People v. Santiago ( 2010 )

Docket No. 107391.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
EVELYN SANTIAGO, Appellant.
Opinion filed March 18, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
At issue in this case is Rule 4.2 of the Illinois Rules of
Professional Conduct (134 Ill. 2d R. 4.2). Rule 4.2, known as the “no
contact” rule, has been amended effective January 1, 2010, but at the
relevant time provided that, “[d]uring the course of representing a
client a lawyer shall not communicate or cause another to
communicate on the subject of the representation with a party the
lawyer knows to be represented by another lawyer in that matter,”
unless certain exceptions are present. 134 Ill. 2d R. 4.2.
Defendant was the respondent in a juvenile court child protection
case seeking to declare defendant’s two children wards of the court,
based upon injuries to defendant’s daughter. An attorney was
appointed to represent defendant in the child protection case.
Defendant later was arrested for child endangerment, based upon the
same facts giving rise to the child protection case. Detectives and
assistant State’s Attorneys questioned defendant in the criminal case
without contacting defendant’s appointed attorney in the child
protection case. The trial court held that the assistant State’s
Attorneys violated Rule 4.2, and therefore suppressed defendant’s
oral and written statements to the assistant State’s Attorneys. The
appellate court, with one justice dissenting, reversed the trial court.
384 Ill. App. 3d 784. We now affirm the appellate court.
BACKGROUND
On June 21, 2002, defendant’s 13-month-old daughter, S.H., was
taken to Norwegian American Hospital in Chicago with injuries to
her genitals. On June 23, 2002, Detectives Auguste and Antol of the
Special Victims Unit were assigned to investigate the injury, based on
a child abuse hotline report. Detective Auguste spoke with defendant
concerning the injury. Defendant told Auguste that she had been
giving her two children a bath, and that S.H. was injured when she
fell on a plastic sipping cup.
S.H. was initially examined by Dr. Bogolub. Dr. Bogolub said it
was possible that S.H. sustained her injury in the manner claimed by
defendant, but he also said that he could not rule out child abuse.
On June 25, 2002, Detective Auguste received a telephone call
from Dr. Fujara, a child abuse expert at Cook County Hospital in
Chicago. Dr. Fujara indicated that the injury was highly suspicious
because the victim’s labia minora were pulled, and had been removed
with a sharp object, such as a knife or a scapel. Dr. Fujara said that
the cut was very clean, and that there was no bruising indicative of a
“straddle injury.” Dr. Fujara’s opinion was that S.H. had been abused.
On June 25, 2002, petitions for adjudication of wardship and
motions for temporary custody of S.H. and her brother E.H. were
filed in the child protection division of the circuit court of Cook
County, by the juvenile division of the Cook County State’s
Attorney’s office. That same day, attorney Melinda MacGregor was
appointed attorney of record for defendant in the child protection
cases.
On July 13, 2002, defendant took a polygraph examination and
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failed. Detective Auguste interviewed defendant at the police station
and confronted her with her polygraph results. Defendant then said
that she gave her kids a bath, and when she walked away from the
tub, she heard S.H. scream. When she returned to the tub, she noticed
blood, as well as a sipping cup or a laundry detergent cap.
Detective Auguste interviewed Kevin H., the victim’s biological
father, on July 29, 2002. Kevin H. told Auguste that defendant had a
history with DCFS as a victim of sexual abuse, and that defendant
had been indicated as a sexual offender against a younger cousin.
Auguste confirmed the accuracy of this information.
On August 27, 2002, Detective Auguste asked defendant to come
to the police station. Around 11:25 a.m., Detectives Auguste and
Antol read defendant her Miranda warnings and then questioned her.
When Auguste asked defendant what happened, she repeated her
previous account of the accident. Auguste then placed defendant
under arrest for child endangerment. He also contacted the felony
review division of the Cook County State’s Attorney’s office and
requested that an assistant State’s Attorney come to the station.
Assistant State’s Attorney Barbara Plitz arrived at the police
station around 2:45 p.m. Auguste, Plitz and Lieutenant Deloughery
then interviewed defendant. Plitz introduced herself, explained that
she was an assistant State’s Attorney and not defendant’s lawyer, and
advised defendant of her Miranda rights. Defendant made no
inculpatory statements at this interview.
