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Docket No. 93834-Agenda 3-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ALVARO ORTEGA et al., Appellees.

Opinion filed April 1, 2004.

JUSTICE GARMAN delivered the opinion of the court:

In 1996 defendants were charged by indictment with delivery of999.38 grams of cocaine in violation of section 401 of the IllinoisControlled Substances Act (720 ILCS 570/401 (West 2000)). In 1999,prior to trial, the State successfully moved to disqualify defendants'counsel, attorney Robert Novelle, on conflict of interest grounds.Defendants petitioned for leave to appeal the disqualification orderpursuant to Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). Theappellate court dismissed the petition, and defendants petitioned for leaveto appeal to this court. We denied the petition but entered a supervisoryorder instructing the appellate court to hear the appeal. The appellatecourt reversed the disqualification order. 329 Ill. App. 3d 114. The Statethen filed a petition for leave to appeal pursuant to Supreme Court Rule315 (177 Ill. 2d R. 315), which we allowed. We are now asked toarticulate the standard of review and the proper criteria with regard to atrial court's decision to disqualify a criminal defendant's counsel of choiceprior to trial.

I. BACKGROUND

Defendants Eugenio Natal and Alvaro Ortega were charged inconnection with the sale of nearly one kilogram of cocaine to SpecialAgent Dean Endre of the Metropolitan Enforcement Group. The sale wasarranged by Juan Montez, a confidential informant working for AgentEndre. Natal, Ortega, Montez and Agent Endre were present during thesale, which occurred on August 1, 1996. On August 15, 1996, attorneyRobert Novelle filed a motion on behalf of Natal, and on October 11,1996, he appeared on behalf of Ortega. Robert Novelle continues torepresent both defendants.

Robert Novelle's brother and law partner, Donald Novelle,represented Montez from the end of May 1996, until at least February 27,1997, in connection with certain criminal charges. Donald's representationof Montez directly involved the drug sale for which defendants arecharged. Montez claimed that Agent Endre promised that the criminalcharges pending against him would be dismissed in exchange for arrangingthe sale. When the charges were not dismissed, Donald tried to enforcethe alleged promise on behalf of his client. He advised Montez to refuseto answer questions about the sale before a grand jury on September 6,1996. He then filed a motion to dismiss the charges. Donald litigated themotion to dismiss in a hearing before Judge DeBoni on January 24, 1997.He called Montez as a witness, and Montez testified about the eventsleading up to the sale and about the sale itself. Judge DeBoni found thatAgent Endre did not make the alleged promises and denied the motion todismiss. By February 27, 1997, Montez had pled guilty and had beensentenced to probation on some of the charges, while the others had beendismissed.

In February of 1999, shortly before defendants Natal and Ortegawere to go to trial, the State moved to disqualify Robert Novelle based ona conflict of interest arising out of Donald Novelle's representation ofMontez. The trial court held hearings on the motion to disqualify Robert,during which Donald testified that he knew prior to August 1, 1996, thatMontez was an informant who was in the process of arranging a sale ofcocaine for Agent Endre. Later in August, Donald learned from AssistantState's Attorney Lorraine Scaduto that the sale Montez arranged led tothe arrest of defendants, and that defendants were represented by hisbrother, Robert. Donald subsequently discussed with Robert what Montezhad told him with respect to the sale. He felt free to do so because hethought Montez had given him "a waiver of any conflict of interest."Donald also testified that Montez owed legal fees to the Novelle firm, butthat the firm had no plans to try to collect.

The trial court found that Robert Novelle's firm represented a State'switness, Montez, in matters involving the very facts that formed the basisfor the charges against defendants. The court found that, although the firmno longer represented Montez, the prior representation raised doubtsabout Robert's ability to cross-examine Montez. The court also found thatthere would be an appearance of impropriety should the jury learn thatdefense counsel's firm had represented a State's witness in connectionwith the same drug sale that is at issue in the defendants' case. The trialcourt then granted the State's motion to disqualify Robert.

The defendants took an interlocutory appeal of the disqualificationorder, which the appellate court heard pursuant to our supervisory order.The appellate court reversed, holding that the defendants had given a clearwaiver of their right to conflict-free counsel and that the trial court abusedits discretion when it nevertheless disqualified their counsel of choice. 329Ill. App. 3d at 123. The State appealed. We now reverse the appellatecourt and affirm the order of the trial court disqualifying Robert Novelle.

II. THE STANDARD OF REVIEW

The sixth amendment of the United States Constitution guarantees acriminal defendant the right to the assistance of the counsel of his choice,but that right is subject to certain limits. Wheat v. United States, 486U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697(1988). Among those limits is a trial court's "substantial latitude" to refuseto allow a defendant to waive his chosen counsel's actual or potentialconflict of interest. Wheat, 486 U.S. at 163, 100 L. Ed. 2d at 151, 108S. Ct. at 1699. Trial courts need latitude because they must decidewhether to accept a proffered waiver before trial, when the "likelihoodand dimensions of nascent conflicts of interest are notoriously hard topredict, even for those thoroughly familiar with criminal trials." Wheat, 486U.S. at 162-63, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699.

