{ "id": 4305369, "name": "ELIZABETH A. MACKNIN, Petitioner, v. DAVID A. MACKNIN, Respondent-Appellee (Martin Markrack, Next Friend on Behalf of I.M., Subpoena Respondent-Appellant)", "name_abbreviation": "Macknin v. Macknin", "decision_date": "2010-09-23", "docket_number": "No. 2\u201410\u20140221", "first_page": "520", "last_page": "533", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 520" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "209 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461434 ], "year": 2004, "pin_cites": [ { "page": "271", "parenthetical": "we will not reach constitutional issues presented in a case if matter can be resolved on other grounds" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0264-01" ] }, { "cite": "388 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4284165 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "743" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0739-01" ] }, { "cite": "398 Ill. App. 3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4296261 ], "year": 2010, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/398/0098-01" ] }, { "cite": "246 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5389643 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "989" }, { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0979-01" ] }, { "cite": "177 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317129 ], "year": 1997, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0166-01" ] }, { "cite": "396 Ill. App. 3d 15", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4292883 ], "year": 2009, "pin_cites": [ { "page": "24", "parenthetical": "holding that a trial court can abuse its discretion where its ruling rests on an error of law" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0015-01" ] }, { "cite": "518 U.S. 81", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1730168 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "100" }, { "page": "414" }, { "page": "2047-48" } ], "opinion_index": 0, "case_paths": [ "/us/518/0081-01" ] }, { "cite": "116 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520583 ], "year": 1983, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/1043-01" ] }, { "cite": "174 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223612 ], "year": 1996, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0335-01" ] }, { "cite": "281 Ill. App. 3d 76", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150239 ], "year": 1996, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0076-01" ] }, { "cite": "150 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501652 ], "year": 1986, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0634-01" ] }, { "cite": "188 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536023 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "221" }, { "page": "221" }, { "page": "221" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0211-01" ] }, { "cite": "355 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598960 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "153" }, { "page": "152" }, { "page": "153-54" }, { "page": "153-54" }, { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0146-01" ] } ], "analysis": { "cardinality": 1125, "char_count": 30966, "ocr_confidence": 0.787, "pagerank": { "raw": 7.259244762335987e-08, "percentile": 0.4327570835210856 }, "sha256": "b6678b752bdc5f06e68cd601833d291131af2a5528e8cfe43645ba5ce14bf5a5", "simhash": "1:8c2fb5c249c8d455", "word_count": 5148 }, "last_updated": "2023-07-14T16:58:54.131587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELIZABETH A. MACKNIN, Petitioner, v. DAVID A. MACKNIN, Respondent-Appellee (Martin Markrack, Next Friend on Behalf of I.M., Subpoena Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nThis interlocutory appeal arises from the order of the circuit court of Lake County granting the motion of respondent, David A. Macknin, to disqualify attorney Stephen M. Komie from representing respondent\u2019s stepdaughter, I.M., the subpoena-respondent in an order of protection case brought against respondent by petitioner, Elizabeth A. Macknin, I.M.\u2019s natural mother. Petitioner initiated the order of protection case against respondent, her ex-husband, alleging that he had raped and sexually abused I.M. and was grooming E.M., the natural daughter from her marriage to respondent, for similar sexual abuse. After an emergency order of protection was entered with I.M. named as one of the parties, respondent issued a deposition subpoena to I.M. Martin Markrack, I.M.\u2019s natural father, hired Komie to represent I.M. at the deposition. Respondent\u2019s motion to disqualify alleged a conflict of interest in Komie representing I.M. and that, pursuant to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution of Marriage Act) (750 ILCS 5/506 (West 2008)) and article IX of the Supreme Court Rules (210 Ill. 2d R. 900 et seq.), I.M. may be represented only by independent court-appointed counsel. The trial court did not make a finding of a conflict of interest but disqualified Komie on the second ground alleged and appointed a Lake County representative for I.M. For the reasons that follow, we reverse.