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| Public Act 094-1016 |
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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 | ||||
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 | ||||
Responsibilities Respecting
Fees and
Costs.
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(a) The court from time to time, after due notice and | ||||
hearing, and after
considering the financial resources of the | ||||
parties, may order any party to
pay a reasonable amount for his | ||||
own or the other party's costs and
attorney's fees. Interim | ||||
attorney's fees and costs may be awarded from the
opposing | ||||
party, in accordance with subsection (c-1) of Section 501. At | ||||
the
conclusion of the case, contribution to attorney's fees and | ||||
costs may be
awarded from the opposing party in accordance with | ||||
subsection (j) of Section
503. Fees and costs may be awarded to | ||||
counsel from a former client in
accordance with subsection (c) | ||||
of
this Section.
Awards may be made in connection with the | ||||
following:
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(1) The maintenance or defense of any proceeding under | ||||
this Act.
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(2) The enforcement or modification of any order or | ||||
judgment
under this Act.
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(3) The defense of an appeal of any order or judgment | ||||
under
this Act, including the defense of appeals of | ||||
post-judgment orders.
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(3.1) The prosecution of any claim on appeal (if the | ||||
prosecuting party
has
substantially prevailed).
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(4) The maintenance or defense of a petition brought | ||||
under
Section 2-1401 of the Code of Civil Procedure seeking | ||||
relief from a
final order or judgment under this Act.
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(5) The costs and legal services of an attorney | ||
rendered in
preparation of the commencement of the | ||
proceeding brought under this Act.
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(6) Ancillary litigation incident to, or reasonably | ||
connected with, a
proceeding under this Act.
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The court may order that the award of attorney's fees and | ||
costs
(including an interim or contribution award) shall be | ||
paid directly to the
attorney, who may enforce the order in his | ||
or her name, or that it shall be
paid to
the appropriate party. | ||
Judgment may be entered and enforcement had
accordingly. Except | ||
as otherwise provided in subdivision (e)(1) of this
Section, | ||
subsection (c) of this Section
is exclusive as to the right of | ||
any counsel
(or
former counsel) of record to petition a court | ||
for an award and judgment for
final fees and costs during the | ||
pendency of a proceeding under this Act.
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(b) In every proceeding for the enforcement of an order or | ||
judgment
when the court finds that the failure to comply with | ||
the order or judgment
was without compelling cause or | ||
justification, the court shall order the
party against
whom the | ||
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 | ||
with respect to a discovery order, the non-compliance is
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presumptively without compelling cause or justification, and | ||
the presumption
may only be rebutted by clear and convincing | ||
evidence. If at any time a court
finds that a hearing under | ||
this Section was precipitated or conducted for any
improper | ||
purpose, the court shall allocate fees and costs of all parties | ||
for
the hearing to the party or counsel found to have acted | ||
improperly. Improper
purposes include, but are not limited to, | ||
harassment, unnecessary
delay, or other acts needlessly | ||
increasing the cost of litigation.
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(c) Final hearings for attorney's fees and costs against an | ||
attorney's own
client, pursuant to a Petition for Setting Final | ||
Fees and Costs of either a
counsel or a client, shall be | ||
governed by the following:
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(1) No petition of a counsel of record may be filed | ||
against a client
unless the filing counsel previously has | ||
been granted leave to withdraw as
counsel of record or has | ||
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 | ||
counsel of record
shall promptly file a motion for leave to | ||
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 | ||
withdraw as counsel
filed pursuant to this
subdivision | ||
(c)(1) may be deferred until completion of any alternative | ||
dispute
resolution procedure under subdivision (c)(4). As | ||
to any
Petition for Setting Final Fees and Costs against a | ||
client or counsel over whom
the court has not obtained
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jurisdiction, a separate summons shall issue. Whenever a | ||
separate summons is
not required, original notice as to a | ||
Petition for Setting Final Fees and Costs
may be given, and | ||
documents
served, in accordance with Illinois Supreme | ||
Court Rules 11 and 12.
