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Muellman-Cohen v. Brak9/19/2005
Plaintiff, Lisa K. Muellman-Cohen, brings this interlocutory appeal from the trial court order disqualifying her attorney, Felipe N. Gomez. We vacate the trial court's order and remand with directions.
Plaintiff filed a personal injury action against defendants, Brian Brak, Theresa Brak and Brak Realty, Inc., to recover from injuries she allegedly sustained by falling outside defendants' home. As part of discovery, defendants served plaintiff with an interrogatory that asked her to provide the name and address of all persons who were present immediately before, during or immediately after the accident. Plaintiff's response included the name and address of her attorney, Gomez, who plaintiff said drove her to the emergency room.
Defendants moved to disqualify Gomez from representing plaintiff under Rule 3.7(a) of the Rules of Professional Conduct (134 Ill. 2d R. 3.7(a)). That rule reads: "A lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client, except [under certain circumstances]." 134 Ill. 2d R. 3.7(a). Defendants argued Gomez is a post-occurrence witness to plaintiff's accident and would be called by the defense to testify. A hearing was held on defendants' motion, at the end of which the trial court entered an order disqualifying Gomez.
We allowed plaintiff's petition for leave to appeal under Supreme Court Rule 306(a)(7) (Official Reports Advance Sheet No. 26 (December 24, 2003), R. 306(a)(7), eff. January 1, 2004). We review the trial court's ruling for an abuse of discretion. See Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871 (1997) (decision to disqualify attorney is directed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion).
Defendants argue plaintiff's appeal fails under Foutch v. O'Bryant, 99 Ill. 2d 389, 459 N.E.2d 958 (1984), because plaintiff has not provided a record sufficient for this court to review the trial court's ruling. Defendants explain there was no court reporter at the hearing on defendants' motion to disqualify and, consequently, no transcript of that hearing. Nor did the trial court's written order specify the grounds on which it relied to grant defendants' motion and disqualify Gomez as plaintiff's attorney. Defendants maintain that, without such records of the proceedings below, we must affirm the trial court's order under the rule announced in Foutch. Under Foutch, an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error. Foutch, 99 Ill. 2d at 391-92. In the absence of such a record on appeal, it will be presumed that the order entered by the trial court conformed with the law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92. Doubts that arise from the incompleteness of the record will be resolved against the appellant. Foutch, 99 Ill. 2d at 392.
Although plaintiff here properly filed a supporting record under Rule 328 (155 Ill. 2d R. 328), we do not know whether plaintiff could have provided a more complete record here. The substantive issue we are asked to decide is whether Rule 3.7(a) of the Rules of Professional Conduct applies to disqualify Gomez from representing plaintiff on the ground that he drove plaintiff to the emergency room immediately after the accident occurred. The obstacle presented by the record, as it has been submitted to us, is this: We have no way of knowing whether the trial court relied on Rule 3.7(a) in granting defendants' motion to disqualify. Whether this failure is a failure of plaintiff t
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