ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Marriage of Newton, 2011 IL App (1st) 090683

Appellate Court

Caption

In reTHE MARRIAGE OF DAVID NEWTON, Petitioner-Appellee, and

HADLEY NEWTON, Respondent (David J. Grund, Marvin J. Leavitt,

and Grund & Leavitt, P.C., Contemnors-Appellants).

 District & No. First District, Fourth Division

Docket Nos. 1-09-0683, 1-09-0684, 1-09-0685 cons.

Filed June 30, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a marriage dissolution action where contemnor attorneys were

disqualified from representing respondent pursuant to Rule 1.9 of the

Illinois Rules of Professional Conduct based on their prior representation

of petitioner and their retainer agreement was unenforceable under

section 508(c)(3) of the Illinois Marriage and Dissolution of Marriage

Act, the trial court did not err in denying the attorneys any attorney fees

and the finding of contempt was upheld on the ground that they had no

good-faith basis to test the trial court's order.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-D-5136; the Hon.

Edward R. Jordan, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Marvin J. Leavitt and David C. Adams, both of Grund & Leavitt, P.C., of

Chicago, for appellants.

Michael J. Berger, Leon I. Finkel, and Rebecca S. Berlin, all of Berger

Schatz, of Chicago, for appellee.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

Justices Salone and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 Contemnors-appellants, David Grund, Marvin Leavitt, and Grund & Leavitt, P.C.

(collectively Grund and Leavitt), appeal the court’s entry of a contempt order against them

based on their refusal to complywith the court’s orderto step aside following an earlier court

orderthat disqualified Grund and Leavitt due to a conflict of interest and denied their petition

for attorney fees seeking $250,000 in interim and prospective fees in the divorce of David

Newton (David) and Hadley Newton (Hadley).

¶ 2 After a full hearing on David’s motion to disqualify, the circuit court determined that

there was a conflict of interest in violation of Rule 1.9 of the Illinois Rules of Professional

Conduct (Ill. Rs. of Prof’l Conduct, R. 1.9 (eff. Aug. 1, 1990)), and that Grund and the firm

of Grund & Leavitt were disqualified from representing Hadley. At a hearing on the petition

for fees, the court determined Grund and Leavitt were not entitled to any fees based on their

disqualification due to the conflict of interest. Grund and Leavitt refused to comply with the

court’s order denying them fees and ordering them to step away from the bench, and the

court found them in contempt and ordered Grund to pay $100 to purge the contempt. Grund

and Leavitt appeal only the contempt order.

¶ 3 The issue before us is discrete and limited: did the court err in entering the contempt

order? We clarify from the outset that Grund and Leavitt appeal only the contempt order and

seek corollary review of the underlying denial of their fee petition because of the

disqualification order, not their disqualification. A contempt orderisfinal and appealable and

generally also brings the propriety of the underlying disqualification order and subsequent

denial of attorney fees before us. See SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill.

App. 3d 979, 986 (1993).

¶ 4 We find that the circuit court did not err in finding Grund and Leavitt in contempt based

on their unwillingness to step aside, thus continuing their unwillingness to comply with

Grund’s disqualification due to a conflict of interest and the resulting denial of attorney fees.

Grund and Leavitt violated Rule 1.9, and under section 508(c)(3) of the Illinois Marriage and

Dissolution of Marriage Act (the Act), the retainer agreement with Hadley was not

enforceable because it was in violation of a court rule. 750 ILCS 5/508(c)(3) (West 2008).

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Further, as the court correctly noted, even without section 508, ordinarycontract law requires

fees only for valid contracts and here the contract with Hadley was void ab initio because

Grund was not allowed by Rule 1.9 to enter into it.

¶ 5 JURISDICTION

¶ 6 At the time of the instant appeal, March 18, 2009, the underlying divorce proceedings

were still pending and judgment was not entered until nearly a year later, on March 8, 2010.

Disqualification orders are not immediately appealable (In re Estate of French, 166 Ill. 2d

95, 100 (1995)), but Grund and Leavitt here are not appealing the disqualification order.

Following the disqualification order the court denied attorney fees going back in time to the

first meeting with Hadley. Grund and Leavitt are not directly appealing the denial of attorney

fees. Grund and Leavitt argue that they are entitled to fees up to the time of their

disqualification. The court disagreed and denied all fees. Grund and Leavitt are appealing the

contempt order and fine of $100 imposed by the court for not stepping aside, thereby

disregarding the disqualification order and challenging the court’s denial of all fees from

either David or Hadley.

¶ 7 Contempt judgments that impose a penalty are final, appealable orders. In re Marriage

of Gutman, 232 Ill. 2d 145, 153 (2008). See also Ill. S. Ct. R. 304(b)(5) (eff. Jan. 1, 2006).

¶ 8 “ ‘ “Where an unappealable interlocutory order results in a judgment of contempt

including a fine or imprisonment, such a judgment is a final and appealable judgment and

presents to the court for review the propriety of the order of the court claimed to have been

violated.” ’ ” Index Futures Group, Inc. v. Street, 163 Ill. App. 3d 654, 657 (1987) (quoting

People v. Verdone, 107 Ill. 2d 25, 30 (1985), quoting People ex rel. Scott v. Silverstein, 87

Ill. 2d 167, 174 (1981)). Here, the court imposed a fine of $100, and therefore the contempt

was a final judgment which was immediately appealable.

¶ 9 STANDARD OF REVIEW

¶ 10 The parties dispute the standard of review. Grund and Leavitt assert the issue must be

reviewed de novo, as it presents a question of law, while David maintains that the proper

standard of review is abuse of discretion. When the facts of a contempt finding are not in

dispute, their legal effect may be a question of law, which we review de novo. 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.” In re Marriage of Nesbitt, 377 Ill. App.