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(2) No final hearing under this subsection (c) is | ||
permitted
unless: (i) the
counsel and the client had | ||
entered into a written engagement agreement at the
time the | ||
client retained the counsel (or reasonably soon | ||
thereafter) and the
agreement
meets the requirements of | ||
subsection (f); (ii) the written engagement agreement
is | ||
attached to an affidavit of counsel that is filed with the | ||
petition or with
the
counsel's response to a client's | ||
petition; (iii) judgment in any contribution
hearing on | ||
behalf of the client has been entered or the right to a | ||
contribution
hearing under subsection (j) of Section 503 | ||
has been waived; (iv) the counsel
has withdrawn as
counsel | ||
of record; and (v) the petition seeks adjudication of all | ||
unresolved
claims for fees and costs between the counsel | ||
and the client. Irrespective of a
Petition for Setting | ||
Final Fees and Costs being heard in conjunction with an
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original proceeding under this Act, the relief requested | ||
under a Petition for
Setting Final Fees and Costs | ||
constitutes a distinct cause of action. A pending
but | ||
undetermined
Petition for Setting Final Fees and Costs | ||
shall not affect appealability of
any judgment or other | ||
adjudication in the original proceeding.
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(3) The determination of reasonable attorney's fees | ||
and costs either under
this
subsection (c), whether | ||
initiated by a counsel or a client, or in an
independent | ||
proceeding for services within the scope of subdivisions | ||
(1)
through (5) of subsection (a), is within the sound | ||
discretion of the trial
court. The court shall first | ||
consider the written engagement agreement and, if
the court | ||
finds that the former client and the filing counsel, | ||
pursuant to
their written engagement agreement, entered | ||
into a contract which meets
applicable requirements of | ||
court rules and addresses all material terms, then
the | ||
contract shall be enforceable in accordance with its terms, | ||
subject to the
further requirements of this subdivision | ||
(c)(3). Before ordering enforcement,
however, the court
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shall consider the performance pursuant to the contract. | ||
Any amount awarded
by the court must be found to be fair | ||
compensation for the services, pursuant
to the contract, | ||
that the court finds were reasonable and necessary. Quantum
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meruit principles shall govern any award for legal services | ||
performed that is
not based on the terms of the written | ||
engagement agreement (except that, if a
court expressly | ||
finds in a particular case that aggregate billings to a | ||
client
were unconscionably excessive, the court in its | ||
discretion may reduce the award
otherwise determined | ||
appropriate or deny fees altogether).
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(4) No final hearing under this subsection (c) is | ||
permitted unless any
controversy
over fees and costs (that | ||
is not otherwise subject to some form of alternative
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dispute resolution) has first been submitted to mediation, | ||
arbitration, or any
other court approved alternative | ||
dispute resolution procedure, except as
follows:
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(A) In any circuit court for a single county with a | ||
population in excess
of
1,000,000, the requirement of | ||
the controversy being submitted to an alternative
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dispute resolution procedure is mandatory unless the | ||
client and the counsel
both affirmatively opt out of | ||
such procedures; or
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(B) In any other circuit court, the requirement of | ||
the controversy being
submitted to an alternative | ||
dispute resolution procedure is mandatory only if
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neither the client nor the counsel affirmatively opts | ||
out of such
procedures.
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After completion of any such procedure (or after one or | ||
both sides has
opted
out of such procedures), if the | ||
dispute is unresolved, any pending motion
for leave to | ||
withdraw as counsel shall be promptly granted and a final | ||
hearing
under this subsection
(c) shall be expeditiously | ||
set and completed.
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(5) A petition (or a praecipe for fee hearing without | ||
the petition) shall
be
filed no later than the end of the | ||
period in which it is permissible to file a
motion pursuant | ||
to Section 2-1203 of the Code of Civil Procedure. A | ||
praecipe
for fee hearing shall be dismissed if a Petition | ||
for Setting Final Fees and
Costs is not filed within 60 | ||
days after the filing of the praecipe. A counsel
who | ||
becomes a party by filing a Petition for Setting Final Fees | ||
and Costs, or
as a result of the client
filing a Petition | ||
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 | ||
cause under subdivision (a)(2) of Section
2-1001 of the | ||
Code of Civil Procedure.
