trial should represent by the public defender it that's not unusual she fired the public and or that's not unusual that happens all the time she hired private attorney also something that happens all the time what happened from there though i think is very unusual and he wanted was police reports the state would give them to them initially the judge said you don't get them you don't get police reports he also wanted the public defenders file and the public defender but he didn't get the remainder of attorney just a file attorney just there put forth a position in which the judge accepted that the entire file was work product it was the public defender's property was work product couldn't attorney values regardless of whether or not it's current product or discovery correct there is no such thing in our view at st of all in our view and the state agrees with us work product is a was obstructed from the beginning to the end at one point the judge said ok the state wanted the public defenders filed because they wanted to defend a contested hearing as ineffective assistance they why the investigator slips they wanted no after cation how many times he had visited a client whether he had talked to a turk witnesses and all the documentation as to that his investigator slips which from my experience have to get funding so there's a record of that every public defender is doing is encouraged to keep a half sheet of documentation of what they do on the forbidden in between court dates that was also not tender you don't see any distinction between that and your honor i recognize your concern but i did not now tell you why i did so when you handle appeals you get these the files from the public defenders all the time right  actually i do because the entire file all the time i'm not sure if i get the entire file out i get what they give me i know that sometimes ms diamond who is in charge of these matters will take out materials which are otherwise privilege for example medical records if there's a different privilege that an attorney client privilege involved whether she takes out work product you'd have to ask her i don't know because i just see what i see what you generally have to demonstrate that the prior attorney did something wrong that their strategy was flawed or they had no strategy where they look overlook something obvious and with respect to those matters there is no better evidence than notes memoranda research cases in the file things of that sort in this particular case attorney just picked basically said since i take notes counsel gets everything the only cases i found which says that these things are excluded are things like internal documents which were considered to be in the leading new york supreme court case which by the way  you give over most everything says well there might be some documents like intake documents in a strait of documents things about whether being assigned to one attorney or another attorney there might be such a category the they list i don't know what say about ten different things that might be in a typical filing pluming the defense attorneys the public defenders realistic appraisal of its chances of prevailing the assessment of the prosecutor that they're up against you know that some of the notes about maybe not so flattering about the jurors let's say there that's quite sure if this is the best judge for this particular case in front of them what about those you know things that are raised by the public defender's office that if your approach is granted you get everything then you get to look at all that to why you take a look at that we are entitled to look at that because it is evidence relative relevant to a claim of ineffective it often will show that the defense attorney will say something like for example the client told me they were guilty or and i couldn't put them on or i talk to witnesses in the witnesses said i'm sure the state is like to see that well put it this way if a defendant they're agreeing with you well well put it this way if a defendant says that i want to proceed with ineffective assistance of counsel they're going to have to take the are limited in our in our legal system their privileges are designed for particular purposes or attorney client privilege it's designed to encourage the quiet to be forthcoming is that no final be forthcoming if an attorney is going to give something up but by the way a defendant who raises a claim of ineffective assistance waves attorney client privilege everyone knows that it happens all the time there's other privileges like merit but a defense attorney's musings as to the case and his evaluation of the case is not done just not if reflect any private interest it's done for the purpose of helping the client that's all the attorney there for to help the client and those notes if there are necessary as they almost always are to claim of ineffective assistance should be given over i think that in this case we're probably not talking about long essays by attorney just tick about the nature of the case that's my experience public defenders files but even if so those should be turned over historically a and you wouldn't need a release from the client if you have a subpoena and the public defender really thought release was important all they had to do for example when susmit code went to court and say listen we need a release that would have been done to nd i think the bigger issue and all they said and they had many opportunities and many court dates is that they went along with the file being suppressed in fact there's a later court date which i don't get a transcript of but you're going to have to chose that judge murphy wouldn't even impound the file either you're not saying give it to us that let's look at it in camera have the court look at it in camera you're saying give me the most five correct here with their position below us