{ "id": 3777565, "name": "MARGARET GAGLIARDO, Indiv. and as Mother of Michael E. Gagliardo, a Minor, and Catherine C. Gagliardo, a Minor, Plaintiff-Appellee, v. PAULETTE CAFFREY, a/k/a Paulette Gagliardo, f/k/a Paulette Carioto, Indiv. and as: Ex'r of the Estate of Michael F. Gagliardo, Deceased; Trustee of the Michael F. Gagliardo Revocable Trust; Trustee of the Michael Gagliardo 1990 Special Trust; General Partner of 829 Troy partnership, f/k/a 829 L.L.C.; General Partner of Custom 730 North Albany partnership, f/k/a Custom 730 North Albany L.L.C.; General Partner of World Cuisine partnership, f/k/a World Cuisine L.L.C.; President and Director of Eagle Packing Company; President and Director of Columbus Transportation Inc.; and President and Director of CFC, Inc., d/b/a Columbus Foods Company, Defendant-Appellant", "name_abbreviation": "Gagliardo v. Caffrey", "decision_date": "2003-11-07", "docket_number": "No. 1-02-3381", "first_page": "219", "last_page": "231", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 219" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "700 N.E.2d 768", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "relevant question is not whether actual confidences were disclosed but \"whether such confidences could be revealed, whether intentionally or inadvertently\"" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221522 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "129", "parenthetical": "relevant question is not whether actual confidences were disclosed but \"whether such confidences could be revealed, whether intentionally or inadvertently\"" }, { "page": "129", "parenthetical": "nature and scope of representations \"inextricably tied\" where present dispute concerned mutations of same issues and parties" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0118-01" ] }, { "cite": "440 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "attorney liability extends to intended third-party beneficiaries of attorney-client relationship" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096980 ], "year": 1982, "pin_cites": [ { "page": "20-21", "parenthetical": "attorney liability extends to intended third-party beneficiaries of attorney-client relationship" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0013-01" ] }, { "cite": "633 N.E.2d 1267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "estate attorney has no duty to beneficiary due to \"potentially adversarial relationship\" between estate's and beneficiary's interests" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373106 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "763", "parenthetical": "estate attorney has no duty to beneficiary due to \"potentially adversarial relationship\" between estate's and beneficiary's interests" }, { "page": "761", "parenthetical": "representation involving nonadversarial matters makes third-party beneficiary status easier to establish" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0750-01" ] }, { "cite": "512 N.E.2d 1276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "fiduciary relationship exists between attorney for executor and beneficiaries" } ], "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612642 ], "year": 1987, "pin_cites": [ { "page": "825", "parenthetical": "fiduciary relationship exists between attorney for executor and beneficiaries" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0818-01" ] }, { "cite": "686 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725133 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "919" }, { "page": "922" }, { "page": "919" }, { "page": "919" }, { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0914-01" ] }, { "cite": "722 N.E.2d 248", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349645 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "441" }, { "page": "438, 441" }, { "page": "441" }, { "page": "441" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0435-01" ] }, { "cite": "703 F.2d 252", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1851502 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/f2d/703/0252-01" ] }, { "cite": "452 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520583 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1054" }, { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/1043-01" ] }, { "cite": "689 F.2d 715", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1469868 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "721" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/f2d/689/0715-01" ] }, { "cite": "726 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411723 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "399" }, { "page": "400" }, { "page": "400" }, { "page": "400" }, { "page": "403", "parenthetical": "several year duration between