Heiden v. Ottinger

• Decision Date: 11 June 1993
• Docket Number: No. 2-92-0649,2-92-0649
• Citation: 245 Ill.App.3d 612,616 N.E.2d 1005
• Parties: , 186 Ill.Dec. 563 Cheryl HEIDEN, Plaintiff-Appellee, v. Craig OTTINGER, Defendant-Appellant and Cross-Appellee (Robert A. Chapski, Ltd., Cross-Appellant).
• Court: United States Appellate Court of Illinois

Page 1005

616 N.E.2d 1005

245 Ill.App.3d 612, 186 Ill.Dec. 563

Cheryl HEIDEN, Plaintiff-Appellee, v. Craig OTTINGER, Defendant-Appellant and Cross-Appellee

(Robert A. Chapski, Ltd., Cross-Appellant).

No. 2-92-0649.

Appellate Court of Illinois,

Second District.

June 11, 1993.

[245 Ill.App.3d 613] Robert A. Lewinthal, Lewinthal, Sklamberg & Associates, Northbrook, for Craig Ottinger.

Robert A. Chapski, Randy K. Johnson, Law Office of Robert A. Chapski, Ltd., Elgin, for Robert A. Chapski.

Cheryl Heiden, pro se.

Presiding Justice INGLIS delivered the opinion of the court:

Craig Ottinger (the father) appeals a judgment of the circuit court of Kane County which required him to pay $6,507.40 to the former attorney of Cheryl Heiden (the mother) in a paternity suit. The mother's former attorney, Robert Chapski, filed a cross-appeal contesting the court's denial of his petition for fees, sanctions and costs under Supreme Court Rule 137 (134 Ill.2d R. 137). The father argues: (1) that the trial court did not have jurisdiction under the Illinois Parentage Act of 1984 (the Act) (Ill.Rev.Stat.1991, ch. 40, par. 2501 et seq.) to order the father to pay attorney fees directly to Chapski; (2) that Chapski did not have a right to continue to pursue the father for fees after the mother had discharged him; (3) that the mother had a right to settle the paternity litigation without Chapski's consent and, in that settlement, accept responsibility for payment of her own fees and expenses; (4) that Chapski was estopped from proceeding with post-trial motions by filing citations on his judgment against the father; and (5) that the denial of the father's petition for sanctions under Rule 137 was an abuse of discretion.

The father makes one further contention, that the trial judge should not have vacated an order of June 13, 1989, awarding $5,200 in attorney fees to the mother from the father. On May 3, 1990, the court vacated the June 13 order and entered an order requiring the father to pay $5,200 directly to Chapski. The father claims that the May 3 order was an abuse of discretion. Chapski brought a motion, which was taken with the case, in which he asks us to strike this argument as incomprehensible. The father has filed a motion, which was also taken with the case, in which he asks permission to file a response to Chapski's motion to strike. We find both motions to be moot because the order of May 3, 1990, which vacated the June 13, 1989, order, was itself vacated on December 5, 1990, on the father's motion. With regard to the This case began when the mother filed a paternity suit against the father on June 25, 1986. The mother hired Chapski to represent her. A judgment of paternity was entered on March 16, 1989. On the same date, Chapski filed a petition for attorney fees. The father was ordered to pay the mother $5,200 for attorney fees on June 13, 1989. In July 1989, Chapski filed another petition seeking additional fees.

                [186 Ill.Dec. 566] order of June 13, 1989, the father has already received the relief he is seeking here since the vacatur of the May 3, 1990, order operated to revive the June 13, 1989, order.  (See Bromberg v. People (1907), 136 Ill.App. 602;  see also  Zanzig v. H.P.M. Corp.  (1985), 134 Ill.App.3d 617, 625, 89 Ill.Dec. 461, 480 N.E.2d 1204.)   The motions are thus denied as moot
                

On September 25, 1989, after discussing the matter with the father, the mother and the father signed a settlement agreement drawn up by the father's lawyer. The agreement, inter alia, called for each party to pay his or her own costs and expenses and for the father to pay for the defense of any action brought against the mother by Chapski to obtain attorney fees. The record contains a letter, dated the next day, September 26, whereby the mother discharges Chapski as her attorney. Then, on September 28, 1989, the father and Chapski's client, the mother, went to court and had the settlement approved by the court without Chapski's knowledge. They also had the suit dismissed. The order approving the settlement, like the settlement agreement, provided that each party was to pay his or her own costs and expenses.

