Illinois Official Reports 

Appellate Court

People v. Shepherd, 2015 IL App (3d) 140192

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. 

CHRISTIAN L. SHEPHERD, Defendant-Appellee.

District & No. Third District

Docket No. 3-14-0192

Filed February 11, 2015

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In a prosecution for solicitation of murder for hire where defendant 

filed a motion to dismiss the indictment or to suppress evidence the 

State allegedly obtained by taking advantage of an attorney’s lapse in 

ethical judgment when the attorney consulted with defendant about 

defendant’s case but was not retained by defendant, and defendant’s 

motion to suppress the contested evidence was granted in part and the 

State filed a certificate of impairment and an interlocutory appeal 

challenging the trial court’s ruling, the appellate court reversed the 

trial court’s ruling and remanded the case for further proceedings on 

the grounds that defendant failed to establish that the attorney ever 

received information that could be significantly harmful to defendant 

or that the two matters at issue were the same or similar.

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 10-CF-1029; the 

Hon. Edward A. Burmilla, Jr., Judge, presiding.

Judgment Reversed and remanded.
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Counsel on

Appeal

James Glasgow, State’s Attorney, of Joliet (Judith Z. Kelly (argued), 

of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People.

Steven Varel (argued), of State Appellate Defender’s Office, of 

Ottawa, for appellee.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Justices Lytton and O’Brien concurred in the judgment and opinion.

 OPINION 

¶ 1 Defendant, Christian L. Shepherd, was charged with solicitation of murder for hire (720 

ILCS 5/8-1.2(a) (West 2010)). During pretrial proceedings, he filed a motion to dismiss the 

indictment or to suppress evidence that the State had allegedly obtained by taking advantage 

of a lapse in ethical judgment by an attorney that defendant had consulted with about the case 

but had not retained. After a hearing, the trial court granted the motion in part and suppressed 

the contested evidence. The State filed a certificate of impairment and brought this 

interlocutory appeal to challenge the trial court’s ruling. We reverse the trial court’s 

judgment and remand the case for further proceedings consistent with this opinion. 

¶ 2 I. FACTS 

¶ 3 On May 1, 2010, defendant was arrested and charged with aggravated criminal sexual 

assault (the sexual assault case). On May 4 and May 11, 2010, while defendant was in 

custody at the jail, he had two consultations by video with attorney Anthony Tomkiewicz 

about Tomkiewicz possibly representing defendant in the sexual assault case. Defendant had 

decided to retain Tomkiewicz and was going to have his father bring money into 

Tomkiewicz’s office to pay the retainer. 

¶ 4 During or around that same time period, on or leading up to May 13, 2010, defendant was 

allegedly discussing plans with a fellow inmate, Franklin Bryant, to have Bryant kill some or 

all of the witnesses in the sexual assault case. Bryant was in jail at the time for a felony 

unlawful possession of a weapon charge (the weapons offense or the weapons case). 

Defendant gave Bryant a map to the residence of one of the intended victims and a written 

statement that Bryant was supposed to read while standing over the intended victims at the 

time of the killings. For carrying out the killings, Bryant was to receive at least $900. 

¶ 5 Unbeknownst to defendant, however, Bryant turned the documents over to police officers 

at the jail and told the officers what defendant was planning. Bryant agreed to wear a wire so 

that the police officers could get defendant on tape discussing and planning the murders. A 
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detective who was working on the case contacted Assistant State’s Attorney Michael Knick 

for his assistance in the matter. 

¶ 6 Knick reviewed the State’s file on the sexual assault case. The file indicated that 

defendant was represented by the public defender’s office. Knick also reviewed the 

documents that Bryant had provided to the police. One of those documents, an inmate request 

form, indicated that in the weapons case, Bryant was represented by attorney Anthony 

Tomkiewicz, the same attorney that defendant was planning to retain in the sexual assault 

case. Knick contacted Tomkiewicz and asked him to come to his office to discuss 

Tomkiewicz’s representation of Bryant. 

