Docket Nos. 107003, 107112 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re DENZEL W., a Minor (The People of the State of Illinois,

Appellant, v. Denzel W., a Minor, Appellee).–THE PEOPLE OF

THE STATE OF ILLINOIS, Appellee, v. KENNETH SMITH,

Appellant.

Opinion filed March 18, 2010.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride and

Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justice Burke.

OPINION

This consolidated appeal raises the issue of whether a defendant’s

right to counsel is violated where defense counsel fails to comply

with Supreme Court Rule 711 (210 Ill. 2d R. 711). Specifically,

counsel in each of these cases failed to file the accused’s written

consent to participation in the defense by a nonattorney senior law

student or law graduate (a 711 law student). In Denzel W., respondent

was adjudicated delinquent following a bench trial in which a 711 law

student assisted the assistant public defender and conducted the direct

and redirect examinations of one defense witness. In Smith, a 711 law
 

1Although the transcript spells the victim’s name phonetically as

“Bobby,” the parties’ briefs to this court indicate that her name is spelled

“Bobbi.”

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student participated along with the assistant public defender in a

hearing on defendant’s motion to suppress evidence. In neither case

does the record indicate that defense counsel obtained the consent of

the respondent or defendant to participation by the 711 law student.

Respondent and defendant argue that the public defender’s failure to

obtain such consent denied them their right to counsel. For the

reasons that follow, we reverse the decision of the appellate court in

Denzel W. and remand that cause for further proceedings consistent

with this opinion. We affirm the decision of the appellate court in

Smith.

BACKGROUND

1. In re Denzel W.

Respondent Denzel W., a minor, was charged, in the circuit court

of Cook County, with one count of aggravated battery against Bobbi

F.1 arising from an incident that occurred at Ridgeland Commons

community park in Oak Park, Illinois. At a bench trial on April 7,

2005, respondent was represented by an assistant public defender,

who stated before trial that he would “be assisted by *** 7-11 [sic]

law clerk [J.F.]” The cover sheet of the trial transcript similarly

identifies J.F. as “7-11,” but no written consent to her participation

was filed.

At trial, Bobbi F. testified that she and several friends had gone

to Ridgeland Commons to sled, and Bobbi was approached by

respondent and his friends. Bobbi stated that although she tried to

walk away, respondent followed her and began making lewd

comments. Bobbi then ran away from respondent into a park building,

but respondent followed her and dragged her out of the building by

her ponytail. According to Bobbi, respondent then pulled her to the

front of the building where he repeatedly slammed her head into a

patch of ice. A few moments later, respondent picked Bobbi up and

threw her into a garbage can before walking away. On crossexamination, conducted by the assistant public defender, Bobbi
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admitted that she and respondent had quarreled in the past. The State

also called Grant M., one of the boys who had been sledding with

Bobbi F., and Bobbi’s mother. Both witnesses were cross-examined

by the assistant public defender.

Respondent’s first witness was Tequila T., and the direct

examination of Tequila was performed by the 711 law student, J.F.

Tequila testified that she had been sledding at Ridgeland Common

that day along with Bobbi F., Grant M., and others. She stated that

she had not seen anything out of the ordinary that day, and she had

not seen Bobbi with respondent, although she had seen respondent

and his friends at the park. When J.F. began to ask Tequila a leading

question about what she had seen respondent and his friends doing,

the court interjected an admonition:

“Q. [by J.F.] Did you see him doing anything with his

friends?

A. They was just talking.

Q. They were just socializing at the Ridgeland Commons?

THE COURT: No. No. It’s not what she said. Don’t you

summarize and put words in her mouth. You ask questions.

That’s all. You do not ask leading questions.”

J.F. also attempted to elicit testimony about Bobbi’s reputation

around school:

“Q. Did you go to school with [Bobbi]?

A. Yes.

Q. What type of reputation did [Bobbi] have at school?

[State’s Attorney]: Objection.

THE COURT: Her reputation–Sustained.

[Assistant public defender]: Judge.

THE COURT: If it goes to peacefulness, that’s fine. If it

goes to anything else, no. It has nothing to do with this case.

You have to lay a proper foundation for reputation. If you’re

going to go to peacefulness.

[J.F.]: Nothing further with this witness, your Honor.”

On cross-examination, Tequila claimed that she and others had

warned Bobbi not to go down the sledding hill when respondent and
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his friends were there. The assistant public defender then attempted

to begin a redirect examination, but he was stopped by the court, who

said, “You didn’t start this examination. You don’t get to finish it.

Your co-counsel did the examination. *** We don’t play tag team

here.” The attorney replied, “That’s fine,” and the court added, “If she

[J.F.] has other questions to ask on redirect, fine.” J.F. then conducted

a brief redirect.

J.F. also conducted a direct examination of Travis P., a friend of

respondent. Travis testified that he had been with respondent at the

park, and that he had been apart from respondent for only about two

minutes during the afternoon. He also said that he did not see

respondent grab Bobbi, nor did he see any injuries on Bobbi that day.

Respondent then called Bobbi F. to testify again, and she was

examined by the assistant public defender.

