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03/16/89 Ronald L. Herbes Et Al., v. F.T. "Mike" Graham Et Al.

March 16, 1989





536 N.E.2d 164, 180 Ill. App. 3d 692, 129 Ill. Dec. 480 1989.IL.331

Appeal from the Circuit Court of Lake County; the Hon. Stephen E. Walter, Judge, presiding.


JUSTICE McLAREN delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.


Plaintiffs, Ronald and Suzanne Herbes, appeal from trial court orders which disqualified their attorney and dismissed their suit against defendants, Libertyville Township and the township supervisor. Plaintiffs contend that the trial court (1) erred in regard to their attorney since the requirements for attorney disqualification were not met, and (2) incorrectly held that the Township Open Space Act (Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.) is constitutional.

In November 1985 voters in Libertyville Township passed referenda authorizing creation of an open-space district and approving the sale of bonds for the purpose of acquiring open land, including acquisition through condemnation or under threat of condemnation, pursuant to the Act. Shortly after the referenda were passed, township officials interviewed attorney Donald Morrison to determine if he would be suitable to represent the township in land acquisition and condemnation proceedings pursuant to its open-space program. After a 1 1/2-hour Discussion, Morrison declined to represent the township and left the interview. Approximately one year later, in October 1986, plaintiffs brought this suit for injunctive relief to restrain township officials from exercising powers and disbursing public funds to execute the open-space program on the ground that the Act is unconstitutional. While plaintiffs assertedly sued in their capacity as taxpayers, the complaint reveals that plaintiffs' property had been designated as subject to acquisition as part of the township open-space program. Plaintiffs were represented by Morrison.

Pursuant to a motion by the township, Morrison was disqualified. That matter was the subject of a petition for leave to appeal to both this court and the Illinois Supreme Court, but the petitions were denied in both instances. The suit for injunctive relief continued in the trial court, but plaintiffs' attacks on the constitutionality of the Act were rejected and the matter was dismissed. Plaintiffs appeal from both the disqualification of Morrison and the dismissal of their suit.

The motion to disqualify alleged that Morrison's representation of plaintiffs violated Canons 4 and 9 of the Illinois Code of Professional Responsibility (107 Ill. 2d Rules 4 -- 101 et seq., 9 -- 101 et seq.) in that the township had disclosed confidential information regarding its open-space program to Morrison, and plaintiffs were challenging that same program. According to Canon 4: "A lawyer should preserve the confidences and secrets of a client." Canon 9 further cautions: "A lawyer should avoid even the appearance of professional impropriety." The parties do not dispute that the Canons apply only if there was an attorney-client relationship between Morrison and the township.

Plaintiffs claim that there was no attorney-client relationship because the consent of both the attorney and the lay party is necessary to such a relationship, and Morrison denied that he consented. They point out that no fee agreement was ever reached, no legal advice was given, and no investigation or legal services were performed by Morrison. While plaintiffs acknowledge that an attorney-client relationship may occur during an initial interview, they maintain that such a relationship does not come into being unless confidential information has been disclosed to the lawyer by the client and that disqualification is necessary only to protect such information from further disclosure by the attorney. Plaintiffs assert that the trial court failed to require a showing that confidences had actually passed between the township and Morrison. Although the township produced affidavits asserting that it revealed confidential facts to Morrison, plaintiffs contend that Morrison could not have been made privy to such information since the acquisition program was still essentially in a conceptual stage and there was no confidential information available at the time he was interviewed.

The township responds that the attorney-client relationship can be found without the factors mentioned by plaintiffs and argues that the actual passage of confidences need not be shown. King v. King (1977), 52 Ill. App. 3d 749, 367 N.E.2d 1358, the only Illinois case found to be on point, supports the township's position. In King, which involved a wife's suit for separate maintenance, the reversal of an award of fees to plaintiff's attorney turned on a finding by the court that an attorney-client relationship had previously existed between the attorney and the defendant-husband and had been concerned with the husband's marital problems. The relationship was found even though the defendant had spoken with the attorney for only half an hour approximately two years earlier and had not retained him or paid him any fees. Defendant gave uncontested testimony that he had gone to the attorney's office to get professional advice about his marital difficulties and that he had revealed information regarding his financial situation and his future plans and actions to the attorney. The court remarked that the matter addressed to the attorney by the husband concerned the same problem which prompted the wife's separate maintenance suit.

Based on these facts the court found that an attorney-client relationship had arisen between defendant and the attorney to the extent that communication between them would be privileged. In support the court cited the following:

"'At the inception of the contacts between the layman and the lawyer it is essential that the layman feel free of danger in stating the facts of the case to the lawyer whom he consults. Even though the lawyer rejects the case and the relation of attorney and client never arose, the usual duties as to privileged communications and conflicting interests should apply.'" (King, 52 Ill. App. 3d at 752, quoting L. Patterson & E. Cheatham, The Profession of Law 246 (1971).)

The court added that if the wife had retained another attorney to represent her in her lawsuit, she would not have been able to call her present attorney as a witness regarding the interview with her spouse because of the attorney-client privilege. The court summarized as follows: "The rule applies even though the attorney acquired no knowledge which could operate to the client's disadvantage. The motives or intentions of the attorney are unimportant. [Citation.] It makes no difference that the client offered no compensation and the attorney neither made nor expected to make any charge for his services." (King, 52 Ill. App. 3d at 753.) It is clear from the opinion that the court believed the rule which prohibits an attorney from representing ...

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