3d 649, 656 (2007) (citing In re Marriage of Schneider, 214 Ill. 2d 152, 174 (2005)). Here,

however, the circuit court indicated its belief that it could not award attorneyfees once Grund

and Leavitt were disqualified. Meanwhile, Grund and Leavitt argue that, although they were

disqualified, they are still entitled to their fees accrued for work performed for Hadley under

section 508 of the Act before the disqualification and assert that nothing in the ethical rules

explicitly states that no fees are allowed if an attorney is disqualified. The legal question is

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thus whether the circuit court properly denied attorney fees from the beginning of Grund’s

representation of Hadley. Whether a court or administrative agency has the authority to

award attorney fees is a question of law that we review de novo. Grate v. Grzetich, 373 Ill.

App. 3d 228, 231 (2007) (citing Alvarado v. Industrial Comm’n, 216 Ill. 2d 547 (2005)).

“Furthermore, whether a party may recover attorney fees and costs pursuant to any specific

act is a question of law.” Grate, 373 Ill. App. 3d at 231 (citing Johnson v. Thomas, 342 Ill.

App. 3d 382 (2003)). Thus, since the facts of the contempt are not in dispute and since Grund

and Leavitt are not appealing the disqualification, we are presented with a question of law

and we review this issue de novo.

¶ 11 BACKGROUND

¶ 12 Petitioner, David Newton, and respondent, Hadley Newton, were divorced pursuant to

a judgment for dissolution of marriage entered on March 8, 2010. In the underlying divorce

proceedings, David filed an emergency motion to disqualify Hadley’s attorney, Grund, and

the law firm of Grund & Leavitt, pursuant to Rule 1.9 (Ill. S. Ct. Rs. of Prof. Conduct, R. 1.9

(eff. Aug. 1, 1990)), due to Grund’s former representation of David in the same proceeding.

On August 9, 2007, the circuit court entered a preliminaryinjunction order prohibiting Grund

and Leavitt from representing Hadley while the motion to disqualify was pending. Hadley

filed her response to the motion to disqualify on July 27, 2007. A hearing was held on

September 4, 2007. The court heard testimony byDavid, Grund, and Hadley. However, upon

questioning of Grund regarding his conversation with David, David’s counsel objected based

on attorney-client privilege. Although there was an offer of proof, the circuit court barred

Grund’s testimony on the basis of the attorney-client privilege. David testified that he met

alone with Grund in Grund’s office for between 1 1/2 and 2 hours. They discussed

information and issues related to his marriage and impending divorce from Hadley, including

issues regarding the children and his financial situation, and Grund took notes.

¶ 13 Hadley testified, upon questioning by Grund, that she learned that there was a conflict

with Grund representing her because Grund himself told her there was a conflict when she

came in to see him. However, he entered into a retainer agreement with her and represented

her. The court found that Grund and Leavitt were disqualified from representing Hadley.

¶ 14 On September 18, 2007, Hadleysought interlocutoryreview of the court’s order and filed

a petition for leave to appeal (first appeal) under Supreme Court Rule 306 (Ill. S. Ct. R. 306

(eff. Sept. 1, 2006)). On October 17, 2007, we granted leave to appeal, thus staying

proceedings below. On June 13, 2008, we rendered our decision pursuant to Illinois Supreme

Court Rule 23 (Ill. S. Ct. R. 23 (eff. May 30, 2008)), in which we held that the circuit court

erred in barring Grund’s testimony at the hearing on the motion to disqualify. In re Marriage

of Newton, No. 1-07-2590 (2008) (unpublished order under Supreme Court Rule 23). We

reversed and remanded for a full and fair hearing including Grund’s testimony to resolve the

question of whether there was an attorney-client relationship between David and Grund. In

re Marriage of Newton, No. 1-07-2590 (2008) (unpublished order under Supreme Court Rule

23).

¶ 15 David filed a petition for rehearing. On July 15, 2008, we entered an order denying the

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petition for rehearing and further ordered that Arthur Berman, who had joined Grund &

Leavitt, was allowed to represent Hadley while the disqualification motion was pending. On

November 26, 2008, the Illinois Supreme Court denied David’s petition for leave to appeal,

and on January 8, 2009, we returned the mandate to the circuit court. David also filed a

motion seeking review of a certified question (second appeal) on July 16, 2008, pursuant to

Illinois Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)). However, we

dismissed that appeal.

¶ 16 On January 22, 2009, Grund and Leavitt filed a petition for attorney fees on behalf of

Hadley pursuant to sections 501 and 508 of the Act (750 ILCS 5/501, 508 (West 2008)),

seeking prospective and interim fees and costs from David in the amount of $250,000,

including amounts incurred during both appeals. The court conducted a hearing as directed

on February 25, 2009, and Grund testified that he told David that representation would not

begin until David actually signed a contract, that no attorney-client privilege would attach

during their meeting, and that David should not disclose anything to Grund that could not

appear in answers to interrogatories or in the public record. Grund testified that David

“volunteered some information,” but Grund did not recall anything specifically. Grund

denied taking any notes. Grund believed David never intended to actually hire him. Grund

also denied giving David a business card with his private cellular telephone number, but was

impeached by the production by David of Grund’s business card with his cellular telephone

number written on the back of the card. In rebuttal, David testified that Grund assured him

everything they discussed was confidential.

¶ 17 On March 3, 2009, the circuit court entered its memorandum opinion and order finding

that there was an attorney-client relationship between David and Grund and disqualifying

Grund and Leavitt from representing Hadley. The court specifically found that, “[c]learly,

from Mr. Grund’s own interrogation of Hadley it is obvious that he believed there to be a

conflict and that he so informed Hadley, yet he knowingly entered into a retainer agreement

with her.”

¶ 18 The court also specifically found that “Mr. Grund’s credibility *** was diminished by

his impeachment and general demeanor. His attitude on the stand was sarcastic, evasive,

cavalier and argumentative ***.”

