                                No. 2-10-0221   Filed: 9-23-10
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

ELIZABETH A. MACKNIN,                      ) Appeal from the Circuit Court
                                           ) of Lake County.
       Petitioner,                         )
                                           )
v.                                         ) Nos. 08--D--287
                                           )      09--OP--1220
DAVID A. MACKNIN,                          )
                                           )
       Respondent-Appellee                 )
                                           ) Honorable
(Martin Markrack, Next Friend on Behalf of ) George D. Strickland,
I.M., Subpoena Respondent-Appellant).      ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BURKE delivered the opinion of the court:

       This interlocutory appeal arises from the order of the circuit court of Lake County granting

the motion of respondent, David A. Macknin, to disqualify attorney Stephen M. Komie from

representing respondent's stepdaughter, I.M., the subpoena respondent in an order of protection case

brought against respondent by petitioner, Elizabeth A. Macknin, I.M.'s natural mother. Petitioner

initiated the order of protection case against respondent, her ex-husband, alleging that he had raped

and sexually abused I.M. and was grooming E.M., the natural daughter from her marriage to

respondent, for similar sexual abuse. After an emergency order of protection was entered with I.M.

named as one of the parties, respondent issued a deposition subpoena to I.M. Martin Markrack,

I.M.'s natural father, hired Komie to represent I.M. at the deposition. Respondent's motion to

disqualify alleged a conflict of interest in Komie representing I.M. and that, pursuant to section 506
No. 2--10--0221


of the Illinois Marriage and Dissolution of Marriage Act (Dissolution of Marriage Act) (750 ILCS

5/506 (West 2008)) and article IX of the Supreme Court Rules (210 Ill. 2d R. 900 et seq.), I.M. may

be represented only by independent court-appointed counsel. The trial court did not make a finding

of a conflict of interest but disqualified Komie on the second ground alleged and appointed a Lake

County representative for I.M. For the reasons that follow, we reverse.

                                                FACTS

        On July 29, 2009, the trial court dissolved the marriage between respondent and petitioner

in In re Marriage of Macknin, No. 08--D--287. The Macknins have one biological child, E.M.

Petitioner's daughter I.M. is from petitioner's previous marriage to Markrack, who filed this appeal

as next friend on behalf of I.M. E.M. is now 7 years old and I.M. is 16 years old. The judgment of

dissolution incorporated a joint parenting agreement previously entered into by the parties. The joint

parenting agreement concerned the custody and care only of E.M. because I.M. was neither

respondent's biological child nor his adopted child.

        On August 12, 2009, petitioner filed a petition for an emergency order of protection (No.

09--OP--1220). The order was entered and, as amended on November 12, 2009, remains in effect.

The order of protection alleges, inter alia, that respondent had raped and sexually abused I.M. and

was grooming E.M. for similar sexual abuse and that such abuse occurred during the course of the

marriage between petitioner and respondent.

        On September 2, 2009, petitioner filed an emergency petition to terminate or suspend

visitation and to modify custody in the parties' dissolution action (No. 08--D--287). Respondent did

not receive notice of this filing until October 1.




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        On October 1, respondent filed a motion to strike the verified petition for an order of

protection, and the trial court subsequently ordered petitioner to file an amended petition. In the

interim, the trial court appointed Patricia Kalal on October 5, to act solely as representative for E.M.

in the dissolution proceeding, pursuant to section 506(a)(3) of the Dissolution of Marriage Act (750

ILCS 5/506(a)(3) (West 2008)). Kalal was not appointed to represent I.M.

        On November 1, petitioner filed an amended emergency verified petition for an order of

protection, attaching an affidavit in which I.M. alleged that respondent had sexually abused her while

petitioner and respondent had been married. The affidavit had been prepared by one of petitioner's

lawyers, Lydia Gross Kamerlink.

        On or about November 9, respondent served I.M. with a subpoena duces tecum for

deposition. Shortly thereafter, on November 17, Komie filed an appearance on behalf of I.M. in the

order of protection case.

