NOTICE 2024 IL App (4th) 231166-U This Order was filed under FILED Supreme Court Rule 23 and is July 3, 2024 NO. 4-23-1166 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Brown County TREVOR KECK, ) Nos. 22MT41, Defendant-Appellant. ) 22TR288 ) ) Honorable ) Jerry J. Hooker, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Doherty and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed and remanded for a new hearing on the State’s motion to disqualify defendant’s counsel, concluding the law was misapplied in the prior proceedings and, as a result, it was unable to determine the correctness of the circuit court’s disqualification of defendant’s counsel.
¶2 Defendant, Trevor Keck, was charged with operating an uninsured motor vehicle,
speeding, and street racing. The State moved to disqualify defendant’s retained counsel because
another attorney in counsel’s firm was representing a State’s witness in an unrelated case. The
circuit court granted the State’s motion to disqualify and denied defendant’s motion to reconsider.
Defendant appeals the disqualification pursuant to Illinois Supreme Court Rule 604(g) (eff. Oct.
19, 2023). For the reasons that follow, we reverse and remand for a new hearing on the State’s
motion to disqualify defendant’s counsel.
¶3 I. BACKGROUND ¶4 A. Appearance of Counsel
¶5 In July 2022, the State charged defendant by citation and complaint with operating
an uninsured motor vehicle (625 ILCS 5/3-707 (West 2022)) and speeding (id. § 11-601(b)) in
Brown County case No. 22-TR-288. The citation and complaint were issued by Cody Shaffer, a
Brown County sheriff’s deputy. That same month, attorney Gerald Timmerwilke of the law firm
Blickhan, Timmerwilke and Woodworth entered an appearance on behalf of defendant. Thereafter,
the State charged defendant by information with street racing (id. § 11-506(a)(3), (d)(1)), a Class
A misdemeanor, in Brown County case No. 22-MT-41. The additional charge stemmed from the
same incident upon which the original charges were based, and Timmerwilke entered an
appearance on behalf of defendant in case No. 22-MT-41.
¶6 B. Motion to Disqualify Counsel
¶7 In May 2023, the State filed a motion to disqualify Timmerwilke and a supporting
memorandum. The State averred it had learned Shaffer, the investigating officer in this case, had
been represented by Timmerwilke’s law partner, attorney Dennis Woodworth, since January 2023
in an unrelated case where Shaffer was charged with multiple felonies, including a Class X felony.
The State also averred Shaffer interviewed and took statements from defendant and several
witnesses. As for its charges against defendant, the State indicated it intended to call Shaffer as a
witness to establish defendant was the driver of the involved vehicle. The State indicated it may
also have to call Shaffer to rehabilitate witnesses with their prior statements. As for defendant’s
defense against the charges, the State asserted Timmerwilke may have to cross-examine Shaffer
and, in doing so, might use confidential information obtained during his firm’s representation of
Shaffer against him and might challenge his credibility with his pending criminal charges. The
State also asserted Timmerwilke may have to call Shaffer as a witness to impeach other witnesses
-2- with the statements they provided to Shaffer. The State argued the contemporaneous representation
of both defendant and Shaffer by Timmerwilke’s law firm resulted in a “per se conflict of interest”
and there had been no valid waiver of said conflict by defendant. In addition, the State asserted,
even if defendant waived the conflict, Timmerwilke should be disqualified because (1) it was
entitled to a fair trial in which the defense does not use confidential information to attack a State’s
witness and in which the State’s witness would not be potentially influenced to give testimony
favorable to a client of the law firm representing him and (2) allowing a law firm to
contemporaneously represent both a witness for the State and a defendant could lead a jury and
the public to conclude a trial is not fair or the defense bar is being allowed to behave unethically.