we want we're not going to get one document we're not going to give one page i all i said was there's one new york supreme court case which says that there are some documents internal administrative documents should not be turned over i do not agree there should not be turned over frankly i think those should be turned over as well this is analogous it off to a distinctive during discovery on the medical malpractise time you found that the attorney wasn't that after the hospital wasn't trying of everything there there'd be a series of other things that you could do to get them in a penalty box like you bet and in this particular case that's what we would have done her attorney valueless would have done had the judge let him do it but he was cut off at the knees he was not allowed to do anything you couldn't subpoena his requests were denied  every time the only thing he got was police reports with the state decided at one point i will give him over anyway in your experience both as a public defender and as a private practitioner what percentage of cases on appeal in criminal cases involve a claim of ineffective assistance of counsel well my experience is that in terms of the st one terms of direct appeal i would say a fair number i would say in my own everything we really don't have anything so what do you think is going to happen to those numbers if you're a position you know gleefully joined by the state were to be adopted by this court well your honor frankly all that i think that would happen is that certain matters would go quicker and many claims of ineffectiveness would be shot down pretty quickly because many attorneys in their files are going to have notes or strateg truth truth alex from the conflict truth never hurts what is in the attorney's notes is truth at least as to what they were thinking or what they were doing or not doing and why wouldn't you want to have the truth come out in such proceeding let me also say that in terms of claims of ineffective this on direct appeal those are not really involved here because you can't bring in stuff outside the record so the attorneys file is not important it's what a good on direct appeal is either obvious from the transcript or it's not that's the end of the story in terms of p c s or motions for a new trial obviously this is important as i pointed out in my  has to be that you have the right to file subpoenas now of course those appeals to me pashtun different grounds but this was a judge who is saying no subpoenas no discovery do whatever you want but you're not getting any documents not with my he p so i don't think that this rule is a bad rule is going to let me also address something that's that's that the public there did bring up which i think is something they're saying that well if you make people give up their notes nobody will ever write anything down and of course that would be true with doctors too possibly but you know that's just that's just the way there's the same claims are made about police reports years ago the same claims were made about the g p ours that officers wouldn't be candid if they had to give over their g p r's it hasn't happened people write notes when they need to write notes and they'll give them over nobody's privacy interest in my view or  is going to be harmed by this rule the rule that we're operating under right now says said discovery you can't you can't discount from work product to another to the other side forever but this is the same thing correct this is the defendant's attorney forever if you are a private attorney and i thought i heard justice i'm going to ask this question maybe in a different way the private attorney and you have a defendant he says you know i really don't like your beer and i'm going to hire somebody else you would turn over your whole file to the other attorney i do it all the time i don't i do it all the time like it but you do it i do it i mean i don't wri work product i want you to look at it and camera i have never done that would never do that i think it's the wrong thing to do i think the i as a attorney i'm a servant of my client i'm of my client gets a new attorney that attorney prior public defender yes and you're telling us that used to turn over your entire file i'll give you an example sister now yes well st of all in the old days we didn't have such procedures i mean it's many things in the in that case but i remember reading those i don't remember being impressed that i'd done so much work trying to track down a particular issue but now i have no problem with that or if my notes or where there are instances where there is an objection what should the procedure be the procedure should be st of all if the st of all the judge should have the attorney specify what the privileges he's asserting are if it's work product it should be not if it's something else like it might be maybe involves another client product it should be denied without even knowing what it is that there are objecting to correct don't you think the attorney should have to identify what it is and mind your objecting before the judge should be expected to no you know again well i'll qualify that to say that there may be some things in a file which have some other privilege attached them for example if there's a protective order maybe the attorney and he's to go the judge and say listen i need to have this is a situation in the public defender's office there are some cases that just don't call right and there is ineffective assistance of counsel shouldn't be the public policy that we find out about that instead of having people convicted wrongly absolutely absolutely and in this particular case let me say that the attorney there were some serious claims about attorney just one claim for example was he never showed  she had some concerns maybe they're true maybe they're falls but they need to be litigated they can't be