\nFACTS\nOn July 29, 2009, the trial court dissolved the marriage between respondent and petitioner in In re Marriage of Macknin, No. 08 \u2014 D\u2014 287. The Macknins have one biological child, E.M. Petitioner\u2019s daughter I.M. is from petitioner\u2019s previous marriage to Markrack, who filed this appeal as next friend on behalf of I.M. E.M. is now 7 years old and I.M. is 16 years old. The judgment of dissolution incorporated a joint parenting agreement previously entered into by the parties. The joint parenting agreement concerned the custody and care only of E.M. because I.M. was neither respondent\u2019s biological child nor his adopted child.\nOn August 12, 2009, petitioner filed a petition for an emergency order of protection (No. 09 \u2014 OP\u20141220). The order was entered and, as amended on November 12, 2009, remains in effect. The order of protection alleges, inter alia, that respondent had raped and sexually abused I.M. and was grooming E.M. for similar sexual abuse and that such abuse occurred during the course of the marriage between petitioner and respondent.\nOn September 2, 2009, petitioner filed an emergency petition to terminate or suspend visitation and to modify custody in the parties\u2019 dissolution action (No. 08 \u2014 D\u2014287). Respondent did not receive notice of this filing until October 1.\nOn October 1, respondent filed a motion to strike the verified petition for an order of protection, and the trial court subsequently ordered petitioner to file an amended petition. In the interim, the trial court appointed Patricia Kalal on October 5, to act solely as representative for E.M. in the dissolution proceeding, pursuant to section 506(a)(3) of the Dissolution of Marriage Act (750 ILCS 5/506(a)(3) (West 2008)). Kalal was not appointed to represent I.M.\nOn November 1, petitioner filed an amended emergency verified petition for an order of protection, attaching an affidavit in which I.M. alleged that respondent had sexually abused her while petitioner and respondent had been married. The affidavit had been prepared by one of petitioner\u2019s lawyers, Lydia Gross Kamerlink.\nOn or about November 9, respondent served I.M. with a subpoena duces tecum for deposition. Shortly thereafter, on November 17, Komie filed an appearance on behalf of I.M. in the order of protection case.\nOn December 3, respondent filed a motion to disqualify Komie from representing I.M. The disqualification motion recounted the facts and claimed on information and belief that Komie had been hired by petitioner, either directly or indirectly, to represent I.M., thereby creating a conflict between I.M.\u2019s interests and those of petitioner. Respondent argued that, pursuant to section 506 of the Dissolution of Marriage Act and article IX of the Supreme Court Rules (210 Ill. 2d R. 900 et seq.), any appointment of an attorney for I.M. must be made by the court because she is a minor. Although respondent did not cite which Rules of Professional Conduct apply to Komie\u2019s representation of I.M., respondent also argued that, because petitioner hired Komie to represent I.M., a conflict of interest required his disqualification pursuant to Rules 1.7 and 4.3 of the Rules of Professional Conduct (replaced by Ill. R. Prof. Conduct (2010) Rs. 1.7, 4.3 (eff. Jan. 1, 2010)). Respondent was concerned that petitioner would prejudice respondent and E.M. by controlling LM.\u2019s participation in the case.\nOn January 25, 2010, petitioner filed a response to the motion to disqualify, denying that Komie should be disqualified.\nOn February 8, 2010, I.M. filed a motion to strike and dismiss respondent\u2019s arguments or, in the alternative, for entry of a judgment on the pleadings pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 2008)), and presented the following arguments: (1) the motion to disqualify failed to allege any facts demonstrating a conflict pursuant to the Rules of Professional Conduct; (2) any citizen, no matter how old, is entitled to obtain a lawyer for any court proceeding; (3) as a victim of a crime, I.M. enjoys the benefits of the Illinois Crime Victims Bill of Rights guaranteed by the Illinois Constitution (Ill. Const. 1970, art. I, \u00a78.1); (4) respondent lacked standing to complain of any potential conflict between I.M. and her choice of counsel; and (5) she was not a party to the litigation, but a witness, and historically courts did not appoint counsel for witnesses. This motion did not reference Markrack.\nRespondent replied to the motion to strike or dismiss, arguing that it was improper to attack or respond to a disqualification motion with a motion to strike brought under section 2 \u2014 615 and that the motion to disqualify was not a \u201cpleading.