¶8 C. Response to the Motion to Disqualify Counsel
¶9 In June 2023, defendant, through Timmerwilke, filed a response to the State’s
motion to disqualify Timmerwilke and a supporting memorandum. Timmerwilke acknowledged
the contemporaneous representation of defendant and Shaffer by his law firm “could give rise to a
per se conflict.” Timmerwilke averred he disclosed the conflict to defendant, who was 17 years
old at the time, as well as defendant’s mother after the conflict was brought to his attention, and
defendant and his mother wished to waive the conflict. A written waiver executed by defendant’s
mother was attached to the response. As for defendant’s defense against the charges, Timmerwilke
indicated he had no reason to impeach Shaffer or call his testimony into doubt because Shaffer
would convey the following undisputed facts: (1) he responded to a call-in report, (2) he spoke
with defendant and the witnesses at the scene, and (3) he issued defendant a speeding ticket.
Timmerwilke also indicated he may have to call Shaffer as a witness to elicit information about a
written statement he received from a witness to attack the credibility of that witness. As for the
State’s concern about a fair trial, Timmerwilke asserted he was not privy to any confidential
-3- information which could be used against Shaffer and, to the extent the State believed Shaffer might
fabricate his testimony for the purpose of appeasing the law firm representing him, the State could
inquire into any bias in its examination of Shaffer. Finally, as for the appearance of impropriety,
Timmerwilke emphasized defendant had chosen to waive his right to a jury trial. Timmerwilke
argued defendant’s constitutional right to counsel of choice should not be infringed upon.
¶ 10 D. Hearing on the Motion to Disqualify Counsel
¶ 11 On July 5, 2023, the circuit court conducted a hearing on the State’s motion to
disqualify Timmerwilke. Defendant was present at the hearing. The court entertained arguments
from the State and Timmerwilke.
¶ 12 The State initially acknowledged it had referred to a “per se conflict,” which it
noted was not “necessarily” correct. It explained, “A per se conflict has to be raised by a motion
of the defendant, so usually he’s convicted, files a post[ ]conviction motion alleging ineffective
assistance because of a conflict, then it’s treated as a per se.” Nevertheless, the State maintained,
“the analysis is exactly the same between the two instances of per se or just the conflict that I have
raised.”
¶ 13 The State averred Shaffer would testify concerning his investigation and interviews
with defendant and others at the scene. The State asserted, despite Timmerwilke’s belief he would
not have to cross-examine Shaffer based upon his expected testimony, Timmerwilke may need to
impeach him with his pending criminal charges if his testimony changed. The State also asserted
Timmerwilke may have confidential information about Shaffer which could be used against him.
The State suggested Shaffer could believe giving testimony incriminating to defendant, a client of
the same law firm which represented him, could cause resentment and negatively impact his
representation in his case, thereby potentially influencing his testimony.
-4- ¶ 14 The State argued the interests affected by the conflict in this case overcame the
presumption of counsel of choice. Specifically, the State asserted its interest in a fair trial and the
circuit court’s interest in avoiding an appearance of impropriety overcame the presumption. In so
arguing, the State asserted, even if the court admonished defendant concerning the conflict and
obtained a valid waiver, it could still disqualify Timmerwilke based upon the other interests
affected by the conflict.
¶ 15 In response, Timmerwilke initially asserted “there [was] no conflict,” while, at the
same time, asserting the circuit court needed to inquire of defendant as to his “understand[ing]
what the waiver is.”
¶ 16 Timmerwilke averred he had no need to cross-examine Shaffer based upon his
expected testimony. He also averred he had no confidential information about Shaffer which could
be used against him; he was not involved in Shaffer’s case. Timmerwilke acknowledged he may
have to examine Shaffer if witnesses provided testimony inconsistent with the prior written
statements obtained by Shaffer. Timmerwilke asserted he had explained the conflict to defendant
and his mother, and defendant wanted to waive the conflict and proceed with his counsel of choice.
¶ 17 Timmerwilke argued the interests affected by the conflict did not overcome the
presumption of defendant’s counsel of choice. Timmerwilke asserted defendant was willing to
waive the conflict, he did not plan to cross-examine Shaffer, he did have any confidential
information which could be used against Shaffer, and any appearance of impropriety was
alleviated by the fact the case was set for a bench trial on relatively minor charges.