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(d) A consent judgment, in favor of a current counsel of | ||
record against his
or her own client for a specific amount in a | ||
marital settlement agreement,
dissolution judgment, or any | ||
other instrument involving the other litigant, is
prohibited. A | ||
consent judgment between client and counsel, however, is
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permissible if it is entered pursuant to a verified petition | ||
for entry of
consent judgment, supported by an affidavit of the | ||
counsel of record that
incorporates an itemization of the | ||
billing or billings to the client, detailing
hourly costs, time | ||
spent, and tasks performed, and by an affidavit of the
client | ||
acknowledging receipt of that documentation, awareness
of the | ||
right to a hearing, the right to be represented by counsel | ||
(other than
counsel to whom the consent judgment is in favor), | ||
and the right to be present
at
the time of presentation of the | ||
petition, and agreement to the terms of the
judgment. The | ||
petition may be filed at any time during which it is | ||
permissible
for counsel of record to file a petition (or a | ||
praecipe) for a final fee
hearing, except that no such petition | ||
for entry of consent judgment may be
filed before adjudication | ||
(or waiver) of the client's right to contribution
under | ||
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 | ||
under
subsection (c) if the petition (or praecipe) remains | ||
pending. No consent
security arrangement between a client and a | ||
counsel of record, pursuant to
which assets of a client are | ||
collateralized to secure payment of legal fees or
costs, is | ||
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 | ||
former client for
legal
fees and costs in an independent | ||
proceeding in the following circumstances:
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(1) While a case under this Act is still pending
pends, | ||
a former counsel may pursue
such an award and judgment at | ||
any time subsequent to 90 days after the entry of
an order | ||
granting counsel leave to withdraw; and
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(2) After the close of the period during which a | ||
petition (or praecipe)
may be filed under subdivision | ||
(c)(5), if no such petition (or praecipe) for
the
counsel | ||
remains pending, any counsel or former counsel may pursue | ||
such an award
and judgment in an independent proceeding , | ||
provided the complaint in the independent proceeding is | ||
filed
within one year after the close of the foregoing | ||
period.
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In an independent proceeding, the prior applicability of this | ||
Section
shall in no way be deemed to have diminished any other | ||
right of any counsel (or
former counsel) to pursue an award and | ||
judgment for legal fees and costs on the
basis of remedies that | ||
may otherwise exist under applicable law; and the limitations | ||
period for breach of contract shall apply. In an
independent | ||
proceeding under subdivision (e)(1) in which the former counsel | ||
had
represented a former client in a dissolution case that is | ||
still pending
pends, the former
client may bring
in his or her | ||
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 | ||
(c), the party
files an appropriate third-party complaint under | ||
Section 2-406 of the Code of
Civil Procedure. In any such case, | ||
any judgment later obtained by the
former counsel shall be | ||
against both spouses or ex-spouses, jointly and
severally | ||
(except that, if a hearing under subsection (j) of Section 503 | ||
has
already been concluded and the court hearing the | ||
contribution issue has imposed
a percentage allocation between | ||
the parties as to
fees and costs otherwise being adjudicated in | ||
the independent proceeding, the
allocation
shall be applied | ||
without deviation by the court in the independent proceeding
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and a separate judgment shall be entered against each spouse | ||
for the
appropriate
amount). After the period for the | ||
commencement of a proceeding under
subsection (c), the | ||
provisions of this Section (other than the standard set
forth | ||
in subdivision (c)(3) and the terms respecting consent security
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arrangements in subsection (d) of this Section 508) shall be | ||
inapplicable.
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The changes made by this amendatory Act of the 94th General | ||
Assembly are declarative of existing law.