\u201d\nAt the hearing to disqualify on February 18, 2010, respondent reiterated his allegation that petitioner had hired Komie. Komie denied the allegation and stated, after being directly questioned by the trial court, that Markrack signed the contract with Komie for his representation of I.M. in connection with the subpoena for deposition. The trial court asked Komie if Markrack was paying his fee or if anyone else was paying it, and Komie replied that it was his understanding that Markrack was paying it.\nLater in the proceedings, the following questioning took place:\n\u201cTHE COURT: So far Mr. Komie, and I asked him the question, and he is going to be held to it, and I will give you a chance to supplement your answer. So far Mr. Komie, you indicated he [Markrack] just walked into your office and you are unaware of any referral.\nGiven what Mrs. Gertler [respondent\u2019s counsel] said, do you have anything else to say about any contacts with this family or relationships that I should know about?\nMR. KOMIE: I have no relationship with Mr. Chez [petitioner\u2019s father].\nTHE COURT: How about [petitioner]?\nMR. KOMIE: I have met [petitioner].\nTHE COURT: Prior to Mr. [Markrack] coming in to see you?\nMR. KOMIE: I have met her on one occasion prior to that.\nTHE COURT: Describe the nature of that.\nMR. KOMIE: It was a social conversation.\nTHE COURT: Did she discuss any legal matters with you?\nMR. KOMIE: Not on that occasion.\nTHE COURT: Subsequent to that occasion, but prior to Mr. [Markrack] coming in to see you, did she?\nMR. KOMIE: There was a second meeting where she did talk about some things.\nTHE COURT: All right. Without going into the specific \u2014 so you had a meeting with her regarding legal issues prior to Mr. Markrak [szc] coming in to see you?\nMR. KOMIE: Yes, correct.\nTHE COURT: Are you asserting that those are covered by attorney-client privilege, the statements that she made?\nMR. KOMIE: Now, based on what I have learned from the ARDC\u2019s view of the rules that were just published in January, any time a potential client talks to you, everything they say is now covered by privilege. That\u2019s a new item which if you look at the commentary to the new rule, anyone that talks to you about anything that touches on a legal matter, it is now under privilege.\nTHE COURT: How much time passed between your meeting with [petitioner] and your meeting with [Markrack]?\nMR. KOMIE: Months.\u201d\nThe trial court rejected the argument that I.M.\u2019s rights were somehow defined by the Illinois Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2008)), as there was no indictment or criminal prosecution, the child was not named as a victim, and this was not a criminal proceeding. The court noted that it placed little weight on Rule 1.7 of the Rules of Professional Conduct, the conflict of interest general rule, even though it was \u201cconcerned first being told that the father of the child came in about representation\u201d and, upon more pointed questioning, \u201cfinding out that [petitioner] prior to that had [come] in and apparently had conversations regarding representation with Mr. Komie.\u201d Despite finding that this raised a legitimate concern, the court stated that it did not base its ruling on the apparent conversation between petitioner and Komie.\nThe court noted that section 506 of the Dissolution of Marriage Act concerns proceedings involving the support, custody, visitation, education, parentage, property interest, or general welfare of a minor child and that a court may appoint a representative for a minor on its own motion. The court stated that it understood that I.M. was not the subject of a child custody case, but the proceedings involved a minor who needed protection. The court found a nexus between section 506 of the Dissolution of Marriage Act, regarding the general welfare of a minor, and Supreme Court Rule 900(b)(2) (210 Ill. 2d R. 900(b)(2)), which indicates that article IX applies to those actions that fall under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2008)), the act under which the order of protection is governed. Reading the \u201c900 Series together with [section] 506,\u201d the court held that section 506 had been violated because, pursuant to Supreme Court Rule 907 (210 Ill. 2d R. 907), a child representative must be appointed by the court, and the attorney for the minor must adhere to all ethical rules. The court concluded:\n\u201cSo for those reasons, and somewhat of a concern *** towards the appearance of a potential conflict of interest regarding [Rule] 1.7, but mainly because *** Mr. Komie was not appointed by this Court, the motion to disqualify Mr. Komie is granted.\u201d\nThe court then appointed Thomas Gurewitz as child representative for I.M., finding that, although Komie \u201cdoes in fact have the necessary training and experience to act as a child representative, *** he is not recognized as such in Lake County.