While Illinois courts generally follow the American rule which provides that the prevailing party in a lawsuit must bear its own attorney’s fees, Brundridge v. Glendale Federal Bank, F.S.B., 168 Ill.2d 235 (1995) attorneys often find themselves preparing petitions requesting the court to award attorneys fees for various reasons.
With the rising cost of litigation, the issue of whether a prevailing party can recoup its attorney’s fees has become increasingly important. Indeed, the cost of attorney’s fees sometimes prohibits a party from bringing a meritorious claim or forces a Defendant to settle a claim that lacks merit.
It is important, therefore, that an attorney preparing a petition for attorney’s fees provide the court with the requisite information so that the court can enter a proper award. This article examines what an attorney who is seeking an award of fees should expect and what type of information a court will require.
Initially, you need to know whether a client is entitled to recoup attorney’s fees and you need to know the basis for the award.
Several state statutes entitle a prevailing party to recoup attorney’s fees. A sample of some of these statutes include: the Forcible Entry and Detainer Act, 735 ILCS 5/9-101 et seq.; the Illinois Sales Representative Act, 820 ILCS 120/0.01 et seq.; the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq.; and the Attorney’s Fees and Actions Act, 705 ILCS 225/1 et seq. A court will also award attorney’s fees to the prevailing party in a breach of contract claim where the contract specifically provides for such an award. Grossinger Motor Corp., Inc. v. American National Bank and Trust Co., 240 Ill.App.3d 737, 607 N.E.2d 1337 (1st Dist 1992). Also, a court may award attorney’s fees to one party as sanctions against another party for filing a frivolous pleading under Supreme Court Rule 137, or for failure to comply with court orders under Supreme Court Rule 219.
You should next consider if the award of fees is compulsory or discretionary with the court and style the request accordingly. For example, under the Consumer Fraud and Deceptive Business Practices Act, the court has the discretion, not only to determine the amount of fees to be awarded, but whether fees should be awarded at all. Totz, et al. v. Continental DuPage Acura, 236 Ill.App.3d 891, 602 N.E.2d 1374 (2nd Dist 1992).
Similarly, in situations where fees are being sought as a means of imposing sanctions, the court will have discretion to determine whether awarding attorneys fees is an appropriate measure. Olsen v. Staniak, 260 Ill.App.3d 856, 632 N.E.2d 168 (1st Dist 1994).
In these types of situations one would be well advised to do a little bit of research regarding the court’s rationale for permitting an award so that the fee petition can amplify the facts which support such a rationale. For example, in Totz, supra, the appellate court affirmed the trial court’s award of $17,625 in attorney’s fees to a successful plaintiff bringing suit under the Consumer Fraud and Deceptive Business Practices Act. In its opinion, the court distinguished the case of Grimes v. Aldesberger, 67 Ill.App.3d 582, 384 N.E.2d 537 (4th Dist 1978), also brought under that Act. The distinguishing feature between the cases, according to the Totz court, was that the defendants in the Grimes case were not guilty of an intentional or concerted effort to deceive the Plaintiff. The court then noted that there was evidence that the defendant in Totz deliberately withheld material information from the plaintiffs. Totz, supra, at 1374.
By carefully reviewing the cases in which the appellate court awards fees and cases in which the appellate court does not, an attorney can accumulate a list of relevant considerations that should be included in a fee petition.
In other cases this step will not be necessary because an award of attorney’s fees to a prevailing party is compulsory. For condominium property, for example, the Forcible Entry and Detainer Act states that, "if expenses or fines are due to the Plaintiff, judgment in favor of the Plaintiff shall be entered for the possession thereof and for the amount found due by the court including interest and late charges, if any, together with reasonable attorney’s fees, if any, and for the Plaintiff’s costs." 735 ILCS 5/9-111. Similarly, a principal found liable under the Illinois Sales Representative Act "shall pay the sales representatives reasonable attorney’s fees and court costs." 820 ILCS 120/3.
In addition, in cases where a prevailing party is entitled to fees based on a contract between the parties, fees will be recoverable pursuant to the contract. However, the court does have the power to interpret the contract at issue, and will strictly construe any provision which permits the award of attorney’s fees to the prevailing party. Grossinger Motor Corp., supra, at 1348.
Once one has determined the basis for an award of attorney’s fees and that the court will be awarding fees in your case (either because your client has prevailed and the court is required to do so, or because you have brilliantly set forth a compelling argument that will convince the court to award fees), it is time to provide the court with the type of information necessary for it to award the amount of fees that one is seeking.
