dissenting:
The court’s description of Champion’s duties as attorney for Stone, the former trustee, in litigation adverse to the trust seems somewhat less than adequate. The opinion of the Appellate Court was based solely on his role in that litigation, and the circumstances are fully set forth in that opinion. (Stone v. Baldwin, 348 Ill. App. 225.) His duties as an attorney hostile to the trust involved other and far more significant matters than the preparation of a trustee’s final account and request for compensation, which are the only matters mentioned in the court’s opinion.
In June of 1949, the present appellees, granddaughters of Fannie G. Baldwin, the settlor, filed their petition praying for the removal of Stone as trustee. Champion filed his appearance for Stone on June 17, 1949, and on the same day Stone resigned as trustee. The matter of Stone’s accounting to the court for his administration of the trust was the subject of almost continuous litigation in the circuit court until July 31, 1951, when the trial court entered an order approving Stone’s final report and awarding him $10,923.75 additional fees as trustee. Upon appeal by the appellee beneficiaries, the Appellate Court has held that Stone should be surcharged for one third of $165,404.80. Whether that amount should be increased is still under consideration in the Appellate Court.
The amount in dispute in that litigation is substantial and the proceedings are highly adverse to the trust and its beneficiaries, including the appellees in this case. These appellees and their minor children now own 91 per cent of the beneficial interest in the trust, computed on an actuarial basis, and the amount of their interest will constantly increase as their aunt, the other beneficiar}', advances in age.
During the most critical part of this litigation, appellant was Stone’s attorney and owed and still owes Stone the highest degree of loyalty. Appellant was Stone’s own choice as trustee. He continued to serve as Stone’s attorney in the trial and Appellate courts until after he was appointed cotrustee by the trial court.
Thus, strong legal and moral ties secure appellant’s loyalty to Stone in a subject matter vitally affecting the trust itself and at the same time Stone’s position with reference to the same subject matter is directly adverse to the appellee beneficiaries. Under such circumstances, there is no justification for choosing appellant, out of all those available, to act as trustee.
Apart from the consideration which would normally be accorded to the interests of the beneficiaries of a trust, Canon 6 of the Canons of Professional Ethics squarely prohibits Champion’s appointment. It provides: “The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” Canons of Professional Ethics of the American Bar Association, 2 Martindale-Hubbell Legal Directory, p. 83A.
Mr. Justice Hershey concurs in the foregoing dissenting opinion.