{ "id": 1472426, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVARO ORTEGA et al., Defendants-Appellants", "name_abbreviation": "People v. Ortega", "decision_date": "2002-03-29", "docket_number": "No. 1\u201499\u20141761", "first_page": "114", "last_page": "127", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 114" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "898 F.2d 585", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534238 ], "year": 1990, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/f2d/898/0585-01" ] }, { "cite": "964 F.2d 658", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 42664 ], "year": 1992, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/f2d/964/0658-01" ] }, { "cite": "76 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984352 ], "year": 1979, "pin_cites": [ { "page": "424-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0418-01" ] }, { "cite": "486 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212318 ], "weight": 9, "year": 1988, "pin_cites": [ { "page": "164" }, { "page": "152" }, { "page": "1700" }, { "page": "162" }, { "page": "151" }, { "page": "1699" }, { "page": "163" }, { "page": "151" }, { "page": "1699" } ], "opinion_index": 0, "case_paths": [ "/us/486/0153-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "153 Ill. 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ALVARO ORTEGA et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE REID\ndelivered the opinion of the court:\nThis is an interlocutory matter before this court pursuant to Illinois Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). Following the granting by the trial court of a motion to disqualify defense counsel, defendant petitioned this court for leave to appeal. This court dismissed the petition. Alvaro Ortega subsequently filed a petition for leave to appeal to the Illinois Supreme Court. Pursuant to its supervisory power, the Illinois Supreme Court denied the petition for leave to appeal and remanded the case to this court with directions to hear the appeal.\nTHE FACTS\nAlvaro Ortega (Ortega) and Eugenio Natal (Natal) were arrested for the delivery of a controlled substance, namely 999.38 grams of cocaine, in violation of section 401(a)(2)(D) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(D) (West 1992)). The delivery took place on August 1, 1996, with the arrest occurring the following day. Although Robert Novelle, Sr., had previously appeared on the defendant\u2019s behalf in the pre-arraignment stages of the proceedings, he filed a formal appearance in October 1996.\nPrior to trial, the People filed a motion to disqualify Robert Novelle on the grounds that Donald Novelle, his brother and law partner, had represented Juan Montez in four different criminal matters. Juan Montez, when Robert Novelle acted as his lawyer, used the aliases Valentine Mejia and Juan Soliz. It is possible that Montez was the alias and Mejia is the real name. Montez was working for the Metropolitan Enforcement Group (MEG), either for compensation or to work off pending criminal cases. The People\u2019s motion alleged that the representation of Montez created a per se conflict of interest.\nDonald Novelle testified he learned Montez was a witness in a grand jury proceeding in which Ortega was a target. The work Montez was doing for the MEG involved organizing the cocaine purchase from which Ortega now appeals. Donald Novelle allegedly heard that Eugenio Natal was involved in this cocaine purchase but would not be charged. Donald Novelle claims he learned of the agreement between Montez and the MEG after the transaction. He also testified to representing Montez in his attempt to enforce the agreement whereby he worked for the MEG. The People deny that such an agreement exists. When Montez was called to testify before a grand jury, he invoked his fifth amendment right not to testify.\nOn September 6, 1996, in an informal conference with the trial court to resolve any conflicts, it was recommended that Donald Novelle have another lawyer represent Montez. This was suggested to eliminate any appearance of impropriety. Donald Novelle responded that, based on the purported conflicts waivers before the trial court, he could freely discuss both the cases involving Montez and the facts of any alleged conflict with members of the firm, including Robert Novelle. In subsequent proceedings, although Donald Novelle continued to represent Montez in pending criminal matters, Greg Ginex appeared on his behalf. On September 12, 1996, while being represented by Ginex, Montez testified before the grand jury. Montez ultimately did receive convictions in the cases involving him. His sentence was 30 months\u2019 probation. At the time of the conference between Novelle and the trial court in this case, Montez still owed Novelle\u2019s firm for legal services.