¶ 7 Tomkiewicz met with Knick later that day. Knick informed Tomkiewicz of the situation 

and told Tomkiewicz that Bryant wanted to wear a wire to obtain incriminating evidence 

against defendant. Knick did not know at the time that defendant had spoken to Tomkiewicz 

about possibly retaining Tomkiewicz as his attorney in the sexual assault case. When 

Tomkiewicz learned that defendant was the intended target of the wire, he told Knick that he 

had met with defendant about possible representation in the sexual assault case, that 

defendant was planning to retain him, but that defendant had not done so yet. Tomkiewicz 

told Knick further that based on the new information, he was not going to take defendant’s 

case and that he would have his office contact defendant’s father and tell him not to bring in 

the retainer. Tomkiewicz stated that Bryant had applied for a furlough so that he could see 

his dying mother and that the matter would be up in court the following day. Knick informed 

Tomkiewicz that the State would not object to Bryant’s furlough request and that Bryant 

could be fitted with a wire prior to going back into the jail. Knick instructed Tomkiewicz to 

speak to Bryant about wearing the wire and told Tomkiewicz that the State would obtain a 

court-authorized overhear while Bryant’s case was in court on his request for furlough. 

¶ 8 The following day, Knick met with Tomkiewicz at the courthouse and told Tomkiewicz 

to talk to Bryant to make sure that Bryant was still willing to cooperate before they went 

before the judge with the eavesdrop request. Tomkiewicz did so, Bryant agreed to wear the 

wire, and the State obtained the court-authorized overhear. In court, the State did not object 

to Bryant’s furlough request. Bryant was released on furlough, and when he returned, he was 

fitted with a wire. After going back to the jail, Bryant obtained incriminating statements from 

defendant regarding defendant’s plan to have Bryant kill the witnesses in his sexual assault 

case. 

¶ 9 On May 19, 2010, defendant was charged with several counts of solicitation of murder 

for hire (the solicitation case) in the instant case for his plan to have Bryant carry out the 

killings. During the pretrial proceedings in this case, defendant filed a motion to dismiss the 

indictment or, alternatively, to suppress the incriminating evidence that Bryant had obtained 

for the police. The motion was made as to both the sexual assault case and the solicitation 

case. In the motion, defendant cited Rule 1.18 of the Illinois Rules of Professional Conduct 

of 2010 (eff. Jan. 1, 2010) and alleged that Tomkiewicz owed a duty to defendant not to 

engage in an attorney-client relationship with Bryant when Bryant’s interests were materially 

adverse to defendant’s, even though no actual attorney-client relationship was formed 

between Tomkiewicz and defendant. Defendant alleged further that Tomkiewicz’s continued 

representation of Bryant after Bryant agreed to wear a wire against defendant constituted a 

violation of defendant’s sixth amendment right to effective assistance of counsel, a violation 

that the State was complicit in. 
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¶ 10 A nonevidentiary hearing on defendant’s initial motion to dismiss and suppress was held 

in January 2013. After the arguments of the attorneys had concluded, the case was continued 

to another date for the trial court to render its decision. Prior to that time, Assistant State’s 

Attorney Knick had not disclosed to the defense or to other assistant State’s Attorneys 

involved in the case that he had met with Tomkiewicz prior to Bryant wearing the wire and 

that he had learned in that meeting that Tomkiewicz had consulted with defendant about 

Tomkiewicz possibly representing defendant in the sexual assault case. At the next court 

date, immediately before the trial court gave its decision, Knick disclosed that information to 

the trial court. Following the disclosure, the trial court made its initial ruling. As to the sexual 

assault case, the trial court suppressed the wire-recorded statements but denied suppression 

as to the documents that Bryant had obtained from defendant and had turned over to the 

police prior to Tomkiewicz’s meeting with Knick. As to the solicitation case, the trial court 

denied defendant’s motion without prejudice and gave defendant leave to file a second 

motion to dismiss or suppress in the solicitation case to add allegations regarding the 

information that had just been disclosed in court by Knick. 

¶ 11 Defendant filed the second motion to dismiss or suppress in February 2013. The second 

motion contained many of the same allegations that were contained in the first motion but 

added new allegations to include the factual information that was disclosed in court by 

Knick. In the second motion, defendant again cited Rule 1.18 as the source of Tomkiewicz’s 

ethical violation. In addition, for the hearing on the second motion, defendant subpoenaed 

Tomkiewicz to testify. 

