*1 misconduct, effectively with the failed to deal Had the trial court However, it necessary. ap- might agree I new would times, was, at all firm control pears judge me that objections consistently defense potential infirmities. He sustained occasions, sternly repri- and, on at least two the cited infractions jury. Although preju- presence prosecutor manded rulings, I believe that always a court’s dice cannot be remedied intervention, here, any tacti- more than offset strong the trial court’s through her prosecutor might hoped gain advantage cal have misguided approach. entirety, my opinion

Considering it is proceedings not create prosecutorial misconduct did the cited instances fair materially such as to inhibit defendant’s affirm of the circuit court. trial. would ZIELKE, Assignee Hooper, KAREN Adm’r of Estate of Kristine Plaintiff, Place, Speciale, Tony James and Jim’s Indiv. d/b/a Third-Party al., HOWARD WAGNER et Defendants and Plaintiffs- Appellants (Coopers Lybrand L.L.P., Third-Party al., Defendants and

Defendants-Appellees). SecondDistrict No. 2—96—1248 September Opinion filed COLWELL, J., specially concurring. *2 Johnson, Waukegan, appellants.

Julian of for Sullivan, Epstein, Esrig, P.C., Sean M. of Chicago, Zaideman & for Karen Zielke. Greenberg Schwartz, Hardies, Richard T. and Edward W. both & of Ross Chicago, III, L.L.P., Joseph Coopers Lybrand, and A. Clark & of New

York, York, appellee Coopers Lybrand, New for & L.L.P. Druyan, Mayer, Platt, Steven R. Gilford and Kira E. both of Brown & Chicago, appellee Coopers for & Lines. opinion JUSTICE THOMAS delivered the of the court: The and third-party plaintiffs, Wagner defendants Howard and Agency, (collectively, brokers), Kettner the broker defendants or dismissing from an with third-party against complaint third-party defendants, Coopers Lybrand & (hereinafter Lines, L.L.P. Coopers) Coopers and & Coopers & d/b/a (hereinafter Lines) Lybrand, (collectively, Chartered Accountants defendants). accountant appeal, On the broker defendants contend subjecting the trial court abused its in discretion to a order a plaintiff, entered into between the Zielke, Karen and the accountant defendants. The broker defendants further finding contend that the trial court erred in that their mo- tion special to strike Lines’ and limited moot. was We af- firm.

The record Hooper reveals that Kristine as a died result of a fire destroyed apartment occupied that she as a tenant of James Speciale. Hooper’s apartment a Tony was above known as and tavern Place, Zielke, Jim’s by Speciale. also owned as administrator of the wrongful estate of a Hooper, against Kristine filed Spe- death action ciale in County. Speciale the circuit court of Lake then filed for bank- ruptcy in federal court. In the bankruptcy proceeding, Speciale filed against claim alleging they negligently the broker defendants Financial coverage insurance with Services placed and extended fire (FSIL), Insurance, entity an which became insolvent. Ltd. bankruptcy Speciale in Thereafter, Zielke her claim settled against all of assignment him of his claims and an from took subsequently was transferred Speciale’s bankruptcy claim defendants. motion, County presented court of Lake where Zielke circuit claim, only plaintiff herself to substitute as the assignee of granted leave to Zielke was then file second amended action. defendants, complaint suing alleging breach of contract broker negligence placing coverage and with FSIL and connection with The procuring unreasonably low amounts insurance. broker third-party "Coopers Ly- complaint defendants filed brand, firm,” accounting an international and served summons on Coopers, Chicago plaintiff The both Lines branch. had also sued dismiss, contending Coopers a motion to Coopers. by Lines, accounting question performed a Bermuda firm legal entity independent Coopers. separate is a third-party complaint against filed a first brokers then amended appearance contesting Lines. Lines then filed jurisdiction. the court’s facts

The broker defendants served to admit genuineness of documents both Lines and Lines Coopers. obtained April 15, 1996, respond extension of time to the brokers’ mo- tion. *3 1996, August against

In the plaintiff agreed to claims settle her 19, August 1996, the plaintiff accountant On the defendants. and Coopers joint the pursuant filed motion to Joint Tortfeasor Contri- (West (740 1994)), seeking finding bution ILCS seq. Act 100/0.01 fair, reasonable, faith, good that was the settlement and made in along dismissing prejudice against an with order with all claims the sign agreement accountant defendants. Lines did not settlement the but third-party beneficiary was made a to it. also filed a Coopers mo- tion protective for a order and for leave to file the settlement under alleging seal that the settlement contains sensitive and confidential information, including upon being which the basis the settlement consummated. 1996, 28, August setting

On trial court an entered order directing briefing good-faith finding schedule on the agreement to provide copy movants to of their settlement restricting broker but defendants their dissemination agreement solely in the to and their information their counsel insurer.

