                                  Illinois Official Reports

                                         Appellate Court



                             People v. Shepherd, 2015 IL App (3d) 140192



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      CHRISTIAN L. SHEPHERD, Defendant-Appellee.


District & No.               Third District
                             Docket No. 3-14-0192


Filed                        February 11, 2015


Held                         In a prosecution for solicitation of murder for hire where defendant
(Note: This syllabus         filed a motion to dismiss the indictment or to suppress evidence the
constitutes no part of the   State allegedly obtained by taking advantage of an attorney’s lapse in
opinion of the court but     ethical judgment when the attorney consulted with defendant about
has been prepared by the     defendant’s case but was not retained by defendant, and defendant’s
Reporter of Decisions        motion to suppress the contested evidence was granted in part and the
for the convenience of       State filed a certificate of impairment and an interlocutory appeal
the reader.)                 challenging the trial court’s ruling, the appellate court reversed the
                             trial court’s ruling and remanded the case for further proceedings on
                             the grounds that defendant failed to establish that the attorney ever
                             received information that could be significantly harmful to defendant
                             or that the two matters at issue were the same or similar.



Decision Under               Appeal from the Circuit Court of Will County, No. 10-CF-1029; the
Review                       Hon. Edward A. Burmilla, Jr., Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               James Glasgow, State’s Attorney, of Joliet (Judith Z. Kelly (argued),
     Appeal                   of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                              People.

                              Steven Varel (argued), of State Appellate Defender’s Office, of
                              Ottawa, for appellee.



     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Justices Lytton and O’Brien concurred in the judgment and opinion.




                                               OPINION

¶1         Defendant, Christian L. Shepherd, was charged with solicitation of murder for hire (720
       ILCS 5/8-1.2(a) (West 2010)). During pretrial proceedings, he filed a motion to dismiss the
       indictment or to suppress evidence that the State had allegedly obtained by taking advantage
       of a lapse in ethical judgment by an attorney that defendant had consulted with about the case
       but had not retained. After a hearing, the trial court granted the motion in part and suppressed
       the contested evidence. The State filed a certificate of impairment and brought this
       interlocutory appeal to challenge the trial court’s ruling. We reverse the trial court’s
       judgment and remand the case for further proceedings consistent with this opinion.

¶2                                               I. FACTS
¶3         On May 1, 2010, defendant was arrested and charged with aggravated criminal sexual
       assault (the sexual assault case). On May 4 and May 11, 2010, while defendant was in
       custody at the jail, he had two consultations by video with attorney Anthony Tomkiewicz
       about Tomkiewicz possibly representing defendant in the sexual assault case. Defendant had
       decided to retain Tomkiewicz and was going to have his father bring money into
       Tomkiewicz’s office to pay the retainer.
¶4         During or around that same time period, on or leading up to May 13, 2010, defendant was
       allegedly discussing plans with a fellow inmate, Franklin Bryant, to have Bryant kill some or
       all of the witnesses in the sexual assault case. Bryant was in jail at the time for a felony
       unlawful possession of a weapon charge (the weapons offense or the weapons case).
       Defendant gave Bryant a map to the residence of one of the intended victims and a written
       statement that Bryant was supposed to read while standing over the intended victims at the
       time of the killings. For carrying out the killings, Bryant was to receive at least $900.
¶5         Unbeknownst to defendant, however, Bryant turned the documents over to police officers
       at the jail and told the officers what defendant was planning. Bryant agreed to wear a wire so
       that the police officers could get defendant on tape discussing and planning the murders. A