¶ 12 Tomkiewicz filed a motion to quash the subpoena and for sanctions against defendant 

and defense counsel. Attached to the motion to quash was Tomkiewicz’s affidavit. In the 

affidavit, Tomkiewicz attested that: (1) he met with defendant at the jail twice by 

closed-circuit television to discuss defendant possibly retaining him in the sexual assault 

case; (2) at no time did defendant and Tomkiewicz discuss the facts of the sexual assault 

case; (3) defendant and Tomkiewicz only discussed what defendant’s charges were, what the 

law was in that area, what the possible sentences were, the criminal court process in general, 

the qualifications of Tomkiewicz and his firm, and the rate that Tomkiewicz charged for his 

services; (4) Tomkiewicz specifically instructed defendant, as he did with all his interviews 

and meetings at the jail’s video center, not to say anything about any of the facts of the case 

due to the lack of privacy at the center; (5) defendant agreed and complied with that 

instruction; (6) defendant informed Tomkiewicz that his family would contact Tomkiewicz 

to make arrangements to hire Tomkiewicz’s firm; (7) defendant and Tomkiewicz did discuss 

the fact that Bryant was a current client of Tomkiewicz’s firm as defendant and Bryant were 

housed in the same unit of the jail, were on friendly terms, and were both interested in the 

services of Tomkiewicz’s firm at the same time; (8) Assistant State’s Attorney Knick 

contacted Tomkiewicz on May 13, 2010, and asked Tomkiewicz to come to his office to 

discuss Tomkiewicz’s representation of Bryant in the weapons offense; (9) Tomkiewicz’s 

firm had already been retained by Bryant and were in the process of arranging an emergency 

furlough for the next day for Bryant to see his dying mother; (10) at that meeting, Knick 

informed Tomkiewicz, and Tomkiewicz learned for the first time, that defendant had 

solicited Bryant; (11) Tomkiewicz informed Knick that defendant was going to hire 

Tomkiewicz’s firm, but that now Tomkiewicz would have to decline; (12) Knick informed 

Tomkiewicz that Bryant had already agreed to wear a wire against defendant and that Bryant 
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wanted to be released from jail once that was accomplished out of fear of retaliation from 

defendant; (13) Knick asked Tomkiewicz if he had any objection to law enforcement officers 

talking to Bryant about cooperating against defendant, and Tomkiewicz said that he did not 

as long as Bryant wanted to do so; (14) Knick never asked Tomkiewicz for his cooperation or 

involvement regarding any investigation or prosecution of defendant; (15) Knick informed 

Tomkiewicz that no specific promises were being made as to any disposition in Bryant’s 

case; (16) Tomkiewicz did not know the exact date and time that defendant solicited Bryant 

for a murder, only that it happened sometime after Tomkiewicz’s last communication with 

defendant and before Tomkiewicz’s meeting with Knick; (17) upon leaving the meeting with 

Knick, Tomkiewicz had his firm immediately contact defendant’s family and inform them 

that the firm would decline to represent defendant due to a potential conflict of interest and 

not to bring the firm a retainer; (18) Tomkiewicz had no further contact with defendant or his 

family; (19) Bryant did not agree to wear the wire after his court appearance on May 14, 

2010, but, rather, he had already resolved to do that on his own; (20) Tomkiewicz never 

represented defendant and Bryant in the same or a substantially related matter; (21) 

Tomkiewicz never learned any information about either defendant’s case or Bryant’s case 

that could be harmful to the other in any matter; (22) Tomkiewicz never shared any 

information about defendant and his case with Bryant or vice versa; and (23) neither 

Tomkiewicz nor his firm had any involvement in Bryant’s cooperation with law enforcement 

against defendant, nor did Tomkiewicz or his firm discuss the details of Bryant’s cooperation 

with law enforcement in any matter other than the fact that Bryant wanted to be released 

from jail after he wore the wire because he was afraid of retaliation from defendant and that 

Bryant hoped that he would be given some consideration in his pending case. 