¶ 19 On March 10, 2009, the matter was before the court on Grund and Leavitt’s fee petition.

Since Grund and Leavitt were disqualified, the parties and the court discussed whether the

petition should be treated as a section 501, 508 or 503(j) petition, but ultimately the court

concluded that it could not award attorney fees in any event because of counsel’s

disqualification. Grund and Leavitt argued strenuously for fees under section 508, and the

court offered to find them in contempt so that they could immediately appeal. The court

asked counsel to step away from the bench, but counsel did not do so, and the court found

them in contempt. In its order, the court stated:

“The court informed Grund and Leavitt that it would not and could not hold a hearing

with regard to the fees they incurred by virtue of their representation of Hadley

Newton and would deny their fee petition. The court also ordered Grund and Leavitt

to step away from the bench. They refused to do so and therefore it is ordered as

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follows:

1. The Grund & Leavitt fee petition is denied.

2. Mr. Grund and Mr. Leavitt are found to be in direct contempt of this court for

their failure to obey the court’s disqualification order.

3. Grund & Leavitt shall pay a fine of $100 to purge said contempt.”

¶ 20 Thereafter, Grund and Leavitt appealed both the disqualification order and the contempt

order. On June 2, 2009, we entered an order granting David’s motion to dismiss the appeal

of the disqualification order, but denied his motion to dismiss the appeal of the contempt

order.

¶ 21 ANALYSIS

¶ 22 David asserts that the appeal is moot since the judgment for dissolution of marriage has

been entered. However, there is no authority for David’s proposition that pending attorney

fee petitions are rendered moot by the entry of judgment of dissolution. Rather, as section

508(c)(2) provides, awarding fees under a petition is a distinct cause of action from a

proceeding for dissolution of marriage. We therefore proceed to address the issues presented

in the instant appeal.

¶ 23 We now address David’s argument that Grund and Leavitt’s appeal should be dismissed

because they lack standing. According to David, once Grund and Leavitt were disqualified,

they had no standing to seek attorney fees incurred on behalf of Hadley because their petition

was brought under section 501 of the Act, and section 501 makes provision only for the

petitioning party’s current counsel, and not former counsel (750 ILCS 5/501(c-1) (West

2008)).

¶ 24 However, Hadley’s petition for an award of attorney fees from David was brought

pursuant to both section 501 and section 508 of the Act, and not only section 501. At the

hearing on the petition counsel and the court discussed whether section 501 or section 508

of the Act applied. The court did not feel it would be “appropriate” to treat the fee petition

as brought under section 508, and it wanted instead to treat the petition as brought under

section 503(j) at the end of the dissolution proceeding. The court found that Grund and

Leavitt were not entitled to any fees in any event because of their disqualification and denied

the fee petition. Grund and Leavitt argued before the court, and argue now on appeal before

us, that they are entitled to fees under section 508.

¶ 25 We clarify that although the parties, including Grund and Leavitt, assert that Hadley’s

petition filed January 22, 2009, sought fees from David only pursuant to section 501, the

record shows the petition sought fees pursuant to section 508 as well. Section 508(a) of the

Act provides the following as to counsel’s right to collect fees under the Act:

“The court from time to time, after due notice and hearing, and after considering the

financial resources of the parties, may order any party to pay a reasonable amount for

his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and

costs may be awarded from the opposing party, in a pre-judgment dissolution

proceeding in accordance with subsection (c-1) of Section 501 [750 ILCS 5/501] and

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in any other proceeding under this subsection.” 750 ILCS 5/508(a) (West 2010). 

¶ 26 Here, the petition for attorney fees was filed on January 22, 2009, during the pendency

of the dissolution proceedings, and was still pending at the time the judgment for dissolution

was entered. Thus, Grund and Leavitt have standing to seek fees under section 508.

¶ 27 Grund and Leavitt also have standing because they are appealing the contempt order. A

contempt order is final and appealable and generally also brings the propriety of the

underlying disqualification order and denial of attorney fees before us. Directly on point is

SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979 (1993), where the

defendant and contemnor appealed a finding of civil contempt, including a $100 fine,

imposed for contemnor’s failure to obey the trial court’s disqualification order. SK Handtool

Corp., 246 Ill. App. 3d at 985. Counsel for both sides of the litigation in SK Handtool

indicated that, after this court denied leave to appeal and a petition for leave to appeal to the

supreme court was denied, the only avenue to seek review of the disqualification order was

to find counsel for Dresser in contempt of that order, and so the court found counsel in direct

contempt for failing to comply with the order. SK Handtool Corp., 246 Ill. App. 3d at 985.

We held that we had jurisdiction of the contempt finding, which brought the underlying

disqualification order before the court. SK Handtool Corp., 246 Ill. App. 3d at 986 (citing

Index Futures Group, Inc. v. Street, 163 Ill. App. 3d 654, 657 (1987)). Here, similarly, a

contempt order was entered against Grund and Leavitt, finding them in contempt for failing

to step away from the bench after they refused to comply with the disqualification order and

denial of fees, and thus they have standing to appeal and we have jurisdiction. Grund and

Leavitt’s disqualification did not strip them of standing or divest this court of jurisdiction to

review the contempt order and underlying disqualification and resulting denial.

¶ 28 Although Grund does not appeal the disqualification order, it is necessary to review it to

determine if the denial of fees was proper, which led to the finding of contempt.

