who objects to multiple

representation must have the opportunity to show that

potential conflicts imperil his right to a fair trial. Cuyler,

446 U.S. at 348.

¶ 23. Campanelli maintains that she did show that

potential conflicts imperiled Cole’s right to a fair trial, so

that the trial court erred in finding her in direct

12a

contempt of court. 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. Consequently, before we address whether

Campanelli established that potential conflicts imperiled

Cole’s right to a fair trial, we first must address

Campanelli’s claim that representation by the public

defender constitutes representation by a single

attorney.

¶ 24. 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.” Ill. R. Prof’l Conduct (2010)

R. 1.10(a) (eff. Jan. 1, 2010).

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

13a

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.” Ill. R. Prof’l Conduct (2010) R. 1.10

cmt. 1 (eff. Jan. 1, 2010).

¶ 25. 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. In making

this argument, Campanelli acknowledges that People v.

Robinson, 79 Ill. 2d 147 (1979), held that a public

defender’s office is not a firm. However, Campanelli

maintains that Robinson did not resolve the question of

whether the office of the public defender is a firm within

the definition of Rule 1.10 because the Robinson decision

predated the drafting of the written rules of professional

conduct in Illinois.

¶ 26. The Robinson decision was filed in 1979.

Campanelli points out that the Illinois Code of

Professional Responsibility was adopted on June 3, 1980,

and was replaced by the Illinois Rules of Professional

Conduct in 1990, which then were substantially amended

in 2010. Therefore, Robinson could not have resolved

whether, under the current rules, the office of the public

defender is an “association authorized to practice law” or

“a legal services organization” because Robinson did not

construe the language of Rule 1.10. Campanelli contends

that, under the plain language of Rule 1.10, the office of

the public defender fits either description, so that it is a

“firm” within the plain meaning of Rule 1.10.

14a

¶ 27. As

Campanelli

concedes,

Robinson

considered “whether the individual attorneys employed

in the office of a public defender are members of an

entity subject to the generally recognized rule that if an

attorney is disqualified by reason of a conflict of interest

that no other partner or associate of his firm may

continue with the representation.” Id. at 154. Robinson

held that “the avoidance of conflicts of interest which

result in failure to provide effective assistance of counsel

does not require us to hold that the individual attorneys

who comprise the staff of a public defender are members

of an entity which should be subject to the rule that if

one attorney is disqualified by reason of a conflict of

interest then no other member of the entity may

continue with the representation.” Id. at 158-59.

¶ 28. Following Robinson, in People v. Miller, 79 Ill.

2d 454 (1980), the court reiterated that it had rejected

the claim that a public defender’s office is to be treated

as a law firm or an “entity” in considering a conflict of

interest claim.

Miller explained that where one

assistant public defender might not effectively

represent two competing interests, “two assistants

might be able to do so, and in determining whether

separate assistants can properly represent competing

interests, we are to apply the general guidelines

enunciated in our prior cases and those of the United

States Supreme Court on the subject of conflicts of

interest.” Id. at 461.

¶ 29. As noted, Campanelli claims that Robinson

does not control on the issue of whether the office of the

Cook County public defender is a firm for purposes of

Rule 1.10 because Robinson was decided before the

15a

rules were adopted. Campanelli argues that the

Robinson decision cannot be used to construe the plain

language in Rule 1.10 defining “firm” because the

Robinson court never addressed the language in the

rule. In making this argument, however, Campanelli

misunderstands this court’s case law concerning the

interpretation of statutes and court rules.

¶ 30. It is well settled that when statutes are

enacted after judicial opinions are published, it must be

presumed that the legislature acted with knowledge of

the prevailing case law. People v. Hickman, 163 Ill. 2d

250, 262 (1994). As set forth supra, this court is guided

by the same principles applicable to the construction of

statutes when interpreting supreme court rules. Salem,

2016 IL 118693, ¶ 11. Consequently, 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. Absent an express

repudiation of the Robinson holding in this court’s Rules

of Professional Conduct, we find no basis to declare that

Robinson is no longer good law or that Rule 1.10 now

includes the office of public defender within its definition

of law firms for purposes of a conflict of interest.

16a

¶ 31. Campanelli then urges this court to overrule

Robinson. Campanelli contends that Robinson failed to

provide a reasoned analysis for its holding, relying as its

sole explanation on “an unsupported statement” that

treating the office of the public defender as a firm “would

lead to the appointment of inadequate and inexperienced

private counsel.” Campanelli asserts that such

speculation alone does not justify distortion of the plain

meaning of Rule 1.10.

