People v. Keisha C. (In re W.R.)

• Decision Date: 12 March 2012
• Docket Number: No. 3–11–0179.,3–11–0179.
• Parties: In re W.R., E.H., and V.R., Minors (The People of the State of Illinois, Petitioner–Appellant, v. Keisha C., Respondent–Appellee).
• Court: United States Appellate Court of Illinois

966 N.E.2d 1139

In re W.R., E.H., and V.R., Minors (The People of the State of Illinois, Petitioner–Appellant, v. Keisha C., Respondent–Appellee).

No. 3–11–0179.

Appellate Court of Illinois, Third District.

March 12, 2012.

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James Glasgow, State's Attorney, Joliet (Terry A. Mertel and Gary F. Gnidovec, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Gregory M. Reeder (Court-appointed), Steven H. Mevorah & Associates, Lombard, for Keisha C.

Stephanie Speakman (Court-appointed), Mokena, Lea Drell, Assistant Public Defender (Court-appointed), Joliet, and Timothy McGrath, Manhattan, for Wallace Rowe, Sr.

Victoria McKay Kennison (Court-appointed), Law Office of Edward R. Jaquays, Joliet, for Mark Hendrix.

Neil J. Adams (Court-appointed), Joliet, for Vincent Robinson.

Edward P. Graham (Court-appointed), Law Offices of Edward P. Graham, Naperville, guardian ad litem.

Justice HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 This matter comes before this court on an interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(1) (eff. Feb. 16, 2011). The State appeals the trial court's order granting the respondent-mother, Keisha C., a new trial due to a per se conflict of interest. Specifically, the trial court found that a per se conflict of interest existed under Rule 1.12(a) of the Illinois Rules of Professional Conduct (Ill. Rs. Prof'l Conduct R. 1.12(a) (eff. Jan. 1, 2010)) because one of the respondent-fathers was represented by an attorney who

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had mediated a prior family court case between the respondent-father and respondent-mother. On appeal, the State argues that: (1) Rule 1.12(a) does not apply to this case; (2) even if the rule does apply, there is no per se conflict of interest; and (3) the respondent-mother did not have standing to complain about the alleged conflict of interest. We affirm.

¶ 2 FACTS

¶ 3 On August 28, 2008, the State filed petitions alleging that the minors, W.R., E.H., and V.R., were neglected because their environment was injurious to their welfare. The basis of the petition was that the respondent-mother had allowed a convicted sex offender to pick up her children from day care and have unsupervised contact with them.

¶ 4 Attorney Lea A. Drell was appointed to represent W.R., Sr., father of W.R., in the juvenile court proceeding. On April 14, 2009, Drell filed a motion for custody for W.R. In that motion, Drell asserted that W.R. had eczema "all over his body" when he came to live with the respondent-father but that it was "now almost cleared up through the actions of [W.R., Sr.]" The motion further alleged that W.R. had been integrated into his father's family.

¶ 5 The matter proceeded to an adjudicatory hearing on March 2, 2010. During the hearing, Drell asked the respondent-mother a series of questions about W.R. to show "that her level of involvement with her child [was] very little."

¶ 6 At closing arguments, Drell recommended that W.R., Sr., be given custody of his son, and she argued that W.R. had been given stability over the past two years. The guardian ad litem (GAL) also recommended that the respondent-father should receive custody of W.R. During her closing argument, the GAL referred to a prior family court case to argue that the court may be an appropriate forum for the respondent-mother to seek visitation once the case was closed. The trial court then questioned the attorneys with regard to the prior family court case, and Drell revealed that she had been the mediator in that case involving the respondent-mother and W.R., Sr.

¶ 7 The parties took a break to investigate the matter further. The State produced a document showing the result of the mediation and the agreement regarding the custody of the minor. The State then said, "I think some interest could have been affected if there [was] a conflict of interest, not the State's interest, but apparently there are two parents at odds with the request for a disposition in this case regarding [W.R.]" Drell apologized to the court, and responded that she had not recognized any of the parties. She further explained that, "I assume [the parties] came to see me once. And we had an agreement. And that was it."

