Opposition Brief — Amy P. Campanelli, Petitioner v. Illinois

No. 17-1225

IN THE

Supreme Court of the United States

__________

AMY P. CAMPANELLI, PETITIONER,

v.

ILLINOIS, RESPONDENT.

__________

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

__________

BRIEF IN OPPOSITION

__________

LISA MADIGAN

Attorney General of Illinois

DAVID L. FRANKLIN

Solicitor General

MICHAEL M. GLICK*

Criminal Appeals Division Chief

KATHERINE M. DOERSCH

ERIC M. LEVIN

Assistant Attorneys General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-2569

mglick@atg.state.il.us

* Counsel of Record

Attorneys for Respondent

i

QUESTION PRESENTED

Petitioner Amy P. Campanelli, the public

defender of Cook County, refused to represent

defendant Salimah Cole, asserting a potential conflict

of interest based solely on the fact that separate

assistant defenders already represented Cole’s five

codefendants, and that this multiple representation

allegedly was prohibited by Rules 1.7 and 1.10 of

Illinois’s Rules of Professional Conduct of 2010. After

the state trial judge rejected her contentions,

petitioner sought and obtained an adjudication of

friendly contempt to challenge the circuit court’s

interpretation of the 2010 Rules and its finding that

petitioner failed to allege a potential conflict.

The Supreme Court of Illinois rejected

petitioner’s proposed construction of the 2010 Rules.

Because petitioner’s conflict argument depended on

her erroneous interpretation of the 2010 Rules, and

she presented no other evidence of a potential conflict

warranting appointment of separate counsel, the court

affirmed. Finally, although it found that the contempt

finding was “valid,” the court vacated the judgment of

contempt and the accompanying sanction order, and

declined to order petitioner to represent Cole.

The question presented is:

Does multiple representation of codefendants by

separate assistant public defenders in the same office

establish a per se conflict of interest under the Sixth

Amendment?

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES ....................................... iii

LEGAL RULES INVOLVED ....................................... 1

STATEMENT ................................................................ 3

Trial court proceedings ......................................... 3

Illinois Supreme Court proceedings ..................... 6

REASONS FOR DENYING THE PETITION ............. 9

I.

The Decision Below Rests on the

Illinois Supreme Court’s

Interpretation of Illinois Law. ................ 9

II.

This Case Implicates No Split of

Authority on Any Constitutional

Issue. ....................................................... 11

III.

This Case Is a Poor Vehicle for

Deciding the Question Presented. ........ 15

IV.

The State Court’s Judgment Does

Not Conflict with This Court’s

Precedent................................................ 17

CONCLUSION ............................................................. 21

iii

TABLE OF AUTHORITIES

Cases:

Page(s)

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001) ............................................. 11

Anderson v. Commissioner of Correction,

127 Conn. App. 538 (2011),

aff’d, 308 Conn. 456 (2013) ................................. 14

Bouie v. State,

559 So.2d 1113 (Fla. 1990) .................................. 12

Burger v. Kemp,

483 U.S. 776 (1987) ....................................... 18–19

Burnette v. Terrell,

905 N.E.2d 816 (Ill. 2009) ..................................... 7

Camreta v. Greene,

563 U.S. 692 (2011) ............................................. 16

Commonwealth v. Via,

316 A.2d 895 (Pa. 1974) ............................... 12–13

Commonwealth v. Westbrook,

400 A.2d 160 (Pa. 1979) ................................ 12–13

Formal Advisory Opinion No. 10-1,

744 S.E.2d 798 (Ga. 2013) ................................... 13

iv

Holloway v. Arkansas,

435 U.S. 475 (1978) ....................................... 17–20

Kowalski v. Tesmer,

543 U.S. 125 (2004) ............................................ 17

Meese v. Keene,

481 U.S. 165 (1987) ............................................ 16

Mickens v. Taylor,

535 U.S. 162 (2002) ............................................... 9

Nix v. Whiteside,

475 U.S. 157 (1986) ............................................... 9

People v. Robinson,

402 N.E.2d 157 (Ill. 1979) ................................. 6, 7

People v. Shari,

204 P.3d 453 (Colo. 2009) ................................... 14

State v. Connolly,

930 So.2d 951 (La. 2006) ..................................... 13

Turner v. State,

340 So.2d 132 (Fla. 2d DCA 1976) ...................... 12

Williams v. State,

807 S.E.2d 418 (Ga. 2017) ................................... 13

v

Youakim v. Miller,

425 U.S. 231 (1976) ....................................... 10–11

Statutes and Rules:

