                                            2018 IL App (3d) 170712

                                Opinion filed November 27, 2018
       _____________________________________________________________________________

                                                     IN THE

                                       APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       In re THE ESTATE OF M.L and G.L, Minors)     Appeal from the Circuit Court
                                              )     of the 12th Judicial Circuit,
       (Anthony Loader,                       )     Will County, Illinois.
                                              )
             Petitioner-Appellant,            )     Appeal No. 3-17-0712
                                              )     Circuit Nos. 17-P-458, 17-P-528
             v. 	                             )

                                              )

       Debra Grossi,                          )     Honorable

                                              )     Jeffrey J. Allen, 

             Respondent-Appellee).	           )     Judge, Presiding.
                                              )
       _____________________________________________________________________________

             JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
             Justices Schmidt and O’Brien concurred in the judgment and opinion.
       _____________________________________________________________________________

                                                   OPINION

¶1            In this discretionary interlocutory appeal from the grant of a motion to disqualify counsel

       in a guardianship matter, the petitioner maintains that the court erred in disqualifying his attorney

       based upon an alleged conflict with another party, his sister, who also filed a petition for

       guardianship over petitioner’s children. The motion to disqualify was filed by the maternal

       grandparents of the children.

¶ 2	                                           BACKGROUND
¶3          Anthony Loader and Christina Schaade were the natural parents of two children: M.L.,

     born September 20, 2011; and G.L., born July 31, 2014. Anthony and Christina were never

     married, but it was never in dispute that Anthony was the biological father of both children.

     Anthony executed a voluntary acknowledgement of paternity for each child at the time of birth.

     It is undisputed that Anthony and Christina had a tumultuous relationship, and they never lived

     together for any significant period of time. At all times, the children lived with Christina,

     although not under any formal custodial determination. Anthony’s involvement in the care of the

     children varied over time, and he maintained some interest and contact with both children.

     Christina and the children did not have a permanent address, but lived with different family

     members, both hers and Anthony’s. It is undisputed that Anthony’s parental rights were never

     relinquished or terminated and he was never the subject of an order of protection regarding

     Christina or the children.

¶4          On May 24, 2017, Christina died. At the time of her death, she and the children had been

     staying in the home of Robert and Debra Grossi. Debra was Christina’s mother. Robert, Debra’s

     second husband, was not Christina’s father. While Christina and the children resided in the

     Grossi home, Christina enrolled the children in daycare and school using the Grossi address as

     her own. Christina took no formal steps to relinquish parental control or temporary guardianship

     over the children to Debra or Robert.

¶5          On May 25, 2017, Anthony appeared at the Grossi home and demanded that the children

     be turned over to him. Debra and Robert refused. On May 31, 2017, at Christina’s funeral,

     Anthony’s demand that his children be turned over to him was again refused. The next day,

     Anthony inquired of the State’s Attorney’s office regarding the possibility of charging Debra and

     Robert with interference with his parental rights. He was apparently informed that local


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     authorities would not intervene. At this time, Anthony was also a defendant in a criminal matter

     pending in Cook County circuit court. As a result of the uncertainty surrounding the outcome of

     the criminal matter, Anthony chose not to take further steps to obtain the physical custody of his

     children.

¶6          On June 1, 2017, Anthony executed a standard form “Appointment of Short-term

     Guardian” appointing his sister, Stephanie Loader, as short-term guardian of the children

     pursuant to section 11-5.4 of the Probate Act of 1975 (Probate Act). 755 ILCS 5/11-5.4 (West

     2016). On June 5, 2017, Stephanie filed a petition for appointment of guardian in the Will

     County circuit court, attaching a copy of the short-term guardianship appointment previously

     executed by Anthony. In a supporting affidavit filed with her petition, Stephanie stated that: (1)

     she was pursuing guardianship in accordance with Anthony’s expressed designation in the

     standard form appointment of short-term guardian; (2) the guardianship she was seeking would

     terminate, pursuant to the terms of Anthony’s appointment “on the date that Anthony states in

     writing that he is willing and able to make and carry out day-to-day child care decisions

     concerning the children, but not more than 365 days after the effective date of the Short-term

     Guardianship;” and (3) guardianship was being sought as a result of the Grossis’ refusal to

     comply with the children’s father’s wishes. Stephanie’s petition was docketed as 17-P-458 and

     placed on the Probate docket of Judge Jeffrey Allen. Natalie Cappetta of the law firm of

     Cappetta and Associates represented Stephanie.

