dissenting:
I have expressed my views on the subject of representation of multiple co-defendants by separate attorneys from a public defender’s office and the so-called rule of “per se” conflict of interest in People v. Meng, 54 Ill. App. 3d 357, 369 N.E.2d 549 (5th Dist. 1977). I would like to amplify briefly my opposition to the blind, unthinking application of a “per se” rule.
In the first place, the expression “per se” conflict of interest is an unfortunate one; it is devoid of content and bars legal analysis of the actual problem before the court in these cases of representation of multiple co-defendants by a single lawyer, or two or more affiliated lawyers, that is, members of the same law firm or assistant public defenders in one public defender office; that is the problem of ineffective assistance of counsel. Note that in none of the cases cited as authority for this “per se” rule is there present any suggested or demonstrated ineffective representation by counsel, or any suggestion or demonstration that the guilty verdict or verdicts would have been otherwise had other counsel been provided.
The seminal case on conflict of interest, in reality ineffective assistance of counsel is Glosser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942). There the Supreme Court required a showing of actual ineffective representation or prejudice arising from the alleged conflict of interest. The court disavowed the “per se” rule. Nothing in the recent case of Holloway v. Arkansas, (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, indicates a departure from the rule of Glasser. The dissent questions whether the court is adopting the “per se” rule, but it is clear to me that it did not as the facts fairly clearly demonstrate ineffective representation where one attorney was required to represent three co-defendants. As trial counsel stated, he was barred from furnishing effective representation to any of the defendants as he was precluded from cross-examination of any defendant for fear of developing evidence adverse to the remaining defendants. He stated to the court in advance of trial that he was possessed of certain confidential information that would restrict his ability to cross-examine certain of the defendants, but the trial court never made any inquiry into the nature of counsel’s apprehension and summarily rejected his motion to withdraw.
The cases repeatedly cited as authority for the “per se” rule do not, in my opinion, stand as authority for the rule. Each involves a violation of the Code of Professional Conduct promulgated by the American Bar Association and the Illinois Code of Professional Responsibility adopted by the Illinois Bar Association or involves the appearance of impropriety on the part of counsel. Thus in People v. Ware, 39 Ill. 2d 66, 233 N.E.2d 421 (1968), and People v. Johnson, 46 Ill. 2d 266, 265 N.E.2d 869 (1970), the court was concerned with the appearance of ethical impropriety where a co-defendant, represented by a single, court-appointed attorney pleaded guilty, receiving favorable treatment, and then testified against a defendant who was represented by the same appointed attorney. Counsel was obviously placed in an ambivalent position with regard to attacking the truthfulness of his client, the co-defendant. While the court spoke of conflict of interest, none was articulated, nor did the court articulate any rule as the basis for its decision which could be applied on a consistent basis in future cases. Both cases suggest the possibility of a violation of the attorney-client communication privilege; although, no violation was demonstrated.
In People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441 (1968), appointed counsel was a member of a law firm that represented the victim of the crime charged against the defendant. The court condemned the dual representation by counsel. The same issue was present in People v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67 (1977), and People v. Meyers, 46 Ill. 2d 149, 263 N.E.2d 81 (1970). In People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977), defendant was represented by an assistant public defender who had appeared in opposition to his client as an assistant state’s attorney. No actual conflict of interest was demonstrated, but the court reasoned that counsel might have been subliminally subject to subtle influences that might deprive his client of effective representation. The Canons of the Illinois Code of Professional Responsibility proscribe dual representation of conflicting interest and were cited with approval in In Re Williams, 57 Ill. 2d 63, 309 N.E.2d 579 (1974). I find none of the conduct of counsel condemned in these cases present here. As I noted in Meng, no Illinois Supreme Court case holds that assistant public defenders have no independent legal existence apart from the duly appointed public defender. The record belies the fiction that Spicer was in legal contemplation represented by the public defender, not assistant public defender Hay as it is apparent that Spicer received vigorous, independent representation from Hay. There is no suggestion or evidence that his judgment was affected by anything Wharton had done in his representation of Phillips.
While the manner of offering Phillips’ testimony was unusual, I do not find it an error of such magnitude, if indeed it was error at all, to require reversal. I do not understand that the statement was taken to the jury room, only read to the jury.
Phillips adopted the statement as his testimony; it was not a “consistent” or “inconsistent” statement. He was subject to cross-examination and was under oath. Most writers condemn hearsay evidence because it is not subject to cross-examination. (5 Wigmore, Evidence §1361 et seq. (Chadboum rev. ed. 1974).) Phillips was available for cross-examination. The Illinois Supreme Court has stated that the opportunity for cross-examination is the true test of hearsay. (People v. Carpenter, 28 Ill. 2d 116, 190 N.E.2d 738 (1963).) In any event, I would consider the error harmless considering the abundance of evidence of defendant’s guilt.