\u201d\nOn March 3, 2010, Komie filed an interlocutory appeal on behalf of Markrack, as next friend of I.M., \u201cSubpoena Respondent,\u201d from the February 18, 2010, order disqualifying Komie. On March 4, 2010, Komie filed, on behalf of Markrack, a \u201cSubpoena-Respondent\u2019s\u201d petition for leave to appeal, pursuant to Illinois Supreme Court Rules 306(a)(5) and (a)(7) (eff. Feb. 26, 2010).\nOn March 26, respondent filed a motion to dismiss the appeal for want of appellate jurisdiction. We denied respondent\u2019s motion and granted the leave to appeal.\nANALYSIS\nJurisdiction\nBefore addressing the merits of the appeal, we need to deal with several preliminary issues. First, in his appellate brief, respondent renews the motion to dismiss the appeal for lack of jurisdiction, which we previously denied. Respondent submits that, even if we continue to adhere to our decision, \u201ca decision will serve to clarify what exactly is the jurisdictional grounds for this appeal.\u201d\nI.M.\u2019s statement of jurisdiction states that this court\u2019s jurisdiction is pursuant to either Illinois Supreme Court Rule 306(a)(5) or 306(a)(7) (eff. Feb. 26, 2010). Rule 306(a)(7) provides that a \u201cparty\u201d may petition for leave to appeal to the appellate court \u201cfrom an order of the circuit court granting a motion to disqualify the attorney for any party.\u201d Official Reports Advance Sheet No. 6 (March 24, 2010), R. 306(a)(7), eff. February 26, 2010.\nRespondent contends, as he did in the motion to dismiss the appeal, that I.M. is not a \u201cparty\u201d within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so restrictively. The rule does not designate that a \u201cparty\u201d must be a plaintiff, defendant, or third party to the action in order to petition for leave to appeal. Rather, the rule simply provides that a \u201cparty\u201d may petition for leave to appeal from an order granting a motion to disqualify \u201cthe attorney for any party.\u201d Ill. S. Ct. R. 306(a)(7) (eff. Feb. 26, 2010). I.M., as a protected person under an order of protection, is a \u201cparty\u201d to that proceeding. I.M. is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction under Rule 306(a)(7).\nMootness\nNext, respondent contends that the appeal should be dismissed on grounds of mootness. On June 10, 2010, I.M. filed an appellant\u2019s brief. On June 21, 2010, respondent filed a combined motion that included, inter alia, a motion to dismiss the appeal as moot. On June 25, 2010, I.M. filed an answer and objections to the combined motion. On July 13, we entered an order denying the relief requested. However, respondent had filed his appellate brief before we entered the order denying the relief requested. Respondent\u2019s contention of mootness was based on the then-pending combined motion, which has since been denied. Thus, we need not address this issue.\nWe observe that respondent references the combined motion in his appellate argument and attaches the motion to the appendix of his appellate brief. I.M. filed a motion, which we have taken with the case, to strike those portions of respondent\u2019s appendix that have never been filed in the trial court and are not part of the record on appeal. The attached exhibits are dehors the record and respondent has not been granted leave to supplement the record pursuant to Supreme Court Rule 342(a)(3) (210 Ill. 2d R. 342(a)(3)). Accordingly, the motion to strike is granted.\nRespondent\u2019s Standing\nWe next address I.M.\u2019s contention that respondent lacks standing to complain of her choice of counsel. I.M. asserts that respondent is neither her father nor her blood relative and that, because he is a \u201clegal stranger\u201d to her, he has no legal say in any choices she might make. I.M. relies on In re Marriage of Nienhouse, 355 Ill. App. 3d 146 (2004), to support her argument.\nIn Nienhouse, during the pendency of the divorce proceeding, the petitioner gave birth to a child. The respondent filed a petition for establishment of nonpaternity, after which an order of nonpaternity was entered. Nearly four years after entry of the nonpaternity order, the respondent filed a motion to vacate the order of nonpaternity. The respondent also filed a motion for sibling visitation between the parties\u2019 child and the petitioner\u2019s child. The trial court denied both of the respondent\u2019s motions and, subsequently, entered the judgment of dissolution, which incorporated the prior order reflecting the parties\u2019 agreement to sibling visitation between the parties\u2019 child and the petitioner\u2019s child. On appeal, the respondent raised the argument that the trial court\u2019s failure to appoint a guardian ad litem (GAL) for the petitioner\u2019s child and make a best interest determination with respect to the respondent\u2019s petition to establish nonpaternity deprived the child of her due process rights. The appellate court found that the respondent lacked standing to raise the issue. Nienhouse, 355 Ill. App. 3d at 153.