¶7          On June 2, 2017, Debra and Robert filed a petition for custody of the children, which was

     docketed as case 17-F-469 and placed on the Domestic Relations docket of Judge Elizabeth

     Dow. On June 5, 2017, Anthony filed a response seeking dismissal of the petition on

     jurisdictional grounds and on the theory that Debra and Robert lacked standing to seek custody


                                                      3

       of the children. Anthony was represented by Natalie Cappetta and Frederick Cappetta of

       Cappetta & Associates; and Greg LaCost of the law firm of Rizzon & Diersen. On that date,

       Judge Dow, over Anthony’s objection, entered a temporary order granting custody of the

       children to Debra and Robert, with visitation for Anthony supervised by Stephanie.

¶8            On June 23, 2017, Judge Dow granted Anthony’s motion to dismiss the custody petition

       on jurisdictional grounds and dissolved the temporary custody order. Anthony requested the

       entry of an order finding that he was entitled to legal custody of the children based on his

       uncontested paternity of each child. The court refused the request, suggesting that Anthony

       would need to file his own custody petition to assert his parental rights. Anthony’s counsel

       requested that the Grossis voluntarily turn over the children to Anthony and Stephanie. The

       Grossis refused.

¶9           On June 26, 2017, Anthony filed a petition for custody of the children, which was

       docketed as case number 17-P-569. Natalie Cappetta and her firm represented Anthony in this

       action. The petition named Stephanie Loader as “Guardian and necessary party.” In the verified

       petition, Anthony requested that he be recognized as the biological father of the children and that

       he be granted sole care, custody, control, and education of the minor children, and that the

       Grossis be ordered to surrender the children to him “or Stephanie Loader, Guardian.” Anthony

       served notice of hearing for the next available court date, which was August 10, 2017. The

       matter was placed on Judge Dow’s domestic relations docket.

¶ 10          On the following day, June 27, 2017, Debra and Robert filed an “Emergency Petition for

       Guardianship” of each of the children, which was docketed as case number 17-P-528 on Judge

       Allen’s probate docket. Anthony and Stephanie received notice of hearing on the emergency

       petition. Cappetta entered her appearance on Anthony’s behalf and contested the jurisdiction of


                                                       4

       the court. The court reserved ruling on Anthony’s opposition, appointed a guardian ad litem for

       the children, granted temporary custody of the children to Debra Grossi and established visitation

       rights for Anthony. The court on its own motion consolidated Stephanie’s guardianship petition

       (17-P-458) with the Grossis’ emergency guardianship petition. Anthony’s paternity petition (19­

       F-569) was not consolidated and remained pending on the domestic relations docket in Judge

       Dow’s court.

¶ 11          On August 10, 2017, Anthony filed a petition to dismiss the Grossis’ guardianship

       petition in 17-P-528, in which he argued that the Grossis lacked standing to bring the petition. In

       the verified petition, Anthony stated that he was “willing and able to make and carry out day-to­

       day child care decisions concerning the minors.” Anthony further verified that he would revoke

       his appointment of Stephanie as short-term guardian as his “short-term unavailability has

       resolved.” The clerk informed Anthony that a hearing on his motion could not be docketed

       before October.

¶ 12         Meanwhile, on August 11, 2017, Judge Dow entered a judgment in Anthony’s paternity

       petition (17-F-569) finding that Anthony was the biological father of the two children. The

       judgment included both a finding of paternity regarding each child, and an order granting

       Anthony custody of each child, with instructions for law enforcement to provide appropriate

       enforcement of the custody order.