                                                  -2-
     detective who was working on the case contacted Assistant State’s Attorney Michael Knick
     for his assistance in the matter.
¶6        Knick reviewed the State’s file on the sexual assault case. The file indicated that
     defendant was represented by the public defender’s office. Knick also reviewed the
     documents that Bryant had provided to the police. One of those documents, an inmate request
     form, indicated that in the weapons case, Bryant was represented by attorney Anthony
     Tomkiewicz, the same attorney that defendant was planning to retain in the sexual assault
     case. Knick contacted Tomkiewicz and asked him to come to his office to discuss
     Tomkiewicz’s representation of Bryant.
¶7        Tomkiewicz met with Knick later that day. Knick informed Tomkiewicz of the situation
     and told Tomkiewicz that Bryant wanted to wear a wire to obtain incriminating evidence
     against defendant. Knick did not know at the time that defendant had spoken to Tomkiewicz
     about possibly retaining Tomkiewicz as his attorney in the sexual assault case. When
     Tomkiewicz learned that defendant was the intended target of the wire, he told Knick that he
     had met with defendant about possible representation in the sexual assault case, that
     defendant was planning to retain him, but that defendant had not done so yet. Tomkiewicz
     told Knick further that based on the new information, he was not going to take defendant’s
     case and that he would have his office contact defendant’s father and tell him not to bring in
     the retainer. Tomkiewicz stated that Bryant had applied for a furlough so that he could see
     his dying mother and that the matter would be up in court the following day. Knick informed
     Tomkiewicz that the State would not object to Bryant’s furlough request and that Bryant
     could be fitted with a wire prior to going back into the jail. Knick instructed Tomkiewicz to
     speak to Bryant about wearing the wire and told Tomkiewicz that the State would obtain a
     court-authorized overhear while Bryant’s case was in court on his request for furlough.
¶8        The following day, Knick met with Tomkiewicz at the courthouse and told Tomkiewicz
     to talk to Bryant to make sure that Bryant was still willing to cooperate before they went
     before the judge with the eavesdrop request. Tomkiewicz did so, Bryant agreed to wear the
     wire, and the State obtained the court-authorized overhear. In court, the State did not object
     to Bryant’s furlough request. Bryant was released on furlough, and when he returned, he was
     fitted with a wire. After going back to the jail, Bryant obtained incriminating statements from
     defendant regarding defendant’s plan to have Bryant kill the witnesses in his sexual assault
     case.
¶9        On May 19, 2010, defendant was charged with several counts of solicitation of murder
     for hire (the solicitation case) in the instant case for his plan to have Bryant carry out the
     killings. During the pretrial proceedings in this case, defendant filed a motion to dismiss the
     indictment or, alternatively, to suppress the incriminating evidence that Bryant had obtained
     for the police. The motion was made as to both the sexual assault case and the solicitation
     case. In the motion, defendant cited Rule 1.18 of the Illinois Rules of Professional Conduct
     of 2010 (eff. Jan. 1, 2010) and alleged that Tomkiewicz owed a duty to defendant not to
     engage in an attorney-client relationship with Bryant when Bryant’s interests were materially
     adverse to defendant’s, even though no actual attorney-client relationship was formed
     between Tomkiewicz and defendant. Defendant alleged further that Tomkiewicz’s continued
     representation of Bryant after Bryant agreed to wear a wire against defendant constituted a
     violation of defendant’s sixth amendment right to effective assistance of counsel, a violation
     that the State was complicit in.

