Lawyers Get in the Way of Confessions

A lawyer can’t secretly interrogate his opposing counsel’s client  This is a big no no.  Illinois Rule of Professional Conduct 4.2 forbids it.

In People v. Santiago (.pdf), a recent decision by the Illinois Appellate Court, we learn about a prosecutor’s office that initiated a civil proceeding to take Santiago’s children away from her.  The trial court appointed an attorney to represent Santiago in the case.  After the attorney had been appointed, a detective and an assistant state’s attorney talked to Santiago.  Her attorney did not know that they were talking to her.  The result was that Santiago “made an incriminating statement memorialized in writing.”  The State then charged Santiago criminally.  The same set of facts were involved in both the civil and criminal cases.  The trial court suppressed the statements Santiago made to the detective and the assistant state’s attorney.

The Illinois Appellate Court, in a split decision, said that it wasn’t going to suppress Santiago’s incriminating remarks because the civil case and the criminal case were different matters; Rule 4.2 only prohibits a lawyer from communicating with another attorney’s client if the lawyer represents an individual in that same matter.

Due to this opinion, the State will be able to use Santiago’s remarks against her in her criminal case.  Apparently, the Court saw no need to let Santiago’s attorney get in the way of her confession.

One minor argument advanced by the Court to support the proposition that the civil (juvenile) case and the criminal case are two separate matters is that “nothing in the record supports that [the attorney in the civil matter], presumably trained in the nuances of juvenile proceedings, is competent in criminal proceedings.”  Apparently the Court thinks it takes a Clarence Darrow or Gerry Spence to tell a client not to confess to a crime.

If Santiago had a lawyer in the criminal matter, the result would have been different.  Since a single prosecutor’s office litigated both the civil case and the criminal case, and both cases stemmed from a common set of facts, Santiago’s remarks should have been suppressed.  To hold otherwise ignores realities in favor of legal fictions.

Jeremy Richey

2 Responses to “Lawyers Get in the Way of Confessions”


  1. 1 chicagocrimelaw September 17, 2008 at 12:03 pm

    Jeremy –

    I saw this on the Chicago Law Bulletin, and frankly, it’s total crap. It’s obvious that the lawyer “trained in juvenile proceedings” would have totally known what to do in a criminal one. If anything, that shows the ignorance of the appellate court, since 90% of juvenile proceedings ARE criminal proceedings, just with slightly relaxed rules. In fact, the Cook County Juvenile court system is really sort of a joke. Regardless, I fully concur with your opinion on this.

    -=Rob=-


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