Finally, respondent testified on his own behalf, also examined by

the assistant public defender. Respondent claimed that he and his

friends were having a snowball fight when one of his friends

accidentally hit Bobbi with a snowball. According to respondent,

Bobbi mistakenly believed he had thrown the errant snowball, and the

two had argued, but that no physical altercation had taken place. He

specifically denied chasing Bobbi, hitting her, or slamming her head

into the ground.

The assistant public defender also gave respondent’s closing

argument, arguing that Bobbi had fabricated the entire story because

she “never liked” respondent. The court found that the State had met

its burden, and adjudicated respondent delinquent. Respondent

appealed, and the appellate court reversed the circuit court’s decision

and ordered a new trial. In re Denzel W., No. 1–05–3374

(unpublished order under Supreme Court Rule 23). The court found

that the failure to obtain consent to representation by a 711 law

student was a violation of respondent’s right to counsel, relying on

People v. Schlaiss, 174 Ill. App. 3d 78 (1988) (finding defendant was

denied counsel where he did not consent to participation of 711 law

student in his representation). It rejected the State’s argument that the

failure should be subject to a harmless-error analysis, holding that the

lack of consent amounted to a complete denial of counsel. We granted

the State’s petition for leave to appeal pursuant to Supreme Court

Rule 315 (210 Ill. 2d R. 315).
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2. People v. Smith

Defendant Kenneth Smith was charged, in the circuit court of

Cook County, with possession of a controlled substance with intent

to deliver, delivery of a controlled substance, possession of a

controlled substance with intent to deliver within 1,000 feet of a

school, and delivery of a controlled substance within 1,000 feet of a

school. Before trial, defendant moved to quash his arrest and suppress

all evidence gathered therefrom, arguing that the police had not had

probable cause.

The circuit court held a hearing on the motion, and defendant was

represented by an assistant public defender and J.B., an intern

practicing pursuant to Rule 711. The cover sheet for the transcript of

the hearing indicates that J.B. appeared “[p]ursuant to Supreme Court

Rule 7-11 [sic].” Nothing else in the record references J.B.’s status;

neither J.B. nor the assistant public defender stated on the record that

J.B. was not a licensed attorney, and no written consent from

defendant was filed.

During the hearing, J.B. conducted the examination of defendant,

who testified that he had been walking on a sidewalk when a police

car pulled up on the street behind him. According to defendant, the

officers got out of the car and asked defendant if he knew “anything

about a gun.” Defendant testified that the officers then searched him

and, finding the packets of heroin, arrested him.

The State’s sole witness, Officer Griggs, testified that he had

observed defendant and codefendant Antonio Rollins standing on a

corner for 20 to 30 minutes. During that time, whenever a car pulled

up one of the defendants would approach the car and take something

from the driver. He would then walk back to the corner and then

return to the car, handing something off to the driver. Griggs testified

that he could not observe what exactly had changed hands. However,

after the third car had pulled away, Griggs radioed to nearby officers

to stop the car and search the occupant. When he received

confirmation that the driver of that car had small packets of heroin

wrapped in tinfoil, Griggs approached defendant and Rollins and

arrested them. Griggs did not personally search defendant, but he

testified that the officers who performed the search found three tinfoil

packets containing heroin. On cross-examination, conducted by the

assistant public defender, Griggs agreed that it was dark at the time
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of the arrest and he could only see using artificial light. He also

agreed that he did not know what had changed hands between the

men on the street and the drivers, but he suspected it was drugs.

After defendant and Griggs had testified, J.B. gave the

defendant’s argument on the motion. He conceded that the police had

reasonable suspicion enough to stop defendant, but arguedthat Griggs

did not have probable cause to arrest defendant. At the close of the

hearing, the trial court denied defendant’s motion, finding that

Griggs’ testimony had established the existence of probable cause to

arrest defendant.

At trial, defendant was represented by two assistant public

defenders; J.B. did not participate in the defense. A jury found

defendant not guilty of delivery of a controlled substance but guilty

of possession of a controlled substance within 1,000 yards of a

school. Defendant appealed, and the appellate court affirmed

defendant’s conviction. Smith, 384 Ill. App. 3d 489. The court

analyzed defendant’s claims in the context of an ineffective assistance

of counsel claim, noting that defendant was represented at trial only

by licensed attorneys. The court also opined that J.B.’s participation

in the motion to quash hearing was minimal, and he primarily did

nothing more than reassert the written motion prepared by a licensed

public defender. We granted defendant’s petition for leave to appeal

pursuant to Supreme Court Rule 315, and we consolidated his appeal

with the State’s appeal in Denzel W.

