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Judicial Rulings

A fired lawyer gets paid

A client who enters into a contingent-fee contract with a lawyer and then dismisses the lawyer before settlement still owes the lawyer something for services rendered. The Illinois Supreme Court filed its first decision on a case of this sort on August 14.

In this case the client's husband died from injuries suffered in an automobile accident. She employed a law firm under a contingent-fee contract, but after about one year she discharged them, before settlement of the action. The law firm filed an action against the estate for its services up to that time, and the circuit court ruled in its favor.

The high court pointed out that a contingent-fee contract gives the attorney a fee only if he wins, but that "when a client terminates a contingent-fee contract, the contract ceases to exist ... and the contingent term, whether the attorney wins, is no longer operative." It applied the principle of quantum meruit, "based on the implied promise of a recipient of services to pay for those services which are of value to him. The recipient would be unjustly enriched if he were able to retain the services without paying for them."

The new factor here was the claim before settlement of the underlying action. The outcome is not an "indispensable factor in calculating the value of an attorney's services" since "the former client will only be liable for the reasonable value of the services received ...."

The court had reservations about the amount awarded the discharged attorney but said, "This court cannot disturb an award because it would have awarded the claimant a different sum." It also ruled that the award could not come from workers compensation benefits.

Justice Thomas J. Moran wrote the opinion In re Estate of Callahan (Docket No. 69367). Justices Michael A. Bilandic and James D. Heiple did not participate, and Chief Justice Ben Miller dissented from the portion touching the amount of the award and the ruling that settlement could be made immediately. He felt that the outcome of the underlying suit could be used in making a more equitable award to the discharged attorney.

Only courts control bail

On August 14 the Illinois Supreme Court declared unconstitutional part of the Code of Criminal Procedure that sets conditions for bail while an appeal is pending.

In this case the defendant had been convicted on a narcotics charge and had been released on bail while his appeal was pending. The court allowed the pretrial bail to continue after the state had requested that bail be doubled. The state cited the section of the statute on "post-conviction detention" (see Illinois Revised Statutes 1989, ch. 38, sec. 110-6.2(b)).

The court interpreted the statute to mean that bail can only be allowed after it finds by clear and convincing evidence: "First ... that the person is not likely to flee or pose a danger to others; second ... that the person is not exercising his right of appeal for purposes of delay; third ... that his appeal raises a substantial question of law or fact; and finally, ... that the question on appeal would likely result in reversal or a new trial."

The court said, "Thus, we hold that the section imposes a mandatory requirement upon the judiciary which directly and irreconcilably conflicts with Supreme Court Rule 609(b)." The rule, without spelling out conditions, simply gives courts the authority to grant bail (see 134 111. 2d R. 609(b)). Since the Illinois Constitution (Art. VI, sec. 16) vests supervisory authority over the courts in the Supreme Court, its rules take precedence over statutes.

Judge Thomas J. Moran wrote the opinion in People v Williams (Docket No. 70427). Justice James D. Heiple especially concurred, pointing out that the criteria raised in the statute are probably considered by judges in setting bail, but said, "By enacting section 110-6.2 the Illinois legislature is intruding in an area where it lacks authority." From the same basic premise Chief Justice Ben Miller dissented because "the statute simply codifies the cirumstances normally considered by the court ...."

Court limits judges' teaching and gets an unfavorable reaction

On June 7 the Illinois Supreme Court amended its rules to limit the amount of teaching and other extra-judicial activity by judges and to control remuneration for it. The issue had come up in February hearings of the Illinois General Assembly's legislative audit commission. Legislators were disturbed in particular on learning that one judge had received more than $30,000 over a two-year period.

Amendments to Rule 64 provide that teaching by a judge may not begin before 5:30 p.m. on a business day and that the judge must file with the Administrative Office of the Illinois Courts a statement from the supervising judge that the teaching does not conflict with judicial duties. Amendments to Rule 66 forbid compensation (defined as "a sum of money or other thing of value paid ... for services provided or performed") but did permit honoraria, as long as these do not exceed reasonable amounts for the service and do not amount to more than $2,000 for a six-month period.

Chief Justice Ben Miller (joined by Justices Joseph H. Cunningham, Charles E. Freeman and Thomas J. Moran) explained the changes in a special concurrence filed August 14. He pointed out that the Illinois Constitution (Art. VI, sec. 13(b)) requires judges to "devote full time to judicial duties" and prohibits their holding "a position of profit." He concluded, "In the court's view, a compensated teaching position that requires a judge's regular attendance during normal business hours falls within the terms of those constitutional proscriptions." The amended rules provide guidance on the scope of permitted nonjudicial activities. Since the Constitution makes no distinction among classes of judges, the amendment places the same requirements on all, even though there are great differences in the activity schedules of trial and review court judges.

Miller noted the benefits both to the participants and the public that may result from judges' nonjudicial activities. He also added the predictable plea for adequate compensation so that judges will not need to supplement their salaries.

Unfavorable reaction was immediate. Bar associations, judges associations, law schools and individuals pointed out the benefits, especially to law students, of permitting judges to teach and the havoc that the new rules would wreak on teaching schedules. Some judges said they would have to stop teaching; others said they would have to resign from the bench (at this writing there has been one resignation). A national trend encouraging teaching by judges was noted.

Justices Michael A. Bilandic and James D. Heiple dissented. Heiple apparently considered some of the provisions absurd. He noted that judges could play tennis, go sailing or even take classes during the daytime but not teach. He said, "Presumably, however, the public can now breathe easier. Judges will not be going about teaching in broad daylight." He considered "honorarium" a euphemism for "compensation" and said that "the party benefited may, in effect, throw the cash through the open transom of the judge's office or slip it under the door." He also pointed out that no complaints of neglect of judicial duties because of extra-judicial duties have ever been filed and posed the predictable rule, "If it ain't broke, don't fix it."

F. Mark Siebert

October1991/Illinois Issues/21

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