representations did not negate inference of communication of confidential information" }, { "page": "403", "parenthetical": "party seeking disqualification not required to reveal what exact information was disclosed or how it related to present claim" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0394-01" ] }, { "cite": "685 N.E.2d 871", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317129 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "176" }, { "page": "176" }, { "page": "176" }, { "page": "177-78" }, { "page": "178" }, { "page": "178" }, { "page": "177-78" }, { "page": "183", "parenthetical": "nearly 40-year gap between representations concerning unrelated matters did not justify attorney disqualification" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0166-01" ] } ], "analysis": { "cardinality": 1018, "char_count": 29483, "ocr_confidence": 0.763, "pagerank": { "raw": 1.1763269355948815e-07, "percentile": 0.5875998948201228 }, "sha256": "492b78f755ad08272b9a0eedf7ce0b35ae3a9e7957d58b55063bf313de510213", "simhash": "1:a3b29c366205d455", "word_count": 4595 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARGARET GAGLIARDO, Indiv. and as Mother of Michael E. Gagliardo, a Minor, and Catherine C. Gagliardo, a Minor, Plaintiff-Appellee, v. PAULETTE CAFFREY, a/k/a Paulette Gagliardo, f/k/a Paulette Carioto, Indiv. and as: Ex\u2019r of the Estate of Michael F. Gagliardo, Deceased; Trustee of the Michael F. Gagliardo Revocable Trust; Trustee of the Michael Gagliardo 1990 Special Trust; General Partner of 829 Troy partnership, f/k/a 829 L.L.C.; General Partner of Custom 730 North Albany partnership, f/k/a Custom 730 North Albany L.L.C.; General Partner of World Cuisine partnership, f/k/a World Cuisine L.L.C.; President and Director of Eagle Packing Company; President and Director of Columbus Transportation Inc.; and President and Director of CFC, Inc., d/b/a Columbus Foods Company, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SMITH\ndelivered the opinion of the court:\nThis 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.\nINTRODUCTION\nUpon Michael\u2019s death in May 2001, his sister, defendant Paulette Caffrey, became the sole trustee of a revocable trust that was the sole beneficiary of Michael\u2019s estate. Paulette was also appointed independent executor of Michael\u2019s estate. Michael\u2019s wife, plaintiff Margaret Gagliardo, and their two minor children, plaintiffs Michael E. Gagli-ardo and Catherine C. Gagliardo (the children), are the sole beneficiaries of the revocable trust.\nAfter 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\u2019s representation of Michael\u2019s estate. The circuit court granted the motion and disqualified Matern from representing Paulette individually.\nPursuant 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\u2019s representation of Paulette individually. For the reasons that follow, we affirm the order disqualifying counsel.\nBACKGROUND\nMichael F. Gagliardo Estate\nThe following are undisputed facts concerning the underlying action, which involves Michael\u2019s complex estate.\nMichael 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\u2019s death, Paulette has acted as president of CFG.\nMichael 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\u2019s and Paulette\u2019s 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.\nMichael 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\u2019s special trust (holding 23% of CFG). Upon Michael\u2019s death, Paulette became trustee of Michael\u2019s revocable trust, whose beneficiaries are Margaret and the children; Paulette also continued as trustee of Michael\u2019s special trust, whose beneficiaries are the children.\nMichael 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.\nAttorney Matern wrote a letter at Paulette\u2019s 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: \u201cI represent Paulette Gagliardo personally and I am also special counsel to the Estate of Michael E Gagliardo.\u201d The letter referenced a meeting the following day, which Matern, on the behalf of \u201cmy client the Estate,\u201d authorized that attorney to attend. It also informed him that \u201cneither my client the Estate nor Paulette\u201d would authorize any further investigation expenditure.\nIn 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\u2019s death. In that letter, Matern stated that his firm represented Paulette in her capacity as executor of the estate.\nChancery Action\nThe underlying action began with Margaret\u2019s July 30, 2002, filing of the verified complaint. The complaint centers upon Paulette\u2019s alleged improper \u201cattempt to purchase for herself a substantial portion of the Gagliardo family businesses\u201d from the estate and her further attempt to force the sale at an \u201cartificially low price.