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05/11/89 William F. Miller, v. Norfolk & Western Railway

May 11, 1989

WILLIAM F. MILLER, PLAINTIFF-APPELLANT

v.

NORFOLK & WESTERN RAILWAY COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (THE VILLAGE OF



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Forrest, Defendant-Appellee)

538 N.E.2d 1293, 183 Ill. App. 3d 261, 131 Ill. Dec. 737 1989.IL.713

Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

This is an interlocutory appeal by plaintiff William F. Miller, pursuant to Supreme Court Rule 308. (107 Ill. 2d R. 308.) The issues certified on appeal are: (1) whether the Village of Forrest (Village), a municipal corporation, may waive any conflicts of interest in this case; and (2) whether counsel for the plaintiff, Kinate & Morgan, are disqualified from representing the plaintiff despite a knowing waiver of any conflict of interest by plaintiff and the Village as third-party defendant. The trial court disqualified plaintiff's counsel because of their prior representation of the Village in a suit against Norfolk which involved issues similar to those presented in this case. Plaintiff contends the trial court erred in disqualifying his counsel where valid waivers were executed by all interested parties pursuant to Rule 5 -- 105(c) of the Illinois Code of Professional Responsibility (the Code) (107 Ill. 2d R. 5 -- 105(c)). We agree and reverse.

Plaintiff William F. Miller filed an action on July 3, 1985, against Norfolk & Western Railway Company (Norfolk) seeking money damages for the damage to his property which resulted from flooding in the Village on March 28, 1985. On August 30, 1985, Norfolk answered plaintiff's complaint and denied liability. On November 15, 1985, Norfolk filed a third-party complaint for contribution against the Village, alleging structures maintained by the Village caused plaintiff's damages. An appearance for the Village was filed on December 18, 1985, by a law firm in Bloomington. Kinate & Morgan have not and do not represent the Village in this proceeding.

Prior to the filing of the instant action, Kinate & Morgan represented the Village in a suit filed in 1984 against Norfolk (1984 suit). The 1984 suit involved the same structure owned by Norfolk and alleged in this action to have caused plaintiff's damages. The trial court found for the Village in the 1984 suit and that order was affirmed on appeal to this court. Village of Forrest v. Norfolk & Western Ry. Co. (1986), 146 Ill. App. 3d 20, 496 N.E.2d 257.

In the instant case, on March 3, 1988, the Village filed a motion to dismiss the third-party complaint. The Village alleged the 1984 suit was res judicata to all issues raised in the third-party complaint. On December 29, 1986, the trial court dismissed Norfolk's complaint with prejudice; that order was reversed on appeal to this court. (Miller v. Norfolk & Western R.R. (1987), 157 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).) This court found that res judicata was no bar to Norfolk's third-party complaint for contribution in the instant action.

At a pretrial hearing on October 1, 1987, the court sua sponte raised the issue of conflict of interest for Kinate & Morgan to represent plaintiff in this case while the firm currently represents the Village as the village attorney. The docket sheet in the record indicates that Norfolk's attorney then stated he would file a motion requesting removal of Kinate & Morgan.

On April 20, 1988, another pretrial hearing was held. The court heard the arguments of counsel and considered a letter addressed to the trial Judge from attorney Gerald Rodeen, independent counsel engaged by the plaintiff to advise the plaintiff on the conflict of interest issue. In his letter, attorney Rodeen reported that after being fully advised of any potential conflicts, plaintiff waived any conflict as did the Village. Counsel for the Village also advised the court that the Village and its insurance carrier waived any conflict of interest.

The court found that the Village could not, on behalf of the public, waive any conflict of interest in the case. The court's order indicates that Kinate & Morgan recognized a potential conflict of interest in the case. The court further found that representation of plaintiff by Kinate & Morgan violated Canons 4, 5, and 9 of the Code. (107 Ill. 2d Canon 4, Canon 5, Canon 9.) This order was later amended to include the necessary language for an interlocutory appeal under Rule 308. 107 Ill. 2d R. 308.

Plaintiff contends that whether or not there is any conflict of interest in this case, he and the Village have waived any conflict and, therefore, the disqualification order should be reversed. While plaintiff does not admit to any actual conflict of interest in the case, plaintiff argues that the waivers operate to negate any conflict which may be present. Plaintiff also states that the ...


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