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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Modified Upon Denial of Rehearing

JUSTICE McLAREN delivered the opinion of the court:

In this interlocutory appeal, defendant, Allen Downey, appeals the trial court's order grantingthe State's motion to disqualify defense counsel, Michael J. Perillo, Jr. We previously dismissed thisappeal for lack of jurisdiction, in a Rule 23 order filed July 8, 2003. Defendant filed a petition forleave to appeal with the Illinois Supreme Court. Defendant's petition was denied, but our supremecourt entered a supervisory order directing this court to vacate our prior dismissal and consider themerits of the case. We reverse and remand for further proceedings.

Initially, we address the State's motion to dismiss based on lack of jurisdiction pursuant toSupreme Court Rule 604. 188 Ill. 2d R. 604. We deny this motion because this court has jurisdictionpursuant to the supreme court's supervisory order. Citing Supreme Court Rules 324 (155 Ill. 2d R.324) and 608 (177 Ill. 2d R. 608), the State also asserts that we must dismiss this appeal becausedefendant failed to file a complete certified record. We deny this motion because the uncontrovertedfacts contained in the certified record are sufficient to address the legal issues in this appeal. However, we grant defendant's motion to cite additional authority.

The facts are taken from the record. Defendant was charged by indictment with two countsof predatory criminal sexual assault of a child, two counts of criminal sexual assault, and two countsof aggravated criminal sexual abuse. During the pretrial proceedings, the State filed a motion todisqualify defendant's counsel, Michael J. Perillo, Jr., and his law firm, Sullivan, Smith, Hauser &Noonan, Ltd., alleging a per se conflict of interest. It is uncontroverted that Robert Hauser, a partnerat Perillo's law firm, represented the alleged victim's grandmother and guardian, Bessie Brown, in anunrelated civil lawsuit that was dismissed in May 2002. In its petition to disqualify, the State allegedthat Perillo had on occasion helped Hauser in matters relating to Bessie Brown's civil lawsuit. TheState claimed that defendant named Hauser as a potential witness, Bessie Brown did not want Hauserto testify about family information he learned while representing her, and she did not want to becross-examined by Perillo.

Defendant filed a response to the State's motion, arguing that the motion be denied becausethe State failed to plead any specific facts suggesting a conflict of interest. Defendant filed anaffidavit, waiving any potential conflict of interest.

The trial court granted the State's motion, finding that there was a per se conflict of interest. The trial court permitted defendant to pursue this interlocutory appeal. We now review this appealin accordance with the supreme court's supervisory order.

On appeal, defendant argues that the trial court erred by granting the State's motion todisqualify Perillo as defense counsel because, even if there was a per se conflict, defendant knowinglywaived any alleged conflict of interest.

Initially, we note that the Illinois Supreme Court recently explained in People v. Ortega, 209Ill. 2d 354, 364 (2004), that the concept of a per se conflict applies only to cases where a defendantclaims ineffective assistance of counsel due to his attorney's alleged conflict, absent a waiver by thedefendant. Because this is not such a case, the concept of per se conflict is inapplicable and we willapply the concept of potential conflict as explained by Ortega.

Generally, the constitutional right to counsel includes the right to counsel of one's ownchoosing. U.S. Const., amend. VI. However, this right is not absolute. Ortega, 209 Ill. 2d at 358. Where there is a serious potential for conflict that outweighs the defendant's right to counsel ofchoice, a trial court may grant a motion to disqualify defense counsel. Ortega, 209 Ill. 2d at 361. Adefendant may waive a serious potential for conflict, but a valid waiver will have no effect where adefendant's right to counsel of choice is outweighed by the State's right to a fair trial or the need toavoid the appearance of impropriety. Ortega, 209 Ill. 2d at 361. A trial court's decision regardinga motion to disqualify will not be disturbed absent an abuse of discretion. Ortega, 209 Ill. 2d at 359.

In this case, defendant waived any alleged potential conflict. Therefore, we must determinewhether the trial court properly found that defendant's right to counsel of choice is outweighed bythe State's right to a fair trial and the need to avoid the appearance of impropriety. Ortega, 209 Ill.2d at 361.

In Ortega, our supreme court held that the trial court had not abused its discretion bydisqualifying defense counsel even though the defendant had waived any potential conflict. Ortegawas charged in connection with the sale of almost one kilogram of cocaine. The trial court heardevidence that the sale was arranged by Montez, a confidential informant. Ortega was represented byRobert Novelle. Montez was represented by Donald Novelle, Robert's brother and law partner. BothOrtega's and Montez's cases involved the same drug transaction, and Robert received confidentialinformation from Donald about Montez. Our supreme court determined that a reasonable personcould conclude that it would be unfair to the State if defense counsel used confidential informationto cross-examine Montez or otherwise used the information in Ortega's defense. Further, the publiccould reasonably conclude that the trial was not fair when it learned that the same law firmrepresented both a prosecution witness and a defendant in connection with the same case. Ortega,209 Ill. 2d at 370.

Assuming that a serious potential for conflict exists, we must then examine "whether the courtapplied legally proper criteria to determine that the conflict overcomes the presumption in favor ofcounsel of choice." Ortega, 209 Ill. 2d at 369. In this case, the trial court dealt with the issue of aconflict of interest but did not consider the factors set forth in Ortega. Failure to apply the correctlegal criteria when weighing the facts amounts to an abuse of discretion by the trial court. Ortega,209 Ill. 2d at 360. Thus, we vacate the trial court's order granting the State's motion to disqualifydefense counsel, and we remand so that the trial court can apply the appropriate legal criteriaenunciated by Ortega.

We find it important to note that the case at bar is distinguishable from Ortega. Unlike inOrtega, the record in this case is incomplete. It contains only vague claims of a potential conflict. The record in this case contains no evidence establishing a substantial relationship between Brown'scivil matter and defendant's criminal prosecution. In President Lincoln Hotel Venture v. Bank One,Springfield, 271 Ill. App. 3d 1048, 1060 (1994), the appellate court explained:

"[I]f a 'substantial relationship' is not shown, no confidences have been shared or thepresumption that confidences have been shared is rebutted, an attorney cannot be disqualifiedsolely on the ground that there exists 'an appearance of impropriety' because Canon 9 by itselfis 'simply too weak and too slender a reed' upon which to order disqualification."

In this case, Bessie Brown, a potential witness for the State, was represented by the same lawfirm as defendant, and Brown's attorney, Hauser, was disclosed as a possible witness for defendant. But the record contains no evidence that Brown's case and defendant's case arose from the same setof facts or had any facts in common. The record shows only that Hauser represented Brown in a civilmatter that was dismissed two years before defendant's case began, and the law firm no longerrepresents Brown in any matter. The record contains no basis for Brown's concern that Hauserobtained confidential information that is relevant and admissible in defendant's criminal case or thatany information was conveyed to Perillo that could result in an appearance of impropriety. If thenature and extent of the alleged potential conflict remains a contested issue after the parties reviewOrtega, we direct the trial court to conduct a hearing. Should a hearing be held, the State mustpresent evidence supporting its motion for disqualification. Reversed and remanded.

BOWMAN and KAPALA, JJ., concur.