\nOn April 20, 1999, the trial court asked Ortega and Natal if they understood the nature of the conflict of interest. Each defendant responded that he did. The trial court also questioned each defendant regarding his age, level of education and experience in the legal system. Both defendants indicated that they waived potential conflicts so that Robert Novelle could continue to represent them. Robert Novelle told the court that he had informed the defendants of every relevant fact of the potential conflict of interest. Despite the purported waivers, the trial court found the existence of a per se conflict of interest. The trial court also found that no waiver could satisfy the trial court\u2019s duty to ensure that a defendant received the undivided loyalty of his counsel.\nThe trial court\u2019s April 20, 1999, order was entered orally. The proceedings were then stayed pending appeal. On April 26, 1999, the trial court entered a written order on the substance of the April 20, 1999, oral order. On May 9, 1999, Ortega filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(7). The People filed an answer to the petition. This court dismissed the petition. Defendant next filed a petition for leave to appeal to the Illinois Supreme Court. That petition to the supreme court was denied. In their denial, the supreme court remanded the case to this court with directions to hear the appeal.\nANALYSIS\nOrtega argues that the trial court erred in disqualifying defense counsel because the representation of Montez was neither contemporaneous with the current representation nor harmful to either client\u2019s interests. Ortega also argues that there was a knowing waiver of any conflict of interest such that, although the constitutional right to counsel of his own choosing and the sixth amendment right to the undivided loyalty of counsel are in competition, the right to counsel of his own choosing must prevail. Specifically, Ortega argues that the representation of Montez was over for two years by the time Ortega was arrested. He also maintains that the prior representation ended and did not resume at any point. Even if it did, Ortega claims that Montez\u2019s potential testimony would potentially exonerate Natal and not him. As a result, Ortega argues Montez\u2019s potential testimony was not truly opposed to his interests. Ortega also points out that, since the trial court found Montez\u2019s agreement unenforceable, any potential benefit Montez might have received at the cost of Ortega\u2019s interests was essentially mooted.\nThe People respond that the trial court was correct in disqualifying defense counsel in light of the per se conflict of interest which exists in this case. The People argue that, where an actual or possible conflict of professional interest is found to exist, prejudice is presumed. The People emphasize that, although Robert Novelle\u2019s firm no longer represents Montez, Donald Novelle did represent Montez during hearings that directly related to the facts and circumstances of the case sub judice. It argues the trial court was properly concerned with the appearance of impropriety, should the jury become aware of the prior representation of the People\u2019s witness in matters directly related to this case. The trial court also expressed concern that Robert Novelle\u2019s cross-examination might be subliminally restricted or limited, especially in light of any information he gained by way of the attorney-client privilege and Montez\u2019s belief that Natal was not supposed to be arrested or prosecuted for the crime.\nAppellate review of a purely legal question is de nova. People v. Hall, 198 Ill. 2d 173 (2001); People v. Dameron, 196 Ill. 2d 156, 162 (2001); People v. Krause, 273 Ill. App. 3d 59, 62 (1995). A question of law arises when neither the credibility of the witnesses nor the facts are at issue. People v. Walker, 308 Ill. App. 3d 435, 438 (1999), citing People v. Oaks, 169 Ill. 2d 409, 447-48 (1996).\nOrtega claims that defense trial counsel should not have been disqualified because, although there was the potential for a conflict of interest, harm to the defendants\u2019 position was nullified by the knowing waivers made in this case. \u201cThe right to the effective assistance of counsel is a fundamental right and entitles an accused to the undivided loyalty of his counsel.