When the interview was concluded, Deloughery and Plitz left the
room, although Plitz remained at the station to do paperwork.
Defendant, who remained in the room with Auguste, told Auguste
that she thought he and Plitz were trying to get her to admit
something that she did not do. Defendant told Auguste that she
wanted an attorney. When Auguste relayed this information to Plitz,
Plitz told Auguste that they could no longer talk to defendant, and
that Plitz would make a note of defendant’s request for the next
assistant State’s Attorney who handled the case.
Around 4 p.m., defendant called for Auguste and told him that she
wanted to speak with assistant State’s Attorney Plitz again. Auguste
told defendant that Plitz had left, and that defendant would have to
wait until another assistant State’s Attorney could arrive.
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Approximately an hour later, assistant State’s Attorney Megan
Meenan and Auguste met with defendant. Meenan explained to
defendant that she was a prosecutor and not defendant’s lawyer, and
explained that she worked with Plitz. Meenan questioned defendant
concerning defendant’s request for a lawyer. Defendant told Meenan
that she wanted to speak with her, so Meenan gave defendant her
Miranda rights. Defendant stated that she understood her rights, and
that she wanted to talk with Meenan and Auguste, and not to an
attorney. Meenan testified at defendant’s motion to suppress that she
was aware there was a child protection case pending and that
defendant’s children had been removed from her custody. During this
interview, defendant said that Aristede Brewer said he had “done it.”
Meenan terminated the interview, and Auguste attempted to verify
defendant’s claim.
Around 8 p.m., Meenan and Auguste reinterviewed defendant and
told her that her story did not check out. Defendant then said that she
was taking a bath with her children, and when she stepped out of the
tub, her daughter tried to climb out, panicked, and fell back onto a
floating detergent cap. This conversation ended around 9 p.m.
Defendant was taken to lock up around 10 p.m.
Around 10 a.m. the next day, Detectives Gomez and Hattula
interviewed defendant. Defendant was again advised of her Miranda
rights. Defendant told these detectives that when she left the room
while her son and S.H. were in the bathtub, she heard the sound of
glass breaking. When she went back into the room, she saw S.H.
bleeding from her vagina and saw her son holding the broken handle
of a coffee mug or cup. The detectives chastised defendant for
blaming her son and confronted her about changing her story. The
detectives also confronted defendant with the medical evidence. The
detectives again asked defendant if she had cut S.H. Defendant
admitted that she had.
Assistant State’s Attorney Plitz returned to the police station
around 1 p.m. Plitz, along with Detectives Gomez and Hattula, spoke
with defendant and again advised her of her Miranda rights.
Defendant agreed to talk and eventually made an inculpatory
statement.
Thereafter, defendant filed a motion to suppress her statements,
and an amended motion to suppress. In the amended motion,
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defendant argued that she was represented by attorney MacGregor in
the child protection proceedings, and that attorney MacGregor was
never contacted by the Chicago police department or the office of the
Cook County State’s Attorney during defendant’s interviews, in
violation of Rule 4.2. The State responded that Rule 4.2 did not
prohibit a prosecutor from speaking to a criminal defendant in a
preindictment setting just because there was a pending child
protection court proceeding. The State noted that the child protection
court case was never discussed, the prosecutors were generally
unaware of the proceeding, and defendant’s confession was not
sought in connection with, or for admission in, the child protection
court proceedings. The State also argued that suppression of
defendant’s confession was not an appropriate remedy for a violation
of Rule 4.2.
With regard to defendant’s claims concerning Rule 4.2, the trial
court partially granted defendant’s motion to suppress. Relying on
People v. White, 209 Ill. App. 3d 844 (1991), the trial court held that
Rule 4.2 applied to criminal cases as well as civil cases. Because
defendant was represented by counsel in the child protection
proceedings, the trial court held that Rule 4.2 was violated in this
case, although the trial court found that the violation was not
“willful.” The trial court stated that, although the case numbers and
purposes of the child protection court case and the criminal case were
different, both cases involved the same facts. Therefore, the fact that
defendant had an attorney in the child protection case was imputed to
the prosecutors. Consequently, the prosecutors violated Rule 4.2 by
talking with defendant without her child protection attorney present.