        On December 3, respondent filed a motion to disqualify Komie from representing I.M. The

disqualification motion recounted the facts and claimed on information and belief that Komie had been

hired by petitioner, either directly or indirectly, to represent I.M., thereby creating a conflict between

I.M.'s interests and those of petitioner. Respondent argued that, pursuant to section 506 of the

Dissolution of Marriage Act and article IX of the Supreme Court Rules (210 Ill. 2d R. 900 et seq.),

any appointment of an attorney for I.M. must be made by the court because she is a minor. Although

respondent did not cite which Rules of Professional Conduct apply to Komie's representation of I.M.,

respondent also argued that, because petitioner hired Komie to represent I.M., a conflict of interest

required his disqualification pursuant to Rules 1.7 and 4.3 of the Rules of Professional Conduct

(replaced by the Illinois Rules of Professional Conduct of 2010, Official Reports Advance Sheet No.



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14 (July 15, 2009), Rs. 1.7, 4.3, eff. January 1, 2010). Respondent was concerned that petitioner

would prejudice respondent and E.M. by controlling I.M.'s participation in the case.

        On January 25, 2010, petitioner filed a response to the motion to disqualify, denying that

Komie should be disqualified.

        On February 8, 2010, I.M. filed a motion to strike and dismiss respondent's arguments or, in

the alternative, for entry of a judgment on the pleadings pursuant to section 2--615 of the Code of

Civil Procedure (Code) (735 ILCS 5/2--615 (West 2008)), and presented the following arguments:

(1) the motion to disqualify failed to allege any facts demonstrating a conflict pursuant to the Rules

of Professional Conduct; (2) any citizen, no matter how old, is entitled to obtain a lawyer for any

court proceeding; (3) as a victim of a crime, I.M. enjoys the benefits of the Illinois Crime Victims Bill

of Rights guaranteed by the Illinois Constitution (Ill. Const. 1970, art. I, §8.1); (4) respondent lacked

standing to complain of any potential conflict between I.M. and her choice of counsel; and (5) she

was not a party to the litigation, but a witness, and historically courts did not appoint counsel for

witnesses. This motion did not reference Markrack.

        Respondent replied to the motion to strike or dismiss, arguing that it was improper to attack

or respond to a disqualification motion with a motion to strike brought under section 2--615 and that

the motion to disqualify was not a "pleading."

        At the hearing to disqualify on February 18, 2010, respondent reiterated his allegation that

petitioner had hired Komie. Komie denied the allegation and stated, after being directly questioned

by the trial court, that Markrack signed the contract with Komie for his representation of I.M. in

connection with the subpoena for deposition. The trial court asked Komie if Markrack was paying




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No. 2--10--0221


his fee or if anyone else was paying it, and Komie replied that it was his understanding that Markrack

was paying it.

       Later in the proceedings, the following questioning took place:

                 "THE COURT: So far Mr. Komie, and I asked him the question, and he is going to

       be held to it, and I will give you a chance to supplement your answer. So far Mr. Komie, you

       indicated he [Markrack] just walked into your office and you are unaware of any referral.

                 Given what Mrs. Gertler [respondent's counsel] said, do you have anything else to say

       about any contacts with this family or relationships that I should know about?

                 MR. KOMIE: I have no relationship with Mr. Chez [petitioner's father].

                 THE COURT: How about [petitioner]?

                 MR. KOMIE: I have met [petitioner].

                 THE COURT: Prior to Mr. [Markrack] coming in to see you?

                 MR. KOMIE: I have met her on one occasion prior to that.

                 THE COURT: Describe the nature of that.

                 MR. KOMIE: It was a social conversation.

                 THE COURT: Did she discuss any legal matters with you?

                 MR. KOMIE: Not on that occasion.

                 THE COURT: Subsequent to that occasion, but prior to Mr. [Markrack] coming in

       to see you, did she?

                 MR. KOMIE: There was a second meeting where she did talk about some things.

                 THE COURT: All right. Without going into the specific--so you had a meeting with

       her regarding legal issues prior to Mr. Markrak [sic] coming in to see you?