Rule 1.5 of the Rules of Professional Conduct requires that a lawyer’s fee be reasonable. The rule also lists several factors to consider in determining whether or not a particular fee is reasonable. Not surprisingly, in situations when a court is asked to grant a party an award of attorney’s fees, the crux of the court’s inquiry is reasonableness.
A court has discretion in determining what is a reasonable attorney’s fee, and absent the abuse of discretion, its decision will not be reversed on appeal. In re Marriage of Chesrow, 255 Ill.App.3d 613, 627 N.E.2d 416 (2nd Dist 1994).
However, case law, and in certain instances, the statute which provides the basis for an award of attorney’s fees, sets forth the factors that a court must apply to determine what constitutes a reasonable fee. Thus, while a court has discretion to determine what a reasonable fee should be, the court exercises its discretion within the framework of factors that must be considered in each case.
In In Re Estate of Callahan, 144 Ill.2d 32, 578 N.E.2d 985 (1991), the Illinois Supreme Court had the opportunity to consider how a court should properly determine the reasonable value of an attorney’s services. The court set forth a standard which closely mirrors the factors included in Rule 1.5 of the Rules of Professional Conduct. The court stated that the factors a court should consider in determining a reasonable fee are: The skill and standing of the attorney employed, the nature of the case and difficultly of the questions at issue, the amount and importance of the subject matter, the degree of responsibility involved in the management of the case, the time and labor required, the usual and customary fee in the community, and the benefit resulting to the client. Estate of Callahan, supra at 990, (citing Mireles v. Indiana Harbor Belt R.R. Corp., 154 Ill.App.3d 547, 507 N.E.2d 129 [(1st Dist 1987)]).
While the Callahan case involved a situation in which an attorney had filed a claim against its former client for fees, the same factors are applied whenever the court is called upon "to properly determine the reasonable value of an attorneys services." Callahan at 990. Indeed, Illinois courts will apply these factors in various situations to determine an amount to be awarded as reasonable attorney’s fees. For example, the standard has been applied to award fees in cases premised upon: the Consumer Fraud and Deceptive Business Practices Act, Black v. Iovino, 219 Ill.App.3d 378, 580 N.E.2d 139 (1st Dist 1991), appeal denied 143 Ill.2d 636, 587 N.E.2d 1011 (1992), a petition for sanctions under Supreme Court Rule 137, Riverdale Bank v. Papastratakos, et al., 266 Ill.App.3d 31, 639 N.E.2d 219 (1st Dist 1994); contract language providing that Plaintiff was entitled to its fees, Chicago Title and Trust Co. v. Chicago Title and Trust Company, et al., 248 Ill.App.3d 1065, 618 N.E.2d 949 (1st Dist 1993); and a condominium association’s suit for collection of assessments and late fees, 400 Condominium Association v, Wright et al., 240 Ill.App.3d 546, 608 N.E.2d 446 (1st Dist 1992).
While the Callahan court specified the factors that a court will consider in determining a reasonable amount for attorney’s fees, in certain circumstances there may be a statutory standard right on point. For example, for condominium property, the Forcible Entry and Detainer Act 735 ILCS 5/9-111(b) states specifically: (b) for the purposes of determining reasonable attorney’s fees under subsection (a), the court shall consider: (I) the time expended by the attorney; (ii) the reasonableness of the hourly rate for the work preformed; (iii) the reasonableness of the amount of time expended for the work performed; and (iv) the amount in controversy and the nature of the action.
In such situations, where the standard is included in the statute itself, an attorney must tailor the fee petition to meet those standards. In practice, however, this will not significantly alter one’s approach to preparing the petition. Several of the factors listed in the statute are identical to those contained in the Callahan standard. In addition, the "reasonableness of the hourly rate" which the court will consider under the Forcible Entry and Detainer Act, necessarily will include the skill of the attorney, his/her standing, the degree of their responsibility in management of the case, and the customary fee charged in the community.
Any petition submitted to a court should be accompanied by an affidavit of the attorney setting forth, at a minimum, the following information: - the general level of experience of the attorney, the level of experience of the attorney in the particular field of law at issue; the degree of responsibility and involvement the attorney has had in managing the case; the time spent on the case including some degree of explanation as to the work performed during that time; the attorney’s normal hourly rate and the rate charged for that special case; and the uniqueness of the subject matter of the case.
The key issues are reasonableness and appropriate documentation. By tailoring one’s petition to the specific factors that the court will apply, an attorney can assure that the court has the information it needs to make the necessary findings and award appropriate attorney’s fees.
Elizabeth Krupp McGregor is an Associate at the Law Offices of Knuckles & Jagel, Naperville. Her practice is concentrated in condominium and homeowner’s representation. She received her Undergraduate Degree in 1988 from Washington University and her Law Degree in 1993 from the University of Illinois.