FIRST DIVISION

September 8, 2008

No. 1-06-0476

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. ) No. 02 CR 23954

)

EVELYN SANTIAGO, ) The Honorable

) Dennis J. Porter,

Defendant-Appellee. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The circuit court suppressed the defendant's written

statement based on a finding that Illinois Supreme Court Rule of

Professional Conduct 4.2 (134 Ill. 2d R. 4.2), generally referred

to as the "no-contact rule," was violated by assistant State's

Attorneys. Following the defendant's arrest on child

endangerment but before formal charges were filed, an assistant

State's Attorney interrogated the defendant after the State's

Attorney's office (SAO) filed a petition in juvenile court based

on the same facts that triggered the criminal investigation. In

the juvenile court case, the SAO filed a petition seeking to

declare the defendant's children wards of the court; the
No. 1-06-0476

2

defendant was named a respondent and was appointed counsel. Her

appointed counsel was not contacted by the assistant State's

Attorney prior to the interrogation of the defendant in the

criminal matter. The circuit court determined it was bound by

the holding in People v. White, 209 Ill. App. 3d 844, 875, 567

N.E.2d 1368 (1991), where the Fifth District found an earlier

version of the Illinois no-contact rule "provides protection to a

criminal suspect even prior to the filing of formal charges." 

Rule 4.2 prohibits a lawyer from communicating "with a party the

lawyer knows to be represented by another lawyer in that matter"

without consent of that party's lawyer. (Emphasis added.) 134

Ill. 2d R. 4.2. 

We hold Rule 4.2 is not implicated under the facts of this

case because the criminal and juvenile cases are different

"matters." The defendant did not have an attorney in the

criminal matter. Consequently, the holding in White does not

control here. We therefore reverse the order of the circuit

court suppressing the defendant's written statement and remand

for further proceedings.

BACKGROUND

On June 21, 2002, S.H., the 13-month-old daughter of the

defendant, Evelyn Santiago, was taken to Norwegian American

Hospital with a laceration to her vagina. The treating
No. 1-06-0476

3

physician, Dr. Bogolub, determined the injury could be consistent

with the explanation given by the defendant--that S.H. fell onto

a child's plastic "sipping cup" while bathing. Intentional abuse

was also a potential cause.

On June 23, 2002, Detective Gregory Auguste of the special

victims unit at Area 5 began investigating S.H.'s injury. On

June 25, Dr. Fujara, a child abuse expert, informed Auguste that

S.H.'s injury was highly suspicious for abuse. That same day,

the office of the Cook County State's Attorney filed petitions in

the juvenile justice division of the circuit court seeking to

have S.H. and her two-year-old brother, E.H., adjudicated wards

of the court (hereinafter, juvenile case). The petitions were

based on S.H.'s vaginal injury. Attorney Melinda MacGregor was

appointed to represent the defendant. She entered an appearance

on June 27, 2002.

The defendant was interviewed numerous times by Detective

Auguste and, on August 28, 2002, was arrested for child

endangerment. The defendant waived her Miranda rights and spoke

to Auguste about S.H.'s injury. She later waived her Miranda

rights and spoke to two assistant State's Attorneys about the

injury. The defendant continued to maintain S.H.'s vaginal

injury occurred in a bathing accident, but gave inconsistent

causes. On the following day, the defendant again waived her
No. 1-06-0476

4

Miranda rights and spoke to Detective Gabriel Gomez and an

assistant State's Attorney. The defendant eventually made an

incriminating statement memorialized in writing. At no time did

the detectives or assistant State's Attorneys contact Attorney

MacGregor. 

On September 27, 2002, the defendant was charged by

indictment with two counts of aggravated battery of a child, one

count of female genital mutilation, and two counts of aggravated

battery (hereinafter, criminal case). The public defender's

office was appointed to represent her and entered an appearance

in criminal court.

On February 24, 2005, the defendant filed an amended motion 

to suppress evidence in the criminal case. The defendant alleged

her statements to the detectives and assistant State's Attorneys

were taken in violation of Illinois Supreme Court Rule of

Professional Conduct 4.2. The defendant alleged the rule was

violated because Attorney MacGregor did not consent to the

custodial questioning. 

