author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51863.
    (No. 51947.
    THE BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES FOR CHICAGO STATE UNIVERSITY, Petitioner, v. THE ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION et al., Respondents. — ROYAL CROWN BOTTLING COMPANY OF CHICAGO, Appellant, v. THE ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION et al., Appellees.

      Opinion filed November 21, 1979.

    — Rehearing denied February 1, 1980.

      Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (Richard T. Dunn and Kenneth G. Kombrink, of counsel), for petitioner.
    William J. Scott, Attorney General, of Springfield (Russell C. Grimes, Jr., Assistant Attorney General, of Chicago, of counsel), for respondents Illinois Fair Employment Practices Com. et al.

    Randolph N. Stone, of Mandel Legal Aid Clinic, of Chicago, for respondent Dr. Nahum Zackai.
    Ronald Wilder and Bennett L. Epstein, of Aaron, Aaron, Schimberg & Hess, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Russell C. Grimes, Jr., Assistant Attorney General, of Chicago, of counsel), for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

These consolidated cases present the question, first considered by this court in Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, whether the Fair Employment Practices Commission (FEPC) is empowered to issue a complaint against an employer more than 180 days after the filing of an unfair employment practices charge.

Section 8.01(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a)), prior to its amendment (see Pub. Act 80 — 1452, effective Sept. 16, 1978; Pub. Act 80 — 1455, effective Sept. 16, 1978), provided in part:

“Whenever such a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof or within any extension of that 180 day period agreed to in writing by all parties and approved by a member of the Commission, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. ***”

In cause No. 51863, a charge of unfair employment practice was filed with the FEPC on November 30, 1976, alleging that petitioner, the Board of Governors of State Colleges and Universities for Chicago State University, wrongfully refused to permit respondent Nahum Zackai to rescind a letter of resignation. On June 22, 1978, more than a year after the expiration of the 180-day statutory period, the FEPC issued a complaint against petitioner seeking reinstatement and back wages. Petitioner moved to dismiss the complaint, asserting that it was barred by section 8.01(a) of the Act. The hearing officer for the FEPC denied the motion and ordered petitioner to answer the complaint. We allowed petitioner’s motions for leave to file a petition for writ of prohibition and to stay the FEPC proceedings. Respondents moved to dismiss, and their motions were taken with the case.

Cause No. 51947 involves a charge filed with the FEPC by Werner Herb on March 22, 1976, alleging that plaintiff, Royal Crown Bottling Company of Chicago, discriminated against him because of a physical handicap. On October 4, 1978, more than two years after the expiration of the 180-day statutory period, the FEPC issued a complaint. Plaintiff’s motion to dismiss the complaint was denied by the hearing officer. Plaintiff filed an action in the circuit court of Cook County seeking to enjoin the FEPC from proceeding. The circuit court denied preliminary injunctive relief. Plaintiff appealed to the appellate court, and we allowed its motion for direct appeal (58 Ill. 2d R. 302(b)). We also allowed the motion of Werner Herb that he be either added as an indispensable party or allowed to intervene as a party defendant.

We consider first' the contention of defendant Herb that plaintiff’s request for an injunction should be denied because it had failed to exhaust its administrative remedies and that it had an adequate remedy at law. He argues that the only administrative decision made in this matter is the interlocutory order of the hearing officer denying Royal Crown’s motion to dismiss, that the order is not final, and that review of the Commission’s final order can be had only under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 48, par. 861). Citing a number of authorities (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350; Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill. 2d 31; People ex rel. Naughton v. Swank (1974), 58 Ill. 2d 95; Chicago Welfare Rights Organization v. Weaver (1973), 56 Ill. 2d 33), he argues that “to allow this case to proceed in the courts would be to allow Royal Crown to circumvent the statutory review procedures provided in the FEPA by the General Assembly.”

The authorities cited are clearly distinguishable and apposite here is our holding in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541. In that case the plaintiff brought an action seeking a declaratory judgment that a procedural rule of the Board was not authorized under the Environmental Protection Act. In deciding that the plaintiff was not required to exhuast its remedies, we said:

“This court has held that where an administrative rule asserting administrative authority is challenged on its face as not authorized by the enabling legislation, exhaustion is not required. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548.) Exhaustion is not required where a statute or rule under which an administrative body purports to act is challenged as unauthorized, since the judicial determination will affect the jurisdiction of the administrative body in all matters, not only in the instant circumstances (see Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552).
The purposes for the exhaustion requirement are not served where an administrative assertion of authority to hear or determine certain matters is attacked on its face on the grounds that the assertion of jurisdiction is not authorized by statute. *** Where an agency’s statutory authority to promulgate a rule and exercise jurisdiction is in issue, no questions of fact are involved. The agency’s particular expertise is not implicated in statutory construction. Further, there is virtually no chance the aggrieved party will succeed before an agency where the issue is the agency’s own assertion of authority. ***
We conclude that where an administrative body’s assertion of jurisdiction is attacked on its face and in its entirety on the ground that it is not authorized by statute, exhaustion of administrative remedies and compliance with the Administrative Review Act is not required. Under these circumstances the judicial determination involves a question of law which will affect the jurisdiction of the administrative body in all cases and will hasten the administration of justice.” 74 Ill. 2d 541, 550-51.

Citing Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, petitioner and plaintiff contend that, in issuing complaints more than 180 days after the filing of the charges, the FEPC had exceeded its statutory authority. It is the contention of the defendants that under our holding in Springfield-Sangamon the FEPC was authorized to issue the complaints, and in ruling on the motions to dismiss was empowered to make a case-by-case determination of the question whether the failure to file within the 180-day period was prejudicial to the employer.

Defendants’ argument, in part, rests on the fact that in Springfield-Sangamon the court did not overrule Moss-American, Inc. v. Illinois Fair Employment Practices Com. (1974), 22 Ill. App. 3d 248, but held it to be inapposite. (71 Ill. 2d 61, 72.) The question presented in Moss-American was whether the 180-day period expired on November 2, 1968, or November 9, 1968. The hearing officer and the FEPC determined that the period expired on the latter date (22 Ill. App. 3d 248, 253) and the appellate court was not required to decide the question whether the FEPC exceeded its authority in issuing the complaint. Although the court in Springfield-Sangamon made reference to “waiver, estoppel and extension by the parties” (71 Ill. 2d 61, 69), the record presented no such issues. A judicial opinion is authority only for what is actually decided (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305; Village of Lombard u. Illinois Bell Telephone Co. (1950), 405 Ill. 209), and the clear and unequivocal holding of Springfield-Sangamon is that “the 180-day period prescribed in the statute was intended to ensure expeditious action on behalf of the FEPC, and must be considered mandatory.” 71 Ill. 2d 61, 68.

From our examination of the statute we conclude that the legislative intent was that the complaint be filed within 180 days of the charge and that absent an extension of the 180-day period agreed to in writing by all parties, and approved by a member of the FEPC, the filing of the complaint subsequent to the expiration of that time was unauthorized. We need not consider the question whether conduct other than an agreement in writing may be sufficient to extend the period, since the record presents no such question and, in each instance, the motions to dismiss filed with the FEPC show clearly that the limitation was not waived.

The parties have argued the question whether, under the circumstances presented, the issuance of a writ of prohibition is appropriate. The rule governing issuance of the writ of prohibition is stated in People ex rel. Town Court v. Harrington (1961), 21 Ill. 2d 224, 226, wherein the court said: “A writ of prohibition is an extraordinary judicial process whereby a superior court may prevent inferior tribunals or persons from exercising a jurisdiction with which they have not been vested by law.” Its use is equally appropriate to prevent further proceedings when failure to act within the period fixed by statute renders void the actions of an administrative agency. See Cummings v. Daley (1974), 58 Ill. 2d 1; Szkirpan v. Board of Education (1975), 29 Ill. App. 3d 1047.

For the reasons stated it is ordered that in cause No. 51863 the writ of prohibition be issued, and that in cause No. 51947 the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

51863 - Writ awarded.

51947 - Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 51726.
    RUBY L. BROOKS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Roosevelt Memorial Hospital, Appellee).

      Opinion filed December 3, 1979.

    — Rehearing denied February 1, 1980.

      UNDERWOOD, J., dissenting.
    David M. Wittenberg, of Chicago, for appellant.

      John P. McAuliffe, of Weidner & McAuliffe, of Chicago (William J. Harte, Ltd., of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, Ruby L. Brooks, sought to recover workmen’s compensation for injuries sustained while she was employed as a nurse’s aide for Roosevelt Memorial Hospital on October 11, 1975. The parties stipulated during the hearing before the arbitrator that the accidental injuries arose out of and in the course of the claimant’s employment. The arbitrator, however, denied an award on the basis that the injury did not arise out of the employment. A corrected decision was entered later by the Industrial Commission which found that the injury did arise out of and in the course of the claimant’s employment, but denied compensation because the claimant failed to prove a causal connection between the injury and the claimant’s present condition of ill-being. The circuit court of Cook County, on certiorari, confirmed the decision of the Industrial Commission. The claimant appeals pursuant to Rule 302(a). 58 Ill. 2d R. 302(a).