¶ 13          On August 14, 2017, at a hearing in the probate case, the court appointed guardian ad

       litem recommended that the children remain in the temporary custody of the Grossis pending a

       final determination to follow further review. Anthony’s counsel argued in response that the

       appropriate resolution for the matter would be for the court to defer to Judge Dow’s paternity

       order and dismiss the Grossis’ guardianship petition. Judge Allen denied the request to dismiss


                                                       5

       the Grossis’ guardianship petition, continued the Grossis’ temporary custody of the children and

       ordered the guardian ad litem to continue her investigation toward the issuance of a final report.

       The court required that both Anthony and Stephanie should be listed as authorized contacts at

       daycare and school, and permitted Anthony to have contact with the children when accompanied

       by Stephanie. Regarding the “jurisdiction” of the paternity order, Judge Allen indicated that he

       would seek a conference with Judge Dow pursuant to Supreme Court Rule 903 in order to “make

       sure we are in the appropriate courtroom.” Ill. S. Ct. R. 903 (eff. Mar. 8, 2016) (requiring that

       “[w]henever possible and appropriate, all child custody and allocation of parental responsibilities

       proceedings relating to an individual child shall be conducted by a single judge.”). The record

       does not establish that the probate and paternal proceedings were consolidated; nor is there any

       indication in the record regarding the status or enforcement of the order in the paternity

       proceeding.

¶ 14          On August 21, 2017, Anthony filed a verified motion to vacate the order appointing a

       guardian ad litem. The motion was prepared by Natalie Cappetta and listed both the Cappetta

       firm and the Rizzo & Diersen firm as counsel for petitioner. The Grossis filed a response on

       August 31, 2017, seeking to have Anthony’s motion dismissed. The matter was scheduled for

       hearing on October 17, 2017.

¶ 15          Also, on August 31, 2017, the Grossis filed an amended petition for guardianship of the

       children in the case docketed as 17-P-528. The record contains no responsive pleading and

       remains pending.

¶ 16          On September 23, 2017, the Grossis filed a motion to disqualify Natalie Cappetta,

       Frederick Cappetta, and Greg LaCost. The motion, filed in the Grossi guardianship petition (17­

       P-528) alleged that these attorneys were in violation of Rule 1.7 of the Illinois Professional


                                                       6

       Rules of Conduct of 2010 (Rules of Conduct). Specifically, the disqualification motion alleged

       that the named attorneys represented both Anthony Loader and Stephanie Loader and that each

       of these parties were in conflict with one another due to Stephanie’s petition seeking court

       approval of her short-term guardianship while Anthony sought custody of the children in his own

       right as their biological father. The motion to disqualify was noticed for hearing on September

       25, 2017. Following a brief hearing, and without an opportunity for written response, the court

       found that the attorneys were in violation of Rule 1.7 of the Rules of Conduct and granted the

       motion to disqualify Natalie Cappetta, Frederick Cappetta, and Greg LaCost.

¶ 17          On October 12, 2017, the disqualified attorneys filed a motion to reconsider on behalf of

       both Anthony Loader and Stephanie Loader maintaining that: (1) the court abused its discretion

       in hearing the motion to disqualify as an “emergency motion” without giving the respondents

       sufficient time to prepare a response; (2) the court’s granting of the motion to disqualify without

       sufficient opportunity to respond constituted a denial of the procedural due process rights of

       adequate notice and opportunity to respond; (3) the Grossis lacked standing to bring a charge of

       violation of Rule 1.7, as the Rule does not extend a right to third parties not covered by an

       attorney client relationship; (4) the court’s finding of that counsel was in violation of Rule 1.7

       was erroneous as a matter of law; and (5) any claim to disqualification pursuant to Rule 1.7 had

       been waived by lack of timely action by the Grossis. The circuit court denied the motion to

       reconsider.

¶ 18          Anthony and Stephanie petitioned this court for leave to appeal pursuant to Supreme

       Court Rule 306(a)(7). Ill. S. Ct. R. 306(a)(7) (eff. July 1, 2014), which this court granted.

