Full Text of SB2475 94th General Assembly
SB2475enr 94TH GENERAL ASSEMBLY
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| AN ACT concerning families.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Section 508 as follows:
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| (750 ILCS 5/508) (from Ch. 40, par. 508)
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| Sec. 508. Attorney's Fees; Client's Rights and | 8 |
| Responsibilities Respecting
Fees and
Costs.
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| (a) The court from time to time, after due notice and | 10 |
| hearing, and after
considering the financial resources of the | 11 |
| parties, may order any party to
pay a reasonable amount for his | 12 |
| own or the other party's costs and
attorney's fees. Interim | 13 |
| attorney's fees and costs may be awarded from the
opposing | 14 |
| party, in accordance with subsection (c-1) of Section 501. At | 15 |
| the
conclusion of the case, contribution to attorney's fees and | 16 |
| costs may be
awarded from the opposing party in accordance with | 17 |
| subsection (j) of Section
503. Fees and costs may be awarded to | 18 |
| counsel from a former client in
accordance with subsection (c) | 19 |
| of
this Section.
Awards may be made in connection with the | 20 |
| following:
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| (1) The maintenance or defense of any proceeding under | 22 |
| this Act.
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| (2) The enforcement or modification of any order or | 24 |
| judgment
under this Act.
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| (3) The defense of an appeal of any order or judgment | 26 |
| under
this Act, including the defense of appeals of | 27 |
| post-judgment orders.
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| (3.1) The prosecution of any claim on appeal (if the | 29 |
| prosecuting party
has
substantially prevailed).
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| (4) The maintenance or defense of a petition brought | 31 |
| under
Section 2-1401 of the Code of Civil Procedure seeking | 32 |
| relief from a
final order or judgment under this Act.
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| (5) The costs and legal services of an attorney | 2 |
| rendered in
preparation of the commencement of the | 3 |
| proceeding brought under this Act.
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| (6) Ancillary litigation incident to, or reasonably | 5 |
| connected with, a
proceeding under this Act.
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| The court may order that the award of attorney's fees and | 7 |
| costs
(including an interim or contribution award) shall be | 8 |
| paid directly to the
attorney, who may enforce the order in his | 9 |
| or her name, or that it shall be
paid to
the appropriate party. | 10 |
| Judgment may be entered and enforcement had
accordingly. Except | 11 |
| as otherwise provided in subdivision (e)(1) of this
Section, | 12 |
| subsection (c) of this Section
is exclusive as to the right of | 13 |
| any counsel
(or
former counsel) of record to petition a court | 14 |
| for an award and judgment for
final fees and costs during the | 15 |
| pendency of a proceeding under this Act.
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| (b) In every proceeding for the enforcement of an order or | 17 |
| judgment
when the court finds that the failure to comply with | 18 |
| the order or judgment
was without compelling cause or | 19 |
| justification, the court shall order the
party against
whom the | 20 |
| proceeding is brought to pay promptly the costs and reasonable
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| attorney's
fees of the prevailing party.
If non-compliance is | 22 |
| with respect to a discovery order, the non-compliance is
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| presumptively without compelling cause or justification, and | 24 |
| the presumption
may only be rebutted by clear and convincing | 25 |
| evidence. If at any time a court
finds that a hearing under | 26 |
| this Section was precipitated or conducted for any
improper | 27 |
| purpose, the court shall allocate fees and costs of all parties | 28 |
| for
the hearing to the party or counsel found to have acted | 29 |
| improperly. Improper
purposes include, but are not limited to, | 30 |
| harassment, unnecessary
delay, or other acts needlessly | 31 |
| increasing the cost of litigation.