On October 11, 1975, the claimant was working as a nurse’s aide at Roosevelt Memorial Hospital. As she walked between two beds, she slipped and fell, striking her lower back against the foot of one of the beds. The claimant went to the nurse’s station, reported the accident, and was sent to the emergency room of the hospital. A doctor on duty in the emergency room prescribed a pain killer for her, and instructed her to go home to bed and to return the next day for X rays. The claimant followed the doctor’s instructions. The X rays revealed that she had not suffered any fracture or dislocation as a result of the accident. The claimant has consistently maintained that the pain she feels in her lower back and down her left leg commenced with the accident of October 11, 1975.

The claimant saw Dr. Jesse Weinger on October 17, 1975, Dr. Weinger testified that upon examination of the claimant he noticed decreased forward flexion of the spine, some right paravertebral muscle spasm, and a mild left thoracal lumbar scoliosis. He diagnosed her injury as acute lumbosacral sprain, and stated that he could not be sure at that time if there was a herniated disc. Pursuant to Dr. Weinger’s recommendation, the claimant did not return to work until October 27, 1975. When she did return to work, she needed help in performing her duties and complained of constant pain. She stopped working December 4, 1975. On December 5, 1975, she returned to Dr. Weinger. He took X rays which showed a mild narrowing of the L5-S1 disc space. Dr. Weinger diagnosed claimant’s condition at that time as a mild herniated disc. The claimant, returned to work for intermittent periods over the next year.

The claimant was admitted to Michael Reese Hospital on March 28, 1976. An electromyogram (EMG) was performed which showed a minimal SI radiculopathy bilaterally, indicating nerve root irritation. Such a showing is consistent with a disc herniation. Thereafter on April 6, 1976, the claimant underwent a myelogram, which was negative. On May 21, 1976, the claimant again was examined by Dr. Weinger. At that time he discovered a positive Lasegue sign on the left side, which indicates radicular pain. Dr. Weinger also noted weakness in all the muscles of the left leg, probably because of a functional overlay. The doctor also testified that though he could not make a positive diagnosis at the time of the hearing before the arbitrator, June 2, 1976, the definite findings of left-sided pain and the positive EMG warranted further study. The arbitrator thereafter denied compensation.

On review before the Industrial Commission, in May 1977, the claimant repeated her version of the accident and reviewed her medical history. Dr. Carlo Scuderi, who examined claimant three times in 1977, subsequent to an exploratory laminectomy performed January 3, 1977, testified at the continued hearing held in September 1977. Dr. Scuderi testified that X rays taken on February 28, 1977, showed a narrowing of the lumbar sacral disc and droplets of pantopaque from the myelography. He also stated that there was considerable atrophy of the sacrospinalis muscles, that two of seven tests performed on the claimant yielded positive evidence of ligamentous instability and sciatic nerve irritation, and that claimant walked with a bad limp on the left leg and her left thigh showed visible shrinkage. In response to a hypothetical question, Dr. Scuderi answered that he thought there was a causal connection between the incident of October 11, 1975, and the claimant’s present condition of ill-being. On cross-examination, Dr. Scuderi said that in his examinations of the claimant he could not find any objective clinical evidence of injury, only subjective evidence as manifested by her pain.

Roosevelt Memorial Hospital tendered two reports of Dr. Ben Camacho, indicating the results of examinations conducted January 28, 1976, and July 5, 1977. The reports confirmed claimant’s version of the accident and her description of the pain. The second report described a scar resulting from the laminectomy. It also indicated that the test results had been negative except for the straight leg test, indicating pain at the back, primarily on the left side. Dr. Camacho’s later report also contained the statement: “If it can be shown that the surgery [laminectomy] done was due to the alleged episode of October 1975, then the usual lump sum for similar cases is indicated for disposition purposes.”

The sole issue is whether the Industrial Commission’s finding that the claimant failed to prove a causal connection between the injury and the claimant’s present condition of ill-being is against the manifest weight of the evidence.

Proof of good health prior to the time of injury and a subsequent condition of ill-being involving injury to the affected area creates an issue of fact as to the causal relationship between the injury and the condition of ill-being. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245.) The factual determinations of the Industrial Commission will not be set aside unless they are contrary to the manifest weight of the evidence. (Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 408.) The claimant testified that she had suffered a minor injury to her back in either 1972 or 1973, but that she had not encountered any other problem with her back until the accident of October 11, 1975. Drs. Weinger and Camacho also noted that the claimant has a spina bifida occulta of LI and L2, a congenital condition brought about by a failure of the posterior arch of the spine to fuse. This condition would not break the causal connection, however, since “the law is clear that the aggravation or acceleration of a preexisting disease is an injury which is compensable under the statute, if caused by some accident occurring in the course of employment.” (Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 412.) Thus, the claimant has raised an issue of fact concerning the causal relationship between her injury and her present condition. In order to establish the right to compensation, the claimant need not prove that some phase or act of employment was the sole causative factor. (Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, 434.) She must only prove that her employment was a causative factor. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 29.

We think that a clear and unbroken causal connection between the claimant’s injury and her subsequent condition of ill-being has been shown. From October 11, 1975, onward, the claimant has sought medical treatment for the injury she has persistently stated occurred to her lower back, causing her severe pain both in the lower back and in her left leg. There is no medical testimony which conflicts with the conclusion that the accident of October 11, 1975, caused her present condition. In fact the hospital’s exhibits — Dr. Camacho’s reports — corroborate this conclusion. Furthermore, any assertion by the hospital that the claimant did not present evidence of objective symptoms or conditions as required by section 8(b)(7) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(b)(7)) must fail. That requirement of the statute was deleted on July 1, 1975, shortly before the claimant’s accident. (Pub. Act 79 — 79, 1975 Ill. Laws 252.) Finally, though the hospital would assert that the exploratory laminectomy was an independent intervening cause of the claimant’s present condition, it is a test procedure which became necessary only after less drastic tests proved negative. It would not have been performed had the claimant not suffered the injury on October 11, 1975. Therefore, the laminectomy is part of the causal connection.

For the reasons stated above, the decision of the Industrial Commission is contrary to the manifest weight of the evidence. The judgment of the circuit court is reversed, and the cause is remanded to the Industrial Commission for the entry of an appropriate award.

Reversed and remanded, with directions.

MR. JUSTICE UNDERWOOD,

dissenting:

I cannot agree that the unanimous action of the arbitrator, Industrial Commission and circuit court of Cook County in denying compensation was contrary to the manifest weight of the evidence. The record before us contains no objective evidence supporting or accounting for claimant’s allegations of pain. Dr. Weinger, who had originally thought claimant had an acute lumbosacral sprain, some six weeks later diagnosed her condition as a mild herniated disc. By the time the case was heard by the arbitrator the doctor indicated he could find no pathology and could not make a positive diagnosis. X rays and a myelogram were essentially negative. Dr. Matz’s report, not referred to by the majority, found no neurological deficits.

Between the arbitrator’s denial of compensation and the hearing before the Commission, claimant underwent further examination. Another myelogram was negative, and the results of a lumbar venogram were inconclusive. Because claimant persisted in her complaints of pain an exploratory laminectomy was performed. It, too, was negative. Dr. Scuderi testified that if claimant were suffering “true pain” nature would be expected to “splint the back” in response to that pain and that he found no “evidence of paravertebral muscle splinting.”

In short, it seems to me that, considering the deference usually paid Commission findings (see, e.g., Gould National Batteries, Inc. v. Industrial Com. (1966), 34 Ill. 2d 151), the unanimous denial of compensation here cannot be said to be contrary to the manifest weight of the evidence.

I would affirm.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE CLARK,

text:
    (No. 51608.

      In re LUIS KUTNER, Attorney, Respondent.

      Opinion filed October 19, 1979.

    — Rehearing denied February 1, 1980.

      KLUCZYNSKI, J., took no part.
    CLARK, J., dissenting.
    John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Steven Ackerman, of Chicago, for respondent.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On July 7, 1976, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging the respondent, Luis Kutner, with unprofessional conduct. The complaint alleged that respondent was guilty of overreaching, the use of a curriculum vitae to induce the payment of an excessive fee, and charging an excessive fee in violation of Disciplinary Rule 2 — 106 of the Illinois Code of Professional Responsibility (1970) (DR 2-106).

On June 1, 1977, the Hearing Board recommended that the motion of the respondent for a directed finding at the close of the Administrator’s case be sustained due to the lack of evidence concerning the propriety of the fee charged. On June 24, 1977, however, the Review Board reversed the Hearing Board, finding that the Administrator had established a prima facie case by competent, credible evidence. The cause was remanded to the Hearing Board for further proceedings. Following prolonged hearings, the Hearing Board on June 27, 1978, filed its report and recommendation, concluding that respondent violated DR 2 — 106 by charging an excessive fee, but that the use of the curriculum vitae “did not have any determining influence on Warren Fisher” and was not “a matter warranting discipline.” The Hearing Board unanimously recommended that the Review Board impose a private reprimand as provided by Rule 10.4 of the Rules of the Attorney Registration and Disciplinary Commission. (Ill. Rev. Stat. 1975, ch. 110A, following par. 770, Rule 10.4, Rules of the Attorney Registration and Disciplinary Commission.) On December 20, 1978, the Review Board issued its report and recommendation, in which it was determined that the appropriate measure of discipline for violation of DR 2 — 106 should be censure of respondent by this court. This disciplinary action comes before us on respondent’s exceptions to the report and recommendation of the Review Board.

