Romanek v. Connelly

• Decision Date: 29 June 2001
• Docket Number: No. 1-00-2517.,1-00-2517.
• Citation: 324 Ill. App.3d 393,257 Ill.Dec. 436,753 N.E.2d 1062
• Parties: Abbey Fishman ROMANEK, Plaintiff-Appellant, v. Michael P. CONNELLY, John L. Schroeder, Thomas F. Tobin, Raymond E. Stachnik, Eugene S. Kraus, Daniel Konicek, Michael P. Hannigan, Brandt Madsen and Mary Lisa Kamins, individually and as the general partners of Connelly & Schroeder, a law firm, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

753 N.E.2d 1062

324 Ill. App.3d 393

257 Ill.Dec. 436

Abbey Fishman ROMANEK, Plaintiff-Appellant, v. Michael P. CONNELLY, John L. Schroeder, Thomas F. Tobin, Raymond E. Stachnik, Eugene S. Kraus, Daniel Konicek, Michael P. Hannigan, Brandt Madsen and Mary Lisa Kamins, individually and as the general partners of Connelly & Schroeder, a law firm, Defendants-Appellees.

No. 1-00-2517.

Appellate Court of Illinois, First District, Third Division.

June 29, 2001.

Donald L. Bertelle, Chicago, for Appellant.

Lowrey & Smerz, Ltd., Chicago (John J. Lowrey, of counsel), for Appellees.

Justice CERDA delivered the opinion of the court:

Plaintiff, Abbey Fishman Romanek, appeals the order of the circuit court dismissing her second amended complaint with prejudice, pursuant to sections 2-615(a) and 2-619(a)(9) of the Civil Practice Act (Act) (735 ILCS 5/2-615(a), 5/619(a)(9) (West 1998)), against defendants, Michael Connelly, John Schroeder, Thomas Tobin, Raymond Stachnik, Eugene Kraus, Daniel Konicek, Michael Hannigan, Brandt Madsen and Mary Lisa Kamins, individually and as general partners of defendant law firm Connelly & Schroeder (collectively referred to hereinafter as "Connelly & Schroeder"), for breach of contract, breach of fiduciary duty and intentional interference with prospective economic advantage.

Plaintiff, an attorney, is a former member of Connelly & Schroeder. During her employment, she brought in a contingent fee case through a lawyer she knew. When she left the firm, there was an agreement for plaintiff to receive a portion of any fee generated by the referral case. The principal issue in this case is whether the parties' agreement to share in the contingent fee recovered in the referral case is enforceable under Rule 1.5 of the Rules of Professional Conduct ("RPC").

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

The following facts are derived from the well-pleaded facts of plaintiff's second-amended complaint and the reasonable inferences drawn therefrom, which for purposes of this appeal must be accepted as true (In re Chicago Flood Litigation, 176 Ill.2d 179, 184, 223 Ill.Dec. 532, 680 N.E.2d 265, 268 (1997)), as well as other record materials properly before us on this appeal. From October 1995 to August 1998, plaintiff was an associate member of the Chicago law firm of Connelly & Schroeder. At some point during that time period, Connelly & Schroeder received, through plaintiff, litigation between Thunderhead Beverages Inc. and Dana Plastics, which had been referred to plaintiff by a personal acquaintance and attorney in Cincinnati, Ohio. Thunderhead ultimately retained Connelly & Schroeder to represent it, on a contingency fee basis, in the litigation with Dana Plastics. Thunderhead also retained the law firm to represent it in other matters in which it was involved at the time. In addition to bringing the case to the law firm, plaintiff provided some services on Thunderhead's behalf at the inception of the Dana Plastics case.