                                                -3-
¶ 10       A nonevidentiary hearing on defendant’s initial motion to dismiss and suppress was held
       in January 2013. After the arguments of the attorneys had concluded, the case was continued
       to another date for the trial court to render its decision. Prior to that time, Assistant State’s
       Attorney Knick had not disclosed to the defense or to other assistant State’s Attorneys
       involved in the case that he had met with Tomkiewicz prior to Bryant wearing the wire and
       that he had learned in that meeting that Tomkiewicz had consulted with defendant about
       Tomkiewicz possibly representing defendant in the sexual assault case. At the next court
       date, immediately before the trial court gave its decision, Knick disclosed that information to
       the trial court. Following the disclosure, the trial court made its initial ruling. As to the sexual
       assault case, the trial court suppressed the wire-recorded statements but denied suppression
       as to the documents that Bryant had obtained from defendant and had turned over to the
       police prior to Tomkiewicz’s meeting with Knick. As to the solicitation case, the trial court
       denied defendant’s motion without prejudice and gave defendant leave to file a second
       motion to dismiss or suppress in the solicitation case to add allegations regarding the
       information that had just been disclosed in court by Knick.
¶ 11       Defendant filed the second motion to dismiss or suppress in February 2013. The second
       motion contained many of the same allegations that were contained in the first motion but
       added new allegations to include the factual information that was disclosed in court by
       Knick. In the second motion, defendant again cited Rule 1.18 as the source of Tomkiewicz’s
       ethical violation. In addition, for the hearing on the second motion, defendant subpoenaed
       Tomkiewicz to testify.
¶ 12       Tomkiewicz filed a motion to quash the subpoena and for sanctions against defendant
       and defense counsel. Attached to the motion to quash was Tomkiewicz’s affidavit. In the
       affidavit, Tomkiewicz attested that: (1) he met with defendant at the jail twice by
       closed-circuit television to discuss defendant possibly retaining him in the sexual assault
       case; (2) at no time did defendant and Tomkiewicz discuss the facts of the sexual assault
       case; (3) defendant and Tomkiewicz only discussed what defendant’s charges were, what the
       law was in that area, what the possible sentences were, the criminal court process in general,
       the qualifications of Tomkiewicz and his firm, and the rate that Tomkiewicz charged for his
       services; (4) Tomkiewicz specifically instructed defendant, as he did with all his interviews
       and meetings at the jail’s video center, not to say anything about any of the facts of the case
       due to the lack of privacy at the center; (5) defendant agreed and complied with that
       instruction; (6) defendant informed Tomkiewicz that his family would contact Tomkiewicz
       to make arrangements to hire Tomkiewicz’s firm; (7) defendant and Tomkiewicz did discuss
       the fact that Bryant was a current client of Tomkiewicz’s firm as defendant and Bryant were
       housed in the same unit of the jail, were on friendly terms, and were both interested in the
       services of Tomkiewicz’s firm at the same time; (8) Assistant State’s Attorney Knick
       contacted Tomkiewicz on May 13, 2010, and asked Tomkiewicz to come to his office to
       discuss Tomkiewicz’s representation of Bryant in the weapons offense; (9) Tomkiewicz’s
       firm had already been retained by Bryant and were in the process of arranging an emergency
       furlough for the next day for Bryant to see his dying mother; (10) at that meeting, Knick
       informed Tomkiewicz, and Tomkiewicz learned for the first time, that defendant had
       solicited Bryant; (11) Tomkiewicz informed Knick that defendant was going to hire
       Tomkiewicz’s firm, but that now Tomkiewicz would have to decline; (12) Knick informed
       Tomkiewicz that Bryant had already agreed to wear a wire against defendant and that Bryant


