NO. 4-05-0386

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In this case, we consider whether the trial court erredby finding plaintiffs, James and Susan Helm, and their attorney,James Walker, in indirect civil contempt of court. Because weconclude that the court erred by so doing, we reverse.

I. BACKGROUND

In October 2000, the Helms filed a lawsuit againstdefendants Jason P. Thomas, Joseph P. Gaston, Robert A. Nickel,and St. Paul Guardian Insurance Company, for damages arising outof three separate car accidents involving James. Walker servedas the Helms' legal counsel in the lawsuit. Thomas was represented by Scott Spooner, an attorney with the law firm of Heyl,Royster, Voelker & Allen.

In March 2004, after a jury was impaneled and sworn,but before trial began, Walker and James faxed a letter toattorney Rick Velde, who worked at the firm of Heyl, Royster,Voelker & Allen. The letter stated, in pertinent part, asfollows:

"In February 1999, I asked you for, andyou provided to me, legal advice regardinguninsured motorist claims which I had (andstill have) against St. Paul Insurance Company. Among the legal services you providedwas your review, and suggestions for therevision, of the draft of a letter which Ibrought with me when I met with you at youroffice on the afternoon of February 11, 1999. I incorporated your suggestions into thefinal draft of the letter which I mailed toSt. Paul's employee, Clara Suttles, on February 12, 1999.

Today your firm, Heyl, Royster, Voelker& Allen, asked Judge Leslie Graves to receiveinto evidence a redacted version of the February 12, 1999, letter and requested thatJudge Graves bar me from testifying to thecircumstances of its creation, including thelegal advice you gave me concerning thismatter.

I am hereby requesting that you and yourfirm, Heyl, Royster, Voelker & Allen, ceaseand desist from (a) any and all action thatis adverse to me regarding the matters uponwhich you provided legal advice on February11, 1999, and (b) any effort to keep the jurytrying the case of Helm v. Gaston, SangamonCounty No. 00[-]L[-]316, from receiving allthe facts regarding St. Paul's request that Iprepare such a letter and your advice that Ihonor St. Paul's request and your advice asto what should be included in the letter."

At a hearing the following day, Spooner presented the March 2004letter to the trial court and informed the court that he wouldhave to withdraw as Thomas's counsel. The court acceptedSpooner's withdrawal and declared a mistrial.

In April 2004, Thomas filed a motion for a finding ofcontempt against Walker and the Helms, alleging, in pertinentpart, that James and Walker violated Supreme Court Rule 213(Official Reports Advance Sheet No. 8 (April 17, 2002), Rs.213(f), (i), eff. July 1, 2002) by failing to earlier disclosethe alleged conflict of interest. In his motion, Thomas (1)identified opportunities that arose during the discovery process,in which the Helms could have revealed James's prior attorney-client relationship with Velde; and (2) alleged that Walker"deliberately" caused a mistrial. For relief, Thomas sought anorder (1) finding Walker and the Helms in contempt of court, and(2) requiring Walker and the Helms to reimburse Thomas and hisinsurer for all of the attorney fees incurred between the datethat Heyl, Royster, Voelker & Allen entered an appearance in thecase and the date the alleged conflict was revealed.

Following an October 2004 hearing on the motion for afinding of contempt, the trial court took the matter underadvisement. In February 2005, the court entered a written orderdismissing Thomas's motion for a finding of contempt, upondetermining that his motion was not properly pleaded in the formof a petition for rule to show cause. The court gave Thomas 30days to refile.

In March 2005, Thomas filed a petition for rule to showcause why Walker and the Helms should not be held in indirectcivil contempt of court. The petition essentially realleged theclaims set forth in Thomas's April 2004 motion.

Following an April 2005 hearing on Thomas's petition,the trial court entered a written order finding Walker and theHelms in indirect civil contempt for failing to disclose duringdiscovery the attorney-client relationship between James andVelde. As sanctions, the court ordered Walker and the Helms to(1) reimburse Sangamon County for costs incurred in summoning theindividuals who were examined for jury service in March 2004 and(2) reimburse Thomas and his insurer for "all future attorneysfees and expenses incurred by attorney Brian Thielan," who wasThomas's new counsel.