On August 14, 1973, the complainant, Warren P. Fisher, was arrested in Glencoe and charged with battery by his sister-in-law, Ruth Fisher. Fisher testified that he and his wife were living temporarily in a home owned by his brother and sister-in-law while they awaited completion of a condominium which they had purchased. At about midnight, Ruth Fisher came in the house, went into the bedroom and ordered Warren Fisher and his wife out of the house. According to his testimony, Ruth was an alcoholic and at the time of her entry that night she appeared to be quite intoxicated. When he escorted her out of the bedroom, she threatened to call the police. Sometime later, the police arrived and arrested him for battery.

Upon his mother’s recommendation, Fisher called respondent and they arranged a meeting to discuss the case. On August 28, 1973, respondent met with him and told him that he would represent him in the defense of the criminal battery charge for $5,000. An additional fee for representation of Fisher in a possible civil suit was also mentioned. At this time, respondent provided him with a collage of clippings concerning respondent’s achievements, although respondent argues that these materials were given to Fisher only after he had requested them. Fisher paid the respondent $250 as an initial consultation fee, but indicated that he could not afford to pay the balance of the $5,000 fee. Respondent testified that he then considered the Fisher file closed. However, a few days later, after managing to borrow the additional money, Fisher contacted respondent and advised him that he would send a check for the balance due, $4,750.

Subsequently, Fisher and respondent met to discuss the details of the case. At this second meeting, respondent asked Fisher to provide him with a written summary detailing the facts of the encounter with his sister-in-law. Respondent also discussed further the possibility of a civil suit against the Glencoe police. On September 4, 1973, one day prior to Fisher’s court date, respondent called Fisher and advised him that he would not be able to meet Fisher in court and that he was sending attorney Gorman in his place. Fisher was instructed by respondent not to tell Gorman how much respondent was paid to take the case. On the 5th, Fisher met Gorman in the courtroom. When the attorney approached the bench to request a continuance, the complainant, Ruth Fisher, stepped up and asked the judge to drop the charges. The case was then dismissed.

Afterwards, Fisher consulted two attorneys, each of whom advised him that the fee which he had paid respondent was excessive. On October 25, 1973, Fisher wrote a letter to respondent requesting the refund of $4,000, the amount by which Fisher considered he was overcharged. Respondent, however, refused to return any portion of the fee paid by Fisher, who then contacted the Chicago Bar Association. The matter was referred to the Committee on Professional Fees, which initiated steps toward settlement. While Fisher agreed to submit the dispute to binding arbitration, respondent refused. Respondent did, following remand by the Review Board, offer to settle the matter by refunding $1,000.

In his appearances before the Hearing Board, respondent testified at length as to his accomplishments in the legal profession, particularly in international matters and civil rights. He has been practicing law for nearly 49 years, and much of his practice throughout those years has been devoted to pro bono publico work. The Hearing Board found that respondent has received many citations praising his work in those fields and that he is the author of a number of law-review and other articles. However, notwithstanding respondent’s achievements in the field of civil rights and international law, there is no evidence that respondent had any extensive experience with, or particular expertise in, the defense of routine criminal cases such as the one involving Fisher, particularly in recent years.

Respondent’s argument, as we interpret it, is that attorney-client fixed-fee agreements, when freely entered into, are not subject to scrutiny by a disciplinary committee and may not form the basis for disciplinary action against an attorney. Rather, respondent contends that any dispute over a fixed fee must be resolved based on traditional contract principles in a court of law. In support of this argument, respondent cites Sokol v. Mortimer (1967), 81 Ill. App. 2d 55. The Sokol case, however, is inapposite. It merely stands for the proposition that attorney-client fee arrangements are not presumptively fraudulent. The court in Sokol simply restated what has been the law in Illinois at least since 1893, when this court decided Rolfe v. Rich (1893), 149 Ill. 436. In Rolfe, the court stated:

“While the law is, that dealings between attorney and client, resulting in advantage to the former, will be closely scrutinized, and the attorney be required to show the utmost good faith and fairness, and that the client dealt with full knowledge of his rights, it does not prohibit all dealings between them, or declare all contracts made by the attorney with the client ipso facto void, or voidable at the instance of the client.” 149 Ill. 436, 437.

The Supreme Court of Washington faced a similar argument in the case of In re Greer (1963), 61 Wash. 2d 741, 380 P.2d 482. In response to the respondent’s contention that the issue of reasonableness of fees is a problem for the civil courts and ought not to form the basis for a disciplinary proceeding, the Washington Supreme Court stated:

“While a determination that a fee is reasonable or unreasonable is appropriate only to a civil court, where the fee retained or demanded can be considered to be unconscionable, it is a matter for a disciplinary proceeding. ***
***
*** When the courts use the expression ‘unconscionable’ in classifying a fee, we think they mean an amount under the circumstances which neither lawyer nor client can sensibly argue to be otherwise.” (61 Wash. 2d 741, 749-50, 380 P.2d 482, 486-87.)

The court further noted:

“Where *** ethical considerations take us from one end of the spectrum marked ‘reasonable’ through categories designated successively as unreasonable, excessive, immoderate, inordinate, exorbitant, and unconscionable, we move in a direct line from the civil arena into a disciplinary forum.” (61 Wash. 2d 741, 750, 380 P.2d 482, 487.)

Similarly, the California Supreme Court has stated:

“It is settled that gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘ “so exorbitant and wholly disproportionate to the services performed as to shock the conscience.” ’ ” Bushman v. State Bar of California (1974), 11 Cal. 3d 558, 563, 522 P.2d 312, 314, 113 Cal. Rptr. 904, 906.

We find the reasoning employed in Greer and Bushman persuasive and agree that, where there is an unconscionable fee fixed in an attorney-client agreement, the matter is subject to action by the Attorney Registration and Disciplinary Commission.

Additionally, DR 2 — 106 of the Code of Professional Responsibility (1970), which has been adopted by the board of governors of the Illinois State Bar Association and the board of managers of the Chicago Bar Association, subjects a lawyer to disciplinary action for collection of an “excessive fee.” As we have stated frequently, although such canons of ethics may not be binding on this court, “they constitute a safe guide for professional conduct and an attorney may be disciplined for not observing them.” (In re Krasner (1965), 32 Ill. 2d 121, 129. See also In re Taylor (1977), 66 Ill. 2d 567, 571; In re Broverman (1968), 40 Ill. 2d 302, 306.) DR 2-106 provides in pertinent part:

“(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee.
(B) A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.”

It is our function to determine whether respondent’s receipt of a $5,000 fee for representation of Fisher in his battery case constitutes collection of an excessive fee under DR 2 — 106, thereby warranting disciplinary sanctions against respondent. In an apt statement with which we agree, the Florida Supreme Court, in considering a similar question, noted: “Few, if any, areas of attorney discipline are as subject to differing interpretations as the matter of what constitutes an excessive attorney’s fee.” (The Florida Bar v. Moriber (Fla. 1975), 314 So. 2d 145, 148.) Nevertheless, we are convinced that the circumstances of this case leave no room for doubt that the fee charged was clearly excessive.

The administrator presented the expert testimony of Sherman Magidson, an attorney licensed in 1959 and an experienced practitioner in the field of criminal law. He testified, in response to a hypothetical question which set forth all of the relevant facts, that the fee customarily charged for representation of a client in Fisher’s position, assuming it would be necessary to go to trial to defend the battery charge, would be between $750 and $1,250. He testified further that in the event of dismissal of the criminal charge prior to trial, as in the Fisher case, the customary practice is to return a portion of the fixed fee to the client. Magidson further testified that Fisher’s case did not appear to be a novel one, that there were no complex legal issues involved, that it did not present unusual time or labor requirements, and that the acceptance of this case would not preclude other employment by the attorney.

The Hearing Board concluded that respondent spent between 5 and 6 hours on Fisher’s case, while respondent estimated his total time commitment at approximately 10 hours. Respondent stressed, however, that he did not want this disciplinary action resolved by computing a reasonable fee on an hourly basis. Rather, respondent seeks to rely on, as he refers to it, the “law of fixed fees.” However, even a cursory reading of DR 2 — 106 leads one to the inescapable conclusion that the time required to perform a legal task is a factor to consider in attempting to determine whether a fee is excessive. Even conceding that respondent spent 10 hours on the case, respondent was paid at a rate of $500 per hour.

Considering the time and labor expended, the fee customarily charged, and all of the other elements of DR 2 — 106, we find a $5,000 fee for representation of Fisher in a routine battery case which never went to trial not only excessive, but unconscionable. We cannot accept respondent’s description of the Fisher case as an extraordinary one for which “an involved, unique preparation would be necessary.” Rather, we concur in the Hearing Board’s characterization of it as a “simple battery case.” Furthermore, respondent’s arguments that DR 2 — 106 is unconstitutionally vague or that the disciplinary proceedings herein were tainted by prosecutorial misconduct do not merit discussion.