Following a hearing, the trial court concluded it was bound

by the holding in White, 209 Ill. App. 3d 844, 567 N.E.2d 1368--

Rule 4.2 applies in criminal cases prior to the filing of formal

charges and prohibits contact between a represented suspect and
No. 1-06-0476

1 White addressed the predecessor version, Rule 7-104(a)(1)

(107 Ill. 2d R. 7-104(a)(1)).

5

the prosecution without the consent of the suspect's attorney.1

Following the reasoning in White, the circuit court ruled any

statements the defendant made to the detectives alone were

admissible because they did not act as the "alter ego" of the

prosecution. White, 209 Ill. App. 3d at 875. However, the court

ruled all communication between the assistant State's Attorneys

and the defendant occurred in violation of Rule 4.2 and

suppressed the statements the defendant made to them.

The State timely filed a certificate of substantial

impairment and a notice of appeal. 

ANALYSIS

Illinois Supreme Court Rule of Professional Conduct 4.2

states:

"During the course of representing a

client a lawyer shall not communicate or

cause another to communicate on the subject

of the representation with a party the lawyer

knows to be represented by another lawyer in

that matter unless the first lawyer has

obtained the prior consent of the lawyer
No. 1-06-0476

6

representing such other party or as may

otherwise be authorized by law." 134 Ill. 2d

R. 4.2.

The State contends (1) Rule 4.2 does not apply in criminal

cases, (2) if Rule 4.2 does apply in criminal cases, it does not

apply before the filing of formal charges, (3) if Rule 4.2

applies prior to the filing of charges, it was not violated in

this case because the criminal and juvenile cases are different

"matters" or because the questioning is "authorized by law," and

(4) if Rule 4.2 applies and was violated, the suppression of the

defendant's written statement is not the proper remedy. 

According to the State, "Not a single authority has applied the

exclusionary rule in the factual setting presented by this case." 

These contentions hinge on our interpretation of Rule 4.2, a

question of law. People v. Roberts, 214 Ill. 2d 106, 116, 824

N.E.2d 250 (2005) (the interpretation of supreme court rules is a

question of law). Accordingly, we defer our review of the

evidence presented at the suppression hearing until, and unless,

we determine Rule 4.2 applies here. Reviewing courts interpret

supreme court rules the same as statutes. In re Estate of

Rennick, 181 Ill. 2d 395, 404, 692 N.E.2d 1150 (1998). The

"primary goal" is to ascertain and give effect to the intent of

the drafters, the most reliable indicator of which is the plain
No. 1-06-0476

7

and ordinary meaning of the language used. Roberts, 214 Ill. 2d

at 116. If the language is ambiguous, we may look to additional

sources to determine the drafters' intent, including the purposes

of the rule, the evils sought to be remedied, and the goals to be

achieved. Brucker v. Mercola, 227 Ill. 2d 502, 513-14, 886

N.E.2d 306 (2007). Review is de novo. Roberts, 214 Ill. 2d at

116.

Illinois Rule of Professional Conduct 4.2 is largely based

on American Bar Association (ABA) Model Rule of Professional

Conduct 4.2. The no-contact rule has been enacted in some form

in every jurisdiction and serves at least two purposes: (1) it

governs attorney conduct in order to foster public confidence in

the legal profession (see, e.g., United States v. Talao, 222 F.3d

1133, 1138 (9th Cir. 2000) (explaining, "The rule exists in order

to ' "preserve *** the attorney-client relationship and the

proper functioning of the administration of justice." '

[Citation.]")); and (2) it protects individuals from "being

tricked by a lawyer's artfully contrived questions into giving

his case away" (United States v. Massiah, 307 F.2d 62, 66 (2d

Cir. 1962), rev'd on other grounds, 377 U.S. 201, 12 L. Ed. 2d

246, 84 S. Ct. 1199 (1964); United States v. Sutton, 801 F.2d

1346, 1366 (D.C. Cir. 1986) (purpose of rule is "to ensure that

lawyers not prey on persons known to be represented by
No. 1-06-0476

8

counsel")). 