\u201d The allegations are based upon a May 2002 letter drafted by Steven Wolf, one of Ma-tern\u2019s partners (in the firm Wolf, Moskowitz, Holland & Matern), announcing Paulette\u2019s 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\u2019s 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.\nThe same day, Margaret also filed an \u201cemergency motion for temporary restraining order and preliminary injunction and motion for appointment of an interim trustee,\u201d which was based on the same allegations as the complaint and sought to prohibit Paulette from selling any estate assets.\nOn 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.\nIn 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 \u201cessentially breach\u201d the investigation agreement to Paulette\u2019s 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.\nThe following day, Matern filed an appearance for Paulette in her individual capacity. Another attorney subsequently filed an appearance for Paulette as executor of Michael\u2019s estate.\nMatern responded to the motion to disqualify, denying that he currently represented the estate or ever had an attorney-client relationship with Margaret. In the response, Matern admitted that he represented the estate for a limited time and summarized various duties he performed during that representation. In addition to drafting the two letters to the investigating attorney, Matern also evaluated \u201cthe appropriateness of the bills\u201d from the investigating law firm, determined \u201cwhether and to what extent the Estate should pay the costs and attorneys\u2019 fees,\u201d met with the investigating attorney, and discussed further proceedings with his partner.\nMatern supported his response with his own affidavit, in which he characterized his representation of the estate as limited. Matern stated that he reviewed bills from and sent correspondence to the investigating law firm on the estate\u2019s behalf and he attended a meeting with the investigating attorney. Matern further admitted that his partner \u201chad three time entries in the first week of August [2002] on behalf of the Estate,\u201d but denied that his law firm acted on Paulette\u2019s behalf \u201cin her capacity as executor of the estate\u201d since August 7, 2002.\nFollowing a hearing, the trial court entered an order on October 11, 2002, granting Margaret\u2019s motion. Paulette timely filed a petition for leave to appeal the order pursuant to Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)), which this court allowed.\nDISCUSSION\nStandard of Review\nThe grant of a motion to disqualify counsel is within the sound discretion of the trial court and such decision will not be disturbed on review absent an abuse of discretion. Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871 (1997); Franzoni v. Hart Schaffner & Marx, 312 Ill. App. 3d 394, 399, 726 N.E.2d 719 (2000). An abuse of discretion occurs where no reasonable person would agree with the position taken by the trial court. Schwartz, 177 Ill. 2d at 176.\nPaulette acknowledges the abuse of discretion standard applied by our supreme court in Schwartz but asserts that it is unclear whether such standard applies in the instant case. Rather, Paulette urges us to review this issue de novo because the trial court considered only affidavits and other documentary evidence when it ruled on the motion to disqualify counsel. Paulette relies primarily upon one Seventh Circuit case, Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982), which she admits is not controlling. Specifically, she cites the following from Freeman:\n\u201cPreliminarily, it is important to note the limits of the scope of review by which we are guided. All evidence in the case at bar comes via affidavits. The district court neither held an evidentiary hearing on the disqualification motion nor did it make findings of fact to which we must defer. Under similar circumstances, we have stated and we now reaffirm that district courts enjoy no particular advantage over appellate courts in their formulation of ethical norms.\u201d Freeman, 689 F.2d at 721.\nPaulette asserts the lack of \u201coral testimony requiring any credibility determinations\u201d at the hearing on the motion to disqualify Matern amounts to a \u201cprocedural posture\u201d of this case similar to that in Freeman. Paulette concludes that de novo review would be appropriate here because the trial court allegedly was in no better position than this court would be to apply the law in ruling on the motion. See Freeman, 689 F.2d at 721.