¶ 18 In reply, the State argued Timmerwilke’s defense strategy was “irrelevant” because
he may have to cross-examine Shaffer if his testimony changed or examine him if the other
witnesses provided statements inconsistent with their prior written statements. The State also
-5- argued their small community would likely become aware of the situation.
¶ 19 After hearing from the State and Timmerwilke, the circuit court indicated it would
take the matter under advisement. Timmerwilke did not remind the court of his request for it to
examine defendant concerning the conflict and his desire to waive it.
¶ 20 E. Ruling on the Motion to Disqualify Counsel
¶ 21 On July 12, 2023, the circuit court entered an order granting the State’s motion to
disqualify Timmerwilke. The court found the contemporaneous representation of defendant and
Shaffer by the same law firm amounted to a “per se conflict” of interest. The court recognized the
presumption in favor of defendant’s counsel of choice but found that presumption had been
overcome by the interests affected by the conflict. Initially, as for a waiver of the conflict, the court
noted it did “not believe the minor [and] mother, given their lack of involvement in the Judicial
System, can make a knowing waiver of the per se conflict that exists.” The court found the State’s
interest in a fair trial favored disqualification because it had no way of knowing how Shaffer would
respond to questions posed by the same law firm representing him in a serious felony case. The
court found its interest in avoiding an appearance of impropriety favored disqualification given the
possibility their “small community” would learn “that the same law firm represented the defendant
and the State’s witness at the same time.” Finally, the court found the likelihood of reversal of any
conviction favored disqualification because it would have been difficult to admonish defendant
“of all the subtle conflicts that could arise.”
¶ 22 F. Motion to Reconsider the Disqualification
¶ 23 On July 31, 2023, defendant, through Timmerwilke, filed a motion to reconsider
the disqualification. Timmerwilke did “not dispute the finding that a per se conflict exists.”
Instead, Timmerwilke asserted the circuit court erred in (1) finding a person with little exposure
-6- to the judicial system is incapable of executing a valid waiver of a conflict, (2) declining to
examine defendant and/or his mother about the waiver, and (3) finding the interests affected by
the conflict outweighed defendant’s right to counsel of his choice. Timmerwilke asked the court,
in reconsidering the disqualification, to consider the “extreme prejudice and hardship” to defendant
if Timmerwilke was disqualified at that stage of the proceedings.
¶ 24 G. Supplement to the Motion to Reconsider the Disqualification
¶ 25 On September 11, 2023, defendant, through Timmerwilke, filed a supplement to
the motion to reconsider. Timmerwilke asked the circuit court to consider a recent factual
development when reconsidering the disqualification: Woodworth no longer represented Shaffer.
¶ 26 H. Response to the Motion to Reconsider the Disqualification
¶ 27 Also on September 11, 2023, the State filed a response to the motion to reconsider
and a supporting a memorandum. The State asserted (1) there was a “per se conflict of interest,”
(2) the circuit court was not required to examine defendant or his mother, and (3) the court
correctly concluded the interests affected by the conflict overcame the presumption of counsel of
choice.
¶ 28 I. Hearing on the Motion to Reconsider the Disqualification
¶ 29 On September 12, 2023, the circuit court conducted a hearing on defendant’s
motion to reconsider the disqualification. Defendant was present at the hearing.
¶ 30 At the outset of the hearing, Timmerwilke asked the circuit court to inquire of
defendant, who had since turned 18 years old, as to his understanding “of the waiver of conflict.”
Timmerwilke noted he previously asked the court to inquire of defendant, but “[i]t just never got
done.” Timmerwilke provided the court with a written waiver executed by defendant; the written
waiver is not, however, part of the record on appeal. The court granted Timmerwilke’s request.
-7- ¶ 31 On inquiry of the circuit court, defendant indicated he was a high school graduate.
While in high school, he took a civics class, where he learned “[a] little bit” about the court system
but did not “remember too much of it.” The court asked defendant about the waiver he executed.
