THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVARO ORTEGA et al., Defendants-Appellants, 329 Ill. App. 3d 114

JUSTICE REID delivered the opinion of the court: This is an interlocutory matter before this court pursuant to Illinois Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). Following the granting by the trial court of a motion to disqualify defense counsel, defendant petitioned this court for leave to appeal. This court dismissed the petition. Alvaro Ortega subsequently filed a petition for leave to appeal to the Illinois Supreme Court. Pursuant to its supervisory power, the Illinois Supreme Court denied the petition for leave to appeal and remanded the case to this court with directions to hear the appeal.

THE FACTS Alvaro Ortega (Ortega) and Eugenio Natal (Natal) were arrested for the delivery of a controlled substance, namely 999.38 grams of cocaine, in violation of

section 401(a)(2)(

D) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(D) (West 1992)). The delivery took place on August 1, 1996, with the arrest occurring the following day. Although Robert Novelle, Sr., had previously appeared on the defendant’s behalf in the pre-arraignment stages of the proceedings, he filed a formal appearance in October 1996. Prior to trial, the People filed a motion to disqualify Robert Novelle on the grounds that Donald Novelle, his brother and law partner, had represented Juan Montez in four different criminal matters.

Juan Montez, when Robert Novelle acted as his lawyer, used the aliases Valentine Mejia and Juan Soliz. It is possible that Montez was the alias and Mejia is the real name. Montez was working for the Metropolitan Enforcement Group (MEG), either for compensation or to work off pending criminal cases. The People’s motion alleged that the representation of Montez created a per se conflict of interest. Donald Novelle testified he learned Montez was a witness in a grand jury proceeding in which Ortega was a target.

The work Montez was doing for the MEG involved organizing the cocaine purchase from which Ortega now appeals. Donald Novelle allegedly heard that Eugenio Natal was involved in this cocaine purchase but would not be charged. Donald Novelle claims he learned of the agreement between Montez and the MEG after the transaction. He also testified to representing Montez in his attempt to enforce the agreement whereby he worked for the MEG. The People deny that such an agreement exists. When Montez was called to testify before a grand jury, he invoked his fifth amendment right not to testify.

On September 6, 1996, in an informal conference with the trial court to resolve any conflicts, it was recommended that Donald Novelle have another lawyer represent Montez. This was suggested to eliminate any appearance of impropriety. Donald Novelle responded that, based on the purported conflicts waivers before the trial court, he could freely discuss both the cases involving Montez and the facts of any alleged conflict with members of the firm, including Robert Novelle.

In subsequent proceedings, although Donald Novelle continued to represent Montez in pending criminal matters, Greg Ginex appeared on his behalf. On September 12, 1996, while being represented by Ginex, Montez testified before the grand jury. Montez ultimately did receive convictions in the cases involving him. His sentence was 30 months’ probation. At the time of the conference between Novelle and the trial court in this case, Montez still owed Novelle’s firm for legal services. On April 20, 1999, the trial court asked Ortega and Natal if they understood the nature of the conflict of interest.

Each defendant responded that he did. The trial court also questioned each defendant regarding his age, level of education and experience in the legal system. Both defendants indicated that they waived potential conflicts so that Robert Novelle could continue to represent them. Robert Novelle told the court that he had informed the defendants of every relevant fact of the potential conflict of interest. Despite the purported waivers, the trial court found the existence of a per se conflict of interest.

The trial court also found that no waiver could satisfy the trial court’s duty to ensure that a defendant received the undivided loyalty of his counsel. The trial court’s April 20, 1999, order was entered orally. The proceedings were then stayed pending appeal. On April 26, 1999, the trial court entered a written order on the substance of the April 20, 1999, oral order. On May 9, 1999, Ortega filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(7). The People filed an answer to the petition. This court dismissed the petition.

Defendant next filed a petition for leave to appeal to the Illinois Supreme Court. That petition to the supreme court was denied. In their denial, the supreme court remanded the case to this court with directions to hear the appeal. ANALYSIS Ortega argues that the trial court erred in disqualifying defense counsel because the representation of Montez was neither contemporaneous with the current representation nor harmful to either client’s interests.