Thereafter, good- objections for a the brokers filed the motion dismissal, finding along objections faith to the motion for a protective filed a order. brokers also motion to strike Lines’ special appearance and limited on basis that its in activities special case its appearance. constituted waiver of and limited 9, Following hearing 1996, on October court found fair, reasonable, the settlement and had been good prejudice made in faith. The dismissed with all claims against defendants, including in accountant those raised third-party complaint the broker defendants. The court also against defendants, all barred contribution claims but noted that paid pursuant the amount would be a against any judgment plaintiff might setoff against obtain protective brokers. The trial court further ruled that remain force until further order Finally, court. the court concluded that the brokers’ motion to strike Lines’ given good-faith finding was moot and the order bar- ring contribution claims the accountant defendants. appeal, argue

On the brokers the trial court abused its restricting discretion dissemination of the information agreement. They accountant defendants’ settlement contend that the protective order to an prior amounted unconstitutional restraint upon speech in violation of the first amendment to the United States (U.S. I). Const., They Constitution amend. protec- also claim that the precludes unfairly using them Jury Illinois Pattern Civil, (Illinois Instructions, Nos. B45.03 and 600.14 Jury Pattern (3d Civil, Instructions, B45.03, 1995)), Nos. 600.14 ed. relate percentage comparative negligence. challenged

Where a an uncon restraint,” "prior stitutional the trial court’s decision on the matter will not disturbed on review absent abuse of discretion such arbitrarily the court acted the employment without of conscien ignored recognized tious principles of law so that J.S., substantial resulted.

(1994). questions presented Constitutional to the trial court appeal. be raised for the first time on E.J. v. Greg McKernan Co. ory, case, any argument

In the instant the brokers failed to make before the trial court order violated their first rights. Thus, they any op amendment afford the trial portunity employ its discretion. we find that the bro *4 argument. Furthermore, ker reject defendants waived the we would argument the brokers’ on if had they the merits even not waived it. they The prejudice brokers are unable to articulate The on imposition protective order. law by have suffered they by The cases inapplicable. is prior restraints cited the brokers of infor restricting dissemination rely upon protective involve orders in the case. In of the claims at issue relating to the substance mation case, contrast, in the which has present the settlement seal, nothing that would provided this court contains been at trial. provide any support for the broker defendants’ defense regard, the accountants note that the brokers’ defense is that we by any damages plaintiff because the responsible are suffered statements, FSIL’s financial properly accountants audit thereby misleading the as to FSIL’s financial condition and brokers However, leading Speciale’s coverage place with FSIL. them liabilities respect makes no to the admissions conducting parties in relation accountants’ actions various only possible the FSIL item of interest is the amount of audit. settlement, by but no will be suffered the brokers since against any judgment they will be entitled to setoff in that amount plaintiff, obtained it is axiomatic that the settlement question would not be admissible at trial on of the accountant liability comparative Hospital, or fault. Barkei v. Delnor defendants’ reject protective We claim that ef also brokers’ fectively raising precludes jury them from certain instructions. The correctly prevents broker defendants note that them from mentioning mentioning the amount of settlement or even fact of These matters that not be settlement. are would admissible Barkei, trial regardless of the order. See Moreover, precluded we note that the brokers are not mentioning any negligent conduct on of the accountants the case. simply explain protec The brokers have failed to how preclude utilizing any jury instructions. would them from Additionally, argument we note that there premature since has even been trial in the matter where the brokers have actu ally attempted to utilize the instructions.

Since we find that the trial court did not its discretion abuse imposing order and the broker defendants have attacking any argument raised the trial court’s dismissal accountants, is- third-party claims we find sue of whether Lines waived its

moot. *5 reasons, foregoing judgment

For the of the circuit court of County Lake is affirmed.

Affirmed.