¶ 13 A hearing was held on Tomkiewicz’s motion to quash the subpoena and for sanctions 

against defendant and defense counsel. After arguments on the matter, the trial court denied 

the motion to quash the subpoena and for sanctions. In response to Tomkiewicz’s concerns 

over attorney-client confidentiality, the trial court found as part of its ruling that by calling 

Tomkiewicz as a witness, defendant would be waving his sixth amendment rights as to the 

confidentiality of his communications with Tomkiewicz. The trial court continued 

defendant’s subpoena of Tomkiewicz to the hearing date on the second motion to dismiss or 

suppress. 

¶ 14 A hearing was held on the second motion to dismiss or suppress in February 2014. At the 

hearing, defendant first called the assistant State’s Attorney who had drafted the State’s 

response to the initial motion for some brief preliminary information, most notably, to 

confirm that the State had alleged in its response that the only way for the State to know that 

an attorney, such as Tomkiewicz, had consulted with a particular defendant, was for the State 

to search all of the jail records to make sure that no attorney had come in to see that 

particular defendant. 

¶ 15 Defendant then called Assistant State’s Attorney Knick to the witness stand. Knick 

testified to many of the facts as set forth above. In addition to those facts, Knick stated 

because of Bryant’s agreement to wear the wire, the State’s Attorney’s office did not object 

to Bryant’s request for a furlough, which was contrary to the State’s usual procedure on 

furlough requests. As of the date of Knick’s testimony, Bryant’s case was still pending. He 

had pled guilty but had not been sentenced. Since that time, Bryant had picked up another 

case, a Class 4 felony possession of cocaine, and was out on bond on that case, which may 
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have been another concession that was given to Bryant for wearing the wire in the 

solicitation case. 

¶ 16 Knick testified further that on June 16, 2010, defendant was indicted in the solicitation 

case. Part of the evidence presented to the grand jury was that Bryant was wearing a wire 

which captured the incriminating statements made by defendant. Knick was aware of the 

allegation that the State had made in its response to defendant’s first motion to dismiss or 

suppress, which was drafted by a different assistant State’s Attorney, that the only way for 

the State to know that Tomkiewicz had consulted with defendant was for the State to search 

all of the jail records regarding defendant. Knick stated that he read the argument as a legal 

argument that was being made in response to certain paragraphs in defendant’s motion but 

acknowledged that he should have told the other assistant State’s Attorney at that time that he 

had met with Tomkiewicz and that he was aware that Tomkiewicz had consulted with 

defendant. Knick did not disclose that information to the other assistant State’s Attorneys 

involved in the solicitation case until about 10 or 15 minutes before he disclosed it in court 

and did not disclose that information to defense counsel at any point prior to that time. 

Before that point, Knick did not think that his meeting with Tomkiewicz was an issue in this 

case. 

¶ 17 Knick initially testified that he contacted Tomkiewicz as a courtesy but acknowledged, 

after further questioning from the court, that he was required to call Tomkiewicz because he 

was going to try to work out some type of arrangement or deal to secure Bryant’s cooperation 

in the matter. According to Knick, Tomkiewicz did not say anything to Knick to encourage 

him to use Bryant in that capacity. Tomkiewicz did not reveal any of his discussions with 

defendant to Knick and specifically told Knick that he was not going to tell Knick anything 

that any of his clients and he had talked about. Prior to obtaining the overhear, Knick 

instructed Tomkiewicz to talk to Bryant and to make sure that Bryant was on board with 

cooperating. Tomkiewicz did so. On the eavesdrop application, Knick appeared before the 

judge with Bryant and with the police detective who was working on the solicitation case. 

Tomkiewicz was not present in the room at that time. 

¶ 18 After Knick’s testimony, the defense rested. The defense did not call defendant to testify 

in the hearing on the motion. In addition, despite having overcome Tomkiewicz’s motion to 

quash the subpoena, the defense did not call Tomkiewicz to testify. The State also did not 

call, or seek to call, Tomkiewicz to testify at the hearing. 