55 Ill. Comp. Stat. 5/3-4006 (2016) .....................5, 7, 10

Ill. R. Prof. Conduct 1.7 (2010) ........................... passim

Ill. R. Prof. Conduct 1.10 (2010) ......................... passim

Canon 5, Fla. Code Prof. Resp. ................................... 12

1

LEGAL RULES INVOLVED

The Illinois Rules of Professional Conduct of 2010 (eff.

Jan. 1, 2010) provide, in relevant part, as follows:

Rule 1.7: Conflict Of Interest: Current Clients

(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 by the lawyer’s responsibilities to another

client, a former client or a third person or by a personal

interest of the lawyer.

(b) Notwithstanding the existence of a concurrent

conflict of interest under paragraph (a), a lawyer may

represent a client if:

(1) the lawyer reasonably believes that the lawyer

will be able to provide competent and diligent

representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the

assertion of a claim by one client against another client

2

represented by the lawyer in the same litigation or

other proceeding before a tribunal; and

(4) each affected client gives informed consent.

Rule 1.10: Imputation Of Conflicts Of Interest:

General Rule

(a) 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. . . .

3

STATEMENT

Trial court proceedings

1. In March 2016, Salimah Cole and five

codefendants were charged with first-degree murder,

armed robbery, aggravated kidnaping, aggravated

arson, and possession of a stolen motor vehicle. Pet.

App. 2a–3a.1 After Cole informed the trial court that

she could not afford private counsel, the court stated

that it would appoint the public defender to represent

her. Pet. App. 3a.

2. Petitioner, the public defender of Cook County,

refused the appointment. Ibid.; see C98–118 (“Notice

of Intent to Refuse Appointment and Request

Appointment of Counsel Other than the Public

Defender of Cook County”). Petitioner asserted that a

potential conflict of interest existed because assistant

defenders already represented Cole’s five codefendants

and that such multiple representation was prohibited

by Rules 1.7 and 1.10 of Illinois’s Rules of Professional

Conduct of 2010. 5/10/16 R8; C103, 109. The trial

court rejected petitioner’s assertions: the “mere fact

that there is representation of many of the

codefendants in this matter does not inherently mean

that there is a conflict of interest.” Id. at R16–18.

Petitioner asked the court to hold her in friendly

1

“Pet. __” refers to the petition for a writ of certiorari; “Pet.

App. __” refers to the petition’s appendix; “[Date]R_” refers to the

non-consecutively paginated report of proceedings; and “C_”

refers to the consecutively paginated common law record.

4

contempt so that she could appeal the court’s ruling.

Ibid.

The trial court took that matter under

advisement and asked petitioner to put in writing the

basis for her refusal to represent Cole. Ibid.

Petitioner then filed a pleading styled “Basis for

Refusing Appointment Where a Conflict of Interest in

Representation Exists.” C182–187. At the ensuing

hearing, petitioner again maintained that under

Illinois’s 2010 Rules of Professional Conduct she could

not represent more than one codefendant because of

the potential conflict. Pet. App. 5a–6a. Petitioner

conceded that separate attorneys from different

divisions of her office represented Cole’s codefendants

and that the attorneys reported to separate

supervisors; however, she argued, their separate

supervisors “might” report to the same deputy

director, and ultimately all attorneys report to her.

Pet. App. 6a. Petitioner further acknowledged that her

office has a “multiple defender division for multiple

offender cases,” but she maintained that “she was in

conflict even in those cases,” id., because the Rules of

Professional Conduct do not “allow for . . . a wall to

eliminate conflicts of interest within the same law

firm,” 5/19/16 R14.

