dissenting:
I respectfully dissent.
I agree with the majority on several points. One is the analytical framework for a trial court’s resolution of a pretrial motion by the State to disqualify defense counsel. There is a presumption in favor of counsel of choice, which must be respected unless there exists a “serious potential for conflict.” 209 Ill. 2d at 365. Even if there is a serious potential for conflict, a defendant might (as in the instant case) attempt to waive any conflict. If so, the court must evaluate whether that waiver sufficiently obviates the concerns raised by the potential conflict. Only if there is a serious potential for conflict, and no effective waiver, may the court grant the State’s motion and disqualify defense counsel.
I also agree with the majority that a waiver of conflict by all potential clients is not, without more, reason to overrule a trial court’s disqualification order. Even a waiver by all potential clients does not obviate two concerns potentially raised by conflicted representation of a criminal defendant: the State’s interest in a fair trial and the concern about appearances should the conflicted representation become known to the jury. 209 Ill. 2d at 364.
I nevertheless depart from the majority because the uncontroverted evidence at the hearing on the motion to disqualify establishes that Montez not only waived the conflict of interests but, more importantly, he also waived attorney-client confidentiality. The majority does not consider the difference between these two waivers. Accordingly, I shall attempt briefly to explain their salient distinguishing characteristics.
By waiving a conflict, a client acknowledges that the attorney does or may have a conflict of interests, but avows his preference for representation by that attorney regardless. This type of waiver is nothing more than a prospective relinquishment of the waiving party’s right to object to an impropriety in the proceedings. It does not purport to eliminate a conflict of interest. Rather, it is a statement by a client that he wishes the proceedings to continue notwithstanding any effect that the conflict of interests would have on him. Accordingly, the “serious potential for conflict” would still exist. Thus, the State’s interests in a fair trial and in avoiding the appearance of impropriety would still remain a valid basis for disqualification of counsel notwithstanding a client’s waiver of conflict.
I believe that a waiver of confidentiality is a much different matter, however. In the instant case, if Montez did indeed agree to waive attorney-client privilege with respect to anything he might have told Donald regarding this case, there would seem to be no conflict of interests to begin with. If Montez waived confidentiality, then Robert would have no “professional obligation to protect confidential information” (209 Ill. 2d at 365), because there would be no confidential information to protect — by his waiver, Montez would have rendered that information unconfidential. See United States v. Dalke, No. 02 CR 50078—5 (N.D. Ill. April 1, 2003) (“Because [attorney] does not currently represent [witness] and [witness] has voluntarily consented to waive any claim of privilege he has with respect to confidential information [attorney] may have acquired during the course of his prior representation of [witness], [attorney] no longer labors under any conflict of interest in using such information to cross-examine [witness]”). See also United States v. Oberoi, 331 F.3d 44, 49 (2d Cir. 2003) (“most authorities hold that an attorney may use the confidences of a former client to cross-examine that client if both the former and the current client consent”); Oberoi, 331 F.3d at 47, 51 (“the pertinent authorities likely would allow the [attorney] to continue to represent [his client] in the circumstances of this case,” where the former client who was a potential witness had consented to cross-examination “ ‘even if it reveals confidential information’ ’’).1 Cf. Holmes, 141 Ill. 2d at 226 (where defense counsel admitted that due to confidentiality concerns he would restrict cross-examination to matters of public record. Thus, there could be no conflict between that now nonexistent obligation on the part of Robert and “the interests of the defendants in thorough cross-examination’ ’).
Accordingly, if Montez waived attorney-client privilege with regard to anything he may have told Donald that bears on this case, then the circuit court would have abused its discretion if it had determined that there was “a potential conflict between Robert Novelle’s professional obligation to protect confidential information *** and the interests of the defendants in thorough cross-examination.” Thus — since this is the only “serious potential for conflict” which the majority identifies — the presumption in favor of counsel of choice should stand.
And the record clearly indicates that Montez did indeed waive attorney-client confidentiality:
“Q. [by the court] It’s your understanding if your client was brought in before me would tell me that he would have absolutely no problem at all with your firm divulging any information that would other wise be considered attorney-client privilege?
A. [by Donald Novelle] As it related to that transaction, Judge.
Q. To that transaction meaning this case present before me?
A. Yes.
Q. And that was done before Judge Fitzgerald?
A. Yes.”
This sworn testimony by Donald Novelle was uncontroverted, and nothing in the record suggests that the trial court disbelieved it. Although Montez was listed as a State’s witness — the majority notes that it is “clear[ ] that [Montez] is important to the prosecution’s case” (209 Ill. 2d at 363) — the State did not attempt to call Montez to rebut this testimony.
The standard of review provides no answer to my concerns. Although I agree with the majority that we must defer to the circuit court’s balancing of factors as well as its findings of fact, in the instant case the circuit court never found that there was a “serious potential for conflict.” Rather, although the circuit court cited Holmes, the court errantly decided the case based on its determination that there was a “per se” conflict — a concept which Holmes itself makes clear has no relevance to this case, as the majority notes (209 Ill. 2d at 364). Thus, we are not reviewing a circuit court factual finding that there was a “serious potential for conflict.” Rather, the majority concludes that the evidence “would also reasonably support” such a finding (if the circuit court had made such a finding, which it did not). In other words, we are not reviewing a conclusion which the circuit court did reach. Rather, in order to affirm the circuit court’s judgment, the majority states that because of our deferential standard of review we could uphold this factual finding if the circuit had reached it. I do not believe that it is appropriate to decide the case based on the standard of review, when the factual conclusion at issue — that the evidence supports a finding that there is a “serious potential for conflict” — is our own.
Moreover, even if a deferential standard of review did apply to hypothetical findings of fact, I do not see how we could affirm a finding that there was a serious potential for conflict between Robert’s confidentiality obligations and the defendants’ interest in cross-examination, in light of Donald Novelle’s explicit and uncontroverted testimony that Montez waived confidentiality. Nothing in the record indicates that the trial court did not believe this testimony, nor does the record give this court any reason to disregard it. This is especially true in light of the fact that Donald is an attorney, an officer of the court with ethical responsibilities. This court assumes that attorneys are retained only to serve their clients’ interests through ethical means, which surely would not include false testimony under oath. Moreover, it was the State’s burden on the motion to disqualify, and Montez is the State’s witness. If Donald’s testimony that Montez had waived confidentiality was untrue, the State could simply have put Montez on the stand — but the State did not do so.
The majority affirms the trial court’s decision to deny criminal defendants their counsel of choice based on its own independent conclusion that the evidence “would” support a factual finding which the trial court never made, notwithstanding uncontroverted sworn evidence by an officer of the court which would wholly contradict such a finding.
I respectfully dissent.
The Oberoi court ruled that counsel should be permitted to withdraw even though counsel could have continued with representation, given the circumstances of that case — counsel’s continued belief that withdrawal was most appropriate; the possibility that cross-examination could harm the witness in his still-pending sentencing hearing; the absence of evidence of tactical abuse by the government; and the absence of evidence that the current client was amenable to continued representation. Oberoi, 331 F.3d at 52.