¶ 19 At the conclusion of the hearing, the trial court granted defendant’s second motion to 

dismiss or suppress in part and denied it in part. In so doing, the trial court found, among 

other things, that: (1) the State took advantage of Tomkiewicz’s ethical lapse, albeit to 

potentially save lives; (2) defendant was past the point of merely meeting with Tomkiewicz 

and was at the point where he was going to retain Tomkiewicz to represent him in the sexual 

assault case; (3) as soon as defendant’s name was interjected into the conversation between 

Knick and Tomkiewicz, the conversation should have come to a “screeching halt”; (4) 

incriminating information against defendant was gained by the State as a direct result of the 

ethical lapse on the part of Tomkiewicz; and (5) suppression of the evidence, rather than 

dismissal of the indictment, was the appropriate sanction because even without the 

improperly obtained evidence, there was sufficient properly obtained evidence presented to 

the grand jury to support the indictment. As a result of its findings, the trial court suppressed 

the wire-recorded statements in the solicitation case as well. Consistent with its ruling on the 
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first motion to dismiss or suppress, the trial court did not suppress the documents that 

defendant provided to Bryant that Bryant turned over to the police (evidence obtained prior 

to Tomkiewicz’s meeting with Knick). The State filed a certificate of impairment and a 

notice of appeal in the instant case to challenge the trial court’s ruling. 

¶ 20 II. ANALYSIS 

¶ 21 On appeal, the State argues that the trial court erred in granting defendant’s motion to 

suppress the wire-recorded statements in the solicitation case.1 The State asserts that the 

motion to suppress should not have been granted because: (1) defendant failed to prove two 

of the elements necessary to show that a violation of Rule 1.18 occurred; and (2) even if an 

ethics violation did occur, suppression was not an appropriate remedy under the 

circumstances of this case. Regarding the first assertion–the lack of proof of a violation–the 

State contends that at the hearing on the motion, no evidence was presented to establish that 

Tomkiewicz used, revealed, or received confidential information that could be significantly 

harmful to defendant in the sexual assault case. According to the State, it was impossible for 

the trial court to even make that determination without first knowing what information was 

conveyed by defendant to Tomkiewicz during their video consultations at the 

jail–information that was never provided at the hearing in this case. The State contends 

further that defendant also failed to establish the “same or substantially similar” element of 

Rule 1.18 because the matter in which Tomkiewicz represented Bryant–the weapons offense 

case–was not the same or substantially similar to the matter about which Tomkiewicz 

consulted with defendant–the sexual assault case. In making that contention, the State argues 

for a narrow interpretation of the “same or substantially similar” language. 

¶ 22 Regarding the second assertion–that suppression was not an appropriate remedy under 

the circumstances of this case–the State contends that there is no case law to suggest that an 

ethical violation by an attorney for one of the State’s witnesses makes a defendant’s 

voluntary incriminating statements to that witness inadmissible. The State points out that the 

purpose of the exclusionary rule is to deter police misconduct, not to deter the improper or 

unethical conduct of an attorney for one of the State’s witnesses. The State contends further 

that any alleged ethical violation by Tomkiewicz did not affect Bryant’s decision to wear a 

wire against defendant in this case because Bryant had already decided to do so before 

Tomkiewicz was even informed of the situation. 

¶ 23 Defendant argues that the trial court’s ruling was proper and should be upheld. Defendant 

asserts first that this court should affirm the trial court’s ruling on a basis that was not 

considered by the trial court or argued by the State–that Tomkiewicz had an actual 

attorney-client relationship with defendant and that Tomkiewicz committed ethical violations 

of Rule 1.7 (conflict of interest rules as to current clients) and Rule 1.9 (attorney’s duties to a 

former client) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) when 

he represented both defendant and Bryant, who had conflicting interests. Defendant asserts 

further that the State took advantage of that ethical violation to secure incriminating evidence 

against defendant, even though the State knew of the attorney-client relationship between 

Tomkiewicz and defendant. 