Accordingly, we agree with the conclusion of the Hearing Board and the Review Board that respondent’s conduct in this matter violated DR 2 — 106 and warrants discipline. Taking into consideration the fact that respondent has practiced law for nearly 50 years during which he has engaged in many pro bono publico activities, together with the absence of any other disciplinary complaints, we believe that censure by this court is the appropriate sanction to impose.

Respondent censured.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.

MR. JUSTICE CLARK,

dissenting:

I must dissent because I think the majority is venturing into troubled waters when it begins to assess the value of a lawyer’s services for the purpose of imposing disciplinary sanctions. It is quite within the sphere of proper judicial activity to set legal fees as part of punitive damages, or to approve a fee as reasonable in dissolution-of-marriage or probate cases. It is quite another matter, however, when we hold that an attorney has charged an excessive fee and publicly censure him for so doing. The majority has engaged in a subjective process in which it places an arbitrary value on legal services, thereby voiding a valid agreement, based on a code which is not binding upon this court. I would urge that before we besmirch a lawyer’s record of 49 years, which includes a considerable amount of pro bono publico work, we have a firmer basis for doing so than that which exists here.

The majority fails to realize that its opinion says that a lawyer can voluntarily enter into an agreement with a client, based on the mutual agreement of the parties as to the worth of the attorney’s services, only to be second-guessed later on.

The majority overlooks what was in the contemplation of the parties at the time they entered into the fee agreement. Fisher needed legal representation surely, but there is nothing in the record to indicate that his need was urgent or that he was desperate to obtain counsel on that day. Therefore he could have rejected respondent’s offer and sought other counsel. However, Fisher insisted on retaining respondent, based in part on the recommendation made by Fisher’s own mother. The point is that Fisher thought he was getting fair value for his money since respondent had a favorable reputation and 49 years of experience. While it is our duty to scrutinize lawyer-client dealings where an injustice has been done, I do not think we should pierce the veil of lawyer-client relations where no fraud or other wrongdoing has been shown. A client who voluntarily agrees to pay what he thinks a lawyer’s services are worth should not be heard to complain when, after the lawyer has begun to prepare the case, the charges are dismissed. My opinion might be different had coercion, overreaching or deception been shown here. But those elements simply are not present.

An additional ground for my disagreement with the majority opinion is its reliance upon the Code of Professional Responsibility. We have, as the majority opinion notes, repeatedly asserted that the Code is not binding upon the court but serves only as a guide. (In re Taylor (1977), 66 Ill. 2d 567, 571; In re Heirich (1956), 10 Ill. 2d 357, 387.) I would think, however, that in so controversial an area as attorneys’ fees, where one’s fee is dependent upon so many subjective factors, we should be chary about imposing sanctions pursuant to a code which has no legal effect in Illinois. There are times when the Code proscribes conduct which clearly should be forbidden. It is in those kinds of cases that we should apply the Code. But where, as here, the infraction is subject to varying interpretation, we should not impose sanctions without a clear and binding directive, either by rule or statute.

Moreover, it is my belief that the court today has embarked on a path which contravenes the United States Supreme Court’s decision in Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004. The court proscribed the formulation of minimum fee schedules as violative of section 1 of the Sherman Act (15 U.S.C. sec. 1 (1970)). The reason behind that decision was that minimum fee schedules constituted an anticompetitive system in restraint of trade. (421 U.S. 773, 792, 44 L. Ed. 2d 572, 587, 95 S. Ct. 2004, 2015.) I think the same can be said of the effect the majority opinion may have. By finding an attorney’s fee to be excessive, the majority is imposing an artificial ceiling on fees, rather than permitting the forces of the marketplace to determine what a fee should be. The Supreme Court has found that the legal profession, at least with regard to fees, is analogous to any other business. (421 U.S. 773, 787, 44 L. Ed. 2d 572, 585, 95 S. Ct. 2004, 2013.) Thus I think it is not our place to interfere with the workings of the legal marketplace in the absence of wrongdoing or illegality, the same way as it is not our place to interfere with the workings of the remainder of the commercial marketplace. We should instead allow the marketplace to find its own level. It might be argued that this case is distinguishable because Goldfarb holds that the State bar, as an arm of the Virginia Supreme Court, could not promulgate fee schedules which tended to raise the cost of legal services, while this case attempts to limit the cost of legal services. But that comparison is not borne out by the opinion in Goldfarb. There it was stated:

“Nor was it necessary for petitioners to prove that the fee schedule raised fees. Petitioners clearly proved that the fee schedule fixed fees and thus ‘deprive [d] purchasers or consumers of the advantages which they derive from free competition.’ [Citations.] ” (421 U.S. 773, 785, 44 L. Ed. 2d 572, 584, 95 S. Ct. 2004, 2012.)

Therefore it is not the effect of price fixing which the court held to be illegal, but the anticompetitive practice of deciding what a fee should be, even if the fee set down was a reasonable one. Price fixing is illegal per se under the Sherman Act whether the prices fixed are reasonable or not. United States v. Socony-Vacuum. Oil Co. (1939), 310 U.S. 150, 218, 84 L. Ed. 1129, 1165, 60 S. Ct. 811, 842.

While it is true that the majority, as a branch of the State government, is exempt from the provisions of the Sherman Act (Bates v. State Bar (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691), I think there can be no question but that the majority, in attempting to define what is a reasonable fee as opposed to an excessive one, is in fact engaging in an anticompetitive practice. Instead, I agree with Mr. Chief Justice Burger’s statement in his dissent in Bates which, while addressing price advertising, has equal applicability to price fixing:

“[L]egal services *** by necessity, must vary greatly from case to case. Indeed, I find it difficult, if not impossible, to identify categories of legal problems or services which are fungible in nature. *** A ‘reasonable charge’ for [an uncontested] divorce could be $195, as the appellants wish to advertise, or it could reasonably be a great deal more, depending on such variables as child custody, alimony, support, or any property settlement. Because legal services can rarely, if ever, be ‘standardized’ and because potential clients rarely know in advance what services they do in fact need, price advertising can never give the public an accurate picture on which to base its selection of an attorney.” 433 U.S. 350, 386, 53 L. Ed. 2d 810, 838, 97 S. Ct. 2691, 2710.

I would suggest that it is not our function to delve into what is a reasonable fee in a given case precisely because no case is “standard.” The negotiation of a fee should be left to the parties. A person may be willing to pay more for the services of a particular attorney at a particular time, when, however, under different circumstances, the attorney’s services would not be as valuable. In this connection the question may be asked whether the fee in this case would be excessive if the attorney involved were a nationally famous criminal lawyer? Or, would the fee be considered excessive if a corporate client retained an attorney because of his reputation as an aggressive advocate, and the case was settled shortly thereafter? I doubt it, because the attorney would argue that since he was ready, willing and able to perform, he had performed his part of the agreement and was entitled to keep the retainer. The result should not differ here, simply because the respondent does not possess a reputation as “high-powered” and the case involved a simple battery. I do not think it is appropriate for the court to rate one attorney’s worth over another’s, which is precisely what this case sets a precedent for doing.

Accordingly, because of the reservations I have expressed about the dangers of assessing the value of legal services in order to impose disciplinary sanctions, I must dissent from the majority opinion.


author: MR. JUSTICE RYAN

text:
    (No. 51830.
    JOHNS-MANVILLE PRODUCTS CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Dorothy Smith, Appellee).

      Opinion filed December 3, 1979.

    — Rehearing denied February 1, 1980.

      Rooks, Pitts, Fullagar 8c Poust, of Chicago (Daniel P. So cha, Robert K. Bush and Ian M. Sherman, of counsel), for appellant.

      Raymond L. Lannon, Ltd., of Chicago (Raymond L. Lannon and Patricia C. Lannon, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the compensability of a fatal heart attack under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 etseq.). Claimant is the widow of Allen Smith, an employee of the Johns-Manville Products Corporation who died from a heart attack suffered several hours after his return home from work. The arbitrator denied compensation. On review, the Industrial Commission awarded compensation, and the circuit court of Lake County confirmed the decision of the Commission. Johns-Manville appeals directly to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)). At the time of his death, Smith was 60 years of age, 5 feet 6 inches tall and weighed approximately 350 pounds. Medical testimony clearly established that Smith suffered acute congestive heart failure due to a preexisting heart disease. The main issue on appeal is whether the nature of Smith’s employment contributed to and aggravated his preexisting heart condition; that is, whether Smith sustained accidental injuries arising out of and in the course of his employment on July 13, 1974, which resulted in his death on July 14, 1974.

Smith was employed as a pipe hydrotester at JohnsManville in Waukegan. The pipes tested were made of asbestos cement, weighed from 200 to 1,000 pounds, and measured 13 feet in length and 10 or 14 inches in diameter. Smith’s primary duty consisted of aligning these pipes onto a testing machine. Such alignment required Smith to roll the pipes up an incline of approximately 3 feet in order to get them to the saddle of the machine. The pipes tested varied in measurement. In the event that a pipe with a different diameter was tested, Smith was required to change the heads of the tester. To do so, he had to climb a ladder of approximately 20 feet. At times the pipes tested were unable to withstand the pressure applied. In the event of a complete break in a pipe, Smith, in his capacity as tester, was required to pick the pieces of broken pipe out from the testing machine. This activity would necessitate the bending of the body. The job of tester is described as a standing job. According to a job description and evaluation of a hydrotester operator which was prepared for Johns-Manville and dated July 31, 1967, the job required above-average physical demands.