¶ 19                                             ANALYSIS




                                                         7

¶ 20          Anthony maintains on appeal that the trial court erred in disqualifying his attorneys.

       While his appeal raises all five arguments raised in his motion to the trial court to reconsider its

       order disqualifying his attorneys, we will limit our analysis to three issues: (1) whether the

       Grossis had standing to raise the issue of a conflict of interest between Anthony and Stephanie;

       (2) whether the Grossis waived their right to seek disqualification of counsel by failing to raise

       the issue earlier in the proceedings; and (3) whether the trial court abused its discretion in

       granting the motion to disqualify counsel.

¶ 21                                         I. Standard of Review

¶ 22          Attorney disqualification is a drastic measure because it destroys an established attorney-

       client relationship and prohibits a party form retaining the counsel of their choice. Schwartz v.

       Cortelloni, 177 Ill. 2d 166, 178 (1997). Because disqualification impacts the right to counsel of

       the client’s choosing, disqualification is considered a drastic action to be taken by the court only

       where the Rules of Professional Conduct preclude continued representation. Id. A party seeking

       to disqualify opposing counsel bears a heavy burden of proving a conflict of interest. In re

       Possession & Control of the Commissioner of Banks and Real Estate of Independent Trust Corp.,

       327 Ill. App. 3d 441, 478 (2001). Motions to disqualify opposing counsel are to be viewed with

       extreme caution since these motions can be used as a means to harass opposing counsel and

       interfere with the attorney-client relationship. In re Estate of Wright, 377 Ill. App. 3d 800, 804

       (2007); In re Estate of Klehm, 363 Ill. App. 3d 373, 377 (2006).

¶ 23          A trial court’s decision on whether to disqualify counsel will not be disturbed absent an

       abuse of discretion. International Insurance Co. v. City of Chicago Heights, 268 Ill. App. 3d 289,

       302 (1994). An abuse of discretion occurs where a trial court’s decision is arbitrary,

       unreasonable, or unsupported by the evidence of record, or where no reasonable person would


                                                        8

       agree with the position taken by the trial court. Schwartz, 177 Ill. 2d at 176. We note that there is

       a line of case law holding that we “interpret the Illinois Rules of Professional Conduct in the

       same manner as statutes [and] [t]he construction of the Illinois Rules of Professional Conduct is

       a question of law, to which we apply de novo review.” In re Marriage of Stephenson, 2011 IL

       App (2d) 101214, ¶ 26 (citing Macknin v. Macknin, 404 Ill. App. 3d 520, 530-31 (2010)). While

       we reverse the trial court’s disqualification order only if we find an abuse of discretion, we will

       apply de novo review to the trial court’s interpretation of the supreme court rule at issue.

       Stephenson, 2011 IL App (2d) 101214, ¶ 26; Macknin, 404 Ill. App. 3d at 530.

¶ 24                               II. Illinois Rule of Professional Conduct 1.7

¶ 25          In disqualifying counsel in the instant matter, the trial court relied upon Rule 1.7 of the

       Illinois Rules of Professional Conduct, which concerns matters arising from the representation of

       two or more parties in the same proceedings. Rule 1.7 provides in relevant part:

                              “(a) Except as provided in paragraph (b), a lawyer shall not represent a

                      client if the representation involves a concurrent conflict of interest. A concurrent

                      conflict of interest exists if:

                                       (1) the representation of one client will be directly adverse to

                             another client; or

                                       (2) there is a significant risk that the representation of one or more

                             clients will be materially limited by the lawyer’s responsibilities to another

                             client, a former client or a third person or by a personal interest of the

                             lawyer.

                              (b) Notwithstanding the existence of a concurrent conflict of interest under

                      paragraph (a), a lawyer may represent a client if:


                                                         9

                                     (1) the lawyer reasonably believes that the lawyer will be able to

                              provide competent and diligent representation to each affected client;

                                     (2) the representation is not prohibited by law;

                                     (3) the representation does not involve the assertion of a claim by

                              one client against the another client represented by the lawyer in the same

                              litigation or other proceeding before a tribunal; and

                                     (4) each affected client gives informed consent.” Ill. R. Prof.