However, the trial court denied defendant’s motion to suppress the
statements taken by the detectives because the detectives were not
acting as “alter egos of the State’s Attorney’s office.” The State
subsequently filed a certificate of substantial impairment and notice
of interlocutory appeal. 210 Ill. 2d R. 604(a)(1).
The appellate court, with one justice dissenting, reversed. 384 Ill.
App. 3d 784 (2008). On appeal, the State argued that: (1) Rule 4.2 did
not apply in criminal cases; (2) if Rule 4.2 did apply in criminal cases,
the rule did not apply before the filing of formal charges; (3) if Rule
4.2 applied prior to the filing of formal charges, Rule 4.2 was not
violated in this case because the criminal and child protection cases
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were different “matters,” or because the questioning at issue was
authorized by law; and (4) if Rule 4.2 applied and was violated, the
suppression of defendant’s written statement was not the proper
remedy for that violation.
The appellate court majority rejected the State’s claim that Rule
4.2 did not apply in criminal cases. 384 Ill. App. 3d at 788. The
appellate majority found the law unsettled concerning whether Rule
4.2 applied only after formal charges were filed, but held that there
was no need to address this issue because it found that Rule 4.2 did
not apply in this case. 384 Ill. App. 3d at 788-89. The majority held
that Rule 4.2 did not apply because the child protection case and the
criminal case were different “matters” for purposes of Rule 4.2. 384
Ill. App. 3d at 789.
The majority found the decision in People v. Moreno, 319 Ill.
App. 3d 445 (2001), persuasive. In Moreno, the appellate court
rejected the defendant’s claim that the criminal charges against her
should be dismissed based upon collateral estoppel, because the same
factual issues giving rise to the criminal case were resolved in the
defendant’s favor in a juvenile case filed against defendant. Moreno,
319 Ill. App. 3d 445. Moreno held that the differences of purpose and
goal in a juvenile proceeding and a criminal proceeding were “very
real,” and that important public policy reasons existed to prevent the
application of collateral estoppel. Moreno, 319 Ill. App. 3d at 452.
The appellate court majority acknowledged that Moreno arose
under different facts and addressed different issues than the instant
case, but agreed with Moreno’s conclusion that juvenile and criminal
proceedings are entirely different proceedings, serving different
purposes and having different goals. 384 Ill. App. 3d at 790. Further,
juvenile and criminal cases have different case numbers, are heard by
different judges, and involve different employees of the State’s
Attorney’s office. 384 Ill. App. 3d at 790. Moreover, proceedings
under the Juvenile Court Act of 1987 (705 ILCS 405/1–5(1) (West
2006)) are not meant to be adversarial, in contrast to criminal
proceedings. 384 Ill. App. 3d at 790.
The appellate majority further held that its conclusion was
consistent with a commonsense reading of Rule 4.2. 384 Ill. App. 3d
at 790. The majority noted that Rule 4.2 was written as a single
sentence, and “matter,” in the phrase “represented by another lawyer
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in that matter,” referred back to the subject of the representation. 384
Ill. App. 3d at 790. Here, the “subject of the representation” of
attorney MacGregor was the child protection proceeding in which
MacGregor was appointed. 384 Ill. App. 3d at 790. Therefore, the
only “matter” in the latter phrase of Rule 4.2 was the child protection
proceeding. 384 Ill. App. 3d at 790. “Matter” could not reference the
criminal investigation because that investigation was not the “subject
of the representation.” 384 Ill. App. 3d at 790-91. Therefore, at the
time defendant was questioned by the assistant State’s Attorneys in
the criminal investigation, she did not have counsel, so that Rule 4.2
was never triggered. 384 Ill. App. 3d at 792. Given its holding, the
appellate court did not address the State’s claims that the prosecutors’
questioning fell within the “authorized by law” exception to Rule 4.2
and that suppression of defendant’s statement was not a proper
remedy for a violation of Rule 4.2. 384 Ill. App. 3d at 792.