 

1

For the most part, from this point forward, we will refer to the motion as simply a motion to 

suppress. 
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¶ 24 Second, and in the alternative, defendant asserts that he presented sufficient evidence at 

the hearing on the motion to suppress to establish that a violation of Rule 1.18 occurred and 

that the trial court’s ruling to that effect was not against the manifest weight of the evidence. 

In making that assertion, defendant claims that he was not required at the hearing to reveal 

the confidential information that he communicated to Tomkiewicz during their consultations 

in order to prove that Tomkiewicz had violated Rule 1.18. As support for that assertion, 

defendant points to the language of the rule itself and states that nowhere in that language is 

such a requirement contained. Defendant suggests instead that a Rule 1.18 situation should 

be treated similarly to a Rule 1.9 situation where the trial court is allowed to infer that 

information “material to the matter” (specific language of Rule 1.9) was communicated to the 

attorney if, considering the services that the attorney rendered to the former client (specific 

language of Rule 1.9), the attorney ordinarily would have learned that type of information. 

Ill. R. Prof. Conduct (2010) R. 1.9 (eff. Jan. 1, 2010). Defendant contends that the same 

approach should be applied in the context of a Rule 1.18 situation and that the trial court in 

that situation should be allowed to infer that information that could be “significantly 

harmful” (specific language of Rule 1.18) to the prospective client (specific language of Rule 

1.18) was communicated to the attorney if, under the circumstances involved, the attorney 

would have normally received that type of information in his consultation with the 

prospective client. Ill. R. Prof. Conduct (2010) R. 1.18 (eff. Jan. 1, 2010). Defendant 

contends further that policy considerations favor the application of such an approach in a 

Rule 1.18 situation, especially in the context of a criminal case, where requiring a defendant 

to reveal confidential information that he had communicated to his attorney would raise 

serious concerns, would be fundamentally unfair, and would violate due process. 

¶ 25 More specifically as to this particular case, defendant asserts that the evidence presented 

at the hearing was sufficient to show that an attorney in Tomkiewicz’s position would 

ordinarily have acquired confidential information that could be significantly harmful to 

defendant. According to defendant, an attorney in Tomkiewicz’s position who was 

contemplating representing a defendant in a criminal case would ordinarily discuss the facts 

of the case with the defendant because the attorney would need to know that information to 

decide whether to take the defendant’s case and how much to charge. Defendant continues 

further that learning the facts of the case would ordinarily include a discussion about the 

inculpatory and exculpatory evidence that existed and even, possibly, an admission of guilt. 

In the present case, such information could be significantly harmful to defendant not only in 

the sexual assault case, but in the solicitation case as well because of the close connection 

between the two cases (the solicitation case arose because defendant was allegedly planning 

to have the witnesses in the sexual assault case killed). In making that contention, defendant 

notes that the information contained in Tomkiewicz’s affidavit, which the State relies on in 

its argument on appeal, was never admitted into evidence during the hearing on either of the 

two motions to dismiss or suppress and that Tomkiewicz was never called to testify as a 

witness, even though the State had the ability to do so. Defendant asks, therefore, that we not 

consider Tomkiewicz’s affidavit in making our ruling on this issue. 

¶ 26 Third, defendant asserts that contrary to the claim of the State, the evidence presented at 

the hearing on the second motion to dismiss or suppress was also sufficient to prove the same 

or substantially similar element of Rule 1.18. In making that assertion, defendant suggests a 

broader interpretation of the “same or substantially similar” language than is suggested by 
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the State. Defendant contends that the “same or substantially similar” element was satisfied 

in the instant case because the evidence showed that Tomkiewicz assisted Bryant (the current 

client) in his efforts to curry favor from the State in the weapons case (the matter in which 

Tomkiewicz represented Bryant) by obtaining evidence that would incriminate defendant 

(the prospective client) in a plot to have the witnesses in the sexual assault case (the matter 

about which Tomkiewicz consulted with defendant) killed. Defendant contends further that 

under those particular circumstances, there was a substantial risk that any confidential 

information that Tomkiewicz would have ordinarily learned in his consultations with 

defendant would materially advance Bryant’s position in his own case and his desire to curry 

a favorable deal from the State by providing incriminating evidence against defendant. 