Defendant testified he discussed the waiver with Timmerwilke and believed it meant “[t]hat he’s
still my attorney and I don’t believe that he will be not fair to me.” The court asked defendant:
“Do—when—when you—you’ve been here the whole time. Do—when we talk about conflicts of
interest, do you—do you understand what a conflict of interest could be or might—might be?”
Defendant responded, “Not really.”
¶ 32 The circuit court asked Timmerwilke about his prior statements indicating he
discussed “some things that could occur” with defendant and his mother. Timmerwilke explained
they discussed Woodworth’s representation of Shaffer in an unrelated case and the expected
testimony of Shaffer in defendant’s case.
¶ 33 Defendant, on further inquiry of the circuit court, acknowledged Shaffer had
interviewed other witnesses. Both defendant and Timmerwilke, on inquiry of the court,
acknowledged at least one of those witnesses gave conflicting statements. Defendant
acknowledged Shaffer may be called as a witness by Timmerwilke to address the prior statements.
¶ 34 Defendant indicated he discussed “waiving [the] conflict” with his mother. He
explained they concluded “[t]hat we were fine with going ahead with my attorney in that he—if
we were to find another one that we’d have to—is this would drag out longer and it just—I—I
don’t know. My attorney already knows everything, and we feel comfortable with him.”
¶ 35 The circuit court asked Timmerwilke if he had any additional questions, to which
Timmerwilke indicated he did not. The court asked the same of the State, to which the State
indicated it did not have any questions.
-8- ¶ 36 Following the examination of defendant, Timmerwilke asked the circuit court to
inquire of defendant’s mother. Timmerwilke noted she had been a legal secretary for 18 years.
Timmerwilke also noted she worked for the Quincy Police Department as an evidence technician
and routinely testified on evidentiary matters. The court granted Timmerwilke’s request.
¶ 37 Defendant’s mother, when asked by the circuit court about the discussions she had
with defendant concerning the conflict, explained:
“We just discussed the fact that [Timmerwilke] already has
a lot of knowledge about his case, he knows the details, he knows
my son, he knows all of the witness statements, and—and we
discussed the fact that, you know, the conflict is that the—the firm
represents both individuals, [Shaffer], as the Sheriff’s Deputy at the
time, and then my son when the traffic accident occurred. So we
discussed what the conflict is, what, you know, potential [e]ffects it
could, you know, have on the outcome of his trial, if we get to that
point, and that he didn’t feel—and we don’t feel that [Timmerwilke]
will represent him any differently just because [Shaffer] did not
witness anything. He took statements. So we just discussed how that
[a]ffects the outcome.”
¶ 38 Timmerwilke argued defendant “fully understood the conflict” and was “waiving
it.” Timmerwilke also argued the other interests affected by the conflict did not outweigh the
presumption in favor of counsel of choice. Timmerwilke invited the circuit court to consider the
hardship on defendant to get a new attorney at that point in the proceedings.
¶ 39 In response, the State argued the examination of defendant indicated he did not
-9- fully understand the conflict in order to waive it. The State also maintained the interests affected
by the conflict overcame the presumption of counsel of choice. In addressing the interests affected,
the State asserted the circuit court should not consider the particular facts of the case because “the
very nature of [the] per se conflict rule precludes inquiry.”
¶ 40 In reply, Timmerwilke maintained the circuit court’s examination of defendant
established a knowing waiver of the conflict. Timmerwilke also asked the court if it had seen his
supplement to the motion to reconsider, to which the court indicated it had.
¶ 41 After examining defendant and defendant’s mother and hearing from Timmerwilke
and the State, the circuit court took the matter under advisement. In doing so, the court noted,
“there’s no question it’s a per se conflict”; the question, instead, was whether there was “a knowing
and intelligent waiver that—that would surpass the per se conflict.”