ANALYSIS

Under Supreme Court Rule 711, a recent law graduate or senior

law student who has completed three-fifths of his or her course work

and who is in good academic standing may perform legal services

“[u]nder the supervision of a member of the bar of this State, and

with the written consent of the person on whose behalf he/she is

acting, which shall be filed in the case and brought to the attention of

the judge.” 210 Ill. 2d R. 711(c). In criminal cases “in which the

penalty may be imprisonment,” Rule 711(c)(2)(ii) provides that the

711 law student may “participate in pretrial, trial, and posttrial

proceedings as an assistant of the supervising member of the bar, who

shall be present and responsible for the conduct of the proceedings.”
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210 Ill. 2d R. 711(c)(2)(ii). In “all other civil and criminal cases,”

Rule 711 permits the student to conduct “all pretrial, trial, and

posttrial proceedings” under the supervision of a licensed attorney

who need not be present. 210 Ill. 2d R. 711(c)(2)(iii).

Rule 711 provides a valuable mechanism by which law students

can gain practical experience in the courtroom under the close

supervision of an experienced attorney. We join the numerous courts

that have lauded the invaluable experience provided to law students

through student licensing programs similar to that provided in Rule

711. See, e.g., Duval v. State, 744 So. 2d 523, 525 (Fla. App. 1999);

City of Seattle v. Ratliff, 100 Wash. 2d 212, 217-18, 667 P.2d 630,

633 (1983); People v. Perez, 24 Cal. 3d 133, 140-42, 594 P.2d 1, 5-6,

155 Cal. Rptr. 176, 180-81 (1979). However, students who are

granted permission to perform legal services under Rule 711 must

adhere to the same rules of legal procedure, ethics, and practice that

bind fully licensed attorneys. Along with the privilege of their closely

supervised practice comes the responsibility of ensuring that they are

at all times in compliance with the law and the rules of this court.

This responsibility applies with special force to the requirements

enumerated in Rule 711, the fulfillment of which are conditions

precedent to the practice of law under that rule. Similarly, it is

incumbent upon all members of the bar who allow 711 law students

to assist in their practice, who remain “responsible for the conduct of

the proceedings” under the rule (210 Ill. 2d R. 711(c)(2)(ii)), to

ensure that our rules are followed.

As we have often noted, “our rules are not mere suggestions.”

People v. Houston, 226 Ill. 2d 135, 152 (2007); see also People v.

Wilk, 124 Ill. 2d 93, 103 (1988) (“At the risk of stating the obvious,

it should be pointed out that the rules adopted by this court

concerning criminal defendants *** are in fact rules of procedure and

not suggestions”). Indeed, they have the force of law and are to be

construed in the same manner as statutes. Houston, 226 Ill. 2d at 152;

People v. Norris, 214 Ill. 2d 92, 97 (2005). Here, the plain meaning

of Rule 711 is clear: written consent must be obtained from the client

sought to be represented before legal serviced may be performed by

the 711 law student. Accordingly, until consent is obtained and filed

pursuant to Rule 711, the student may not perform legal services.
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In the cases before us, we first acknowledge that, although all

parties assumethat neither respondent nor defendant in fact consented

to the participation of the 711 law student, neither has specifically

alleged an actual lack of consent. However, Rule 711 requires not

only that consent be obtained, but that written consent “be filed in the

case and brought to the attention of the judge or presiding officer.”

210 Ill. 2d R. 711(c). Neither record before us contains the requisite

written consent, and the State has not argued that written consent was

actually filed in either case. Therefore, we find that Rule 711 was

violated in both cases.

Respondent and defendant urge us to end our inquiry here. They

argue that they have been denied counsel simply because their

assistant public defenders were assisted by 711 law students who

failed to comply with all of Rule 711. They rely on the decision by the

Supreme Court of Washington in City of Seattle v. Ratliff, which held

that “representation by a law student intern who fails to comply with

the conditions placed upon his or her practice does constitute an

absolute denial of the right to counsel which requires reversal.”

Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634. Our appellate court

adopted the Ratliff approach in People v. Schlaiss, 174 Ill. App. 3d 78

(1988), and in Denzel W. below.

Initially, we note that the facts in Ratliff are distinguishable from

the present cases. In Ratliff, the defendant appeared for trial on three

consolidated charges, but no counsel appeared to represent him. The

defendant told the court that an intern with the county public defender

association was representing him in another case, and the court

summoned the intern. When the intern arrived, the court expressed an

intent to go forward with the trial with the intern as counsel. The

intern explained that he was a legal intern, that he was not

representing the defendant in the cases scheduled for trial, and that he

was not prepared to go forward with a trial. At the prosecution’s

urging, however, the court required the intern, over objection, to

proceed with the trial. Ratliff, 100 Wash. 2d at 213-15, 667 P.2d at

630-31.

The Ratliff court acknowledged that “one who is authorized to

practice only under certain conditions, such as a legal intern, may be

considered ‘counsel’ for constitutional purposes,” but it emphasized

that “this is so only when he or she complies with those conditions”
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(emphasis in original). Ratliff, 100 Wash. 2d at 218, 667 P.2d at 633.

It therefore concluded that, because the intern was not “counsel” for

constitutional purposes, the defendant had been denied counsel.

Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634.

Schlaiss, on the other hand, applied Ratliff to very different

factual circumstances. There, the defendant was represented at trial

and sentencing by an assistant public defender and a 711 law student.