\u201d People v. Lawson, 163 Ill. 2d 187, 208-09 (1994); Ill. Const. 1970, art. I, \u00a7 8; U.S. Const., amends. VI, XIV This right was designed to assure fairness in the adversary criminal process. People v. Holmes, 141 Ill. 2d 204, 217 (1990), citing United States v. Morrison, 449 U.S. 361, 364, 66 L. Ed. 2d 564, 567, 101 S. Ct. 665, 667 (1981). The constitutional right to counsel includes the right to counsel of one\u2019s own choosing. People v. Basler, 304 Ill. App. 3d 230, 232 (1999); People v. Johnson, 75 Ill. 2d 180, 185 (1979). \u201cWhere a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest.\u201d People v. Johnson, 322 Ill. App. 3d 117, 121 (2001). An attorney\u2019s relationships vis-avis certain clients can, without more, create a disabling conflict that taints the outcome of a trial. People v. Coleman, 301 Ill. App. 3d 290, 299 (1998). \u201cCounsel\u2019s contemporaneous association with either the crime victim or a State\u2019s witness forms such a relationship and creates a conflict per se.\u201d Coleman, 301 Ill. App. 3d at 299, citing People v. Spreitzer, 123 Ill. 2d 1, 14 (1988). Where facts presenting an attorney\u2019s possible conflict of interests are made known to the court, the court must ascertain the extent of the risk and take whatever measures are necessary to protect the accused\u2019s guarantee of effective assistance of counsel. People v. Thomas, 131 Ill. 2d 104, Ill (1989), citing Holloway v. Arkansas, 435 U.S. 475, 484-85, 55 L. Ed. 2d 426, 434-35, 98 S. Ct. 1173, 1178-79 (1978).\n\u201cThere are certain contemporaneous representations that we have decided not to tolerate, even in the absence of a showing that anyone was prejudiced by the existing conflict. Where the competing interests *** are directly at odds, we presume ineffectiveness without any inquiry into how a lawyer actually performed.\u201d People v. Sims, 322 Ill. App. 3d 397, 413 (2001). Where no per se conflict of interest exists, the defendant must show the existence of an actual conflict and actual prejudice. People v. Becerril, 307 Ill. App. 3d 518, 525 (1999), citing People v. Taylor, 165 Ill. App. 3d 1016, 1021 (1988). Where an actual conflict of interest exists, the defendant is not required to prove that the conflict contributed to his conviction. Becerril, 307 Ill. App. 3d at 525, citing People v. Spreitzer, 123 Ill. 2d 1, 18 (1988). \u201c \u2018[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.\u2019 \u201d Spreitzer, 123 Ill. 2d at 19, quoting Cuyler v. Sullivan, 446 U.S. 335, 349-50, 64 L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1719 (1980).\nThe supreme court has provided guidance for detecting per se conflicts of interest. Sims, 322 Ill. App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 16. \u201cWhere defense counsel has a tie to a person or entity, including his \u2018own previous commitments,\u2019 which would benefit from an unfavorable verdict for the defendant, a per se conflict arises.\u201d People v. Woidtke, 313 Ill. App. 3d 399, 409 (2000); Spreitzer, 123 Ill. 2d at 16. \u201cIn such a case, the defendant is not required to show prejudice as a result of the representation; the representation is deemed ineffective as a result of the inherent conflict. Sims, 322 Ill. App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 14-16.\nWhere defense counsel has represented a State witness, a per se conflict of interest exists if \u201c \u2018the professional relationship between the attorney and the witness is contemporaneous with counsel\u2019s representation of the defendant.\u2019 \u201d Coleman, 301 Ill. App. 3d at 299, quoting People v. Free, 112 Ill. 2d 154, 168 (1986); see also People v. Robinson, 79 Ill. 2d 147 (1979); People v. Strohl, 118 Ill. App. 3d 1084 (1983). The per se conflict rule \u201c \u2018 \u201cis a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.\u201d \u2019 \u201d Coleman, 301 Ill. App. 3d at 299, quoting People v. Lawson, 163 Ill. 2d 187, 210 (1994), quoting People v. Gerold, 265 Ill. 448, 477 (1914). Whether two things are contemporaneous logically must be determined based upon the unique facts and circumstances of the given situation.