¶ 29 DISQUALIFICATION

¶ 30 The trial court’s denial of Grund and Leavitt’s fees was founded on the trial court’s

determination that they were disqualified due to a conflict of interest with Grund’s prior

representation of David. Rule 1.9(a) of the Illinois Rules of Professional Conduct (Ill. Rs. of

Prof’l Conduct, R. 1.9(a) (eff. Aug. 1, 1990)) provides:

“Rule 1.9. Conflict of Interest: Former Client

(a) A lawyer who has formerly represented a client in a matter shall not

thereafter:

(1) 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, unless the former client consents after disclosure; or

(2) use information relating to the representation to the disadvantage of the

former client, unless:

(A) such use is permitted by Rule 1.6; or

(B) the information has become generally known.” Ill. Rs. of Prof’l

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Conduct, R. 1.9 (eff. Aug. 1, 1990).

¶ 31 We find the circuit court’s determination correct. Grund and Leavitt’s representation of

Hadley violated Rule of Professional Conduct 1.9. The testimony at the hearing below

established that David sought legal advice from Grund and that Grund discussed David’s

marriage and divorce with him during his consultation. “An attorney/client relationship can

be created at the initial interview between the prospective client and the attorney, and it is

possible that confidential information passed during the interview sufficient to disqualify the

attorney from representing the opposing party in related litigation.” Nuccio v. Chicago

Commodities, Inc., 257 Ill. App. 3d 437, 440 (1993) (citing Herbes v. Graham, 180 Ill. App.

3d 692 (1989)). “[T]he relationship can come into being during the initial contact between

the layperson and the professional and appears to hinge on ‘ “the client’s belief that he is

consulting a lawyer in that capacity and his manifested intention to seek professional legal

advice.” ’ ” Herbes, 180 Ill. App. 3d at 699 (quoting Westinghouse Electric Corp. v. KerrMcGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978), quoting Edward W. Cleary, McCormick

on Evidence § 88, at 179 (2d ed. 1972)). The testimony at the hearing below established that

David consulted with Grund and sought legal advice regarding his divorce. We agree with

the circuit court’s determination that David’s consultation with Grund gave rise to an

attorney-client relationship.

¶ 32 Furthermore, since David and Hadleywere parties in the identical case, there was clearly

a substantial relationship between Grund’s representation of David and Grund’s

representation of Hadley regarding their divorce. “ ‘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.’ ” Franzoni v. Hart Schaffner &

Marx, 312 Ill. App. 3d 394, 403-04 (2000) (quoting Herbes, 180 Ill. App. 3d at 700). See

also SK Handtool Corp., 246 Ill. App. 3d at 990 (“If such a relationship exists, it is presumed

that the client disclosed confidential information to the attorney during the prior

representation.” (citing Skokie Gold Standard Liquors, Inc., 116 Ill. App. 3d at 1055, and

Novo Therapeutisk Laboratorium v. Baxter Travenol Laboratories, Inc., 607 F.2d 186, 196

(7th Cir. 1979) (en banc))). Thus, there is an irrebuttable presumption that confidential

information was disclosed during Grund’s consultation with David. Thereafter, Grund was

prohibited by Rule 1.9 from representing Hadley. The circuit court did not err in (1) finding

that Grund had not rebutted the presumption; (2) in finding that Grund and Leavitt were

disqualified; and (3) in entering the disqualification order.

¶ 33 DENIAL OF FEES

¶ 34 A. Under Section 508 of the Act

¶ 35 We next determine whether the court below was correct in its determination that Grund

and Leavitt’s disqualification barred them from recovering attorney fees. Section 508(a) of

the Act provides:

“The court *** may order any party to pay a reasonable amount for his own or the

other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be

awarded from the opposing party, in a pre-judgment dissolution proceeding in

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accordance with subsection (c-1) of Section 501 [750 ILCS 5/501] and in any other

proceeding under this subsection.” 750 ILCS 5/508(a) (West 2010).

¶ 36 Section 508(a) further provides, in relevant part:

“Awards may be made in connection with the following:

(1) The maintenance or defense of any proceeding under this Act.

(2) The enforcement or modification of any order or judgment under this Act.

(3) The defense of an appeal of any order or judgment under this Act,

including the defense of appeals of post-judgment orders.

(3.1) The prosecution of any claim on appeal (if the prosecuting party has

substantially prevailed).

(4) The maintenance or defense of a petition brought under Section 2-1401

of the Code of Civil Procedure [735 ILCS 5/2-1401] seeking relief from a final

order or judgment under this Act.

(5) The costs and legal services of an attorney rendered in preparation of the

commencement of the proceeding brought under this Act.” 750 ILCS 5/508(a)

(West 2008).

In their petition on behalf of Hadley, Grund and Leavitt sought fees from David under

section 508 largely for their work performed on their prosecution of Hadley’s appeal and

defense of David’s appeal under subsections (a)(3) and (a)(3.1). See 750 ILCS 5/508(a)(3),

(a)(3.1) (West 2008). Grund and Leavitt argue there is no limitation to their right to seek fees

under section 508. However, although Grund and Leavitt perceive no limitation to an award

of attorney fees under section 508 which could be based on their disqualification due to a

conflict of interest, section 508(c)(3) applies to Grund and Leavitt’s petition for fees, as it

seeks fees for services under sections 508(a)(1) through (a)(5). The conditions stated in 1

section 508(c)(3) apply to both petitions for final hearings for attorney fees and costs against

an attorney’s own client under section 508(c)(3), as well as to an independent proceeding for

services within the scope of subdivisions (1) through (5) of section 508(a). 750 ILCS

5/508(c)(3) (West 2008). Section 508(c)(3) specificallyconditions the enforceability of a fee

agreement on meeting applicable court rules:

“(3) The determination of reasonable attorney’s fees and costs either under this

subsection (c), whether initiated by a counsel or a client, or in an independent

proceeding for services within the scope of subdivisions(1) through (5) of subsection

(a), is within the sound discretion of the trial court. The court shall first consider the

written engagement agreement and, if the court finds that the former client and the

filing counsel, pursuant to their written engagement agreement, entered into a

contract which meets applicable requirements of court rules and addresses all

material terms, then the contract shall be enforceable in accordance with its terms,

subject to the furtherrequirements of this subdivision (c)(3).” (Emphasis added.) 750

Grund and Leavitt’s claim for prospective fees was initially part of their petition, but is

1

irrelevant now on appeal due to their disqualification.

