Illinois General Assembly - Full Text of Public Act 094-1016
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Public Act 094-1016




Public Act 094-1016
SB2475 Enrolled LRB094 15281 LCT 50472 b

    AN ACT concerning families.
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
    Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 508 as follows:
    (750 ILCS 5/508)  (from Ch. 40, par. 508)
    Sec. 508. Attorney's Fees; Client's Rights and
Responsibilities Respecting Fees and Costs.
    (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
        (1) The maintenance or defense of any proceeding under
    this Act.
        (2) The enforcement or modification of any order or
    judgment under this Act.
        (3) The defense of an appeal of any order or judgment
    under this Act, including the defense of appeals of
    post-judgment orders.
        (3.1) The prosecution of any claim on appeal (if the
    prosecuting party has substantially prevailed).
        (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.
        (5) The costs and legal services of an attorney
    rendered in preparation of the commencement of the
    proceeding brought under this Act.
        (6) Ancillary litigation incident to, or reasonably
    connected with, a proceeding under this Act.
    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.
    (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
attorney's fees of the prevailing party. If non-compliance is
with respect to a discovery order, the non-compliance is
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.
    (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:
        (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
    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
    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
    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.
        (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
    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.
        (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
    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
    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).
        (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
    dispute resolution) has first been submitted to mediation,
    arbitration, or any other court approved alternative
    dispute resolution procedure, except as follows:
            (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
        dispute resolution procedure is mandatory unless the
        client and the counsel both affirmatively opt out of
        such procedures; or
            (B) In any other circuit court, the requirement of
        the controversy being submitted to an alternative
        dispute resolution procedure is mandatory only if
        neither the client nor the counsel affirmatively opts
        out of such procedures.
        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.
        (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
    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.
    (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
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
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
reasonable under the circumstances.
    (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:
        (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
        (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
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
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
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
arrangements in subsection (d) of this Section 508) shall be
    The changes made by this amendatory Act of the 94th General
Assembly are declarative of existing law.
    (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:
    (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
not understand.
    (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
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
permitted by law.
    (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
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,
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.
    (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.
    (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.
    (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."
    (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:
        (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.
        (2) The following do not apply in the case of a hearing
    under this Section that began before June 1, 1997:
            (A) Subsection (c-1) of Section 501.
            (B) Subsection (j) of Section 503.
            (C) The changes to this Section 508 made by this
        amendatory Act of 1996 pertaining to the final setting
        of fees.
(Source: P.A. 89-712, eff. 6-1-97.)
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 7/7/2006