\nThe court initially commented that the respondent failed to explain why he had standing to assert the minor\u2019s rights where he was not her father or legal guardian. Nienhouse, 355 Ill. App. 3d at 152. Noting the law that a party has standing to bring a constitutional challenge only if the party is able to show himself to be within the class aggrieved by the alleged unconstitutionality, the court explained that the respondent\u2019s right to due process was not at issue; rather, he attempted to argue on behalf of the child\u2019s best interest. The court concluded that the respondent could not act in such a capacity, because he was neither her father nor her legal guardian and thus had no standing to raise a constitutional issue on appeal. Nienhouse, 355 Ill. App. 3d at 153-54.\n\u201cThe doctrine of standing is designed to preclude persons who have no interest in a controversy from bringing [a law]suit.\u201d Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999). \u201cThe doctrine ensures that issues are only raised by those with a real interest in the outcome of the controversy.\u201d Glisson, 188 Ill. 2d at 221. Standing requires some injury in fact to a legally cognizable interest. Glisson, 188 Ill. 2d at 221. \u201cThe claimed injury may be actual or threatened, and it must be[:] (1) distinct and palpable; (2) fairly traceable to the defendant\u2019s actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief.\u201d Glisson, 188 Ill. 2d at 221.\nRespondent does not address the validity of his standing to bring the motion to disqualify I.M.\u2019s counsel. An appellee\u2019s failure to respond to an argument raised in the appellant\u2019s brief may constitute a concession. See Vukusich v. Comprehensive Accounting Corp., 150 Ill. App. 3d 634, 644 (1986). Respondent\u2019s failure to respond notwithstanding, we believe he does have standing to bring a motion to disqualify counsel, unlike the respondent in Nienhouse.\nIn Nienhouse, the respondent attempted to assert a legal right or claim on behalf of the minor\u2019s best interest, but he was unrelated to her and therefore was not able to show that he was within the class aggrieved by the alleged unconstitutionality. Nienhouse, 355 Ill. App. 3d at 153-54. Here, however, respondent does not seek a legal right or claim on behalf of I.M.\u2019s best interest. Rather, respondent seeks to disqualify Komie for an alleged harm to himself. I.M., not respondent, is the party who is asserting that she has the right to counsel of her choice. Because respondent alleged a conflict of interest that could prejudice him by allowing petitioner to control LM.\u2019s participation in the case through Komie\u2019s representation of I.M., he would receive the benefits if his action were successful. Accordingly, we find that respondent has standing.\nMarkrack\u2019s Standing\nNext, respondent claims that Markrack does not have legal standing to sue, because Markrack never filed an appearance before the trial court. We find that respondent has forfeited this argument on appeal. \u201cLack of standing is an affirmative defense and is [forfeited] if not raised at the trial court level.\u201d In re Guardianship of Mabry, 281 Ill. App. 3d 76, 82 (1996). Respondent knew at the hearing on the motion to disqualify that Markrack had hired Komie on behalf of I.M., and respondent did not object to Markrack\u2019s lack of standing then.\nRegardless of respondent\u2019s failure to object, \u201c[t]he essence of the inquiry regarding standing is whether the litigant, either in an individual or representative capacity, is entitled to have the court decide the merits of a dispute or a particular issue.\u201d In re Estate of Wellman, 174 Ill. 2d 335, 345 (1996). Respondent cannot maintain that LM.\u2019s father, as next friend, is not entitled to have the court decide the merits of the dispute on behalf of his daughter, and it would serve no purpose to remand for Markrack to refile an appearance to add his name to the caption.\nDisqualification\nHaving determined that respondent has standing, we now turn to the merits of the appeal. I.M. contends that the trial court erred by granting respondent\u2019s motion to remove Komie from representing her during the order of protection proceedings. As stated, while the trial court mentioned that it was concerned with a possible conflict of interest, it did not rule on that issue. Rather, in granting the motion to disqualify, the trial court relied solely on article IX of the Supreme Court Rules and section 506 of the Dissolution of Marriage Act in concluding that an attorney for a child must be appointed by the court. I.M. asserts that this is an issue of first impression and that the trial court had no basis to disqualify Komie pursuant to article IX or section 506. We agree.