author: JUSTICE WELCH

text:
      In re MARRIAGE OF LINDA DEPEW, Petitioner-Appellee, and BALLARD DEPEW, Respondent-Appellant.
    Fifth District
    No. 5 — 92—0211
    Opinion filed July 9, 1993.
    Alan C. Downen, of McLeansboro, for appellant.
    John W. Sanders, of Sanders & Sanders, of Marion, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Ballard Depew (hereinafter respondent) appeals from the June 18, 1991, and February 26, 1992, orders of the circuit court of Williamson County. Because we find that the June 18, 1991, order finding contempt was not final and appealable, we hold that this court is without jurisdiction to hear this appeal and remand the case to the circuit court. For instructive purposes only,, we will set forth the factual background and legal reasoning behind our decision that we are without jurisdiction in the instant case.

The record indicates that the marriage of respondent and Linda Depew (hereinafter petitioner) was dissolved by the circuit court of Williamson County on June 28, 1990. Pursuant to the judgment of dissolution, respondent was granted custody of the two minor children: Cindy, then age 16, and Shawn, then age 13. The record further indicates that the proceedings leading up to the judgment of dissolution were highly acrimonious, that temporary custody had been awarded to respondent, and that there were numerous problems with enforcing the temporary visitation which was awarded to petitioner. The judgment of dissolution provided in pertinent part that petitioner was entitled to visitation with Shawn every other weekend and that petitioner was to pick her son up for visitation on those weekends from respondent’s home on Fridays at 5:15 p.m. Finally, the record indicates that petitioner filed a petition to modify certain visitation provisions contained in the judgment of dissolution in September 1990, when she decided to move from Williamson County, Illinois, to the Cincinnati, Ohio, area.

Petitioner also filed a petition for rule to show cause on November 19, 1990. At this time, the petition to modify was contested by respondent and had not yet been ruled upon by the court. The petition for rule to show cause alleged that Shawn visited petitioner on the weekend of September 21 through 23, but that when petitioner arrived at respondent’s home to pick up Shawn for the next visitation weekend on October 5, 1990, Shawn refused to leave with her for visitation. Petitioner also alleged that she returned to respondent’s home on October 6, 1990, but the minor son, Shawn, again refused to accompany her for visitation. Petitioner alleged that respondent was present at his home at said time and discouraged Shawn from going with petitioner for visitation. Moreover, the petition alleged, Shawn informed petitioner that he would not be available for visitation during his Thanksgiving school holiday, although the judgment of dissolution provided that petitioner was entitled to visitation with Shawn for one-half of the Thanksgiving holiday. Petitioner also alleged in the petition for rule to show cause that respondent violated the judgment of dissolution in that he failed to inform petitioner of two separate hospitalizations of the minor daughter Cindy until one to two days after the fact, and that he did not inform petitioner about the treatment or care given to Cindy during her hospitalizations. Finally, petitioner alleged that respondent violated the judgment of dissolution in that he failed to provide petitioner with a copy of the school schedule for the minor children and failed to reimburse petitioner for $200 in medical bills. In her prayer for relief, petitioner asked that a rule to show cause be entered as to why respondent should not be held in contempt for violating the June 28, 1990, judgment of dissolution. A rule to show cause was entered by the court on February 7, 1991, and counsel for petitioner filed an affidavit for attorney fees on March 7,1991.

The petition to modify visitation and the rule to show cause were heard on March 7, 1991. Petitioner testified that she was requesting modification of the visitation schedule to one three- or four-day weekend per month based on the school holidays which Shawn would have each month, because of the distance she had to travel from Cincinnati for visitation. She moved to Cincinnati to be closer to her mother and sister and because of a job opportunity. Petitioner stated that she filed the petition for rule to show cause on November 19, 1990, because Shawn had refused to go on scheduled visitation with her on the weekend of October 5, 1990, and had told her he would not go on visitation during the coming Thanksgiving holiday. She did not know if respondent was home when she attempted to pick her son up on October 5, but she did see respondent at the home when she again attempted to pick up Shawn the next day. Shawn told her that he was not going and that his father had told him that he did not have to go.

Petitioner stated that visitation periods in July, August, and September 1990 had gone well and that Shawn appeared to enjoy himself unless he spoke with his father on the phone. Since moving to Cincinnati, however, petitioner has not been able to exercise her visitation with Shawn. Petitioner has spoken with respondent about arrangements for visitation, after she filed the petition to modify and testified that respondent had told her that it was none of her business, that he was not going to talk with her about it, and that he was not going to make Shawn go. She testified that when she is speaking with Shawn on the phone, she has heard respondent in the background telling Shawn, “you don’t have to go,” “tell her you don’t have to go,” and “tell her it’s none of her business.”

Shawn Depew testified that he would be 15 years old on March 27, 1991, and is a freshman in high school. Shawn testified that he had problems with the proposed modification to visitation with his mother because he wants to get a job during the summer and believes that 10 weeks of visitation is too long. In the fall he wants to play football and go deer hunting on the weekends and does not want to miss school activities or meetings. Shawn also feels that the trip to Cincinnati is too long and stated that he does not know anybody in Cincinnati. Shawn stated that visitation with his mother was not too bad when she was living in Marion, Illinois.

Shawn did recall an incident which occurred in the summer of 1990 when petitioner grabbed his shoulders and started shaking him when Shawn told her he wanted to call his father. Shawn testified that when he told his mother he was going to go over to his aunt’s house to call his father, she slapped him and told him he was going nowhere. Shawn left the house anyway and called his father.

Shawn testified that he refused to go with his mother for the existing visitation schedule on two or three occasions because there - were other things he needed to do. Shawn stated that his father told him that he should go visit his mother on the weekends whenever he is supposed to go. He has spoken to his father’s lawyer about this problem and was told that his father could be put in jail for failure to obey the court’s order. Shawn said he would not want to see that happen but stated that his father did not have anything to do with it.

Shawn stated that this year he and his father and Cindy had already planned to go to his aunt and uncle’s house in Kentucky for spring break, and so he did not want to go for visitation with his mother. He also admitted that he did not visit with his mother for Christmas or Thanksgiving. The last time Shawn visited with his mother was in October when she took him to St. Louis for one night.

Respondent testified that he did not recall seeing petitioner on either October 5 or 6 when she came to his home to pick Shawn up for visitation. Prior to the time petitioner came to the house, respondent spoke with Shawn regarding visitation with petitioner. Shawn told respondent that he did not want to go for the weekend with his mother, and respondent testified that he advised Shawn that it was important for him to keep the relationship with his mother going and that he should go and visit with her. Shawn got belligerent and again stated that he did not want to go. At no time did respondent tell Shawn that he did not have to go or that he should not go on visitation with petitioner.

Respondent testified that he had a conversation with Shawn about the family’s plans for Thanksgiving during the weekend before the holiday. Respondent told Shawn that he was going to have Thanksgiving dinner with his fiancee and her children. Shawn told respondent that he could not be a part of that because he had to go to Cincinnati. Later in the week Shawn decided that he did not want to go to Cincinnati and would rather be at home, and respondent testified that he told Shawn that he was obligated to spend Thanksgiving with his mother. Shawn told his father that it did not matter because he was not going. Respondent testified that he has gotten into shouting matches with Shawn about visitation before but “backs off” when Shawn winds up crying. Respondent did not speak with petitioner about visitation during the weekend of October 5 or prior to the scheduled Thanksgiving visitation.

Respondent testified that the reason Shawn is not going with his mother for visitation is because it is “his choice.” Respondent denied telling petitioner that it was Shawn’s choice and that he did not have to go. He leaves the arrangements for visitation to petitioner and Shawn.

Respondent believes that he cannot make Shawn go on visitation but admitted that he could “make” Shawn do his homework and that he would teach Shawn not to take drugs or go out drinking. He also stated that he would force Shawn to go to school even if Shawn refused to do so. Respondent believes that it is Shawn’s choice to go but denied that either he or his attorney has ever told Shawn that it was Shawn’s choice whether he goes with his mother for visitation. He stated that several other people had told Shawn it was his choice to go. He did tell Shawn that he had a choice to make and that he has to pay the penalty behind the choice he makes. Respondent admitted that on a prior occasion he had been before a judge who had told him that Shawn had to go on visitation.

Respondent testified that on June 10, 1990, the police had to assist Shawn to go with petitioner for visitation because he did not want to go. The officers served respondent with a court order to relinquish custody. Respondent told the officers that he was not holding the boy against his will, that it was Shawn’s choice, and that he was free to go. Shawn refused to go with the officers, and respondent told them that it looked like they were going to have to arrest Shawn. The officers forcibly placed Shawn in the police car and took Shawn to the courthouse where he was met by petitioner. Shawn ran away from petitioner that same night but completed his visitation with petitioner later that week. Respondent admitted that petitioner did not get to see the children for visitation on either the Labor Day or Columbus Day holidays in 1990.

Petitioner called attorney Jean Dibble to testify as to the reasonableness of the $1,720 in attorney fees claimed by counsel for petitioner. Respondent objected to the testimony because the petition for rule to show cause did not include a request for attorney fees to be paid by respondent in the prayer for relief. The court took the matter of entitlement to attorney fees under advisement but allowed petitioner to present evidence as to the reasonableness of the fees claimed.

Attorney Dibble testified that she has practiced in Illinois for seven years concentrating in the areas of domestic relations and collections and has handled matters pertaining to visitation problems and petitions for rule to show cause. She is familiar with the hourly rate for attorney fees charged by other attorneys in the local area and opined that $80 per hour for out-of-court time and $100 per hour for in-court time is reasonable. She has reviewed the affidavit for attorney fees filed by counsel for petitioner and the bill for services rendered to petitioner and opined that the time spent by counsel on the matter was reasonable.