As in the present cases, the 711 law student failed to record the

written consent of the defendant. Citing the broad language of Ratliff

for support, the appellate court held that “[b]ecause the conditions

necessary for [the student’s] representation of [the defendant] were

not met, he cannot be considered ‘counsel’ for constitutional

purposes. Therefore, under these facts, we conclude that the

defendant was denied counsel in violation of the sixth amendment.”

Schlaiss, 174 Ill. App. 3d at 81.

This court has held that, for constitutional purposes, the term

“counsel” means “a duly licensed and qualified lawyer, and not an

attorney in fact or a layman.” People v. Cox, 12 Ill. 2d 265, 269

(1957). Our rules establish the requirements that attorneys must meet

to be considered “duly licensed and qualified.” See, e.g., 210 Ill. 2d

Rs. 704 (“Qualification on Examination”), 705 (“Admission on

Motion”). Attorneys who do not comply with the rules of licensure

we have established are not “duly licensed” to practice in this state.

However, a 711 law student is allowed to practice notwithstanding

the fact that he or she has not completed the ordinary requirements of

licensure; the student has not necessarily had his or her education

certified by an accredited law school, proven his or her competence

by passing a bar examination, and established his or her fitness to

practice law by passing a character and fitness evaluation. To ensure

that the client will receive adequate representation,Rule 711 therefore

imposes specific procedures that must be followed, and a student who

fails to comply with Rule 711 has not satisfied the requirements we

have established to protect the rights of his or her client. Thus, we

hold that a student who has not complied with the requirements of

Rule 711 is not counsel for constitutional purposes.

This determination does not end our inquiry, however. In these

cases, respondent and defendant were not represented by law students

alone. Both were also represented by fully licensed assistant public
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defenders who were present and actively involved in the

representation. As the California Supreme Court said of California’s

analogous student practice rule in People v. Perez,

“[t]he defendant *** is not merely represented by a student

who has not been admitted to the bar; he is represented by an

experienced member of the bar who serves as counsel of

record, undertakes personal and immediate supervision of the

student’s performance, and assumes responsibility for the

conduct of the defense.” People v. Perez, 24 Cal. 3d at 138,

594 P.2d at 4, 155 Cal. Rptr. at 179.

Rule 711 specifically provides that, in criminal cases in which the

penalty may be imprisonment,the student-practitionermay participate

only “as an assistant of the supervising member of the bar who shall

be present and responsible for the conduct of the proceedings.”

(Emphases added.) 210 Ill. 2d R. 711(e). Thus, the rule is very clear

that the responsibility for the representation falls not on the student

but on the supervising attorney. We acknowledge that the supervising

attorney need only be actually present when the defendant may face

imprisonment; in other criminal cases, a 711 law student may appear

alone. 210 Ill. 2d R. 711. However, the United States Supreme Court

has recognized a constitutional right to counsel only where the

defendant may face imprisonment. See Scott v. Illinois, 440 U.S. 367,

373, 59 L. Ed. 2d 383, 389, 99 S. Ct. 1158, 1162 (1979); Argersinger

v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538, 92 S. Ct. 2006,

2012 (1972), Therefore, Rule 711 specifically requires that, in cases

in which the defendant is entitled to counsel, a fully licensed attorney

must be present and supervising the representation.

The presence of the licensed attorney, who certainly is counsel for

constitutional purposes, is not somehow “cancelled out” by the law

student’s participation, even if the law student has not complied with

Rule 711. Where the supervising attorney properly supervises the 711

law student and remains responsible for the representation, as Rule

711 requires, we hold that the defendant has not been denied counsel.

To the extent that People v. Schlaiss is inconsistent with this holding,

it is overruled.

Conversely, where the defendant is entitled to counsel but the 711

law student appears alone in violation of the rule, the defendant

clearly has been denied counsel. In re Moore, cited by respondent and
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defendant, is an example. There, the trial court appointed a law

student, believing him to be an assistant public defender, to assist a

pro se respondent in an involuntary commitment proceeding at which

the respondent had a statutory right to counsel. In re Moore, 63 Ill.

App. 3d 899, 900 (1978). The law student was not supervised at any

point by a licensed attorney, and therefore respondent did not receive

the assistance of counsel to which he was entitled.

However, a supervising attorney does not satisfy his or her

obligation under Rule 711 merely by being physically present. Under

the standard set forth in Strickland v. Washington, 466 U.S. 668, 80

L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant can demonstrate

that he received ineffective assistance of counsel by showing both

that counsel’s performance “fell below an objective standard of

reasonableness” and that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S.

Ct. at 2064. Although respondent and defendant urge us to adopt a

new framework in which to evaluate failures to comply with Rule

711, we find that the Strickland analysis provides a more appropriate

avenue for resolving such errors. Thus, where the attorney’s

supervision of a 711 law student is insufficient in quality, nature, or

duration, such that his or her performance amounts to ineffective

assistance of counsel under Strickland, the defendant is entitled to a

new trial.