¶ 42 J. Ruling on the Motion to Reconsider the Disqualification
¶ 43 On October 2, 2023, the circuit court entered an order denying defendant’s motion
to reconsider the disqualification. The court found the representation of defendant and Shaffer by
the same law firm created a “per se conflict” of interest. The court noted “[t]he fact the law firm
no longer represents [Shaffer] does not extinguish the per se conflict.” The court found: “There
are various impeachment problems that can arise if any of the four potential witnesses change their
version of the events. The court does not believe an [18-year-old] defendant with no experience in
the judicial system could understand them all.” The court concluded there was no valid waiver of
the conflict. The court also considered the hardship on defendant to find a new attorney, finding
any hardship minimal given the nature of the charges and the stage of the proceedings. The court
did not otherwise address the other interests affected by the conflict.
¶ 44 K. Petition for Leave to Appeal
- 10 - ¶ 45 On October 19, 2023, defendant filed a petition for leave to appeal, which this court
later granted. See Ill. S. Ct. R. 604(g) (eff. Oct. 19, 2023).
¶ 46 This appeal followed.
¶ 47 II. ANALYSIS
¶ 48 On appeal, defendant argues this court should reverse the disqualification of
Timmerwilke and remand the matter for trial because the circuit court misapplied the law during
the proceedings below. Specifically, defendant asserts the court erred by (1) failing to examine
either him or his mother at the hearing on the motion to disqualify, (2) finding he was incapable
of executing a valid waiver based upon his age and limited exposure to the criminal justice system,
and (3) finding the interests affected by any conflict outweighed the presumption in favor of
counsel of choice.
¶ 49 The State, in response, argues this court should affirm the disqualification because
the circuit court did not commit any error, or at least any potential error which was not later cured.
Specifically, the State asserts, assuming arguendo it was error for the court not to examine
defendant or his mother at the hearing on the motion to disqualify, the error was cured by the
court’s reconsideration and examination of them at the hearing on the motion to reconsider. The
State also asserts the court reasonably concluded defendant could “not waive the per se conflict
given the nuances and difficulties in understanding such a conflict.” Finally, the State asserts,
regardless of whether defendant entered a valid waiver, the court reasonably concluded the State’s
interest in a fair trial and its interest in avoiding an appearance of impropriety outweighed the
presumption in favor of defendant’s counsel of choice. As for its interest in a fair trial, the State
emphasizes, “The potential use of confidential information given by [Shaffer] to his own counsel[ ]
to impeach him in the current proceedings is simply too great to ignore.”
- 11 - ¶ 50 A. Standard of Review
¶ 51 The disqualification of a defendant’s counsel of choice will not be reversed on
appeal unless “there has been a clear abuse of discretion.” People v. Holmes, 141 Ill. 2d 204, 222,
565 N.E.2d 950, 958 (1990). “Generally, a court abuses its discretion when its decision is fanciful,
arbitrary, or unreasonable to the degree that no reasonable person would agree with it.” People v.
Ortega, 209 Ill. 2d 354, 359, 808 N.E.2d 496, 500-01 (2004). A court also abuses its discretion “if
it fails to apply the proper criteria when it weighs the facts.” Id. at 360. Therefore, “our inquiry
must consider both the legal adequacy of the way the *** court reached its result as well as whether
the result is within the bounds of reason.” Id.
¶ 52 B. The Applicable Law
¶ 53 The sixth amendment of the United State Constitution guarantees criminal
defendants the assistance of counsel. U.S. Const., amend. VI. This constitutional guarantee
encompasses both (1) a right to the effective assistance of counsel and (2) a right to counsel of
choice. Holmes, 141 Ill. 2d at 217. Either of these rights may be implicated where there are
concerns that an attorney’s allegiance to the client is diluted by conflicting interests or inconsistent
obligations. See id. at 220-22.
¶ 54 Where, as in this case, the State moves to disqualify defense counsel on conflict-
of-interest grounds and the defendant objects, the defendant’s right to counsel of choice is
implicated. Id. at 217. The right to counsel of choice is not absolute, and it may be circumscribed
on conflict-of-interest grounds. Id. There is, however, a presumption in favor of defendant’s
counsel of choice. Id. at 223.