\nAs to the appropriate standard of review, \u201ca motion to disqualify is addressed to the sound discretion of the trial court, and its determination will not be disturbed absent a showing of abuse of that discretion.\u201d Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 116 Ill. App. 3d 1043, 1053 (1983). I.M. maintains that, because the trial court based its decision solely on a misapplication of law rather than any particular factual findings, our review is de novo.\n\u201cLittle turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. [Citation.] A district court by definition abuses its discretion when it makes an error of law. [Citation.] That a departure decision, in an occasional case, may call for a legal determination does not mean, as a consequence, that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. [Citation.] The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.\u201d Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 414, 116 S. Ct. 2035, 2047-48 (1996).\nSee also Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (2009) (holding that a trial court can abuse its discretion where its ruling rests on an error of law).\n\u201cAttorney disqualification is a drastic measure because it destroys the attorney-client relationship by prohibiting a party from representation by counsel of his or her choosing.\u201d Schwartz v. Cortelloni, 177 Ill. 2d 166, 178 (1997), citing SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 989 (1993). Courts place the heavy burden on the movant to prove the grounds for the disqualification in order to ensure that the motion is not being brought as a tactical weapon to gain undue advantage in the litigation. SK Handtool, 246 Ill. App. 3d at 989.\nBecause the trial court relied on section 506 of the Dissolution of Marriage Act and article IX of the Supreme Court Rules to remove Komie as LM.\u2019s counsel, their scope and application are at issue. \u201cWe interpret supreme court rules in the same manner as statutes, applying the cardinal rule of construction in which we ascertain and give effect to the intent of the drafter, using the plain and ordinary language of the rule.\u201d People v. Calabrese, 398 Ill. App. 3d 98, 120 (2010). When the statute\u2019s language is clear, it must be applied as written without resort to aids or tools of interpretation. Skarin Custom Homes, Inc. v. Ross, 388 Ill. App. 3d 739, 743 (2009). The construction of a statute is a question of law, to which we apply de novo review. Skarin Custom Homes, 388 Ill. App. 3d at 743.\nSection 506 of the Dissolution of Marriage Act provides, in relevant part:\n\u201c(a) Duties. In any proceedings involving the support, custody, visitation, education, parentage, property interest, or general welfare of a minor or dependent child, the court may on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates:\n(1) Attorney. The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.\n* \u2756 *\n(a \u2014 3) Additional appointments. During the proceedings the court may appoint an additional attorney to serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the capacities described *** on the court\u2019s own motion or that of a party only for good cause shown and when the reasons for the additional appointment are set forth in specific findings.\u201d 750 ILCS 5/506 (West 2008).\nSection 506 of the Dissolution of Marriage Act involves proceedings concerning the support, custody, visitation, education, parentage, property interest, or general welfare of a minor or dependent child. Generally, in those cases involving contested disputes, where there is an indication of a potential conflict between the child\u2019s interests and a parent\u2019s interests, a court has an obligation to appoint a GAL or child representative. See, e.g., Nienhouse, 355 Ill. App. 3d at 152. Here, however, there is no dispute involving LM.\u2019s custody, visitation, education, parentage, property interest, or general welfare under the Dissolution of Marriage Act. Further, there is no real conflict between I.M. and a parent in the proceeding, as I.M. and her mother share the goal of restricting contact between I.M. and respondent, who is not I.M.\u2019s parent. Beyond that, there is no express statutory requirement that a trial court appoint a GAL or child representative in every domestic violence proceeding. See 750 ILCS 5/506(a) (West 2008) (\u201cthe court may *** appoint an attorney\u201d).\nSupreme Court Rule 900 provides, in relevant part:\n\u201c(a) Purpose. Trial courts have a special responsibility in cases involving the care and custody of children. When a child is a ward of the court, the physical and emotional well-being of the child is literally the business of the court. The purpose of this article (Rules 900 et seq.) is to expedite cases affecting the custody of a child, to ensure the coordination of custody matters filed under different statutory Acts, and to focus child custody proceedings on the best interests of the child, while protecting the rights of other parties to the proceedings.