Finally, respondent and defendant argue that consent to

participation by a 711 law student is equivalent to a partial waiver of

counsel, and thus any failure to obtain that consent must be treated as

an independent error of constitutional magnitude. Because we find

that a defendant who is represented with the aid of a 711 law student

receives his “counsel” for constitutional purposes from the licensed

supervising attorney, we necessarily reject this argument. Where the

supervising attorney fulfills his or her responsibility under Rule 711,

the defendant does not give up his right to counsel by consenting to

the student’s participation, nor does the failure to obtain that consent

itself amount to a denial of counsel.

We now turn to the cases at bar. In Denzel W., the appellate court

reversed the trial court’s ruling adjudicating respondent delinquent

and ordered a new trial, finding that the violation of Rule 711 resulted

in a complete denial of counsel. In re Denzel W., No. 1–05–3374
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(unpublished order under Supreme Court Rule 23). We disagree. As

we have explained, a violation of Rule 711 does not amount to a per

se denial of counsel. Instead, the supervising attorney’s performance

must be evaluated as a whole under Strickland. The failure to file

written consent under Rule 711 is one factor to consider when

evaluating whether counsel was ineffective, but a reviewing court

must assess that failure in light of counsel’s overall performance, and

it must determine whether counsel’s performance prejudiced the

accused. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct.

at 2064.

Respondent also argues that he was denied counsel when the trial

court prevented the supervising assistant public defender from

conducting the redirect examination of Tequila T., and in the

alternative, he argues that his counsel was ineffective, citing several

alleged errors made at trial. With respect to the redirect of Tequila T.,

the appellate court noted that the trial court’s actions were “error,” but

because the appellate court resolved respondent’s claims on the issue

of consent alone, it performed no analysis of the import of the alleged

error. Similarly, the court did not address respondent’s claims that he

received ineffective assistance of counsel.

We agree with the appellate court that the trial court’s actions in

Denzel W. are troubling. Although we appreciate the court’s desire to

teach the 711 law student through experience, it is important that

courts before whom 711 law students appear be particularly mindful

of the supervising attorney’s obligation to ensure that counsel is

effective. As the appellate court stated, “[a]dherence to preferred

courtroom procedures should not trump the accused’s right to

effective assistance of counsel in a ‘teaching exercise’ involving a

711 student.” In re Denzel W., No. 1–05–3374 (unpublished order

under Supreme Court Rule 23). Therefore, although we disagree with

the appellate court’s determination that respondent is entitled to a

new trial based on a Rule 711 violation alone, we remand Denzel W.

to the appellate court for a determination of whether the trial court’s

actions, along with respondent’s other claimed errors, resulted in

respondent’s receiving ineffective assistance of counsel.

Unlike the appellate court in Denzel W., the appellate court in

Smith did consider defendant’s claims as part of an ineffective

assistance of counsel analysis, finding that counsel was not
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ineffective. People v. Smith, 384 Ill. App. 3d 489 (2008). Defendant

argues only that the court should have instead employed a per se rule;

he does not argue that the court’s Strickland analysis was flawed, and

he has not raised any other claims of error. Because we reject

defendant’s sole argument that the failure to comply with Rule 711

amounts to a per se denial of counsel, we affirm the decision of the

appellate court in Smith.

CONCLUSION

We reject respondent and defendant’s claim that they were denied

counsel because they did not consent to a 711 law student’s

participation in their defense. Accordingly, we reverse the decision of

the appellate court in Denzel W. and remand the cause to the appellate

court with directions to consider respondent’s additional arguments.

We affirm the decision of the appellate court in Smith.

No. 107003–Reversed and remanded.

No. 107112–Affirmed.

JUSTICE FREEMAN, dissenting:

This case presents the simple issue of what happens when Rule

711 is violated due to the failure to obtain the required written

consent of the person on whose behalf the law student was acting.

Resolving this issue requires that we interpret our own rules. In so

doing, the court once again harrumphs the familiar edict that its rules

“are not mere suggestions” and that “[i]ndeed, they have the force of

law.” Slip op. at 7; see also People v. Glasper, 234 Ill. 2d 173, 189

(2009) (addressing what happens when a trial judge does not permit

voir dire questioning as required under Rule 431). Those familiar

with this court’s other, recent interpretations of its own rules will

recognize what comes next: an analysis that will actually strip Rule

711 of this “force of law,” rendering it nothing more then the “mere

suggestion” that it is not supposed to be. The last most recent

example of this edict-invalidating analysis came in People v. Glasper.

There, the court’s answer to what happens when Rule 431 is violated
 2 The rule itself provides that 711 students can only work in a “legal aid

bureau, legal assistance program, organization, or clinic *** the office of

the public defender; or *** a law office of the State or any its

subdivisions.” 210 Ill. 2d R. 711(b). While there are “law offices of the

State” that serve in a prosecutorial capacity such as the Attorney General,

the vast amount of offices that come under the rule’s purview are those that

give assistance to the poor. Private law firms cannot have students work for

them in the same capacity.

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was the same as here: nothing. These kinds of decisions not only

undermine the force of our rules, they erode respect for judicial

decisions. After all, how many times can this court continue to say

“Do as I say, not as I do” before no respect remains? The analysis

offered by the court in these consolidated appeals is problematic for

a number of reasons. In the Smith appeal, which is the easier case of

the two, the court fails to give effect to the consent requirement of

Rule 711, thereby rendering that portion of the rule mere surplusage.