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ILCS 5/508(c)(3) (West 2008).

Here, Grund and Leavitt’s contract with Hadley did not meet the applicable requirements of

our court rules, as it violated Rule 1.9, and therefore the contract was unenforceable under

section 508 of the Act.

¶ 37 B. Grund and Leavitt’s Contract With Hadley Was Void Ab Initio

¶ 38 A second, broader, basis supporting the circuit court’s denial of attorney fees is the fact

that Grund and Leavitt’s fee agreement with Hadley is void for violation of Rule of

Professional Conduct 1.9. While the ethical rules do not explicitly provide for an ipso facto

rejection of attorney fees when an attorney is disqualified due to a conflict of interest,

supreme court rules have the force of law and represent the public policy of this state.

¶ 39 While Illinois courts strongly favor the freedom of contract, a court will declare a

contract void if it contravenes the public policy of the state. Fosler v. Midwest Care Center

II, Inc., 398 Ill. App. 3d 563 (2009). A court will not declare a contract illegal unless it

expressly contravenes the law or a known public policy of this State. Holstein v. Grossman,

246 Ill. App. 3d 719, 726 (1993) (citing Schniederjon v. Krupa, 130 Ill. App. 3d 656, 659,

474 N.E.2d 805, 808 (1985)). If the subject matter of a contract is illegal, that contract is void

ab initio. Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill.

App. 3d 156, 164 (2004). “[A] contract that is void ab initio is treated as though it never

existed; neither party can choose to ratify the contract by simply waiving its right to assert

the defect.” Coregis Insurance Co., 355 Ill. App. 3d at 164. Courts will not enforce contract

terms that violate public policy. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 482 (1998)

(citing American Federation of State, County & Municipal Employees v. Department of

Central Management Services, 173 Ill. 2d 299, 317-18 (1996); Beneficial Development Corp.

v. City of Highland Park, 161 Ill. 2d 321, 330-31 (1994)). “The question of whether a

contract is enforceable under considerations of public policy is a conclusion of law.”

Holstein, 246 Ill. App. 3d at 726 (citing Zeigler v. Illinois Trust &Savings Bank, 245 Ill. 180

(1910)).

¶ 40 Precedent establishes that our Code of Professional Conduct, part of our Supreme Court

Rules, have the force of law and embody the public policy of our state. “The Illinois Code

of Professional Responsibility is a Supreme Court Rule.” Marvin N. Benn &Associates, Ltd.

v. Nelsen Steel & Wire, Inc., 107 Ill. App. 3d 442, 447 (1982). “Supreme court rules have the

force of law and are indicative of public policy in the area of attorney conduct.” Albert

Brooks Friedman, Ltd. v. Malevitis, 304 Ill. App. 3d 979, 984 (1999), appeal denied, 185 Ill.

2d 617 (1999) (citing Marvin N. Benn & Associates, 107 Ill. App. 3d at 447). “Supreme

Court Rules have the function of law [citation] and thus are anotherstrong indicator of public

policy in the area of attorney conduct.” Marvin N. Benn & Associates, 107 Ill. App. 3d at

447. Where attorney conduct is at issue, we look to the Supreme Court Rules for expressions

of public policy. Richards v. SSM Health Care, Inc., 311 Ill. App. 3d 560, 564 (2000) (citing

Marvin N. Benn & Associates, 107 Ill. App. 3d at 447). The Illinois Supreme Court Rules

should be followed; they are not suggestions, nor are they aspirational. In re Haley D., 403

Ill. App. 3d 370, 375 (2010); Applebaum v. Rush University Medical Center, 231 Ill. 2d 429,

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447 (2008); People v. Young, 387 Ill. App. 3d 1126, 1127 (2009). Here, Rule 1.9 is a clear

prohibition on representing a party with a conflicting interest. Thus, the contract was void

ab initio.

2

¶ 41 Furthermore, while the supreme court rules do not explicitly state that attorney fees are

barred, the judicial decisions of our state are clear and long standing that attorney fees will

not be allowed if counsel is disqualified due to a conflict of interest. “The public policy of

this State is reflected in its constitution, its statutes and its judicial decisions.” Holstein, 246

Ill. App. 3d at 726 (citing O’Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333, 341

(1989)). Precedent holds that, “[g]enerally, an attorney may not receive fees after

representing adverse, conflicting, and antagonistic interests in the same litigation.” In re

Estate of Vail, 309 Ill. App. 3d 435, 441 (1999). See also In re Estate of Kirk, 292 Ill. App.

3d 914, 923 (1997) (“It has been stated as a general principle that attorneys may not recover

fees after representing adverse, conflicting, and antagonistic interests in the litigation.”

(citing In re Estate of Halas, 159 Ill. App. 3d 818, 831 (1987))); King v. King, 52 Ill. App.

3d 749, 753 (1977) (“An attorneycannot recover from the party that he has wronged for legal

services where he has represented adverse, conflicting, and antagonistic interests in the same

litigation.”).

¶ 42 King, relied upon by David, involved a divorce case where an attorney represented one

spouse after he initially consulted with the other spouse, just as in this case, and is precisely

on point. In King, the husband visited the law office of the attorney to discuss his marital

problems and the possibility of divorce. King, 52 Ill. App. 3d at 751. He consulted with the

attorney for less than one-half hour and did not retain him. Id. The wife filed a complaint for

separate maintenance and retained the attorney who previously consulted with her husband.

