dissenting:
This case presents the simple issue of what happens when Rule 711 is violated due to the failure to obtain the required written consent of the person on whose behalf the law student was acting. Resolving this issue requires that we interpret our own rules. In so doing, the court once again harrumphs the familiar edict that its rules “are not mere suggestions” and that “[i]ndeed, they have the force of law.” 237 Ill. 2d at 294; see also People v. Glasper, 234 Ill. 2d 173, 189 (2009) (addressing what happens when a trial judge does not permit voir dire questioning as required under Rule 431). Those familiar with this court’s other, recent interpretations of its own rules will recognize what comes next: an analysis that will actually strip Rule 711 of this “force of law,” rendering it nothing more than the “mere suggestion” that it is not supposed to be. The last most recent example of this edict-invalidating analysis came in People v. Glasper. There, the court’s answer to what happens when Rule 431 is violated was the same as here: nothing. These kinds of decisions not only undermine the force of our rules, they erode respect for judicial decisions. After all, how many times can this court continue to say “Do as I say, not as I do” before no respect remains? The analysis offered by the court in these consolidated appeals is problematic for a number of reasons. In the Smith appeal, which is the easier case of the two, the court fails to give effect to the consent requirement of Rule 711, thereby rendering that portion of the rule mere surplus-age. In the juvenile case, the court fails to even consider whether the rule has any application in juvenile proceedings. I therefore respectfully dissent.
This court promulgated Rule 711 in May 1969, “in response to the increased interest in clinical legal experience which began to be felt by law students and law faculties ***** an increased interest which fit nicely with the growing demands being placed on the judicial system by the need to provide for the representation of indigents” in the wake of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). Ill. Ann. Stat., ch. 110A, par. 711, Historical & Practice Notes, at 592 (Smith-Hurd 1985). The court’s reference to providing the right to counsel for indigents indicates that, in criminal cases, this court was aware that Rule 711 would impact the sixth amendment’s right to counsel.2
A criminal defendant’s constitutional right to counsel is multifaceted. On the one hand, it includes the right to competent counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). On the other hand, it allows a defendant the ability to participate in and make decisions concerning his defense, including the right to waive counsel. Faretta v. California, 422 U.S. 806, 821, 45 L. Ed. 2d 562, 574, 95 S. Ct. 2525, 2534 (1975); see also People v. Cox, 12 Ill. 2d 265, 270 (1957) (acknowledging that under both the federal and Illinois constitutions, “an accused may likewise waive his right to representation by one licensed to practice law”). This court has held that “counsel” for purposes of the sixth amendment is not a mere formality; it means that only those persons licensed under this court’s rules to practice law will be permitted to defend a criminal defendant in our courtrooms. Cox, 12 Ill. 2d at 269. That counsel must be licensed is critical. In fact, the familiar two-pronged ineffective assistance of counsel standard announced in Strickland was predicated on the presumption that decisions made by an attorney, duly licensed and admitted to practice under state rules, are legitimate matters of trial strategy and thus are subject to highly deferential judicial scrutiny, free of the “distorting effects of hindsight.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Rule 711 was designed, then, not only to ensure that the constitutional rights of those who receive student representation are protected, but also to avoid abuses by them. Relevant here is subsection (c), which provides the following:
“Under the supervision of a member of the bar of this State, and with the written consent of the person on whose behalf he/she is acting, which shall be filed in the case and brought to the attention of the judge or presiding officer, an eligible law student or graduate may render the following services:
*** He/She may appear in the trial courts and administrative tribunals, subject to the following qualifications:
(i) Appearances, pleadings, motions, and other documents to be filed with the court may be prepared by the student or graduate and may be signed by him with the accompanying designation ‘Senior Law Student’ or ‘Law Graduate’ but must also be signed by the supervising member of the bar.
(ii) In criminal cases, in which the penalty may be imprisonment, in proceedings challenging sentences of imprisonment, and in civil or criminal contempt proceedings, the student or graduate may participate in pretrial, trial, and posttrial proceedings as an assistant of the supervising member of the bar, who shall be present and responsible for the conduct of the proceedings.