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No. 2--10--0221


                MR. KOMIE: Yes, correct.

                THE COURT: Are you asserting that those are covered by attorney-client privilege,

        the statements that she made?

                MR. KOMIE: Now, based on what I have learned from the ARDC's view of the rules

        that were just published in January, any time a potential client talks to you, everything they

        say is now covered by privilege. That's a new item which if you look at the commentary to

        the new rule, anyone that talks to you about anything that touches on a legal matter, it is now

        under privilege.

                THE COURT: How much time passed between your meeting with [petitioner] and

        your meeting with [Markrack]?

        MR. KOMIE: Months."

        The trial court rejected the argument that I.M.'s rights were somehow defined by the Illinois

Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2008)), as there was no

indictment or criminal prosecution, the child was not named as a victim, and this was not a criminal

proceeding. The court noted that it placed little weight on Rule 1.7 of the Rules of Professional

Conduct, the conflict of interest general rule, even though it was "concerned first being told that the

father of the child came in about representation" and, upon more pointed questioning, "finding out

that [petitioner] prior to that had [come] in and apparently had conversations regarding representation

with Mr. Komie." Despite finding that this raised a legitimate concern, the court stated that it did not

base its ruling on the apparent conversation between petitioner and Komie.

        The court noted that section 506 of the Dissolution of Marriage Act concerns proceedings

involving the support, custody, visitation, education, parentage, property interest, or general welfare



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No. 2--10--0221


of a minor child and that a court may appoint a representative for a minor on its own motion. The

court stated that it understood that I.M. was not the subject of a child custody case, but the

proceedings involved a minor who needed protection. The court found a nexus between section 506

of the Dissolution of Marriage Act, regarding the general welfare of a minor, and Supreme Court

Rule 900(b)(2) (210 Ill. 2d R. 900(b)(2)), which indicates that article IX applies to those actions that

fall under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2008)), the act

under which the order of protection is governed. Reading the "900 Series together with [section]

506," the court held that section 506 had been violated because, pursuant to Supreme Court Rule 907

(210 Ill. 2d R. 907), a child representative must be appointed by the court, and the attorney for the

minor must adhere to all ethical rules. The court concluded:

                "So for those reasons, and somewhat of a concern *** towards the appearance of a

        potential conflict of interest regarding [Rule] 1.7, but mainly because *** Mr. Komie was not

        appointed by this Court, the motion to disqualify Mr. Komie is granted."

The court then appointed Thomas Gurewitz as child representative for I.M., finding that, although

Komie "does in fact have the necessary training and experience to act as a child representative, ***

he is not recognized as such in Lake County."

        On March 3, 2010, Komie filed an interlocutory appeal on behalf of Markrack, as next friend

of I.M., "Subpoena Respondent," from the February 18, 2010, order disqualifying Komie. On March

4, 2010, Komie filed, on behalf of Markrack, a "Subpoena-Respondent's" petition for leave to appeal,

pursuant to Supreme Court Rules 306(a)(5) and (a)(7) (Official Reports Advance Sheet No. 6 (March

24, 2010, Rs. 306(a)(5), (a)(7), eff. February 26, 2010).




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No. 2--10--0221


        On March 26, respondent filed a motion to dismiss the appeal for want of appellate

jurisdiction. We denied respondent's motion and granted the leave to appeal.

                                             ANALYSIS

                                              Jurisdiction

        Before addressing the merits of the appeal, we need to deal with several preliminary issues.

First, in his appellate brief, respondent renews the motion to dismiss the appeal for lack of

jurisdiction, which we previously denied. Respondent submits that, even if we continue to adhere to

our decision, "a decision will serve to clarify what exactly is the jurisdictional grounds for this

appeal."