The trial court entered an order on June 18, 1991, finding that respondent willfully refused to obey the June 28, 1990, judgment of dissolution of marriage and ordered that respondent is in contempt of court for willfully refusing to obey the judgment of dissolution. The court further stated:

“It is not the child’s choice to go on visitation or not, the custodial parent is under order to see that a scheduled visitation occurs. It is contemptuous to suggest as Mr. Depew did that compliance by the son is a matter of choice.”

The court further ordered that a hearing be held to determine reasonableness of fees claimed due petitioner. Respondent filed a motion to vacate on July 17,1991.

The trial court heard the motion to vacate and petitioner’s motion for attorney fees on August 21, 1991. The court noted that because attorney fees were not pled in the petition for rule to show cause it would rehear the matter of attorney fees. Attorney Dibble again testified as to the reasonableness of the fees charged by counsel for petitioner and reviewed the revised fee statement forwarded to petitioner on August 21, 1991. Dibble opined that the $1,720 in fees for prosecuting the petition for rule to show cause and the $620 in fees charged for subsequent defense of the contempt order were reasonable.

Respondent stated in his motion to vacate that the order finding contempt was not valid because it did not set forth the previous order violated, the specific act or acts for which respondent is being held in contempt, and the grounds supporting the finding of contempt. Moreover, respondent noted, the order finding contempt does not state whether respondent is in indirect civil contempt or indirect criminal contempt. Respondent argued that he cannot be held in indirect civil contempt because the acts complained of are already passed and he has no means to purge himself of contempt, nor does the order set forth the means by which the respondent may purge himself of contempt, as is required of a civil contempt order. Thus, respondent concludes, the contempt order must be for indirect criminal contempt, and if so, respondent has been deprived of his due process rights because the burden was on respondent at the hearing to show cause why he should not be held in contempt, the court did not advise him that he had a right not to testify based on the privilege of self-incrimination, and respondent was not advised that he was entitled to have the charges in the petition proved beyond a reasonable doubt. Respondent also argued that he could not be found in either indirect civil or criminal contempt because there was no testimony at the hearing that respondent’s conduct was willful.

The court noted at the hearing on the motion to vacate that it did not believe at the time of the hearing on the order to show cause that it was dealing with indirect criminal contempt. The court also noted that petitioner had asked the court to order respondent jailed but the court did not consider that remedy because its intention at the time was merely to make respondent aware of the potential seriousness of his conduct in suggesting to his son that he could refuse to go along on visitation as long as it was Shawn’s idea and not his own.

The court found in its February 26, 1992, order that respondent was determined to be in contempt of court for willfully refusing to obey the June 28, 1990, judgment of dissolution of marriage, that respondent had the opportunity to file a response to the rule to show cause, and was given notice of the hearing, that a hearing was conducted on the rule to show cause, and that respondent was well represented by counsel at the hearing. The court determined that $1,000 is a fair and reasonable amount of attorney fees to be reimbursed to petitioner pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508). The court denied the motion to vacate and ordered respondent to pay $1,000 to petitioner for reimbursement of her attorney fees within 30 days.

On appeal respondent challenges the legal sufficiency of the order finding contempt and argues that the court’s finding that respondent was in willful contempt was against the manifest weight of the evidence. Respondent also maintains that the order finding contempt could only have been for criminal contempt because the attorney fees awarded were in punishment for past acts and the order did not provide respondent with the means to purge his contempt, as a civil contempt order would have required.

Civil contempt is coercive in nature rather than punitive; the finding of civil contempt results from failure to do something which the court has ordered for the benefit or advantage of another party to the proceeding, and the court acts to compel the contemnor to obey the order for the benefit of that other party. (Pryweller v. Pryweller (1991), 218 Ill. App. 3d 619, 628, 579 N.E.2d 432, 439.) In civil contempt proceedings, the contemnor must have the opportunity to purge the contempt, i.e., be provided with the “keys to his cell” even after he has been imprisoned, and must also have the power to comply with the order. (Pryweller, 218 Ill. App. 3d at 633, 579 N.E.2d at 442.) In contrast, criminal contempt is an act committed against the majesty of the law in disrespect of the court or its process, and the court acts to preserve its dignity by punishing the wrongdoer. (Pryweller, 218 Ill. App. 3d at 629, 579 N.E.2d at 439.) Criminal contempt sanctions are imposed for the purpose of punishing past misconduct. (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 43, 558 N.E.2d 404, 415.) The test for determining whether contempt proceedings are criminal or civil in nature is the dominant purpose for which sanctions are imposed, and any incidental results or benefits of imposing the sanctions are of no consequence in making this determination. Betts, 200 Ill. App. 3d at 47, 558 N.E.2d at 418.

Although respondent characterizes the attorney fees award as “punishment” and argues accordingly that the June 18, 1991, order found criminal contempt, the February 26, 1992, order clearly states that the $1,000 in attorney fees were awarded to petitioner pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508), and not as a remedy requested by petitioner in the petition for rule to show cause or as a sanction imposed by the court. We must therefore conclude that the trial court failed to impose any sanction in the instant case, and thus we have no vehicle for determining whether the finding of contempt was civil or criminal.

Moreover, a contempt order is not appealable until the trial court imposes a sanction. (In re Marriage of Ruchula (1991), 208 Ill. App. 3d 971, 977, 567 N.E.2d 725, 729.) Because no sanction was here imposed by the trial court, we hold that the June 18, 1991, order was not final and appealable under Supreme Court Rule 301 (134 Ill. 2d R. 301) and that this appeal must be dismissed.

Appeal dismissed.

GOLDENHERSH and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    BOARD OF EDUCATION OF DU PAGE HIGH SCHOOL DISTRICT No. 88, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    First District (2nd Division)
    No. 1 — 91—2801
    Opinion filed December 29, 1992.
    Modified on denial of rehearing April 27, 1993.

      Scariano, Kula, Ellch & Himes, Chartered, of Chicago (Justino D. Petrarac, Raymond A. Hauser, and Lisa A. Papacz, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Haggerty, Koenig & Hill, Chartered, of Chicago (Kathrin A. Koenig, of counsel), for other respondent.
   JUSTICE DiVITO

delivered the opinion of the court:

Respondent District 88 Council, Local 571 (the Union), filed a charge with respondent Illinois Educational Labor Relations Board (IELRB), alleging that petitioner Board of Education of Du Page High School District No. 88 (the District) committed an unfair labor practice by refusing to comply with an arbitrator’s decision that a grievance arising from the applicable teacher evaluation plan (the Plan) was arbitrable and that arbitration on the merits should follow, in violation of sections 14(a)(1), 14(a)(5), and 14(a)(8) of the Illinois Educational Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(1), (a)(5), (a)(8)). The District in turn filed a charge against the Union for insisting on arbitrating an inarbitrable issue, in violation of section 14(b)(3) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1714(b)(3)). The IELRB determined that the District had violated the Act, holding that the grievance was arbitrable because the Plan had been collectively bargained or, alternatively, because the grievance concerned a dispute about a violation of a provision in the 1985-88 collective bargaining agreement (the 1985-88 Agreement). For the reasons that follow, we reverse.

The administration of Addison Trail High School issued an “unsatisfactory” evaluation for one of the Union’s members at the end of the 1987-88 school year. In response, the Union filed a grievance on the employee’s behalf, based on violations of the 1985-88 Agreement and the parties’ “understanding and agreement” concerning the Plan. The Union also alleged that the conduct of the school administrators “violate[d] the spirit if not the letter of the [Plan’s] process.” The Union asked that the unsatisfactory rating be removed.

After a hearing, the principal denied the grievance, stating that it “[did] not identify a violation of the contract. The substance of an evaluation is not grievable under any provision of the [1985-88 Agreement].” The Union appealed, maintaining that the violation of the 1985-88 Agreement was that the employee “was not judged fairly and *** there were numerous violations of the Teacher Evaluation Procedure” of the Plan, in violation of article III.4 of the 1985-88 Agreement. The Union asserted that “this evaluation [was] most reprehensible in its shoddy preparation and basic denial of due process procedural rights.” The Union also challenged the District’s view that the substance of the evaluation was not grievable, stating that the Plan had been collectively bargained and thus was grievable as “an adjunct part of the [1985-88 Agreement].” It warned that the District’s stonewalling could be construed as an unfair labor practice.

After a hearing at the next level, the District’s superintendent denied the grievance “for the basic reason that the grievance does not identify a violation of the [1985-88 Agreement].” While maintaining that the Plan had not been collectively bargained and that thus a dispute arising therefrom was not grievable, the superintendent nevertheless addressed the merits of the grievance, finding that the evaluation had been conducted within the Plan’s guidelines. He also decided that the Union’s inability to convince the District to include the Plan in the subsequent collective bargaining agreement (the 1988-1990 Agreement), coupled with its not having filed an unfair labor practice charge against the District for its refusal to include the Plan in the 1988-90 Agreement, constituted waiver.

The Union again appealed; after a hearing, the District concurred in the denial of the grievance for the same reasons given by the superintendent. The Union then demanded arbitration. After an arbitrator had been mutually selected, the District refused to stipulate to the arbitrator’s jurisdiction and authority to render an award, based on its position that the grievance was not arbitrable. The Union framed the issue for the arbitrator as “whether the [District] violated the parties^] agreement by it’s [s-ic] failure to fairly and correctly administer the procedures of the *** Plan relative to” the employee’s evaluation. Subject to the grievability challenge, the District agreed to submit the issue to the arbitrator.