(iii) In all other civil and criminal cases the student or graduate may conduct all pretrial, trial, and posttrial proceedings, and the supervising member of the bar need not be present.” (Emphasis added.) 210 Ill. 2d R. 711(c).
The plain language Rule 711 requires specifically that written consent be obtained and that it “shall” be filed in the case. The consent requirement of the rule, in conjunction with the presence of a supervising attorney, are the preconditions to the student’s participation in the case. Without written consent, spread of record, and the presence of the supervising attorney, the student is unauthorized to practice law in Illinois courtrooms.
The consent portion of the rule ensures, particularly in criminal cases where the right to counsel is constitutionally guaranteed, that a litigant knows and agrees to the proposition that someone who is not licensed to practice law will be participating in the case on his behalf. Rule 711 allows the litigant a choice — he can agree to the student representation or refuse it. It is not forced on him. The consent portion of the rule therefore serves a purpose — its requirement that written consent be made a part of the record serves to safeguard against litigants, particularly criminal defendants, from later arguing on appeal that they did not know they were being represented by students or did not consent to such representation. The agreement of a criminal defendant that a law student, under the direct supervision of counsel, could discharge some or all of counsel’s duties would constitute a partial waiver of the right to competent (licensed) counsel that is guaranteed by the sixth amendment. For that reason, I would hold that the violation of the consent portion of Rule 711 requires a new trial since the assistance of counsel is among those “ ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Holloway v. Arkansas, 435 U.S. 475, 489, 55 L. Ed. 2d 426, 437, 98 S. Ct. 1173, 1181 (1978), quoting Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827-28 (1967).
My position is not new. Prior to the appellate court’s action here in Smith, that was the law in Illinois. For example, in In re Moore, 63 Ill. App. 3d 899 (1978), a new trial was ordered because the record failed to disclose any affirmative signal that either the respondent or the trial judge was aware of the law student’s 711 status. The appellate court specifically emphasized that “[n]o written consent form by respondent appear[ed] in the record.” Moore, 63 Ill. App. 3d at 904.3 In People v. Schlaiss, 174 Ill. App. 3d 78 (1988), the court reversed the defendant’s conviction because he had not consented to representation by a law student and there was insufficient evidence in the record to show that the defendant even knew he was being represented by a law student.
I note, too, that courts from other jurisdictions have also held that lack of consent is grounds for reversal. For example in People v. Miller, 89 Cal. App. 3d Supp. 14, 152 Cal. Rptr. 707 (1979), the California Court of Appeals ordered a new trial because the record contained no written consent from the defendant allowing a law student to discharge the duties that a licensed attorney would normally do during the trial. The court specifically noted that allowing a law student to take over various portions of the trial was, in effect, a partial waiver of the defendant’s sixth amendment right to counsel. Similarly, in In re C.B., 546 So. 2d 447 (Fla. App. 1989), the Florida Court of Appeals reversed based on the lack of direct evidence that the respondent had consented to the representation of a student intern. Although the State argued that the intern had informed the respondent of her student status, the court found that to be “no substitute” for proof in writing of actual consent to the representation. C.B., 546 So. 2d at 448. See also In re L.S., 560 So. 2d 425 (Fla. App. 1990) (reversing based on lack of written consent without addressing whether the intern whs supervised); In re A.R., 554 So. 2d 640 (Fla. App. 1989) (reversing for lack of consent waiver without addressing the extent to which the intern had been supervised).
Not all cases, however, require per se reversals. Those cases which have not ordered new proceedings did so because evidence in the record established that the defendant was aware of the student’s status. See State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (1994); Jones v. State, 902 P.2d 686 (Wyo. 1995). That is not the case here. In fact, my research indicates only one jurisdiction, Louisiana, which regards the absence of required consent as cavalierly as the court does here today. See State v. Edwards, 351 So. 2d 500 (La. 1977).