¶ 32. We again point out that the plain meaning of

“firm” in Rule 1.10 necessarily excludes public defender

offices from its definition. Moreover, the risk of

appointing inadequate and inexperienced private

counsel was not the basis for the Robinson decision.

Robinson did consider case law from other jurisdictions,

as well as the American Bar Association Standards

Relating to the Administration of Criminal Justice,

which found that a public defender’s office is a firm for

purposes of conflict of interest analysis. Robinson also

considered the size and organization of the state’s public

defender offices. Robinson then concluded that, “[u]pon

review of the authorities and consideration of the

diversity of organization of the offices of public

defenders,” the avoidance of conflicts of interest did not

require the court to hold that the public defender’s office

was analogous to a law firm. Robinson, 79 Ill. 2d at 15859.

¶ 33. In reaching that conclusion, the court did note

that, “[i]n many instances the application of such a per se

rule would require the appointment of counsel with

virtually no experience in the trial of criminal matters,

thus raising, with justification, the question of

17a

competency of counsel.” Id. at 159. Although the court

noted that application of a per se rule might have such

consequences, this was not the basis for the court’s

decision. Rather, Robinson balanced that possibility

against the remote possibility that an experienced

member of the public defender’s staff might labor under

a conflict of interest because another member of the staff

was so burdened and found that the decisions of the

United States Supreme Court, as well as its own

decisions, furnished adequate guidance to avoid conflicts

of interest which would impede the furnishing of

effective assistance of counsel. Id. at 159-60.

¶ 34. The court later explained, in People v. Lewis,

88 Ill. 2d 429, 438 (1981), that the Robinson court “did

not deem a personal allegiance or loyalty to the public

defender’s office sufficient to justify a rule that if one

attorney employed by such an office were disqualified by

reason of a conflict of interest, no other attorney

employed by that office could undertake the

representation.” The basis for the Robinson rule again

was repeated in People v. Banks, 121 Ill. 2d 36, 42 (1987),

where the court stated that “Robinson rejected a per se

conflicts rule precisely because it finds that an assistant

public defender’s loyalty towards his office is not great

enough to impute to him the conflicts of other

assistants.”

¶ 35. Robinson, then, based its holding on the fact

that the adversary tendency of lawyers within the public

defender’s office was sufficient protection against a

conflict of interest between assistant public defenders.

This court and our appellate court have consistently

applied Robinson for nearly 40 years. Consequently, we

18a

find no merit to Campanelli’s claim that the decision was

poorly reasoned and unworkable.

¶ 36. Having found that the office of the public

defender is not a “firm” for purposes of Rule 1.10, we

next address Campanelli’s claim that Rule 1.7 bars the

public defender from representing multiple defendants

in a single prosecution. Rule 1.7 provides:

“(a) 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

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’

19a

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 argues that Rule 1.7 and comment 23

establish that conflicts are inevitable in cases of joint

representation of codefendants.

¶ 37. 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.

Spreitzer explained that “[t]he asserted danger in the

Banks-Robinson-Spicer line of cases was not so much

that a single lawyer would attempt to represent the

conflicting interests of two defendants as that a lawyer’s

loyalty to his client would be diluted by a conflicting

allegiance to a fellow lawyer.” Spreitzer, 123 Ill. 2d at 21.

¶ 38. 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

20a

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.”

Miller, 79 Ill. 2d at 462. 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.

¶ 39. 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 cites the Counties Code, as well

as Burnette v. Terrell, 232 Ill. 2d 522 (2009), in support of

her argument.

¶ 40. 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 ***.” 55 ILCS 5/3-4006 (West 2016).

In addition, Burnette held that the circuit court under

the Counties Code “appoints the office of the public

defender to act as the attorney for an indigent

defendant” and “does not appoint an individual assistant

public defender.” Burnette, 232 Ill. 2d at 538. Campanelli

seizes upon the preceding language from Burnette to

support her claim that she is the attorney for all

defendants represented by her office.

21a

¶ 41. We find Campanelli’s reliance on Burnette to

be misplaced. At issue in Burnette was whether a circuit

court judge had the authority to refuse to allow an

assistant public defender to represent clients in his

courtroom, to remove an assistant public defender from

representation of a defendant, or to assign a specific

assistant public defender to represent a defendant in an

individual case. The court held that the public defender

has the sole authority to make work assignments for the

assistant public defenders. Id. at 538-39. In so holding,

the court noted that, under the Counties Code, the

circuit court has the authority to direct the public

defender to represent an indigent defendant but the

circuit court does not appoint the individual assistant

public defender. Id. at 538.

¶ 42. 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.