Smith reported to work on July 13, 1974, at 6:30 a.m. and performed his usual duties. The evidence presented in the hearings below supports an inference that the work load on that date was lighter than usual. However, at least one time during that shift, Smith was required to climb 20 feet and replace the heads on the testing machine. During the arbitration hearing, and also before the Industrial Commission, several of the deceased’s coworkers testified as to their impressions of Smith’s behavior on July 13, 1974. John Carter, a coworker, stated that Smith told him that he didn’t feel well. John Barnes, an employee of Johns-Manville who worked in close proximity to the deceased, also testified that Smith told him he did not feel well. Barnes also stated that the deceased complained of pain in his legs and showed Barnes his swollen ankles. Barnes observed Smith later that day in the lunchroom in what appeared to Barnes to be an upright sleeping position; such behavior was reportedly uncharacteristic of the deceased. Both Carter and Barnes observed that Smith perspired profusely on July 13, 1974. According to Carter, Barnes and Cecil Elrod, another coworker, the work area was extremely hot and the ventilation inadequate on that date.

Smith left work at 3 p.m., which was the usual time his shift ended. He arrived at his home shortly thereafter. His wife, the claimant in this action, testified before the arbitrator and the Industrial Commission that her husband appeared listless and that his ankles were very swollen. Mrs. Smith further stated that her husband did not follow his usual after-work routine. Instead, he ate a small meal and retired to a reclining chair where he watched the television and dozed for the remainder of the evening. Mrs. Smith stated that her husband’s breathing was unusually heavy that evening. The following morning, July 14, 1974, Mrs. Smith found her husband dead in his bed. An autopsy was performed. The autopsy report indicated the conditions which gave rise to the cause of death to be “acute congestive heart failure, with bilateral pulmonary congestion and edema,” marked “cardiac hypertrophy with coronary insufficiency and profound obesity.”

Several doctors testified at the arbitration hearing. Dr. William Fitzsimmons, a treating physician, testified for the claimant and stated that Smith’s medical records indicated a preexisting cardiac deficiency. Specifically, the doctor stated that an examination of the records revealed “cardial enlargement and hypertension.” Dr. Fitzsimmons also noted evidence of lung pathology. He stated that swelling of the feet and difficulty in breathing were symptoms secondary to congestive heart failure. In response to a hypothetical question, Dr. Fitzsimmons testified that exertion may bring about heart failure and the fact itself of the occurrence of a congestive heart failure indicates an event beyond the body’s tolerance. Since congestive heart failure does not occur instantaneously, once the process is started, according to Dr. Fitzsimmons, any physical activity would aggravate the condition. Thus, Dr. Fitzsimmons concluded that there could be a causal connection between Smith’s employment and his subsequent demise. Dr. Vem L. Zech testified for the respondent. He stated that Smith suffered from a heart disease for approximately 10 years and that physical activity did not correlate with the occurrence of death. Dr. Zech’s testimony was based on the premise that Smith’s employment duties consisted of pushing buttons. A third doctor, Dr. Gloucester A. Price, also testified for the respondent. He concluded that an oxygen insufficiency had caused Smith to die and that the work requirement had no correlation with the cause of the deceased’s coronary disease. At the close of the presentation of the evidence, the arbitrator denied the death benefit award on the ground that the deceased did not suffer an accidental injury arising out of and in the course of his employment.

At the review hearing before the Industrial Commission, Dr. James T. Hicks was called to testify on behalf of the claimant. In response to a hypothetical question, Dr. Hicks stated that there was a causal relationship between the death of an individual with a physical history such as that of Smith and the duties required of a hydrotester. The Industrial Commission reversed the arbitrator’s findings and awarded the death benefit to Smith’s widow. The circuit court of Lake County confirmed the decision of the Industrial Commission.

On appeal to this court, J ohns-Manville contends that the Industrial Commission’s decision on the issue of accidental injury is contrary to the manifest weight of the evidence and therefore must be reversed. After a review of the records in the proceedings below, we affirm the judgment of the Lake County circuit court.

In a recent opinion, this court has stated that the employer takes the employee as he finds him. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) In accordance with this principle, the mere fact that an employee may suffer from a preexisting condition will be insufficient to preclude recovery under the Act. Compensation will be awarded if the employee can show that the preexisting illness was aggravated or accelerated by the employment. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) This rule is subject to the following exception: Compensation will be denied where the employee’s physical condition is so poor that any activity would constitute an overexertion, or where the evidence establishes that the risk from the activity engaged in is no greater than that to which he would have been exposed had he not been so employed. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24; Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474.

Conflicting medical testimony was presented before the Industrial Commission. In response to a hypothetical question, Dr. Fitzsimmons and Dr. Hicks stated that there could be a causal relationship between the heart failure and the activities engaged in by a hydrotester. Dr. Zech stated that if Smith were his patient, he would not recommend physically strenuous work. Dr. Price testified, however, that there existed no correlation between heart failure and strenuous physical activity.

We have repeatedly held that the resolution of conflicting medical testimony falls within the purview of the Industrial Commission and that its finding will not be reversed unless contrary to the manifest weight of the evidence. (Long v. Industrial Com. (1979), 76 Ill. 2d 561; Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 274; Pontiac Chair Co. v. Industrial Com. (1974), 59 Ill. 2d 261, 266.) After a review of the record, we cannot say that the Commission’s finding was contrary to the manifest weight of the evidence.

Johns-Manville also contends that the Commission erred in its finding that the deceased’s injury was causally related to his employment since the work performed on July 13, 1974, required less exertion than usually required of a hydrotester. Although the specific activities engaged in on July 13, 1974, were described as unusually light, the general duties of a hydrotester demand more strenuous physical exertion than that which is required in average daily activities. Illinois follows the rule that states that usual exertion demanded by the injured employee’s employment may be causally connected with heart attacks. It is not necessary that any unusual exertion be demonstrated to have preceded the attack. {Rock Road Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 123, 129.) Further, it was not necessary for the determination of causality that the employee die from the heart failure while at the place of employment. (Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234.) Thus, it was reasonable and therefore permissible for the Commission to infer that the usual activities of the employment aggravated Smith’s preexisting condition, thus rendering his heart failure a compensable injury under the Act.

A second issue raised on appeal is based on respondent’s contention that the decision of the Industrial Commission was predicated on inadmissible evidence. Specifically, the respondent states that the Commission’s finding was based on the medical opinions of Drs. Fitzsimmons and Hicks. The finding must be reversed, according to the respondent, since each doctor’s testimony was elicited through the use of hypothetical questions which allegedly contained incompetent hearsay and misstatements of material facts.

Initially we note that the Industrial Commission did not make any special findings and, further, that respondent did not request that any such findings be made. Therefore, the assertion that the Commission’s finding was based on the doctor’s testimony is no more than mere speculation on the part of the respondent. We will, however, address ourselves to the respondent’s argument concerning the admissibility of the hypothetical questions.

Our review of the record indicates that the respondent made numerous objections to the hypothetical questions. The respondent failed, however, to base his objection to the admission of the hypothetical questions on hearsay grounds. It is well established that an objection must specify the grounds for the objection and that no other grounds than those stated will be considered on appeal. (Stump v. Dudley (1918), 285 Ill. 46, 48.) This rule applies with equal force to objections raised in response to hypothetical questions. (Goldberg v. Capital Freight Lines, Ltd. (1943), 382 Ill. 283, 290.) In City of Chicago v. Saldman (1907), 225 Ill. 625, an action for damages for personal injuries, plaintiff’s doctors were asked certain hypothetical questions. The defendant’s attorney objected to the questions on the ground that they were based on facts not in evidence. In response to this objection, plaintiff’s attorney presented proof of the disputed facts through questions asked the doctors. Although the defendant’s attorney did not object to such proof at the trial court, he argued on appeal that the hearing on the disputed facts invaded the province of the jury. This court stated:

“This objection was not pointed out to the trial court and consequently there was no ruling on it. The objection was not even general in character, but was based upon the specific ground that the facts had not been proved, and being so limited, the objection now made cannot be considered. [Citation.] ” (City of Chicago v. Saldman (1907), 225 Ill. 625, 628.)

Accord, Greim v. Sharpe Motor Lines (1968), 101 Ill. App. 2d 142, 151.

Based on the foregoing, it is clear that the respondent cannot now claim that the hypothetical questions put to the doctors contained inadmissible hearsay. As the respondent failed to raise this specific objection at the time the hypothetical questions were propounded, it has waived its right to raise it on appeal.

The respondent also claims that the finding of the Commission must be reversed as it was based on the doctors’ testimony which, in turn, was based on misstatements of material facts. We find this argument to also be without merit. In presenting evidence by a hypothetical question, counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence. (Gus T. Handge Painting Co. v. Industrial Com. (1965), 33 Ill. 2d 201, 206; Robert Holmes & Brothers, Inc. v. Industrial Com. (1945), 391 Ill. 277, 279 (interrogatories).) From our reading of the record, it appears that the evidence was unclear concerning those facts the respondent claims claimant misstated. The respondent had an opportunity to challenge the controverted facts on cross-examination. Since it could have presented a hypothetical question to the doctors which incorporated a statement of facts as perceived by the defense, this is an improper subject to raise on review.