Like the court’s pronouncements that its rules are not mere suggestions, the court is fond of saying that its rules are the equivalent of statutes and are to be interpreted as such. 237 Ill. 2d at 294. That, of course, would mean that all of Rule 711’s terms are to be given the effect of their plain, ordinary meaning. So, where is the meaning given to the words “written consent”? Surely, when this court promulgated the rule there was a purpose behind the words it used. Today’s opinion omits any reference as to what that purpose may be. Instead, although the court finds that Rule 711 was violated in both cases by the failure to obtain the requisite written consent, that does not end its “inquiry.” 237 Ill. 2d at 294-96. It goes on to hold that even though law students — like those in these cases — who have not complied with the requirements of Rule 711 are “not counsel for constitutional purposes” (237 Ill. 2d at 296), the right to counsel has not been denied because a supervising attorney is present. It is the presence of the supervising attorney, according to the court, that preserves the right to counsel under the sixth amendment.41 strongly disagree.
The presence of the supervising attorney has nothing to do with whether a litigant consented to have a student participate in his trial. In criminal cases, the presence of the supervising attorney has nothing to do with whether a defendant has agreed to waive his right to have a licensed attorney participate in all facets of his defense. Thus, the court has written out the consent provisions of Rule 711. Under today’s analysis, a law student and the supervising licensed attorney could work in a case, and the defendant would have no say in the matter since a defendant does not have the right to choose one court-appointed attorney over another. Clearly, criminal defendants with monetary resources will not be put in this situation since Rule 711 applies only to law offices of the state and its subdivisions, such as the public defender’s office, which supply appointed counsel. Those with money will retain and pay a fee to a licensed member of the bar. Only the indigent, then, will face the prospect of having law students unwittingly thrust upon them through appointed counsel. This leads, in my view, to potential problems of inequality of representation based upon a defendant’s economic status.
Turning to the consolidated matters here, in defendant Smith’s case, the violation of the rule is clear. The record does not contain Smith’s written consent to the student’s representation, and the transcript does not indicate that the trial judge was made aware that a 711 student was participating in the suppression hearing. I would therefore grant Smith a new trial.
Respondent Denzel W’s case is more problematic. By failing to address the consent portion of the rule, the court bypasses the more fundamental question of whether the rule even applies to juvenile proceedings. Rule 711 states that eligible students may participate in civil and criminal matters. The rule does not specifically refer to juvenile proceedings, which are neither criminal nor civil proceedings. See In re W.C., 167 Ill. 2d 307, 326 (1995) (recognizing that a juvenile proceeding is “nonadversarial and designed to further the best interests of the minor”).5
Assuming Rule 711 does apply to juvenile proceedings, this court has incorporated many of the constitutional requirements of a criminal trial into juvenile delinquency proceedings, including the right to counsel. In re A.G., 195 Ill. 2d 313, 319 (2001). The right to counsel, as I have previously explained, includes the right to waive attorney representation. Rule 711 states that consent to the student representation must be obtained from the party on whose behalf the student will act. How should the consent contemplated in Rule 711 be given in juvenile proceedings? A juvenile may not understand the implications of having a law student take on some advocate roles in the trial; therefore, it would seem that the juvenile’s parent or guardian would need to be the one to give the requisite consent under the rule. Again, however, because the court summarily renders the consent portion of Rule 711 mere surplusage, it dodges the questions surrounding whether a juvenile can even give the consent that Rule 711 would require if it is indeed applicable to juvenile proceedings. In any event, no written consent appears in the record, signed by either the respondent or his parents, and reversal would be required on that basis if the rule is applicable in such proceedings.