At the first hearing before the arbitrator in December 1988, the employee testified about the documents and procedure used in his evaluation; the only other witness, Roberta Hollister, the current chief negotiator for the Union, testified about the process by which the Plan evolved. The Union rested its case as to the article III.4 violation. The next hearing did not occur until May 2, 1989. The stipulated facts state that this five-month hiatus was by agreement.

Meanwhile, in April 1989, the District moved to dismiss the arbitration on the ground that the grievance was not arbitrable because the Plan had not been collectively bargained. The arbitrator took the motion under advisement, bifurcated the arbitration, and heard witnesses on this question alone. At this hearing, the testimony concerned only the process by which the Plan had been developed. Witnesses included the Union president at the relevant time; two members of the Union’s team to develop the Plan, including the former chief negotiator for the Union, who headed the Union team; and an assistant superintendent, who was part of the administration’s team in developing the Plan. The arbitrator asked the parties to submit post-hearing briefs by July 31, 1989. The Union did not file its brief until November 1989, but the District made no contemporaneous objection to the Union’s untimeliness.

The months passed. In April 1990, the arbitrator asked the parties to brief the effect of two recent IELRB decisions. In submitting its brief, the District stated that it was reserving its right to object to the delay. On April 18, 1990, a few days after the submission of the briefs, the arbitrator ruled that the grievance was arbitrable because the Plan had been collectively bargained, and he ordered the parties to continue the arbitration on its merits.

Shortly thereafter, on May 8, 1990, the Union demanded that the District comply with the arbitrator’s decision and commence arbitration on the merits of the grievance. The District refused, claiming that the arbitrator’s decision was incorrect as a matter of law, that the cases on which the arbitrator rested his decision were distinguishable, and that the delay in the arbitrator’s ruling violated the timeliness requirements of the voluntary arbitration rules of the American Arbitration Association (the AAA). The Union’s charge that gives rise to this appeal followed. The District responded with a charge of its own, the mirror image of the Union’s, asserting that the Union’s demand to arbitrate an inarbitrable issue was an unfair labor practice. The charges were consolidated, and the parties filed a stipulated record containing the submissions to and from the arbitrator.

The IELRB hearing officer ruled for the Union in a 44-page written opinion containing findings of fact and law. She began by noting that the arbitrability question required a two-step analysis: was the Plan bargained and, if so, had the Union nevertheless waived arbitration of disputes concerning it. She found that the Plan had been the product of “the give-and-take typical of labor negotiations in a committee setting” and thus was a collectively bargained agreement. She then rejected the District’s argument that the Union had waived its right to arbitrate grievances arising from the Plan. Because the Plan had been collectively bargained and waiver had not occurred, she concluded, the grievance was subject to arbitration. Alternatively, the hearing officer determined that the grievance was also arbitrable as a dispute concerning violation of article III.4 of the 1985-88 Agreement. The hearing officer also rebuffed the District’s contention that the time lapse between the hearings and the arbitrator’s final decision was so long as to render his decision invalid.

The District filed exceptions, but the IELRB affirmed for the reasons given in the hearing officer’s recommended decision, with certain modifications not relevant here. It agreed that the Plan had been collectively bargained, that the IELRB could consider grounds for arbitrability other than that upon which the arbitrator had relied, and that the Union had not waived the right to arbitrate grievances with regard to the Plan. It concluded that the grievance therefore was arbitrable, so the District’s refusal to comply with the arbitrator’s award concerning substantive arbitrability constituted an unfair labor practice in violation of sections 14(a)(1) and 14(a)(8) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(1), (a)(8)). This appeal followed.

I

Review of an IELRB decision on an unfair labor practice charge must be sought in the appellate court rather than in the circuit court. (Ill. Rev. Stat. 1991, ch. 48, par. 1716(a).) In such cases, Supreme Court Rule 335(h) (134 Ill. 2d R. 335(h)) states that certain provisions of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.) apply. Among these is section 3 — 110, which describes the scope of our review as follows:

“The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1991, ch. 110, par. 3-110.

When operating under this statute, a reviewing court will defer to the agency’s factual conclusions, reversing only if the agency’s determination is against the manifest weight of the evidence, i.e., no rational trier of fact could have reached the challenged conclusion when looking at the evidence in the light most favorable to the agency; in discretionary matters, reversal may occur only if the agency has exercised its discretion in an arbitrary or capricious manner. (American Federation of State, County & Municipal Employees v. Illinois Educational Labor Relations Board (1990), 197 Ill. App. 3d 521, 525, 554 N.E.2d 476, 478.) If the question raised is purely legal, such as statutory construction, an agency’s interpretation should receive deference because it flows from its experience and expertise (County of Will v. Illinois State Labor Relations Board (1991), 219 Ill. App. 3d 183, 185, 580 N.E.2d 884, 885), but our review is de novo.

Our application of this standard of review is complicated, however, by the nature of the question put to the IELRB, which was whether the District had refused to comply with a binding arbitration award, for “a court’s review of an arbitrator’s award is extremely limited,” and “a court must construe an award, if possible, as valid.” (American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 254, 529 N.E.2d 534, 537.) The IELRB’s review of an arbitration award is similarly constrained. Board of Education of Danville Community Consolidated School District No. 118 v. Illinois Educational Labor Relations Board (1988), 175 Ill. App. 3d 347, 353, 529 N.E.2d 1110, 1114 (“Neither IELRB nor reviewing courts have substantial authority to pass upon the propriety of the arbitrator’s decision” on a dispute arising from a collective bargaining agreement), appeal denied (1989), 124 Ill. 2d 553, 535 N.E.2d 912.

II

Section 14(a)(8) of the Act provides that an educational employer commits an unfair labor practice if it refuses to comply with a binding arbitration award; section 14(a)(1) prohibits such employers from “[interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.” (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(8), (a)(1).) Under section 10(c) of the Act, one of those rights is to grieve all disputes arising from alleged violations of collectively bargained agreements (Ill. Rev. Stat. 1991, ch. 48, par. 1710(c)), unless the right is waived. When considering whether a party has committed the unfair labor practice of refusing to comply with a binding award, the inquiry is limited to three issues: whether the award was binding; what the content of the award is; and whether the party has complied with the award. (Board of Education of Danville Community Consolidated School District No. 118 v. Illinois Educational Labor Relations Board (1988), 175 Ill. App. 3d 347, 349-50, 529 N.E.2d 1110, 1112.) The parties appear to agree that only the first of these is at issue here.

The District contends that the IELRB correctly determined that the grievance was arbitrable as a violation of article III.4 of the 1985-88 Agreement. As explained above, article III.4 required the District to “implement and administer all of its personnel policies, rules and regulations in a fair, equitable manner.” Collective bargaining agreements are contracts and, as such, generally are interpreted according to principles of contract law. (Truck Drivers, Oil Drivers, Filling Station & Platform Workers’ Union Local 705 v. Schneider Tank Lines, Inc. (7th Cir. 1992), 958 F.2d 171, 172 (disputes arising from collectively bargained agreements revolve around contract interpretation), but see Merk v. Jewel Food Stores (7th Cir. 1991), 945 F.2d 889, 892, cert. denied (1992), 504 U.S. 914, 118 L. Ed. 2d 555, 112 S. Ct. 1951 (“Ordinary common law contract principles *** cannot simply be imported whole into the labor context and mechanistically applied to collective bargaining agreements”).) Among such tenets is that if unambiguous, a contract is to be construed according to the plain meaning of its language. Jewel Cos. v. Serfecz (1991), 220 Ill. App. 3d 543, 548, 581 N.E.2d 186, 190.

The language of article III.4, as connoted by its title, prohibits discriminatory treatment if connected with union membership; it is not a catch-all prohibition against unfair treatment. Unlike the agreement in a case on which the IELRB relies (see River Grove School District No. 851/2, 3 Pub. Employee Rep. (Ill.) par. 1019, No. 86 — CA—-0034 — C (Illinois Educational Labor Relations Board, Jan. 30, 1987)), the 1985-88 Agreement contained no general “fairness” provision. Instead, it prohibits discrimination on the ground of union membership. Here, though, the IELRB’s ruling was grounded on general fairness and contains no mention of a causal relationship between the employee’s union membership and the alleged defects in the evaluation proceedings. Without such supporting evidence, the IELRB’s decision that the grievance was arbitrable as a dispute concerning violation of article III.4 of the 1985-88 Agreement was against the manifest weight of the evidence.

B

As its primary holding, the IELRB held that the Plan had been collectively bargained and thus was arbitrable under section 10(c) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1710(c)).

The District first contends that the IELRB decision rests on the mistaken assumption that all disputes between educational employers and employees are subject to arbitration even though section 10(c) of the Act provides that only collectively bargained agreements must be arbitrated. The District characterizes the IELRB decision as the result of “a tortured analysis of the facts and a mistaken understanding of the law,” asserting that a thorough analysis of the facts surrounding the development of the Plan reveals that the Plan was not collectively bargained. In particular, the District takes umbrage at the IELRB’s conclusion that “[t]he evidence in this case clearly suggests that the give-and-take typical of labor negotiations did occur during the discussions over the [Plan].” The District insists this conclusion is unfounded given its vehement insistence during the relevant time that the process of developing the Plan not be called “negotiating,” as well as the correspondence between the Union and the District, which from the outset iterated the District’s firm conviction that it had no statutory duty to bargain the Plan. It characterizes the Union’s attempt to fashion the facts into collective bargaining rather than cooperation as “slight-of-hand [sic].” The District also posits that the IELRB’s finding that the Plan here was collectively bargained is against the manifest weight of the evidence because “[t]he sole basis for this assertion is that ‘[h]ere the evaluation plan was specifically ratified by the membership of this Union and then adopted by the [District],’ ” which the District derides as the baseless transmutation of the commonplace act of adopting rules and policy into an intent to enter into a binding agreement. Similarly, in its view, ratification by the Union is not tantamount to collective bargaining.