¶ 55 Our supreme court has set forth a two-part test governing State challenges to a
defendant’s counsel of choice on conflict-of-interest grounds. Ortega, 209 Ill. 2d at 360-62. The
- 12 - first step requires the circuit court to determine whether defense counsel “has a specific
professional obligation that actually does conflict or has a serious potential to conflict with
defendant’s interests.” Id. at 361. The second step requires the court to determine “whether the
interests threatened by the conflict or potential conflict are weighty enough to overcome the
presumption [in favor of the defendant’s counsel of choice].” Id.
¶ 56 As for the first step of the two-part test governing State challenges to a defendant’s
counsel of choice on conflict-of-interest grounds, the issue is not whether there is a per se conflict
of interest. As our supreme court has made clear, “the concept of a per se conflict applies only to
cases where a defendant claims ineffective assistance of counsel due to his attorney’s conflict.” Id.
at 364; see also Holmes, 141 Ill. 2d 220-21. The issue, again, is whether defense counsel “has a
specific professional obligation that actually does conflict or has a serious potential to conflict with
defendant’s interests.” Ortega, 209 Ill. 2d at 361. Determining whether defense counsel has a
specific professional obligation that conflicts with defendant’s interests will often depend on
predicting future events. As a result, the “more common case[ ]” is one in which the court finds a
serious “potential for conflict exists which may or may not burgeon into an actual conflict as the
trial progresses.” Wheat v. United States, 486 U.S. 153, 163 (1988).
¶ 57 As for the second step of the two-part test governing State challenges to a
defendant’s counsel of choice on conflict-of-interest grounds, our supreme court has identified
several interests or factors which may be considered in determining whether the interests
threatened by the conflict or potential conflict are weighty enough to overcome the presumption
in favor of the defendant’s counsel of choice:
“(1) the defendant’s interest in having the undivided loyalty of
counsel; (2) the State’s right to a fair trial in which defense counsel
- 13 - acts ethically and does not use confidential information to attack a
State’s witness; (3) the appearance of impropriety should the jury
learn of the conflict; [and] (4) the probability that continued
representation by counsel of choice will provide grounds for
overturning a conviction.” Ortega, 209 Ill. 2d at 361-62.
Another factor identified by the court is whether “the State’s claim that a conflict warrants
disqualification is the result of overreaching.” Id. at 362. As the court has made clear, these
interests or factors are not the only ones that may be considered; instead, consideration may be
given to any potential interest of the defendant, the State, the witnesses, or the public. Id.
¶ 58 Additionally, with respect to the second step of the two-part test governing State
challenges to a defendant’s counsel of choice on conflict-of-interest grounds, several interests or
factors may be alleviated by the defendant knowingly waiving the actual or potential conflict. Id.
at 364. To make such a waiver, the defendant must be examined by the circuit court concerning
the existence and significance of the conflict. See People v. Olinger, 112 Ill. 2d 324, 339, 493
N.E.2d 579, 587 (1986). As the First District recently stated, “[t]his is no easy task.” People v.
Hill, 2023 IL App (1st) 150396, ¶ 17, 218 N.E.3d 1217. As such, we believe the State, as the party
seeking to infringe upon the defendant’s constitutional right to counsel of choice, as well as defense
counsel, who is seeking to continue to represent the defendant despite a potential or actual conflict,
should assure an appropriate examination of the defendant is conducted by the court.
¶ 59 C. This Case
¶ 60 In this case, the circuit court effectively considered whether Timmerwilke should
be disqualified as counsel on two separate occasions. The court initially considered the issue
following the hearing on the State’s motion to disqualify. The court then, following the hearing on
- 14 - defendant’s motion to reconsider the disqualification, considered the issue anew based upon new
arguments and facts.