Parenthetically, the court’s treatment of the juvenile case warrants criticism for a further reason. The court states that the appellate court is to determine whether the “trial court’s actions *** resulted in respondent’s receiving ineffective assistance of counsel.” 237 Ill. 2d at 300. I am not sure what that means — Does the appellate court have to see if the trial court’s action violated Strickland? If so, how? By not allowing the supervising attorney to take over the redirect examination of Tequila, the trial court effectively denied respondent the benefit of the supervising attorney’s expertise, a benefit that Rule 711 clearly contemplates will not be denied even though a student may be assisting in the case. By not letting the supervising attorney actually “supervise” the student, the trial court violated Rule 711 and denied respondent his right to competent, licensed counsel during the trial proceedings. Neither the respondent nor his licensed attorney violated Rule 711 so the burden of establishing a Strickland violation should not be placed upon him on appeal. There is no reason for a remand under such circumstances.
Finally, I take issue with two other aspects of the court’s decision today. First, there is the court’s references to the supervising attorney as a kind of filter that prevents the 711 student from making mistakes. It is not always possible to glean from the transcripts the extent to which a supervising attorney can control the student’s words and actions. The transcript in the juvenile case reflects that even when a supervising attorney wants to take control, he might not be able to do so. More importantly, the immediate presence of an experienced, supervising attorney cannot always prevent or undue the harm caused by the unskilled student assistant, such as failing to lay the proper foundation for impeachment, asking an overbroad question on cross-examination, or clumsily handling the direct examination of a hostile or difficult witness. Applying the Strickland standard, with its strong presumption in favor of competence, will not always provide relief in such circumstances. As the dissenting justice in Perez noted, there “may be but one moment of time in the course of a trial when the right act, word or decision can be made and the case won. *** If that moment of opportunity passes, no amount of post-verdict advice to or critique of the law student’s performance will give solace to a defendant in prison.” Perez, 24 Cal. 3d at 151, 594 P.2d at 12, 155 Cal. Rptr. at 187 (Mosk, J., dissenting).
Second, there is the court’s references to the educational worth of Rule 711 for law students. 237 Ill. 2d at 293, 300. I understand this worth, but it has absolutely no bearing on this case. The only relevant inquiry is whether Smith and Denzel consented to the student’s representation, not what educational opportunity is offered by that representation.
JUSTICE BURKE joins in this dissent.
The rule itself provides that 711 students can only work in a “legal aid bureau, legal assistance program, organization, or clinic *** the office of the public defender; or *** a law office of the State or any of its subdivisions.” 210 Ill. 2d R. 711(b). While there are “law offices of the State” that serve in a prosecutorial capacity such as the Attorney General, the vast amount of offices that come under the rule’s purview are those that give assistance to the poor. Private law firms cannot have students work for them in the same capacity.
The court mischaracterizes Moore by implying that the appellate court’s holding was grounded upon the lack of supervision by a licensed attorney. 237 Ill. 2d at 298. The focus of the court’s holding in Moore was on the lack of consent and the lack of knowledge on the part of the trial judge.
In structuring its analysis, the majority relies in large part on People v. Perez, 24 Cal. 3d 133, 594 P.2d 1,155 Cal. Rptr. 176 (1979). Perez, however, is distinguishable because the record in that case contained a written consent form that was signed by the defendant. Finding the consent form valid, the court placed on defendant the burden of establishing that his consent to such representation had been unknowing. Since the defendant could not meet that burden, the student’s representation, in light of being supervised by licensed counsel, did not violate the defendant’s right to counsel. Moreover, the court held that the defendant’s written consent was sufficient to satisfy constitutional requirements. I note that the appellate court in Schlaiss specifically distinguished Perez on the basis that the California Supreme Court was not faced with the lack of written consent issue. Schlaiss, 174 Ill. App. 3d at 81.
I note that several of our sister states have specifically included juvenile proceedings in their student practice rules. See, e.g., Colo. Rev. Stat. 12—5—116.1 (2009); Ga. Sup. Ct. R. 91 (2009); Idaho Bar Comm’n R. 221; Mass. Sup. Jud. Ct. R. 3:03 (2009); Neb. Ct. R. §3 — 702; Ohio Rules for the Government of the Bar R. II; Oklahoma Supreme Court R. 7.7; Or. Bar Admission R. 13.10 (2009); Washington Supreme Court R. 9.