                                                                      FIFTH DIVISION
                                                                      October 13, 2006




No. 1-05-1813


THE PEOPLE OF THE STATE OF ILLINOIS,                    Appeal from the
                                                        Circuit Court of
       Plaintiff-Appellee,                              Cook County.

v.

CHARLES JAMES,                                          Honorable
                                                        Frank G. Zelezinski,
       Defendant-Appellant.                                   Judge Presiding.



       JUSTICE GALLAGHER delivered the opinion of the court:

       In this interlocutory appeal, defendant Charles James challenges an order of the

trial court disqualifying his trial counsel. Official Reports Advance Sheet No. 26

(December 24, 2003), R. 306(a)(7), eff. January 1, 2004. Defendant contends that the

trial court abused its discretion in disqualifying his chosen counsel. We reverse and

remand.

       The parties' pleadings reveal the following facts. In September 2003, defendant

and codefendant Maurice Henderson were tried simultaneously before separate juries

on multiple counts of first degree murder and conspiracy to commit first degree murder.

At trial, defendant was represented by attorneys Eric Dunham and Barbara Klein, and

Henderson was represented by Steven Weinberg and Susan Pavlow. Henderson was

acquitted of both charges. Although the jury convicted defendant of conspiracy, it
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deadlocked on the first degree murder charges. The State refiled the first degree

murder charges. Defendant subsequently discharged his attorneys and retained

Weinberg and Pavlow to represent him at the retrial. On December 1, 2003, Weinberg

and Pavlow filed their respective appearances.

           On May 21, 2004, the State moved to disqualify Weinberg as counsel, arguing

that his prior representation of Henderson created a conflict of interest. Henderson

retained independent counsel and signed an affidavit, in which he waived any attorney-

client privilege between him and Weinberg and Pavlow. In particular, he consented to

Weinberg and Pavlow's use of "any information that [Henderson] had provided to them,

including but not limited to information that [Henderson] provided in confidential

attorney-client conversations." He further consented to their representation of

defendant. At the motion hearing, Weinberg indicated that Henderson would not testify.

The trial court denied the State's motion, noting that Henderson was not on any witness

list and that it was unlikely that Weinberg or Pavlow would be called to testify at the

retrial.

           According to the pleadings, on May 5, 2005, four days before the

commencement of jury selection for the retrial, Weinberg disclosed that Henderson

would be called as a defense witness at the retrial. Weinberg subsequently conducted

a telephone interview with Henderson, while Henderson's new counsel listened to the

call, and tendered a written report of the interview (the report) to the State. The State

then renewed its motion to disqualify Weinberg. The report is not included in the record




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on appeal.

       At the hearing on the motion, the State maintained that if Henderson testified

inconsistently with his statements in the report or with his other prior statements, it

would be forced to call Weinberg or Pavlow to impeach Henderson. The trial court

granted the motion, finding that there was a conflict of interest resulting from the

"extreme potential" that Weinberg and Pavlow would be called as witnesses at the

retrial. The trial court noted that Pavlow and Weinberg had not represented at the

earlier motion hearing that Henderson would be defendant's main witness. Defense

counsel filed a motion to reconsider, which the trial court ultimately denied.

       As an initial matter, defendant asserts in his reply brief that the trial court

employed an improper standard in evaluating the State's motion to dismiss because it

failed to determine whether defense counsel's testimony would prejudice his client. 134

Ill. 2d R. 3.7(b). We are not persuaded that the trial court was required to explicitly

discuss the prejudice presented by defense counsel's potential testimony. Instead, the

trial court properly employed the four-factor test for a motion to disqualify a defendant's

chosen counsel based on a conflict of interest, as articulated by our supreme court in

People v. Ortega, 209 Ill. 2d 354 (2004), and People v. Holmes, 141 Ill. 2d 204 (1990).

Furthermore, we believe that the trial court's analysis implicitly considered the impact of

defense counsel testifying against his own witness, and thus, it utilized the appropriate

legal criteria in analyzing the motion.

       On appeal, defendant contends that the trial court abused its discretion by




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disqualifying his chosen counsel because there was no actual conflict of interest and the

hypothetical scenarios for a potential conflict of interest were overly speculative. In

particular, defendant argues that Henderson's waiver of attorney-client privilege negates

a conflict of interest and, thus, the presumption that defendant be allowed to choose his

counsel outweighs the interests threatened by the potential conflict of interest. In

response, the State contends that the serious potential for a conflict of interest, i.e., the

likelihood that Weinberg or Pavlow would be called to impeach Henderson's trial

testimony, justified the trial court's disqualification of defense counsel.

       At the root of the sixth amendment guarantee that a defendant " '[i]n all criminal

prosecutions *** shall enjoy the right . . . to have the Assistance of Counsel for his

defense' " is the "right of a defendant who does not require appointed counsel to choose

who will represent him." United States v. Gonzalez-Lopez, 548 U.S. ____, ____, 165 L.

