dissenting:
I respectfully dissent from the majority opinion. One detective started one investigation against one defendant concerning one injury. Namely, on June 23, 2002, Detective Auguste started an investigation of one injury to defendant’s daughter. From this one investigation into this one injury, one office of the State generated two sets of charges: one civil, one criminal. The one office was the Cook County State’s Attorney’s office. The incriminating information developed in this one investigation would be used by this one office to further both its civil and criminal charges.
There is no way that defendant’s civil defense attorney could protect the rights of her client in the civil case without being present during the interrogations of the defendant in this investigation.
Fortunately, our supreme court had already recognized the need to protect the attorney-client relationship in the face of an opposing attorney’s investigation. That is the whole point behind our supreme court’s Rule of Professional Conduct 4.2.
As the majority noted, we interpret a supreme court rule, first and foremost, by looking at the plain meaning of its words. 384 Ill. App. 3d at 787, citing Roberts, 214 Ill. 2d at 116. Rule 4.2 states in relevant part:
“During the course of representing a client a lawyer shall not communicate *** on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter ***.” 134 Ill. 2d R. 4.2 .
The majority construes the words “in that matter” in isolation, without considering their context in Rule 4.2. The word “that” refers the reader back to a specific thing previously mentioned in the sentence, namely “the subject of the representation.” The word “that” means, among other things, “referring to a specific thing previously mentioned.” 17 Oxford English Dictionary 868-73 (2d ed. 1989).
When we apply the words of the rule to the facts of the case at bar, the result is clear. The defendant was “represented by another lawyer.” The prosecutors nonetheless questioned her about the “matter” or “subject” of “that” representation. The “subject” or “matter” about which the prosecutors questioned defendant was the injury that was the “subject” of the civil attorney’s appointment.
As the majority also notes, if the language of a rule is ambiguous, we interpret the rule in light of “the purposes of the rule, the evils sought to be remedied, and the goals to be achieved.” 384 Ill. App. 3d at 787, citing Brucker, 227 Ill. 2d at 513-14. The majority concludes that the purpose of Rule 4.2 is to foster public confidence in the legal profession and to protect clients from being tricked by an opposing lawyer into giving away his case. 384 Ill. App. 3d at 788.
Applying Rule 4.2 to this case furthers both of these goals. First, it is difficult to envision how public confidence will be fostered if the State can, with a sleight of hand, switch the labels on one investigation from civil to criminal and back again, to suit its needs. Second, while I do not mean to suggest that there was any trickery on the part of the prosecutors, there is also no question that the defendant gave away the civil case, without her civil attorney’s presence or consent. In addition, the defendant did not have the opportunity to obtain advice from her appointed civil attorney. Thus, application of the rule to this case furthers both of the purposes behind the rule.
By finding that the prosecutors had to contact defendant’s civil attorney before questioning defendant, I am not finding that the civil attorney represented defendant for purposes of the criminal case. The criminal and civil cases arose out of the exact same set of facts. Thus, any evidence developed in the criminal case could, and would, be used in the civil case against defendant. I find only that, in order to effectively protect defendant’s rights in the civil case, the civil attorney had to be present when the prosecutors questioned her client.
The majority relies heavily on Moreno, an Illinois Appellate Court case that found that the State could bring both criminal and civil charges arising out of the same set of facts. 384 Ill. App. 3d at 790; Moreno, 319 Ill. App. 3d at 452-53. Certainly, the Cook County State’s Attorney’s office can bring two sets of charges against one defendant for one injury. But in order to effectively represent her client, the civil attorney needs to be present when the State’s Attorney attempts to develop evidence to be used in her case. Thus, Moreno, does not dictate the outcome of this case because the issues are not the same.
In sum, Rule 4.2 should be applicable to this case because, first, application comports with the plain language of the rule; second, application furthers the purposes behind the rule; and third, Moreno, the case relied upon heavily by the majority, is inapposite. 384 Ill. App. 3d at 790; Moreno, 319 Ill. App. 3d at 452-53. For these reasons, I would affirm the trial court’s ruling, and thus I must dissent.