In People v. Holmes, 141 Ill. 2d 204, 228 (1990), we expresslyfollowed Wheat to evaluate a defendant's claim that a trial court haddenied his right to counsel of choice. Holmes held that a reviewing courtmust not set aside a trial court's decision to disqualify a defendant'schosen counsel unless there has been a clear abuse of discretion. Holmes,141 Ill. 2d at 224. Thus the trial court's decision to disqualify RobertNovelle must be affirmed unless it was a clear abuse of discretion.Generally, a court abuses its discretion when its decision is fanciful,arbitrary, or unreasonable to the degree that no reasonable person wouldagree with it. People v. Illgen, 145 Ill. 2d 353, 364 (1991).

Defendants argue that, because it is particularly important to achieveconsistency when a constitutional right is at stake, we should apply adeferential standard of review only to the trial court's factual findings andshould review the trial court's "assessment" of the facts de novo.Defendants rely on People v. Crane, 195 Ill. 2d 42, 51-52 (2001), whichinvolved a claimed denial of the constitutional speedy-trial right. In Crane,after noting that speedy-trial claims are decided under a balancing test, wereasoned that:

"when a trial court performs the *** balancing test and weighsthe interests of the State against the interests of the defendant inlight of the circumstances of the case, there is no need to afforddeference to a trial court's determination. The trial court is in nobetter position than the reviewing court to balance the competingconcerns. For this reason, we conclude that the ultimatedetermination of whether a defendant's constitutional speedy-trialright has been violated is subject to de novo review." Crane,195 Ill. 2d at 51-52.

Defendants contend that the trial court in this case did not base its decisionon findings of disputed fact, but only on the undisputed fact that DonaldNovelle represented Montez. They argue that we should follow thereasoning in Crane and review the trial court's decision de novo because,as in Crane, the trial court in this case weighed the facts with aconstitutional right of the defendants lying in the balance.

We reject defendants' argument. Wheat and Holmes are squarelyon point and clearly require deference to the weight the trial court gave tothe facts. We have said that "[a] reviewing court must look to the criteriaon which the trial court should rely to determine if the trial court abused itsdiscretion." Boatmen's National Bank of Belleville v. Martin, 155 Ill.2d 305, 314 (1993). Thus a trial court abuses its discretion if it fails toapply the proper criteria when it weighs the facts, and our inquiry mustconsider both the legal adequacy of way the trial court reached its resultas well as whether the result is within the bounds of reason. Moreover,while formal findings of fact and statements of reasons are not required,the trial court must make a record adequate to allow meaningful review ofits exercise of discretion. People v. M.D., 101 Ill. 2d 73, 84 (1984),quoting People v. Taylor, 76 Ill. 2d 289, 301 (1979). Such reviewreconciles the need to protect defendants' constitutional right to counselof choice with the principle that trial courts must have discretion in thisarea.

III. THE APPLICABLE CRITERIA

A

Wheat and Holmes provide substantial guidance regarding how atrial court may exercise its discretion when ruling on a motion to disqualifydefense counsel. Wheat held that a trial court may decline a profferedwaiver, not only when it has reason to find an actual conflict of interest, butalso when there is a showing of "serious potential for conflict." Wheat,486 U.S. at 164, 100 L. Ed. 2d at 152, 108 S. Ct. at 1699. In Holmes,we followed Wheat to hold that the trial court acted within its discretionin disqualifying defense counsel when defendant's right to counsel ofchoice "was overcome by a showing of a serious potential for conflict."Holmes, 141 Ill. 2d at 228. Therefore a trial court may exercise itsdiscretion to deny a defendant's right to counsel of choice only if it couldreasonably find that defense counsel has a specific professional obligationthat actually does conflict or has a serious potential to conflict withdefendant's interests. See, e.g., State v. Ehlers, 262 Neb. 247, 260, 631N.W.2d 471, 483-84 (2001) (following Wheat to hold that the trial courterred in disqualifying defense counsel where the record did not show aserious potential for conflict). If the court has grounds to find at least aserious potential for conflict, it must then go on to consider the intereststhreatened by the conflict or potential conflict.