\nIn the case at bar, the trial court concluded that a per se conflict of interest existed. We agree. The trial court based this conclusion on the fact that defense counsel\u2019s firm had previously represented Montez, the confidential informant concerning the facts alleged in this case. The trial court placed great significance on its understanding that there were similar competing interests at stake. In so ruling, the trial court commented as follows:\n\u201c[I]t is clear that the *** firm contemporaneously represented a potential State witness and Defendants in proceedings involving the facts of the instant case. It is well established that knowledge of one member of a law firm is imputed to other members of the firm. Conflicts of interest for one member extend to all members of a firm. People v. Dace, 153 Ill. App. 3d 891, 896.\nIt follows that since defense counsel\u2019s firm previously represented confidential informant Montez concerning the very facts alleged in this case, a per se conflict exists. People v. Flores, 128 Ill. 2d 66, 85.\nThus, the Court must examine whether the defendants have been made aware of the conflict and are able to knowingly waive their right to a conflict-free counsel.\n* * *\nUnder the circumstances of the instant case, similar competing interests are at stake. Although Defense counsel\u2019s firm no longer represents State witness Montez, the firm\u2019s representation included matters involving the very facts at issue in the case at bar. I place great significance on that.\n* * *\nTherefore, this court is greatly concerned the Defense counsel\u2019s cross examination might be subliminally restricted or limited in ways incapable of more accurately describing than just to so state.\nThis court is likewise concerned with the jury becoming aware of the fact that Defense counsel\u2019s firm previously represented the State witness and the appearance of impropriety, should the jurors become aware of Defense counsel\u2019s prior representation of a State witness in matters directly relating to the case at bar.\nFor all of those reasons, and after serious reflection, and consideration, this Court has determined that it is appropriate to grant the State\u2019s Motion to Disqualify *** the Defendants\u2019 attorney in this case. Motion to disqualify defense counsel is granted.\nWe defer to the trial court on the issue of the existence of the per se conflict. While \u201c \u2018[t]he *** Court must recognize a presumption in favor of petitioner\u2019s counsel of choice,\u2019 \u201d which \u201c \u2018may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict, the evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.\u2019 \u201d Holmes, 141 Ill. 2d at 223, quoting Wheat v. United States, 486 U.S. 153, 164, 100 L. Ed. 2d 140, 152, 108 S. Ct. 1692, 1700 (1988).\nWe must next address whether the per se conflict of interest, once identified, has been waived. A defendant may knowingly and intelligently waive an alleged conflict of interest. People v. Johnson, 322 Ill. App. 3d 117, 123 (2001), citing People v. Fife, 76 Ill. 2d 418, 424-25 (1979); United States v. Kladouris, 964 F.2d 658, 667 (7th Cir. 1992); Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990).\n\u201c[A] defendant who wishes to exercise the right to counsel of choice despite a conflict of interest must necessarily waive the right to effective assistance of counsel.\u201d Holmes, 141 Ill. 2d at 222. \u201c[A] trial court must pass on the issue of whether to allow waiver of a conflict of interest \u2018not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.\u2019 \u201d Holmes, 141 Ill. 2d at 223, quoting Wheat, 486 U.S. at 162, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699. \u201c[T]he Wheat Court concluded that a trial court \u2018must be allowed substantial latitude in refusing waivers\u2019 not only where an actual conflict exists, but also \u2018in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.\u2019 \u201d Holmes, 141 Ill. 2d at 223, quoting Wheat, 486 U.S. at 163, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699. In an instance like this, where the trial court must exercise discretion, a court of review will not find error or set aside a ruling of the trial judge unless there has been a clear abuse of discretion. Holmes, 141 Ill. 2d at 224.\n\u201cIt is well settled that trial courts must adequately inform defendants of a conflict\u2019s significance before any waiver of such a conflict can be accepted. A defendant must actually understand how the conflict could affect his attorney\u2019s representation, before his right to a conflict-free attorney can be knowingly waived.\u201d (Emphasis in original.) Coleman, 301 Ill. App. 3d at 301, citing Lawson, 163 Ill. 2d at 218. To that end, the trial court held the following discussion with Ortega on the record:\n\u201cTHE COURT: Let\u2019s start with Mr. Ortega. *** Sir, how old are you?\nMR. ORTEGA: 27\nTHE COURT: How far did you go in school?