This appeal followed.

II. THE TRIAL COURT'S FINDING OF INDIRECT CIVIL CONTEMPT

Walker and the Helms first argue that the trial courterred by finding them in indirect civil contempt. Specifically,they contend that the court's judgment was more in the nature ofan adjudication of criminal contempt. We agree.

Initially, we note that neither party cited (eitherbelow or on appeal) this court's seminal decision in In reMarriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (1990),which sets forth in explicit detail, (1) the difference betweencivil and criminal contempt, (2) the difference between directand indirect contempt, and (3) the procedural rights that applyto those charged with any form of contempt. Since its publication, Betts has been cited in (1) 2 Supreme Court of Illinoisopinions, (2) 17 Fourth District Appellate Court opinions, (3) 27Illinois appellate court opinions from other than the FourthDistrict, (4) 30 secondary sources, and (5) more than 80 appellate briefs.

Thomas contends that the trial court properly entered ajudgment of civil contempt because the sanctions the courtimposed were remedial in that their only purpose was to reimbursethe county and Thomas for "fees and expenses they incurred as aresult of the mistrial provided by [c]ontemnors." However,whether a sanction imposed is "remedial" is not what distinguishes civil and criminal contempt sanctions. Rather, "thepenalties in a civil contempt case serve only to coerce thecontemnor to comply with a court order, and they must cease whenthe contemnor complies." In re Marriage of Carpel, 232 Ill. App.3d 806, 823, 597 N.E.2d 847, 859 (1992). In Carpel, we addresseda similar question, and wrote as follows:

"In the present case, despite Ronald's'concession' that the trial court found Susanin civil contempt, the court clearly imposeda criminal contempt penalty. First, thesanction was punitive and not coercive. Indeed, Ronald's petition did not seek anysanctions to coerce Susan to perform somefuture act, but rather looked purely retrospectively at her prior conduct and requestedthe court to punish her for it. Second, thecourt did not condition the penalty on anything she might do in the future ***, butrather imposed the fine for what she hadalready done." (Emphases in original.) Carpel, 232 Ill. App. 3d at 823, 597 N.E.2dat 859-60.

See also People v. Lindsey, 199 Ill. 2d 460, 468, 771 N.E.2d 399, 406-07 (2002) ("Criminal contempt sanctions are retrospective innature and punish the contemnor for past acts which he cannotundo"); Pancotto v. Mayes, 304 Ill. App. 3d 108, 111, 709 N.E.2d287, 289 (1999) ("Civil contempt proceedings have two fundamentalattributes: (1) the contemnor must be capable of taking theaction sought to be coerced, and (2) no further contempt sanctions are imposed upon the contemnor's compliance with thepertinent court order").

In this case, indisputably, the trial court did notimpose sanctions to compel a future act, but to punish Walker andthe Helms for prior conduct that they could not undo. (Although,oddly, the court ordered Walker and the Helms to pay Thomas'sfuture attorney fees, that prospective sanction lacked anycoercive element and constituted instead a penalty for a prioract.) We thus conclude that the trial court erred by entering acriminal contempt judgment against Walker and the Helms withoutproviding them with the necessary criminal procedural rightsattendant to a charge of indirect criminal contempt. See Betts,200 Ill. App. 3d at 58-60, 558 N.E.2d at 425-26; In re Marriageof Alltop, 203 Ill. App. 3d 606, 614-15, 561 N.E.2d 394, 399-400(1990) (setting forth the procedural rights of persons chargedwith indirect criminal contempt).

Finally, we note that the situation that arose in theprogress of this case should serve as a warning to the bar ofthis state. Every attorney admitted to practice has socialfriends and acquaintances who presume out of friendship to askfor informal advice of a legal nature. Acquiescence to suchrequests can have embarrassing, if not disastrous, consequencesunless such informal discussions are treated with the samemeticulous care attorneys employ in formal attorney-clientrelationships.

III. CONCLUSION

For the reasons stated, we reverse the trial court'sjudgment.

Reversed.

APPLETON and COOK, JJ., concur.