Id. The husband filed a motion to exclude the attorney, but the trial court denied it. Id. The

court entered a decree of separate maintenance and ordered the husband to pay the wife’s

attorney fees in the amount of $6,000, and the husband appealed. Id. at 752. The appellate

court found that an attorney-client relationship existed between the attorney and the husband

and that it was improper for the attorney to then undertake the representation of the wife. Id.

at 753. The court reversed the award of attorney fees. Id. The court held that “[t]he rule

[against representing conflicting interests] applies even though the attorney acquired no

knowledge which could operate to the client’s disadvantage,” and “[i]t makes no difference

that the client offered no compensation and the attorney neither made nor expected to make

any charge for his services.” King, 52 Ill. App. 3d at 753. Further, the motives or intentions

of the attorney are irrelevant. King, 52 Ill. App. 3d at 753.

¶ 43 Grund and Leavitt argue that King is inapplicable because it was decided prior to the

enactment of the Act. However, the strict bar against representing parties with conflicting

interests was established as part of the public policy of our state long before the enactment

of the Illinois Code of Professional Responsibility (ISBA 1970). See People v. Gerold, 265

Ill. 448, 477 (1914) (“The rule has long been firmly established that an attorney cannot

We note that although the court mentioned quantum meruit during a hearing, Grund and 2

Leavitt have not raised this issue on appeal and it is not properly before us.

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represent conflicting interests or undertake to discharge inconsistent duties.”); Strong v.

International Building Loan & Invest. Union, 183 Ill. 97, 102 (1899) (per curiam) (“ ‘[a]

lawyer can, under no conceivable circumstances, recover for services rendered in the same

suit to parties having opposing interests.’ ” (quoting MacDonald v. Wagner, 5 Mo. App. 56,

58 (1878))). The same result as in King obtains here even after the enactment of the Act.

¶ 44 Grund and Leavitt further argue that subsequent decisions have either criticized the

holding of King or found it inapplicable, citing the Illinois decisions of Nuccio, and Page v.

Hibbard, 142 Ill. App. 3d 788 (1986), rev’d in part on other grounds, 119 Ill. 2d 41 (1987).

However, Grund and Leavitt’s attempt to avoid the application of the holding in King is not

well-founded. In Nuccio, we found King distinguishable onlybecause the controversyexisted

for more than six years prior to the filing of a motion to disqualify, and therefore we found

that the plaintiff forfeited any issue with regard to any conflict of interest. See Nuccio, 257

Ill. App. 3d at 442. We did not criticize the holding of King, nor did we find it inapplicable.

The facts in Page presented no conflict of interest whatsoever. Rather, the award of attorney

fees out of funds received by employers to lawyers who represent employees in suits against

third parties was specifically provided for by the Workers’ Compensation Act. Page, 142 Ill.

App. 3d at 797 (citing Ill. Rev. Stat. 1983, ch. 48, ¶ 138.5(b)).

¶ 45 Grund and Leavitt nevertheless also maintain that they are entitled to their fees because

the Act permits fees for good-faith, unsuccessful petitions, citing In re Marriage of Pylawka,

277 Ill. App. 3d 728 (1996), and In re Marriage of McCaskey, 167 Ill. App. 3d 860 (1988).

Grund and Leavitt claim that if fees are allowed for unsuccessful good-faith petitions, they

should be entitled to fees here because they “won” the two prior appeals on behalf of Hadley.

We note that on Hadley’s previous appeal, we reversed the court’s order of disqualification

and remanded for the purpose of conducting a full hearing and did not make the ultimate

determination whether Grund and Leavitt were disqualified. Further, it is arguable to what

extent Grund and Leavitt’s defense of the prior appeals regarding their disqualification was

on behalf of Hadley, as opposed to being in their own interest to stay in the case and collect

their fees.

¶ 46 Also, Grund and Leavitt’s citations are wholly inapposite to the facts in the case at bar.

In Pylawka the cause was remanded and the court was ordered to reconsider the denial of

attorney fees where the appellant spouse unsuccessfully, but in good faith, argued that the

amount of a tax refund constituted a substantial change in circumstances and necessitated an

adjustment of the other spouse’s net income. In re Marriage of Pylawka, 277 Ill. App. 3d at

735. In McCaskey, the spouse sought fees after she had proceeded in good faith in an action

to set the dissolution judgment aside on a jurisdictional question. In re Marriage of

McCaskey, 167 Ill. App. 3d at 866. Neither case involved the disqualification of the

attorney–only that they did not win on the merits.

¶ 47 Here, in contrast, Grund and Leavitt represented Hadley despite a clear, known conflict

of interest. Where the ethical rules have been violated and counsel has represented a party

with conflicting, adverse interests, counsel’s purported good faith is irrelevant. “An attorney

may not undertake employment that constitutes a conflict of interest, no matter how honest

his motives or intentions might be.” In re Estate of Kirk, 292 Ill. App. 3d at 922 (citing In

re LaPinska, 72 Ill. 2d 461, 469 (1978)). Grund and Leavitt cite no authority for the

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proposition that attorneys representing parties with conflicting interests should be awarded

attorney fees if they are successful.

¶ 48 Finally, Grund and Leavitt argue strenuously that the purpose of section 508 of the Act

and, in particular, its provision allowing an award of attorney fees directly to the attorneys,

was to “level the playing field” for economically disadvantaged spouses to obtain counsel

of their choosing despite intimidation tactics of wealthier spouses. However, counsel cannot

simply flout the ethical rules. Rule 1.9 provides that representation of a client with

conflicting interests adverse to a former client is permitted if counsel first obtains the consent

of the former client. Ill. S. Ct. Rs. of Prof. Conduct, R. 1.9(a)(1) (eff. Aug. 1, 1990).

However, Grund and Leavitt did not obtain David’s consent. They cannot “level the playing

field” by rolling over the rights of their former client, David.