Ortega also argues that there was a knowing waiver of any conflict of interest such that, although the constitutional right to counsel of his own choosing and the sixth amendment right to the undivided loyalty of counsel are in competition, the right to counsel of his own choosing must prevail. Specifically, Ortega argues that the representation of Montez was over for two years by the time Ortega was arrested. He also maintains that the prior representation ended and did not resume at any point. Even if it did, Ortega claims that Montez’s potential testimony would potentially exonerate Natal and not him.

As a result, Ortega argues Montez’s potential testimony was not truly opposed to his interests. Ortega also points out that, since the trial court found Montez’s agreement unenforceable, any potential benefit Montez might have received at the cost of Ortega’s interests was essentially mooted. The People respond that the trial court was correct in disqualifying defense counsel in light of the per se conflict of interest which exists in this case. The People argue that, where an actual or possible conflict of professional interest is found to exist, prejudice is presumed.

The People emphasize that, although Robert Novelle’s firm no longer represents Montez, Donald Novelle did represent Montez during hearings that directly related to the facts and circumstances of the case sub judice. It argues the trial court was properly concerned with the appearance of impropriety, should the jury become aware of the prior representation of the People’s witness in matters directly related to this case.

The trial court also expressed concern that Robert Novelle’s cross-examination might be subliminally restricted or limited, especially in light of any information he gained by way of the attorney-client privilege and Montez’s belief that Natal was not supposed to be arrested or prosecuted for the crime. Appellate review of a purely legal question is de nova. People v. Hall, 198 Ill. 2d 173 (2001); People v. Dameron, 196 Ill. 2d 156, 162 (2001); People v. Krause, 273 Ill. App. 3d 59, 62 (1995). A question of law arises when neither the credibility of the witnesses nor the facts are at issue. People v.

Walker, 308 Ill. App. 3d 435, 438 (1999), citing People v. Oaks, 169 Ill. 2d 409, 447-48 (1996). Ortega claims that defense trial counsel should not have been disqualified because, although there was the potential for a conflict of interest, harm to the defendants’ position was nullified by the knowing waivers made in this case. “The right to the effective assistance of counsel is a fundamental right and entitles an accused to the undivided loyalty of his counsel.” People v. Lawson, 163 Ill. 2d 187, 208-09 (1994); Ill. Const. 1970, art. I, § 8; U.S. Const., amends.

VI, XIV This right was designed to assure fairness in the adversary criminal process. People v. Holmes, 141 Ill. 2d 204, 217 (1990), citing United States v. Morrison, 449 U.S. 361, 364, 66 L. Ed. 2d 564, 567, 101 S. Ct. 665, 667 (1981). The constitutional right to counsel includes the right to counsel of one’s own choosing. People v. Basler, 304 Ill. App. 3d 230, 232 (1999); People v. Johnson, 75 Ill. 2d 180, 185 (1979). “Where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest.” People v. Johnson, 322 Ill. App. 3d 117, 121 (2001).

An attorney’s relationships vis-avis certain clients can, without more, create a disabling conflict that taints the outcome of a trial. People v. Coleman, 301 Ill. App. 3d 290, 299 (1998). “Counsel’s contemporaneous association with either the crime victim or a State’s witness forms such a relationship and creates a conflict per se.” Coleman, 301 Ill. App. 3d at 299, citing People v. Spreitzer, 123 Ill. 2d 1, 14 (1988).

Where facts presenting an attorney’s possible conflict of interests are made known to the court, the court must ascertain the extent of the risk and take whatever measures are necessary to protect the accused’s guarantee of effective assistance of counsel. People v. Thomas, 131 Ill. 2d 104, Ill (1989), citing Holloway v. Arkansas, 435 U.S. 475, 484-85, 55 L. Ed. 2d 426, 434-35, 98 S. Ct. 1173, 1178-79 (1978). “There are certain contemporaneous representations that we have decided not to tolerate, even in the absence of a showing that anyone was prejudiced by the existing conflict.

Where the competing interests *** are directly at odds, we presume ineffectiveness without any inquiry into how a lawyer actually performed.” People v. Sims, 322 Ill. App. 3d 397, 413 (2001). Where no per se conflict of interest exists, the defendant must show the existence of an actual conflict and actual prejudice. People v. Becerril, 307 Ill. App. 3d 518, 525 (1999), citing People v. Taylor, 165 Ill. App. 3d 1016, 1021 (1988). Where an actual conflict of interest exists, the defendant is not required to prove that the conflict contributed to his conviction. Becerril, 307 Ill. App. 3d at 525, citing People v.

