I once overheard a lawyer justify the amount of his fee charges by telling the client, “I’m just a business man.” In marked contrast, an older and very well respected DuPage County attorney once told me that when Atticus Finch, the lawyer in To Kill A Mockingbird, accepted a bag of chestnuts in payment of a fee, it was exemplary of the unique responsibility of our profession. Everybody reading this has probably experienced the stress between those two extremes of the financial realities of the private practice of law. Each of us has had to consider using our professional skills against our own (former) clients in the matter of unpaid fees.
The first line of the Preamble to the Illinois Rules of Professional Conduct is, “The practice of law is a public trust.” Two lines later it states that lawyers are responsible “for maintaining public confidence in the system of justice... by acting... with loyalty to the best interests of their clients....” The decision to engage in proceedings against our own clients is preceded by dispute, fraught with misunderstanding, and filled with stress.
This difficult issue often has been the target of ameliorative efforts such as the lengthy and detailed provisions of Section 508 (c) of the Illinois Marriage and Dissolution of Marriage Act, and the extensive provisions of Circuit Court Rule 15.19.01-.18. However, when it may be undesirable to employ these confrontational, detailed and costly methods, the DCBA offers still another alternative. Fee disputes can be resolved by the Professional Responsibility Committee of the DuPage County Bar Association. It is hoped that this article will give you some idea about what happens when a fee complaint is submitted to the Professional Responsibility Committee for resolution.
We prefer to think we are the good guys. We, the members of the Professional Responsibility Committee of the DuPage County Bar Association, like to believe that the services offered to the community and to the Bar are not only helpful but, in many instances, actually provide a “boost” to the low esteem in which we lawyers are all too often held.
The Professional Responsibility Committee (all members of the DuPage County Bar Association) offers the services of its members to resolve fee disputes between attorneys and their clients. The words “fee dispute” are the key words. The committee does not involve itself in any other matters or problems; allegations of professional misconduct are exclusively within the jurisdiction of the Attorney Registration and Disciplinary Commission.
Fee Dispute Complaints
A fee dispute complaint is typically initiated by a call from a dissatisfied client or from an attorney to the Bar Association. The Association supplies a complaint form which must be completed and returned in order to initiate the proceeding, along with a form of an agreement to arbitration. If a party brings a complaint against an attorney before the ARDC regarding matters related to a fee dispute complaint, the Committee will not proceed with the fee dispute claim until the ARDC matter is resolved. The statute of limitations is not tolled, or extended, during that period.
If the initial complaint does in fact deal with a bona fide fee issue, a letter is written to both the complainant and respondent informing the respondent of the complaint, providing a copy of the complaint, requesting that the respondent respond in writing and suggesting that he or she sign the agreement to arbitration. The letter assigns the matter to a committee member for investigation and sets the matter for hearing at a subsequent date. The investigating member is simultaneously sent a copy of the letter and the complaint.
Investigations and Voluntary Settlements
After reviewing the complaint, the response and any exhibits supplied by either of the parties, the investigating attorney will contact and interview both parties. If it appears that the matter might be one which may easily resolved, the committee member will attempt to facilitate a voluntary settlement. Invariably, there has been some difficulty in communication between attorney and client giving rise to the view - at least in the client’s mind - that the attorney has not done the job for which he or she was hired, or has not properly represented the interests of the client.
If the committee member handling the file cannot resolve the parties’ differences he or she may request time sheets, correspondence or other parts of the attorney’s file. A court file, if applicable, may be reviewed. The investigating committee member will do whatever is necessary and appropriate to develop as complete an understanding of the material facts as possible.
Both parties must sign an agreement for binding arbitration if a committee hearing is to bring a final resolution to the dispute. Binding arbitration is, of course, purely voluntary for both parties. But, in the absence of a fully executed agreement by both parties, a hearing will not take place.1 Curiously, in our experience, the complaining clients usually sign such arbitration agreements; while some attorneys refuse, apparently preferring to preserve their rights to litigate the issue.
If either during the committee member’s investigation or during the hearing itself, it appears that the attorney has been guilty of an infraction of the Illinois Rules of Professional Conduct, the matter will immediately be directed to the Attorney Registration and Disciplinary Commission.2
The Professional Responsibility Committee is basically concerned with whether the fees charged by the lawyer conform with Rule 1.5 of the Illinois Rules of Professional Conduct and with applicable statutory and case law. When there is such compliance, there is usually a finding and award in favor of the attorney. Because the parties had agreed to arbitration, the decision reached at the hearing is then binding upon both parties. Because the parties have agreed to arbitration, the hearing is primarily governed by the provisions of the Uniform Arbitration Act, as adopted in Illinois.3 Therefore, in accordance with Section 114 of the Act, “[u]pon the granting of an order confirming... an award, judgment shall be entered in conformity therewith and be enforced as any other judgment.”4
The hearings themselves are generally quite informal, and the rules of evidence are not strictly enforced. The hearing panel consists of the committee member to whom the case was originally assigned, who acts as the presiding member of the panel, and two other committee members as additional arbitrators.
Either of the parties - or a panel member - may move to exclude any witnesses who have appeared to testify. The complainant is allowed to proceed first, and is given about fifteen minutes within which to present his or her case with the admonition from the panel not to simply restate the brief facts contained in the complaint, since the panel members have already read the file.
During or following the complainant’s presentation there may be questions from some or all of the panel members. The respondent may present his or her side of the issue, attempting to justify or attack the fee charged, and may also be questioned by the panel. Each party has an opportunity to respond to the other’s testimony or argument so that each may fully express his or her views.
At the conclusion of the hearing, after considering all testimony and exhibits introduced by the parties, the panel will reach a decision and make an award. That decision and award will be reduced to writing by the committee with a copy mailed to both the client and the attorney.
All records, documents and other exhibits submitted by the parties to either the investigating committee member or the hearing panel will be returned at the close of the hearing. All records, as well as the hearing and award rendered by the panel, shall be kept confidential by the members of the committee. The only exception to this rule would be a revelation of fact required to be made to the ARDC, should that situation arise.
In the event a party does not appear at the scheduled hearing, the matter proceeds on an ex parte basis. The party who fails to attend the hearing may move for reconsideration of the award on the basis of his or her failure to appear. But the panel may reconsider only upon a showing of good cause on the part of the non-attending party.
The Professional Responsibility Committee and all of its members work hard to provide a forum for fee dispute resolution for the benefit of both the public and the members of the bar. It is disappointing when members of the bar and of our association refuse to agree to arbitration or to participate at all. Such participation is an essential ingredient to our efforts to enhance the profession’s image with the general public. We strongly encourage the participation of any attorney who becomes a party to a fee dispute, in the belief that it will benefit both the attorney and the client, and also enhance the reputation of the entire practicing bar.
1. The committee will also not entertain a fee complaint where that issue is already the subject matter of pending litigation.
2. As required by, among other authorities, In re Himmel, 125 Ill.App.2d 531, 533 N.E.2d 790 (1988).
3. 710 ILCS 5/1 to 5/23.
4. See also Stein v. Feldman, 85 Ill.App.3d 973 (1980) (involving enforcement of a fee committee’s arbitration award).
Bob McDonough is a 1975 graduate of The John Marshall Law School, in private practice continuously since then. He has practiced in DuPage County since 1978, has been a member of the Professional Responsibility Committee for several years, and is currently serving as Vice-Chair of the committee. He is a sole practitioner with offices in Wheaton, Illinois.
Part of this article is an updated reprint of the article by Robert C. Hultquist appearing in the February, 1993 DCBA Brief.