The trial court reiterated that as public defender

petitioner was sworn to represent an indigent

defendant unless the court found that the defendant’s

rights would be prejudiced. Pet. App. 7a. Because the

court had not found that Cole’s rights would be

prejudiced, petitioner’s refusal to represent Cole was

5

contumacious. Id. Petitioner maintained that a

contempt finding was the only way to have a higher

court “answer the question about the new rules of

professional conduct” and their effect on “multiple

defendant cases.” 5/19/16 R18. The court appointed

private counsel to represent Cole and continued the

matter for a determination on petitioner’s request for

a finding of friendly contempt. Pet. App. 7a.

At the next hearing, petitioner again stated that

she was “in conflict” in representing the sixth

defendant in a six-defendant murder case because in

her view she was also representing the five

codefendants. Pet. App. 8a. Petitioner again conceded

that separate attorneys represented the five

codefendants, but maintained that under 55 Ill. Comp.

Stat. 5/3-4006 (2016), she was the attorney for every

client represented by her office and that her office was

a law firm. 6/15/16 R7-8; Pet. App. 8a. Petitioner

persisted in her refusal to represent Cole “specifically

based upon Rule 1.7.” 6/15/16 R12.

3. Finding that petitioner’s refusal was “without

basis” and that Cole would suffer no prejudice from

petitioner’s appointment, the court found petitioner in

direct civil contempt. Pet. App. 8a. Petitioner thanked

the court, stating that she needed a higher court to

answer whether “[she is] a law firm, to tell [her] if the

Rules of Professional Conduct that the Illinois

Supreme Courts [sic] handed down in 2010 finds that

I am in conflict every time I represent more than one

client on a case. Because that is exactly what comment

6

23 to Rule 1.7 says.” 6/15/16 R12–13. The court fined

petitioner $250 per day until she purged herself of the

contempt by accepting representation of Cole or she

was otherwise discharged by due process of law. Pet.

App. 9a; see C205-207 (Order). Petitioner appealed,

and enforcement of the $250 daily fine was

immediately stayed. C224.

Illinois Supreme Court proceedings

4. On appeal to the Supreme Court of Illinois,

petitioner reiterated her argument that representation

of more than one defendant in a multiple defendant

case presents a conflict of interest for the office of the

public defender. Pet. App. 10a. Relying on Rule 1.10,

petitioner maintained that representation by the

public

defender’s

office

is

tantamount

to

representation by a single attorney.

Petitioner

acknowledged that the Illinois Supreme Court held in

People v. Robinson, 402 N.E.2d 157 (Ill. 1979), that the

public defender’s office is not a law firm, but

maintained that Robinson was not controlling because

it predated the enactment of the 2010 Rules of

Professional Conduct, and that the public defender’s

office was a law firm under the plain language of new

Rule 1.10. Pet. App. 13a.

The court rejected petitioner’s argument, finding

“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.” Pet. App. 15a. The court also

7

refused petitioner’s request to overrule Robinson,

pointing out that the plain meaning of “firm” in Rule

1.10 “necessarily excludes public defender offices from

its definition.” Pet. App. 16a.

The court also found no merit in petitioner’s

contention that Rule 1.7 bars the public defender from

representing multiple codefendants. Pet. App. 18a.

Because Rule 1.7 addressed the representation of

multiple defendants by a single attorney, 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.” Pet. App. 19a–20a. Rather, in

such circumstances, “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.” Pet. App. 20a (internal

quotations and citation omitted).

The court also rejected petitioner’s argument

that, under 55 Ill. Comp. Stat. 5/3-4006 and Burnette v.

Terrell, 905 N.E.2d 816 (Ill. 2009), multiple

representation of codefendants always violates Rule

1.7 because, as the public defender, she is counsel to all

of the clients her office represents. The court reasoned

that although petitioner oversees the 518 assistant

defenders in her employ, it is the assistant defenders

who provide the legal services to the defendants, and

petitioner’s remote supervisory authority “is

insufficient grounds, in and of itself, to disqualify the

entire office from representing codefendants.” Pet.