                                                    -4-
       wanted to be released from jail once that was accomplished out of fear of retaliation from
       defendant; (13) Knick asked Tomkiewicz if he had any objection to law enforcement officers
       talking to Bryant about cooperating against defendant, and Tomkiewicz said that he did not
       as long as Bryant wanted to do so; (14) Knick never asked Tomkiewicz for his cooperation or
       involvement regarding any investigation or prosecution of defendant; (15) Knick informed
       Tomkiewicz that no specific promises were being made as to any disposition in Bryant’s
       case; (16) Tomkiewicz did not know the exact date and time that defendant solicited Bryant
       for a murder, only that it happened sometime after Tomkiewicz’s last communication with
       defendant and before Tomkiewicz’s meeting with Knick; (17) upon leaving the meeting with
       Knick, Tomkiewicz had his firm immediately contact defendant’s family and inform them
       that the firm would decline to represent defendant due to a potential conflict of interest and
       not to bring the firm a retainer; (18) Tomkiewicz had no further contact with defendant or his
       family; (19) Bryant did not agree to wear the wire after his court appearance on May 14,
       2010, but, rather, he had already resolved to do that on his own; (20) Tomkiewicz never
       represented defendant and Bryant in the same or a substantially related matter; (21)
       Tomkiewicz never learned any information about either defendant’s case or Bryant’s case
       that could be harmful to the other in any matter; (22) Tomkiewicz never shared any
       information about defendant and his case with Bryant or vice versa; and (23) neither
       Tomkiewicz nor his firm had any involvement in Bryant’s cooperation with law enforcement
       against defendant, nor did Tomkiewicz or his firm discuss the details of Bryant’s cooperation
       with law enforcement in any matter other than the fact that Bryant wanted to be released
       from jail after he wore the wire because he was afraid of retaliation from defendant and that
       Bryant hoped that he would be given some consideration in his pending case.
¶ 13       A hearing was held on Tomkiewicz’s motion to quash the subpoena and for sanctions
       against defendant and defense counsel. After arguments on the matter, the trial court denied
       the motion to quash the subpoena and for sanctions. In response to Tomkiewicz’s concerns
       over attorney-client confidentiality, the trial court found as part of its ruling that by calling
       Tomkiewicz as a witness, defendant would be waving his sixth amendment rights as to the
       confidentiality of his communications with Tomkiewicz. The trial court continued
       defendant’s subpoena of Tomkiewicz to the hearing date on the second motion to dismiss or
       suppress.
¶ 14       A hearing was held on the second motion to dismiss or suppress in February 2014. At the
       hearing, defendant first called the assistant State’s Attorney who had drafted the State’s
       response to the initial motion for some brief preliminary information, most notably, to
       confirm that the State had alleged in its response that the only way for the State to know that
       an attorney, such as Tomkiewicz, had consulted with a particular defendant, was for the State
       to search all of the jail records to make sure that no attorney had come in to see that
       particular defendant.
¶ 15       Defendant then called Assistant State’s Attorney Knick to the witness stand. Knick
       testified to many of the facts as set forth above. In addition to those facts, Knick stated
       because of Bryant’s agreement to wear the wire, the State’s Attorney’s office did not object
       to Bryant’s request for a furlough, which was contrary to the State’s usual procedure on
       furlough requests. As of the date of Knick’s testimony, Bryant’s case was still pending. He
       had pled guilty but had not been sentenced. Since that time, Bryant had picked up another
       case, a Class 4 felony possession of cocaine, and was out on bond on that case, which may


                                                   -5-
       have been another concession that was given to Bryant for wearing the wire in the
       solicitation case.
¶ 16       Knick testified further that on June 16, 2010, defendant was indicted in the solicitation
       case. Part of the evidence presented to the grand jury was that Bryant was wearing a wire
       which captured the incriminating statements made by defendant. Knick was aware of the
       allegation that the State had made in its response to defendant’s first motion to dismiss or
       suppress, which was drafted by a different assistant State’s Attorney, that the only way for
       the State to know that Tomkiewicz had consulted with defendant was for the State to search
       all of the jail records regarding defendant. Knick stated that he read the argument as a legal
       argument that was being made in response to certain paragraphs in defendant’s motion but
       acknowledged that he should have told the other assistant State’s Attorney at that time that he
       had met with Tomkiewicz and that he was aware that Tomkiewicz had consulted with
       defendant. Knick did not disclose that information to the other assistant State’s Attorneys
       involved in the solicitation case until about 10 or 15 minutes before he disclosed it in court
       and did not disclose that information to defense counsel at any point prior to that time.
       Before that point, Knick did not think that his meeting with Tomkiewicz was an issue in this
       case.
¶ 17       Knick initially testified that he contacted Tomkiewicz as a courtesy but acknowledged,
       after further questioning from the court, that he was required to call Tomkiewicz because he
       was going to try to work out some type of arrangement or deal to secure Bryant’s cooperation
       in the matter. According to Knick, Tomkiewicz did not say anything to Knick to encourage
       him to use Bryant in that capacity. Tomkiewicz did not reveal any of his discussions with
       defendant to Knick and specifically told Knick that he was not going to tell Knick anything
       that any of his clients and he had talked about. Prior to obtaining the overhear, Knick
       instructed Tomkiewicz to talk to Bryant and to make sure that Bryant was on board with
       cooperating. Tomkiewicz did so. On the eavesdrop application, Knick appeared before the
       judge with Bryant and with the police detective who was working on the solicitation case.
       Tomkiewicz was not present in the room at that time.
¶ 18       After Knick’s testimony, the defense rested. The defense did not call defendant to testify
       in the hearing on the motion. In addition, despite having overcome Tomkiewicz’s motion to
       quash the subpoena, the defense did not call Tomkiewicz to testify. The State also did not
       call, or seek to call, Tomkiewicz to testify at the hearing.
¶ 19       At the conclusion of the hearing, the trial court granted defendant’s second motion to
       dismiss or suppress in part and denied it in part. In so doing, the trial court found, among
       other things, that: (1) the State took advantage of Tomkiewicz’s ethical lapse, albeit to
       potentially save lives; (2) defendant was past the point of merely meeting with Tomkiewicz
       and was at the point where he was going to retain Tomkiewicz to represent him in the sexual
       assault case; (3) as soon as defendant’s name was interjected into the conversation between
       Knick and Tomkiewicz, the conversation should have come to a “screeching halt”; (4)
       incriminating information against defendant was gained by the State as a direct result of the
       ethical lapse on the part of Tomkiewicz; and (5) suppression of the evidence, rather than
       dismissal of the indictment, was the appropriate sanction because even without the
       improperly obtained evidence, there was sufficient properly obtained evidence presented to
       the grand jury to support the indictment. As a result of its findings, the trial court suppressed
       the wire-recorded statements in the solicitation case as well. Consistent with its ruling on the