¶ 43. In Banks, the court declined to find a per se

conflict of interest where one assistant public defender

argued the ineffective assistance of another assistant

public defender. Banks, 121 Ill. 2d 36. Banks held that

it would be erroneous to assume that public defenders

have such an allegiance to their office that they would be

unable to subordinate that allegiance to the interests of

22a

their clients. Id. at 43. Pursuant to Campanelli’s

argument, an assistant public defender would never be

able to argue the ineffective assistance of another

assistant public defender where they were both were

under the supervision of the public defender, as the

public defender then would be arguing her own

ineffectiveness. Banks implicitly rejected such an

analysis in finding that an assistant public defender’s

loyalty to his client supersedes his allegiance to the office

of the public defender.

¶ 44. The same analysis applies when different

assistant public defenders are appointed to represent

codefendants in a case. 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.

Id. at 42. As in Banks, 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.

¶ 45. Campanelli next argues that, in any event, the

trial court abused its discretion in appointing her to

represent Cole because she twice informed the court

that a direct conflict of interest prevented her from

zealously representing Cole. Campanelli points to her

written submission to the court stating that there was a

conflict in representing Cole with respect to her

23a

codefendants, but that “more detail cannot be given

without violating the attorney-client privilege, which is

the very thing the Public Defender is seeking to avoid

via the appointment of counsel.” When she appeared in

court on the issue, Campanelli again told the court she

was in conflict and could not “divulge attorney-client

privilege information that I have learned about the other

five codefendants in this case in order to tell you what

the conflicts in this case are.” Citing Holloway,

Campanelli contends that it was enough to prove a

conflict when she, as an officer of the court, represented

that Cole would be prejudiced by her appointment.

¶ 46. Holloway held that if a potential conflict is

brought to the attention of the trial court by counsel at

an early stage, a duty devolves upon the trial court to

either appoint separate counsel or take adequate steps

to ascertain whether the risk of conflict was too remote

to warrant separate counsel. Holloway, 435 U.S. at 484;

accord Spreitzer, 123 Ill. 2d at 18. Holloway found

persuasive decisions holding that an attorney’s request

for the appointment of separate counsel, based upon his

representations as an officer of the court regarding a

conflict of interest, generally should be granted.

Holloway, 435 U.S. at 485. Holloway observed that

those courts had considered that an attorney

representing two defendants in a criminal matter is in

the best position professionally and ethically to

determine when a conflict of interest exists or will

develop during the course of a trial, that defense

attorneys have an obligation upon discovering a conflict

of interest to advise the court of the problem, and that

attorneys, as officers of the court, address the judge

24a

virtually under oath in making their declarations. Id. at

485-86.

¶ 47. Campanelli argues that the trial court abused

its discretion in ordering her to represent Cole in light

of Campanelli’s assertion that a conflict of interest

prevented her from doing so. Campanelli contends that

she cannot be ordered to divulge attorney-client

privileged information in order to establish a conflict.

¶ 48. Campanelli is correct that counsel cannot be

ordered to divulge attorney-client privileged

information. However, Holloway explained that its

holding did not preclude a trial court from exploring the

adequacy of the basis of defense counsel’s

representations regarding a conflict of interest without

improperly requiring disclosure of the confidential

communications of the client. Id. at 487. The trial court

in this case never ordered Campanelli to divulge

confidential communications in attempting to ascertain

the basis for Campanelli’s refusal to accept the

appointment to represent Cole.

¶ 49. Campanelli then argues that the trial court

erred in asking her to explain the direct conflict

regarding the representation of Cole to the court. At

oral argument, counsel for Campanelli argued that

Campanelli need only allege a conflict of interest,

without more, in order to withdraw from representation.

Campanelli cites People v. Jones, 121 Ill. 2d 21, 28 (1988),

in arguing she need only allege a potential or possible

conflict in order to withdraw from representation.

25a

¶ 50. Although Jones referenced a potential or

possible conflict that might deprive a defendant of the

effective assistance of counsel, Jones discussed a

potential or possible conflict in the context of the proper

procedure when a conflict is brought to the attention of

the trial court. Jones noted that in Holloway, when a

potential conflict is brought to the attention of the trial

court by counsel before trial or at an early stage of trial,

the trial court must take “adequate steps” to deal with

it. Id. Jones then stated that if “adequate steps” are not

taken, the fact of a potential or possible conflict might

deprive the defendant of the guaranteed assistance of

counsel. Id. Spreitzer explained that adequate steps

require a court to “ascertain whether the risk of conflict

was too remote to warrant separate counsel.” Spreitzer,

123 Ill. 2d at 18. The question in this case, then, is

whether the trial court properly found that the risk of

conflict in the representation of Cole was too remote to

warrant separate counsel.