¶ 49 We note that the amended Supreme Court Rules of Professional Conduct, though not in

effect at the time of Grund’s attorney-client relationship with David, now help resolve the

problem suggested by Grund and Leavitt. Rule 1.18 provides guidance for attorneys who

have an initial consultation with a prospective client, but then later desire to represent

another party with conflicting, adverse interests. Under Rule 1.18, a lawyer who has had

discussions with a prospective client shall not represent a client with interests materially

adverse to those of a prospective client in the same or a substantially related matter if the

lawyer received information from the prospective client that could be significantly harmful

to that person in the matter (Ill. Rs. of Prof’l Conduct, R. 1.18(c) (eff. Jan. 1, 2010)), except

if:

“(1) both the affected client and the prospective client have given informed

consent, or

(2) the lawyer who received the information took reasonable measures to avoid

exposure to more disqualifying information than was reasonably necessary to

determine whether to represent the prospective client; and that lawyer is timely

screened from any participation in the matter and is apportioned no part of the fee

therefrom.” Ill. Rs. of Prof’l Conduct, Rs. 1.18(d)(1), (d)(2) (eff. Jan. 1, 2010).

¶ 50 Committee comment 5 to Rule 1.18 provides how this result can be achieved:

“(5) A lawyer may condition conversations with a prospective client on the

person’s informed consent that no information disclosed during the consultation will

prohibit the lawyer from representing a different client in the matter.” Ill. Rs. of

Prof’l Conduct, R. 1.18, Committee Comment (eff. Jan. 1, 2010).

¶ 51 This blueprint for representing a spouse after having an initial consultation with the other

spouse should discourage the tactical “conflicting out” of divorce attorneys by wealthier

spouses that Grund and Leavitt suggest is a pervasive practice in the area of divorce law.

¶ 52 We emphasize that the Rules of Professional Conduct recognize that the practice of law

is a public trust and lawyers are the trustees of the judicial system. Horwitz v. Holabird &

Root, 212 Ill. 2d 1, 16-17 (2004). “A single focus animates our rules of professional conduct

and the common law of this state: the client’s best interest.” Albert Brooks Friedman, Ltd.

v. Malevitis, 304 Ill. App. 3d 979, 985-86 (1999). “[A]nything which might tend to debase

the learned professions is at war with the public interest and is therefore contrary to public

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policy.” Marvin N. Benn & Associates, 107 Ill. App. 3d at 440 (citing In re Miller, 7 Ill. 2d

443 (1955)).

¶ 53 Here, Grund and Leavitt violated Rule of Professional Conduct 1.9, a supreme court rule

having the force of law and a clear expression of the public policy against attorneys

representing clients with conflicting interests. Thus, we have no difficulty in concluding, as

the court did, that their contract with Hadley was void ab initio. Therefore, there is no

contract basis upon which to award them fees.

¶ 54 Although Grund and Leavitt argue that they should be entitled to fees incurred before

they were disqualified by the court’s order, Grund violated Rule 1.9 at the moment he agreed

to meet with Hadley knowing he had a conflict. Grund knew from the initial consultation

with Hadley that there was a conflict of interest. The testimony by Hadley at trial was that

Grund told her of the conflict. Notably, this testimony was unrebutted by Grund and Leavitt.

As the court clearly stated, it is inexplicable that Hadley made it past screening and that

Grund agreed to represent her. Grund was clearly prohibited by Rule 1.9 from entering into

a retainer agreement with Hadley. As noted earlier in our analysis, “[a]n attorney/client

relationship can be created at the initial interview between the prospective client and the

attorney.” Nuccio v. Chicago Commodities, Inc., 257 Ill. App. 3d 437, 440 (1993) (citing

Herbes v. Graham, 180 Ill. App. 3d 692 (1989)). Therefore, Grund is barred from any earlier

fees based on either ground we have discussed: (1) the retainer agreement was unenforceable

under section 508(c)(3) of the Act; or (2) the retainer agreement was void ab initio as against

public policy.

¶ 55 Next we consider the time between the signed retainer and the disqualification.

¶ 56 Section 508(c)(3) provides, “[t]he court shall first consider the written engagement

agreement” to find whether “the former client and the filing counsel *** entered into a

contract which meets applicable requirements of court rules.” (Emphasis added.) 750 ILCS

5/508(c)(3) (West 2008). The relationship of attorney and client is a contractual one and is

created by a retainer or an offer to retain or fee paid. Holstein v. Grossman, 246 Ill. App. 3d

719, 743 (1993). “A client must manifest his authorization for an attorneyto act on his behalf

and the attorney must indicate his acceptance of the authorization to represent the client’s

interests.” Kehoe v. Saltarelli, 337 Ill. App. 3d 669, 676 (2003) (citing Torres v. Divis, 144

Ill. App. 3d 958, 963 (1986)).

¶ 57 Grund and Leavitt are not entitled to any attorney fees before the court entered the

disqualification order because the retainer agreement itself was void ab initio as against

public policy due to the clear violation of Rule 1.9. At the hearing on March 10, 2009, the

court cogently explained to Grund: “You don’t get any [fees] because your disqualification

relates to the date of the contract and in effect voids your contract to represent.” In the court’s

memorandum opinion and order, it found that, “[c]learly, from Mr. Grund’s own

interrogation of Hadley it is obvious that he believed there to be a conflict and that he so

informed Hadley, yet he knowingly entered into a retainer agreement with her.”

¶ 58 We agree with the court’s insightful and well-reasoned opinion and order, as it is in

accord with both section 508(c)(3) of the Act and Rule 1.9. The conflict of interest was

present at the time Grund entered into the contract with Hadley. Therefore, Grund’s contract

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with Hadley is unenforceable under the plain language of section 508(c)(3) (750 ILCS

5/508(c)(3) (West 2008)), as well as void ab initio as against public policy due to the

violation of Rule 1.9 of the Supreme Court Rules of Professional Conduct.