litigated without t reviewing that and looking at the law and the facts of the case we determined that unfortunately everyone involved below didn't understand the correct status of the law or the correct proceedings and procedures to utilize in such a situation instead the state's attorneys the public defenders and the judge all seem to take the position that there would be no right to the successor attorney mr bo eunice to see the file in any way shape or form however for some strange reason the state's attorney and the public defender believe that the state's attorney had the right to see it lisa portions of the file to defend the claim against in effect this is after looking at the law in particular the case law that existed in illinois the twins the twins who were scase which recognizes that attorneys have the right to retain their files in order to assert a common law retaining lean to receive their fees as well as the highest v a ethics opinions regarding when a work product published can be asserted in particular when they can asserted when its client a former client wants the file we reached the conclusion that in this case judge murphy reach the wrong conclusion engage in improper proceedings and so the position that we've taken in order to ensure fairness to the defendant in the proper development of the case law here nor annoy is that this court should take the position his defendant has requested that the work product privilege against the former client now i want to make this very clear that we are not saying that we as the prosecutors in this case have any right to see their file in this regard or that the that the were proud of privilege cannot be answered against us you know because you've already turned over the discovery of police stuff the investigators a lot of blood evidence to the defense certainly you've already seen that we've already seen a very nice saying that you want what we have been loosely calling work product around here absolutely we are not making that i'm not sure that's entirely true although the public center may not have actually said work product judge murphy brought it out repeatedly saying that the attorney styles inviolate work product he said he really sort of shut down any discussion of any way of resolving this if you look like and you'll see it actually in read it correctly in the dixon case the state conceded in oral argument that all materials in its possession should be handed over to you now you're saying all the cereal in your possession in their possession public defender had been utilizing to defend it to represent him in the prosecution prosy the judge said no you don't have a right to it you don't have a right to discovery in this unless there's a good question on in the judging gauge in a document by document determination memorandums strategy things like you know your honor and as i said that is the difference between what we're what's going on here this isn't this shouldn't be about work product because we're talking about a successor attorney the work product privilege was intended to prevent disclosure to your opposing counsel that's what the case law says if you can and says this with the highest v a ethics opinion say that it's all about whether or not you have to disclose your mental professions to your opponent and that's just nonsense since he pointed out there is a distinction between discovery police reports things that nature and actual core work act and strategy things that a lawyer is doing absolutely or absolutely even if they were there it would apply and that could have applied here had there been sort of a better because you're not the defendant's attorney yes and you're the other attorney ok but the public defender is the defendant's attorney it's and that's very clear and a long way talks about the other side it's you know it's the same type we're  talking about when you get to work product if i would i would be worried they say we say yup the feds depend on who wants to change lawyers players a public defender hires a private attorney that six months from now public defenders will have just decided they're going to put everything in memorandum form to their boss so that it's all work product and so the only thing the defendant gets on discovery is seems to me are very important for a defendant to be able to pursue an ineffective assistance of counsel claim so there is so young and yang going on here i i i think that it's it is a better process to say overall a person who has an attorney appointed or hired they're pointed in cook county they're pointed to being paid for by the taxpayers and presumably all dependents are taxpayers they have a right to their own attorneys file this the whole file and if the attorney heals wait a minute this particular item shouldn't be resolved because in this memo i happened to write that the judge is an idiot and i know for a fact that he's adult ok fine we don't want to release seconds we don't want to  that the attorney that's being asked to turn of the records has to specify what he or she doesn't want to turn over and some sort of generic reason why you're all right i don't disagree with you at all and i think that the case law is it exists currently  successful lawyer or your client because your client now is a new lawyer in the reason why is because the whole notion of work is about what information should be disclosed and tender to your opposing counsel to your opponent because you shouldn't make it easier for them to litigat thoughtful process they need to go for in the a list of ten points that is included in page twenty four of the public defenders reef absolutely all of those points would be work product and would be prohibited from being disclosed to the to the station right absolutely but shouldn't the successor attorney have that information in this case where the post office what if it was a pretrial phase