8

App. 22a. The court noted that Cole’s codefendants

were represented by the public defender’s “Multiple

Defendant Division,” whose website described the

assistants in that division as “very experienced”

attorneys who “act independently of other divisions in

the office to prevent any effects from a conflict between

Public Defender clients.” Pet. App. 26a.

Petitioner thus failed to show a potential conflict

justifying appointment of outside counsel. Instead,

petitioner argued that she “need only allege a conflict

of interest, without more, in order to withdraw from

representation.” Pet. App. 24a. “At best,” the court

stated, “[petitioner’s] claims of conflict are based upon

mere speculation that joint representation of

codefendants by assistant public defenders will, at

some point, result in a conflict.” Pet. App. 29a.

Accordingly, the court affirmed the trial court’s finding

that the risk of conflict was too remote to warrant

appointment of separate counsel. Ibid.

5. At the same time, however, the state supreme

court “vacate[d] the order of the trial court holding

[petitioner] in contempt and vacate[d] the award of

sanctions[.]” Pet. App. 30a. Despite finding the

contempt and sanction to have been “valid,” the court

vacated them because petitioner’s contempt was

motivated “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.” Ibid. The court further held that appointed

counsel would continue to represent Cole in the

9

underlying criminal case and declined to order

petitioner to represent Cole. Ibid.

REASONS FOR DENYING THE PETITION

I.

The Decision Below Rests on the Illinois

Supreme Court’s Interpretation of Illinois

Law.

Petitioner asks this Court to decide whether the

Sixth Amendment erects a per se barrier to

representation of multiple codefendants by a single

public defender’s office. Pet. i. But the state courts did

not address that question. Petitioner accepted an

adjudication of friendly contempt “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.” Pet. App. 30a. In

other

words,

she

sought—and

received—an

authoritative determination from the Illinois Supreme

Court of the scope and nature of her own ethical

obligations as a member of the Illinois bar. See

Mickens v. Taylor, 535 U.S. 162, 176 (2002) (“breach of

an ethical standard does not necessarily make out a

denial of the Sixth Amendment guarantee of assistance

of counsel”) (quoting Nix v. Whiteside, 475 U.S. 157,

165 (1986)).

Consistent with that objective, petitioner’s Sixth

Amendment argument in state court was not only

relatively undeveloped but entirely contingent upon

her construction of state law. Specifically, she argued

that under Illinois Supreme Court Rule of Professional

10

Conduct 1.7 and 55 Ill. Comp. Stat. 5/3-4006 (2016) she

was counsel for every defendant her office represented,

and that therefore state law forced her to violate her

clients’ Sixth Amendment rights in multiple-defendant

cases. Pet. App. 12a–13a; Brief and Supporting

Appendix

for

Contemnor-Appellant

Amy

P.

Campanelli at 32–36, People v. Cole, 2017 IL 120997.

But the Illinois Supreme Court rejected these state-law

premises, holding that petitioner was not counsel for

every defendant her office represented, Pet. App. 20a–

22a, and that her office was not a “firm” under Rule

1.10, Pet. App. 15a–16a.

Petitioner did not argue that as a matter of federal

constitutional law she personally serves as counsel to

each defendant in every multiple-defendant case

handled by her office, regardless of how state law

defines such terms as “attorney” and “firm.” Not

surprisingly, then, the Illinois Supreme Court did not

address that freestanding federal question. Instead, to

the extent it reached petitioner’s Sixth Amendment

argument, it treated it as contingent on her state-law

claims. See Pet. App. 26a–27a (“Although Campanelli

contends that the multiple defendant division itself is

always in conflict, that 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.”).

“[O]rdinarily, this Court does not decide

questions not raised or involved in the lower court.”

11

Youakim v. Miller, 425 U.S. 231, 234 (1976) (per

curiam); Adarand Constructors, Inc. v. Mineta, 534

U.S. 103, 109 (2001) (per curiam) (same). Certiorari

review is unwarranted because the question presented

here was not addressed in state court.2

II.

This Case Implicates No Split of Authority

on Any Constitutional Issue.

Because the state court decided state-law issues,

this case does not contribute to any conflict of

authority on any federal constitutional issue.