                                                   -6-
       first motion to dismiss or suppress, the trial court did not suppress the documents that
       defendant provided to Bryant that Bryant turned over to the police (evidence obtained prior
       to Tomkiewicz’s meeting with Knick). The State filed a certificate of impairment and a
       notice of appeal in the instant case to challenge the trial court’s ruling.

¶ 20                                           II. ANALYSIS
¶ 21       On appeal, the State argues that the trial court erred in granting defendant’s motion to
       suppress the wire-recorded statements in the solicitation case.1 The State asserts that the
       motion to suppress should not have been granted because: (1) defendant failed to prove two
       of the elements necessary to show that a violation of Rule 1.18 occurred; and (2) even if an
       ethics violation did occur, suppression was not an appropriate remedy under the
       circumstances of this case. Regarding the first assertion–the lack of proof of a violation–the
       State contends that at the hearing on the motion, no evidence was presented to establish that
       Tomkiewicz used, revealed, or received confidential information that could be significantly
       harmful to defendant in the sexual assault case. According to the State, it was impossible for
       the trial court to even make that determination without first knowing what information was
       conveyed by defendant to Tomkiewicz during their video consultations at the
       jail–information that was never provided at the hearing in this case. The State contends
       further that defendant also failed to establish the “same or substantially similar” element of
       Rule 1.18 because the matter in which Tomkiewicz represented Bryant–the weapons offense
       case–was not the same or substantially similar to the matter about which Tomkiewicz
       consulted with defendant–the sexual assault case. In making that contention, the State argues
       for a narrow interpretation of the “same or substantially similar” language.
¶ 22       Regarding the second assertion–that suppression was not an appropriate remedy under
       the circumstances of this case–the State contends that there is no case law to suggest that an
       ethical violation by an attorney for one of the State’s witnesses makes a defendant’s
       voluntary incriminating statements to that witness inadmissible. The State points out that the
       purpose of the exclusionary rule is to deter police misconduct, not to deter the improper or
       unethical conduct of an attorney for one of the State’s witnesses. The State contends further
       that any alleged ethical violation by Tomkiewicz did not affect Bryant’s decision to wear a
       wire against defendant in this case because Bryant had already decided to do so before
       Tomkiewicz was even informed of the situation.
¶ 23       Defendant argues that the trial court’s ruling was proper and should be upheld. Defendant
       asserts first that this court should affirm the trial court’s ruling on a basis that was not
       considered by the trial court or argued by the State–that Tomkiewicz had an actual
       attorney-client relationship with defendant and that Tomkiewicz committed ethical violations
       of Rule 1.7 (conflict of interest rules as to current clients) and Rule 1.9 (attorney’s duties to a
       former client) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) when
       he represented both defendant and Bryant, who had conflicting interests. Defendant asserts
       further that the State took advantage of that ethical violation to secure incriminating evidence
       against defendant, even though the State knew of the attorney-client relationship between
       Tomkiewicz and defendant.

          1
           For the most part, from this point forward, we will refer to the motion as simply a motion to
       suppress.