In the juvenile case, the court fails to even consider whether the rule

has any application in juvenile proceedings. I therefore respectfully

dissent. This court promulgated Rule 711 in May 1969, “in

response to the increased interest in clinical legal experience which

began to be felt by law students and law faculties *** an increased

interest which fit nicely with the growing demands being placed on

the judicial system by the need to provide for the representation of

indigents” in the wake of Gideon v. Wainwright, 372 U.S. 335, 9 L.

Ed. 2d 799, 83 S. Ct. 792 (1963). Ill. Ann. Stat., ch. 110A, par. 711,

Historical & Practice Notes, at 592 (Smith-Hurd 1985). The court’s

reference to providing the right to counsel for indigents indicates that,

in criminal cases, this court was aware that Rule 711 would impact

the sixth amendment’s right to counsel.2

A criminal defendant’s constitutional right to counsel is

multifaceted. On the one hand, it includes the right to competent

counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984). On the other hand, it allows a defendant the

ability to participate in and make decisions concerning his defense,

including the right to waive counsel. Faretta v. California, 422 U.S.

806, 821, 45 L. Ed. 2d 562, 574, 95 S. Ct. 2525, 2534 (1975); see also

People v. Cox, 12 Ill. 2d 265, 270 (1957) (acknowledging that under
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both the federal and Illinois constitutions, “an accused may likewise

waive his right to representation by one licensed to practice law”).

This court has held that “counsel” for purposes of the sixth

amendment is not a mere formality; it means that only those persons

licensed under this court’s rules to practice law will be permitted to

defend a criminal defendant in our courtrooms. Cox, 12 Ill. 2d at 269.

That counsel must be licensed is critical. In fact, the familiar twopronged ineffective assistance of counsel standard announced in

Strickland was predicated on the presumption that decisions made by

an attorney, duly licensed and admitted to practice under state rules,

are legitimate matters of trial strategy and thus are subject to highly

deferential judicial scrutiny, free of the “distorting effects of

hindsight.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S.

Ct. at 2065. 

Rule 711 was designed, then, not only to ensure that the

constitutional rights of those who receive student representation are

protected, but also to avoid abuses by them. Relevant here is

subsection (c), which provides the following: 

“Under the supervision of a member of the bar of this State,

and with the written consent of the person on whose behalf he/she

is acting, which shall be filed in the case and brought to the

attention of the judge or presiding officer, an eligible law student

or graduate may render the following services: 

*** 

He/She may appear in the trial courts and administrative

tribunals, subject to the following qualifications:

***

(i) Appearances, pleadings, motions, and other

documents to be filed with the court may be prepared by

the student or graduate and may be signed by him with the

accompanying designation ‘Senior Law Student’ or ‘Law

Graduate’ but must also be signed by the supervising

member of the bar.

(ii) In criminal cases, in which the penalty may be

imprisonment, in proceedings challenging sentences of

imprisonment, and in civil or criminal contempt

proceedings, the student or graduate may participate in
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pretrial, trial, and posttrial proceedings as an assistant of

the supervising member of the bar, who shall be present

and responsible for the conduct of the proceedings.

(iii) In all other civil and criminal cases the student or

graduate may conduct all pretrial, trial, and posttrial

proceedings, and the supervising member of the bar need

not be present.” (Emphasis added.) 210 Ill. 2d R. 711(c).

The plain language Rule 711 requires specifically that written

consent be obtained and that it “shall” be filed in the case. The

consent requirement of the rule, in conjunction with the presence of

a supervising attorney, are the preconditions to the student’s

participation in the case. Without written consent, spread of record,

and the presence of the supervising attorney, the student is

unauthorized to practice law in Illinois courtrooms.

The consent portion of the rule ensures, particularly in criminal

cases where the right to counsel is constitutionally guaranteed, that a

litigant knows and agrees to the proposition that someone who is not

licensed to practice law will be participating in the case on his behalf.

Rule 711 allows the litigant a choice–he can agree to the student

representation or refuse it. It is not forced on him. The consent

portion of the rule therefore serves a purpose–its requirement that

written consent be made a part of the record serves to safeguards

against litigants, particularly criminal defendants, from later arguing

on appeal that they did not know they were being represented by

students or did not consent to such representation. The agreement of

a criminal defendant that a law student, under the direct supervision

of counsel, could discharge some or all of counsel’s duties would

constitute a partial waiver of the right to competent (licensed) counsel

that is guaranteed by the sixth amendment. For that reason, I would

hold that the violation of the consent portion of Rule 711 requires a

new trial since the assistance of counsel is among those

“ ‘constitutional rights so basic to a fair trial that their infraction can

never be treated as harmless error.’ ”Holloway v. Arkansas, 435 U.S.

475, 489, 55 L. Ed. 2d 426, 437, 98 S. Ct. 1173, 1181 (1978), quoting

Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S.

Ct. 824, 827-28 (1967). 