\nMR. ORTEGA: Graduated high school.\n* * *\nTHE COURT: Have you ever had any exposure, prior to this case, with the legal system?\nMR. ORTEGA: No.\nTHE COURT: So you have no legal training or knowledge, am I correct?\nMR. ORTEGA: No.\nTHE COURT: What is your understanding of what \u2014 you have been present for all of these hearings, am I correct?\nMR. ORTEGA: Yes.\nTHE COURT: Do you know what a conflict is? Do you know what these lawyers are talking about?\nMR. ORTEGA: Yes. I\u2019m understanding what they are saying.\nTHE COURT: What is your understanding?\nMR. ORTEGA: Well, that it could be some problems between me and Natal becoming, you know, Mr. Novelle, a lawyer, or we could have discussion between us during the trial or during the sentence that we were to have.\nTHE COURT: Do you understand Mr. Novelle\u2019s law firm previously represented an individual who is going to be a State\u2019s witness against you in this case?\nMR. ORTEGA: Yes.\nTHE COURT: You don\u2019t have a problem with that?\nMR. ORTEGA: No.\u201d\nWe are aware that this interchange between the trial court and Ortega took place after lengthy discussions between the trial court and Robert Novelle which were held on the record in front of Ortega himself. These discussions are too lengthy and involved to chronicle here; suffice it to say they support the conclusion that Ortega\u2019s choice of counsel was made with knowledge of the potential consequences. We find that Ortega, opting at his peril to retain counsel in spite of a conflict of interest, made a knowing and-intelligent waiver of potentially conflicted representation by attorney Novelle in this case. For the trial court to have held otherwise disregards Ortega\u2019s professed choice of counsel. Whether it was a mistake to waive the conflict of interest is something that will become clear in the fullness of time as the trial progresses. In light of the clear waiver by Ortega, it was an abuse of discretion for the trial court, depending on one\u2019s perspective, to either stop him from making his constitutional choice or try to save him from himself.\nThis case is limited to these facts. It is not a posttrial petition by a defendant claiming inadequate representation by counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This is a pretrial motion by the State intended to get a seasoned legal adversary out of the case where his client wants to stick with his chosen lawyer after clearly being warned by the trial court. It is also a case where the State would be obligated to divulge any \u201chelpful\u201d information to the defendant that it also knows without regard to who represents this defendant. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Under these facts and circumstances, the trial court should have denied the State\u2019s petition.\nCONCLUSION\nIn light of the foregoing, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.\nJudgment reversed; cause remanded.\nCAMPBELL, EJ., concurs.", "type": "majority", "author": "JUSTICE REID" }, { "text": "JUSTICE QUINN,\ndissenting:\nI dissent. In reversing the trial court\u2019s well-reasoned decision, the majority find that the trial court\u2019s holding \u201cdisregards Ortega\u2019s professed choice of counsel.\u201d 329 Ill. App. 3d at 123. In support of this pronouncement, the majority rely almost entirely upon cases which addressed claims of ineffective assistance of counsel. This approach has been squarely rejected by our supreme court. In People v. Holmes, 141 Ill. 2d 204, 222 (1990), as here, the defendant appealed on the basis of a claim of denial of counsel of choice. In rejecting defendant\u2019s claim, our supreme court held: \u201c[W]e think it is obvious that different standards of review apply to claims of ineffective assistance and to claims of denial of counsel of choice. Because the standards in ineffective assistance claims are inapplicable to the case at bar, we now turn to discussions of the standard that does apply to defendant\u2019s claims.\u201d 141 Ill. 2d at 220.\nThe court then interpreted the holding in Wheat v. United States, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988). There, the defendant sought a substitution of counsel in order to be represented by the same attorney who represented two other defendants in the same drug-conspiracy case. After a hearing, the trial court denied the request for substitution, stating that an irreconcilable conflict of interest existed which could not be waived. The Ninth Circuit Court of Appeals affirmed, and the defendant appealed. The Supreme Court also affirmed, holding:\n\u201cThe District Court must recognize a presumption in favor of petitioner\u2019s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.