shouldn't the successor tourney have all that same information to know what work has been done on the case to be able to allow that new successor attorney to provide the effective assistance so this guy is entitled to and then let's sole reason for our position our position is just what the law is currently and what should we recognize that this is a difficult process but this court now has the opportunity to clarify what the law is in a manner which is consistent with the purpose of the work product privilege with the purpose of the law regarding who owns the file allowing for the effect counsel to be fully litigated when appropriate and that's all that we're saying it's our position is the holding in vic's and then in your opinion overly broad i think the holding indexing that is brought under the terms of the facts of the particular case and it could be construed i think that justice mason's dissent makes the majority holding seem broader than really it is that it is i read the opinion into x and it is really premised upon sort of a very narrow factual very few instances where there is a successor prosecutor was a special prosecutor is is appointed in that regard we backs up our file it under the entire thing over so we don't retain anything back and we have very much our thoughts about that is in the reason why we do that is because we know that our successor prosecutors need to have that information if there's no further questions we would ask or to reject the defendant's arguments in regards to the substantive issues that he raises and i will turn over to that attorney on privileged documents and that would include police reports sometimes police reports have been converted into work projects because some of our attorneys write notes all over the police reports but certainly when it comes to any cl police reports we do turn that was over if it is a subpoena that i've received and we receive many subpoenas both from federal court state courts civil of divisions criminal divisions the rules require i provide privileged privileged telling the requestor what it is that we are withholding if i receive a consent which i did in this case for mr pelly interest but if we receive a consent we also took did or did not did not we also turn over any attorney client correspondence any correct that's correct and there have been in other a number of instances where that example of over six years i could tell you exactly how long but over six years there are instances where there are disputes as to whether what i have withheld should be properly withheld and in the instances i have provide how piece of our work product don't both to federal court judges in a number of instances in a number of instances to state court judges and let more difficult much more difficult because in those instances we would have to withhold discovery to her the requirements of supreme court rule for fifteen but normally what what happens if it's in the middle of a criminal trial but my understanding is that  of the public defender she obviously has an interest in and ensuring that her attorneys for assistant public defenders write down their impressions their thought processes their strategies and her in their files her trainees work on perhaps hundreds of cases during the course of thousands over the course of their careers and they actually they cannot remember simply remember every assessment of a client every theory that they had every evaluation of a piece of evidence they absolutely must write those down if they and if they hope to provide adequate and accurate representation to their clients but it's also the case that several assistant public defenders may work on a case over its pend y to turn over in the office the attorneys that are leaving need to write things down on their files to the attorneys who are taking over the cases this is writing things down is the only way that this type of work product information can be real reliably preserved and conveyed to other trial attorneys who are working on the case but assistant public defenders inclination to write things down will definitely be chilled if those assistant public defenders know that in the future other private attorneys and perhaps the clients themselves will be able to rifle through their notes notes that they had previously thought would remain confidential i don't understand why you think there's a privilege against your client right to say privacy in their own work the tech those are private attorneys are public defenders i don't make a difference i don't think it makes a difference you know i think so i don't think a private attorney has a greater interest in the privacy of his work product and a public defender would i think they're comparable they're both attorneys for the clients and if you had a public defender that was ineffective wouldn't be in the best interests of the public defender's office to know them well certainly that is true you honor and we do believe that when there is been an allegation of ineffectiveness either in approach trial motion or post conviction the titian it is specific as to what an assistant public defender allegedly failed to do  specificity say i think my attorney acted improperly because of some reason there has to be some reason given before an attorney needs to respond and defend what they did and again i ask how can they do that without the whole file i think that most clients and their attorneys can determine if something went wrong i mean for instance if a client says i want to testify and he wasn't allowed to testify he knows that or if he said i want my friend to testify as an alibi witness he knows if his friend was allowed to testify if he wasn't visited until he knows he wasn't visited in jail all these things are that clients do know and can't allege and can are allowed to allege with specificity and there p petitions you acknowledge