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In Re Marriage of Alicia Stephenson

August 12, 2011


Appeal from the Circuit Court of McHenry County. No. 09-DV-851 HonorableGerald M. Zopp, Jr.,Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Bowman and Schostok concurred in the judgment and opinion.

¶ 1 In this interlocutory appeal, petitioner and counterrespondent, Alicia Stephenson, argues that the trial court erred by granting the motion to disqualify her attorney, Mark Gummerson, filed by her husband, respondent and counterpetitioner, Richard Stephenson. Alicia argues that the trial court misinterpreted and misapplied Rules 1.7, 1.9 and 1.10 of the Illinois Rules of Professional Conduct (Ill. S. Ct. Rs. Prof. Conduct Rs. 1.7, 1.9, 1.10 (eff. Jan. 1, 2010)). We reverse and remand.


¶ 3 In September 2009 Alicia filed a petition for dissolution of her marriage to Richard. Alicia's petition was signed by attorney Elizabeth Felt Wakeman of Zukowski, Rogers, Flood & McArdle.

Richard filed a counterpetition for dissolution of marriage in December 2009. In September 2010 Richard retained attorney Paulette Gray. Paulette was married to attorney Robert Gray, a partner in Gummerson's law firm, Gummerson Rausch Wand Gray and Wombacher, LLC. On October 26, 2010, Gummerson filed an appearance as additional counsel on behalf of Alicia. Richard objected to Gummerson's appearance and filed a motion to disqualify Gummerson on October 28, 2010.

¶ 4 Richard's motion alleged that Gummerson's representation of Alicia violated Rules 1.7, 1.9, and 1.10. More specifically, Richard alleged the following. Paulette and Robert "had ongoing substantive and strategy discussions" about issues concerning the parties' dissolution case. Paulette and Robert discussed the parties' assets, their prenuptial agreement, child support, privileged information regarding Richard's wealth and financial holdings, and Alicia's pending petition for interim attorney fees. Due to these conversations, Robert would be prohibited from representing Alicia due to a concurrent conflict of interest pursuant to Rule 1.7 or 1.9, because Robert had a duty to Richard as his former client. Because Robert could not represent Alicia, none of the lawyers in Robert's firm, including Gummerson, could represent her, pursuant to Rule 1.10. Further, Richard did not and would not consent to a waiver under Rules 1.7, 1.9, or 1.10.

¶ 5 In addition, Richard's motion alleged that, before Gummerson filed his appearance on Alicia's behalf, "Paulette had a substantive discussion with" Gummerson "regarding strategy in this case." The discussion was about a motion Richard filed against Wakeman, one of Alicia's attorneys. Because of this discussion, Gummerson had a duty to Richard "akin" to that owed to a former client.

¶ 6 At the hearing on the motion to disqualify, Paulette testified that on September 29, 2010, she had a conversation with Robert about the interim fee petition filed by Wakeman, and the contents of the documents attached to the petition. They also discussed the strategy to be used in responding to the petition. Paulette gave Robert information about the circumstances surrounding the parties' signatures on their prenuptial agreement. They discussed whether Alicia would be able to contest the validity of the prenuptial agreement. Paulette and Robert also discussed "any house" Richard "may have to purchase for Alicia," and "potential maintenance" based on Richard's income "relative to the time frames contained" in the prenuptial agreement.

¶ 7 Paulette also testified that, on September 30, 2010, she told Robert, "Put your thinking cap on. Put your lawyer hat on. I don't want you to be my husband right now." Paulette and Robert then discussed strategy regarding Alicia's petitions for interim attorney fees previously filed by Wakeman's firm; they specifically discussed how Richard could use those petitions to his benefit and how he should respond to the most recently filed petition. Paulette and Robert discussed whether Paulette should file a motion for sanctions against Wakeman's firm, because Paulette's name would be on the motion and she did not want to burn a "bridge with Mr. Flood," Wakeman's partner. Paulette told Robert that she was thinking about asking Gummerson for his advice about the matter.

¶ 8 During cross-examination, Alicia's counsel asked Paulette, "When did [Richard] authorize you to engage [Robert]?" The trial court sustained Richard's counsel's objection based on attorney-client privilege. The following colloquy occurred:

"Q. Is it your position that [Richard] is [Robert's] client?