                                                    -7-
¶ 24        Second, and in the alternative, defendant asserts that he presented sufficient evidence at
       the hearing on the motion to suppress to establish that a violation of Rule 1.18 occurred and
       that the trial court’s ruling to that effect was not against the manifest weight of the evidence.
       In making that assertion, defendant claims that he was not required at the hearing to reveal
       the confidential information that he communicated to Tomkiewicz during their consultations
       in order to prove that Tomkiewicz had violated Rule 1.18. As support for that assertion,
       defendant points to the language of the rule itself and states that nowhere in that language is
       such a requirement contained. Defendant suggests instead that a Rule 1.18 situation should
       be treated similarly to a Rule 1.9 situation where the trial court is allowed to infer that
       information “material to the matter” (specific language of Rule 1.9) was communicated to the
       attorney if, considering the services that the attorney rendered to the former client (specific
       language of Rule 1.9), the attorney ordinarily would have learned that type of information.
       Ill. R. Prof. Conduct (2010) R. 1.9 (eff. Jan. 1, 2010). Defendant contends that the same
       approach should be applied in the context of a Rule 1.18 situation and that the trial court in
       that situation should be allowed to infer that information that could be “significantly
       harmful” (specific language of Rule 1.18) to the prospective client (specific language of Rule
       1.18) was communicated to the attorney if, under the circumstances involved, the attorney
       would have normally received that type of information in his consultation with the
       prospective client. Ill. R. Prof. Conduct (2010) R. 1.18 (eff. Jan. 1, 2010). Defendant
       contends further that policy considerations favor the application of such an approach in a
       Rule 1.18 situation, especially in the context of a criminal case, where requiring a defendant
       to reveal confidential information that he had communicated to his attorney would raise
       serious concerns, would be fundamentally unfair, and would violate due process.
¶ 25        More specifically as to this particular case, defendant asserts that the evidence presented
       at the hearing was sufficient to show that an attorney in Tomkiewicz’s position would
       ordinarily have acquired confidential information that could be significantly harmful to
       defendant. According to defendant, an attorney in Tomkiewicz’s position who was
       contemplating representing a defendant in a criminal case would ordinarily discuss the facts
       of the case with the defendant because the attorney would need to know that information to
       decide whether to take the defendant’s case and how much to charge. Defendant continues
       further that learning the facts of the case would ordinarily include a discussion about the
       inculpatory and exculpatory evidence that existed and even, possibly, an admission of guilt.
       In the present case, such information could be significantly harmful to defendant not only in
       the sexual assault case, but in the solicitation case as well because of the close connection
       between the two cases (the solicitation case arose because defendant was allegedly planning
       to have the witnesses in the sexual assault case killed). In making that contention, defendant
       notes that the information contained in Tomkiewicz’s affidavit, which the State relies on in
       its argument on appeal, was never admitted into evidence during the hearing on either of the
       two motions to dismiss or suppress and that Tomkiewicz was never called to testify as a
       witness, even though the State had the ability to do so. Defendant asks, therefore, that we not
       consider Tomkiewicz’s affidavit in making our ruling on this issue.
¶ 26        Third, defendant asserts that contrary to the claim of the State, the evidence presented at
       the hearing on the second motion to dismiss or suppress was also sufficient to prove the same
       or substantially similar element of Rule 1.18. In making that assertion, defendant suggests a
       broader interpretation of the “same or substantially similar” language than is suggested by