¶ 59 CONTEMPT ORDER

¶ 60 Grund and Leavitt argue the circuit court erred in entering the contempt order because

the underlying order denying them attorney fees was in error. In its order, the court stated:

“The court informed Grund and Leavitt that it would not and could not hold a

hearing with regard to the fees they incurred by virtue of their representation of

Hadley Newton and would deny their fee petition. The court also ordered Grund and

Leavitt to step away from the bench. They refused to do so and therefore it is ordered

as follows:

1. The Grund & Leavitt fee petition is denied.

2. Mr. Grund and Mr. Leavitt are found to be in direct contempt of this court for

their failure to obey the court’s disqualification order.

3. Grund & Leavitt shall pay a fine of $100 to purge said contempt.”

¶ 61 We find that the circuit court did not err in finding Grund and Leavitt in contempt based

on their unwillingness to step aside, thus continuing their unwillingness to comply with the

disqualification and resulting denial of attorney fees.

¶ 62 Contempt of court can result from a party’s failure to comply with the terms of a court

order. People v. Coupland, 387 Ill. App. 3d 774, 777 (2008). Persons subject to the order of

a court having jurisdiction must obey the order until it is reversed by a reviewing court or set

aside or modified. Busey Bank v. Salyards, 304 Ill. App. 3d 214, 217 (1999) (citing People

v. Graves, 74 Ill. 2d 279, 284-85 (1979), quoting Faris v. Faris, 35 Ill. 2d 305, 309 (1966)).

“[E]xposing oneself ‘to a finding of contempt is an appropriate method of testing the validity

of a court order.’ ” In re Marriage of Rosenbaum-Golden, 381 Ill. App. 3d 65, 82 (2008)

(quoting In re Marriage of Beyer, 324 Ill. App. 3d 305, 321 (2001)). “ ‘[W]hether a party is

guilty of contempt is a question of fact for the trial court, and *** a reviewing court will not

disturb the finding unless it is against the manifest weight of the evidence or the record

reflects an abuse of discretion.’ ” Killion v. City of Centralia, 381 Ill. App. 3d 711, 715

(2008) (quoting In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984)).

¶ 63 We note the well-established rule that where a “ ‘refusal to comply with a trial court’s

order constitutes a good-faith effort to secure an interpretation of [an issue without direct

precedent], it is appropriate to vacate a contempt citation on appeal.’ ” Mueller Industries,

Inc. v. Berkman, 399 Ill. App. 3d 456, 482 (2010) (quoting Cangelosi v. Capasso, 366 Ill.

App. 3d 225, 230 (2006)). However, under the facts of this case, we find that Grund and

Leavitt’s refusal to complywith the circuit court’s order denying them fees did not constitute

a good-faith effort to secure an interpretation without direct precedent. Rule 1.9 of the Rules

of Professional Conduct is clear that representing clients with conflicts of interest is

prohibited. Precedent is clear that fees for such prohibited representation are barred. It is

unrebutted that Grund knew of the conflict before he agreed to represent Hadley and yet

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undertook to represent her anyway, thus paving his own road to the denial of fees. Therefore,

the court’s adjudication of civil contempt was well founded and not against the manifest

weight of the evidence or an abuse of discretion.

¶ 64 Further, we note that in this very case Grund had previously been found in direct civil

contempt in an order dated June 30, 2008, in which the court found: “Grund’s verbal

outbursts obstructed and embarrassed the court and constituted a direct defiance of a court

order before a judge in open court and Grund is found to be in direct contempt of court. It

is ordered that contemnor David Grund will pay to the Clerk of the Circuit Court a fine of

$500.00 forthwith. Grund is remanded to the custody of the Cook County Sheriff and

released upon payment of the fine. Mittimus stayed 48 hours–10:40 am 7/2/08” s/Judge

Jordan.”

¶ 65 The fact that the order states that Grund and Leavitt were found in direct contempt “for

their failure to obeythe court’s disqualification order” indicates that the court was attempting

to coerce compliance with its order denying Grund and Leavitt’s fees. The order stated that

paying the fine would purge the contempt.

¶ 66 We note that our distinguished colleagues in the Fourth District take a different approach.

In re Marriage of Samuel, 394 Ill. App. 3d 398 (2009), is instructive. In In re Marriage of

Samuel the circuit court entered a civil contempt order imposing a fine and ordering an

apology. The appellate court found that the trial court’s imposition of a fine was a

punishment for improper behavior. In re Marriage of Samuel, 394 Ill. App. 3d at 402.

However, the apology “ implie[d] an admission of past conduct” and was “easily construed

as a promise not to engage in similar behavior in the future,” and to that extent, it was

coercive and permissible as a sanction for civil contempt. In re Marriage of Samuel, 394 Ill.

App. 3d at 402.

¶ 67 We find that the purging provision which would allow Grund and Leavitt an opportunity

to purge the contempt by paying the $100 fine was well within the court’s discretion in the

selection of a purging provision and was remarkablyrestrained, given the entire record of this

case.

¶ 68 CONCLUSION

¶ 69 For all the reasons stated above, we hold that the trial court did not err in denying Grund

and Leavitt attorney fees from the first moment they undertook representation of Hadley

based on a disqualification due to a conflict of interest. Grund and Leavitt’s representation

of Hadley was a known conflict of interest, in violation of Rule 1.9, and under section

508(c)(3) of the Act the retainer agreement was not enforceable. 750 ILCS 5/508(c)(3) (West

2008). Further, we affirm the court’s finding of contempt and hold Grund and Leavitt had

no good-faith basis to draw a contempt judgment to test the validity of the court’s order

denying their attorney fees due to the established conflict of interest.

¶ 70 Affirmed.

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