        I.M.'s statement of jurisdiction states that this court's jurisdiction is pursuant to either

Supreme Court Rule 306(a)(5) or 306(a)(7) (Official Reports Advance Sheet No. 6 (March 24,

2010), Rs. 306(a)(5), (a)(7), eff. February 26, 2010). Rule 306(a)(7) provides that a "party" may

petition for leave to appeal to the appellate court "from an order of the circuit court granting a motion

to disqualify the attorney for any party." Official Reports Advance Sheet No. 6 (March 24, 2010),

R. 306(a)(7), eff. February 26, 2010.

        Respondent contends, as he did in the motion to dismiss the appeal, that I.M. is not a "party"

within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so

restrictively. The rule does not designate that a "party" must be a plaintiff, defendant, or third party

to the action in order to petition for leave to appeal. Rather, the rule simply provides that a "party"

may petition for leave to appeal from an order granting a motion to disqualify "the attorney for any

party." Official Reports Advance Sheet No. 6 (March 24, 2010), R. 306(a)(7), eff. February 26,

2010. I.M., as a protected person under an order of protection, is a "party" to that proceeding. I.M.



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No. 2--10--0221


is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction

under Rule 306(a)(7).

                                              Mootness

       Next, respondent contends that the appeal should be dismissed on grounds of mootness. On

June 10, 2010, I.M. filed an appellant's brief. On June 21, 2010, respondent filed a combined motion

that included, inter alia, a motion to dismiss the appeal as moot. On June 25, 2010, I.M. filed an

answer and objections to the combined motion. On July 13, we entered an order denying the relief

requested. However, respondent had filed his appellate brief before we entered the order denying the

relief requested. Respondent's contention of mootness was based on the then-pending combined

motion, which has since been denied. Thus, we need not address this issue.

       We observe that respondent references the combined motion in his appellate argument and

attaches the motion to the appendix of his appellate brief. I.M. filed a motion, which we have taken

with the case, to strike those portions of respondent's appendix that have never been filed in the trial

court and are not part of the record on appeal. The attached exhibits are dehors the record and

respondent has not been granted leave to supplement the record pursuant to Supreme Court Rule

342(a)(3) (210 Ill. 2d R. 342(a)(3)). Accordingly, the motion to strike is granted.

                                       Respondent's Standing

       We next address I.M.'s contention that respondent lacks standing to complain of her choice

of counsel. I.M. asserts that respondent is neither her father nor her blood relative and that, because

he is a "legal stranger" to her, he has no legal say in any choices she might make. I.M. relies on In

re Marriage of Nienhouse, 355 Ill. App. 3d 146 (2004), to support her argument.




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       In Nienhouse, during the pendency of the divorce proceeding, the petitioner gave birth to a

child. The respondent filed a petition for establishment of nonpaternity, after which an order of

nonpaternity was entered. Nearly four years after entry of the nonpaternity order, the respondent

filed a motion to vacate the order of nonpaternity. The respondent also filed a motion for sibling

visitation between the parties' child and the petitioner's child. The trial court denied both of the

respondent's motions and, subsequently, entered the judgment of dissolution, which incorporated the

prior order reflecting the parties' agreement to sibling visitation between the parties' child and the

petitioner's child. On appeal, the respondent raised the argument that the trial court's failure to

appoint a guardian ad litem (GAL) for the petitioner's child and make a best interest determination

with respect to the respondent's petition to establish nonpaternity deprived the child of her due

process rights. The appellate court found that the respondent lacked standing to raise the issue.

Nienhouse, 355 Ill. App. 3d at 153.

       The court initially commented that the respondent failed to explain why he had standing to

assert the minor's rights where he was not her father or legal guardian. Nienhouse, 355 Ill. App. 3d

at 152. Noting the law that a party has standing to bring a constitutional challenge only if the party

is able to show himself to be within the class aggrieved by the alleged unconstitutionality, the court

explained that the respondent's right to due process was not at issue; rather, he attempted to argue

on behalf of the child's best interest. The court concluded that the respondent could not act in such

a capacity, because he was neither her father nor her legal guardian and thus had no standing to raise

a constitutional issue on appeal. Nienhouse, 355 Ill. App. 3d at 153-54.