The dissent disagreed, believing that Rule 4.2 applied in this case.
384 Ill. App. 3d at 792 (Gordon, P.J., dissenting). The dissent
explained that:
“One detective started one investigation against one defendant
concerning one injury. Namely, on June 23, 2002, Detective
Auguste started an investigation of one injury to defendant’s
daughter. From this one investigation into this one injury, one
office of the State generated two sets of charges: one civil,
one criminal. The one office was the Cook County State’s
Attorney’s office. The incriminating information developed
in this one investigation would be used by this one office to
further both its civil and criminal charges.
There is no way that defendant’s civil defense attorney
could protect the rights of her client in the civil case without
being present during the interrogations of the defendant in this
investigation.” 384 Ill. App. 3d at 792 (Gordon, P.J.,
dissenting).
The dissent interpreted “that matter” in Rule 4.2 as referring to “the
subject of the representation.” 384 Ill. App. 3d at 793 (Gordon, P.J.,
dissenting). “The ‘subject’ or ‘matter’ about which the prosecutors
questioned defendant was the injury that was the ‘subject’ of the civil
attorney’s appointment.” 384 Ill. App. 3d at 793 (Gordon, P.J.,
dissenting). Therefore, defendant was represented by another lawyer
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when the prosecutors questioned her about the subject of that
representation. 384 Ill. App. 3d at 793 (Gordon, P.J., dissenting).
The dissent clarified that he was not finding that the civil attorney
represented defendant for purposes of the criminal case. 384 Ill. App.
3d at 793 (Gordon, P.J., dissenting). Rather, the dissent was only
finding that in order to effectively protect defendant’s rights in the
civil case, defendant’s civil attorney had to be present when the
prosecutors questioned defendant. 384 Ill. App. 3d at 793 (Gordon,
P.J., dissenting).
This court allowed defendant’s petition for leave to appeal. 210
Ill. 2d R. 315(a).
ANALYSIS
Before addressing the merits of defendant’s appeal, we note that
in its response brief, the State points out that after defendant filed her
opening brief, this court amended the Rules of Professional Conduct,
including Rule 4.2, effective January 1, 2010. The State concedes that
the modifications to Rule 4.2 were not substantive, but rather were
intended to clarify that Rule 4.2 applies to prosecutors prior to the
filing of formal charges, thus eliminating two of the claims raised by
the State in the appellate court and addressed by defendant in her
opening brief. Accordingly, our review is limited to the remaining
issues: whether Rule 4.2 was violated when attorney MacGregor was
not contacted prior to questioning defendant in the criminal case; and
if so, whether suppression of defendant’s statement for a violation of
Rule 4.2 was the proper remedy.
The interpretation of rules of this court are governed by the same
principles that govern the interpretation of statutes. People v.
Campbell, 224 Ill. 2d 80, 84 (2006). The goal is to ascertain and give
effect to the intention of the drafters of the rule. Campbell, 224 Ill. 2d
at 84. We begin with the language of the rule, which must be given
its plain and ordinary meaning. People v. O’Brien, 197 Ill. 2d 88, 90
(2001). Where the language of the rule is clear and unambiguous, we
will apply the rule as written without resort to further aids of statutory
construction. O’Brien, 197 Ill. 2d at 90-91.
One of the fundamental principles of statutory construction is
viewing all the provisions of an enactment as a whole. O’Brien, 197
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Ill. 2d at 91. Words and phrases should not be construed in isolation,
but must be interpreted in light of other relevant provisions of the
statute. O’Brien, 197 Ill. 2d at 91. The interpretation of a supreme
court rule, like the interpretation of a statute, is a question of law that
we review de novo. Campbell, 224 Ill. 2d at 84.
Accordingly, we first look to the language of Rule 4.2. Rule 4.2
provides:
“During the course of representing a client a lawyer shall
not communicate or cause another to communicate on the
subject of the representation with a party the lawyer knows to
be represented by another lawyer in that matter unless the first
lawyer has obtained the prior consent of the lawyer
representing such other party or as may otherwise be
authorized by law.” 134 Ill. 2d R. 4.2.