My position is not new. Prior to the appellate court’s action here

in Smith, that was the law in Illinois. For example, in In re Moore, 63
 3 The court mischaracterizes Moore by implying that the appellate

court’s holding was grounded upon the lack of supervision by a licensed

attorney. Slip op. at 11. The focus of the court’s holding in Moore was on

the lack of consent and the lack of knowledge on the part of the trial judge.

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Ill. App. 3d 899 (1978), a new trial was ordered because the record

failed to disclose any affirmative signal that either the respondent or

the trial judge was aware of the law student’s 711 status. The

appellate court specifically emphasized that “[n]o written consent

form by respondent appear[ed] in the record.” Moore, 63 Ill. App. 3d

at 904.3 In People v. Schlaiss, 174 Ill. App. 3d 78 (1988), the court

reversed the defendant’s conviction because he had not consented to

representation by a law student and there was insufficient evidence in

the record to show that the defendant even knew he was being

represented by a law student. 

I note, too, that courts from other jurisdictions have also held that

lack of consent is grounds for reversal. For example in People v.

Miller, 89 Cal. App. 3d Supp. 14, 152 Cal. Rptr. 707 (1979), the

California Court of Appeals ordered a new trial because the record

contained no written consent from the defendant allowing a law

student to discharge the duties that a licensed attorney would

normally do during the trial. The court specifically noted that

allowing a law student to take over various portions of the trial was,

in effect, a partial waiver of the defendant’s sixth amendment right to

counsel. Similarly, in In re C.B., 546 So. 2d 447 (Fla. App. 1989), the

Florida Court of Appeals reversed based on the lack of direct

evidence that the respondent had consented to the representation of

student intern. Although the State argued that the intern had informed

the respondent of her student status, the court found that to be “no

substitute” for proof in writing of actual consent to the representation.

C.B., 546 So. 2d at 448. See also In re L.S., 560 So. 2d 425 (Fla. App.

1990) (reversing based on lack of written consent without addressing

whether the intern was supervised); In re A.R., 554 So. 2d 640 (Fla.

App. 1989) (reversing for lack of consent waiver without addressing

the extent to which the intern had been supervised).

Not all cases, however, require per se reversals. Those cases

which have not ordered new proceedings did so because evidence in

the record established that the defendant was aware of the student’s
 4 In structuring its analysis, the majority relies in large part on People v.

Perez, 24 Cal. 3d 133, 594 P.2d 1, 155 Cal. Rptr. 176 (1979). Perez,

however, is distinguishable because the record in that case contained a

written consent form that was signed by the defendant. Finding the consent

form valid, the court placed on defendant the burden of establishing that his

consent to such representation had been unknowing. Since the defendant

could not meet that burden, the student’s representation, in light of being

supervised by licensed counsel, did not violate the defendant’s right to

counsel. Moreover, the court held that the defendant’s written consent was

sufficient to satisfy constitutional requirements. I note that the appellate

court in Schlaiss specifically distinguished Perez on the basis that the

California Supreme Court was not faced with the lack of written consent

issue. Schlaiss, 174 Ill. App. 3d at 81.

-18-

status. See State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (1994);

Jones v. State, 902 P.2d 686 (Wyo. 1995). That is not the case here.

In fact, my research indicates only one jurisdiction, Louisiana, which

regards the absence of required consent as cavalierly as the court does

here today. See State v. Edwards, 351 So. 2d 500 (La. 1977). 

Like the court’s pronouncements that its rules are not mere

suggestions, the court is fond of saying that its rules are the equivalent

of statutes and are to be interpreted as such. Slip op. at 7. That, of

course, would mean that all of Rule 711’s terms are to be given the

effect of their plain, ordinary meaning. So, where is the meaning

given to the words “written consent”? Surely, when this court

promulgated the rule there was a purpose behind the words it used.

Today’s opinion omits any reference as to what that purpose may be.

Instead, although the court finds that Rule 711 was violated in both

cases by the failure to obtain the requisite written consent, that does

not end its “inquiry.” Slip op. at 8. It goes on to hold that even though

law students–like those in these cases–who have not complied with

the requirements of Rule 711 are “not counsel for constitutional

purposes” (slip op. at 9), the right to counsel has not been denied

because a supervising attorney is present. It is the presence of the

supervising attorney, according to the court, that preserves the right

to counsel under the sixth amendment.4 I strongly disagree. 

The presence of the supervising attorney has nothing to do with

whether a litigant consented to have a student participate in his trial.
 5I note that several of our sister states have specifically included juvenile

proceedings in their student practice rules. See, e.g., Colo. Rev. Stat.

12–5–116.1 (2009); Ga. Sup. Ct. R. 91 (2009); Idaho Bar Comm’n R. 221;

Mass. Sup. Jud. Ct. R. 3:03 (2009); Neb. Ct. R. §3–702; Ohio Rules for the

Government of the Bar R. II; Oklahoma Supreme Court R. 7.7; Or. Bar

Admission R. 13.10 (2009); Washington Supreme Court R. 9.