According to petitioner, Illinois law holds that “forcing

an indigent criminal defendant to be represented by an

attorney from a single, centrally managed public

defender’s office that also represents adverse

codefendants is consistent with the Sixth

Amendment,” Pet. 9–10, and is thus “at odds with” the

law of Florida, Pennsylvania, and Florida, whose

courts have allegedly concluded that “the Sixth

Amendment requires treating a public defender’s

office as a firm,” Pet. 11. But petitioner’s conflict

argument depends upon a misstatement of the Illinois

Supreme Court’s holding; as discussed, that court

merely rejected petitioner’s interpretation of state law,

and did not reach the question she now presents.

Moreover, as a factual matter, Cole was never “forc[ed]

. . . to be represented by an attorney from a single,

2

For the same reason, the arguments of petitioner’s amici,

which rest on the Sixth Amendment and other federal

constitutional provisions, are inapposite.

12

centrally managed public defender’s office,” for the

public defender’s office never represented Cole:

petitioner refused to represent Cole, the trial court

appointed private counsel, and the Illinois Supreme

Court held that it would not require petitioner to

represent Cole.

In any event, petitioner fails to establish that any

conflict rests on federal constitutional grounds.

Contrary to her assertion, petitioner’s best case, Bouie

v. State, 559 So.2d 1113 (Fla. 1990), did not hold that

“the Sixth Amendment requires treating a public

defender’s office as a firm.” Pet. 11. Rather, Bouie

merely cited a Florida intermediate appellate decision,

Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976), for

the proposition that, “as a general rule, a public

defender’s office is the functional equivalent of a law

firm” and that “[d]ifferent attorneys in the same public

defender’s office cannot represent defendants with

conflicting interests.” 559 So.2d at 1115. In turn,

Turner expressed the “view” that “the public

defender’s office of a given circuit [is] a ‘firm’” under

Canon 5 of the Florida Code of Professional

Responsibility. 340 So.2d at 133. At bottom, then,

Bouie’s holding rests upon the Florida appellate court’s

construction of a Florida disciplinary rule, not the

Sixth Amendment.

Petitioner’s Pennsylvania case, Commonwealth v.

Westbrook, 400 A.2d 160, 162 (Pa. 1979), merely found

that the rationale of Commonwealth v. Via, 316 A.2d

895 (Pa. 1974), “as it concerned public defenders being

13

considered as one law firm, is equally applicable to the

question of conflict of interest in multiple

representations.” Via had held that the court would

“not view the failure to raise a claim of incompetency

as a waiver where an individual in the subsequent

proceedings is represented by the same counsel or one

of his associates,” 316 A.2d at 898, not that the Sixth

Amendment requires a public defender’s office to be

treated as a firm.

And the Supreme Court of

Louisiana’s statement in State v. Connolly is dicta

relegated to a footnote in its decision on the distinct

issue of the propriety of a judge’s recusal. 930 So.2d

951, 954 n.1 (La. 2006).

Petitioner’s Georgia case, Williams v. State, 807

S.E.2d 418 (Ga. 2017), bears discussion for its

similarity to the Illinois Supreme Court’s holding here.

The Supreme Court of Georgia held that

representation of codefendants by a single public

defender office did not “automatically create[] a

disqualifying conflict of interest.” Id. at 424. Rather,

“the trial court must determine if, because of the

imputed joint representation, ‘an impermissible

conflict of interest exists and cannot be overcome.’”

Ibid. (quoting Formal Advisory Opinion No. 10-1, 744

S.E.2d 798 (Ga. 2013)). “Put another way, the imputed

conflict rule” of the Georgia Rules of Professional

Conduct “does not become relevant or applicable until

after an impermissible conflict of interest . . . has been

represented to exist by counsel without contrary

findings by the trial court.” Ibid. (emphasis in original;

14

citation and internal quotation marks omitted).

Because Williams is consistent with the Illinois

Supreme Court’s decision here, and because petitioner

concedes that her remaining cases do not “explicitly

acknowledg[e] the Sixth Amendment implications of

their decisions,” Pet. 13, petitioner fails to establish

any conflict of constitutional dimension.