The IELRB counters that the stipulated facts of “give-and-take,” along with ratification of the Plan by the District and the Union, justify its conclusion that the Plan was collectively bargained despite the District’s assertions that it had been “dragged kicking and screaming” to the discussions of the Plan. The IELRB urges this court to focus on the District’s conduct, not on its words, and it points in support to the designation of representatives by both sides; submission of proposals by each side, with revisions to reflect compromises; debate at 13 meetings; agreemént of mutually acceptable terms; inclusion of the agreed-on terms in the final plan; and ratification by each side.

Like the IELRB, the Union argues that when a party’s give-and-take conduct conflicts with its statements that it is not bargaining, the actions must control. To the Union, the District’s behavior during the Plan’s development was identical in nature to its conduct when bargaining other negotiated agreements and thus should be interpreted as collective bargaining because such conduct “evidenced its intent that the Plan be developed by mutual agreement of the parties and then engaged in collective bargaining to achieve that result.”

The District’s reply may be summed up as “intent controls.” Because, in its view, “the evidence indicates that [it] did not intend the discussions to constitute collective bargaining and it is questionable whether the Union so intended,” the IELRB’s conclusion is unsupported by the record. It points to testimony about the District’s letters stating that it was not required to bargain the plan under section 24A of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24A — 4), and that the District’s representatives often reiterated this stance during the meetings. The District also notes that the testimony from even the Union’s own witnesses supports its position: for example, one testified that the superintendent had stated that there was no right to bargain the Plan, and another testified that the superintendent “flew off the handle” whenever he heard the word “negotiate.” It also points to a memorandum from the District team to the Union team to the same effect. It characterizes the Union’s interpretation as “20/20 hindsight,” and it terms the IELRB decision as a windfall by which the Union gains a collectively bargained agreement that it could not obtain directly.

We first must reject the District’s interpretation of the IELRB decision as controlled by an assumption that all disputes between educational employers and employees are subject to arbitration and as lacking thorough factual analysis. Indeed, the very first inquiry the hearing officer addressed was whether the Plan had been collectively bargained, with the caveat that only if this was so would the grievance fall within the presumption of arbitrability, and even then, the presumption would not survive waiver. Only with this analytical framework in mind did the hearing officer begin to consider whether the Plan was arbitrable by first deciding whether it had been collectively bargained. Also, contrary to the District’s assertions, the hearing officer specifically stated that the existence of a duty to bargain the Plan was not in question, to which the IELRB later referred in its own ruling. This posture differentiates the case before us from Alton Community Unit School District No. 11 v. Illinois Educational Labor Relations Board (1991), 209 Ill. App. 3d 16, 567 N.E.2d 671, in which the cause was remanded to the IELRB because the agency’s decision had been affected by its ruling on whether the substantive and procedural provisions of such plans were subject to mandatory bargaining, a question then before our supreme court.

As for the IELRB’s conclusion that the Plan was collectively bargained, from the record before us it cannot be gainsaid that the IELRB painstakingly reviewed the testimony and other evidence of the development of the Plan as presented to the arbitrator, as well as the stipulated facts, before reaching its decision. Nevertheless, even though “the give and take between a committee of representatives from employers and employees which resemble[s] that typical of labor negotiations, can, under some circumstances, constitute collective bargaining” (Alton, 209 Ill. App. 3d at 25, 567 N.E.2d at 677), those circumstances did not exist in this case.

Here, the testimony from all the witnesses, including the Union’s, was that the District was adamant in its refusal to engage in bargaining while it cooperated with the Union in developing the Plan. Not a single witness, even from the Union, testified that he or she had been under the impression .that the Plan was being bargained; in fact, the opposite impression was the rule. Furthermore, the evidence here is better characterized as consensus building rather than the give-and-take of negotiation. As a result, not only do we believe that, even looking at the evidence in the light most favorable to the IELRB, no rational trier of fact could have concluded that the Plan had been collectively bargained, but we also believe that such a finding would have a chilling effect on educational employers, who would be compelled to shy away from all but the most limited interaction lest they unintentionally cross the line between “cooperation” and “bargaining.” Although the IELRB contends in its petition for rehearing that our opinion is inconsistent with the ruling in Board of Education, LeRoy Community Unit School District No. 2 v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 347, 556 N.E.2d 857, rev’d on other grounds (1992), 149 Ill. 2d 496, 599 N.E.2d 892, we agree with LeRoy that the conduct of the parties and not just their words must be taken into account when deciding whether the Plan was collectively bargained. We simply find that in looking at the District’s conduct here, the employer’s .conduct in LeRoy is sufficiently dissimilar to make LeRoy not dispositive here.

We also note in passing that, from the record before us, it appears that the Plan was not signed by the parties, as required by the Act for all collective bargaining agreements. (Ill. Rev. Stat. 1987, ch. 48, par. 1710(d); Alton, 209 Ill. App. 3d at 23, 567 N.E.2d at 676.) Accordingly, despite the deference that this court must give to an agency’s factual determinations and its interpretation of its statutes, we cannot affirm the IELRB’s decision that the Plan was collectively bargained. Thus, we reverse the IELRB’s ruling that the District’s refusal to comply with the arbitrator’s award was an unfair labor practice under section 14(a)(8) of the Act. Furthermore, because the IELRB’s finding that the District violated section 14(a)(1) of the Act appears to have been grounded solely on its finding of the section 14(aX8) violation, we reverse that ruling as well.

For the reasons stated above, we reverse the IELRB’s ruling that the District violated sections 14(a)(8) and, derivatively, 14(a)(1) of the Act. Given this outcome, we need not address the District’s arguments that the arbitrator’s decision was not binding on the basis of untimeliness, that the Union waived arbitrability of Plan grievances, and that the IELRB may not affirm an arbitrator’s decision on a ground other than that used by the arbitrator.

Reversed.

McCORMICK, P.J., and HARTMAN, J., concur.

      The evaluation itself is not in the record, but according to the grievance, the evaluation lacked specificity, was “ambiguous and confusing,” was based on improper materials, and was conducted without following the Plan’s procedures.

      Article III.4, entitled “UNION Non-Discrimination,” states as follows:
      “There shall be no discrimination against TEACHERS on the basis of UNION membership or lawful UNION activity in evaluation of their service or their qualifications for reappointment or promotion. The BOARD agrees to implement and administer all of its personnel policies, rules, and regulations in a fair, equitable manner.”

      During this time, in June 1989, the Union filed an unfair labor practice charge against the District, claiming the District was refusing to arbitrate an arbitrable claim, in violation of sections 14(a)(1) and 14(a)(5) of the Act. The IELRB dismissed the charge; the Union appealed, but it voluntarily dismissed the appeal in 1990.

      Although the Union’s charge also cited a violation of section 14(a)(5) (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(5)) for the District’s refusal to arbitrate, the IELRB did not include this provision in its complaint.

      Under Article 24A of the School Code (Ill. Rev. Stat. 1991, ch. 122, par. 24A — 4), the District must “cooperate in developing” an evaluation plan.


author: JUSTICE CAMPBELL

text:
    S K HANDTOOL CORPORATION et al., Plaintiffs-Appellees, v. DRESSER INDUSTRIES, INC., Defendant-Appellant (Stephen C. Bruner, Appellant).
    First District (1st Division)
    No. 1 — 91—1403
    Opinion filed April 19, 1993.
    Rehearing denied June 23, 1993.
    Modified opinion filed June 28, 1993.

      Kevin M. Forde and Winston & Strawn, both of Chicago (Stephen C. Bruner, Richard William Austin, and Catherine W. Joyce, of counsel), for appellants.

      Law Offices of Frederic F. Brace, Jr., of Chicago (David L. Lee, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Dresser Industries, Inc. (Dresser), and contemnor Stephen C. Bruner appeal an order of the circuit court of Cook County finding Bruner in contempt of court for failing to comply with a prior order disqualifying Bruner’s firm, Winston & Strawn, from representing defendant in a suit brought by plaintiffs SK Handtool Corporation (SK Handtool) and Corcoran Partners, Ltd. (Corcoran Partners). This underlying suit arises out of defendant Dresser’s sale of its handtool division to Corcoran Partners.

The record on appeal indicates the following facts. Corcoran Partners has two general partners, Thomas Corcoran and Daniel Czuba. In 1982, Corcoran and Czuba chose Stephen P. Durchslag and his firm, Sidley & Austin, as general counsel for the partnership. At that time, Corcoran had known Durchslag for about nine years and considered Durchslag to be his personal attorney. Durchslag’s practice is concentrated in the area of intellectual property.

While at Sidley & Austin, Durchslag advised Corcoran Partners regarding promotion, advertising and intellectual property matters. According to Corcoran and Czuba, Durchslag was their primary contact at Sidley & Austin; they would call him for advice and Durchslag would either handle the matter himself or find another attorney to handle the matter. According to the partners, Durchslag would also attend, stop by or discuss meetings they had with other attorneys at the firm. The partners also maintain that they both heard Durchslag state that Corcoran Partners was his largest account.

In the fall of 1983, Sidley & Austin represented Corcoran Partners in negotiations for the purchase of Dresser’s handtool division. Sidley & Austin had previously represented Dresser in litigation, but Dresser gave specific and limited consent to Sidley & Austin’s representation of Corcoran Partners in this .transaction.

