In re Estate of M.L.

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

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

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

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

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

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

¶ 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

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:

(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).

¶ 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

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.

¶ 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

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

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

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

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

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.