Cases permitting representation of codefendants

by a single public defender’s office also generally do not

rest on an interpretation of the Sixth Amendment.

See, e.g., Anderson v. Commissioner of Correction, 127

Conn. App. 538, 551 (2011), aff’d, 308 Conn. 456, 462

(2013) (holding that separate attorneys from a public

defender’s office are not treated as a “firm” for

imputed disqualification purposes, and that this rule is

based on state ethics rules, not Sixth Amendment

principles); People v. Shari, 204 P.3d 453 (Colo. 2009)

(addressing conflict issue through lens of state rules of

professional conduct).

At most, then, petitioner demonstrates that state

high courts reach different results when construing

their respective rules of professional conduct.

Significantly, none of petitioner’s cases hold—and

petitioner has never argued—that the rules governing

imputation of conflicts are of federal constitutional

dimension. Thus, even if petitioner can show that

state ethical rules conflict, she fails to establish that

this conflict has any federal constitutional basis.

15

III. This Case Is a Poor Vehicle for Deciding the

Question Presented.

This case presents an especially poor vehicle for

deciding the question presented, for two interrelated

reasons. First, there is a serious question whether

petitioner retains a concrete stake in the outcome. The

basis for petitioner’s decision to accept a contempt

citation was her assertion that being required to

represent Cole would cause her to violate the Illinois

Rules of Professional Conduct of 2010. See, e.g., Pet.

App. 7a. But in fact petitioner was never required to

represent Cole, and the Illinois Supreme Court has

made clear that she will not be required to represent

Cole in this matter in the future. Pet. App. 30a. And

the Illinois Supreme Court vacated the trial court’s

order holding petitioner in contempt, along with the

accompanying sanctions. Ibid. It is thus unclear what

tangible benefit petitioner would receive from a

favorable resolution of the question presented.

Petitioner contends that she would face

continuing consequences from the contempt order if

she sought admission to practice in a new court or

jurisdiction, Pet. 24, but that is not so: on any such

application for admission she may simply disclose that

the Illinois Supreme Court vacated the contempt

judgment. For similar reasons, a vacated judgment of

friendly contempt obtained “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,” Pet. App. 30a, hardly rises to

16

the level of reputational harm that was sufficient to

confer standing on the appellee in Meese v. Keene, 481

U.S. 465 (1987).

To be sure, this Court has held that the

prospective effects of a constitutional ruling permit

appellate review at the behest of a government party

that has escaped liability thanks to qualified immunity.

Camreta v. Greene, 563 U.S. 692 (2011). But the Court

was careful to limit its holding to the “special category”

of qualified immunity rulings, id. at 704, which force

officials to change their conduct lest they “invite

further law suits and possible punitive damages,” id.

at 708. Moreover, the Court addressed only “what this

Court may review,” while noting that “what we

actually will choose to review is a different matter.” Id.

at 709 (emphasis in original). This Court should not

choose to review a case where the concrete interests of

the petitioner are so doubtful.

Second, the petition presents a serious problem of

third-party standing. As petitioner recognizes, under

the Sixth Amendment “the client, not the attorney,

possesses the substantive right.” Pet. 23. Although

petitioner tellingly fails to specify whose Sixth

Amendment rights she is asserting, the Illinois

Supreme Court understood the gravamen of

petitioner’s claim to be “that a direct conflict of

interest prevented her from zealously representing

Cole.” Pet. App. 22a. See also Pet. App. 23a (petitioner

represented to the trial court “that Cole would be

prejudiced by her appointment”); Pet. App. 12a

17

(describing issue on appeal as “whether Campanelli

established that potential conflicts imperiled Cole’s

right to a fair trial”).

But Petitioner cannot assert the Sixth

Amendment rights of Cole, whom she has never

represented. Perhaps at an earlier stage of this

litigation her interests and those of Cole were

sufficiently aligned to permit the Illinois courts to

resolve the question whether she would be required to

represent Cole. Now that that question has been

answered in the negative, however, petitioner has no

third-party standing in federal court to vindicate Cole’s

rights, or, for that matter, those of future defendants

she may be called upon to represent. See Kowalski v.