\nHowever, this court has previously considered and rejected this exact argument. Where the plaintiffs in an earlier disqualification case also sought a less deferential standard of review and relied upon the very language from Freeman cited by Paulette, this court stated, \u201c[t]he above-quoted language [from Freeman] *** does not stand for the proposition *** that the standard of review is different because the evidence was presented by way of affidavit.\u201d Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 116 Ill. App. 3d 1043, 1054, 452 N.E.2d 804 (1983). In rejecting the argument, this court noted that abuse of discretion remained the standard of review applied by the Seventh Circuit in cases where all evidence was presented through affidavits. Skokie Gold Standard Liquors, Inc., 116 Ill. App. 3d at 1054, citing LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983).\nMoreover, the trial court necessarily considered questions about the scope of Matern\u2019s representation of the estate and the potential detriment to the estate from Matern\u2019s representation of Paulette when it ruled on the motion. Despite Paulette\u2019s attempt to cast the issue before us as a question of law, factual determinations were necessarily made in resolving such questions. Therefore, we decline Paulette\u2019s invitation to do otherwise and apply an abuse of discretion standard on review. See Schwartz, 177 Ill. 2d at 176.\nDisqualification of Counsel\nDisqualification of counsel based on former representation is governed by Rule 1.9 of the Illinois Rules of Professional Conduct. 134 Ill. 2d R. 1.9. Specifically, the rule prohibits an attorney who has formerly represented a client in a matter from later representing \u201canother person in the same or a substantially related matter in which that person\u2019s interests are materially adverse to the interests of the former client, unless the former client consents after disclosure.\u201d 134 Ill. 2d R. 1.9(a)(1).\nThe party seeking disqualification first must prove the existence of the former attorney-client relationship. Franzoni, 312 Ill. App. 3d at 400. That party must then establish that the former and present representations are substantially related. Schwartz, 177 Ill. 2d at 177-78; Franzoni, 312 Ill. App. 3d at 400.\nTo make a determination concerning the alleged substantial relationship between the former and present representations, the trial court conducts a three-part inquiry: (1) the court first makes a factual reconstruction of the scope of the former representation; (2) the court next determines whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters; and (3) the court considers whether the information is relevant to the issues raised in the litigation pending against the former client. Schwartz, 177 Ill. 2d at 178 (adopting three-part test set forth in LaSalle National Bank, 703 F.2d at 256). In each of the three levels of inquiry, deference must be given to the trial court\u2019s determinations. Schwartz, 177 Ill. 2d at 178.\nIn the instant case, the court\u2019s disqualification order did not set forth the court\u2019s reasoning, making implicit the findings of the existence of an attorney-client relationship and a substantial relationship between the prior representation of the estate and the representation of Paulette individually. Although Paulette characterizes the attorney-client relationship as between Matern and her (Paulette) as executor of the estate rather than the estate itself, our review of the record establishes that Matern in fact represented the estate.\nIn his affidavit, Matern admitted such relationship, which he detailed under the heading \u201cTHE LIMITED NATURE OF MY REPRESENTATION OF THE ESTATE.\u201d Matern stated that, at some time after the end of April 2002, he became aware of an investigation into Michael\u2019s death being conducted by another law firm which purported to represent the estate. Matern admitted that, on the estate\u2019s behalf, he reviewed the bills from that law firm, wrote two letters to that firm and attended a meeting with an attorney from that firm.\nIn the affidavit, Matern also referred to his representation of Paulette as executor in the alternative (\u201cMy representation of the Estate, or Paulette in her capacity as executor of the Estate\u201d), but he made additional statements further admitting he represented the estate: \u201c[M]y representation of the Estate was focused on *** [the] demand for fees for itself of several attorneys in Canada who were also purportedly working on the Investigation.\u201d Moreover, in at least the first of the two letters Matern wrote on the estate\u2019s behalf, he repeatedly referred to the estate, as distinct from Paulette, as his client. Although Matern characterized his representation of the estate as having been of a \u201climited nature,\u201d for at least several months in 2002, an attorney-client relationship existed between Matern and the estate.