A final issue raised by the respondent on appeal concerns the alleged error of the Commission in its limitation of the re-cross-examination of Dr. Hicks. The Commission refused to allow Dr. Hicks to respond to two questions on re-cross-examination. The scope and extent of cross-examination and re-cross-examination are within the discretion of the court. (See, e.g., People v. Pieper (1951), 410 Ill. 15, 18.) A review of the record leads us to conclude that the Commission did not abuse its discretion in limiting the re-cross-examination of Dr. Hicks. The first question asked concerned matters to which Dr. Hicks had previously testified in detail during the direct examination, cross-examination and redirect examination. The second question was not responsive to testimony elicited during redirect examination but, rather, covered essentially the same material that was brought out during cross-examination. Thus, we find the respondent’s third argument to also be without merit.

Accordingly, we find (1) that the Commission’s decision was not against the manifest weight of the evidence; (2) that the respondent waived his right to object to the admission of the medical opinions; and (3) that the Commission did not err in its limitation of the re-cross-examination of Dr. Hicks. Therefore, the judgment of the circuit court of Lake County, confirming the Industrial Commission’s award, is affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN MR. JUSTICE WARD, MR. JUSTICE KLUCZYNSKI,

text:
    (No. 51732.
    THE MINNESOTA MINING AND MANUFACTURING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Theresa Stankevitz, Appellee).

      Opinion filed December 20, 1979.

    — Rehearing denied February 1, 1980.

      WARD and KLUCZYNSKI, JJ., and GOLDENHERSH, C.J., dissenting.
    Roddy, Power & Leahy, Ltd., of Chicago (John P. Roddy, of counsel), for appellant.
    Nicol 8c Hill, of Hickory Hills (Lewis P. Gaines, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Claimant, Theresa Stankevitz, is the widow of John Stankevitz, an employee of the Bedford Park branch of the Minnesota Mining and Manufacturing Company (3M Company) who died in an automobile accident subsequent to a golf outing and banquet. His widow filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). The arbitrator denied compensation. On review, the Industrial Commission awarded compensation and the circuit court of Cook County confirmed the decision of the Commission. The 3M Company appeals directly to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)). It is uncontroverted that the golf outing and dinner were sponsored by the Men’s Golf League of the 3M Club of Bedford Park, Inc. (3M Club). The 3M Company contends, however, that its involvement with the Men’s Golf League and the 3M Club was not sufficient to sustain the award. The resolution of this question will be determinative of whether Stankevitz sustained accidental injuries arising out of and in the course of employment; that is, whether the employee’s death is compensable under the Act.

The 3M Club is an Illinois not-for-profit corporation and is comprised of certain employees of the Bedford Park branch of the 3M Company. There are approximately 6,000 such employees; of these, approximately 1,400 employees are members of the 3M Club. In order to qualify for membership in the 3M Club, the employees are required to pay an annual fee of $1. Membership entitles the employees to attend various club social events and also to participate in group outings at a cost which is lower than that offered to the general public.

The 3M Club is financed only in part by its membership dues. It obtains the majority of its revenue pursuant to a vendor agreement, dated July 15, 1967, between the 3M Company and the Automatic Retailers of America, Inc. As assignee under the agreement, the 3M Club is entitled to the profits earned on certain vending machines located on the company premises.

The parties presented substantial evidence before the arbitrator and the Commission concerning the degree of 3M Company involvement in the 3M Club. The evidence presented established that the 3M Club functioned without an administrative staff independent of the 3M Company employees. It also established that the 3M Club did not have its own facilities or office supplies. Instead, the 3M Club used the conference rooms and office supplies furnished by the 3M Company. Bulletins concerning 3M Club activities were printed by the company and were posted on the company’s bulletin boards. While there was testimony concerning reimbursement by the 3M Club for the office supplies and performance of club administrative duties after working hours, the evidence established that the 3M Club meetings were conducted during the workday and that employees were not docked in pay for attending the meetings. The evidence established that although the 3M Club maintained a checking account separate from that of the 3M Company, the books and records of the club were audited by the auditor employed by the 3M Company. The books and records of the 3M Club are kept on the 3M Company’s property, and the annual reports of the club list as the address of its registered agent the address of the office of the 3M Company. The 3M Club did not circulate a newspaper. The activities of the 3M Club were reported, however, in the 3M Company newspaper subsequent to their occurrence; such events did not receive advance publicity in the company newspaper. However, notices of these activities were posted beforehand on the company’s bulletin boards. The 3M Company testified as to its lack of encouragement of participation in the 3M Club. Solicitation of new members was conducted by company employees after working hours. There is some evidence that the $1 dues for club membership was collected during working hours. There was no showing that the company received any tangible economic benefit or increase in employee morale due to employee membership in the 3M Club. The purpose of the club, however, was to increase employees’ morale.

From a review of the record, it is clear that the activities of the 3M Club were organized and managed by the employees. In addition to the organization of a 3M Club bowling league, the 3M Club members organized a group within the 3M Club referred to as the Men’s Golf League of the 3M Club (the league). In order to be a member of the league, one was required to be a 3M Company employee and a member of the 3M Club. The golf outings, tournaments, and banquets were held primarily after working hours and were organized by the league members. The employees were not given time off from work to play golf. The league operated on a modest budget. Each member paid annual dues of $10.50, and the 3M Club donated $400 to the league during the year. At one time the league solicited prizes from the 3M Company but was refused. The fund for the golf prizes came from money paid by the participants in the Men’s Golf League. Due to the league’s limited finances, the individual members were additionally required to pay the cost of greens fees and cart rentals for each golf outing. The 3M Company contributed no financial aid to the league, provided no equipment, and no company announcements or speeches by company officers were permitted at the outings. The company did not furnish transportation to any of the golf outings.

On Saturday, September 28, 1974, the league sponsored a golf tournament and banquet. The outing did not receive advance publicity in the 3M Company newspaper, and the golfers did not wear company uniforms on the golf course. Each league member paid for his greens fees, cart rental and for any food consumed during the outing. The golfers who attended the banquet later that evening paid an additional amount for their dinner. Prizes and trophies furnished by the league were awarded to the golfers at the banquet. No speeches by any 3M Company executives were made at any time during the banquet.

Stankevitz was captain of the golf team and attended the tournament and banquet on September 28, 1974. Since he was scheduled to work on the day of the outing, Stankevitz arranged for a substitute to work in his place and, in so doing, forfeited his right to receive premium pay to which he was entitled as a salaried employee who worked in excess of 40 hours per week. In the early hours of the following day, Stankevitz died from injuries sustained in a two-car collision.

As noted above, the arbitrator denied compensation. On review, the Industrial Commission reversed, finding the deceased to have sustained accidental injuries arising out of and in the course of his employment. The circuit court of Cook County confirmed the award. The issue before this court is whether the 3M Company was sufficiently involved with the league, and in turn with the 3M Club, so as to bring the activities of these groups within the course of employment. We find the Commission’s finding of sufficient employer involvement to be contrary to the manifest weight of the evidence and reverse the holding of the circuit court.

This case presents a situation where injuries were sustained by an employee subsequent to participation in a recreational social program of company employees. The program was related to the employment in that only employees or retirees could participate. The question is whether this activity was within the course of employment. It is to be resolved upon the determination of whether the extent of employer organization and sponsorship, pressure on employees to participate, employer supervision, and benefit to the employer through improved employee-employer relations were sufficient to bring the activity within the course of employment. Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 432; Hydro-Line Manufacturing Co. v. Industrial Com. (1958), 15 Ill. 2d 156, 160. See generally 1A A. Larson, Workmen’s Compensation secs. 22.00 through 22.30, at 5 — 71 through 5-121 (1979).

In the landmark case of Jewel Tea Co. v. Industrial Com. (1955), 6 Ill. 2d 304, this court found injuries which were sustained in a company baseball league to be compensable under the Workmen’s Compensation Act. Five significant factors supported that conclusion: (1) There was significant, if not tangible, benefit to the employer due to improved employee-employer relations which developed as a result of the recreational activity; (2) since the employees wore T-shirts which bore the company’s name, the company was able to advertise and thereby derive economic benefit; (3) the company was closely integrated with the organization and operations of the teams; (4) the company encouraged the activity; and (5) subtle pressures were exerted on the employees to participate through the potential relationship between participation and job promotion. Jewel Tea Co. v. Industrial Com. (1955), 6 Ill. 2d 304, 314-15.

In the cases following the Jewel decision, this court has attempted to apply the same standards by which to measure the degree of employer involvement. The results, however, have varied in each case due to the difference in factual situations presented. (Those cases where this court found the recreational social activity to be incident to employment: Mid Central Tool Co. v. Industrial Com. (1978), 72 Ill. 2d 569, 578; Illinois Bell Telephone Co. v. Industrial Corn. (1975), 61 Ill. 2d 139; Lybrand, Ross Bros. & Montgomery v. Industrial Com. (1967), 36 Ill. 2d 410. Contra, Burmeister v. Industrial Com. (1972), 52 Ill. 2d 84; Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160; Hydro-Line Manufacturing Co. v. Industrial Com. (1958), 15 Ill. 2d 156.)