The transaction was consummated in October 1983. According to Durchslag, he was not actively involved in the transaction, but did have cursory general knowledge of it. According to Corcoran, Durchslag attended several meetings he had with Sidley & Austin regarding the purchase of the SK Handtool Corporation. Corcoran states that the value of the assets and liabilities of SK Handtool, the accuracy and completeness of SK Handtool’s books, records and ending date balance sheet, and proposed marketing strategies were discussed at these meetings.

Later, disputes arose between Corcoran Partners and Dresser concerning the transaction. Dresser refused to grant consent for Sidley & Austin to represent Corcoran Partners in these disputes. According to the partners, Durchslag recommended that they retain Frederic F. Brace, Jr., as litigation counsel. The partners maintain that Corcoran encouraged communications between Durchslag and Brace regarding the matter. According to Brace, Durchslag and other Sidley & Austin attorneys contacted him; they did not render advice, but discussed the matter and received progress reports.

The partners also state that Durchslag frequently discussed this litigation with them. They also state that they provided Durchslag with documents and court papers and received his opinion both on the legal strategy and the merits of the litigation. Corcoran further states that the partnership was billed for these discussions and that the bills were paid.

On August 1, 1989, Durchslag joined the firm of Winston & Strawn, which was representing Dresser in the litigation brought by Corcoran Partners. According to contemnor Bruner, Winston & Strawn had been representing Dresser since the inception of the litigation in May 1984. Suit had originally been filed in the circuit court of Cook County; Dresser had the case removed to Federal court. Following a court-supervised arbitration, the Federal case was dismissed on the eve of trial in July 1987. Plaintiffs refiled the suit in the circuit court of Kane County. Following a dismissal in that venue, plaintiffs refiled in the circuit court of Cook County. According to a legal assistant employed at Winston & Strawn, the firm has devoted over 10,000 hours to the litigation, including over 85 days spent deposing over 44 persons. More than 70,000 pages of documents have been produced in the litigation.

A letter from Brace to Bruner dated August 7, 1989, and marked “VIA HAND DELIVERY” appears in the record. The letter notes Durchslag’s relationship with Corcoran Partners and requests that Winston & Strawn immediately withdraw as counsel for Dresser. The letter concludes by indicating that if Brace did not hear from Bruner by the close of business the following day, Brace would assume that Bruner intended to continue to represent Dresser and would proceed accordingly.

A letter from Bruner to Brace dated August 8, 1989, and marked “BY MESSENGER” appears in the record. In the letter, Bruner indicates that he did not know of a relationship between Corcoran Partners and Durchslag. Bruner also indicates that he had not spoken to Durchslag about the substance of litigation and did not intend to do so in the future. The letter does not indicate that Bruner or his firm planned to withdraw from representing Dresser.

According to Durchslag, he and Bruner discussed Brace’s letter on August 8, 1989. Durchslag also approved a copy of Bruner’s proposed reply. Durchslag states that he and Bruner did not discuss the substance of the litigation and would not do so in the future.

The record indicates that in addition to contemnor, Winston & Strawn attorneys directly representing Dresser in the litigation were Jane McCullough and Kimball Anderson. An affidavit by Ms. McCullough states that she also received a copy of Brace’s letter and has not discussed the case with Durchslag. An affidavit by Mr. Anderson states that he has not discussed the case with Durchslag, but does not indicate whether he received a copy of Brace’s letter.

According to Corcoran and Czuba, Durchslag attempted to solicit the legal business of Corcoran Partners for Winston & Strawn during August 1989. In particular, the partners maintain that on August 29, 1989, while at a golf outing, Durchslag and several other Winston & Strawn attorneys attempted to solicit Corcoran Partners’ business with respect to a transaction that Sidley & Austin could not handle due to a conflict of interest. The partners stated that they wished to consult with Brace before retaining Winston & Strawn due to the firm’s representation of Dresser. Brace advised the partners against retaining Winston & Strawn.

On September 7, 1989, Corcoran Partners filed a motion to disqualify Winston & Strawn from further representing Dresser in the litigation. The motion claims that Winston & Strawn’s continued representation would constitute a conflict of interest in violation of Canons 4, 5, and 9 of the Illinois Code of Professional Responsibility (107 Ill. 2d Canons 4, 5, 9).

The record contains a memorandum dated September 7, 1989, that appears to be directed to all personnel of Winston & Strawn. The memorandum is from Gary Fairchild, who was the managing partner at Winston & Strawn, according to Bruner. The memorandum notes that Durchslag and two other Sidley & Austin attorneys had recently joined Winston & Strawn. The memorandum also notes Durchslag’s prior representation of Corcoran Partners and Winston & Strawn’s representation of Dresser in the litigation brought by Corcoran Partners. The memorandum indicates that it had been determined that the firm’s professional judgment on behalf of Dresser would not be impaired by the involvement of the three newly associated attorneys from Sidley & Austin and had notified Dresser to this effect.

The memorandum then sets forth rules regarding the litigation, to wit: (1) none of the newly associated attorneys could discuss the litigation with any Winston & Strawn personnel other than one of the other newly associated attorneys: (2) no Winston & Strawn personnel could discuss the litigation with any of the newly associated attorneys; (3) all files relating to Dresser’s defense of the litigation would be secured by those having custody or control of them and could not be examined by or made available to any of the newly associated attorneys; and (4) all Winston & Strawn attorneys, including the newly associated attorneys, would not represent any of the adverse parties in the litigation.

On January 18, 1990, the trial court held a hearing on the disqualification motion. On March 13, 1990, the trial court entered an order and issued a written opinion granting the motion and disqualifying Bruner and Winston & Strawn from further representation of Dresser in the litigation. The trial court subsequently denied Dresser’s motion to reconsider. However, on May 1, 1990, the trial court certified the matter for an immediate appeal to this court, pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308). This court denied Dresser’s May 15, 1990, application for leave to appeal on September 8, 1990. Dresser then filed a petition for leave to appeal to the Illinois Supreme Court on October 22, 1990, which was denied on February 6, 1991.

On April 16, 1991, Bruner returned to the trial court. Counsel for both sides of the litigation indicated that the only avenue remaining to seek review of the disqualification order was to find Bruner in contempt of that order. The trial court entered an order finding Bruner in contempt of court and imposing a $100 fine, though enforcement was stayed pursuant to Illinois Supreme Court Rule 305(b) (107 Ill. 2d R. 305(b)). In the transcript of proceedings dated April 16, 1991, the trial court indicates that Bruner was acting at Dresser’s request and the contempt finding should not reflect on Bruner’s qualifications for judicial or political office. Defendant Dresser and contemner Bruner filed a timely notice of appeal to this court.

I

Initially, although plaintiffs do not raise the issue, we have a duty to consider our jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252, 1253; Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764, 765.) Defendant and contemner appeal a finding of civil contempt, including a $100 fine, imposed for contemnor’s failure to obey the trial court’s prior disqualification order. This court has jurisdiction of the contempt finding, which also brings the propriety of the underlying disqualification order before this court. Index Futures Group, Inc. v. Street (1987), 163 Ill. App. 3d 654, 657, 516 N.E.2d 890, 892-93.

II

In reviewing the disqualification order, this court will not disturb any of the trial court’s factual determinations absent an abuse of discretion. However, this court will engage in an independent review of questions of law presented by the order. Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1054, 452 N.E.2d 804, 812; see also Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, 721 (trial courts enjoy no advantage over appellate courts in formulation of ethical norms).

There remains the question of which law is applicable. The parties have referred not only to Illinois cases, but also to Federal cases in support of their respective positions. Federal decisions as to the law of Illinois (other .than United States Supreme Court decisions) are not binding on this court. Nevertheless, the parties’ reliance on them seems appropriate, given that the Federal courts interpret rules of legal ethics drafted by the American Bar Association and this State’s rules of legal ethics are largely similar to those drafted by the ABA. (Herbes v. Graham (1989), 180 Ill. App. 3d 692, 699, 536 N.E.2d 164, 167-68.) Furthermore, it appears that the Seventh Circuit has most thoroughly considered the type of issues raised in this appeal. (Smith v. Whatcott (10th Cir. 1985), 757 F.2d 1098, 1101.) Given that the Seventh Circuit is also the Federal appellate court most likely to confront such issues in cases involving Illinois law or litigants, we will pay special attention to Seventh Circuit case law on the issues raised here.

There is also the question of which form of the rules of legal ethics are applicable. At the time of the events described above, the Illinois Code of Professional Responsibility (Illinois Code), modeled on the ABA Code of Professional Responsibility (ABA Code), was in effect. The following provisions of the Illinois Code seem to be at issue in this appeal:

“Rule 4 — 101. Preservation of Confidences and Secrets of a Client * * *
(b) Except when permitted under Rules 4 — 101(c) and (d), a lawyer shall not knowingly, during or after termination of the professional relationship to his client,
(1) reveal a confidence or secret of his client;
(2) use a confidence or secret of his client to the disadvantage of the client; or
(3) use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
* * *
(e) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may permit an employee to reveal the information allowed by Rules 4 — 101(c) and 4— 101(d).”
“Rule 5 — 105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer * * *
(b) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under Rule 5 — 105(c).
* * *
(d) If a lawyer is required to decline employment or to withdraw from employment under Rule 5 — 105, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.” (107 Ill. 2d Rules 4 — 101(b), (e), 5 — 105(b), (d).)

Both Illinois and Federal courts have looked to the protections of their respective Codes, including Canon 9 (which states in both Codes that an attorney should avoid the appearance of impropriety) in reviewing motions to disqualify attorneys and law firms. E.g., La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 664, 440 N.E.2d 1073, 1080 (hereinafter Triumvera) (looking, to Canons 4 and 9 of the Illinois Code); La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252, 255 (hereinafter La Salle) (looking to Canons 4 and 9 of the ABA Code); Papanicolaou v. Chase Manhattan Bank, N.A. (S.D.N.Y. 1989), 720 F. Supp. 1080, 1083 (looking to. Canons 4 and 5 of the ABA Code).