The trial court " 'must recognize a presumption in favor of[defendant's] counsel of choice.' " Holmes, 141 Ill. 2d at 223, quotingWheat, 486 U.S at 164, 100 L. Ed. 2d at 152, 108 S. Ct. at 1700. Thequestion is whether the interests threatened by the conflict or potentialconflict are weighty enough to overcome the presumption. Holmes, 141Ill. 2d at 228. Holmes identified four interests or factors that the courtcorrectly considered in determining that the presumption was overcomein that case: (1) the defendant's interest in having the undivided loyalty ofcounsel; (2) the State's right to a fair trial in which defense counsel actsethically and does not use confidential information to attack a State'switness; (3) the appearance of impropriety should the jury learn of theconflict; (4) the probability that continued representation by counsel ofchoice will provide grounds for overturning a conviction. Holmes, 141 Ill.2d at 226-27. A trial court may weigh any of these factors, as the caserequires.

We note Holmes did not hold that the four factors just listed are theonly ones that a court may consider. A court should seek to fairly considerall the interests that are affected by a conflict in a given case. As theSeventh Circuit said, in an opinion that we cited with approval in Holmes:"[T]he decision to disqualify an attorney in a criminal case requires anevaluation of the interests of the defendant, the government, the witnessand the public in view of the circumstances of each particular case."United States v. O'Malley, 786 F.2d 786, 790 (7th Cir. 1986).

An important factor that Holmes did not discuss is whether theState's claim that a conflict warrants disqualification is the result ofoverreaching. The Wheat Court put the point rather more harshly whenit agreed with the defendant in that case that, "the Government may seekto 'manufacture' a conflict in order to prevent a defendant from having aparticularly able defense counsel at his side." Wheat, 486 U.S. at 163,100 L. Ed. 2d at 151, 108 S. Ct. at 1699. Without limiting the inquiry thata court may make into the prosecution's conduct, we note that theprosecution's need to call a witness who creates a conflict is often animportant consideration. E.g., United States v. Messino, 852 F. Supp.652, 656 (N.D. Ill. 1994); State v. Miller, 160 Wis. 2d. 646, 659, 467N.W.2d 118, 122 (1991). In Messino, defense counsel had representedtwo witnesses when they testified before a grand jury regarding the drugdistribution conspiracy of which the defendant was allegedly a member.The two were also expected to testify for the government at trial. Thecourt held that disqualification was merited, even though neither witnesswould testify directly about the defendant's conduct, because thegovernment had a legitimate need to call the witnesses to establish variousfacets of the conspiracy. It is even clearer that the witness in this case isimportant to the prosecution's case because Montez was a witness to theconduct for which the defendants are charged. Montez, the defendants,and Agent Endre were the four persons present at the drug sale. Weconclude that in this case the clearly legitimate need to call Montez gavethe trial court little or no reason to expressly explore the possibility that theprosecution was overreaching when it moved to disqualify RobertNovelle.

Defendants suggest that it was only at the "last minute" that the Statecharacterized Montez as a "State Witness." They argue that the State actedslowly in responding to requests for information about Montez duringdiscovery. Finally, they point out that Agent Endre was present during thedrug sale, and argue the State would not need to call Montez to make itscase. They urge us to conclude that the State's effort to remove RobertNovelle is in bad faith. However, the timing of the State's actions and thefact that the State could conceivably proceed without calling Montez as awitness are insufficient bases for a reviewing court to draw such aconclusion. Moreover, it would hardly be appropriate, even for the trialcourt, to find before trial that the prosecution has no legitimate need to callan occurrence witness such as Montez. Finally, the trial court is in a betterposition than a reviewing court to judge the motives and intentions of theprosecutors. There is no indication that the trial court in this case suspectedoverreaching or bad faith on the part of the prosecution.

B

The parties before this court, and the courts below, largely framed theissue in this case in terms of two questions: (1) Did Donald Novelle'srepresentation of Montez create a per se conflict? (2) Did the defendantsprovide a valid waiver of the right to conflict-free counsel?

In Holmes we explained that the concept of a per se conflict appliesonly to cases where a defendant claims ineffective assistance of counsel dueto his attorney's conflict. Holmes, 141 Ill. 2d at 220-21. This is not sucha case. Rather, Wheat and Holmes are the controlling precedent.

The appellate court found that defendants provided a valid waiver andreversed the trial court on that basis alone. 329 Ill. App. 3d at 123.However, a valid waiver by itself does not negate the trial court's authorityto deny counsel of choice. People v. Barrow, 133 Ill. 2d 226, 252 (1989).Among the factors that Holmes identified as permissible considerations inthe decision to disqualify defense counsel, neither factor (2), the State'sright to a fair trial, nor factor (3), the appearance of impropriety, areaffected by a valid waiver. Assuming, arguendo, that defendants Natal andOrtega did clearly waive the potential conflict, the trial court neverthelessacted within its discretion provided it considered the second and thirdfactors from Holmes, or other permissible factors not affected by a waiver,and reasonably concluded that those factors outweigh the presumption infavor of defendants' counsel of choice.