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(f) Unless the Supreme Court by rule addresses the matters | ||
set out in this
subsection (f), a written engagement agreement | ||
within the scope
of subdivision (c)(2) shall have appended to | ||
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 | ||
agreement, prepared
by the counsel, shall clearly address the | ||
objectives of representation and
detail the fee arrangement, | ||
including all material terms. If fees are to be
based on | ||
criteria apart from, or in addition to, hourly rates, such | ||
criteria
(e.g., unique time demands and/or utilization of | ||
unique expertise) shall be
delineated. The client shall receive | ||
a copy of the written engagement
agreement and any additional | ||
clarification requested and is advised not to
sign any such | ||
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 | ||
signing of the
written engagement agreement. The counsel will | ||
provide competent
representation, which requires legal | ||
knowledge, skill, thoroughness and
preparation to handle those | ||
matters set forth in the written engagement
agreement. Once | ||
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 | ||
client, but he
cannot guarantee results. The counsel will abide | ||
by the client's decision
concerning the objectives of | ||
representation, including whether or not to accept
an offer of | ||
settlement, and will endeavor to explain any matter to the | ||
extent
reasonably necessary to permit the client to make | ||
informed decisions regarding
representation. During the course | ||
of representation and afterwards, the
counsel
may not use or | ||
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 | ||
reasonably informed
about the status of representation and will | ||
promptly respond to reasonable
requests for information, | ||
including any reasonable request for an estimate
respecting | ||
future costs of the representation or an appropriate portion of | ||
it.
The client shall be truthful in all discussions with the | ||
counsel and provide
all information or documentation required | ||
to enable the counsel to provide
competent representation. | ||
During representation, the client is entitled to
receive all | ||
pleadings and substantive documents prepared on behalf of the
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client and every document received from any other counsel of | ||
record. At the
end of the representation and on written request | ||
from the client, the counsel
will return to the client all | ||
original documents and exhibits. In the event
that the counsel | ||
withdraws from representation, or is discharged by the client,
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the counsel will turn over to the substituting counsel (or, if | ||
no
substitutions, to the client) all original documents and | ||
exhibits together with
complete copies of all pleadings and | ||
discovery within thirty (30) days of the
counsel's withdrawal | ||
or discharge.
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(4) ETHICAL CONDUCT. The counsel cannot be required to | ||
engage in conduct
which is illegal, unethical, or fraudulent. | ||
In matters involving minor
children, the counsel may refuse to | ||
engage in conduct which, in the counsel's
professional | ||
judgment, would be contrary to the best interest of the | ||
client's
minor child or children. A counsel who cannot | ||
ethically abide by his client's
directions shall be allowed to | ||
withdraw from representation.
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(5) FEES. The counsel's fee for services may not be | ||
contingent upon the
securing of a dissolution of marriage, upon | ||
obtaining custody, or be based upon
the amount of maintenance, | ||
child support, or property settlement received,
except as | ||
specifically permitted under Supreme Court rules. The
counsel | ||
may not require a non-refundable retainer fee, but must remit | ||
back any
overpayment at the end of the representation. The | ||
counsel may enter into a
consensual security arrangement with | ||
the client whereby assets of the client
are pledged to secure | ||
payment of legal fees or costs, but only if the counsel
first | ||
obtains approval of the Court. The counsel will prepare and | ||
provide the
client with an itemized billing statement detailing | ||
hourly rates (and/or other
criteria), time spent, tasks | ||
performed, and costs incurred on a regular basis,
at least | ||
quarterly. The client should review each billing statement | ||
promptly
and address any objection or error in a timely manner. | ||
The client will not be
billed for time spent to explain or | ||
correct a billing statement. If an
appropriately detailed | ||
written estimate is submitted to a client as to future
costs | ||
for a counsel's representation or a portion of the contemplated | ||
services
(i.e., relative to specific steps recommended by the | ||
counsel in the estimate)
and, without objection from the | ||
client, the counsel then performs the
contemplated services, | ||
all such services are presumptively reasonable and
necessary, | ||
as well as to be deemed pursuant to the client's direction. In | ||
an
appropriate case, the client may pursue contribution to his | ||
or her fees and
costs from the other party.
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(6) DISPUTES. The counsel-client relationship is regulated | ||
by the Illinois
Rules of Professional Conduct (Article VIII of | ||
the Illinois Supreme Court
Rules), and any dispute shall be | ||
reviewed under the terms of such Rules."
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(g) The changes to this Section 508 made by this amendatory | ||
Act of 1996
apply to cases pending on or after June 1, 1997, | ||
except as follows:
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(1) Subdivisions (c)(1) and (c)(2) of this Section 508, | ||
as well as
provisions of subdivision (c)(3) of this Section | ||
508 pertaining to written
engagement agreements, apply | ||
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 | ||
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 | ||
amendatory Act of 1996
pertaining to the final setting | ||
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 | ||
becoming law.
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