Ed. 2d 409, 416, 126 S. Ct. 2557, 2561 (2006). Nevertheless, a trial court may, within

its discretion, deny an attorney's representation of a defendant if it creates an actual or

potential conflict of interest. Ortega, 209 Ill. 2d at 358. In evaluating a motion to

disqualify a defendant's chosen counsel, a trial court must first determine whether there

is actual or serious potential for conflict. Ortega, 209 Ill. 2d at 361. If it finds conflict, it

must then determine whether the interests threatened by the conflict overcome the

presumption favoring defendant's chosen counsel. Ortega, 209 Ill. 2d at 359, 361. In

weighing the presumption against a defendant's interests, the trial court should consider

four nonexclusive factors: (1) the likelihood that defense counsel will have divided




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loyalties, (2) the State's right to a fair trial, (3) "the appearance of impropriety should the

jury learn of the conflict," and (4) the likelihood that defense counsel's continued

representation "will provide grounds for overturning [the] conviction." Ortega, 209 Ill. 2d

at 361-62, citing Holmes, 141 Ill. 2d at 226-27. We review a trial court's decision

against an abuse of discretion standard to determine whether it is arbitrary or

unreasonable. Ortega, 209 Ill. 2d at 359.

       The trial court here abused its discretion in finding serious potential for conflict.

First, Henderson's waiver vitiated the attorney-client privilege and any accompanying

confidentiality. The record does not indicate that the trial court sufficiently considered

how Henderson's waiver would affect the potential conflict of interest. Accordingly,

there was no actual or potential conflict for Weinberg and Pavlow resulting from their

prior representation of Henderson.

       The State relies upon Ortega and Holmes, in which our supreme court upheld a

trial court's disqualification of a defendant's chosen counsel. In Holmes, the defendant's

attorney had previously represented the State's key witness. Holmes, 141 Ill. 2d at 212-

13. Although the defendant waived his right to a conflict-free representation, the court

found that his attorney would have divided loyalties between the defendant and the

State's witness because the attorney had a long-standing and ongoing relationship with

the witness. Holmes, 141 Ill. 2d at 213, 226. The court was justifiably concerned about

the difficulties faced by the defendant's attorney in simultaneously maintaining his

obligations to his two clients. Holmes, 141 Ill. 2d at 226-27. This case is readily




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distinguishable because in the case at bar, Weinberg and Henderson did not have an

ongoing relationship, as Henderson's waiver dissolved their previous attorney-client

relationship.

       In Ortega, the law partner of the defendant's attorney previously represented a

key witness for the State "in matters involving the very facts that formed the basis for

the charges against defendants." Ortega, 209 Ill. 2d at 358. The witness's attorney

discussed the case with the defendant's attorney because he believed that the witness

had waived "any conflict of interest." Ortega, 209 Ill. 2d at 357-58. The court found

serious potential for conflict resulting from the defendant's attorney being told

confidential information about a State witness. Ortega, 209 Ill. 2d at 365. Although the

court assumed that the witness waived a conflict of interest, it still found the existence of

serious potential for conflict because the witness's waiver of confidentiality was

insufficiently established. Ortega, 209 Ill. 2d at 366 (noting the crucial distinction

between a waiver of conflict and a waiver of confidentiality). In particular, the court

found unconvincing the vague testimony of the witness's attorney about his client's

alleged waiver of confidentiality. Ortega, 209 Ill. 2d at 367-68. Here, Henderson

provided a clear and valid waiver of conflict and of confidentiality, and thus, Weinberg

and Pavlow could use any information received during their representation of

Henderson at defendant's retrial. Therefore, Weinberg and Pavlow did not have any

professional obligation to Henderson, and their previous representation of Henderson

could not threaten their representation of defendant.




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       Second, we find that the trial court's decision to disqualify defendant's chosen

counsel based on their potential to be called as impeachment witnesses was highly

speculative and unreasonable. Even assuming that Henderson testified inconsistently

with the written report, and Weinberg or Pavlow was called to impeach his trial

testimony, we are not persuaded that this scenario justifies granting the State's motion.

We do not have a copy of the written report and, as a result, cannot discern the nature

or impact of Henderson's testimony. The record also does not indicate the nature of

Weinberg's or Pavlow's potential testimony, and thus, speculation about the prejudice

suffered by defendant from their testimony is unreasonable. Furthermore, we are not

persuaded that they could provide admissible impeachment testimony against

Henderson. People v. Crowe, 327 Ill. App. 3d 930, 937 (2002) (where the defendant's

attorney could not be called as a rebuttal witness by the State because his testimony

would constitute inadmissible hearsay).

       As an alternative to Weinberg's or Pavlow's testimony, the State could call

Henderson's new attorney as a "prover" of what was said during the interview.

Therefore, the trial court abused its discretion in granting the State's motion to disqualify

defendant's chosen counsel because there was no serious potential for conflict between

defendant's interests and the duties of his attorneys.

       For the foregoing reasons, we reverse the trial court's grant of the State's motion

to disqualify defendant's attorneys and remand for further proceedings.

       Reversed and remanded.




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     O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.




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