\u201d Wheat, 486 U.S. at 164, 100 L. Ed. 2d at 152, 108 S. Ct. at 1700.\nIn following Wheat, our supreme court observed:\n\u201c[A] trial court must pass on the issue of whether to allow waiver of a conflict of interest \u2018not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.\u2019 (486 U.S. at 162, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699). For this reason, the Wheat Court concluded that a trial court \u2018must be allowed substantial latitude in refusing waivers\u2019 not only where an actual conflict exists, but also \u2018in the more common cases where a potential for conflict exits which may or may not burgeon into an actual conflict as the trial progresses.\u2019 (486 U.S. at 163, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699).\u201d (Emphasis added.) People v. Holmes, 141 Ill. 2d at 223.\nIn Holmes, the defendant was charged in 1982 with an armed robbery that had taken place in 1980. The State filed a motion to remove Holmes\u2019 attorney, Leo Holt, from the case because of a conflict of interest. In 1984, a hearing was conducted at which it was determined that Holt had represented the State\u2019s primary witness and defendant\u2019s codefendant, Ulrich Williams, on an armed robbery charge in 1972 and in a stolen car case in 1977 or 1978. Attorney Holt testified at the hearing that he had conversations with Williams some time in the previous five years and in those conversations he received information that was covered by the attorney-client privilege.\nThe supreme court affirmed the trial court and appellate court in granting the State\u2019s motion to remove Holt. \u201cThe State also has a right to have defendant represented by counsel who would not cross the bounds of propriety by cross-examining a critical State witness regarding matters which were the subject of a prior attorney-client relationship.\u201d Holmes, 141 Ill. 2d at 226. The court continued: \u201c[A]s the trial court noted, the State has a right to fair trial. Defendant may have wanted Holt to represent him precisely because of Holt\u2019s relationship with Williams. Holt no doubt knew more about Williams than a lawyer with no prior connections with Williams. This knowledge potentially would have given defendant an unfair advantage. See United States v. O\u2019Malley, (7th Cir. 1986), 786 F.2d 786, 790-91; United States v. James, (2nd Cir. 1983) 708 F.2d 40, 45.\u201d Holmes, 141 Ill. 2d at 227.\nThe supreme court also found that the trial court properly took into account the probability that, had the court accepted defendant\u2019s waiver of conflict-free counsel and had defendant then been convicted, defendant would have appealed, claiming ineffective assistance of counsel based on the conflict of interest. The supreme court also acknowledged the trial court\u2019s concern with the appearance of impropriety, \u201cshould the jurors become aware, as they undoubtedly would, of Holt\u2019s prior representation\u201d of Williams. Holmes, 141 Ill. 2d at 226.\nThe facts in the instant case provide much more support for the trial court\u2019s refusing to accept defendant\u2019s waiver than did the facts in Wheat and Holmes. As pointed out by the majority, Donald Novelle represented the State\u2019s primary witness, Montez, at the time Montez was \u201corganizing the cocaine purchase from which Ortega now appeals.\u201d 329 Ill. App. 3d at 114. Donald Novelle allegedly learned from Montez that his firm\u2019s client, Eugenio Natal, was involved in this cocaine purchase but he would not be charged. Donald Novelle represented Montez in his efforts to compel the Metropolitan Enforcement Group to abide by their agreement to give Montez consideration, in the form of a lesser sentence on pending charges, for his help in this case. Montez still owes fees to the Novelle firm for their representation in this matter. Donald Novelle told the trial court that he could freely discuss Montez\u2019 cases with his brother, Robert Novelle, who represented Natal and Ortega.\nIn addition to Holmes, in People v. Flores, 128 Ill. 2d 66, 85 (1989), and People v. Woidtke, 313 Ill. App. 3d 399, 411 (2000), the courts held that when courts review claims of conflict of interest based on the prior representation of a prosecution witness (Flores) or a different suspect (Woidtke), they should consider whether the attorney acquired privileged information from this prior client.