\n(b)(1) Definitions. For the purposes of this article \u2018child custody proceeding\u2019 means an action affecting child custody or visitation.\n(b)(2) Part A. Scope. Rules 900 through 920, except as stated therein, apply to all child custody proceedings initiated under article II, III, or IV of the Juvenile Court Act of 1987, the Illinois Marriage and Dissolution of Marriage Act, the Uniform Child Custody Jurisdiction and Enforcement Act, the Illinois Parentage Act of 1984, and the Illinois Domestic Violence Act of 1986 and article 112A of the Code of Criminal Procedure of 1963, and guardianship matters involving a minor under article XI of the Probate Act of 1975.\u201d (Emphasis added.) 210 Ill. 2d Rs. 900(a), (b)(1), (b)(2).\nThe committee comments to the rule state:\n\u201cRule 900 emphasizes the importance of child custody proceedings and highlights the purpose of the rules that follow, which is to ensure that child custody proceedings are expeditious, child-focused and fair to all parties.\n* * *\nParagraph (b)(1) defines \u2018Child custody proceeding\u2019 broadly for the purposes of the rules. The broad definition is important, because the need to expedite custody decisions applies to all types of custody cases and coordination of custody cases is essential.\u201d 210 Ill. 2d R. 900, Committee Comments, at 359.\nAs stated, the order of protection action is governed by the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2008)). While Rule 900(b)(2), in conjunction with Supreme Court Rule 906 (210 Ill. 2d R. 906 (rule promulgated to ensure that counsel who are appointed by the court to participate in child custody and visitation matters, as delineated in Rule 900(b)(2), possess certain professional attributes)), applies to attorney appointments made pursuant to an action under the Domestic Violence Act, it is implemented only when a minor is in an action affecting his or her custody or visitation. The Domestic Violence Act, upon which the trial court found a nexus, contains no requirement to appoint a GAL or representative for a minor in an order of protection case.\nThus, because respondent does not have custody of I.M. and she is not involved in any custody or visitation matter, article IX is inapplicable to I.M. Article IX is not a vehicle to appoint counsel. Rather, it represents a minimum standard or guideline when the trial court does appoint counsel for a minor who is involved in a custody dispute, so that the custody matter is expedited. Accordingly, we find that the trial court abused its discretion by exceeding its authority and disqualifying Komie pursuant to section 506 of the Dissolution of Marriage Act and article IX of the Supreme Court Rules, and we reverse the order of the trial court.\nRight to Counsel\nIn light of our decision, we need not reach LM.\u2019s contention that she is entitled to counsel of her choice based on the crime victims amendment set forth in article I, section 8.1, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a78.1(a)(4)) and the Rights of Crime Victims and Witnesses Act (725 ILCS 120/4(a)(9) (West 2008)), or the argument that the trial court\u2019s order impermissibly interfered with both her and her father\u2019s constitutional right to choose counsel. See Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004) (we will not reach constitutional issues presented in a case if matter can be resolved on other grounds).\nConflict of Interest\nAlthough respondent alleged that a conflict existed because petitioner paid for Komie to represent I.M., the trial court never ruled on the issue and respondent never submitted any evidence of payment in the trial court. Even so, we note the comment to the Illinois Rules of Professional Conduct of 2010, which states that \u201c[a] lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer\u2019s duty of loyalty or independent judgment to the client.\u201d Ill. R. Prof. Conduct (2010) R. 1.7, Comment (eff. Jan. 1, 2010).\nCONCLUSION\nFor the preceding reasons, we reverse the judgment of the circuit court of Lake County.\nReversed.\nO\u2019MALLEY and SCHOSTOK, JJ., concur.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Stephen M. Komie and Brian E. King, both of Komie & Associates, of Chicago, for appellant.", "Marvin J. Leavitt, David C. Adams, and Amy L. Gertler, all of Grand & Leavitt, EC., of Highland Park, for appellee." ], "corrections": "", "head_matter": "ELIZABETH A. MACKNIN, Petitioner, v. DAVID A. MACKNIN, Respondent-Appellee (Martin Markrack, Next Friend on Behalf of I.M., Subpoena Respondent-Appellant).\nSecond District\nNo. 2\u201410\u20140221\nOpinion filed September 23, 2010.\nStephen M. Komie and Brian E. King, both of Komie & Associates, of Chicago, for appellant.\nMarvin J. Leavitt, David C. Adams, and Amy L. Gertler, all of Grand & Leavitt, EC., of Highland Park, for appellee." }, "file_name": "0520-01", "first_page_order": 536, "last_page_order": 549 }