                              Conduct, R.1.7 (eff. Jan. 1, 2010).

¶ 26                         III. Standing to Seek Disqualification Under Rule 1.7

¶ 27	          Appellants maintain that the Grossis’ motion to disqualify opposing counsel should have

        been denied based upon a lack of standing to bring the motion. In order to determine whether the

        trial court abused its discretion in ordering counsel disqualified, we must first address whether

        the Grossis had standing to raise a Rule 1.7 violation and seek disqualification of opposing

        counsel. A party does not have standing to challenge opposing counsel’s ability to represent a

        client without some showing that the representation adversely affects interests of the party

        challenging opposing counsel’s representation. Jones v. Brown-Marino, 2017 IL App (1st)

        152852, ¶ 13; Lavaja v. Carter, 153 Ill. App. 3d 317, 326 (1987); Evink v. Pekin Insurance Co.,

        122 Ill. App. 3d 246, 250 (1984) (moving party has no standing to challenge opposing counsel’s

        representation of multiple parties without some showing that this representation adversely

        affected the moving party’s interests); see generally Eric C. Surette, Annotation, Standing of

        Person, Other than Former Client, to Seek Disqualification of Attorney in Civil Action, 72

        A.L.R. 6th 563 (2012).




                                                       10 

¶ 28          In the instant matter, the Grossis maintain they made a sufficient showing that the same

       counsel being allowed to represent Anthony and Stephanie in these proceedings adversely

       affected their interests. Specifically, they maintain that it was unfair to them to allow Anthony

       and Stephanie to pursue two contradictory theories: (1) Anthony’s argument that he was able to

       take custody and control of the children; and (2) Stephanie’s argument that Anthony was not able

       to take custody and control of the children giving rise to her claim to custody of the children as

       Anthony’s appointed short-term guardian. The Grossis’ argument that they were adversely

       affected by counsels’ representation of both Anthony and Stephanie fails for two reasons: (1)

       throughout these proceedings, Anthony and Stephanie did not take inconsistent positions; and (2)

       to the extent that Anthony and Stephanie were presenting alternative pleadings, the Grossis failed

       to establish how the same counsel presenting alternative pleadings adversely affected their ability

       to respond to each alternative argument.

¶ 29          Our review of the record and the pleadings clearly shows that Anthony and Stephanie

       pursued a consistent objective: securing custody of the children for Anthony. Beginning with

       Anthony’s execution of the statutory short-term guardianship form appointing Stephanie as

       guardian, it was abundantly clear that they were taking a consistent position that Anthony was

       entitled to custody of the children and was authorized pursuant to statute to designate Stephanie

       as their short-term guardian. 755 ILCS 5/11-5.4 (West 2016). The appointment form executed by

       Anthony set clear parameters for origination and termination of Stephanie’s guardianship. The

       document executed by Anthony stated that guardianship was to begin “[o]n the date that I state in

       writing that I am no longer either willing or able to make and carry out day-to-day child care

       decisions” and was to terminate “[o]n the date that I state in writing that I am willing and able to

       make and carry out day-to-day child care decisions concerning [each] child, but not more than


                                                       11 

        365 days after the effective date” of the form. The form was executed on June 1, 2017. When

        Stephanie filed her petition for guardianship on June 5, 2017, she was clearing seeking

        guardianship solely under the short-term guardianship designated by Anthony under section 11­

        5.4 of the Probate Act. We know this because she attached a copy of the short-term guardianship

        form executed by Anthony to her petition and she stated in her affidavit filed with her petition

        that she was seeking appointment as guardian as Anthony’s designee, and that she acknowledged

        that her appointment would cease on the date that Anthony stated in writing that he is willing and

        able to make and carry out day-to-day child care decisions concerning the children.