RATHJE, J., concurs. COLWELL, specially concurring:

JUSTICE I majority concur in that the broker argument concerning defendants waived their they bring Further, because it agree to before the trial court. I majority’s with the decision that the trial court its did abuse restricting discretion in disseminating broker defendants from agreement. however, writing, the information in the In point out granted that had the trial court accountant defendants’ seal, to file the right at- access would have agreement. tached to the Supreme

The United recognized general States Court has a right documents, common-law public of access to records includ- ing judicial Communications, Inc., records. v. Nixon Warner 435 U.S. (1978). 589, 597, 570, 579, 1306, right 55 L. Ed. 2d S. 98 Ct. 1312 This creates a presumption that court files open public should be to the inspection copying. Corbitt, 224, United States v. 879 F.2d 228 1989). (7th Cir. court, however, records,

A power has the inherent to control its public and the inspect Marriage records not absolute. In (1992). Johnson, 1068, Nevertheless, 232 Ill. App. although 3d 1072 records, a judicial court restrict access to a court does have power the inherent impound any to control its files and part file in a particular Finley, Deere Co. v. App. case. & 103 Ill. 3d (1981). Instead, determining 776 when whether to restrict access records, judicial a court must parties’ balance the reasons for restric tion with supporting Johnson, those App. interests access. 232 Ill. 3d access,

To overcome the presumption party seeking re strict access of bears establishing compelling records the burden of why interest access should be restricted and that the " ” public’s is drafted 'in the manner least restrictive of the interest.’ Johnson, 1072-73, App. quoting Publishing 3d at Shenandoah House, 253, 259, 235 Fanning, Va. 368 S.E.2d 256 Johnson, parties regard- entered settlement ing a personal injury they A getting case while were divorced. condi- tion of the settlement its terms remain confidential. Accord- court, were to the although the of the settlement recited ingly, terms part of the record. document did not become actual settlement Johnson, App. Ill. 3d at 1069. later, parties presented

A few months from the regarding proceeds of the settlement distribution all included term that docu personal injury The settlement case. parties requested in the entire file be sealed. The ments Johnson, file, entered the order. impound the court to order, requested ac newspaper its After the trial court entered argu by the court’s After impounded all the materials order. access, cess to ments, grant newspaper explaining the court declined to ” " impoundment 'was essential the settlement.’ Johnson, newspaper appealed Ill. at 1070. The the trial court’s decision. impoundment the trial court’s orders.

The Johnson court reversed *6 right of attaches documents The court stated that the access Accordingly, agree- written with the since the court. record, concerning part the of the court the ment dissolution became right access attached to that document. of

Then, explained personal injury settle the Johnson court that Therefore, right of ment never was attached to record. access settlement, although personal injury did not extend written transcript hearing of at its terms recited were right, subject transcript had been made because Johnson, App. at record. 232 Ill. 3d 1074.

Similarly, agreement in this case the settlement has been right of has not the trial access at filed with court. If, filed, agreement. however, tached to the the settlement had been reason, by specific only compelling factual find accompanied Johnson, ings, See 232 justify keeping public it from view. Ill. could App. 3d belief, agreement that

Contrary to their "desire and parties’ outweighing far records were to be sealed falls short court 1075; Johnson, at public’s right App. files.” 232 Ill. 3d of access to the Services, Hicks, see v. Fidelity also Financial (1994) (mere compelling secrecy cannot suffice as desire interest).

Moreover, parties’ explanation the material contained compelling interest not a "confidential” is Instead, judicial files. presumption access to could overcome the presumption such a only possibly could overcome documents damaging seriously or are are privileged potentially those that Johnson, embarrassing. (Steigmann, J., Cf. specially concurring). complete It is this writer’s belief that type access to infor- sought encourages protected mation in this case confidence in system. the Nondisclosure creates a perception favored status party—or parties—seeking before the order. To al- parties low to seal documents solely based the documents are "confidential” judicial system undermines our directly contrary to the common-law of access to public re- Therefore, cords. it is view my protec- that trial courts should view a extremely issue, encourage as serious write grant protective only court to compelling orders the most circumstances. (Martha VOGEL, Poziombka, ESTATE OF IRENE C. Deceased

Independent Vogel, Petitioner-Appellant, Adm’r the Estate of Arthur G. Winkle, M. Vogel, Robert Indiv. and Ex’r of the Estate of Irene C.

al., Respondents-Appellees). Second District No. 2—96—1285 September Opinion filed