\nWhile admitting he was an attorney for the estate, however, Ma-tern denied he ever had an attorney-client relationship with Margaret. Given Matern\u2019s admitted relationship with the estate, we must determine what relationship, then, existed between Matern as estate attorney and Margaret, as estate beneficiary.\nPaulette contends that Margaret failed to establish the existence of an attorney-client relationship, arguing that Margaret\u2019s status as an estate beneficiary did not make her (Margaret) a client of Matern. Paulette relies primarily upon two cases, In re Estate of Vail, 309 Ill. App. 3d 435, 722 N.E.2d 248 (1999), and In re Estate of Kirk, 292 Ill. App. 3d 914, 686 N.E.2d 1246 (1997), for the proposition that an attorney for the executor of an estate does not have an attorney-client relationship with a beneficiary of the estate. She further argues that an attorney for the executor is precluded from an attorney-client relationship with the beneficiaries because there is inherent adversity between the executor and the beneficiaries. Paulette also admits that Margaret would have the right to bring a legal malpractice action against Matern based on her status, as estate beneficiary, as an intended third-party beneficiary of Matern\u2019s legal counsel. She argues that, nonetheless, such right does not create an attorney-client relationship between Margaret and Matern.\nPaulette correctly notes that this court has held, in certain circumstances, that the attorney for the executor of an estate does not have an attorney-client relationship with the estate beneficiaries. In re Estate of Vail, 309 Ill. App. 3d at 441; In re Estate of Kirk, 292 Ill. App. 3d at 919. Those circumstances, however, involved challenges to the estate by the beneficiaries.\nIn Kirk, the estate heirs sought to remove the attorney for the bank-estate executor (which was also guardian of the estate of the decedent\u2019s minor children) based on an alleged violation of fiduciary duty to the beneficiaries by representing the bank in actions concerning the guardianship. There, the court affirmed the denial of disqualification and noted that the attorney\u2019s client was the bank-executor, and the executor and its attorney had the sole obligation of upholding the decedent\u2019s wishes as expressed in the will. The court \u201cdecline[d] to hold that a conflict of interest arises between an individual heir and the executor\u2019s attorney merely because the heir\u2019s wishes are contrary to the terms of the decedent\u2019s will.\u201d In re Estate of Kirk, 292 Ill. App. 3d at 922.\nThe court articulated the principle that the beneficiaries of an estate are intended to benefit from the estate and are owed a fiduciary duty by the executor to act with due care to protect their interests. In re Estate of Kirk, 292 Ill. App. 3d at 919. They are not, however, owed allegiance by the estate attorney, who does not have an attorney-client relationship with the beneficiaries and whose \u201cfirst and only allegiance\u201d is to the estate in such adversarial situations. In re Estate of Kirk, 292 Ill. App. 3d at 919.\nIn Vail, a residuary legatee was joined by other heirs in a contest of the will and trusts; the bank-estate executor, which was also trustee of the trusts, was represented by the same law firm as executor and trustee in the will and trust contests. In re Estate of Vail, 309 Ill. App. 3d at 438, 441. There, the court held that the estate has a duty to defend a will contest and may employ an attorney for that purpose. In re Estate of Vail, 309 Ill. App. 3d at 441. The court acknowledged that the estate\u2019s attorney must act with due care and protect the beneficiaries\u2019 interests, but held that, in such an adversarial situation, the attorney for the executor does not have an attorney-client relationship with the beneficiaries. In re Estate of Vail, 309 Ill. App. 3d at 441.\nHere, however, the adversarial situation does not involve a defense of Michael\u2019s estate from a beneficiary\u2019s challenge. Margaret, the sole beneficiary, does not contest the terms of either Michael\u2019s will or revocable trust. Thus, the situation in the case at bar is unlike that in Kirk or Vail, because there is no challenge here to the will or trusts or actions taken to comply with Michael\u2019s testamentary wishes. In those cases, the interests of the executor, or the estate, diverged from those of at least some beneficiaries. Here, however, Margaret is the sole party intended to benefit from the estate. Therefore, Margaret\u2019s interests are, for all practical purposes, coextensive with those of the estate: her interests are aligned with the estate, not against it.