¶ 8 The GAL added:

"Judge, looks from the document that the appointment was made June 21st, 2005 to mediate the issues of custody and visitation.

And then sometime shortly after that, July 28th of '05, a mediation agreement was entered. And then there is no reference any further even though there are some other proceedings in 2008 and 2009. It doesn't look like any further."

¶ 9 The case was continued November 9, 2010, in an effort to secure informed consent from the parties. The respondent-mother did not give her consent, and instead she filed a motion for a new trial based on a violation of Rule 1.12 of the Rules of Professional Conduct. After a hearing on the motion, the trial court found:

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"[A]fter reading the case law * * * what has happened is that after it was discovered that * * * Drell was also the mediator in a custody proceeding between [the respondent-mother] and [W.R., Sr.], and she didn't even remember that she was the mediator-she was not your attorney in that proceeding. However, the information that she could have known from that proceeding if she recalled could transfer."

¶ 10 The trial court concluded that there was no evidence that Drell's representation had prejudiced W.R., Sr., but that there was a per se conflict of interest and thus a new trial was required. The State appealed.

¶ 11 ANALYSIS

¶ 12 I. Applicability of Rule 1.12(a)

¶ 13 The State's first argument on appeal is that the parties and trial court erred by assuming that Rule 1.12 of the Rules of Professional Conduct applied to the case. Rule 1.12(a) reads:

"[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent." (Emphasis added.) Ill. Rs. Prof'l Conduct R. 1.12(a) (eff. Jan. 1, 2010).

¶ 14 The State contends that the juvenile neglect case was not the same "matter" as the family court case, and thus Drell was not prohibited from representing one of the parties in a later proceeding. In other words, the State argues a narrow, case-specific reading of the word "matter," and, under such an application, the juvenile neglect proceeding is not the same "matter" as a custody and support action in family court.

¶ 15 Illinois Supreme Court rules are interpreted under the same principles that govern the interpretation of statutes. People v. Santiago, 236 Ill.2d 417, 339 Ill.Dec. 1, 925 N.E.2d 1122 (2010). If the language of the rule is clear and unambiguous, the rule will be given its plain and ordinary meaning without resorting to further aids of statutory construction. Id. at 428, 339 Ill.Dec. 1, 925 N.E.2d 1122. In addition, "[o]ne of the fundamental principles of statutory construction is viewing all the provisions of an enactment as a whole." Id. Words and phrases in a rule should be "interpreted in light of other relevant provisions of the statute." Id.

¶ 16 As an initial matter, we note that "matter" is not defined anywhere in Rule 1.12 or the supporting comments. Therefore, we look to other parts of the Rules of Professional Conduct to assist us in interpretation.

¶ 17 Comment 1 to Rule 1.12 states that the rule "generally parallels Rule 1.11," which is the rule governing conflicts of interest for current or former government employees. Ill. Rs. Prof'l Conduct R. 1.12(a) cmt. 1 (eff. Jan. 1, 2010). In fact, Rule 1.11 and Rule 1.12 have been interpreted together and have been found to have "similar prohibitions." Illinois Wood Energy Partners, L.P. v. County of Cook, 281 Ill.App.3d 841, 853, 217 Ill.Dec. 388, 667 N.E.2d 477 (1995).

¶ 18 Rule 1.11 defines "matter" as "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties." Ill. Rs. Prof'l Conduct R. 1.11(e) (eff. Jan. 1, 2010). More importantly, comment 10 to Rule 1.11 provides:

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"For purposes of paragraph (e) of this Rule, a ‘matter’ may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed." Ill. Rs. Prof'l Conduct R. 1.11 cmt. 10 (eff. Jan. 1, 2010).

¶ 19 Accordingly, we reject the State's argument that a "matter" as used in Rule 1.12 necessarily means the same case or same proceeding. Comment 10 to Rule 1.11 clearly anticipates that a matter "may continue in another form" and therefore may not be the same case. Instead, we must consider the extent to which the juvenile neglect case and family court case share the...