Spreitzer, 123 Ill. 2d 1, 18 (1988). “ ‘[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.’ ” Spreitzer, 123 Ill. 2d at 19, quoting Cuyler v. Sullivan, 446 U.S. 335, 349-50, 64 L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1719 (1980). The supreme court has provided guidance for detecting per se conflicts of interest. Sims, 322 Ill.

App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 16. “Where defense counsel has a tie to a person or entity, including his ‘own previous commitments,’ which would benefit from an unfavorable verdict for the defendant, a per se conflict arises.” People v. Woidtke, 313 Ill. App. 3d 399, 409 (2000); Spreitzer, 123 Ill. 2d at 16. “In such a case, the defendant is not required to show prejudice as a result of the representation; the representation is deemed ineffective as a result of the inherent conflict. Sims, 322 Ill. App. 3d at 413, citing Spreitzer, 123 Ill. 2d at 14-16.

Where defense counsel has represented a State witness, a per se conflict of interest exists if “ ‘the professional relationship between the attorney and the witness is contemporaneous with counsel’s representation of the defendant.’ ” Coleman, 301 Ill. App. 3d at 299, quoting People v. Free, 112 Ill. 2d 154, 168 (1986); see also People v. Robinson, 79 Ill. 2d 147 (1979); People v. Strohl, 118 Ill. App. 3d 1084 (1983).

The per se conflict rule “ ‘ “is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.” ’ ” Coleman, 301 Ill. App. 3d at 299, quoting People v. Lawson, 163 Ill. 2d 187, 210 (1994), quoting People v. Gerold, 265 Ill. 448, 477 (1914). Whether two things are contemporaneous logically must be determined based upon the unique facts and circumstances of the given situation.

In the case at bar, the trial court concluded that a per se conflict of interest existed. We agree. The trial court based this conclusion on the fact that defense counsel’s firm had previously represented Montez, the confidential informant concerning the facts alleged in this case. The trial court placed great significance on its understanding that there were similar competing interests at stake. In so ruling, the trial court commented as follows: “[I]t is clear that the *** firm contemporaneously represented a potential State witness and Defendants in proceedings involving the facts of the instant case.

It is well established that knowledge of one member of a law firm is imputed to other members of the firm. Conflicts of interest for one member extend to all members of a firm. People v. Dace, 153 Ill. App. 3d 891, 896. It follows that since defense counsel’s firm previously represented confidential informant Montez concerning the very facts alleged in this case, a per se conflict exists. People v. Flores, 128 Ill. 2d 66, 85.

Thus, the Court must examine whether the defendants have been made aware of the conflict and are able to knowingly waive their right to a conflict-free counsel. * * * Under the circumstances of the instant case, similar competing interests are at stake. Although Defense counsel’s firm no longer represents State witness Montez, the firm’s representation included matters involving the very facts at issue in the case at bar.

I place great significance on that. * * * Therefore, this court is greatly concerned the Defense counsel’s cross examination might be subliminally restricted or limited in ways incapable of more accurately describing than just to so state. This court is likewise concerned with the jury becoming aware of the fact that Defense counsel’s firm previously represented the State witness and the appearance of impropriety, should the jurors become aware of Defense counsel’s prior representation of a State witness in matters directly relating to the case at bar.

For all of those reasons, and after serious reflection, and consideration, this Court has determined that it is appropriate to grant the State’s Motion to Disqualify *** the Defendants’ attorney in this case. Motion to disqualify defense counsel is granted. We defer to the trial court on the issue of the existence of the per se conflict.

While “ ‘[t]he *** Court must recognize a presumption in favor of petitioner’s counsel of choice,’ ” which “ ‘may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict, the evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.’ ” Holmes, 141 Ill. 2d at 223, quoting Wheat v. United States, 486 U.S. 153, 164, 100 L. Ed. 2d 140, 152, 108 S. Ct. 1692, 1700 (1988). We must next address whether the per se conflict of interest, once identified, has been waived.