\nThe adversarial situation here arose instead from a divergence of the estate\u2019s interests, which cannot be delineated from those of the sole beneficiary, and the interests of one of the Gagliardo family businesses, namely CFG. In fact, at least as far as the investigation costs are concerned, the interests of the estate and CFG are in direct opposition: if the estate rather than CFG was caused to bear those costs, CFG would benefit at the estate\u2019s detriment. Because Paulette has a substantial interest in CFG, she too would benefit by shifting the investigation costs to the estate. Therefore, the conflict alleged is between the estate and the executor, whose individual interests would benefit from an action detrimental to the estate.\nAgain, it is established that Matern acted as attorney for the estate. Even if he acted in such capacity for a limited time, Matern owed a fiduciary duty to the estate and its sole beneficiary, Margaret. See In re Estate of Halas, 159 Ill. App. 3d 818, 825, 512 N.E.2d 1276 (1987) (fiduciary relationship exists between attorney for executor and beneficiaries); but see Jewish Hospital of St. Louis, Missouri v. Boatmen\u2019s National Bank of Belleville, 261 Ill. App. 3d 750, 763, 633 N.E.2d 1267 (1994) (estate attorney has no duty to beneficiary due to \u201cpotentially adversarial relationship\u201d between estate\u2019s and beneficiary\u2019s interests). We need not distinguish Margaret\u2019s status as estate beneficiary from that of an intended third-party beneficiary. See, e.g., Pelham v. Griesheimer, 92 Ill. 2d 13, 20-21, 440 N.E.2d 96 (1982) (attorney liability extends to intended third-party beneficiaries of attorney-client relationship). As Paulette notes in her reply brief, questions concerning alleged breaches of fiduciary duty by her or Ma-tern are irrelevant to this appeal and will be decided by the trial court. Here, the point is that Margaret did not challenge the estate, so there is no adversity between her interests and the estate\u2019s interests.\nBecause representation of the estate essentially means representation of its sole beneficiary, Margaret, under the narrow circumstances of this case, we conclude that, for the time Matern represented the estate, he represented Margaret. We acknowledge that, under the distinguishable circumstances discussed earlier, estate beneficiaries were held not to have an attorney-client relationship with the attorney for the executor of the estate. See In re Estate of Vail, 309 Ill. App. 3d at 441; In re Estate of Kirk, 292 Ill. App. 3d at 919. There, the attorneys defended the estate from beneficiaries, whereas here, Ma-tern represented the estate in matters concerning payment and evaluation of investigation costs. See, e.g., Jewish Hospital, 261 Ill. App. 3d at 761 (representation involving nonadversarial matters makes third-party beneficiary status easier to establish). Thus, in such representation, Matern in effect represented Margaret.\nAgain, the conflict alleged here in the chancery action is not between a beneficiary and the estate but, rather, between the executor Paulette, whose business interests in CFG are divergent from the estate\u2019s interest, and the estate and its sole beneficiary, Margaret. Because Matern owed a fiduciary duty to the estate, he could not, without conflict, represent Paulette, with her substantial interest in CFG. Under these particular circumstances, then, we cannot say the trial court abused its discretion by implicitly finding the existence of an attorney-client relationship between Matern and the sole estate beneficiary, Margaret.\nWe must then consider whether the trial court properly found a substantial relationship between Matern\u2019s former representation of the estate and his representation of Paulette individually in the chancery action. See Schwartz, 177 Ill. 2d at 177-78; Franzoni, 312 Ill. App. 3d at 400. Accordingly, we first consider a factual reconstruction of the scope of the former representation. Paulette makes much of the alleged limited nature of Matern\u2019s representation, arguing that Ma-tern represented the estate for a little over two months and only as to the \u201climited issue of the appropriateness of the services provided and costs being charged\u201d for the investigation. However, neither the short duration nor the purportedly limited nature of the representation diminishes the fact that Matern was involved with matters crucial to the estate.\nPaulette concedes that Matern reviewed the legal bills and wrote the two letters. Moreover, at least one of Matern\u2019s partners also represented the estate. That partner, Wolf, drafted Paulette\u2019s letter announcing her intention to purchase estate assets, yet he also represented the estate in some capacity even after Margaret filed her complaint. Whatever the precise dates of Matern\u2019s representation of the estate were, he and his firm were intimately involved in matters that are the subject of the pending litigation. See Franzoni, 312 Ill. App. 3d at 403 (several year duration between representations did not negate inference of communication of confidential information); see also Schwartz, 177 Ill. 2d at 183 (nearly 40-year gap between representations concerning unrelated matters did not justify attorney disqualification).