The disagreement in this case turns on the phrases “the subject of
the representation” and “that matter.” Defendant argues that “the
subject of representation” and “that matter” in this case were the
injury to S.H. and defendant’s culpability regarding the circumstances
of that injury. Defendant claims that “the subject of the
representation” is not the theory under which she may be culpable,
but rather the facts supporting her culpability. Defendant maintains
that there was such an integral relationship between the criminal and
child protection cases that, pursuant to Rule 4.2, defendant’s child
protection attorney should have been contacted and allowed to be
present when defendant was questioned by prosecutors concerning
the criminal case.
The State counters that the use of the phrase “that matter,” when
read together with the introductory clause “during the course of
representing a client” and the phrase “subject of the representation,”
indicates that the drafters intended the application of the rule to be
case specific: specific to the matter in which the party is represented.
Thus, because attorney MacGregor did not represent defendant in the
criminal investigation, she had no right to be present or to object to
the questioning of defendant in that investigation.
We agree with the State that a plain reading of Rule 4.2
demonstrates the rule was not violated in this case. Defendant focuses
on the phrases “the subject of the representation” and “that matter” in
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arguing that the “matter” and “the subject of the representation” was
the injury to S.H. However, defendant fails to reconcile her
interpretation of Rule 4.2 with the language of the rule as a whole.
The beginning language of Rule 4.2 provides that, “[d]uring the
course of representing a client” a lawyer shall not communicate on
the subject of the representation with “a party the lawyer knows to be
represented by another lawyer in that matter” unless the first lawyer
obtains the prior consent of the “lawyer representing such other
party.” (Emphases added.) 134 Ill. 2d R. 4.2. As the State argues, the
phrases “the subject of the representation” and “that matter” refer
back to the phrase “[d]uring the course of representing a client.”
Notably, both the appellate court dissent and defendant concede
that attorney MacGregor did not represent defendant for purposes of
the criminal case. The dissent stated, “[b]y finding that the
prosecutors had to contact defendant’s civil attorney before
questioning defendant, I am not finding that the civil attorney
represented defendant for purposes of the criminal case.” (Emphasis
in original.) 384 Ill. App. 3d at 793 (Gordon, P.J., dissenting).
Defendant argues that the “child protection attorney need not have
ultimately represented [defendant] in the criminal case” in order for
Rule 4.2 to apply here. However, the fact that attorney MacGregor did
not represent defendant in the criminal case at the time prosecutors
questioned her is fatal to defendant’s claim that Rule 4.2 was violated
in this case. As this court found in addressing a prior version of Rule
4.2, which contained the same relevant language, “Rule 7–104(a)(1)
is designed to protect litigants represented by counsel from direct
contacts by opposing counsel.” (Emphasis added.) In re Segall, 117
Ill. 2d 1, 6 (1987). Because defendant was not represented by counsel
in the criminal matter, Rule 4.2 did not prohibit the prosecutors from
communicating with defendant in that case.
We find further support for our holding upon examining the
language of Rule 4.2 in the context of the Rules of Professional
Conduct as a whole. Statutory language is a reliable indicator of true
meaning only when it is read in the context of the entire act. People
v. Trainor, 196 Ill. 2d 318, 332 (2001). In Trainor, we noted that
sections 3, 5 and 9 of the Sexually Dangerous Persons Act (725 ILCS
205/3.01 (West 1998)) must be read in conjunction with one another,
construing the language of those sections in order to make them
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harmonious and consistent, so that the words of the sections would
not be read in a fashion that rendered other words or phrases
meaningless, redundant, or superfluous. Trainor, 196 Ill. 2d at 332.
As the State argues, had the drafters of Rule 4.2 intended the
parameters of the rule to be defined from a fact perspective rather
than a case perspective, the drafters would have included language to
that effect. In fact, other rules in the Illinois Rules of Professional
Conduct do use the broader phrases “same or substantially related
matter” or “the subject matter” of the representation.