¶ 30	          Likewise, when Anthony filed his petition to establish custody, he made it clear that

        Stephanie was designated as a “necessary party” and in his prayer for relief sought that the

        Grossis be ordered to surrender the children to him “or Stephanie Loader, Guardian.” In short,

        there is nothing in this record to establish that Anthony and Stephanie took contrary and

        antagonistic positions at any point in these proceedings. Anthony and Stephanie sought the same

        relief from the trial court. Stephanie only wanted guardianship if Anthony was unable to assume

        parental responsibility, and Anthony wanted Stephanie to be guardian only while he was unable

        to parent. Nowhere in any pleading does Stephanie take a position hostile to Anthony. When

        Anthony filed his pleadings seeking custody of the children, Stephanie did not oppose any of

        those pleadings. When Anthony sought custody of the children, he included Stephanie as a

        necessary party and specifically asked the court to permit her to be temporary guardian if it were

        to find him unable to take on parental responsibilities. The Grossis’ position that they were

        prejudiced by the positions taken by Anthony and Stephanie is not supported by the record and

        the trial court’s agreement with their position was an abuse of discretion.




                                                        12 

¶ 31          Moreover, even if Anthony and Stephanie sought alternative relief in their respective

       pleadings, the Grossis failed to establish how they were prejudiced by the same counsel

       representing both Anthony and Stephanie. Even if their positions were not directly aligned, there

       was nothing prejudicial to the Grossis in allowing the same counsel to represent both parties.

       There was no tactical advantage to the same representation and the Grossis have not proven any

       way in which they were disadvantaged by the common representation. The record contains no

       evidence proving that the Grossis were prejudiced by Anthony and Stephanie sharing counsel.

       Since it was the Grossis’ burden to proof they were prejudiced in order to have standing to move

       to disqualify opposing counsel, and since they failed to prove prejudiced, the Grossis lacked

       standing to bring the disqualification motion. The trial court abused its discretion in finding

       otherwise.

¶ 32                                                IV. Waiver

¶ 33          Although our finding that the Grossis lacked standing to bring their motion to disqualify

       opposing counsel is dispositive as to their position, we will briefly address Anthony’s argument

       that the Grossis waived any objection to opposing counsel representing both Anthony and

       Stephanie. A party waives any objection to an alleged conflict of interest “if it fails to assert that

       conflict promptly.” In re Commissioner, 327 Ill. App. 3d at 479. In an effort to “discourage

       tactical gamesmanship,” courts have determined that motions to disqualify should be made with

       “reasonable promptness after a party discovers the facts [that lead] to the motion.” In re Estate of

       Klehm, 363 Ill. App. 3d at 377. In the instant matter, Stephanie filed her petition on June 5, 2017,

       and Anthony filed his petition for custody on June 26, 2017. The Grossis did not seek to have

       opposing counsel disqualified until September 22, 2017, some three months later. While three

       months might, or might not, seem like sufficient time for Grossis’ counsel to discover that


                                                        13 

       opposing counsel represented both Anthony and Stephanie, we cannot help but observe that the

       motion to disqualify came only after Anthony had prevailed on the Grossis’ guardianship

       petition (17-F-469) and his own parentage petition (17-P-569). Anthony was two for two and

       heading into the final round when the Grossis suddenly discovered the alleged conflict in

       opposing counsel representing Anthony and Stephanie.

¶ 34           Whether a party has waived a conflict is a matter for the discretion of the trial court and

       will only be overturned on appeal if there has been an abuse of discretion. International

       Insurance Co., 268 Ill. App. 3d at 302-03. It is clearly apparent from the record that the Grossis

       raised this objection only as a tactical maneuver. To the extent that the Grossis’ ever had a case

       to present in favor of disqualification, their allowing the courts to make two substantive rulings

       before raising the issue effectively waived the issue where the there was no evidence to support

       the trial court’s finding to the contrary. Id.

¶ 35                                  V. Existence of Conflict Under Rule 1.7

¶ 36           Our holding that the Grossis lacked standing to raise a challenge to opposing counsels’

       representation of both Anthony and Stephanie is not dispositive. Because the trial court had

       authority to disqualify counsel on its own motion, we must address independently whether

       counsels’ representation actually violated Rule 1.7 and whether the trial court erred in

       disqualifying counsel on that basis. SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill. App.