       "The doctrine of standing is designed to preclude persons who have no interest in a

controversy from bringing [a law]suit." Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999). "The



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doctrine ensures that issues are only raised by those with a real interest in the outcome of the

controversy." Glisson, 188 Ill. 2d at 221. Standing requires some injury in fact to a legally

cognizable interest. Glisson, 188 Ill. 2d at 221. "The claimed injury may be actual or threatened, and

it must be[:] (1) distinct and palpable; (2) fairly traceable to the defendant's actions; and (3)

substantially likely to be prevented or redressed by the grant of the requested relief." Glisson, 188

Ill. 2d at 221.

        Respondent does not address the validity of his standing to bring the motion to disqualify

I.M.'s counsel. An appellee's failure to respond to an argument raised in the appellant's brief may

constitute a concession. See Vukusich v. Comprehensive Accounting Corp., 150 Ill. App. 3d 634,

644 (1986). Respondent's failure to respond notwithstanding, we believe he does have standing to

bring a motion to disqualify counsel, unlike the respondent in Nienhouse.

        In Nienhouse, the respondent attempted to assert a legal right or claim on behalf of the minor's

best interest, but he was unrelated to her and therefore was not able to show that he was within the

class aggrieved by the alleged unconstitutionality. Nienhouse, 355 Ill. App. 3d at 153-54. Here,

however, respondent does not seek a legal right or claim on behalf of I.M.'s best interest. Rather,

respondent seeks to disqualify Komie for an alleged harm to himself. I.M., not respondent, is the

party who is asserting that she has the right to counsel of her choice. Because respondent alleged a

conflict of interest that could prejudice him by allowing petitioner to control I.M.'s participation in

the case through Komie's representation of I.M., he would receive the benefits if his action were

successful. Accordingly, we find that respondent has standing.

                                         Markrack's Standing




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        Next, respondent claims that Markrack does not have legal standing to sue, because Markrack

never filed an appearance before the trial court. We find that respondent has forfeited this argument

on appeal. "Lack of standing is an affirmative defense and is [forfeited] if not raised at the trial court

level." In re Guardianship of Mabry, 281 Ill. App. 3d 76, 82 (1996). Respondent knew at the hearing

on the motion to disqualify that Markrack had hired Komie on behalf of I.M., and respondent did not

object to Markrack's lack of standing then.

        Regardless of respondent's failure to object, "[t]he essence of the inquiry regarding standing

is whether the litigant, either in an individual or representative capacity, is entitled to have the court

decide the merits of a dispute or a particular issue." In re Estate of Wellman, 174 Ill. 2d 335, 345

(1996). Respondent cannot maintain that I.M.'s father, as next friend, is not entitled to have the court

decide the merits of the dispute on behalf of his daughter, and it would serve no purpose to remand

for Markrack to refile an appearance to add his name to the caption.

                                            Disqualification

        Having determined that respondent has standing, we now turn to the merits of the appeal.

I.M. contends that the trial court erred by granting respondent's motion to remove Komie from

representing her during the order of protection proceedings. As stated, while the trial court

mentioned that it was concerned with a possible conflict of interest, it did not rule on that issue.

Rather, in granting the motion to disqualify, the trial court relied solely on article IX of the Supreme

Court Rules and section 506 of the Dissolution of Marriage Act in concluding that an attorney for

a child must be appointed by the court. I.M. asserts that this is an issue of first impression and that

the trial court had no basis to disqualify Komie pursuant to article IX or section 506. We agree.




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        As to the appropriate standard of review, "a motion to disqualify is addressed to the sound

discretion of the trial court, and its determination will not be disturbed absent a showing of abuse of

that discretion." Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 116 Ill.

App. 3d 1043, 1053 (1983). I.M. maintains that, because the trial court based its decision solely on

a misapplication of law rather than any particular factual findings, our review is de novo.