The State first contends Rule 4.2 does not apply in criminal

cases. We note that the case law, including from this and other

jurisdictions, generally holds the contrary. See, e.g., White,

209 Ill. App. 3d at 873 (the no-contact rule "applies to criminal

as well as civil cases"); People v. Nance, 100 Ill. App. 3d 1117,

1123, 427 N.E.2d 630 (1981) (addressing whether defense counsel

violated the no-contact rule); United States v. Ryans, 903 F.2d

731, 735 (10th Cir. 1990), cert. denied, 498 U.S. 855, 112 L. Ed.

2d 118, 111 S. Ct. 152 (1990) (it is "well settled" the rule

"applies to criminal prosecutions as well as to civil

litigation"); United States v. Hammad, 858 F.2d 834 (2d Cir.

1988), cert. denied, 498 U.S. 871, 112 L. Ed. 2d 154, 111 S. Ct.

192 (1990) (finding a no-contact rule violation in a criminal

case); see also United States v. Tapp, No. CR107-108 (S.D. Ga.

June 4, 2008) (addressing failed attempts by the Department of

Justice to exempt federal prosecutors from the no-contact rule). 

Based on the cited authorities, we reject the State's blanket

position that Rule 4.2 does not apply in criminal cases.

The case law is less settled regarding the State's second

contention--that the no-contact rule applies only after formal

charges are filed. Compare United States v. Fitterer, 710 F.2d

1328, 1333 (8th Cir. 1983), cert. denied, 464 U.S. 852, 78 L. Ed.
No. 1-06-0476

2 As expressed in a federal decision, the no-contact rule may

play an independent role in the proper functioning of the

administration of justice. See United States v. Talao, 222 F.3d

1133, 1138 (9th Cir. 2000).

9

2d 150, 104 S. Ct. 165 (1983) (no ethical violation where the

defendant, who is not in custody and has not been formally

charged, is contacted); United States v. Vasquez, 675 F.2d 16, 17

(2d Cir. 1982) (no-contact rule not violated where noncustodial

contact occurs prior to the filing of charges); United States v.

Kenny, 645 F.2d 1323, 1339 (9th Cir. 1981), cert. denied, 452

U.S. 920, 69 L. Ed. 2d 425, 101 S. Ct. 3059 (1981) (noncustodial

contact by an informant prior to arrest or indictment does not

implicate the rule), with Hammad, 858 F.2d at 837 (no-contact

rule is not coextensive with the sixth amendment); White, 209

Ill. App. 3d at 873 (following Hammad and holding "[t]he rule is

not coextensive with the sixth amendment right to counsel, but

may apply prior to the bringing of judicial charges"). 

We find, however, no need to address the State's

disagreement with the holding in the Hammad and White opinions

that the no-contact rule may provide protection before the sixth

amendment right to counsel comes into play.2 The case before us

presents a more narrow issue: whether Rule 4.2 is implicated by
No. 1-06-0476

10

the facts presented here. This we believe is the focus of the

State's third contention--that the juvenile case and the criminal

case are different "matters" for purposes of Rule 4.2. 

"Matter" is not defined in the Illinois Rules of

Professional Conduct, and the comments to ABA Model Rule 4.2

provide little guidance to its intended meaning. The cases cited

by the parties involve the situation present in White where the

prosecution or its alter ego contacts an individual about a

criminal matter without the consent of the individual's known

criminal defense counsel. Neither party points to any case

presenting the factual scenario here where a defendant seeks to

suppress evidence in a criminal case based on the prosecution's

failure to obtain consent of appointed civil counsel. 

Nonetheless, absent authority to the contrary, we are unconvinced

Rule 4.2 was meant to apply in such situations. 

We are persuaded that the juvenile and criminal cases are

separate matters under Rule 4.2 based on the holding in People v.