On August 1, 1990, however, before the contempt order in this case was entered, the Illinois Code was repealed and superseded by the Illinois Rules of Professional Conduct (Illinois Rules), modeled on the more recent ABA Rules of Professional Conduct. The parties both discuss Illinois Rule 1.10, which provides, in relevant part, as follows:

“Rule 1.10. Imputed Disqualification: General Rule
(a) No lawyer associated with a firm shall represent a client when the lawyer knows or reasonably should know that another lawyer associated with that firm would be prohibited from doing so by Rules 1.7, 1.8(c) or 1.9, except as permitted by Rules 1.10(b), (c), or (d), or by Rule 1.11 or Rule 1.12.
(b) When a lawyer becomes associated with a firm, the firm may not represent a person in a matter that the firm knows or reasonably should know is the same or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, had previously represented a client whose interests are materially adverse to that person unless:
(1) the newly associated lawyer has no information protected by Rule 1.6 or Rule 1.9 that is material to the matter; or
(2) the newly associated lawyer is screened from any participation in the matter.
(c) When a lawyer has terminated an association with a firm, the firm may thereafter represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer if:
(1) the matter is not the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) no lawyer remaining in the firm has information protected by Rule 1.6 and Rule 1.10 that is material to the matter.” (134 Ill. 2d R. 1.10.)

It is not surprising that the parties focus on Illinois Rule 1.10, given that it explicitly addresses the type of situation involved on appeal, whereas the Illinois Code and the ABA Code did not. Moreover, the Kutak Commission that drafted the proposed ABA Rules and the ABA House of Delegates both rejected the concept of screening for nongovernment attorneys. (See G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 192.2 (Supp. 1989); Rotunda, The New Illinois Rules of Professional Conduct: A Brief Introduction & Comment, 78 Ill. B.J. 386, 390 (1990); ABA Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct, Rule 1.10 (1984).) Illinois Rule 1.10 is thus unusual in this regard.

Both the change from ABA Code to the ABA Rules and the Federal decisions on disqualification reflect a trend toward a more functional analysis of conflict of interest questions. (See Smith v. Whatcott (10th Cir. 1985), 757 F.2d 1098, 1101 & n.2 (and citations therein).) While the Illinois Code was in effect, this court considered the ABA Rules when reviewing the denial of a disqualification motion. (See In re Marriage of Thornton (1985), 138 Ill. App. 3d 906, 916-17, 486 N.E.2d 1288, 1295.) Illinois Rule 1.10(b) suggests that screening is to be viewed even more favorably than would be the case under the ABA Rules. While the events at issue in this case occurred before the effective date of the Illinois Rules, we will consider them as secondary authority in this case.

III

The main question on appeal is whether the trial court erred in disqualifying contemnor and the firm of Winston & Strawn from representing Dresser in this litigation. Generally, our courts disapprove of the use of disqualification motions as a tactical weapon in litigation insofar as such motions can be misused for purposes of harassment. Such motions serve to destroy the attorney-client relationship by preventing a party from freely retaining the counsel of his or her choice. (See Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307.) Thus, disqualification is regarded as a drastic measure which courts should grant only when necessary. (See Freeman, 689 F.2d at 721.) On the other hand, the rules of legal ethics are aimed at protecting the attorney-client relationship, maintaining public confidence in the legal profession and ensuring the integrity of judicial proceedings. (See Skokie Gold, 116 Ill. App. 3d at 1057, 452 N.E.2d at 814; Freeman, 689 F.2d at 721.) Violations of the prohibitions of Canons 4 and 5 give rise to high proba- ■ bility that a trial may be tainted. (Papanicolaou, 720 F. Supp. at; 1083-84.) Accordingly, any doubts as to the existence of a conflict-should be resolved in favor of disqualification. Skokie Gold, 116 Ill. App. 3d at 1057, 452 N.E.2d at 814.

The disqualification order in this case is based on the fact that Durchslag, who had previously represented Corcoran Partners at Sidley & Austin, had joined Winston & Strawn. Generally, a court analyzing this question must determine whether there is a “substantial relationship” between the subject matter of the prior and current representations. If such a relationship exists, it is presumed that the client disclosed confidential information to the attorney during the prior representation. (Skokie Gold, 116 Ill. App. 3d at 1055, 452 N.E.2d at 813; Novo Therapeutisk Laboratorium v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 E2d 186, 196 (en banc).) This presumption is irrebuttable under both Illinois and Federal case law. See Skokie Gold, 116 Ill. App. 3d at 1055-56, 452 N.E.2d at 813 (and citations of Federal law therein).

On appeal, Dresser does not contest that there was a substantial relationship between the subject matter of Durchslag’s representation of Corcoran Partners at Sidley & Austin and Winston & Strawn’s representation of Dresser in this litigation. Nor did Dresser contest the presumption that Durchslag received confidences and secrets from Corcoran Partners during the prior representation. Nor does Dresser contest on appeal whether Durchslag should be disqualified in this case.

Instead, Dresser and contemnor focus on the presumption that Durchslag may intentionally or inadvertently share confidences gained while representing Corcoran Partners at Sidley & Austin with contemnor or Winston & Strawn personnel (aside from the other former Sidley & Austin attorneys). This presumption exists under both Illinois and Federal case law. (See Weglarz v. Bruck (1984), 128 Ill. App. 3d 1, 6-7, 470 N.E.2d 21, 26; La Salle, 703 F.2d at 257.) Dresser and contemnor raise three major arguments regarding this presumption. We address each of these arguments in turn.

A

Dresser and contemnor contend that the presumption of shared confidences at the new firm may be rebutted by effective screening of the newly associated attorney.

The State of Illinois law on the use of screening is sparse. In Weglarz v. Bruck (1984), 128 Ill. App. 3d 1, 4-5, 470 N.E.2d 21, 25, a divided court indicated that a “Chinese wall” can be used to rebut the presumption of shared confidences only where the attorney can clearly and effectively show that he had no knowledge of the client’s secrets and confidences. A year later, however, this court indicated that screening could dissipate any appearance of impropriety caused where a judge who had ruled against a wife’s discovery requests in a divorce action joined her husband’s law firm. (Thornton, 138 Ill. App. 3d at 915-17, 486 N.E.2d at 1294-97.) Thornton is distinguishable from Weglarz, insofar as the personal disqualification of a former judge did not automatically disqualify his or her new firm under the Illinois Code. (Thornton, 138 Ill. App. 3d at 917, 486 N.E.2d at 1296.) Moreover, the confidentiality at the heart of the attorney-client relationship generally does not exist between a judge and the litigants before that judge. On the other hand, the need to discourage judges from handling matters in a way that would encourage their future employment and the need to maintain public confidence in the impartiality of our judiciary are also legitimate and important. (Thornton, 138 Ill. App. 3d at 917, 486 N.E.2d at 1295.) We therefore view Thornton, along with the adoption of the Illinois Rules, as marking a greater inclination to accept screening as an effective remedy for potential ethical problems in legal representation.

In sum, it appears that the trend of Illinois and Federal case law, as well as the adoption of the Illinois Rules, is toward allowing the existence of effective screening to rebut the presumption of shared confidences between a newly associated attorney and his new firm. Accordingly, we hold that the presumption of shared confidences at the new firm may be rebutted by effective screening of a newly associated attorney. See La Salle, 703 F.2d at 257-59; Schiessle v. Stephens (7th Cir. 1983), 717 F.2d 417, 421; 134 Ill. 2d R. 1.10(b)(2).

B

Dresser and contemnor next contend that the screening in this case was effective, despite the fact that it was not imposed until five weeks after Durchslag joined the firm.

In Thornton, a former judge’s new firm circulated a memorandum among its employees prior to the former judge’s arrival directing that the former judge was not to be consulted on the case and prohibiting the former judge from access to the case files. (See Thornton, 138 Ill. App. 3d at 916, 486 N.E.2d at 1295.) The Thornton court commented favorably on this arrangement, but did not indicate whether the timing was a determinative issue. Thornton, 138 Ill. App. 3d at 917, 486 N.E.2d at 1296.

The Seventh Circuit has generally held that “specific institutional mechanisms” must be in place when a conflict occurs to prevent the sharing of information. For example, in La Salle, the court affirmed a disqualification order where the new firm had not instituted screening until a disqualification motion had been filed, which was six months after the newly associated attorney had joined the firm. The court noted that its analysis

“frequently requires identification of problems at the time attorneys are hired. In some cases, this may be difficult or even impossible. Nevertheless, [it] believe[d] that timely screening arrangements are essential to the avoidance of firm disqualification.” (Emphasis in original.) (La Salle, 703 F.2d at 259 n.3.)

Likewise, in Schiessle, the court affirmed a disqualification order where:

“The record *** show[ed] that the [new] firm at the time of [the attorney’s] transfer did not have specific institutional mechanisms under La Salle to insure that [the newly associated attorney] would have no contact with the Schiessle case.” (Schiessle, 717 F.2d at 421.)

The Illinois Rule 1.10 provides, in relevant part:

“(e) For the purposes of Rule 1.10, *** a lawyer in a firm will be deemed to have been screened from any participation in a matter if:
(1) the lawyer has been isolated from confidences, secrets and material knowledge concerning the matter;
(2) the lawyer has been isolated from all contact with the client or any agent, officer, or employee of the client and any witness for or against the client;
(3) the lawyer and the firm have been precluded from discussing the matter with each other; and
(4) the firm has taken affirmative steps to accomplish the foregoing.” 134 Ill. 2d R. 1.10(e).