After an examination of the various factual situations presented in each of these cases, we find the facts of Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160, to be nearly indistinguishable from the facts in our case. There, the sole issue before this court was whether injuries sustained by an employee in an evening softball game were compensable under the Workmen’s Compensation Act. The softball game was organized by the Keystone Employee Activity Association, a corporation which was run by the employees of the Keystone Steel & Wire Company. The employee corporation was financed in a manner similar to that of the 3M Club; that is, the employee corporation received the profits from certain canteens located on the company premises. Thus, it was a portion of the money the employees had deposited in the vending machines and canteens that provided the recreational corporations with funds.

The factual similarities between the Keystone case and this case go beyond the mere fact of financing: the trophies awarded to the employees were furnished with funds from the employees’ corporation; results of the games were reported in the company newspaper; employees were permitted to trade shifts in order to participate in the recreational activities; schedules of the games were posted throughout the plant; and the use of company premises was authorized for the softball games.

In Keystone this court reversed the judgment of the circuit court of Peoria County which confirmed the award granted by the Industrial Commission. It did so based upon a consideration of the facts that the company exerted no pressure or encouragement for participation, the company did not sponsor the event, the event was not held during regular working hours, and the company derived no substantial business advantage from the activity:

“Whatever improvement may have resulted in morale or employee-employer relations is far too tenuous to provide a basis for saying the injury was sustained either out of or in the course of the employment.
*** All the company did, in essence, is to cooperate in enabling employees to engage in social and recreational activities on their own time. To hold that such gratuitous contributions entail liability without fault for injuries at play penalizes the mere providing of benefits and will most certainly tend to discourage it. Facts such as those in this case are totally insufficient to convert this recreational activity into an incident of employment. [Citation.] ” (Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160, 163.)

Although the claimant contends that the 3M Company sponsored and financed the activities of the 3M Club, the golf league, and the banquet, and coerced participation by the employees, the record does not support this contention. It discloses no greater employer involvement than was present in Keystone.

Here, the claimant argues that the employer benefited from the activities of the 3M Club through improved employee-employer relationships. As noted in the above quotation from Keystone, this is “far too tenuous to provide a basis for saying the injury was sustained either out of or in the course of the employment.” (Key stone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160, 163.) Also, it is stated in 1A A. Larson, Workmen’s Compensation sec. 22:30, at 5 — 117 (1979): “It can be taken as the majority view that these morale and efficiency benefits are not alone enough to bring recreation within the course of employment.”

Here, it appears that the 3M Company carefully avoided involvement in activities of its employees’ organization beyond that which this court had found permissible in Keystone.

As Professor Larson has stated:

“[S] ome arbitrary time and space limitations must circumscribe the area within which the ‘benefit’ establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point which can be defined short of complete coverage of all the employee’s refreshing social and recreational activities.” 1A A. Larson, Workmen’s Compensation sec. 22:30, at 5 — 117 (1979).

If we expand the coverage of the Act to include such activities as were involved in this case and in Keystone, the individual claimant may be benefited but the employer will, of necessity, respond by prohibiting all such activities to the detriment of the employees generally.

It is well established that findings of fact are within the province of the Industrial Commission and are not to be disturbed on review unless contrary to the manifest weight of the evidence. [Illinois Bell Telephone Co. v. Industrial Com. (1975), 61 Ill. 2d 139, 143.) The Commission’s finding that the golf outing and banquet were incident to the employment was contrary to the manifest weight of the evidence. The league was an employee organization which organized, managed, and supervised the golfing event. The 3M Company supplied neither the golfing equipment used at the outing nor the food consumed at the banquet. The company exerted no pressure or encouragement on employees to participate. It derived no advertising benefit from the games, did not sponsor the tournament, and did not allow employees to take time off from work to participate. The trophies were presented at the banquet by the employees, and no speeches by company executives were made. Finally, the golf outing was scheduled on a non-regular workday.

Accordingly, the injuries of the deceased did not arise out of or in the course of the deceased’s employment. Therefore, the judgment of the circuit court of Cook County, confirming the decision of the Industrial Commission, is reversed, and the award is set aside.

Judgment reversed; award set aside.

MR. JUSTICE WARD,

dissenting:

I must dissent from the conclusion of the majority because I consider it places this court in the role of erroneously taking over the function of the Industrial Commission to decide the facts and draw inferences. It appears that the majority has not given consideration to evidence which I deem requires a holding that the Commission’s findings were not contrary to the manifest weight of the evidence. The majority only notes that the 3M Company assigned the vending machine profits to the 3M Club. It fails to consider the significant amounts involved:

In 1974, the 3M Club received from
the 3M Company..................$22,680.73
In 1975, the 3M Club received from
the 3M Company..................$17,228.63
In 1976, the 3M Club received from
the 3M Company..................$16,372.94

It is clear that the club was maintained by the 3M Company. It was not simply an association by and for the benefit of employees. Also, I consider relevant the purpose for which the corporation was organized. It was stated to be: “This corporation is organized and shall be operated exclusively for pleasure, recreation and the promotion and development of good fellowship *** among employees and retired employees and their families” of the 3M Company in the Bedford Park area. Ronald Smith, the personnel manager, testified that the 3M Club’s activities involved company morale. He testified that the club increases efficiency and good will and cuts down on employee turnover by bettering employee morale.

I believe the majority opinion will have the effect of confusing the law regarding employer-sponsored clubs, entertainments and the like. I would affirm the circuit court’s judgment which confirmed the finding of the Industrial Commission.

MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.

MR. JUSTICE KLUCZYNSKI,

also dissenting:

I concur in the dissent of Mr. Justice Ward and feel that a few additional comments are appropriate.

It is my understanding that cases of this nature, in which an injury is sustained during social activities while away from work, are judged by the degree of employer sponsorship or by the benefit derived by the employer from the social activities in question. (1A A. Larson, Workmen’s Compensation sec. 22 et seq. (1979).) An employer’s exposure to liability under the Workmen’s Compensation Act is thus expanded as his involvement increases; sufficient employer involvement renders the social activity incident to the employment (Mid Central Tool Co. v. Industrial Com. (1978), 72 Ill. 2d 569, 578). Given the substantial financial contributions by respondent and its other supportive actions, and assuming, as we have done before, “that the employer obtained the ‘significant if not tangible’ benefit of improved employee relations” (Lybrand, Ross Bros. & Montgomery v. Industrial Com. (1967), 36 Ill. 2d 410, 418, quoting Jewel Tea Co. v. Industrial Com. (1955), 6 Ill. 2d 304, 314), I find no cause to hold that the Commission’s decision is against the manifest weight of the evidence.


text:
    (No. 51695.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STANLEY TYLER, Appellee.

      Opinion filed November 21, 1979.

    — Rehearing denied February 1, 1980.

      William J. Scott, Attorney General, of Springfield, and Thomas J. Fahey, State’s Attorney, of Danville (Donald B. Mackay, Melbourne A. Noel, Jr., and William M. Wippold, Assistant Attorneys General, of Chicago, and Marc D. Towler and Robert J. Biderm an, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Daniel Yuhas, Assistant Defender, of the Office of the State Appellate Defender, of Springfield (Janet Sinder, law student, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of Vermilion County defendant, Stanley Tyler, was convicted of rape and armed robbery and sentenced to the penitentiary for concurrent terms of not less than 8 nor more than 16 years. The appellate court reversed the rape conviction and remanded the cause for resentencing for the armed robbery. (66 Ill. App. 3d 1017.) We allowed the People’s petition for leave to appeal. In reversing the judgment the appellate court held that defendant was not accountable for the rape for the reason that there was insufficient evidence to prove beyond a reasonable doubt that he intended to promote or facilitate the rape. 66 Ill. App. 3d 1017. 1019.

At approximately 4:30 p.m. defendant, Johnny Wilson, and Kevin Taylor approached a residence at the end of a secluded road in Vermilion County. They parked their automobile approximately llá blocks from the house; Wilson removed a loaded shotgun from the trunk, and after loading a rifle, handed it to defendant. Each of the three men placed a stocking mask over his head.

They walked toward the residence and upon encountering the complainant toward the rear of the house, Wilson announced, “This is a stick up.” She did not resist, and she, Wilson, and defendant entered the house. Kevin Taylor entered the house several minutes later.

The complainant testified that the man with the shotgun followed her into the living room of the house, then searched the billfold of her purse. He ordered her to walk down the hallway toward the back of the house to the master bedroom, and shortly after they entered the master bedroom he forced her to submit to an act of sexual intercourse. Taylor testified that when he entered the house defendant was in the living room. He asked where Wilson was, and defendant, indicating the bedroom, replied that he “went back there.” Taylor went to the bedroom and, as he looked into the room, saw Wilson and the complainant dressing. Taylor testified that defendant warned that an automobile had pulled into the driveway of the complainant’s home and the three men fled.

