Illinois Supreme Court interprets application of 'no contact' rule in criminal cases

The Supreme Court of Illinois published an interesting opinion today interpreting the reach of Rule 4.2 of the Illinois Rules of Professional Conduct, also known as the “no contact” rule, which bars a lawyer from directly contacting a party the lawyer knows to be represented by another lawyer in that matter to discuss the subject of the representation. The case is People v Santiago and it is available here.

In this case, a juvenile court appointed an attorney to represent one Evelyn Santiago in a child protection case seeking to declare Santiago’s two children wards of the court because she was suspected of child abuse. While that case was pending and based on the same facts that gave rise to the child protection case, Santiago was arrested for child endangerment. Then, in relation to that case, a State’s Attorneys questioned Santiago without contacting her appointed attorney in the child protection case. During this interview, Santiago made incriminating statements.

Santiago then argued in the criminal case that the State had violated Rule 4.2 and requested the exclusion of the statements made to the State’s Attorney outside the presence of the lawyer.

The trial court held that the State’s Attorney violated Rule 4.2, and suppressed defendant’s statements and the appellate court reversed the trial court.

The Supreme Court found that, even though Rule 4.2 applies to prosecutors in criminal cases prior to the filing of formal charges, it did not apply in this particular case. (It is interesting to note that for this reason the Court did not have a chance to decide the question of whether the suppression of a defendant’s statement would be a proper remedy to the violation of the rule in a criminal case.)

The State argued that Rule 4.2 did not apply because the lawyer was not representing the defendant in “the matter” related to the prosecutor’s interview. The defendant argued that there was such an integral relationship between the criminal and child protection cases that, pursuant to Rule 4.2, the State should have contacted the defendant’s attorney in the child protection case.

The Court sided with the State in its interpreation of the application of the Rule and concluded that, since the attorney had not been appointed to represent the defendant in the criminal matter, the defendant was, in fact, not represented in the criminal matter. Thus, the prosecutor did not violate Rule 4.2.

Thus, the Court interpreted the rule to say that a lawyer can contact a party directly to talk about a particular case even if the attorney knows the party has a lawyer, as long as that lawyer is not representing the party in that one particular case even if the the two cases are related matters. The Court explicitly states that “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” and concludes that it the drafters had intended a different interpretation they would have used the words “same or a substantially related matter” in the rule.

In the end, as the Court puts it, “the fact that [the] attorney [in the child protection case] 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.”