The Court did not grant the appeal in the case I wrote about in 2010, but some time later, it did grant the appeal in another case - In Re Austin M. - which raised the same issue.
I was glad the Court would be addressing the question, but I was not too optimistic about the possible result. I thought the Court would continue to repeat the erroneous analysis that courts in Illinois had followed for many years.
Today I am very happy to report that the Illinois Supreme Court just released its decision in In Re Austin M. holding that an attorney may not assume the roles of advocate for a minor and guardian at litem simultaneously, finding that such “hybrid representation” constitutes a per se conflict of interest. That is definitely the correct decision!
The opinion is available here. For more on the case go to the Juvenile Law Center blog and here.
The opinion is long, but here are some of the most important passages:
Austin’s initial claim on appeal is that the legal representation he received at his delinquency trial amounted to a denial of his right to counsel . . . More specifically, Austin contends that, as a minor tried for a criminal offense in a delinquency proceeding, he had the right to a defense attorney, that is, an attorney who gives his client his undivided loyalty, who zealously safeguards his client’s rights and confidences, and who acts in accordance with his client’s wishes. Austin asserts that he was deprived of this type of counsel because his attorney. . . performed less as a defense attorney and more as a guardian ad litem (GAL).UPDATE: I later wrote a law review article reviewing the opinion. It is available here.
Austin contends that a GAL, unlike a defense attorney, owes a duty to the court and to society and may disregard a minor client’s wishes if the GAL believes it is in the minor’s best interests. . . . Further, Austin contends that his attorney’s “hybrid representation” deprived him of his statutory and constitutional right to counsel and constitutes a per se conflict of interest requiring reversal of his adjudication.
The State asks us to reject this claim. . . . The State also maintains that even if Austin’s attorney did, in fact, function as both counsel and GAL at Austin’s delinquency trial, it is of no moment because this type of dual representation does not constitute a per se conflict of interest. According to the State, for hybrid representation to be reversible error, there must be evidence of an actual conflict of interest resulting from the hybrid representation. Further, the State argues that nothing in the record indicates that Austin’s attorney’s performance was compromised in any way due to an actual conflict of interest. . . .
Austin’s claim requires us to decide . . . whether “hybrid representation” is inconsistent with the statutorily and constitutionally guaranteed right to counsel afforded minors in delinquency proceedings . . .
. . . .
. . . [A] minor in a delinquency proceeding has a non-waivable right to be represented by a defense attorney. There is no statutory exception which would permit representation by a GAL—even one who is also an attorney at law.
Minors in delinquency proceedings also have a constitutional right to counsel. . . .
. . . .
It is clear to us that a juvenile’s right to counsel in a delinquency proceeding is firmly anchored in both due process and our statutory scheme. . . .
Given the above, the type of “counsel” which due process and our Juvenile Court Act require to be afforded juveniles in delinquency proceedings is that of defense counsel, that is, counsel which can only be provided by an attorney whose singular loyalty is to the defense of the juvenile. . . .
. . . .
In a delinquency proceeding, when counsel attempts to perform the role of GAL as well as defense attorney, the risk that counsel will render ineffective assistance or that an actual conflict of interest will arise is substantial. . . .
. . . [W]hen a guardian ad litem is appointed in a delinquency case, it is generally because there is no interested parent or legal guardian to represent the child’s best interests. In these situations, the GAL must act in the role of a concerned parent, which is often in opposition to the position of defense counsel. . . .Further, a GAL—unlike a defense attorney—owes a duty to the court and to society. A guardian ad litem need not zealously pursue acquittal if he does not believe acquittal would be in the best interests of the minor or society.
When counsel attempts to fulfill the role of GAL as well as defense counsel, the risk that the minor’s constitutional and statutory right to counsel will be diluted, if not denied altogether, is too great. . . . We conclude, therefore, that the interests of justice are best served by finding a per se conflict when minor’s counsel in a delinquency proceeding simultaneously functions as both defense counsel and guardian ad litem.