Tesmer, 543 U.S. 125, 134 (2004) (attorney has no

third-party standing to assert claims of future,

unidentified clients). Those clients will remain free, of

course, to assert (or knowingly and intelligently waive)

their own Sixth Amendment rights as they choose.

IV. The State Court’s Judgment Does Not

Conflict with This Court’s Precedent.

Finally, this Court should deny review because

there is no merit to petitioner’s contention that the

state court’s judgment conflicts with Holloway v.

Arkansas, 435 U.S. 475 (1978). Under Holloway, when

a court is alerted to a potential conflict between

codefendants represented by the same counsel, the

court must either “appoint separate counsel or … take

adequate steps to ascertain whether the risk [of

18

conflict is] too remote to warrant separate counsel,”

and must do so without requiring counsel to disclose

confidential information as part of that inquiry. Id. at

484.

But unlike Holloway, Cole and her codefendants

were not represented by the same attorney.

Petitioner’s argument that, as public defender, she was

the attorney for all codefendants rested entirely on her

erroneous interpretation of state law. See Section I,

supra.

Moreover, even if one grants petitioner’s statelaw predicate, the state trial court complied with

Holloway’s inquiry requirement. After petitioner

alerted the trial court to a potential conflict of interest,

the court considered the issue at length before

determining that any conflict was too remote to

warrant appointment of separate counsel, for

petitioner only speculated that representation of

codefendants by separate assistant public defenders

might result in a conflict in the future. And that

determination was unquestionably correct, for

Holloway holds that “[r]equiring or permitting a single

attorney to represent codefendants . . . is not per se

violative of the constitutional guarantee of effective

assistance of counsel.” 435 U.S. at 482. It follows a

fortiori that requiring or permitting separate attorneys

in the same office to represent codefendants is not per

se violative of the Sixth Amendment. See Burger v.

Kemp, 483 U.S. 776, 783 (1987) (assuming arguendo

that two private law firm partners are considered as

19

one attorney but declining to hold that requiring them

to represent codefendants is per se Sixth Amendment

violation). Yet that is precisely petitioner’s argument:

that requiring attorneys within a single public

defender’s office to represent codefendants always

creates a conflict in violation of the Sixth Amendment.

Accepting that argument would require this Court to

overrule Holloway, something petitioner does not ask

the Court to do.

Finally, petitioner’s complaint that the Illinois

Supreme Court “forced defense counsel to choose

between disclosing confidential information and failing

to provide the level of detail necessary to persuade the

trial court of a direct conflict,” Pet. 18–19, cannot be

squared with the record. To the contrary, petitioner

strategically framed the potential conflict as resulting

from the mere fact of multiple representation of

codefendants by different attorneys in her office, and

did so with the intent of obtaining a friendly contempt

adjudication so that she could test her construction of

the 2010 Rules of Professional Conduct on appeal.

6/15/16 R12–13.

The state courts invited petitioner to raise any

facts peculiar to the case that might “preclude the

representation of competing interests by separate

members of the public defender’s office,” Pet. App. 20a,

and made clear that she “need[ed] only present the gist

20

of such a conflict,” Pet. App. 25a.3 She did not do so.

That the trial court later granted petitioner’s motion

to withdraw from representation of codefendants

Whitehead and Reed after finding that “a conflict of

interest existed where Whitehead and Reed had been

charged with intimidating codefendant Washington,”

Pet. App. 5a n.1, further belies petitioner’s suggestion,

Pet. 19, that Illinois does not follow Holloway, or that

it is impossible to make a showing of a conflict without

revealing privileged information.

3 Relevant factors include “whether the two public

defenders were trial partners in the defendant’s case; whether the

public defenders were in hierarchical positions where one

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.” Pet. App. 25a–26a.

21

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

LISA MADIGAN

Attorney General of Illinois

DAVID L. FRANKLIN

Solicitor General

MICHAEL M. GLICK*

Criminal Appeals Division Chief

KATHERINE M. DOERSCH

ERIC M. LEVIN

Assistant Attorneys General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-2569

mglick@atg.state.il.us

* Counsel of Record

MAY 2018