IV. ANALYSIS OF THE TRIAL COURT'S DECISION

Our first question is whether the trial court could have reasonablyfound at least a serious potential for conflict arising from Donald Novelle'srepresentation of Montez. Holmes, 141 Ill. 2d at 228. The court heardtestimony from Donald Novelle about his representation of Montez. Afterhearing this evidence, the trial court found that there was a per se conflictof interest. As we have explained, there was no need to determine whetherthere was a per se conflict. However, we conclude that record evidencethat the trial court relied upon in finding a per se conflict would alsoreasonably support a finding that there is at least a serious potential forconflict. Specifically, the court could find a potential conflict betweenRobert Novelle's professional obligation to protect confidential informationgiven to him by Montez through Donald Novelle and the interests of thedefendants in thorough cross-examination of the witnesses against them.The record shows that Donald Novelle represented Montez in connectionwith the very facts that are at issue in this case and that Donald discussedhis representation of Montez with Robert. Because Montez was to testifyfor the prosecution, the evidence that Robert Novelle received confidentialinformation from Montez through Donald Novelle is sufficient to support afinding that there is a serious potential for conflict in this case.

The defendants argue that the record indicates there is no conflictbecause Montez's testimony before Judge DeBoni shows that he will testifythat Natal was entrapped. Specifically, they contend that the record showsthat Natal was involved in the drug sale only as a favor to Montez, to helpMontez keep his alleged bargain with Agent Endre, and that Agent Endrepromised Montez that Natal would not be charged. We note, first, that theentrapment defense that the defendants describe does not apply to Ortegaand thus would not negate the conflict as to Ortega. Moreover, defendantsacknowledged at oral argument that they presented the same argument tothe trial court, which nevertheless found a conflict. We cannot say that thetrial court's finding was arbitrary, fanciful, or that no reasonable personwould agree with it. The evidence that Montez's testimony will support adefense for Natal simply does not eliminate the serious possibility thatMontez could testify against Natal's interests on some point.

Defendants assert that Montez waived any conflict. Donald Novelletestified that Montez waived any conflict during what Novelle described asan "informal conference" before Judge Fitzgerald, which took placeimmediately after Montez refused to testify before the grand jury. Theinformal conference before Judge Fitzgerald is not of record. Assuming,arguendo, that we could find a waiver based on testimony that a waiveroccurred, it would not affect our conclusion that the trial court couldreasonably find a conflict. In Wheat the trial court's decision to denycounsel of choice was upheld even though both the defendant and thepotential prosecution witnesses proffered waivers. Wheat, 486 U.S. at157, 100 L. Ed. 2d at 147, 108 S. Ct. at 1696.

The dissent believes the record clearly shows Montez waivedattorney-client confidentiality, and contends that a waiver of confidentiality,unlike a waiver of the conflict, erases the conflict itself. The dissentconcludes we cannot affirm the trial court's decision even under adeferential standard of review.

We express no opinion about whether there is a crucial differencebetween a waiver of confidentiality and a waiver of the conflict. The circuitcourt heard evidence that Montez waived confidentiality and neverthelessgranted the motion to disqualify Robert Novelle. Even if we assume,arguendo, that a waiver of confidentiality requires the motion be denied,the circuit court's decision must be upheld unless the court was bound tofind that Montez waived confidentiality. The dissent claims that failure to sofind cannot be affirmed in light of Donald Novelle's testimony regardingMontez's waiver. We disagree.

First, the only thing that the testimony quoted by the dissent clearlyshows is that Donald Novelle believed that, if present, Montez would tellthe court that he had no objection to Novelle's firm divulging otherwiseprivileged information. Donald based this belief on what occurred morethan two years previously during the informal conference before JudgeFitzgerald. The record shows that, prior to the quoted testimony, the courttried several times to clarify what occurred during the informal conference.Initially, Donald stated that Judge Fitzgerald recommended that anotherattorney represent Montez, "even though my client had waived anyconflict." Later, Donald gave a lengthy account of the events leading up tothe informal conference, which he concluded by again stating that JudgeFitzgerald recommended separate representation for Montez "even thoughyour client has waived any conflict." Shortly after that, the court askedDonald whether he had shared any private information regarding Montezwith Robert Novelle. Donald replied, "I had from my client a waiver of anyconflict of interest." Finally the court posed the hypothetical question thatthe dissent quotes. Donald's various statements that Montez "waived anyconflict," combined with his assertion that Montez would waiveconfidentiality, simply is not a clear statement that Montez actually didwaive confidentiality.

Second, even had Donald Novelle clearly and unequivocally testifiedthat Montez waived confidentiality, the trial court would not be bound tohold there was a waiver. There are indeed circumstances in which a factfinder is bound by testimony. People ex rel. Brown v. Baker, 88 Ill. 2d81, 85 (1981). That is, the fact finder may not make an affirmative findingthat is the exact opposite of what was stated in the testimony. Brown, 88Ill. 2d at 86, quoting 30 Am. Jur. 2d Evidence