In this case, the record indicates that a screening memorandum was not circulated within Winston & Strawn until September 7, 1989 — five weeks after Durchslag joined the firm. .

If this court were to follow the La Salle — Schiessle line of cases, as the trial court did, the disqualification would unquestionably be proper in this case. Defendant and contemnor, however, raise several objections to relying on the La Salle — Schiessle line of cases. We address each in turn.

First, defendant and contemner rely on a line of cases beginning with Panduit Corp. v. All States Plastic Manufacturing Co. (Fed. Cir. 1984), 744 F.2d 1564, 1578-81, in which the Federal Circuit, interpreting Seventh Circuit decisions including La Salle and Schiessle, indicated that proof of formal screening is not the only method of rebutting the presumption of shared confidences in the new firm. Panduit, 744 F.2d at 1580.

Defendant and contemnor’s reliance on Panduit is misplaced. Panduit held that the new firm should not be disqualified because the newly associated attorney had only imputed knowledge of the complaining client’s confidences. The Federal Circuit was unwilling to “reimpute” imputed knowledge to the new firm. (Panduit, 744 F.2d at 1578-79.) The Federal Circuit distinguished the case before it from Schiessle, where the attorney had direct knowledge of the client’s confidences. (Panduit, 744 F.2d at 1580.) In this appeal, defendant and contemnor do not contest that Durchslag had direct knowledge of Corcoran Partners’ confidences or that Durchslag should be personally disqualified.

In addition, the Panduit court’s interpretation of La Salle and Schiessle in dicta is flawed. The Panduit court indicated that interpreting La Salle and Schiessle as holding that screening is the only method of rebutting the presumption of shared confidences at the new firm would conflict with the Seventh Circuit’s earlier decision in Novo Therapeutisk Laboratorium v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 F.2d 186 (en banc). In Novo, a presumption of shared confidences within a firm was clearly and effectively rebutted by affidavits of firm members stating that they received no protected confidences from the attorney. Novo, 607 F.2d at 197 (en banc).

However, the issue in Novo was the disqualification of the newly associated attorney’s former firm. (Novo, 607 F.2d at 194 (en banc); see Panduit, 744 F.2d at 1579-80.) The issue in La Salle and Schiessle was the disqualification of the attorney’s new firm. (See La Salle, 703 F.2d at 257; Schiessle, 717 F.2d at 421.) The two situations are not identical and are not treated identically under the Illinois Rules. (Compare 134 Ill. 2d R. 1.10(b) with 134 Ill. 2d R. 1.10(c).) Moreover, in Novo, the newly associated attorney retained his client and was not in an adversary relationship with the client. (Novo, 607 F.2d at 197 (en banc).) Indeed, in Novo, the disqualification motion was made by the newly associated attorney, who failed to allege, even in general terms, what confidences the members of his former firm may have received. (Novo, 607 F.2d at 197 (en banc).) In contrast, the newly associated attorneys in both La Salle and Schiessle had a substantial relationship to the litigation and had not retained their original clients. (See La Salle, 703 F.2d at 257; Schiessle, 717 F.2d at 420.) Certainly, such factors may aid a trial court in determining whether there is a legitimate concern that confidences may be shared or whether the disqualification motion is intended only to harass.

Next, defendant and contemnor rely on cases indicating that the screening may be considered timely, even if it is not in place when the attorney joins the firm. (E.g., E Z Paintr Corp. v. Padco, Inc. (Fed. Cir. 1984), 746 F.2d 1459.) In E Z Paintr, the Federal Circuit indicated that the trial court could disqualify an entire firm where the screen had not been erected “ ‘when the potentially disqualifying event occurred’ and the new firm knows (or must have been aware) of the problem.” (E Z Paintr, 746 F.2d at 1462, quoting La Salle, 703 F. 2d at 259.) This would seem to accord with Illinois Rule 1.10(b), which refers to whether the new firm “knows or reasonably should know” of the problem. 134 Ill. 2d R. 1.10(b).

The question arises as to when Winston & Strawn knew or reasonably should have known of the problem. Defendant and contemnor argue that Winston & Strawn could not have known of the conflict when Durchslag joined the firm. They rely on the Bruner affidavit, which states that in the Federal portion of this litigation, Sidley & Austin was required to produce documents reflecting communications between plaintiffs and Sidley & Austin personnel regarding the sale and the Federal suit. The affidavit further indicates that none of the documents produced indicated that Sidley & Austin had given plaintiffs any legal advice regarding the Federal suit.

The affidavit does not state that none of the documents produced indicate that Sidley & Austin personnel did not advise plaintiffs regarding the sale itself. According to the Corcoran and Czuba affidavits, Durchslag attended meetings regarding the sale. Durchslag claims in his affidavit that he was not actively involved in the sale, but did have general knowledge regarding it. Bruner's affidavit does not eliminate the possibility that the documents produced by Sidley & Austin may indicate that Durchslag was involved in the sale negotiations.

Moreover, the firm arguably should have known of the problem when it hired Durchslag regardless of what the documents produced by Sidley & Austin may show. La Salle and Sehiessle require the new firm to make some effort to ascertain in advance whether the hiring of a new attorney will require screening. (La Salle, 703 F.2d at 259 & n.3; Sehiessle, 717 F.2d at 421.) In addition, while Illinois Rule 1.10(b) refers to the knowledge of the firm, it does so in the context of “When a lawyer becomes associated with a firm ***.” (134 Ill. 2d R. 1.10(b).) Illinois Rule 1.10 also indicates that a firm must take “affirmative steps” to accomplish screening before such screening will be deemed adequate. See 134 Ill. 2d R. 1.10(e)(4).

Defendant and contemnor asserted at oral argument that Winston & Strawn attempted to determine whether hiring Durchslag could cause a conflict. The record is silent as to whether any such effort was made. Corcoran and Czuba maintain, and defendant and contemnor did not dispute, that Corcoran Partners was one of Durchslag’s biggest clients. The record further indicates that plaintiffs’ attorney notified contemnor of the problem almost immediately after hearing that Durchslag had joined Winston & Strawn. A trial court could infer that if plaintiffs’ attorney could see the problem, Durchslag could have seen it and mentioned it upon agreeing to join the new firm.

However, this court does not need to determine whether any factual determination in this regard would be an abuse of discretion. Nor does this court need to decide today whether screening must be in place on the day an attorney joins a firm to prevent disqualification as a matter of law. The record indicates that contemnor and other Winston & Strawn personnel had actual knowledge of the problem on August 7 and 8, 1989, when contemnor was informed by Brace of the problem. In their brief, defendant and contemnor contend:

“[T]he undisputed evidence is that on August 8, 1989, *** the next day after Mr. Bruner was advised of Corcoran’s claim of a conflict, preliminary screening procedures were put into effect, and Corcoran’s attorney was assured in writing that no communications between Mr. Durchslag and the attorneys representing Dresser had taken place or would take place related to the Dresser litigation.”

The page of the record to which defendant and contemnor cite in support of this contention is the August 8, 1989, letter from Bruner to Brace. Although this letter states that Bruner had not spoken to Durchslag about the substance of the litigation and would not in the future, there is absolutely nothing else in the letter from which it could be inferred that any screening procedures were put in place at that time. Nor did the letter refer to other attorneys working on the Dresser litigation.

Later in their brief, defendant and contemnor state:

“As soon as Mr. Bruner was informed of the potential conflict, preliminary screening prohibitions which essentially barred all prohibited communications immediately were put in place and this fact was communicated to Corcoran.” '

Defendant and contemnor cite the Bruner affidavit to support this contention. However, the Bruner affidavit merely recounts the sequence of events surrounding the exchange of letters between Brace and Bruner and the circulation "of the screening memorandum five weeks later. The Bruner affidavit does not establish that contemnor or Winston & Strawn personnel took any action other than that contemnor and Durchslag agreed not to discuss the substance of the litigation. Indeed, the Bruner affidavit indicates that the relevant files were not placed in a locked room with limited distribution of keys until after the screening memorandum was issued.

In addition, the record in this case indicates that between August 8, 1989, and September 7, 1989, Durchslag and other Winston & Strawn attorneys attempted to solicit Corcoran Partners’ business regarding a transaction that could not be handled by Sidley & Austin. The record further indicates that the screening memorandum was not circulated at Winston & Strawn until the day the disqualification motion was filed.

The screening memorandum that was eventually circulated provided that none of the newly associated attorneys could discuss the litigation with any Winston & Strawn personnel other than one of the other newly associated attorneys. As of August 8, 1989, Durchslag may have known not to speak to anyone about the litigation. The screening memorandum provided that no Winston & Strawn personnel could discuss the litigation with any of the newly associated attorneys. As of August 8, 1989, Bruner and Ms. McCullough may have known not to speak to the former Sidley & Austin attorneys, but the record provides no indication that any other Winston & Strawn personnel were so barred. In particular, the Anderson affidavit does not indicate whether Anderson knew of Brace’s letter on August 8, 1989. The screening memorandum provided that all files relating to Dresser’s defense of the litigation would be secured by those having custody or control of them and could not be examined by or made available to any of the newly associated attorneys. The record indicates that this was not done before the memorandum was circulated. The screening memorandum provided that no Winston & Strawn attorneys, including the newly associated attorneys, would represent any of the adverse parties on any matter. The record indicates that Corcoran Partners was solicited by Durchslag and other Winston & Strawn attorneys between August 8, 1989, and September 7, 1989.