Moreno, 319 Ill. App. 3d 445, 744 N.E.2d 906 (2001). In Moreno,

the State filed juvenile wardship petitions alleging the

defendant's four children were abused. The State also charged

the defendant with aggravated battery of a child. The juvenile

and criminal cases were grounded on the defendant's alleged abuse

of her seven-month-old nephew, G.M. Following the juvenile
No. 1-06-0476

11

adjudicatory hearing, the trial court ruled the State failed to

prove by a preponderance of the evidence that the defendant

abused G.M. The defendant then sought to have the criminal

charges dismissed, arguing the State was collaterally estopped

from proceeding in criminal court because the same factual issues

were resolved in her favor in the juvenile proceeding. The

criminal trial court disagreed.

On appeal from the denial of her motion to bar prosecution,

this court affirmed. We distinguished juvenile and criminal

proceedings:

"In the juvenile proceeding, the ultimate

litigated issue was whether the minor

children of defendant were abused due to

defendant's involvement with the injuries of

G.M.; in the subsequent criminal proceeding,

the ultimate litigated issue will be whether

the defendant is criminally culpable for the

injuries to G.M. In the juvenile proceeding,

the State's purpose is protection of

defendant's minor children; in the criminal

proceeding, the State's purpose is

discovering if defendant injured G.M. and

punishing her if found guilty. The
No. 1-06-0476

12

differences of purpose and goal in the civil

and criminal procedures are 'very real.' 

[Citation.]" Moreno, 319 Ill. App. 3d at

452.

We also noted that a criminal trial is "the exclusive forum for

determining guilt or innocence" and that the State lacked "a full

and fair opportunity to litigate" the defendant's culpability in

the juvenile proceedings. Moreno, 319 Ill. App. 3d at 452-53. 

We acknowledge the decision in Moreno arose under different

facts and addressed different issues than those raised in this

case. However, we agree with Moreno's conclusion that juvenile

and criminal proceedings, which serve different purposes and have

different goals, are entirely different proceedings. In addition

to those highlighted in Moreno, we note several other

distinctions between juvenile and criminal proceedings. 

Proceedings under the Juvenile Court Act of 1987, unlike criminal

proceedings, are not meant to be adversarial. 705 ILCS 405/1-

5(1) (West 2006) ("proceedings under this Act are not intended to

be adversary in character"). As the State points out, juvenile

and criminal cases (1) have different case numbers, (2) are heard

by different judges, and (3) involve different employees of the

SAO. 

Our conclusion is consistent with the common sense reading
No. 1-06-0476

13

of Rule 4.2 written as a single sentence. See People v. Morgan,

112 Ill. 2d 111, 141, 492 N.E.2d 1303 (1986) (defendant's

interpretation rejected in light of "the common sense reading of

the admonition"). "Matter" in the phrase "represented by another

lawyer in that matter" refers back to the "subject of the

representation." While the focus of the investigation--the

injury to the defendant's daughter--led to both a juvenile

proceeding and a criminal investigation being instituted against

the defendant, "the subject of the representation" of Attorney

MacGregor was solely the juvenile proceeding in which the order

appointing MacGregor was entered. Because the only "subject of

representation" of Attorney MacGregor was the juvenile

proceeding, the only reference for "matter" in the latter phrase

was the juvenile proceeding in which Ms. Santiago was represented

by another lawyer. Under the facts of this case, "matter" in

Rule 4.2 could not reference the criminal investigation in this

case because it was not the "subject of the representation." 

Furthermore, to read Rule 4.2 as the defendant urges would

create anomalous results for similarly situated individuals

facing identical investigations. In the defendant's situation,

she would be afforded greater protection under Rule 4.2 than an

accused in a criminal investigation where, at the time she is

interviewed by the SAO, the filing of the juvenile court petition
No. 1-06-0476

14

has been delayed. Under the defendant's reading of Rule 4.2, the

accused with a juvenile proceeding pending cannot be properly

interviewed by assistant State's Attorneys without the consent of

her civil attorney; where no juvenile proceeding is pending at

the time of the interview, there is no such requirement under

Rule 4.2. We discern no reason, nor have we been given one apart

from the broad reading of Rule 4.2 urged by the defendant, to

treat these similarly situated individuals differently.