that there are things in those files the clients don't know i don't know that there are things that they don't know well and i think what the places indicate is very thing and why would you  which should be able to be kept client confidential from their client frank assessments about the client's own credibility frank assessments about judges the opposing countless counsel witnesses and so forth that type of information not necessarily frank assessments of witnesses would be available to your own claim it's again there are various types of assessments that might be in the file and not all of them should be disclosed to the have recognized there are really two main privileges the attorney client privilege and the work product privileges which allow attorneys to keep things in their files and their cases are very nice but this was all talk about the other are a number of instances where an attorney may want to keep and may need to keep and if the information confidential they belong to his or her work product there is policies and information that are just seven dated through our chiefs to members of his staff and what you're telling us this morning is that you're the person who is responsible for determining how much i have filed it's turned over to successor council and anything that's not turned over and you make a record or a lot and you get the party that's receiving the file that list so that he or she knows what's not being turned over so that they can take whatever action they believe that's typically what happened i should clarify merely a consent from the other attorney we would produce the noun privilege documents all along with anything else that the client waived their privilege to for instance attorney client correspondence medical records school records other things that only is only entitled to the end product of what a client of what an attorney has prepared is the actual pleadings as opposed to the entire file which is the rule in many other states and many of the cases cited by my posts are from other states where there is an entire file role but in illinois again it's just an end product rule the n c a a didn't know it didn't know and footnote to that while its opinion concerned only a lawyers duty under the all my rules especially contacts these materials are often described in ethics opinions and court decisions as the work product of the lawyer so i disagree with the statement that they i c a o has rejected argument i do believe that the only state persecution opinions very much support our argument the other attorney believes they're entitled to some of those documents they'll bring a motion to compel and we respond on the other side and we would normally that is what happened so motion to compel is brought against the public defender's office if they believe they're entitled to some of the documents oftentimes after we do a privilege like there is no request for any further documents in the new attorney just respects are we right to keep some documents confidential so you in your log you itemize what you're not going t that and but there is a separate a separate procedure a separate rule for work product and that is attorneys do have an all their own independent right to privacy and independent right to assert their privacy to the materials and logically it would seem to me your honor if the attorney if the client if it seemed to fall from the independent right that of attorney yes a right to withhold product independently from the client they must have a right to at times with told that work product from the client otherwise if the client waived the privilege or consents to the release of a file himself or anyone else it would be irrelevant if the attorney consented or not the attorney would always have to release the material if the client's consent was all that mattered it would not have an independent right but that's not what the case say cases do recognize an independent right to provided some ineffective assistance of counsel we do believe that that's time we would produce for the trial court the privilege documents to see what if anything in those documents relate to those specific claims and if the judge believe there were some those in those limited instances could be produced but we would object to a stale invasion of the public defender's files also invasion of their privacy allowing private counsel to sift through come through the file and type a fishing expedition expedition to see if there was be adapted i probably very much that's made clear that that only applies when there is a post conviction petition pending which alleges some specificity or where there is a pos s trial motion filed which alleges with some threshold level some specific action of public defender or some mistake that the public defender made w i'm sorry i don't i don't mean to get you off your flow of life here but how does that help a client who made trials known i know i need a private attorney gets the money together and hires a private attorney you're saying after the trial so the client the state trial after trial if the post conviction stage they sample you're talking about you're talking about when there's nothing pending in the bill and that defendant is just sitting around stewing because he lost though that's what i'm addressing you regarding right now and our concern about how the language might be crafted in your decision just so that you can gauge the seriousness of this problem from the public defender's office we received in the past twelve months just in the past twelve months we received over two hundred subpoenas for our file and in addition to that two hundred requests for our file from private attorneys now in that latter category where we just received a request we don't know that there is any case pending at all there might not be any post conviction pending there might not be any federal case