        "Little turns, however, on whether we label review of this particular question abuse of

        discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is

        beyond appellate correction. [Citation.] A district court by definition abuses its discretion

        when it makes an error of law. [Citation.] That a departure decision, in an occasional case,

        may call for a legal determination does not mean, as a consequence, that parts of the review

        must be labeled de novo while other parts are labeled an abuse of discretion. [Citation.] The

        abuse-of-discretion standard includes review to determine that the discretion was not guided

        by erroneous legal conclusions." Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d

        392, 414, 116 S. Ct. 2035, 2047-48 (1996).

See also Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (2009) (holding that

a trial court can abuse its discretion where its ruling rests on an error of law).

        "Attorney disqualification is a drastic measure because it destroys the attorney-client

relationship by prohibiting a party from representation by counsel of his or her choosing." Schwartz

v. Cortelloni, 177 Ill. 2d 166, 178 (1997), citing SK Handtool Corp. v. Dresser Industries, Inc., 246

Ill. App. 3d 979, 989 (1993). Courts place the heavy burden on the movant to prove the grounds for

the disqualification in order to ensure that the motion is not being brought as a tactical weapon to

gain undue advantage in the litigation. SK Handtool, 246 Ill. App. 3d at 989.



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       Because the trial court relied on section 506 of the Dissolution of Marriage Act and article

IX of the Supreme Court Rules to remove Komie as I.M.'s counsel, their scope and application are

at issue. "We interpret supreme court rules in the same manner as statutes, applying the cardinal rule

of construction in which we ascertain and give effect to the intent of the drafter, using the plain and

ordinary language of the rule." People v. Calabrese, 398 Ill. App. 3d 98, 120 (2010). When the

statute's language is clear, it must be applied as written without resort to aids or tools of

interpretation. Skarin Custom Homes, Inc. v. Ross, 388 Ill. App. 3d 739, 743 (2009). The

construction of a statute is a question of law, to which we apply de novo review. Skarin Custom

Homes, 388 Ill. App. 3d at 743.

       Section 506 of the Dissolution of Marriage Act provides, in relevant part:

               "(a) Duties. In any proceedings involving the support, custody, visitation, education,

       parentage, property interest, or general welfare of a minor or dependent child, the court may

       on its own motion or that of any party, appoint an attorney to serve in one of the following

       capacities to address the issues the court delineates:

                       (1) Attorney. The attorney shall provide independent legal counsel for the

               child and shall owe the same duties of undivided loyalty, confidentiality, and

               competent representation as are due an adult client.

                                                ***

               (a--3) Additional appointments. During the proceedings the court may appoint an

       additional attorney to serve in the capacity described in subdivision (a)(1) or an additional

       attorney to serve in another of the capacities described *** on the court's own motion or that




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        of a party only for good cause shown and when the reasons for the additional appointment

        are set forth in specific findings." 750 ILCS 5/506 (West 2008).

        Section 506 of the Dissolution of Marriage Act involves proceedings concerning the support,

custody, visitation, education, parentage, property interest, or general welfare of a minor or

dependent child. Generally, in those cases involving contested disputes, where there is an indication

of a potential conflict between the child's interests and a parent's interests, a court has an obligation

to appoint a GAL or child representative. See, e.g., Nienhouse, 355 Ill. App. 3d at 152. Here,

however, there is no dispute involving I.M.'s custody, visitation, education, parentage, property

interest, or general welfare under the Dissolution of Marriage Act. Further, there is no real conflict

between I.M. and a parent in the proceeding, as I.M. and her mother share the goal of restricting

contact between I.M. and respondent, who is not I.M.'s parent. Beyond that, there is no express

statutory requirement that a trial court appoint a GAL or child representative in every domestic

violence proceeding. See 750 ILCS 5/506(a) (West 2008) ("the court may *** appoint an attorney").

        Supreme Court Rule 900 provides, in relevant part:

                "(a) Purpose. Trial courts have a special responsibility in cases involving the care and

        custody of children. When a child is a ward of the court, the physical and emotional well-

        being of the child is literally the business of the court. The purpose of this article (Rules 900

        et seq.) is to expedite cases affecting the custody of a child, to ensure the coordination of

        custody matters filed under different statutory Acts, and to focus child custody proceedings

        on the best interests of the child, while protecting the rights of other parties to the

        proceedings.




