Gagliardo v. Caffrey

800 N.E.2d 489, 344 Ill. App. 3d 219, 279 Ill. Dec. 421, 2003 Ill. App. LEXIS 1348
CourtAppellate Court of Illinois
DecidedNovember 7, 2003
Docket1-02-3381
StatusPublished
Cited by22 cases

This text of 800 N.E.2d 489 (Gagliardo v. Caffrey) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gagliardo v. Caffrey, 800 N.E.2d 489, 344 Ill. App. 3d 219, 279 Ill. Dec. 421, 2003 Ill. App. LEXIS 1348 (Ill. Ct. App. 2003).

Opinion

JUSTICE SMITH

delivered the opinion of the court:

This case involves an appeal from the grant of a motion to disqualify counsel (see 166 Ill. 2d R. 306(a)(7)) in an action for equitable relief in matters relating to the estate of decedent Michael E Gagliardo.

INTRODUCTION

Upon Michael’s death in May 2001, his sister, defendant Paulette Caffrey, became the sole trustee of a revocable trust that was the sole beneficiary of Michael’s estate. Paulette was also appointed independent executor of Michael’s estate. Michael’s wife, plaintiff Margaret Gagliardo, and their two minor children, plaintiffs Michael E. Gagliardo and Catherine C. Gagliardo (the children), are the sole beneficiaries of the revocable trust. 1

After certain actions by Paulette, Margaret brought the underlying" action for injunction, removal of trustee, accounting, and other equitable relief, naming Paulette in various capacities including as trustee, as executor, and individually. Paulette was represented in her individual capacity by attorney Christopher Matern. Margaret filed a motion to disqualify counsel, based on Matern’s representation of Michael’s estate. The circuit court granted the motion and disqualified Matern from representing Paulette individually.

Pursuant to Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)), Paulette petitioned this court for leave to appeal the disqualification, which was allowed. On appeal, Paulette contends the court improperly disqualified Matern because Margaret failed to establish either the existence of an attorney-client relationship between herself and Matern, or that such representation was substantially related to Matern’s representation of Paulette individually. For the reasons that follow, we affirm the order disqualifying counsel.

BACKGROUND

Michael F. Gagliardo Estate

The following are undisputed facts concerning the underlying action, which involves Michael’s complex estate.

Michael and Paulette worked for and owned equal interests in various Gagliardo family businesses. Of the numerous family businesses, the main one is a cooking oil packaging company, CFG, Inc., d/b/a Columbus Foods Company (CFG). Other businesses include related operating companies and real estate concerns. After Michael’s death, Paulette has acted as president of CFG.

Michael and Paulette each controlled about one half (47.5%) of CFG, for a total of 95% between them, while their mother, Connie Gagliardo, controls 5% of CFG. Both Michael’s and Paulette’s 47.5% shares of CFG were divided again into two nearly equal shares, so that both Michael and Paulette would control approximately two quarter-shares of CFG each: a 24.5% share was held in a revocable trust and a 23% share was held in a special trust.

Michael and Paulette had complementary estate plans. Both of them were trustees of their own revocable trusts (holding 24.5% of CFG), with the other named as successor trustee; they were also trustees of the other’s special trust (holding 23% of CFG). Upon Michael’s death, Paulette became trustee of Michael’s revocable trust, whose beneficiaries are Margaret and the children; Paulette also continued as trustee of Michael’s special trust, whose beneficiaries are the children.

Michael died in an accident while participating in an automobile race in Toronto, Ontario. The car Michael was driving was owned or leased by CFG. According to Margaret: after the accident, she and Paulette, on behalf of CFG, made an agreement (investigation agreement) to hire attorneys to investigate a potential wrongful death claim; according to their agreement, CFG would pay for the investigation and be reimbursed its costs in the event of a recovery; and CFG in fact did pay investigation costs from mid-2001 until May 2002.

Attorney Matern wrote a letter at Paulette’s request to respond to a June 26, 2002, letter from one of the investigating attorneys. In the letter, Matern identified himself as counsel for both Paulette and the estate: “I represent Paulette Gagliardo personally and I am also special counsel to the Estate of Michael E Gagliardo.” The letter referenced a meeting the following day, which Matern, on the behalf of “my client the Estate,” authorized that attorney to attend. It also informed him that “neither my client the Estate nor Paulette” would authorize any further investigation expenditure.

In July 2002, Matern wrote a second letter to the same attorney in which he referred to correspondence from another investigating law firm that sought instruction regarding a Canadian inquest into Michael’s death. In that letter, Matern stated that his firm represented Paulette in her capacity as executor of the estate.

Chancery Action

The underlying action began with Margaret’s July 30, 2002, filing of the verified complaint. The complaint centers upon Paulette’s alleged improper “attempt to purchase for herself a substantial portion of the Gagliardo family businesses” from the estate and her further attempt to force the sale at an “artificially low price.” The allegations are based upon a May 2002 letter drafted by Steven Wolf, one of Ma-tern’s partners (in the firm Wolf, Moskowitz, Holland & Matern), announcing Paulette’s intent to purchase interests in the various family businesses from the estate. In the complaint, Margaret alleges that Paulette breached her fiduciary duty as trustee in numerous ways; the proposed transactions between the estate and Paulette demonstrate a serious conflict of interest between Paulette’s individual interests and her interests as trustee or executor; and the appraised values offered by Paulette for the business interests were improperly calculated and grossly inaccurate. The complaint names Paulette as a defendant also in her capacity as president of CFG.

The same day, Margaret also filed an “emergency motion for temporary restraining order and preliminary injunction and motion for appointment of an interim trustee,” which was based on the same allegations as the complaint and sought to prohibit Paulette from selling any estate assets.

On August 14, 2002, Margaret filed a motion to disqualify Matern and his law firm from representing Paulette individually. The motion was based upon Rules 1.7 and 1.9 of the Illinois Rules of Professional Conduct prohibiting an attorney from representing one client whose interests are adverse to another client or those of a former client. See 134 Ill. 2d Rs. 1.7, 1.9. Issues raised on appeal relate to disqualification under Rule 1.9 only. See 134 Ill. 2d R. 1.9.

In the motion, Margaret alleged that Matern currently represented the estate as well as Paulette individually and he had previously represented CFG and other Gagliardo family businesses. Margaret alleged that Matern advised Paulette to “essentially breach” the investigation agreement to Paulette’s benefit and cause the estate to incur great, unnecessary expenses. Margaret supported the motion with copies of the two letters from Matern to the investigating attorney and her own affidavit.

The following day, Matern filed an appearance for Paulette in her individual capacity.

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Cite This Page — Counsel Stack

Bluebook (online)
800 N.E.2d 489, 344 Ill. App. 3d 219, 279 Ill. Dec. 421, 2003 Ill. App. LEXIS 1348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gagliardo-v-caffrey-illappct-2003.