¶ 51. A defendant raising a potential conflict

between two public defenders need only present the gist

of such a conflict. People v. Hardin, 217 Ill. 2d 289, 303

(2005). “The defendant must sketch, in limited detail, a

picture of how the working relationship between the

public defenders created an appearance of impropriety.”

Id. However, bare allegations of a conflict are not

enough, and in the absence of an evidentiary record of

conflict, a conflict should not be created based on mere

speculation. Id. at 302. Relevant factors to consider

include whether the two public defenders were trial

partners in the defendant’s case; whether the public

defenders where in hierarchical positions where one

26a

supervised or was supervised by the other; or whether

the size, structure, and organization of the office in which

they worked affected the closeness of any supervision.

Id. at 303.

¶ 52. 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. None of the

factors deemed relevant in Hardin are set forth in the

record in this case with regard to the representation of

Cole. Campanelli conceded that Cole’s codefendants

were represented by attorneys from the public

defender’s multiple defendant division. 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-publicdefenders-office (last visited Nov. 8, 2017).

Although Campanelli contends that the multiple

defendant division itself is always in conflict, that

27a

assertion is based upon her argument that the office of

the Cook County public defender is a law firm, as well as

her argument that she is the appointed counsel to all the

defendants her office represents. As discussed supra,

we have rejected these arguments.

¶ 53. 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.

These facts mitigate against a finding of conflict of

interest in Campanelli’s representation of Cole.

¶ 54. 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. In the court hearing on May 10, 2016, when

asked to explain the direct conflict to the court,

Campanelli clarified that there was a potential for

conflict and asserted that she did not have to wait until

a conflict developed. In her written submission to the

court, Campanelli claimed that there was a conflict of

interest whenever she was appointed to represent

multiple defendants. Again, at the May 19, 2016,

hearing, Campanelli stated that she could not represent

more than one defendant because of the potential

conflict, although she acknowledged that each

codefendant was represented by separate attorneys

from different divisions of her office, with different

supervisors. At the June 15, 2016, hearing, Campanelli

28a

repeated that she was in conflict representing Cole

because she already represented five other defendants.

¶ 55. 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.

Robinson and its progeny have

consistently rejected that claim.

¶ 56. We note that even in her brief on appeal,

Campanelli’s argument concerning her conflict centers

on a remote potential for conflict. She argues that it is

all but inevitable in a joint representation that a conflict

of interest will arise and that conflicts are difficult to

discern at the outset of criminal litigation. Campanelli

also argues that waiting to appoint conflict-free counsel

until a conflict reveals itself is wasteful and often

prejudicial.

In addition, Campanelli asserts that

conflicts that do not exist at the outset of a

representation may arise later in the case.

¶ 57. These “potential conflicts,” however, are the

type that may exist in every case involving multiple

representation of codefendants. Cuyler recognized that

“a possible conflict inheres in almost every instance of

multiple representation.” Cuyler, 446 U.S. at 348.

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.

29a

¶ 58. 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.

¶ 59. 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.

¶ 60. Having found that the trial court did not abuse

its discretion in ordering Campanelli to represent Cole,

it follows that the trial court did not err in adjudicating

Campanelli to be in direct civil contempt of court.

Section 3-4006 of the Counties Code provides that “[t]he

Public Defender, as directed by the court, shall act as

attorney, without fee, before any court within any

county for all persons who are held in custody or who are

charged with the commission of any criminal offense, and

who the court finds are unable to employ counsel.”

(Emphasis added.) 55 ILCS 5/3-4006 (West 2016). Here,

the trial court directed Campanelli, the public defender,

to act as attorney for Cole. Campanelli refused the trial

30a

court’s direction. The trial court therefore properly

invoked its inherent power to enforce its order and

preserve the dignity of the court by use of contempt

proceedings.

¶ 61. 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. See

Shukovsky, 128 Ill. 2d at 231 (vacating contempt order

where contempt was purely formal and motivation was

to permit examination of a question through appeal);

Jiotis v. Burr Ridge Park District, 2014 IL App (2d)

121293, ¶ 57 (where contemnor refuses to comply with

court order in good-faith effort to secure an

interpretation of an issue without direct precedent, it is

appropriate to vacate the contempt on appeal).

¶ 62. 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.

31a

¶ 63. For all the preceding reasons, we affirm the

judgment of the circuit court of Cook County finding

contemnor Amy Campanelli to be in direct civil

contempt and imposing sanctions for that contempt.

Nonetheless, we vacate the trial court’s order

adjudicating Campanelli in contempt and imposing

sanctions.