       3d 979, 989 (1993) (courts have independent responsibility to prevent conflicts in order to

       protect attorney-client relationships and ensure the integrity of judicial proceedings); La Salle

       National Bank v. Triumvera Homeowners Ass’n, 109 Ill. App. 3d 654, 664 (1982) (courts have

       authority to sua sponte disqualify counsel to enforce absolute loyalty and protection of client

       confidences). However, given the serious nature of a decision to disqualify counsel, a reviewing


                                                        14 

       court will not presume that the trial court acted correctly where the court has not set forth

       specific grounds for disqualification under the rules. Muellman-Cohen v. Brak, 361 Ill. App. 3d

       52, 54 (2005).

¶ 37           After reviewing the record, we find that counsels’ representation of both Anthony and

       Stephanie did not constitute a violation or Rule 1.7. We find, therefore, that the court abused its

       discretion in disqualifying counsel.

¶ 38           The court’s order disqualifying counsel did not provide any details regarding the specific

       provision of Rule 1.7 that was violated. We must, therefore, consider each section of the rule

       separately. We start by noting that the rule provides for two distinct types of “concurrent”

       conflicts that require disqualification. Rule 1.7(a)(1) defines a concurrent conflict as one where

       “the representation of one client will be directly adverse to another client,” i.e., a directly adverse

       conflict.   Similarly, Rule 1.7(a)(2) defines a concurrent conflict as one where “there is a

       significant risk that the representation of one or more clients will be materially limited by the

       lawyer’s responsibilities to another client, a former client or a third person or by a personal

       interest of the lawyer,” i.e., a material limitation conflict. The rule separates these two

       subsections with the conjunction “or” thereby designating each as a distinct form of “concurrent”

       conflict. See Hedrick v. Bathon, 319 Ill. App. 3d 599, 605 (2001). Thus, our first task is to

       determine whether the court found the alleged conflict between Anthony and Stephanie to be a

       “directly adverse conflict” or a “material limitation conflict.” Once it has been determined which

       conflict has arisen between the parties, a court can then proceed to determine whether, under

       Rule 1.7(b), the conflict can be overcome by informed consent.

¶ 39           Disqualification under the “directly adverse” conflict provision of Rule 1.7(a)(1) requires

       a finding that counsel’s representation of two or more clients in the same proceeding presents an


                                                         15 

        actual conflict of interests where those interests are directly antagonistic. In re Commissioner,

        327 Ill. App. 3d at 479-80; Chandra v. Chandra, 2016 IL App (1st) 143858, ¶ 34 (“[t]here must

        be a substantial basis for believing that an actual conflict of interest exists in order to disqualify

        [an] attorney from [his or her] representation of multiple clients, not merely a potential or

        speculated one”). In other words, an actual and direct conflict exists only where counsel is, in

        effect, “on both sides of the lawsuit.” Id. “ ‘Vague and general inconsistencies of position giving

        rise to hypothetical conflicts in the mind of an opposing party will not justify so drastic a

        measure as disqualification.’ ” In re Commissioner, 327 Ill. App. 3d at 478-79 (quoting Guillen

        v. City of Chicago, 956 F. Supp. 1416, 1423 (N.D. Ill. 1997)). Moreover, disqualification “may

        not be rested on mere speculation that a chain of events whose occurrence theoretically could

        lead counsel to act counter to his client’s interests might in fact occur.” Guillen, 956 F. Supp. at

        1422 (quoting Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145-46 (4th Cir. 1992)).