pending these are simply attorneys to come in iraq st who want to look at our file just to look through it to see if there's anything in interest there to see if they might file a section one thousand and three action in the future to see if they might file state court action to see if anything might be relevant in any way in those instances in those instances we do share the non privileged documents and if they have a consent from the client stating that we can share attorney client correspondence we do share that too but we do not share work product and i don't think that office you've defined work product very broadly well i define work product as i think the courts define it and that is a core work product  impressions of the attorneys their strategies as written down in their notes and i repeat again my question earlier is a better public policy if there are a few ineffective public defenders conviction context where courts to rule they had an assistant public defender has been ineffective so i think the courts have been good at performing that function well if you make them file a post conviction titian for ineffective assistance which incidently now we've been told they can pile that in there during the trial they don't have to and they can pilot during a direct appeal that still means that they have to have an attorney who's willing to go that extra mile to find out what went wrong in this trial maybe not run it maybe everything was too perfect and they just they did it so and they got convicted but isn't it better public policy to say two defendants presumably the one last you have a right to see whether or not everything that could have been done was done is early as possible so that a post trial motion can be made timely so that the direct appeal can be done right so the attorney who's trying to find help with anything was done wrong or wasn't done right knows about it in can take to make the proper motions or take the proper action is not a better public policy now you're right because i think it runs  the face of the public policy that attorneys should be able to keep their work product confidential right yes yes your honor i've noted that most of the requests we get to review files are from private attorneys who have a consent from our client but sometimes the clients themselves want to review their file and again we allow them to look at now in privileged documents although we must industry in court before fifteen take out discovery materials i think we are also entitled to take out our own work product our work product doesn't joy its own protections as recognized by hickman versus tiller and the long series of cases that have ruled in accordance with versus taylor recognizing an independent right that belongs to the trial attorney to keep their work product confidential and i don't think that it's helpful i don't think it i really in the best interest of clients to have attorneys who feel that they can only write down things that they would not mind having exposed to the client himself or to other outside attorneys at some point the futures i think there is a concern that attorneys think that every thought or impression that they know it on a file let some day be lower open to a later public scrutiny will really be hesitant to write things down and files right hesitant to write down their own notes and cards and hesitant to preserve that ineffective assistance of counsel but her position is that before the work product of the public defender is invaded the petitioner needs to allege with some specificity what it is that the trial attorney allegedly did wrong and then the trial court should conduct an in camera review of those materials to see if they are related to the claim and to make sure they don't release relevan confidential material as the court has said other questions just ask your honour's to craft your decision keeping in mind the interest of the law office of the public defender matters also obviously with procedure patents i think is happening dixon case there is a redaction process specific to pro se defendants to prevent them getting addresses prevent errors from the witnesses all sorts of things that are not applicable here this was an attorney the i would agree with the public defender that work product privilege i would say that broader is different than attorney client privilege and the reason that we have a work product privilege is it's basically the idea is you don't let players from the opposing team come into your just doesn't make any sense you know then they know what you're doing than are thinking they can make their own moves they can use your work that's not fair and that's not right that's not what happened here an attorney representing the same fine if neocons want to be put in the same position as her predecessor tourney and to make claims of ineffective assistance if needed and even without the file you made very specific claims that attorney witnesses weren't interview that business weren't may an expert witness for years and he didn't have one single document to check to see whether what mr justice  about what he had done was correct that's not fair we would suggest the proper course is three men for a motion for a new trial with directions that the public defender office provide the file if the public defender has privileges logs or objections i would suggest only that your honour's rule definitively number one has a right to subpoena post trial which the public her needs as much as we do nd that they cannot assert work product privilege and rd that whatever other privilege they wish to assert should be done in writing by it with a privilege log and using those and using some specific i think thanks to both sides all three sides i should say for the very thoughtful recent great argument it's a difficult but important issue we will be right and it can affect you directly rich