No. 2--04--0616

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

In this interlocutory appeal, petitioner, Byron Hines, appeals the trial court's order grantingthe motion of respondent, Mary Lou Hines, to disqualify Byron's counsel in this postdissolution-of-marriage proceeding. We reverse and remand.

Although Mary Lou did not file an appellee's brief, we will consider this appeal pursuant tothe principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,131-33 (1976). The facts are taken from the evidentiary hearing and the affidavit of petitioner'scounsel, Gunnar Gitlin.

On appeal, Byron argues that the trial court failed to properly consider the factors enunciatedin Schwartz v. Cortelloni, 177 Ill. 2d 166, 179 (1997), to determine whether an attorney should bedisqualified. Rule 1.9 of the Illinois Rules of Professional Conduct provides that an attorney mustrefrain from representing a person with interests that are materially adverse to the interests of aformer client. 134 Ill. 2d R. 1.9. "Attorney disqualification is a drastic measure because it destroysthe attorney-client relationship by prohibiting a party from representation by counsel of his or herchoosing." Schwartz, 177 Ill. 2d at 178. Therefore, a party seeking disqualification of counsel basedon Rule 1.9 bears the burden of proving the prior attorney-client relationship and "establishing thatthe present and former representations are substantially related." Schwartz, 177 Ill. 2d at 174, 178. In determining whether the two representations are substantially related, the court must consider thefollowing: (1) the scope of the former representation; (2) whether it is reasonable to infer that theconfidential information allegedly given would have been given to a lawyer representing a client inthose matters; and (3) whether the information is relevant to the issues raised in the litigation pendingagainst the former client. See Schwartz, 177 Ill. 2d at 178. The determination whether to disqualifyan attorney rests within the sound discretion of a trial court, and a reviewing court will not disturbthat determination absent an abuse of discretion. Schwartz, 177 Ill. 2d at 176. A trial court abusesits discretion when no reasonable person would have agreed with the position adopted by the trialcourt. Schwartz, 177 Ill. 2d at 176.

Regarding the first two prongs of the Schwartz test, Mary Lou consulted with Joseph Gitlinof Gitlin & Gitlin for one hour in 1994 to discuss her divorce from Byron. Joseph prepared a memoreviewing the consultation. Mary Lou's relationship with Joseph and Gitlin & Gitlin ended there. Thememo indicates that Mary Lou and Joseph discussed whether gifts Mary Lou received from her fatherwould be considered marital assets; the division of marital property; child support; maintenance;whether Mary Lou could move out of state with her children; and Mary Lou's dissatisfaction with hercurrent attorney. Although Gunnar was a partner at Gitlin & Gitlin at the time of Mary Lou'sconsultation with Joseph, Gunnar left Gitlin & Gitlin in 2002 and there is no evidence that Gunnarread the memo, had any knowledge of the issues discussed during the consultation, or was privy toany confidential information. Therefore, the application of the first two prongs of the Schwartz testto the facts at bar do not support Mary Lou's position.

Regarding the third prong, the current litigation involves only the issue of the allocation ofcollege expenses for the parties' oldest child. Mary Lou has failed to present evidence that theinformation she provided Joseph in 1994 is relevant to the current issue. Although Mary Loudiscussed her assets with Joseph, the parties' assets were distributed more than 10 years ago inaccordance with the settlement agreement. Nothing in the record indicates that the information givento Joseph over 10 years ago is relevant to the issue involved in the current litigation. For thesereasons, we conclude that Mary Lou failed to meet her burden of showing a substantial relationshipbetween the matters involved in the two representations for purposes of Rule 1.9. See Schwartz, 177Ill. 2d at 183. Accordingly, the trial court abused its discretion by granting Mary Lou's motion todisqualify Gunnar as Byron's counsel.

The judgment of the circuit court of McHenry County is reversed, and the cause is remandedfor further proceedings

Reversed and remanded for further proceedings.

BOWMAN and BYRNE, JJ., concur.