After learning of the settlement, Chapski tried in vain to have the order approving the settlement vacated. Later, on May 3, 1990, Chapski was successful in getting the court to vacate its order of June 13, 1989, awarding $5,200 to the mother. Chapski got the court to enter an order awarding the $5,200 directly to Chapski from the father. However, as mentioned, the May 3 order was vacated on December 5, 1990. On March 17, 1992, after Chapski filed his fifth petition for attorney fees, the court ordered the father to pay Chapski $6,507.40 in attorney fees. This order of March 17, 1992, is the order from which the father appeals. Chapski cross-appeals the denial, also on March 17, of his motion for sanctions and fees under Rule 137.

APPEAL

First, we address the father's claim that the trial court did not have jurisdiction under the Act to order the father to pay attorney fees directly to Chapski. The "Costs" provision of the Act states:

"Except as otherwise provided in this Act, the court may order reasonable fees of counsel * * * to be paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, as amended." (Ill.Rev.Stat.1991, ch. 40, par. 2517.)

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) allows the court to order that attorney fees "be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the relevant party." Ill.Rev.Stat.1991, ch. 40, par. 508(c).

We have not found a case factually on point with the present case, but we believe that by allowing courts in paternity suits to award attorney fees "in accordance with the relevant factors" in section 508, the Act permits awards of attorney fees payable directly to attorneys. It is significant that section 17 does not limit the subparagraphs of section 508 that are incorporated into section 17. If attorneys in suits under the Act were not to be awarded attorney fees directly, section 17 could have exempted subparagraph (c) of section 508 from incorporation, which is the subparagraph allowing attorneys to obtain judgments in their own names. Moreover, whether an attorney requesting fees under the Act should be paid directly, or whether an order providing for an award from one party to another is sufficient to ensure the attorney's payment, is certainly a "factor" to be considered when fashioning an award of attorney fees. Thus, we conclude that Chapski could obtain a judgment for attorney fees in his own name under the Act.

Having decided that Chapski could obtain a judgment for attorney fees in his own name, we come to the crux of the case: whether Chapski could pursue the father, rather than the mother, whom Chapski had represented, after Chapski had been discharged by the mother and after the mother and father had settled the case with an agreement to pay their own attorney fees. The father argues that because Chapski was not a party to the suit, he should not have been allowed to prolong the litigation after the parties had settled and discharged him. Under the facts of this case, however, we hold that Chapski was correctly allowed to pursue the father for attorney fees, even after his discharge and the settlement of the case.

First, we recognize that a client has "an absolute right" to settle her case without her attorney's consent. (See Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill.2d 468, 476, 244 N.E.2d 809; see also Rules of Professional Conduct Rule 1.2(a) (134 Ill.2d R. 1.2(a)) (lawyer must honor client's decision whether to accept settlement offer).) The mother could thus settle her action with the father directly.

What troubles us is that the mother settled not only the merits of her suit, but also the issue of responsibility for attorney fees, before discharging Chapski and without any notice to Chapski, who was still her attorney of record. (See Rules of Professional Conduct, Rule 1.16(a)(4) (134 Ill.2d R. 1.16(a)(4)) (lawyer shall withdraw from employment if discharged by client); Supreme Court Rule 13(c)(2) (134 Ill.2d R. 13(c)(2)) (attorney cannot withdraw his appearance for party without leave of court and notice to other parties).) Even more troubling is that the attorney representing the father drew up a settlement agreement for the parties, who then went to court and had the settlement approved and the suit dismissed, all while the mother was still represented by counsel. It thus appears that counsel for the father violated Rule 4.2 of the Rules of Professional Conduct (134 Ill.2d R. 4.2), which prohibits lawyers hired to represent a party from communicating with other represented parties on the subject of the representation without the consent of those other parties' attorneys.

Second, we recognize that a client, ordinarily, can discharge her attorney "at any time, with or without cause." (Balla v. Gambro, Inc. (1991), 145 Ill.2d 492, 503, 164 Ill.Dec. 892, 584 N.E.2d 104.) In the usual case then, the mother would seem to have been within her rights in discharging Chapski and settling her lawsuit. The facts as they stand in this case, however, give rise to a distinct inference that there was an attempt to hinder Chapski's recovery of payment for the services he rendered. We conclude that the actions of the mother and father did not prevent Chapski from pursuing the father to recover attorney fees.

We have found no cases arising under the Act which have specifically spoken to a discharged attorney's right to pursue his former client's adversary for fees after the suit had settled. Several related cases are nonetheless instructive.

In Gitlin v. Hartmann (1988), 175 Ill.App.3d 805, 125 Ill.Dec. 426, 530 N.E.2d 584, this court held that an attorney who had...