\nNext, we consider whether it was reasonable to inf\u00e9r that confidential information allegedly given concerning the estate would have been given to Matern, and whether that information would be directly relevant to Matern\u2019s representation of Paulette individually. Matern\u2019s involvement with the estate, albeit of limited duration, concerned the payment of legal fees for the investigation, or, in other words, financial matters. In such capacity, it would, then, be reasonable to infer that Matern was given other information concerning estate finances in addition to the fees sought by the investigating law firm. It would be reasonable to infer also that an attorney charged with estate finances would have an overview of the estate\u2019s value and the various assets it contained. Paulette responds that the assets and liabilities of an estate are a matter of public record, and that facts concerning the alleged investigation agreement would be known to her in her capacity as president of CFG. She concludes that no confidential information was communicated to Matern in his representation of the estate.\nHowever, Margaret was not required to prove that confidential information was communicated, but merely that it could have been. See Franzoni, 312 Ill. App. 3d at 403 (party seeking disqualification not required to reveal what exact information was disclosed or how it related to present claim); Hasco, Inc. v. Roche, 299 Ill. App. 3d 118, 129, 700 N.E.2d 768 (1998) (relevant question is not whether actual confidences were disclosed but \u201cwhether such confidences could be revealed, whether intentionally or inadvertently\u201d). Such information could reasonably include, for example, the valuations of various estate assets. It is clear that such information would be directly relevant to Matern\u2019s representation of Paulette individually.\n' Moreover, given the intertwining nature of the claims and Paulette\u2019s admittedly \u201cconflicting capacities,\u201d it is reasonable to infer that information, which was pertinent to one particular matter, would later become relevant to another, related matter. See Hasco, 299 Ill. App. 3d at 129 (nature and scope of representations \u201cinextricably tied\u201d where present dispute concerned mutations of same issues and parties). Therefore, the trial court did not abuse its discretion in determining that there was a substantial relationship between Matern\u2019s former representation of the estate and his representation of Paulette in her individual capacity.\nCONCLUSION\nFor the reasons stated, the trial court properly granted Margaret\u2019s motion to disqualify Matern from representing Paulette individually. Accordingly, we affirm the judgment of the circuit court.\nAffirmed.\nTULLY and GALLAGHER, JJ., concur.\nFor purposes of this appeal, we will refer to Margaret, who is acting on the children\u2019s behalf, in the singular, as the sole beneficiary.", "type": "majority", "author": "JUSTICE SMITH" } ], "attorneys": [ "Kevin B. Salam, of Kevin B. Salam, EC., of Chicago, for appellant.", "Kubasiak, Fylstra, Reizen & Rotunno, EC. (John C. Anderson, of counsel), and Kevin M. Forde, Ltd., both of Chicago, for appellee." ], "corrections": "", "head_matter": "MARGARET GAGLIARDO, Indiv. and as Mother of Michael E. Gagliardo, a Minor, and Catherine C. Gagliardo, a Minor, Plaintiff-Appellee, v. PAULETTE CAFFREY, a/k/a Paulette Gagliardo, f/k/a Paulette Carioto, Indiv. and as: Ex\u2019r of the Estate of Michael F. Gagliardo, Deceased; Trustee of the Michael F. Gagliardo Revocable Trust; Trustee of the Michael Gagliardo 1990 Special Trust; General Partner of 829 Troy partnership, f/k/a 829 L.L.C.; General Partner of Custom 730 North Albany partnership, f/k/a Custom 730 North Albany L.L.C.; General Partner of World Cuisine partnership, f/k/a World Cuisine L.L.C.; President and Director of Eagle Packing Company; President and Director of Columbus Transportation Inc.; and President and Director of CFC, Inc., d/b/a Columbus Foods Company, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1-02-3381\nOpinion filed November 7, 2003.\nKevin B. Salam, of Kevin B. Salam, EC., of Chicago, for appellant.\nKubasiak, Fylstra, Reizen & Rotunno, EC. (John C. Anderson, of counsel), and Kevin M. Forde, Ltd., both of Chicago, for appellee." }, "file_name": "0219-01", "first_page_order": 237, "last_page_order": 249 }