Counsel's involvement in this case reinforces our conclusion

that Rule 4.2 cannot be read as the defendant urges. The

defendant was appointed counsel in the juvenile case and, after

charges were filed in the criminal case, separate counsel was

appointed. Each attorney entered an appearance in the respective

case; there is no suggestion that the two attorneys coordinated

their respective defense of Ms. Santiago. As the State pointed

out at oral argument, no mechanism exists under either the

Juvenile Court Act of 1987 or the Code of Criminal Procedure of

1963 (725 ILCS 5/100-1 et seq. (West 2006)) to consolidate

juvenile and related criminal proceedings.

Additionally, nothing in the record supports that Attorney

MacGregor, presumably trained in the nuances of juvenile
No. 1-06-0476

3 Attorney MacGregor was appointed more than two months

before the written statement of the defendant was obtained by the

SAO in the criminal investigation that the circuit court

suppressed; yet, there is nothing in the record to suggest

Attorney MacGregor played any role in that investigation.

15

proceedings, is competent in criminal proceedings.3 In a related

vein, Attorney MacGregor's involvement in the criminal

investigation might have exceeded the statutory scope of her

juvenile appointment. See 705 ILCS 405/1-5(1) (West 2006)

(providing for appointment of counsel to represent indigent

parents threatened with the loss of parental rights and stating

counsel "shall appear at all stages of the trial court

proceeding, and such appointment shall continue through the

permanency hearings and termination of parental rights

proceedings"). 

For these reasons, we conclude the juvenile and criminal

cases are different "matters" for purposes of Rule 4.2. Here,

MacGregor was appointed counsel for Ms. Santiago as a respondent

in the juvenile case, a civil proceeding. At the time the

defendant was questioned by representatives of the SAO regarding

the criminal investigation, she did not have counsel in the
No. 1-06-0476

16

criminal case. Simply put, there was no attorney to consent to

the contact in the criminal matter; Rule 4.2 was never triggered.

In light of our holding, we do not address the State's remaining contentions, including

whether the prosecution's questioning falls within the "authorized by law" exception to Rule 4.2

or whether suppression of the defendant's statement is the proper remedy in the face of a

violation. We also make no finding regarding the admissibility of the defendant's statements in

the juvenile case.

CONCLUSION

For the reasons stated, the order of the circuit court of Cook County is reversed and the

cause is remanded to the circuit court for further proceedings.

Reversed and remanded. 

Wolfson, J., concurs.

PRESIDING JUSTICE ROBERT E. GORDON, dissenting:

I respectfully dissent from the majority opinion. One detective started one investigation

against one defendant concerning one injury. Namely, on June 23, 2002, Detective Auguste

started an investigation of one injury to defendant’s daughter. From this one investigation into

this one injury, one office of the State generated two sets of charges: one civil, one criminal. The

one office was the Cook County State’s Attorney’s office. The incriminating information

developed in this one investigation would be used by this one office to further both its civil and

criminal charges. 

There is no way that defendant’s civil defense attorney could protect the rights of her
No. 1-06-0476

17

client in the civil case, without being present during the interrogations of the defendant in this

investigation.

Fortunately, our supreme court had already recognized the need to protect the attorneyclient relationship, in the face of an opposing attorney’s investigation. That is the whole point

behind our supreme court’s Rule of Professional Conduct 4.2.

As the majority noted, we interpret a supreme court rule, first and foremost, by looking at

the plain meaning of its words. Slip op. at 6, citing Roberts, 214 Ill. 2d at 116. Rule 4.2 states in

relevant part:

“During the course of representing a client a

lawyer shall not communicate *** on the subject of

the representation with a party the lawyer knows to

be represented by another lawyer in that matter

***.” 134 Ill. 2d R. 4.2 .

The majority construes the words “in that matter” in isolation, without considering their

context in Rule 4.2. The word “that” refers the reader back to a specific thing previously

mentioned in the sentence, namely “the subject of the representation.” The word “that” means,

among other things, “referring to a specific thing previously mentioned.” Oxford English

Dictionary, 17 Oxford English Dictionary 868-873 (2d ed. 1989).

