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11/24/87 No. 87-0928 v. . Street

November 24, 1987

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION INDEX FUTURES GROUP, INC., PLAINTIFF-APPELLEE

v.

VICTOR H. STREET, DEFENDANT-APPELLANT



516 N.E.2d 890, 163 Ill. App. 3d 654, 114 Ill. Dec. 735 1987.IL.1738

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

The trial court entered an order disqualifying defendant's counsel from representing him in this case. Defendant challenges the propriety of the disqualification order.

On January 30, 1986, Index Futures Group, Inc. (Index), a futures commission merchant, filed the complaint in this action against Victor H. Street for alleged deficits in Street's commodity futures trading account. Index was represented by the law firm of Fishman, Merrick & Perlman, P.C., now Fishman & Merrick, P.C. (Fishman & Merrick).

Prior to May 1, 1986, two Fishman & Merrick partners, Charles Perlman and Ray Rezner, left that firm and joined Barack, Ferrazzano & Kirschbaum, now Barack, Ferrazzano, Kirschbaum & Perlman . Neither Perlman nor Rezner had ever done work for Index while at Fishman & Merrick, nor had they had anything to do with this lawsuit. It is uncontested that Perlman and Rezner had no actual knowledge of the Index matter at any time.

In May 1986, Peter Barack, a partner at BFK&P, was contacted by H. A. Street, defendant's brother, who asked BFK&P to represent defendant in the Index litigation. When Barack learned that Fishman & Merrick represented the plaintiff, he immediately disclosed that Rezner and Perlman had recently joined BFK&P from that firm. Since neither had been involved in any way with Index or its lawsuit, BFK&P was retained and subsequently filed an answer and counterclaim on Street's behalf.

On August 28, 1986, plaintiff filed a motion to disqualify BFK&P as counsel for Street. The basis of the motion was that Perlman and Rezner were formerly members of the Fishman & Merrick firm. Plaintiff cited the requirement of Canon 4 of the Code of Professional Responsibility that "a lawyer should preserve the confidences and secrets of a client," but provided no evidence that any of plaintiff's confidences and secrets had been known by Perlman and Rezner. (107 Ill. 2d R. 4 -- 101.) Plaintiff urged the court to apply an irrebuttable presumption that confidences were shared and disqualify defendant's counsel under the appearance-of-impropriety language of Canon 9 of the Code of Professional Responsibility. 107 Ill. 2d R. 9 -- 101 et seq.

Defendant responded that the presumption that Perlman and Rezner shared the confidences of the plaintiff with other members of their former law firm is rebuttable. To rebut the presumption, defendant attached the affidavits of Rezner and Perlman, stating unequivocally that they were never involved in Fishman and Merrick's representation of Index in this or any other matter. Defendant also filed the affidavit of Barack attesting to the wholly coincidental retention of BFK&P as his counsel.

Counsel for Index conceded before the trial court and before this court that Perlman and Rezner had no knowledge of the Index matter while at Fishman & Merrick. The trial court found that "plaintiff readily admits that these attorneys had no knowledge" of the Index matter. It refused to consider the affidavits presented by defendant.

Relying principally on the Seventh Circuit cases of Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978), 580 F.2d 1311, cert. denied (1978), 439 U.S. 955, 58 L. Ed. 2d 346, 99 S. Ct. 353, and Schloetter v. Railoc of Indiana, Inc. (7th Cir. 1976), 546 F.2d 706, the court ruled that it could "not inquire into the fact of disclosure or nondisclosure of client confidences and secrets" on a disqualification motion of this kind. The only question permitted was whether a "substantial relationship" existed between the matter handled by the lawyers' old firm and the matter handled by the new firm. Finding that the subject matter in this case was not only substantially related but, in fact, identical, the court ordered BFK&P to withdraw its appearance within seven days and granted Street 28 days to obtain new counsel or file his pro se appearance.

Defendant's motions to reconsider and to certify the question for appeal under Supreme Court Rule 308 were denied. (87 Ill. 2d R. 308.) However, the trial court suggested that counsel for defendant refuse to withdraw, be held in contempt of court, and thereby create a basis for appeal. The suggestion was adopted and this appeal followed. I

Plaintiff contends that it is not proper for this court to consider whether or not the trial court properly disqualified defendant's counsel because the trial court refused to certify that question under Supreme Court Rule 308. The trial court's ruling denying the application of Rule 308 was correct because an immediate appeal from the disqualification order would not "materially advance the ultimate ...


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