¶ 40	          In the instant matter, as we discussed in full when addressing the question of standing, no

        reasonable interpretation of the facts would lead to a finding that Anthony and Stephanie had an

        actual and direct conflict. Our review of the record clearly established that Anthony and

        Stephanie did not have a direct conflict at any time during these proceedings. With regard to

        Anthony’s stated goal of securing his parental rights over his children, Stephanie’s involvement

        was completely consistent with Anthony’s objective. The record establishes that there were

        initially four separate proceedings: Stephanie’s guardianship petition (17-P-458); the Grossis’

        first guardianship petition (17-F- 469); Anthony’s paternity petition (17-F-569); and the Grossis’

        second guardianship petition (17-P-528). Looking at the goals and interests of Anthony and

        Stephanie in each action, we find that they were completely aligned at all times. Anthony was

        seeking custody of his children, with Stephanie acting as his designated short-term guardian until


                                                         16 

       he stated in writing that he was able to exercise his parental responsibilities. Likewise, Stephanie

       filed the guardianship petition in order to seek enforcement of Anthony’s wishes regarding his

       children as he expressed when he executed the short-term guardianship form. As we noted

       previously, there was not one single pleading by either Anthony or Stephanie that indicated they

       had an actual and direct conflict over the relief being sought or the positions to be taken in

       seeking that relief. It was therefore an abuse of discretion for the trial court to have found that an

       actual and direct conflict existed between Anthony and Stephanie that required their counsel to

       be disqualified.

¶ 41          Similarly, disqualification under the “material limitation conflict” provision of Rule

       1.7(a)(2) requires a showing that “there is a significant risk that a lawyer’s ability to consider,

       recommend or carry out an appropriate course of action for the client will be materially limited

       as a result of the lawyer’s other responsibilities or interests.” Ill. R. Prof. Conduct 1.7(a)(2) cmt.

       8 (adopted Jan. 1, 2010). Where counsel represents two parties not in actual and direct conflict,

       the critical questions in determining the existence of a material limitation conflict are “the

       likelihood that a difference in interests will eventuate and, if it does, whether it will materially

       interfere with the lawyer’s independent professional judgment in considering alternatives or

       foreclose courses of action that reasonably should have been pursued on behalf of the client.” Id.

¶ 42          We have no indication that the trial court specifically considered Rule 1.7(a)(2), however,

       our review of the record reveals no facts that would support a finding that counsel was materially

       limited in their representation of both Anthony and Stephanie. There was nothing in the record to

       show that it was likely that their interests would ever diverge. There was nothing to support the

       speculation that Stephanie might decide to oppose Anthony in his quest for custody of his

       children. Likewise, Anthony had no reason to be concerned with a potential future conflict with


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       Stephanie since her involvement in the matter rested entirely on his designation of her as his

       choice for short-term guardian. Moreover, the record was void of any facts that would suggest

       that counsel’s independent professional judgment in representing either individual was limited.

       Simply stated, the trial court had no factual basis upon which to conclude that counsel violated

       Rule 1.7(a)(1) or (2) and its finding that a violation of the Rule required disqualification of

       counsel was an abuse of discretion.

¶ 43                                VI. Informed Consent Under Rule 1.7(b)

¶ 44          While we found no support in the record for the trial court’s finding that counsel violated

       Rule 1.7(a)(1) or (2) and the order disqualifying counsel was an abuse of discretion, we must

       take final note that, had the trial court considered Rule 1.7(b) which provides parameters under

       which counsel laboring under a conflict pursuant to Rule 1.7(a)(1) or (2) may nonetheless

       represent clients subject to either directly adverse or material limitations conflicts, provided the

       party’s give informed consent. The record does not allow us to conclude that Anthony and

       Stephanie gave informed consent to counsel representing both parties but such a finding is not

       necessary to our disposition of this matter. We note, however, that the absence of any discussion

       of informed consent further supports our finding that the trial court’s ruling disqualifying counsel

       was arbitrary and not supported by the record.

¶ 45                                            CONCLUSION

¶ 46          Accordingly, for the reasons set forth above, we reverse the order of the circuit court of

       Will County disqualifying attorneys Natalie Cappetta, Frederick Cappetta, and Gregory LaCost

       from representing Anthony Loader and Stephanie Loader in these proceedings. The matter is

       remanded to the circuit court for further proceedings consistent with this disposition.

¶ 47          Disqualification order reversed; cause remanded.


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