For example, Rule 1.8(b) of the Rules of Professional Conduct
provides:
“(b) Unless all aspects of the matter giving rise to the
employment have been concluded, a lawyer shall not enter
into any arrangement or understanding with a client or a
prospective client by which the lawyer acquires an interest in
publication, media, or other literary rights with respect to the
subject matter of employment or proposed employment.”
(Emphasis added.) 134 Ill. 2d R. 1.8(b).
Similarly, Rule 1.9(a)(1) states that:
“(a) A lawyer who has formerly represented a client in a
matter shall not thereafter:
(1) represent another person in the same or a
substantially related matter ***.” (Emphasis added.) 134
Ill. 2d R. 1.9(a)(1).
Rule 1.10(b) also uses the phrase “same or substantially related
matter” in providing that:
“(b) When a lawyer becomes associated with a firm, the
firm may not represent a person in a matter that the firm
knows or reasonably should know is the same or substantially
related to a matter in which the newly associated lawyer, or
a firm with which that lawyer was associated, had previously
represented a client whose interests are materially adverse to
that person [.]” (Emphasis added.) 134 Ill. 2d R. 1.10(b).
It is well settled that, “by employing certain language in one
instance and wholly different language in another, the legislature
indicates that different results were intended.” In re K.C., 186 Ill. 2d
542, 549-50 (1999). Thus, because the drafters of Rule 4.2 did not
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include the words “subject matter” or “same or a substantially
related” matter in the rule, we presume that the omission was
deliberate. We therefore decline to adopt such a broad reading of Rule
4.2. The appellate court majority properly found that Rule 4.2 was not
triggered in this case because defendant was not represented by
counsel when she was questioned by the prosecutors.
In so holding, we note that other jurisdictions addressing similarly
worded “no contact” rules have also held that the rule requires an
attorney-client relationship with respect to the matter at issue. Thus,
in United States v. Ford, 176 F.3d 376, 382 (6th Cir. 1999), the court
held that prosecutors’ contact with the defendant, with regard to an
offense other than the offense for which the defendant was indicted,
did not violate Kentucky Supreme Court Rule of Professional
Conduct 4.2 because the contact did not pertain to “the subject of the
representation” as set forth in Kentucky’s Rule 4.2.
Likewise, in Miano v. AC&R Advertising, Inc., 148 F.R.D. 68
(S.D.N.Y. 1993), the defendant sought to preclude tape-recorded
conversations from introduction into evidence, claiming that the tapes
were obtained in violation of applicable no contact rules, which
contained wording identical to the wording of this court’s Rule 4.2.
The court stated that it could not conclude that plaintiff’s attorney
knew defendant to be represented by counsel in the relevant matter.
Miano, 148 F.R.D. At 79. The court rejected the defendant’s claim
that:
“simply because it made use, on an as needed basis, of the
services of various attorneys, that it should therefore be
deemed to have been represented in this matter prior to [the
law firm’s] retention. On that theory, any person or entity
which faced potential liability because of its conduct, could be
considered to be ‘represented’ as long as it had utilized an
attorney’s services in the past on other matters. Something
more must be required to deem a party ‘represented’ under the
disciplinary rule.” Miano, 148 F.R.D. at 79.
See also Miller v. Material Sciences Corp., 986 F. Supp. 1104 (N.D.
Ill. 1997) (Illinois Rule of Professional Responsibility 4.2 was not
violated when plaintiff’s attorney in federal class action claim
contacted party who was represented in a related Securities and
Exchange Commission investigation, because party was not
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represented in federal class action, and plaintiff’s attorney was
entitled to rely on party’s insistence that he was not represented).
Because we find that Rule 4.2 was not violated in this case, we
need not address defendant’s remaining arguments that the
prosecutors should have known that defendant had counsel and that
the trial court properly suppressed defendant’s statements to the
prosecutors for violation of Rule 4.2.
CONCLUSION
For all of the foregoing reasons, we affirm the judgment of the
appellate court, reversing the circuit court of Cook County’s order
and remanding this cause to the circuit court for further proceedings.
Appellate court judgment affirmed.
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