¶ 27 Fourth, defendant asserts that the trial court’s remedy of suppressing the evidence was 

appropriate under the circumstances of the present case and should be upheld because the 

remedy serves the interests of justice by deterring State misconduct. According to defendant, 

the trial court’s decision to suppress the evidence was appropriately based upon two factual 

findings that were not against the manifest weight of the evidence: (1) that Tomkiewicz’s 

conduct affected Bryant’s decision to wear a wire against defendant; and (2) that the State 

was implicated in the ethical violation. Defendant asserts further in support of the 

appropriateness of the trial court’s decision that the trial court’s ruling was carefully tailored 

to have the desired deterrent effect while still allowing the State to present any properly 

obtained evidence. For all of the reasons stated, defendant asks that we affirm the trial court’s 

ruling suppressing the wire-recorded statements in the solicitation case. 

¶ 28 A reviewing court applies a two-part standard of review to a trial court’s ruling on a 

motion to suppress evidence. Ornelas v. United States, 517 U.S. 690, 699 (1996); People v. 

Luedemann, 222 Ill. 2d 530, 542 (2006). The trial court’s findings of fact are given great 

deference and will not be reversed on appeal unless they are against the manifest weight of 

the evidence. Luedemann, 222 Ill. 2d at 542. A deferential standard of review applies to the 

trial court’s findings of fact because the trial court has the opportunity to observe the 

demeanor and testimony of the witnesses firsthand and, thus, is in a better position than the 

reviewing court to judge the witnesses’ credibility, to determine the weight to be given to 

testimony, to decide the inferences to be drawn from the evidence, and to resolve any 

conflicts in the evidence. See People v. Jones, 215 Ill. 2d 261, 268 (2005); People v. Frazier, 

248 Ill. App. 3d 6, 13 (1993). However, as to the trial court’s ultimate legal ruling of whether 

suppression is warranted, de novo review applies. Luedemann, 222 Ill. 2d at 542-43; People 

v. Sorenson, 196 Ill. 2d 425, 431 (2001). The reviewing court is free to make its own 

assessment of that legal issue, based upon the findings of fact, and to draw its own 

conclusions. See Luedemann, 222 Ill. 2d at 542. 

¶ 29 The Rules of Professional Conduct are rules of reason that provide a framework for the 

ethical practice of law. Ill. R. Prof. Conduct (2010), Scope, ¶¶ 14, 16 (eff. Jan. 1, 2010); see 

also Horwitz v. Holabird & Root, 212 Ill. 2d 1, 16-17 (2004) (referring to a previous version 

of the preamble to the rules as stating that the law is a public trust and that lawyers are the 

trustees of the judicial system). The rules recognize that “[a] lawyer, as a member of the legal 

profession, is a representative of clients, an officer of the legal system and a public citizen 

having special responsibility for the quality of justice.” Ill. R. Prof. Conduct (2010), 

Preamble, ¶ 1 (eff. Jan. 1, 2010). Rule 1.18, which is at issue in the instant case, describes the 

duties that an attorney owes to a prospective client as follows: 
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“(a) A person who discusses with a lawyer the possibility of forming a 

client-lawyer relationship with respect to a matter is a prospective client. 

 (b) Even when no client-lawyer relationship ensues, a lawyer who has had 

discussions with a prospective client shall not use or reveal information learned in the 

consultation, except as Rule 1.9 would permit with respect to information of a former 

client. 

 (c) A lawyer subject to paragraph (b) shall not represent a client with interests 

materially adverse to those of a prospective client in the same or a substantially 

related matter if the lawyer received information from the prospective client that 

could be significantly harmful to that person in the matter, except as provided in 

paragraph (d). If a lawyer is disqualified from representation under this paragraph, no 

lawyer in a firm with which that lawyer is associated may knowingly undertake or 

continue representation in such a matter, except as provided in paragraph (d). 

 (d) When the lawyer has received disqualifying information as defined in 

paragraph (c), representation is permissible if: 

 (1) both the affected client and the prospective client have given informed 

consent, or 

 (2) the lawyer who received the information took reasonable measures to 

avoid exposure to more disqualifying information than was reasonably necessary 

to determine whether to represent the prospective client; and that lawyer is timely 

screened from any participation in the matter and is apportioned no part of the fee 

therefrom.” Ill. R. Prof. Conduct (2010) R. 1.18 (eff. Jan. 1, 2010). 

