Thus, where, as in this case, there are facts which suggest that the former client (Weglarz) may indeed have disclosed confidences to attorney O'Brien, we must apply the standard test carved out by the courts in numerous cases involving this issue. See Novo Therapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 F.2d 186; Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 452 N.E.2d 804; La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App.3d 654, 440 N.E.2d 1073. • 1 The "Chinese wall" defense notwithstanding, the relevant test for disqualification under these facts is: where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited. ( Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 1051, 452 N.E.2d 804; La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App.3d 654, 664, 440 N.E.2d 1073.)
However, this court will engage in an independent review of questions of law presented by the order. Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 1054, 452 N.E.2d 804, 812; see also Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, 721 (trial courts enjoy no advantage over appellate courts in formulation of ethical norms). There remains the question of which law is applicable.
Petitioner will not be heard to complain about precluded evidence which she never offered. Petitioner places great reliance on Skokie Gold Standard Liquors, Inc. v. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 452 N.E.2d 804, in support of her per se conflict argument. Skokie is not a per se conflict case. It involved the propriety of the disqualification of an attorney for alleged violations of Canons 4 (the preservation of client confidences and secrets) and 9 (the avoidance of the appearance of impropriety) of the Illinois Code of Professional Responsibility (107 Ill.2d Canon 4, Canon 9). (116 Ill. App.3d at 1046.)
The relevant test under the Code is "`where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited.'" ( Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 1051, 452 N.E.2d 804, quoting La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App.3d 654, 664, 440 N.E.2d 1073.) In cases where, as here, the question involves resolution of factual issues, the trial court's determination will not be disturbed unless unsupported by the evidence.
The determination on a motion to disqualify lies within the trial court's discretion, and a reviewing court will reverse only when the trial court has abused its discretion. Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 1053, 452 N.E.2d 804, 812. Under the Rules of Professional Conduct (134 Ill.2d R. 1.9(a)(1)), when the subject matter of a prior representation is substantially related to the subject matter of a subsequent adverse representation, the latter representation is prohibited.
• 5, 6 Since an attorney-client relationship existed, the Canons apply, and it must be decided whether they require Morrison's disqualification. A motion to disqualify is directed to the sound discretion of the trial court, whose determination will not be disturbed absent a showing of abuse of discretion. ( Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 1053, 452 N.E.2d 804.) Under the Code, where it is shown that the subject matter of a former representation is substantially related to the subject matter of a subsequent adverse representation, the latter representation will be prohibited. ( First National Bank v. St. Charles National Bank (1987), 152 Ill. App.3d 923, 931, 504 N.E.2d 1257; Weglarz v. Bruck (1984), 128 Ill. App.3d 1, 5, 470 N.E.2d 21; Skokie Gold, 116 Ill. App.3d at 1056.) Once a substantial relationship is found between the prior and present representations, it is irrebuttably presumed that confidential information was disclosed in the earlier representation.
" 607 F.2d at 197. The rebuttable presumption rule was first considered and adopted by this court, after considering Nova and its progeny in the Seventh Circuit, in Skokie Gold Standard Liquors, Inc. v. Seagram Sons, Inc. (1983), 116 Ill. App.3d 1043, 452 N.E.2d 804, when it stated: "We find the above reasoning persuasive, since it strikes a balance between the former client's right to protection of its confidences and secrets and the present client's right to counsel of its own choosing, while also bearing in mind the need to prevent the appearance of impropriety."
el because Figliulo's April 22, 2012 conversation with Anthony did not violate Rule 4.2 where Figliulo and Mesude did not have an attorney-client relationship on that date, Anthony did not make any confidential disclosures to Figliulo, and Anthony's statements were made in the presence of Mesude, who was already aware of Anthony's settlement position. Mesude concludes that the court's order disqualifying her counsel had no basis and, thus, was an abuse of discretion. Mesude also argues that the disqualification of Figliulo and his firm was not warranted because Anthony did not demonstrate any prejudice. ¶ 14 The trial court's factual determinations are reviewed under the deferential abuse of discretion standard, whereas the trial court's application of the law is subject to de novo review. See SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 989 (1993) (courts of review determine issues involving solely questions of law independent of the trial court's judgment); Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 116 Ill. App. 3d 1043, 1054 (1983) (this court conducts an independent review of questions of law presented by the disqualification order). ¶ 15 Attorney disqualification is a drastic measure because it destroys the attorney-client relationship by prohibiting parties from retaining the counsel of their choice.
Busey Bank v. Salyards, 304 Ill. App. 3d 214, 217 (1999). See also Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc., 116 Ill. App. 3d 1043, 1054 (1983) (this court conducts an independent review of questions of law presented by the disqualification order). "As a general rule, a trial court's decision to award fees is a matter of discretion and will not be disturbed on appeal absent an abuse of discretion."
Where the plaintiffs in an earlier disqualification case also sought a less deferential standard of review and relied upon the very language from Freeman cited by Paulette, this court stated, "[t]he above-quoted language [from Freeman] * * * does not stand for the proposition * * * that the standard of review is different because the evidence was presented by way of affidavit." Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc., 116 Ill. App. 3d 1043, 1054, 452 N.E.2d 804 (1983). In rejecting the argument, this court noted that abuse of discretion remained the standard of review applied by the Seventh Circuit in cases where all evidence was presented through affidavits.