¶ 64. Circuit court judgment affirmed.

¶ 65. Adjudication of direct civil contempt vacated.

32a

Appendix B

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS MUNICIPAL DEPARTMENT- SIXTH

MUNICIPAL DISTRICT

PEOPLE OF THE STATE OF )

)

ILLINOIS,

)

Plaintiff,

) No. 16R05089-05

vs.

)

SALIMAH COLE,

)

Defendant.

)

ORDER OF ADJUDICATION

DIRECT CIVIL CONTEMPT

THIS MATTER coming on for hearing in the matter

of direct civil contempt against the Cook County Public

Defender Amy P. Campanelli, Contemnor, and the

Contemnor, appearing in open court, the court, being

fully advised in the premises, this court finds:

1. That the court has jurisdiction over the subject

matter and the parties.

2. That during the proceedings in the above

captioned cause on May 19, 2016 and June 15,

2016, all parties and the Contemnor being

present, this court made a finding based on an

affidavit of assets and liabilities that the

Defendant, Salimah Cole who is currently

incarcerated and charged with First Degree

33a

Murder in the above captioned cause, is an

indigent defendant and should therefore be

represented by the Public Defender of Cook

County, Amy P. Campanelli. The Contemnor, was

directed to ACCEPT APPOINTMENT AS

COUNSEL FOR SALIMAH COLE OR TO

PROVIDE A LEGAL BASIS FOR HER

REFUSAL TO ACCEPT THE APPOINTMENT.

3. That the Contemnor willfully and contemptuously refused to accept appointment as counsel

for Salimah Cole after being ordered to do so by

this court.

a. This court found that the Contemnor’s refusal

to accept appointment was without basis and

that there was no prejudice that the

Defendant, Salimah Cole would suffer should

the Contemnor, Amy P. Campanelli accept

appointment to represent the Defendant.

b. This court also found that the Contemnor’s

refusal to accept appointment amounted to

the Public Defender of Cook County, Amy P.

Campanelli, disregarding her duties as set

forth in The Public Defender Act, 55 ILCS 5/34006.

c. This court also found that the refusal of the

appointment of counsel deprived the

Defendant, Salimah Cole, an incarcerated

defendant, of her Sixth Amendment right to

counsel. And that due to the Contemnor’s

34a

refusal to accept appointment, this court was

forced to appoint private counsel for an

indigent

defendant

who

should

represented by the Public Defender of Cook

County, Amy P. Campanelli.

d. As such, this court ruled that the Contemnor’s

refusal of appointment in this case was

contemptuous. This court admonished the

Contemnor that her continued refusal to

accept appointment for the representation of

the Defendant, Salimah Cole would force this

court to hold the Contemnor in contempt of

court.

e. The Contemnor continued to state that she

has a conflict of interest if she represents the

defendant, Salimah Cole and asked this court

to hold her in contempt of court.

f. The Contemnor failed to provide any

substantial basis that a per se or a concurrent

conflict of interest exist as defined by the

Illinois Rules of Professional Conduct (Rule

1.7) which would therefore prohibit the

Contemnor

from

providing

legal

representation to the Defendant, Salimah

Cole.

4. That the court admonished the Contemnor that

should she continue to refuse to accept the court’s

appointment, she would be held in direct

contempt of court and would be sanctioned by this

court until she has purged herself by accepting

35a

the court’s appointment and providing legal

representation to the defendant, Salimah Cole.

5. That the Contemnor continued to refuse to accept

appointment, which has impaired the rights and

interests of the Defendant, Salimah Cole and has

impeded and obstructed the court in its

administration of justice;

6. That the Contemnor is hereby found to be in

DIRECT CIVIL CONTEMPT; and

7. That prior to sanctions being imposed, the

Contemnor was given an opportunity to provide

the court with information showing the reasoning

behind her refusal to accept appointment and to

make a statement in allocution to the court.

IT IS THEREFORE ORDERED AND ADJUDGED

that the Contemnor:

1. Is found and adjudicated in direct civil contempt

for her willful failure to obey a direct order of this

Court; and

2. Is sanctioned by the Court and hereby fined a

sum of $250.00 per day or until such time as the

Contemnor shall purge herself of direct civil

contempt by accepting appointment as counsel

for defendant Salimah Cole in the presence of the

Court, or until she is otherwise discharged by due

process of law.

36a

The Clerk of the Court is directed to prepare a certified

copy of this order and submit it to the Sheriff of Cook

County to be served upon the Respondent Contemnor.

Enter:

6/15/16

Judge:

Michele M. Pitman 1832

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.