A defendant may knowingly and intelligently waive an alleged conflict of interest. People v. Johnson, 322 Ill. App. 3d 117, 123 (2001), citing People v. Fife, 76 Ill. 2d 418, 424-25 (1979); United States v. Kladouris, 964 F.2d 658, 667 (7th Cir. 1992); Rosenwald v.

United States, 898 F.2d 585, 588 (7th Cir. 1990). “[A] defendant who wishes to exercise the right to counsel of choice despite a conflict of interest must necessarily waive the right to effective assistance of counsel.” Holmes, 141 Ill. 2d at 222. “[A] trial court must pass on the issue of whether to allow waiver of a conflict of interest ‘not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.’ ” Holmes, 141 Ill. 2d at 223, quoting Wheat, 486 U.S. at 162, 100 L. Ed. 2d at 151, 108 S.

Ct. at 1699. “[T]he Wheat Court concluded that a trial court ‘must be allowed substantial latitude in refusing waivers’ not only where an actual conflict exists, but also ‘in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.’ ” Holmes, 141 Ill. 2d at 223, quoting Wheat, 486 U.S. at 163, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699.

In an instance like this, where the trial court must exercise discretion, a court of review will not find error or set aside a ruling of the trial judge unless there has been a clear abuse of discretion. Holmes, 141 Ill. 2d at 224. “It is well settled that trial courts must adequately inform defendants of a conflict’s significance before any waiver of such a conflict can be accepted. A defendant must actually understand how the conflict could affect his attorney’s representation, before his right to a conflict-free attorney can be knowingly waived.” (Emphasis in original.) Coleman, 301 Ill.

App. 3d at 301, citing Lawson, 163 Ill. 2d at 218. To that end, the trial court held the following discussion with Ortega on the record: “THE COURT: Let’s start with Mr. Ortega. *** Sir, how old are you? MR. ORTEGA: 27 THE COURT: How far did you go in school? MR. ORTEGA: Graduated high school. * * * THE COURT: Have you ever had any exposure, prior to this case, with the legal system? MR. ORTEGA: No. THE COURT: So you have no legal training or knowledge, am I correct? MR. ORTEGA: No. THE COURT: What is your understanding of what — you have been present for all of these hearings, am I correct? MR. ORTEGA: Yes.

THE COURT: Do you know what a conflict is? Do you know what these lawyers are talking about? MR. ORTEGA: Yes. I’m understanding what they are saying. THE COURT: What is your understanding? MR. ORTEGA: Well, that it could be some problems between me and Natal becoming, you know, Mr. Novelle, a lawyer, or we could have discussion between us during the trial or during the sentence that we were to have. THE COURT: Do you understand Mr. Novelle’s law firm previously represented an individual who is going to be a State’s witness against you in this case? MR. ORTEGA: Yes. THE COURT: You don’t have a problem with that?

MR. ORTEGA: No.” We are aware that this interchange between the trial court and Ortega took place after lengthy discussions between the trial court and Robert Novelle which were held on the record in front of Ortega himself. These discussions are too lengthy and involved to chronicle here; suffice it to say they support the conclusion that Ortega’s choice of counsel was made with knowledge of the potential consequences.

We find that Ortega, opting at his peril to retain counsel in spite of a conflict of interest, made a knowing and-intelligent waiver of potentially conflicted representation by attorney Novelle in this case. For the trial court to have held otherwise disregards Ortega’s professed choice of counsel. Whether it was a mistake to waive the conflict of interest is something that will become clear in the fullness of time as the trial progresses.

In light of the clear waiver by Ortega, it was an abuse of discretion for the trial court, depending on one’s perspective, to either stop him from making his constitutional choice or try to save him from himself. This case is limited to these facts. It is not a posttrial petition by a defendant claiming inadequate representation by counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

This is a pretrial motion by the State intended to get a seasoned legal adversary out of the case where his client wants to stick with his chosen lawyer after clearly being warned by the trial court. It is also a case where the State would be obligated to divulge any “helpful” information to the defendant that it also knows without regard to who represents this defendant. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Under these facts and circumstances, the trial court should have denied the State’s petition.

CONCLUSION In light of the foregoing, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion. Judgment reversed; cause remanded. CAMPBELL, EJ., concurs.