                                                   -8-
       the State. Defendant contends that the “same or substantially similar” element was satisfied
       in the instant case because the evidence showed that Tomkiewicz assisted Bryant (the current
       client) in his efforts to curry favor from the State in the weapons case (the matter in which
       Tomkiewicz represented Bryant) by obtaining evidence that would incriminate defendant
       (the prospective client) in a plot to have the witnesses in the sexual assault case (the matter
       about which Tomkiewicz consulted with defendant) killed. Defendant contends further that
       under those particular circumstances, there was a substantial risk that any confidential
       information that Tomkiewicz would have ordinarily learned in his consultations with
       defendant would materially advance Bryant’s position in his own case and his desire to curry
       a favorable deal from the State by providing incriminating evidence against defendant.
¶ 27        Fourth, defendant asserts that the trial court’s remedy of suppressing the evidence was
       appropriate under the circumstances of the present case and should be upheld because the
       remedy serves the interests of justice by deterring State misconduct. According to defendant,
       the trial court’s decision to suppress the evidence was appropriately based upon two factual
       findings that were not against the manifest weight of the evidence: (1) that Tomkiewicz’s
       conduct affected Bryant’s decision to wear a wire against defendant; and (2) that the State
       was implicated in the ethical violation. Defendant asserts further in support of the
       appropriateness of the trial court’s decision that the trial court’s ruling was carefully tailored
       to have the desired deterrent effect while still allowing the State to present any properly
       obtained evidence. For all of the reasons stated, defendant asks that we affirm the trial court’s
       ruling suppressing the wire-recorded statements in the solicitation case.
¶ 28        A reviewing court applies a two-part standard of review to a trial court’s ruling on a
       motion to suppress evidence. Ornelas v. United States, 517 U.S. 690, 699 (1996); People v.
       Luedemann, 222 Ill. 2d 530, 542 (2006). The trial court’s findings of fact are given great
       deference and will not be reversed on appeal unless they are against the manifest weight of
       the evidence. Luedemann, 222 Ill. 2d at 542. A deferential standard of review applies to the
       trial court’s findings of fact because the trial court has the opportunity to observe the
       demeanor and testimony of the witnesses firsthand and, thus, is in a better position than the
       reviewing court to judge the witnesses’ credibility, to determine the weight to be given to
       testimony, to decide the inferences to be drawn from the evidence, and to resolve any
       conflicts in the evidence. See People v. Jones, 215 Ill. 2d 261, 268 (2005); People v. Frazier,
       248 Ill. App. 3d 6, 13 (1993). However, as to the trial court’s ultimate legal ruling of whether
       suppression is warranted, de novo review applies. Luedemann, 222 Ill. 2d at 542-43; People
       v. Sorenson, 196 Ill. 2d 425, 431 (2001). The reviewing court is free to make its own
       assessment of that legal issue, based upon the findings of fact, and to draw its own
       conclusions. See Luedemann, 222 Ill. 2d at 542.
¶ 29        The Rules of Professional Conduct are rules of reason that provide a framework for the
       ethical practice of law. Ill. R. Prof. Conduct (2010), Scope, ¶¶ 14, 16 (eff. Jan. 1, 2010); see
       also Horwitz v. Holabird & Root, 212 Ill. 2d 1, 16-17 (2004) (referring to a previous version
       of the preamble to the rules as stating that the law is a public trust and that lawyers are the
       trustees of the judicial system). The rules recognize that “[a] lawyer, as a member of the legal
       profession, is a representative of clients, an officer of the legal system and a public citizen
       having special responsibility for the quality of justice.” Ill. R. Prof. Conduct (2010),
       Preamble, ¶ 1 (eff. Jan. 1, 2010). Rule 1.18, which is at issue in the instant case, describes the
       duties that an attorney owes to a prospective client as follows:


                                                   -9-
                   “(a) A person who discusses with a lawyer the possibility of forming a
               client-lawyer relationship with respect to a matter is a prospective client.
                   (b) Even when no client-lawyer relationship ensues, a lawyer who has had
               discussions with a prospective client shall not use or reveal information learned in the
               consultation, except as Rule 1.9 would permit with respect to information of a former
               client.
                   (c) A lawyer subject to paragraph (b) shall not represent a client with interests
               materially adverse to those of a prospective client in the same or a substantially
               related matter if the lawyer received information from the prospective client that
               could be significantly harmful to that person in the matter, except as provided in
               paragraph (d). If a lawyer is disqualified from representation under this paragraph, no
               lawyer in a firm with which that lawyer is associated may knowingly undertake or
               continue representation in such a matter, except as provided in paragraph (d).
                   (d) When the lawyer has received disqualifying information as defined in
               paragraph (c), representation is permissible if:
                       (1) both the affected client and the prospective client have given informed
                   consent, or
                       (2) the lawyer who received the information took reasonable measures to
                   avoid exposure to more disqualifying information than was reasonably necessary
                   to determine whether to represent the prospective client; and that lawyer is timely
                   screened from any participation in the matter and is apportioned no part of the fee
                   therefrom.” Ill. R. Prof. Conduct (2010) R. 1.18 (eff. Jan. 1, 2010).
       See also Restatement (Third) of the Law Governing Lawyers § 15 (2000).
¶ 30       In the instant case, it is clear that defendant was a prospective client of Tomkiewicz as
       defined in Rule 1.18(a). See Ill. R. Prof. Conduct (2010) R. 1.18(a) (eff. Jan. 1, 2010).
       Although defendant tries to assert for the first time on appeal that he actually formed an
       attorney-client relationship with Tomkiewicz and that different rules of professional conduct
       apply, as the State correctly points out, that argument was not made before the trial court or
       developed in the record. We, therefore, reject defendant’s argument that trial court’s
       suppression order can be affirmed on that basis. See People v. Johnson, 208 Ill. 2d 118, 134
       (2003) (the supreme court recognized that in some cases, it may be inappropriate to address
       an argument advanced in support of a judgment on appeal because the factual basis for that
       argument is not established in the record).
¶ 31       Having ruled in that regard, we turn our focus to Rule 1.18, specifically subparagraph (c),
       a violation of which was alleged in the instant case by defendant and found by the trial court.
       Upon considering the rule, we find that defendant failed in his burden to establish that
       Tomkiewicz received in his consultations with defendant information that could be
       significantly harmful to defendant in either the sexual assault case or the solicitation case.
       See Ill. R. Prof. Conduct (2010) R. 1.18(c) (eff. Jan. 1, 2010); People v. Cregan, 2014 IL
       113600, ¶ 23 (at a hearing on a motion to suppress evidence, the burden is on the defendant
       to show that suppression is warranted); see also O Builders & Associates, Inc. v. Yuna Corp.
       of NJ, 19 A.3d 966, 975-78 (N.J. 2011) (in a case where a former prospective client sought
       disqualification of an attorney under New Jersey’s version of Rule 1.18, the New Jersey
       Supreme Court upheld the trial court’s denial of the motion to disqualify, finding, among


                                                  - 10 -
       other things that the former prospective client had failed to establish that the attorney had
       received confidential information that was significantly harmful to the prospective client in
       the current matter). In the instant case, defendant presented absolutely no evidence to that
       effect as neither Tomkiewicz nor defendant testified at the hearing on the second motion to
       dismiss or suppress. Instead, defendant relied entirely upon speculation as to information that
       Tomkiewicz might have learned. In our opinion, that speculation was not enough to establish
       that a violation of Rule 1.18 occurred. See O Builders & Associates, Inc., 19 A.3d at 975-78.
       Indeed, the comments to Rule 1.18 recommend that an attorney limit the initial interview
       with a prospective client to only that information that is reasonably necessary for the attorney
       to determine whether he or she will take the case, so as to avoid acquiring disqualifying
       information from the prospective client. See Ill. R. Prof. Conduct (2010) R. 1.18, Comment 4
       (eff. Jan. 1, 2010). In concluding as we have on this issue, we are mindful of the cautions set
       forth in the scope of the Rules–that the purpose of the Rules can be subverted when they are
       invoked by an opposing party as a procedural weapon and that a potential violation of a rule
       does not imply that an antagonist in a collateral proceeding or transaction has standing to
       seek enforcement of the rules. See Ill. R. Prof. Conduct (2010), Scope, ¶ 20 (eff. Jan. 1,
       2010).
¶ 32       Because we have determined that defendant failed to establish that Tomkiewicz received
       information that could be significantly harmful to defendant, we need not consider the other
       element of Rule 1.18(c), the proof of which the State also contests, that the two matters were
       the same or substantially similar. Defendant failed to establish that a violation of Rule 1.18
       occurred and his motion to suppress evidence should have been denied on that basis.

¶ 33                                      III. CONCLUSION
¶ 34      For the above-stated reasons, we reverse the judgment of the circuit court of Will County
       and remand this case for further proceedings consistent with this opinion.

¶ 35      Reversed and remanded.




                                                  - 11 -