\nIn People v. Fife, 76 Ill. 2d 418, 425 (1979), our supreme court found that there is a conflict of interest when one member of a law firm represents a criminal defendant and another member of the firm \u201chas an affiliation with the Attorney General,\u201d even if that affiliation only involves workmen\u2019s compensation matters. Consequently, due to Donald Novelle\u2019s representation of Montez, all members of the Novelle firm should be disqualified from representing Ortega and Natal.\nThe majority hold that \u201c[a] defendant may knowingly and intelligently waive an alleged conflict of interest.\u201d 329 Ill. App. 3d at 121. While this may be true, the conflict of interest in this case is not alleged, it is per se and actual. The majority cite People v. Johnson, 322 Ill. App. 3d 117 (2001), People v. Fife, 76 Ill. 2d 418 (1979), United States v. Kladouris, 964 F.2d 658, 667 (7th Cir. 1992), and Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990), as support. All four of these cases involved claims of ineffective assistance of counsel rather than claims of denial of counsel of choice. Consequently, per People v. Holmes, 141 Ill. 2d at 222, they are inapplicable to this case.\nLike the holding in Fife, the holding in Sims does not provide support for the majority\u2019s position. The defendant in Sims was charged with murdering two of her children. Her trial attorney also represented her husband, who was also a suspect in the case. The defendant had told the police and the trial court that her husband had nothing to do with the murders. In spite of this, appellate counsel raised conflict of interest as an issue. In rejecting this argument, the appellate court said \u201cthe interests of a defendant and of another suspect can often remain entirely compatible. As long as their interests remain constant, counsel can represent both ***. Should their interests ever diverge, counsel would be obliged to withdraw from the representation.\u201d People v. Sims, 322 Ill. App. 3d at 414. Clearly, Montez\u2019 interests have diverged from the interests of Ortega and Natal. Consequently, the Novelles had an obligation to withdraw.\nI also disagree with the majority\u2019s finding that defendant knowingly waived his right to conflict-free representation. When the trial court asked defendant \u201cWhat is your understanding?\u201d of this issue, defendant replied:'\u201cWell, that it could be some problems between me and Natal becoming, you know, Mr. Novelle, a lawyer, or we could have discussion between us during the trial or during the sentence that we were to have.\u201d This is gibberish and in no way shows that defendant actually understood \u201chow the conflict could affect his attorney\u2019s representation\u201d as required by People v. Coleman, 301 Ill. App. 3d 290, 301 (1998).\nIn Holmes, our supreme court noted that \u201cthe Seventh Circuit Court of Appeals has rejected a per se disqualification rule, even where an actual conflict exists, in favor of a balancing test. O\u2019Malley, 786 F.2d at 790.\u201d People v. Holmes, 141 Ill. 2d at 228. The majority say that Ortega is \u201copting at his peril to retain counsel in spite of a conflict of interest\u201d (329 Ill. App. 3d at 122-23) and \u201cWhether it was a mistake to waive the conflict of interest is something that will become clear in the fullness of time as the trial progresses\u201d (329 Ill. App. 3d at 123). Ortega is not opting to retain Novelle at his peril; this court is allowing Ortega to retain Novelle at the peril of the State\u2019s right to a fair trial, Montez\u2019 right to nondisclosure of privileged information given to his attorney, and the trial court\u2019s right to rely upon the clear precedent of our supreme court. One does not need to await the fullness of time to see that a mistake is being made.", "type": "dissent", "author": "JUSTICE QUINN," } ], "attorneys": [ "Serpico, Novelle & Navigato, Ltd., of Chicago (Robert A. Novelle and Timothy R. Roellig, of counsel), for appellants.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Campos, and Tracey Annen, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVARO ORTEGA et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201499\u20141761\nOpinion filed March 29, 2002.\nQUINN, J., dissenting.\nSerpico, Novelle & Navigato, Ltd., of Chicago (Robert A. Novelle and Timothy R. Roellig, of counsel), for appellants.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Campos, and Tracey Annen, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0114-01", "first_page_order": 132, "last_page_order": 145 }