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The lawyer’s right to contribution

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The collection of attorney fees in matrimonial cases has changed dramatically. The law provides not only a remedy for an attorney to seek fees against his own client, but against the client’s spouse with whom the attorney has no contractual relationship. In In re Parentage of Rocca, 2011 Ill.App.LEXIS 232 (2d Dist. 2011), the 2nd District Appellate Court expanded these rights, permitting an attorney in a parentage case to seek fees from the opposing party, notwithstanding her own client’s waiver of the right to seek contribution toward her fees from the other party. This decision seems incongruous with the prior notion that contribution claims “belong” to the parties, not the attorneys.

In June 1997, the Illinois legislature made sweeping changes to the attorney fee provisions of the Illinois Marriage and Dissolution of Marriage Act. This was done to make litigation funds more equally available to both parties and also to eliminate the three-way contribution hearings that routinely took place under the old law. In those hearings, the attorney representing the financially disadvantaged spouse was forced to advocate her client’s position to obtain fees against the opponent and simultaneously defend herself against challenges by her own client to the reasonableness and necessity of her fees. Sometimes, even where the client did not object to the fees charged by her attorney, the court would unilaterally reduce the amount the client herself had to pay.

This created a conflict of interest and at times caused the attorney to breach the attorney-client privilege. The result was intolerable and prompted the legislature in 1997 to divide fee hearings into two parts.

The first part is the contribution hearing between the divorcing parties, which comes after the close of proofs in the case, but before entry of judgment. 750 ILCS 5/503(j). The second part is a final fee hearing between a client and her own counsel, which takes place after entry of judgment. 750 ILCS 5/508(c).

It has been believed that “a petition for contribution is the petitioning party’s petition, never the petition of such party’s counsel” and that the litigants are the parties. “A General Explanation of the ‘Leveling of the Playing Field’ in Divorce Litigation Amendment,” 11 Sept. CBA Record 32, 35 (September 1997). In contrast, in a final fee action, the litigants are the attorney and her former client. The lawsuit for final fees may be brought as an adjunct to the divorce action after entry of judgment under Section 508(c) of the Illinois Marriage and Dissolution of Marriage Act or in a separate action at law.”No final hearing can proceed until contribution has been determined, either by contest, agreement or waiver. The objective, of course, is to put the needs of the client ahead of the interests of the attorney.” “‘Leveling the Playing Field’ in Divorce: Questions and Answers About the New Law,” 85 Ill. B.J. 410, 415 (September 1997).

Despite these pronouncements, it seems attorneys have an elevated stature and right to seek fees in connection with divorce/parentage-related litigation and can even seek fees against the other litigant when the attorney’s own client has waived her right. In In re Parentage of Rocca, No. 2-10-0234 (2d Dist. March 14, 2011), the 2nd District Appellate Court held that attorney fees “belong” to the lawyers, not the litigants; as such, an attorney representing the financially disadvantaged party may seek contribution independently and pursue fees against the other party even though both parties waived their respective contribution claims against each other in a final settlement agreement. Of significance in Rocca was that the attorney petitioned for interim fees and asked for contribution prior to withdrawing as counsel, which put the parties on notice of the attorney’s interest in fees. Also, the settlement agreement was reached without the attorney’s knowledge or consent. The court was concerned that denying the attorney the right to seek fees might discourage other attorneys from taking cases where there is a disparity in incomes, which would undermine the policy of ensuring parity in litigation in domestic relations cases.

While precedent exists for Rocca ‘s finding that fees “belong” to the attorney, the precedent largely predates the 1997 amendments to the fee legislation. Up until this point, cases decided after the 1997 statutory amendments acknowledged that the litigants are the parties in a contribution hearing and that “[u]nlike a Section 508(c) hearing, the 503(j) contribution hearing is for the petitioner’s benefit, not her lawyers.” In re Marriage of Hasabnis, 322 Ill.App.3d 582, 597 (1st Dist. 2001).

Rocca,Hasabnisand the articles referenced can be reconciled by the principle that a client cannot conspire against her attorney to deprive the attorney of collecting a fair fee and when there is indicia that a party is attempting to rob an attorney of a fee by entering into a settlement agreement waiving contribution, the law will not allow this without giving the attorney an opportunity to seek fees. On the other hand, if waived in good faith and with knowledge by the attorney that contribution is being waived, the attorney’s only recourse is to seek final fees against her client after entry of judgment under Section 508(c) of the Illinois Marriage and Dissolution of Marriage Act or in a separate action at law.

Article originally appeared in the August 2011 issue of Chicago Lawyer