-19-

In criminal cases, the presence of the supervising attorney has nothing

to do with whether a defendant has agreed to waive his right to have

a licensed attorney participate in all facets of his defense. Thus, the

court has written out the consent provisions of Rule 711. Under

today’s analysis, a law student and the supervising licensed attorney

could work in a case, and the defendant would have no say in the

matter since a defendant does not have the right to choose one courtappointed attorney over another. Clearly, criminal defendants with

monetary resources will not be put in this situation since Rule 711

applies only to law offices of the state and its subdivisions, such as

the public defender’s office, which supply appointed counsel. Those

with money will retain and pay a fee to licensed member of the bar.

Only the indigent, then, will face the prospect of having law students

unwittingly thrust upon them through appointed counsel. This leads,

in my view, to potential problems of inequality of representation

based upon a defendants’ economic status.

Turning to the consolidated matters here, in defendant Smith’s

case, the violation of the rule is clear. The record does not contain

Smith’s written consent to the student’s representation, and the

transcript does not indicate that the trial judge was made aware that

a 711 student was participating in the suppression hearing. I would

therefore grant Smith a new trial.

Respondent Denzel W.’s case is more problematic. By failing to

address the consent portion of the rule, the court bypasses the more

fundamental question of whether the rule even applies to juvenile

proceedings. Rule 711 states that eligible students may participate in

civil and criminal matters. The rule does not specifically refer to

juvenile proceedings, which are neither criminal nor civil

proceedings. See In re W.C., 167 Ill. 2d 307, 326 (1995) (recognizing

that a juvenile proceeding is “nonadversarial and designed to further

the best interests of the minor”).5
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Assuming Rule 711 does apply to juvenile proceedings, this court

has incorporated many of the constitutional requirements of a

criminal trial into juvenile delinquency proceedings, including the

right to counsel. In re A.G., 195 Ill. 2d 313, 319 (2001). The right to

counsel, as I have previously explained, includes the right to waive

attorney representation. Rule 711 states that consent to the student

representation must be obtained from the party on whose behalf the

student will act. How should the consent contemplated in Rule 711

be given in juvenile proceedings? A juvenile may not understand the

implications of having a law student take on some advocate roles in

the trial; therefore, it would seem that the juvenile’s parent or

guardian would need to be the one to give the requisite consent under

the rule. Again, however, because the court summarily renders the

consent portion Rule 711 mere surplusage, it dodges the questions

surrounding whether a juvenile can even give the consent that Rule

711 would require if it is indeed applicable to juvenile proceedings.

In any event, no written consent appears in the record, signed by

either the respondent or his parents, and reversal would be required

on that basis if the rule is applicable in such proceedings.

Parenthetically, the court’s treatment ofthe juvenile case warrants

criticism for a further reason. The court states that the appellate court

is to determine whether the “trial court’s actions *** resulted in

respondent’s receiving ineffective assistance of counsel.” Slip op. at

12. I am not sure what that means–Does the appellate court have to

see if the trial court’s action violated Strickland? If so, how? By not

allowing the supervising attorney to take over the redirect

examination of Tequila, the trial court effectively denied respondent

the benefit of the supervising attorney’s expertise, a benefit that Rule

711 clearly contemplates will not be denied even though a student

may be assisting in the case. By not letting the supervising attorney

actually “supervise” the student, the trial court violated Rule 711 and

denied respondent his right to competent, licensed counsel during the

trial proceedings. Neither the respondent nor his licensed attorney

violated Rule 711 so the burden of establishing a Strickland violation

should not be placed upon him on appeal. There is no reason for a

remand under such circumstances.

Finally, I take issue with two other aspects of the court’s decision

today. First, there is the court’s references to the supervising attorney
-21-

as a kind of filter that prevents the 711 student from making mistakes.

It is not always possible to glean from the transcripts the extent to

which a supervising attorney can control the student’s words and

actions. The transcript in the juvenile case reflects that even when a

supervising attorney wants to take control, he might not be able to do

so. More importantly, the immediate presence of an experienced,

supervising attorney cannot always prevent or undue the harm caused

by the unskilled student assistant, such as failing to lay the proper

foundation for impeachment, asking an overbroad question on crossexamination, or clumsily handling the direct examination of a hostile

or difficult witness. Applying the Strickland standard, with its strong

presumption in favor of competence, will not always provide relief in

such circumstances. As the dissenting justice in Perez noted, there

“may be but one moment of time in the course of a trial when the

right act, word or decision can be made and the case won. *** If that

moment of opportunity passes, no amount of post-verdict advice to

or critique of the law student’s performance will give solace to a

defendant in prison.” Perez, 24 Cal. 3d at 151, 594 P.2d at 12, 155

Cal. Rptr. at 187 (Mosk, J., dissenting). 

Second, there is the court’s references to the educational worth of

Rule 711 for law students. Slip op. at 7, 12. I understand this worth,

but it has absolutely no bearing on this case. The only relevant inquiry

is whether Smith and Denzel consented to the student’s

representation, not what educational opportunity is offered by that

representation.

JUSTICE BURKE joins in this dissent.