When we apply the words of the rule to the facts of the case at bar, the result is clear. The

defendant was “represented by another lawyer.” The prosecutors nonetheless questioned her

about the “matter” or “subject” of “that” representation. The “subject" or “matter” about which
No. 1-06-0476

18

the prosecutors questioned defendant was the injury that was the “subject” of the civil attorney’s

appointment.

As the majority also notes, if the language of a rule is ambiguous, we interpret the rule in

light of “the purposes of the rule, the evils sought to be remedied, and the goals to be achieved.” 

Slip op. at 6, citing Brucker, 227 Ill. 2d at 513-14. The majority concludes that the purpose of

Rule 4.2 is to foster public confidence in the legal profession and to protect clients from being

tricked by an opposing lawyer into giving away his case. Slip op. at 7.

Applying Rule 4.2 to this case furthers both of these goals. First, it is difficult to envision

how public confidence will be fostered if the State can, with a sleight of hand, switch the labels

on one investigation from civil to criminal and back again, to suit its needs. Second, while we do

not mean to suggest that there was any trickery on the part of the prosecutors, there is also no

question that the defendant gave away the civil case, without her civil attorney’s presence or

consent. In addition, the defendant did not have the opportunity to obtain advice from her

appointed civil attorney. Thus, application of the rule to this case furthers both of the purposes

behind the rule. 

By finding that the prosecutors had to contact defendant’s civil attorney before

questioning defendant, I am not finding that the civil attorney represented defendant for purposes

of the criminal case. The criminal and civil cases arose out of the exact same set of facts. Thus,

any evidence developed in the criminal case could, and would, be used in the civil case against

defendant. I find only that, in order to effectively protect defendant’s rights in the civil case, the

civil attorney had to be present when the prosecutors questioned her client.
No. 1-06-0476

19

The majority relies heavily on Moreno, an Illinois Appellate Court case that found that

the State could bring both criminal and civil charges arising out of the same set of facts. Slip op.

at 10-11; Moreno, 319 Ill. App. 3d at 452-53. Certainly, the Cook County State’s Attorney’s

office can bring two sets of charges against one defendant for one injury. But in order to

effectively represent her client, the civil attorney needs to be present when the State’s Attorney

attempts to develop evidence to be used in her case. Thus, Moreno, does not dictate the outcome

of this case because the issues are not the same. 

In sum, Rule 4.2 should be applicable to this case because, first, application comports

with the plain language of the rule; second, application furthers the purposes behind the rule; and

third, Moreno, the case relied upon heavily by the majority, is inapposite. Slip op. at 10-11;

Moreno, 319 Ill. App. 3d at 452-53. For these reasons, I would affirm the trial court’s ruling, and

thus I must dissent.
No. 1-06-0476

20

 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

v.

EVELYN SANTIAGO,

Defendant-Appellee.

________________________________________________________________

No. 1-06-0476

 Appellate Court of Illinois

First District, First Division

Filed: September 8, 2008

_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

Wolfson, J., concurs.

R. Gordon, P.J., dissents.

_________________________________________________________________

Appeal from the Circuit Court of Cook County

Honorable Dennis J. Porter, Judge Presiding

_________________________________________________________________

For PLAINTIFF - James E. Fitzgerald, Assistant State's Attorney, Of Counsel

APPELLANT Annette Collins, Assistant State's Attorney, Of Counsel

Christopher Petelle, Assistant State's Attorney, Of Counsel

Veronica Calderon Malavia, Assistant State's Attorney, Of Counsel

RICHARD A. DEVINE

State's Attorney of Cook County

Richard J. Daley Center–Room 309

Chicago, Illinois 60602
No. 1-06-0476

21

For DEFENDANT - Denise R. Avant, Assistant Public Defender

 APPELLEE EDWIN A. BURNETTE

Public Defender of Cook County

69 W. Washington, 15th Floor

Chicago, Illinois 60602