ILLINOIS POLLUTION CONTROL BOARD

December 14, 1994

LAND

AND LAKES COMPANY,

)

JMC OPERATIONS, INC., and

)

NBD TRUST COMPANY OF

)

ILLINOIS as trustee under

)

Trust No. 2624EG,

)

Petitioners,

V.

)

PCB 94—195

)

(Land Siting Review)

VILLAGE OF ROMEOVILLE,

)

)

Respondent.

ORDER OF THE BOARD (by C. A. Manning):

This matter is before the Board on a November 2, 1994 motion

to disqualify, filed by petitioners Land and Lakes Co., JMC

Operations, Inc., and NBD Trust Company of Illinois, as Trustee

under Trust No. 2624EG (collectively, Land & Lakes). Land &

Lakes seeks to disqualify the law firm of Herschbach, Tracy,

Johnson, Bertani & Wilson (Herschbach firm) from further

representation of respondent the Village of Romeoville

(Village)’. On November 9, 1994, the Village filed its response

in opposition to the motion to disqualify. On November 29, 1994,

Land & Lakes filed a motion for leave to file a reply instanter.

On December 9, 1994, the Village filed a motion for leave to

respond to the reply. The latter two motions are granted.

Land & Lakes asks the Board to disqualify the Herschbach

firm and any member of that firm from representing the Village.

Land & Lakes states that in 1984, a trespass action involving the

landfill at issue in this case was brought against it by Roy and

Irene Hassert, and that an attorney named Roger D. Rickmon

represented Land & Lakes during the trial court litigation of the

Hassert suit. Mr. Rickmon is now a partner in the Herschbach

firm. Land & Lakes contends that the Hassert litigation is

substantially related to the instant proceedings, and maintains

that Rules 1.9(a) and 1.10(a) of the Illinois Rules of

Professional Conduct prohibit Mr. Rickmon, and any member of the

Herschbach firm, from representing the Village in this matter.

1

The Village was originally represented in this case by

Nicholas E. Sakellariou of the firm of Robbins, Schwartz,

Nicholas, Lifton & Taylor. On October 19, 1994, Mr. Sakellariou

withdrew his appearance, and George F. Mahoney III of the

Herschbach firm filed his appearance. Mr. Mahoney has not

appeared on behalf of any of the parties in the cited proceedings

prior to this appeal.

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2

Additionally, Land & Lakes argues that the Herschbach firm

actively participated in this matter at an earlier stage on

behalf of the Hasserts, so that the Herschbach firm is

disqualified from representing the Village by Rule 1.11(c) of the

Illinois Rules of Professional Conduct.

In response, the Village first questions whether the Board

has the authority to disqualify attorneys who practice before it.

If the Board does exercise such jurisdiction over the motion,

however, the Village argues that the motion should be denied

since the Hassert litigation is not substantially related to the

instant proceeding and accordingly, there is no conflict of

interest presented by the facts of this case.

Regarding the issue of whether the Board has authority to

disqualify the Village’s attorney, the Village asserts that there

is no statutory authority for the Board to disqualify attorneys

appearing before it. The Village relies on People ex rel. Brazen

v. Finley, 119 Ill.2d 485, 116 Ill.Dec. 683 (1988), for the

proposition that only the Illinois Supreme Court can regulate the

conduct of attorneys.

In Finley, the Illinois Supreme Court highlighted its

exclusive power to regulate the practice of law in this State and

to sanction or discipline attorneys admitted to practice before

it for unprofessional conduct. (116 Ill.Dec.683, 687.) However,

determining whether an attorney’s appearance in an action

presents an impermissible conflict of interest with the interests

of another party to that action does not amount to such sanction

or discipline. It is clear that tribunals other than the Supreme

Court regularly apply the rules of professional conduct developed

by the Supreme Court in order to make such conflict

determinations. (See SK Handtool Corporation v. Dresser

Industries, Inc., 246 Ill. App.3d 979, 189 Ill.Dec. 233 (1st

Dist. 1993); Skokie Gold Standard Liguors v. Joseph Seagram &

Sons, 116 Ill.App.3d 1043, 72 Ill.Dec 551 (1983).)2 We therefore

conclude that determining whether an impermissible conflict of

interest exists in an action before the Board would not intrude

into the exclusive disciplinary authority of the Supreme Court.

The Board is a quasi-judicial agency. (See Ford v.

Environmental Protection Agency, 292 N.E.2d 540 (1973); Landfill,

Inc. v. Pollution Control Board, 74 Ill.2d 256 (1978);

Environmental Protection Agency v. Pollution Control Board, 86

Ill.2d 390, 427 N.E.2d 162 (1981).) In this landfill siting

appeal, we are acting in that capacity, and in that capacity we

have the authority and power to regulate the persons practicing

2

In both these actions, the appellate court reviewed

conflict of interest determinations made by circuit courts.

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3

before us. Such authority is necessary to insure that the Act is

fairly applied, and the Board’s judicial obligations under the

Act are fulfilled. Section 26 of the Act specifically authorizes

the Board to adopt “such procedural rules as may be necessary to

accomplish the purposes of the Act.” (415 ILCS 5/26 (1992).)

Pursuant to that grant of authority, the Board has adopted

procedural rules governing actions before it at 35 Ill. Adm. Code

101 et

seq.,

including who may appear before it and under what

circumstances sanctions will be imposed.

(See

Sections 101.107

and 101.208.) To fulfill our obligations under the Act, it is

necessary for the Board to determine whether an attorney’s

appearance before us presents an impermissible conflict of

interest.

(See

People of the State of Illinois v. Kershaw, PCB

92—164 (July 22, 1993), wherein the Board, at the request of the

Attorney General, applied the Rules of Professional Conduct in

making such a determination.)

In this case, Land & Lakes seeks to disqualify the

Herschbach firm on the grounds that its appearance violates Rules

1.9 and 1.10 of the Rules of Professional Conduct. The Board has

read and reviewed all pleadings and affidavits filed on this

question and is not persuaded that the now—closed Hassert case

and this landfill siting appeal are substantially related. The

existence and outcome of the Hassert case is a matter of public

record, and information pertaining to the Hassert case which may

have been relied upon by the Village when it denied Land & Lakes’

siting petition is contained in the record below. Since no new

evidence, except that pertaining to fundamental fairness, may be

introduced in this type of proceeding, no new evidence about the

Hassert case is relevant or will be allowed. (415 ILCS 40.1(a);

see

also

E & E Hauling v. Pollution Control Board, 116 Ill.App.3d

587, 594, 451 N.E.2d 555 (2d Dist. 1983), aff’d in part 107

Ill.2d 33, 481 N.E.2d 664 (1985).) Thus, neither side can

introduce any new information concerning the Hassert case in this

landfill siting appeal. We, therefore, agree with the Village

that Land & Lakes’ apprehension concerning the Village’s possible

use of any information which Mr. Rickmon may have gained in the

course of his employment with Land & Lakes in the Hassert

litigation is without foundation.

Finally, we find no merit in Land & Lake’s argument that the

Herschbach firm must be disqualified pursuant to Rule 1.11 due to

its prior representation of the Hasserts in the landfill siting

proceeding before the Village.

The motion to disqualify is denied.

Board Member 3. Theodore Meyer dissented.

IT IS SO ORDERED.

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4

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

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day of

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,

1994, by a vote of ~

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Control Board