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| (c) Final hearings for attorney's fees and costs against an | 33 |
| attorney's own
client, pursuant to a Petition for Setting Final | 34 |
| Fees and Costs of either a
counsel or a client, shall be | 35 |
| governed by the following:
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| (1) No petition of a counsel of record may be filed |
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| against a client
unless the filing counsel previously has | 2 |
| been granted leave to withdraw as
counsel of record or has | 3 |
| filed a motion for leave to withdraw as counsel. On
receipt
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| of a petition of a client under this subsection (c), the | 5 |
| counsel of record
shall promptly file a motion for leave to | 6 |
| withdraw as counsel. If the client
and the counsel of
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| record agree, however, a hearing on the motion for leave to | 8 |
| withdraw as counsel
filed pursuant to this
subdivision | 9 |
| (c)(1) may be deferred until completion of any alternative | 10 |
| dispute
resolution procedure under subdivision (c)(4). As | 11 |
| to any
Petition for Setting Final Fees and Costs against a | 12 |
| client or counsel over whom
the court has not obtained
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| jurisdiction, a separate summons shall issue. Whenever a | 14 |
| separate summons is
not required, original notice as to a | 15 |
| Petition for Setting Final Fees and Costs
may be given, and | 16 |
| documents
served, in accordance with Illinois Supreme | 17 |
| Court Rules 11 and 12.
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| (2) No final hearing under this subsection (c) is | 19 |
| permitted
unless: (i) the
counsel and the client had | 20 |
| entered into a written engagement agreement at the
time the | 21 |
| client retained the counsel (or reasonably soon | 22 |
| thereafter) and the
agreement
meets the requirements of | 23 |
| subsection (f); (ii) the written engagement agreement
is | 24 |
| attached to an affidavit of counsel that is filed with the | 25 |
| petition or with
the
counsel's response to a client's | 26 |
| petition; (iii) judgment in any contribution
hearing on | 27 |
| behalf of the client has been entered or the right to a | 28 |
| contribution
hearing under subsection (j) of Section 503 | 29 |
| has been waived; (iv) the counsel
has withdrawn as
counsel | 30 |
| of record; and (v) the petition seeks adjudication of all | 31 |
| unresolved
claims for fees and costs between the counsel | 32 |
| and the client. Irrespective of a
Petition for Setting | 33 |
| Final Fees and Costs being heard in conjunction with an
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| original proceeding under this Act, the relief requested | 35 |
| under a Petition for
Setting Final Fees and Costs | 36 |
| constitutes a distinct cause of action. A pending
but |
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| undetermined
Petition for Setting Final Fees and Costs | 2 |
| shall not affect appealability of
any judgment or other | 3 |
| adjudication in the original proceeding.
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| (3) The determination of reasonable attorney's fees | 5 |
| and costs either under
this
subsection (c), whether | 6 |
| initiated by a counsel or a client, or in an
independent | 7 |
| proceeding for services within the scope of subdivisions | 8 |
| (1)
through (5) of subsection (a), is within the sound | 9 |
| discretion of the trial
court. The court shall first | 10 |
| consider the written engagement agreement and, if
the court | 11 |
| finds that the former client and the filing counsel, | 12 |
| pursuant to
their written engagement agreement, entered | 13 |
| into a contract which meets
applicable requirements of | 14 |
| court rules and addresses all material terms, then
the | 15 |
| contract shall be enforceable in accordance with its terms, | 16 |
| subject to the
further requirements of this subdivision | 17 |
| (c)(3). Before ordering enforcement,
however, the court
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| shall consider the performance pursuant to the contract. | 19 |
| Any amount awarded
by the court must be found to be fair | 20 |
| compensation for the services, pursuant
to the contract, | 21 |
| that the court finds were reasonable and necessary. Quantum
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| meruit principles shall govern any award for legal services | 23 |
| performed that is
not based on the terms of the written | 24 |
| engagement agreement (except that, if a
court expressly | 25 |
| finds in a particular case that aggregate billings to a | 26 |
| client
were unconscionably excessive, the court in its | 27 |
| discretion may reduce the award
otherwise determined | 28 |
| appropriate or deny fees altogether).
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| (4) No final hearing under this subsection (c) is | 30 |
| permitted unless any
controversy
over fees and costs (that | 31 |
| is not otherwise subject to some form of alternative
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| dispute resolution) has first been submitted to mediation, | 33 |
| arbitration, or any
other court approved alternative | 34 |
| dispute resolution procedure, except as
follows:
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| (A) In any circuit court for a single county with a | 36 |
| population in excess
of
1,000,000, the requirement of |
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| the controversy being submitted to an alternative
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| dispute resolution procedure is mandatory unless the | 3 |
| client and the counsel
both affirmatively opt out of | 4 |
| such procedures; or
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| (B) In any other circuit court, the requirement of | 6 |
| the controversy being
submitted to an alternative | 7 |
| dispute resolution procedure is mandatory only if
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| neither the client nor the counsel affirmatively opts | 9 |
| out of such
procedures.