A typewritten statement, signed by defendant, admitted into evidence, reads in part:

“Q. When you got to this house what happened?
A. We were in the woods and then the dog came down and the lady came behind him, then Johnny put the gun on this lady, and Johnny told her to get the dog. Johnny and her then walked up to the house, and Kevin followed them and I went around to the back of the house. I waited for 2 or 3 minutes and Johnny came and let us in. Johnny and Kevin and this lady were in the front room talking and then Johnny took this lady back to the bedroom, and so Kevin stayed in the front room.
Q. While you and Kevin were in the front room what was Johnny doing?
A. I think he was raping her.
Q. Why do you think this?
A. When Johnny took her back there he closed the door and I could hear her mumbling something. Kevin went back there to see what he was doing. Johnny and the lady were pulling up their clothes.”

Dennis Hailey, an investigator for the Vermilion County Criminal Investigation Team who took the statement from defendant, testified that defendant also said that when Wilson took the complainant into the bedroom “he heard some moaning and groaning in the bedroom.”

The circuit court found that defendant was accountable for the rape.

The People contend that in reversing the conviction for rape the appellate court erroneously substituted its factual determination for that of the circuit court. Citing People v. Richardson (1965), 32 Ill. 2d 472, the People argue that “the fact that the criminal acts were not committed pursuant to a pre-conceived plan is not a defense if the evidence indicates involvement by the defendant in the spontaneous acts of the group.” It is the defendant’s position that the conviction was properly reversed because there was no evidence to prove that he possessed the specific intent required to sustain a conviction under the theory or accountability. Section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 2) provides:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Although defendant’s mere presence at the complainant’s home is not sufficient to render him accountable, it is not necessary to prove that he participated in the commission of the act which constituted the offense. (People v. Kessler (1974), 57 Ill. 2d 493.) The evidence is sufficient to sustain the conviction if there is proof of the required intent and that defendant aided, abetted, or attempted to aid Wilson in the perpetration of the crime. The transcript of the proceedings at the trial shows that the circuit court concluded that when Wilson took the complainant to the bedroom, defendant “knew perfectly well what was happening.” He did nothing to disassociate himself from the occurrence and gave the alarm when an automobile approached the house. The evidence supports the judgment, and in reversing the conviction for rape the appellate court erred. We have considered defendant’s argument that the sentence imposed is excessive and do not agree. Insofar as the appellate court reversed the conviction for rape and remanded the cause for resentence, its judgment is reversed, and in all other respects its judgment is affirmed. The judgment of the circuit court is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 51670.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HUGH EDWARD WALTON, Appellee.

      Opinion filed November 21, 1979.

    — Rehearing denied February 1, 1980.

      William J. Scott, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Melbourne A. Noel, Jr., and Orisha Kulick, Assistant Attorneys General, of Chicago, and Robert J. Biderm an and Marc D. Towler, of the State’s Attorneys Appellate Service Commission, of Springfield), for the People.
    Richard J. Wilson, Deputy Defender, and Don L. Johnson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Hugh Edward Walton, was convicted of murder after a jury trial in the circuit court of McLean County on May 23, 1968. On direct appeal, the conviction was affirmed, but the cause was remanded for correction of an error regarding the date the sentence would commence. (118 Ill. App. 2d 324.) At trial and on direct appeal the defendant was represented by the public defender of McLean County, Donald B. Mackay. In 1972 the defendant wrote a letter to the appellate court requesting that counsel be appointed to represent him in pursuing Federal habeas corpus or State post-conviction proceedings. The letter was referred to the circuit court of McLean County, which appointed the public defender of McLean County, Marvin H. Gesell, who had succeeded Mackay in office. Gesell filed a post-conviction petition. A hearing was held, at which testimony from two witnesses was heard. At the conclusion of the hearing, the court denied relief to the defendant. Subsequently, on appeal to the appellate court from the denial of post-conviction relief, the defendant raised the issue that he was denied the effective assistance of counsel when the circuit court appointed the public defender of McLean County to represent him in the post-conviction proceeding. The defendant contended that because he based his right to post-conviction relief on the ground that his trial counsel had been incompetent, his counsel in the post-conviction proceeding was laboring under a conflict of interest. The appellate court agreed, with one justice dissenting, reversed the order of the trial court, and remanded the cause for further proceedings on the post-conviction petition. (66 Ill. App. 3d 913.) We granted the State’s petition for leave to appeal.

The issue to be decided is whether a conflict of interest is created when a public defender, while representing a defendant in a post-conviction hearing, alleges that his predecessor in office rendered ineffective assistance to the defendant. The defendant contends that a per se rule should be adopted in these circumstances because of the potential for conflict due to the affiliation both attorneys had with the public defender’s office. See People v. Fife (1979), 76 Ill. 2d 418.

We do not think that there is a per se conflict of interest in this case. In People v. Fife we held that a conflict of interest was created when an attorney who served as a special assistant Attorney General for workmen’s compensation cases had represented a criminal defendant and the defendant had not exercised a knowing waiver of his right to object. We based that holding on the premise that the attorney’s employment with the State would create the appearance of a conflict when she, as defense counsel, would have to oppose the State. In the face of such an apparent conflict of interest, we would not require the defendant to present evidence demonstrating that actual prejudice did result. (76 Ill. 2d 418, 424.) The instant case is decidedly different. The successor public defender is not affiliated with an opposing party so as to raise the immediate appearance of a conflict. Rather, Gesell is merely the successive holder of the same office as Mackay. No appearance of conflict is automatically raised by virtue of the fact that both attorneys had an affiliation with the same office, though at different times. Therefore, no per se rule should be invoked.

The second contention of the defendant is that, even if no per se conflict of interest is created, an actual conflict of interest exists in this case because the successor public defender was alleging that his predecessor had rendered ineffective legal assistance to the defendant. The defendant argues that People v. Smith (1967), 37 Ill. 2d 622, is directly applicable. Smith, however, is not in point. In Smith, a conflict of interest was found to exist where an assistant public defender alleged in a post-conviction petition that another assistant public defender had incompetently represented the defendant. This court said:

“This circumstance clearly confronts the public defender’s office with a conflict of interest since, on one hand, its natural inclination would be to protect its reputation by defending against the charges of incompetency while, on the other hand, its duty as an advocate is to aid petitioner in establishing the veracity of these charges.” (37 Ill. 2d 622, 624.)

There the two assistant public defenders were simultaneously employed in the administration of the public defender of Cook County. As was stated, an attorney would have a “natural inclination” to insulate the office he worked for against charges of incompetence because the charges would reflect adversely upon him as well as upon his coworkers. The conflict of interest is very real in such a situation. But in this case there is no comparable “natural inclination.” The defendant contends that a successor public defender would be naturally inclined to protect the reputation of his predecessor, even though it has not been shown that there is any connection between the two attorneys whatsoever. We do not agree. There is no reasonable basis to assume that a successor in office will strive to justify the actions of his predecessor, especially when to do so would be in derogation of the attorney’s obligation to render effective legal assistance to his client. We think the dissent in the appellate court to be particularly apt:

“Moreover, the record is equally barren of any evidence that the successor public defender either (1) rejected out of hand all of the policies and actions of his predecessor, or (2) was ready to defend to the death each and every one of them. To say that one attorney will blindly adopt everything that another did is an assumption that flies in the face of human experience and the nature of lawyers. If it were true, Chief Justice Warren would simply have parrotted Chief Justice Hughes.
Once the principle of the majority is accepted {i.e., that protecting the reputation of the office is of more importance than representing the client), the degrees admit of no limit. Any former public defender, any former State’s Attorney or any former assistant of either would be barred from areas of criminal practice. And what of a sitting judge who may have been a defender or prosecutor in the past? Will he be disqualified from hearing post-conviction petitions because of his former association?” 66 Ill. App. 3d 913, 917.

We note that another case in this court found “persuasive” the argument that a present public defender was confronted with a conflict of interest when he represented a defendant in a post-conviction proceeding where the incompetent representation of his predecessor was at issue. {People v. Stoudt (1970), 45 Ill. 2d 118, 120.) That case was decided upon other grounds, however. Therefore, the statement in that case was unsupported dicta.

In any event, we find to be much more logically persuasive the assumption that a successor public defender owes no allegiance to his predecessor but, rather, owes an obligation to represent his client effectively, which, in the absence of contrary evidence, was fulfilled. The defendant has advanced the contention that the successor public defender labored under a conflict of interest as the only basis for the charge that he was ineffectively represented in the post-conviction proceeding. We conclude that this contention lacks merit. While it was not necessary, we have reviewed the record of the post-conviction proceeding as well, and find that the public defender did vigorously represent the defendant. He persistently pursued the two witnesses whose testimony the former public defender had allegedly ignored. He subpoenaed both witnesses and elicited their testimony at the hearing. He argued to the court that his predecessor should have introduced into evidence the testimony of the two witnesses to establish grounds for voluntary manslaughter. The court eventually denied relief on the basis that the predecessor public defender could have made a tactical decision not to elicit the testimony because, in doing so, the defendant would have to admit that he killed the victim. No evidence of ineffective representation is revealed on this record.

Since we have decided that no conflict of interest exists, we need not discuss the State’s contention that the defendant has waived his right to object to the appointment of the public defender.

Accordingly, for the reasons stated, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.