See also Restatement (Third) of the Law Governing Lawyers § 15 (2000). 

¶ 30 In the instant case, it is clear that defendant was a prospective client of Tomkiewicz as 

defined in Rule 1.18(a). See Ill. R. Prof. Conduct (2010) R. 1.18(a) (eff. Jan. 1, 2010). 

Although defendant tries to assert for the first time on appeal that he actually formed an 

attorney-client relationship with Tomkiewicz and that different rules of professional conduct 

apply, as the State correctly points out, that argument was not made before the trial court or 

developed in the record. We, therefore, reject defendant’s argument that trial court’s 

suppression order can be affirmed on that basis. See People v. Johnson, 208 Ill. 2d 118, 134 

(2003) (the supreme court recognized that in some cases, it may be inappropriate to address 

an argument advanced in support of a judgment on appeal because the factual basis for that 

argument is not established in the record).

¶ 31 Having ruled in that regard, we turn our focus to Rule 1.18, specifically subparagraph (c), 

a violation of which was alleged in the instant case by defendant and found by the trial court. 

Upon considering the rule, we find that defendant failed in his burden to establish that 

Tomkiewicz received in his consultations with defendant information that could be 

significantly harmful to defendant in either the sexual assault case or the solicitation case. 

See Ill. R. Prof. Conduct (2010) R. 1.18(c) (eff. Jan. 1, 2010); People v. Cregan, 2014 IL 

113600, ¶ 23 (at a hearing on a motion to suppress evidence, the burden is on the defendant 

to show that suppression is warranted); see also O Builders & Associates, Inc. v. Yuna Corp. 

of NJ, 19 A.3d 966, 975-78 (N.J. 2011) (in a case where a former prospective client sought 

disqualification of an attorney under New Jersey’s version of Rule 1.18, the New Jersey 

Supreme Court upheld the trial court’s denial of the motion to disqualify, finding, among 
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other things that the former prospective client had failed to establish that the attorney had 

received confidential information that was significantly harmful to the prospective client in 

the current matter). In the instant case, defendant presented absolutely no evidence to that 

effect as neither Tomkiewicz nor defendant testified at the hearing on the second motion to 

dismiss or suppress. Instead, defendant relied entirely upon speculation as to information that 

Tomkiewicz might have learned. In our opinion, that speculation was not enough to establish 

that a violation of Rule 1.18 occurred. See O Builders & Associates, Inc., 19 A.3d at 975-78.

Indeed, the comments to Rule 1.18 recommend that an attorney limit the initial interview 

with a prospective client to only that information that is reasonably necessary for the attorney 

to determine whether he or she will take the case, so as to avoid acquiring disqualifying 

information from the prospective client. See Ill. R. Prof. Conduct (2010) R. 1.18, Comment 4 

(eff. Jan. 1, 2010). In concluding as we have on this issue, we are mindful of the cautions set 

forth in the scope of the Rules–that the purpose of the Rules can be subverted when they are 

invoked by an opposing party as a procedural weapon and that a potential violation of a rule 

does not imply that an antagonist in a collateral proceeding or transaction has standing to 

seek enforcement of the rules. See Ill. R. Prof. Conduct (2010), Scope, ¶ 20 (eff. Jan. 1, 

2010). 

¶ 32 Because we have determined that defendant failed to establish that Tomkiewicz received 

information that could be significantly harmful to defendant, we need not consider the other 

element of Rule 1.18(c), the proof of which the State also contests, that the two matters were 

the same or substantially similar. Defendant failed to establish that a violation of Rule 1.18 

occurred and his motion to suppress evidence should have been denied on that basis. 

¶ 33 III. CONCLUSION 

¶ 34 For the above-stated reasons, we reverse the judgment of the circuit court of Will County 

and remand this case for further proceedings consistent with this opinion. 

¶ 35 Reversed and remanded.