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| After completion of any such procedure (or after one or | 11 |
| both sides has
opted
out of such procedures), if the | 12 |
| dispute is unresolved, any pending motion
for leave to | 13 |
| withdraw as counsel shall be promptly granted and a final | 14 |
| hearing
under this subsection
(c) shall be expeditiously | 15 |
| set and completed.
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| (5) A petition (or a praecipe for fee hearing without | 17 |
| the petition) shall
be
filed no later than the end of the | 18 |
| period in which it is permissible to file a
motion pursuant | 19 |
| to Section 2-1203 of the Code of Civil Procedure. A | 20 |
| praecipe
for fee hearing shall be dismissed if a Petition | 21 |
| for Setting Final Fees and
Costs is not filed within 60 | 22 |
| days after the filing of the praecipe. A counsel
who | 23 |
| becomes a party by filing a Petition for Setting Final Fees | 24 |
| and Costs, or
as a result of the client
filing a Petition | 25 |
| for Setting Final Fees and Costs, shall not be entitled to
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| exercise the right to a
substitution of a judge without | 27 |
| cause under subdivision (a)(2) of Section
2-1001 of the | 28 |
| Code of Civil Procedure.
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| (d) A consent judgment, in favor of a current counsel of | 30 |
| record against his
or her own client for a specific amount in a | 31 |
| marital settlement agreement,
dissolution judgment, or any | 32 |
| other instrument involving the other litigant, is
prohibited. A | 33 |
| consent judgment between client and counsel, however, is
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| permissible if it is entered pursuant to a verified petition | 35 |
| for entry of
consent judgment, supported by an affidavit of the | 36 |
| counsel of record that
incorporates an itemization of the |
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| billing or billings to the client, detailing
hourly costs, time | 2 |
| spent, and tasks performed, and by an affidavit of the
client | 3 |
| acknowledging receipt of that documentation, awareness
of the | 4 |
| right to a hearing, the right to be represented by counsel | 5 |
| (other than
counsel to whom the consent judgment is in favor), | 6 |
| and the right to be present
at
the time of presentation of the | 7 |
| petition, and agreement to the terms of the
judgment. The | 8 |
| petition may be filed at any time during which it is | 9 |
| permissible
for counsel of record to file a petition (or a | 10 |
| praecipe) for a final fee
hearing, except that no such petition | 11 |
| for entry of consent judgment may be
filed before adjudication | 12 |
| (or waiver) of the client's right to contribution
under | 13 |
| subsection (j) of Section 503 or filed after the filing of a
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| petition (or a praecipe) by counsel of record for a fee hearing | 15 |
| under
subsection (c) if the petition (or praecipe) remains | 16 |
| pending. No consent
security arrangement between a client and a | 17 |
| counsel of record, pursuant to
which assets of a client are | 18 |
| collateralized to secure payment of legal fees or
costs, is | 19 |
| permissible unless approved in advance by the court as being
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| reasonable under the circumstances.
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| (e) Counsel may pursue an award and judgment against a | 22 |
| former client for
legal
fees and costs in an independent | 23 |
| proceeding in the following circumstances:
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| (1) While a case under this Act is still pending
pends , | 25 |
| a former counsel may pursue
such an award and judgment at | 26 |
| any time subsequent to 90 days after the entry of
an order | 27 |
| granting counsel leave to withdraw; and
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| (2) After the close of the period during which a | 29 |
| petition (or praecipe)
may be filed under subdivision | 30 |
| (c)(5), if no such petition (or praecipe) for
the
counsel | 31 |
| remains pending, any counsel or former counsel may pursue | 32 |
| such an award
and judgment in an independent proceeding , | 33 |
| provided the complaint in the independent proceeding is | 34 |
| filed
within one year after the close of the foregoing | 35 |
| period .