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               (b)(1) Definitions. For the purposes of this article 'child custody proceeding' means

       an action affecting child custody or visitation. ***

               (b)(2) Part A. Scope. Rules 900 through 920, except as stated therein, apply to all

       child custody proceedings initiated under article II, III, or IV of the Juvenile Court Act of

       1987, the Illinois Marriage and Dissolution of Marriage Act, the Uniform Child Custody

       Jurisdiction and Enforcement Act, the Illinois Parentage Act of 1984, and the Illinois

       Domestic Violence Act of 1986 and article 112A of the Code of Criminal Procedure of 1963,

       and guardianship matters involving a minor under article XI of the Probate Act of 1975."

       (Emphasis added.) 210 Ill. 2d Rs. 900(a), (b)(1), (b)(2).

       The committee comments to the rule state:

               "Rule 900 emphasizes the importance of child custody proceedings and highlights the

       purpose of the rules that follow, which is to ensure that child custody proceedings are

       expeditious, child-focused and fair to all parties.

                                                ***

               Paragraph (b)(1) defines 'Child custody proceeding' broadly for the purposes of the

       rules. The broad definition is important, because the need to expedite custody decisions

       applies to all types of custody cases and coordination of custody cases is essential." 210 Ill.

       2d R. 900, Committee Comments, at 359.

       As stated, the order of protection action is governed by the Illinois Domestic Violence Act

of 1986 (750 ILCS 60/101 et seq. (West 2008)). While Rule 900(b)(2), in conjunction with Supreme

Court Rule 906 (210 Ill. 2d R. 906 (rule promulgated to ensure that counsel who are appointed by

the court to participate in child custody and visitation matters, as delineated in Rule 900(b)(2),



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possess certain professional attributes)), applies to attorney appointments made pursuant to an action

under the Domestic Violence Act, it is implemented only when a minor is in an action affecting his

or her custody or visitation. The Domestic Violence Act, upon which the trial court found a nexus,

contains no requirement to appoint a GAL or representative for a minor in an order of protection

case.

        Thus, because respondent does not have custody of I.M. and she is not involved in any

custody or visitation matter, article IX is inapplicable to I.M. Article IX is not a vehicle to appoint

counsel. Rather, it represents a minimum standard or guideline when the trial court does appoint

counsel for a minor who is involved in a custody dispute, so that the custody matter is expedited.

Accordingly, we find that the trial court abused its discretion by exceeding its authority and

disqualifying Komie pursuant to section 506 of the Dissolution of Marriage Act and article IX of the

Supreme Court Rules, and we reverse the order of the trial court.

                                           Right to Counsel

        In light of our decision, we need not reach I.M.'s contention that she is entitled to counsel of

her choice based on the crime victims amendment set forth in article I, section 8.1, of the Illinois

Constitution (Ill. Const. 1970, art. I, §8.1(a)(4)) and the Rights of Crime Victims and Witnesses Act

(725 ILCS 120/4(a)(9) (West 2008)), or the argument that the trial court's order impermissibly

interfered with both her and her father's constitutional right to choose counsel. See Lyon v.

Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004) (we will not reach

constitutional issues presented in a case if matter can be resolved on other grounds).

                                         Conflict of Interest




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       Although respondent alleged that a conflict existed because petitioner paid for Komie to

represent I.M., the trial court never ruled on the issue and respondent never submitted any evidence

of payment in the trial court. Even so, we note the comment to the Illinois Rules of Professional

Conduct of 2010, which states that "[a] lawyer may be paid from a source other than the client,

including a co-client, if the client is informed of that fact and consents and the arrangement does not

compromise the lawyer's duty of loyalty or independent judgment to the client." Official Reports

Advance Sheet No. 14 (July 15, 2009), R. 1.7, eff. January 1, 2010, Comment, at 43.

                                           CONCLUSION

       For the preceding reasons, we reverse the judgment of the circuit court of Lake County.

       Reversed.

       O'MALLEY and SCHOSTOK, JJ., concur.




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