2011 IL App (2d) 101214
Ill. App. Ct.2011Background
- Stephenson filed for dissolution in Sept. 2009; Richard counter-petitioned in Dec. 2009.
- Richard retained Paulette Gray in Sept. 2010; Paulette is married to Robert Gray, a partner at Gummerson's firm.
- Gummerson appeared for Alicia on Oct. 26, 2010; Richard moved to disqualify him on Oct. 28, 2010.
- Richard alleged Rule 1.7/1.9/1.10 conflicts due to Paulette and Robert's discussions about the case and a claimed “Chinese wall.”
- Paulette testified she and Robert discussed interim fees, prenuptial issues, and Alicia’s finances; Paulette and Gummerson discussed strategy in a courthouse hallway meeting.
- Gummerson testified he implemented a “Chinese wall,” segregated the Stephenson file, and instructed staff to avoid Robert’s involvement.
- Trial court granted disqualification; Alicia appealed, and the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Richard a client of Robert under Rule 1.7 so as to create a concurrent conflict? | Stephenson contends Richard was a client and thus Robert’s representation of Alicia violated 1.7. | Stephenson argues Robert’s representation was adverse to Richard and imputed to Gummerson under 1.10. | No; Richard did not establish client status under 1.7; no concurrent client relation existed. |
| Did Paulette’s authority to engage Robert establish agency sufficient to form a conflict? | Stephenson argues Paulette had authority to seek Robert’s counsel on Richard’s behalf. | Stephenson contends Paulette’s authority created a binding attorney-client relation through Robert. | Richard failed to prove Paulette had actual, implied, or apparent authority to bind Robert or form a client relationship. |
| Was the personal conflict imputable to the firm under Rule 1.10 given the court’s screening measures? | Stephenson asserts personal conflict at the firm level was imputable to Gummerson. | Stephenson argues the conflicts were imputed because Paulette engaged Robert in the matter. | Screening was timely and sufficient; conflict not imputable to the firm. |
| Did Paulette’s courthouse discussion with Gummerson create a disqualifying conflict under Rules 1.7/1.9? | Stephenson claims the conversation tainted representation. | Stephenson argues the discussion generated a duty to Richard as a former client. | Courthouse discussion in public did not create an attorney-client relationship or surviving duty; no basis to disqualify. |
Key Cases Cited
- Formento v. Joyce, 168 Ill. App. 3d 429 (Ill. App. 1988) (consent required to create attorney-client relationship; authority must be manifested)
- Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978) (attorney-client relationship can arise without express agreement but requires client intention and belief in representation)
- Lydon v. Eagle Food Centers, Inc., 297 Ill. App. 3d 90 (Ill. App. 1998) (agency concepts (actual, implied, apparent) govern authority to engage counsel)
- Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126 (Ill. App. 2001) (authority to speak for a principal; scope of agency relevant to conflicts)
- Klehm v. Estate of Klehm, 363 Ill. App. 3d 373 (Ill. App. 2006) (test for substantial relation in Rule 1.9 analysis)
- In re Marriage of Thornton, 138 Ill. App. 3d 906 (Ill. App. 1985) (screening can prevent imputation of personal conflict to firm)