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| In an independent proceeding, the prior applicability of this |
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| Section
shall in no way be deemed to have diminished any other | 2 |
| right of any counsel (or
former counsel) to pursue an award and | 3 |
| judgment for legal fees and costs on the
basis of remedies that | 4 |
| may otherwise exist under applicable law ; and the limitations | 5 |
| period for breach of contract shall apply . In an
independent | 6 |
| proceeding under subdivision (e)(1) in which the former counsel | 7 |
| had
represented a former client in a dissolution case that is | 8 |
| still pending
pends , the former
client may bring
in his or her | 9 |
| spouse as a third-party defendant, provided on or before the
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| final date for filing a petition (or praecipe) under subsection | 11 |
| (c), the party
files an appropriate third-party complaint under | 12 |
| Section 2-406 of the Code of
Civil Procedure. In any such case, | 13 |
| any judgment later obtained by the
former counsel shall be | 14 |
| against both spouses or ex-spouses, jointly and
severally | 15 |
| (except that, if a hearing under subsection (j) of Section 503 | 16 |
| has
already been concluded and the court hearing the | 17 |
| contribution issue has imposed
a percentage allocation between | 18 |
| the parties as to
fees and costs otherwise being adjudicated in | 19 |
| the independent proceeding, the
allocation
shall be applied | 20 |
| without deviation by the court in the independent proceeding
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| and a separate judgment shall be entered against each spouse | 22 |
| for the
appropriate
amount). After the period for the | 23 |
| commencement of a proceeding under
subsection (c), the | 24 |
| provisions of this Section (other than the standard set
forth | 25 |
| in subdivision (c)(3) and the terms respecting consent security
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| arrangements in subsection (d) of this Section 508) shall be | 27 |
| inapplicable.
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| The changes made by this amendatory Act of the 94th General | 29 |
| Assembly are declarative of existing law.
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| (f) Unless the Supreme Court by rule addresses the matters | 31 |
| set out in this
subsection (f), a written engagement agreement | 32 |
| within the scope
of subdivision (c)(2) shall have appended to | 33 |
| it verbatim the following
Statement:
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| "STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
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| (1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement |
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| agreement, prepared
by the counsel, shall clearly address the | 2 |
| objectives of representation and
detail the fee arrangement, | 3 |
| including all material terms. If fees are to be
based on | 4 |
| criteria apart from, or in addition to, hourly rates, such | 5 |
| criteria
(e.g., unique time demands and/or utilization of | 6 |
| unique expertise) shall be
delineated. The client shall receive | 7 |
| a copy of the written engagement
agreement and any additional | 8 |
| clarification requested and is advised not to
sign any such | 9 |
| agreement which the client finds to be unsatisfactory or does
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| not understand.
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| (2) REPRESENTATION. Representation will commence upon the | 12 |
| signing of the
written engagement agreement. The counsel will | 13 |
| provide competent
representation, which requires legal | 14 |
| knowledge, skill, thoroughness and
preparation to handle those | 15 |
| matters set forth in the written engagement
agreement. Once | 16 |
| employed, the counsel will act with reasonable diligence and
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| promptness, as well as use his best efforts on behalf of the | 18 |
| client, but he
cannot guarantee results. The counsel will abide | 19 |
| by the client's decision
concerning the objectives of | 20 |
| representation, including whether or not to accept
an offer of | 21 |
| settlement, and will endeavor to explain any matter to the | 22 |
| extent
reasonably necessary to permit the client to make | 23 |
| informed decisions regarding
representation. During the course | 24 |
| of representation and afterwards, the
counsel
may not use or | 25 |
| reveal a client's confidence or secrets, except as required or
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| permitted by law.
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| (3) COMMUNICATION. The counsel will keep the client | 28 |
| reasonably informed
about the status of representation and will | 29 |
| promptly respond to reasonable
requests for information, | 30 |
| including any reasonable request for an estimate
respecting | 31 |
| future costs of the representation or an appropriate portion of | 32 |
| it.