A. Yes.

Q. And did [Richard] pay [Robert] a retainer, if you know?

A. I don't know.

Q. Did he sign a retainer agreement with [Robert]?

A. I don't know."

¶ 9 Paulette also testified that between September 29 and October 5, 2010, Paulette had a five-minute conversation with Gummerson in the hallway of the McHenry County courthouse. Paulette identified the issue as the "Stephenson matter" and told Gummerson that she represented the husband. Paulette told Gummerson that Wakeman had filed a petition for interim fees. Attached to the petition was Richard's personal financial statement, including "an itemization of accounts, account numbers, account balances, what jewels [Richard and Alicia] had, what furs they have, what [Richard's] financial situation is." Paulette never showed Gummerson any documents. Paulette asked for Gummerson's advice about whether she should sign and file a motion for sanctions against Wakeman and asked, "would there be a potential problem for me signing it in terms of me practicing in this county?" Paulette told Gummerson that she was concerned about "pissing off" Flood. Gummerson replied that there would not be a problem. Paulette testified that she did not, at any time, tell Gummerson that she consulted with Robert about the issues. Paulette testified that she never hired Gummerson and did not talk to Gummerson about the case again.

¶ 10 Gummerson testified that the courthouse conversation with Paulette occurred sometime in early October. The meeting lasted only two to three minutes and other people were present; there was no privacy. Gummerson's testimony regarding the conversation differed from Paulette's in that Gummerson testified that she did not mention the parties' names but mentioned that the case involved the Cancer Treatment Centers of America and a substantial amount of money and that she represented the husband. The remainder of Gummerson's testimony regarding the content of the conversation was essentially the same as Paulette's testimony.

¶ 11 Gummerson testified that 5 to 7 days, or up to 10 days, after he spoke with Paulette at the courthouse, Flood asked Gummerson if he would be interested in representing Alicia. At that time, Gummerson knew that Paulette was involved in the case, based on their conversation at the courthouse. Subsequently, Gummerson spoke to Robert about the case. Gummerson told Robert that he "needed to make sure that we established a 'Chinese wall.' " Gummerson told Robert that he "did not want [Robert] to be participating, to have any involvement whatsoever. Have no discussions. That he would be kept out completely of the file." Robert agreed. In addition, on the day Gummerson filed his appearance on behalf of Alicia, but before he filed it, he told Robert that he was going to do so and "reiterated [that Robert] needed to stay away from the case, stay out of it." Gummerson testified that he had no other conversations with Robert about the case. Gummerson testified that Alicia signed a retainer agreement on October 25, 2010.

¶ 12 Gummerson testified that his firm had a client intake process whereby, when anyone met with a potential client, a file was opened and a conflicts check was performed to determine if representation would pose a conflict of interest. Gummerson reviewed every new file on a weekly basis. Due to this procedure, Gummerson would know if Robert had accepted Richard as a client. Gummerson testified that Richard was not, and had never been, a client of his firm and had never signed a retainer agreement with his firm or paid Gummerson any money.

¶ 13 Gummerson testified that, in his effort to maintain the "Chinese wall" after he was retained by Alicia, he sent out a memo to his staff, partners, and associates and advised them that he could not "use" Robert because he had established a "Chinese wall" regarding him. Gummerson made sure that they understood the concept of the "Chinese wall": that Robert could not be involved in the case and that they could not have any discussions with Robert about the case. Gummerson also sent a memo to Robert to reiterate and reinforce the "Chinese wall." Further, the Stephenson file was segregated in Gummerson's office and was not placed into the firm's general filing system. Gummerson instructed his paralegal and secretary that no one was to have access to the Stephenson file other than attorneys Wombacher and Lee, who were working with Gummerson, and that the file must always be returned to Gummerson's office. Gummerson made sure that Wombacher and Lee understood the concept of the "Chinese wall." Gummerson also spoke with them to make sure that no one discussed the case in Robert's presence.

¶ 14 Robert testified that he and Paulette discussed the Stephenson case daily. They discussed Alicia's financial affidavit, the manner in which Richard would attack it, the parties' prenuptial agreement, and strategy regarding the preparation of Richard's financial affidavit. Robert never saw the prenuptial agreement or the financial affidavits of either party. He never met Richard, spoke to him, or asked him to sign a retainer agreement. Richard never gave Robert money. Robert did not enter Richard on his firm's "client's conflicts database." Robert testified that he could not represent Alicia because of "the obvious conflict of-that I believe exists having a case against your wife, the spouse" and because he had been told "things that in my good conscience I feel would affect my representation [of Alicia]." Robert testified that he never discussed the case with Gummerson.

¶ 15 After hearing arguments, the trial court made the following findings. Richard did not retain Robert or Gummerson. During the conversations between Paulette and Robert "it would appear that confidential information was at least passed from [Paulette] to [Robert]." Gummerson's screening process was "too late" because it began after Gummerson spoke with Paulette and after Paulette and Robert had talked about the case. Further, the trial court stated, "This case is tainted right now." The trial court granted the motion to disqualify Gummerson.

ΒΆ 16 Alicia timely ...

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