¶ 61 The circuit court, both in its order granting the State’s motion to disqualify
Timmerwilke and in its order denying defendant’s motion to reconsider the disqualification,
commenced its analyses by determining the representation of defendant and Shaffer by the same
law firm amounted to a “per se conflict” of interest. The issue of whether there was a per se conflict
of interest was not, however, the issue before the court. Instead, the issue before the court—the
first step of the two-part test governing State challenges to a defendant’s counsel of choice on
conflict-of-interest grounds—was whether Timmerwilke had a specific professional obligation
that actually conflicted or had a serious potential to conflict with defendant’s interests. More
specifically, the issue, based upon the new information before the court at the hearing on the
motion to reconsider, was whether Timmerwilke had a specific professional obligation stemming
from his partner’s prior representation of Shaffer that actually conflicted or had a serious potential
to conflict with defendant’s interests. This issue was not addressed by the court.
¶ 62 The failure to correctly identify and address the first step of the two-part test
governing State challenges to a defendant’s counsel of choice on conflict-of-interest grounds led
to a failure to properly admonish defendant of any actual or potential conflict at issue. Certainly,
defendant was admonished and present for discussions concerning the possibility of Timmerwilke
having to examine Shaffer at trial. However, the significance of Timmerwilke examining a former
client of his law partner was not addressed, i.e., how it might affect Timmerwilke’s examination
of that former client. See, e.g., People v. Acevedo, 2018 IL App (2d) 160562, ¶ 20, 121 N.E.3d
530.
¶ 63 Likewise, the failure to correctly identify and address the first step of the two-part
- 15 - test governing State challenges to a defendant’s counsel of choice on conflict-of-interest grounds
led to a failure to appropriately consider the interests affected by any actual or potential conflict of
interest. While the State and the circuit court may have been rightly concerned about the State’s
interest in a fair trial and the court’s interest in avoiding an appearance of impropriety when the
same law firm contemporaneously represented both defendant and Shaffer, the circumstances
changed when the court allowed defendant to introduce new facts at the hearing on the motion to
reconsider. The law firm no longer represented Shaffer, alleviating the concerns of the State and
the court that Shaffer may be influenced to give testimony favorable to another client of the law
firm to secure better representation. Additionally, despite the State’s continued concern on appeal
about Timmerwilke potentially having confidential information, he has repeatedly expressed he
does not have any such information. As the record stands, the only remaining expressed concern
not impacted by any waiver is the court’s interest in avoiding an appearance of impropriety. The
State does not suggest that factor, by itself, would be sufficient to overcome the presumption in
favor of counsel of choice. See People v. Buckhanan, 2017 IL App (1st) 131097, ¶ 36, 70 N.E.3d
1278 ( “[T]he appearance of impropriety alone is a slender reed on which to justify disqualification
of counsel.”).
¶ 64 In sum, we find the failure to correctly identify and address the first step of the
two-part test governing State challenges to a defendant’s counsel of choice on conflict-of-interest
grounds led to additional failures precluding a determination by this court as to whether the result
reached by the circuit court was within the bounds of reason. C.f. Ortega, 209 Ill. 2d at 364
(affirming the circuit court’s judgment despite the court’s misapplication of the law where the
court reasonably concluded those interests not affected by any waiver outweighed the presumption
in favor of the defendant’s counsel of choice). In so finding, we recognize the court was not solely
- 16 - responsible for the misapplication of the law; both the State and Timmerwilke repeatedly
addressed the issue as one of a per se conflict of interest.
¶ 65 It is, therefore, necessary for this court to reverse and remand for a new hearing on
the State’s motion to disqualify Timmerwilke. On remand, the parties should address, and the
circuit court should determine, whether (1) Timmerwilke has a specific professional obligation
stemming from his partner’s prior representation of Shaffer that actually does conflict or has a
serious potential to conflict with defendant’s interests, (2) defendant understands the actual or
potential conflict and its significance and desires to waive said conflict, and (3) the interests
threatened by the conflict or potential conflict are weighty enough to overcome the presumption
in favor of defendant’s counsel of choice.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we reverse and remand for a new hearing on the State’s
¶ 68 Reversed; cause remanded.
- 17 -