Beware of Confidential Conversations and Overlapping Representation

In re Marriage of Alicia Stephenson, 2011 IL. App. (2d) 101214, involves issues that frequently arise in closely knit geographical, or boutique, areas of practice.  In this case, questions of confidential conversations and overlapping representation among practitioners in McHenry County, Illinois, resulted in a motion to disqualify a lawyer.

Represented by Elizabeth Wakeman, Alicia Stephenson filed for dissolution of her marriage to Richard, represented by Paulette Gray.  Paulette’s husband, Robert Gray, was a partner in Gummerson, Rausch, Wand, Gray, and Wombacher, LLC.  Paulette frequently conferred with her husband about issues regarding the Stephenson proceeding.  In addition, one brief conversation took place between Paulette Gray and Mark Gummerson, her husband’s partner, about whether Paulette Gray would experience any professional backlash if she filed a motion for attorney’s fees against Elizabeth Wakeman.

A few weeks after this conversation, Mark Gummerson became additional counsel for Alicia Stephenson.  Paulette Gray filed a motion to disqualify Mark Gummerson based on the fact that she, Paulette Gray, had conversations regarding the case with her husband, Robert Gray, and with Mark Gummerson.  The motion was based on Rules 1.7, 1.9, and 1.10 of the Illinois Rules of Professional Conduct.  The trial court granted the motion to disqualify Gummerson.   The Appellate Court reversed. 

Rule 1.7 provides in pertinent part “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.  A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client.”

Richard Stephenson argued that Paulette Gray had retained Mark Gummerson as his attorney on the basis of her conversations with her husband and Gummerson, and therefore Mark Gummerson was barred from representing Alicia Stephenson.

The Appellate Court examined the definition of client, “A client must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance.” ¶30.  “The authority from a client can be either actual or apparent.” ¶35. Richard presented no evidence that he had given any authority to Mark Gummerson or that he had given his attorney, Paulette Gray, any authority to retain Mark Gummerson. Further, the court noted that because Mark Gummerson had never met with, or talked to, Richard Stephenson, Gummerson had not given any indication of accepting an attorney-client relationship.

The Appellate Court affirmed the trial court’s finding that Rule 1.7 did not apply because no attorney-client relationship existed.  Therefore Mark Gummerson could not be disqualified under this rule. 

Rule 1.9 provides in pertinent part, “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.”

Richard Stephenson argued that as a former client of Mark Gummerson, Gummerson could not represent Alicia due to the adverse interests of the Stephensons.

To disqualify an attorney representing an adverse party, Rule 1.9 requires first that the moving party establish that there was “a former attorney-client relationship; and [second,] that the former and subsequent relationships are substantially related.” ¶51.

Richard Stephenson failed to establish that he had ever been a client of Mark Gummerson under Rule 1.7 because the conversation between Paulette Gray and Mark Gummerson did not create an attorney-client relationship between Gummerson and Richard Stephenson.  Paulette Gray had merely asked Mark Gummerson for his opinion on whether filing a motion for sanctions against Elizabeth Wakeman would have an adverse effect on her reputation as a lawyer in McHenry County.  The Appellate Court found that because the first prong of Rule 1.9 had not been met, there was no need to address the “substantially related” second prong of the conjunctive requirement of Rule 1.9.

Thus the Appellate Court reversed the trial court order that Rule 1.9 had been violated.

Rule 1.10 provides in pertinent part, “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.”

Richard Stephenson argued that an attorney-client relationship had existed between Robert Gray, Paulette Gray’s husband, and himself, and that this relationship was imputed to the entire Gummerson firm.  Therefore no one in the firm, including Mark Gummerson, could represent Alicia Stephenson.

However, before Gummerson accepted the position as Alicia Stephenson’s counsel, he had effected a “screen” around Robert Gray.  A “screen” provides an exception to the disqualification of an entire firm based on one attorney’s personal knowledge of a case.  A screen is created when a wall is set up around an attorney to ensure that that attorney neither receives nor gives any information regarding the matter at issue.  The trial court had found that Mark Gummerson created the screen “too late” ¶15 and therefore had disqualified the entire firm under Rule 1.10.

The Appellate Court reversed on two grounds.  First, the court heldthat Gummerson had set up a “timely and sufficient” ¶44 screen around Robert Gray, because Gummerson, orally and in a follow-up memo, had informed everyone at the Gummerson firm, including Robert Gray, that a screen was in effect, and no one was to discuss the case with Robert.  Additionally, Mark Gummerson kept Alicia Stephenson’s case file in his own office at all times.  Second, the court held that these precautions had been taken before Gummerson established an attorney-client relationship with Alicia.  These actions were timely and sufficient to defeat Richard’s argument. Therefore, Rule 1.10 did not apply, and Mark Gummerson was qualified to represent Alicia Stephenson.

The Appellate Court held that the brief conversations between Paulette Gray and Mark Gummerson and between Paulette Gray and her husband, Robert, were insufficient grounds for disqualification.  The court also determined that Rule 1.10 is satisfied when a screen is effected in a timely matter and that Mark Gummerson had met the timeliness requirement in setting up the screen around Robert Gray.  Therefore the Appellate Court reversed the trial court’s order granting the motion to disqualify Mark Gummerson.

Setting up a “timely and sufficient” screen around any lawyer is essential when accepting new clients whenever or wherever a closely knit legal community exists.   A screen allows the law firm to represent a client even if an attorney in the firm has personal knowledge or ties to the potential client.

The Stephenson case amply demonstrates the potential for violations of the model rules in communities and boutique practices where conversations flow freely between lawyers.  Finally, Gummerson’s timely and effective creation of the screen in his firm demonstrates the importance of that tool in avoiding violations of Rule 1.10.