The client shall be truthful in all discussions with the | 33 |
| counsel and provide
all information or documentation required | 34 |
| to enable the counsel to provide
competent representation. | 35 |
| During representation, the client is entitled to
receive all | 36 |
| pleadings and substantive documents prepared on behalf of the
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| client and every document received from any other counsel of | 2 |
| record. At the
end of the representation and on written request | 3 |
| from the client, the counsel
will return to the client all | 4 |
| original documents and exhibits. In the event
that the counsel | 5 |
| withdraws from representation, or is discharged by the client,
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| the counsel will turn over to the substituting counsel (or, if | 7 |
| no
substitutions, to the client) all original documents and | 8 |
| exhibits together with
complete copies of all pleadings and | 9 |
| discovery within thirty (30) days of the
counsel's withdrawal | 10 |
| or discharge.
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| (4) ETHICAL CONDUCT. The counsel cannot be required to | 12 |
| engage in conduct
which is illegal, unethical, or fraudulent. | 13 |
| In matters involving minor
children, the counsel may refuse to | 14 |
| engage in conduct which, in the counsel's
professional | 15 |
| judgment, would be contrary to the best interest of the | 16 |
| client's
minor child or children. A counsel who cannot | 17 |
| ethically abide by his client's
directions shall be allowed to | 18 |
| withdraw from representation.
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| (5) FEES. The counsel's fee for services may not be | 20 |
| contingent upon the
securing of a dissolution of marriage, upon | 21 |
| obtaining custody, or be based upon
the amount of maintenance, | 22 |
| child support, or property settlement received,
except as | 23 |
| specifically permitted under Supreme Court rules. The
counsel | 24 |
| may not require a non-refundable retainer fee, but must remit | 25 |
| back any
overpayment at the end of the representation. The | 26 |
| counsel may enter into a
consensual security arrangement with | 27 |
| the client whereby assets of the client
are pledged to secure | 28 |
| payment of legal fees or costs, but only if the counsel
first | 29 |
| obtains approval of the Court. The counsel will prepare and | 30 |
| provide the
client with an itemized billing statement detailing | 31 |
| hourly rates (and/or other
criteria), time spent, tasks | 32 |
| performed, and costs incurred on a regular basis,
at least | 33 |
| quarterly. The client should review each billing statement | 34 |
| promptly
and address any objection or error in a timely manner. | 35 |
| The client will not be
billed for time spent to explain or | 36 |
| correct a billing statement. If an
appropriately detailed |
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| written estimate is submitted to a client as to future
costs | 2 |
| for a counsel's representation or a portion of the contemplated | 3 |
| services
(i.e., relative to specific steps recommended by the | 4 |
| counsel in the estimate)
and, without objection from the | 5 |
| client, the counsel then performs the
contemplated services, | 6 |
| all such services are presumptively reasonable and
necessary, | 7 |
| as well as to be deemed pursuant to the client's direction. In | 8 |
| an
appropriate case, the client may pursue contribution to his | 9 |
| or her fees and
costs from the other party.
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| (6) DISPUTES. The counsel-client relationship is regulated | 11 |
| by the Illinois
Rules of Professional Conduct (Article VIII of | 12 |
| the Illinois Supreme Court
Rules), and any dispute shall be | 13 |
| reviewed under the terms of such Rules."
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| (g) The changes to this Section 508 made by this amendatory | 15 |
| Act of 1996
apply to cases pending on or after June 1, 1997, | 16 |
| except as follows:
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| (1) Subdivisions (c)(1) and (c)(2) of this Section 508, | 18 |
| as well as
provisions of subdivision (c)(3) of this Section | 19 |
| 508 pertaining to written
engagement agreements, apply | 20 |
| only to
cases filed on or after June 1, 1997.
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| (2) The following do not apply in the case of a hearing | 22 |
| under this Section
that began before June 1, 1997:
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| (A) Subsection (c-1) of Section 501.
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| (B) Subsection (j) of Section 503.
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| (C) The changes to this Section 508 made by this | 26 |
| amendatory Act of 1996
pertaining to the final setting | 27 |
| of fees.
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| (Source: P.A. 89-712, eff. 6-1-97.)
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| Section 99. Effective date. This Act takes effect upon | 30 |
| becoming law.
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