In sum, the record in this case does not support defendant and contemnor’s suggestion that Winston & Strawn imposed preliminary screening beyond Bruner and McCullough agreeing not to speak about the litigation with Durchslag. Nor is the record consistent with the suggestion that any action taken on August 7 or 8, 1989, was intended only as a preliminary measure pending full, effective screening.

Accordingly, even if screening were deemed timely if erected at the time the firm has actual knowledge of the problem, defendant and contemnor have failed to clearly and effectively show with objective and verifiable evidence that the screening in this case was timely.

C

Finally, Dresser and contemnor contend that the interests of justice militate against disqualification of Winston & Strawn under the facts and circumstances of this case. Questions of fact are committed to the discretion of the trial court. This court will not reverse such a determination absent an abuse of discretion by the trial court. It is not sufficient that this court might disagree with the trial court on such a determination; rather, the trial court must have acted arbitrarily, without employing conscious judgment, or exceeded the bounds of reason and ignored established principles of law so that prejudice resulted. See In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.

Defendant and contemnor note that it is uncontroverted that Durchslag did not share Corcoran Partners’ confidences with Winston & Strawn and will not do so in the future. Defendant and contemnor's reliance on the affidavits of Durchslag and the Winston & Strawn personnel representing Dresser, all of which state that no confidences were or will be disclosed, is misplaced. La Salle held that the trial court did not err in disqualifying the new firm where both the newly associated attorney and the partner at the new firm with responsibility for the litigation submitted affidavits stating that no confidences were disclosed. (See La Salle, 703 F.2d at 255, 259.) Likewise, affidavits similar to those at issue here were insufficient to warrant reversal in Schiessle. (See Schiessle, 717 F.2d at 419.) In a disqualification case where a firm, through one of its attorneys, attempted to represent a party adverse to a former client, the Seventh Circuit indicated that similar affidavits from firm members would not create a “Chinese wall.” (Analytica, Inc. v. N P D Research, Inc. (7th Cir. 1983), 708 F.2d 1263, 1267.) The Seventh Circuit accepted the affidavits of members of an attorney’s former firm in Novo, but, as noted above, the legal and ethical concerns may differ when reviewing disqualification of the attorney’s new firm.

That affidavits may be insufficient to prevent disqualification in cases such as La Salle, Schiessle, Analytica and this case should not be surprising. Both the screening concept embodied in Illinois Rule 1.10(b) and the presumption of shared confidences at the new firm rely on the principle that clients deserve more than the mere assurances of the newly associated attorney and his new firm that confidences were not and will not be shared. (See G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 192.1 (Supp. 1989).) It was within the discretion of the trial court to determine that the presumption in this case had not been clearly and effectively rebutted by objective and verifiable evidence, given the facts and circumstances in this case.

Defendant and contemnor note the size of Winston & Strawn and the undisputed fact that Durchslag’s office is on a different floor from the offices of the attorneys representing Dresser. These facts may well be relevant to a determination of the propriety of a disqualification order. (See Schiessle, 717 F.2d at 421.) Defendant and contemnor also emphasize that Winston & Strawn has already devoted over 10,000 hours to the representation of defendant. However, the record indicates and defendant and contemnor admit in their brief that the trial court was aware of the inherently fact-bound nature of the disqualification issue. The record indicates that defendant and contemnor presented these facts to the trial court. The trial court was persuaded by La Salle and Schiessle, in which large firms were disqualified despite these factors. In Papanicolaou, the Federal district court disqualified a firm that had performed almost 7,500 hours of work on behalf of its client. (Papanicolaou, 720 F. Supp. at 1086.) As noted earlier, the weight to be given to such evidence is a question of fact that falls within the discretion of the trial court. Based on the record presented in this case, we cannot say that the trial court abused its discretion in this regard.

Defendant and contemnor suggest that the disqualification motion was a tactical maneuver by noting that after the order was entered, plaintiffs did not object to Winston & Strawn representing defendant in settlement negotiations. However, a settlement negotiation is not binding on the parties in the absence of an agreement.

The record indicates that plaintiffs in this.case retained the option of going to trial after forcing defendant to hire new legal representation. Consequently, plaintiffs may have decided their ability to discontinue negotiations and insist on enforcement of the disqualification order protected them from the improper use of any confidences. Accordingly, the fact that plaintiffs did not object to a stay of enforcement in the limited context of settlement negotiations does not prove that the disqualification motion was made merely for purposes of delay or harassment.

Moreover, while we recognize that disqualification motions may be tactical, we also recognize that the word “tactical” means “per-taming to tactics” and that “tactic” is “[a]n expedient for achieving a goal.” (See American Heritage Dictionary 1237 (2d college ed. 1982).) It is thus appropriate to focus on the substantive goal, rather than the form of the expedient.

In this vein, we further recognize that disqualification motions could be filed with the goal of harassment. Those who use a motion to harass may be subject to. sanctions by the trial court. (134 Ill. 2d R. 137(b).) The determination of whether a motion is filed for improper purposes is within the sound discretion of the trial court. See In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1009, 559 N.E.2d 571, 573.

In this case, the record indicates that plaintiffs promptly notified contemnor of the potential conflict and requested disqualification. Contemnor’s response indicated that he and his firm were not going to disqualify themselves and indicated only that contemnor and Durchslag would not speak about the substance of the litigation. Contemnor’s response did not indicate that Durchslag would be isolated from confidences or secrets in this matter from any other source. Nor did it indicate that Durchslag had been isolated from contact with either Corcoran Partners or Dresser. Nor did it indicate that Durchslag and the entire firm of Winston & Strawn were precluded from discussing the litigation with each other. It was on this record, and without the benefit of affidavits subsequently prepared by Winston & Strawn personnel, that plaintiffs moved to disqualify contemnor and his firm. Defendant and contemnor argued to the trial court that the motion was filed for improper purposes. Based on this record, a trial court could conclude that the motion was not filed with the intention to harass defendant, contemnor or Winston & Strawn.

The argument essentially boils down to defendant and contemnor’s assertion that “[h]ere, the equities lie with Dresser.” Dresser may be significantly inconvenienced by having to retain new counsel in this litigation for reasons unrelated to Dresser’s actions. It is not Dresser’s fault that an attorney who apparently was involved in advising Corcoran Partners in the transaction joined Winston & Strawn. It is not Dresser’s fault that Durchslag discussed the litigation with plaintiffs and their litigation counsel after Dresser had withdrawn its consent regarding Sidley & Austin’s representation of Corcoran Partners. It is not Dresser’s fault that neither Durchslag nor Winston & Strawn discovered the potential conflict before Durchslag joined the firm. It is not Dresser’s fault that Winston & Strawn did not screen Durchslag from the litigation until the day the disqualification motion was filed — one month after the firm was put on actual notice of the problem.

Nor are any of the above facts traceable to the plaintiffs.

It is true that disqualification in this case may in some sense “punish” Dresser for the actions of Winston & Strawn. But if this rationale precludes disqualification in this case, it will preclude disqualification in almost every case; it is unlikely that a client will affirmatively seek to create the sort of situation presented in this appeal.

In sum, given the record on appeal in this case, the trial court did not err in disqualifying Winston & Strawn from further representing defendant in this litigation.

IV

Finally, there is the matter of the contempt order. Defendant and contemnor raised no defense on appeal other than attacking the underlying disqualification order. This court has previously upheld the imposition of a contempt fine where an attorney announced in court that he did not intend to abide by a proper disqualification order. (Weglarz, 128 Ill. App. 3d at 7-8, 470 N.E.2d at 27.) As the trial court did not err in disqualifying defendant’s firm, the same conclusion appears to be warranted here.

However, cases such as Weglarz and this case demonstrate that contempt citations have been used to secure review of certain pretrial orders. (See also Dunkin v. Silver Cross Hospital (1991), 215 Ill. App. 3d 65, 69, 573 N.E.2d 848, 850 (discovery order).) Where the contemnor in such a case claims that he or she has acted in good faith and has not subjected the court to disdain or scorn, a reviewing court may view the circumstances of the case to determine whether the contempt citation should be vacated. See Dunkin, 215 Ill. App. 3d at 69, 573 N.E.2d at 850.

The transcript of proceedings dated April 16, 1991, expressly indicates that Bruner was acting at Dresser’s request and indicates that Bruner sought the contempt finding merely to facilitate this appeal in good faith. The record does not indicate that contemnor held the trial court up to scorn or ridicule. Given the facts and circumstances of this case, we find that the contempt order and fine should be vacated.

For all of the aforementioned reasons, we affirm the March 13, 1990, judgment of the circuit court of Cook County disqualifying contemnor and the firm of Winston & Strawn from further representation of Dresser, vacate the April 16, 1991, contempt finding and order, and remand the case for further proceedings.

Affirmed in part; vacated in part and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

      This court’s decision in Index Futures Group, Inc. v. Street (1987), 163 Ill. App. 3d 654, 516 N.E.2d 890, may also be illustrative of the differences between Panduit and Novo. In Index Futures Group, the plaintiff sought to disqualify defense counsel after attorneys from plaintiff’s firm joined the defense firm. This court reversed the disqualification order entered by the trial court. As in Panduit, plaintiff sought disqualification of the new firm, but this court refused to reimpute imputed knowledge to the new firm. This court, like the Panduit court, also relied on Novo in reaching its conclusion. Unlike Panduit, reliance on Novo in Index Futures Group was proper because plaintiff’s attorneys admitted that the attorneys who joined the defense firm shared none of plaintiff’s confidences. Accordingly, the motion could have been viewed as tactical. In contrast, the record here is undisputed that Durchslag shared Corcoran Partners’ confidences.