Plaintiff subsequently left Connelly & Schroeder in August 1998 and, pursuant to an oral separation agreement, was allowed to take certain medical insurance cases she was handling at the time. In addition to outlining the terms of plaintiff's departure from the law firm, the separation agreement additionally contained an alleged "fee sharing agreement" arranged between plaintiff and two of the firm's partners, Michael Connelly and Daniel Konicek. According to the amended complaint, plaintiff intended to take the Dana Plastics case and all other Thunderhead matters with her. When presumably learning of plaintiff's intentions, Connelly allegedly stated to plaintiff that the law firm "would like to keep the Thunderhead cases and * * * [that it would] give [her] a referral fee if [she] agree[d] to leave the cases" with it. Konicek similarly asked plaintiff to leave all Thunderhead matters in exchange for the payment of a fee. The record indicates that the firm's payment was to be made solely from the contingency fee generated from the Dana Plastics matter. Plaintiff accepted the foregoing offers and made no attempt to take any Thunderhead cases when she left the firm's employment.

The amended complaint does not identify the particular terms of the parties "fee sharing" arrangement. For instance, the complaint does not identify the amount and basis of the fee to be paid plaintiff. The only contractual provision specified is that Connelly & Schroeder had the obligation to "either * * * obtain or * * * make a good faith attempt to obtain the written consent of the client, Thunderhead, to the * * * fee sharing agreement." Connelly & Schroeder has allegedly never made an attempt to fulfill its obligation.

In either late 1998 or early 1999, Connelly & Schroeder secured a $200,000 settlement of the Dana Plastics litigation on Thunderhead's behalf, pursuant to which the firm collected a fee of $66,666.67. Connelly & Schroeder has never paid plaintiff any portion of that recovered fee.

Count I of the amended complaint charges Connelly & Schroeder with breach of contract, alleging that the firm has failed to adhere to the "fee sharing" provision of the parties' separation agreement by (1) failing and refusing to make any attempt to obtain the written consent of Thunderhead and (2) "refusing to pay the plaintiff a referral fee on the Thunderhead case." Count II alleges that the foregoing omissions and failures on the part of Connelly & Schroeder constitute a breach of its fiduciary obligations toward plaintiff as a joint venturer in their dual representation of Thunderhead in the Dana Plastics litigation. Finally, in count III, Connelly & Schroeder is alleged to have intentionally interfered with the prospective economic relationship plaintiff expected to have forged with Thunderhead upon her departure from the firm.

ANALYSIS

A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint whereas a section 2-619 motion raises defects or defenses that negate plaintiff's cause of action completely or refute crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific fact. Lawson v. City of Chicago, 278 Ill.App.3d 628, 634, 215 Ill.Dec. 237, 662 N.E.2d 1377, 1382 (1996). Motions filed under either section admit all well-pleaded facts together with all reasonable inferences drawn therefrom. Lawson, 278 Ill.App.3d at 634,215 Ill.Dec. 237,662 N.E.2d at 1382. Conclusions of law or conclusions of fact not supported by allegations of specific fact, however, are not admitted. Lawson, 278 Ill.App.3d at 634,215 Ill.Dec. 237,662 N.E.2d at 1382. In ruling on either motion, all pleadings and supporting documents are construed in a light most favorable to the nonmoving party. Chicago Flood Litigation, 176 Ill.2d at 184,223 Ill.Dec. 532,680 N.E.2d at 268.

The question presented by a motion under section 2-615 is whether the complaint alleges sufficient facts entitling plaintiff to relief. Where facts alleged fail to support the asserted cause of action, the motion should be granted and the claim dismissed. Chicago Flood Litigation, 176 Ill.2d at 184, 223 Ill.Dec. 532, 680 N.E.2d at 268. A motion to dismiss under section 2-619(a)(9), on the other hand, acknowledges the plaintiff's cause of action but presents affirmative matters that avoid the legal effect of the claim. Golden v. Mullen, 295 Ill.App.3d 865, 869, 230 Ill.Dec. 256, 693 N.E.2d 385, 389 (1997). The relevant inquiry for this court is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill. Dec. 31, 619 N.E.2d 732, 735 (1993).

Since the issues raised by either of the foregoing motions involve solely questions of law, our review is conducted de novo. Lawson, 278 Ill.App.3d at 634,

215 Ill.Dec. 237,

662 N.E.2d at 1382.

I. Breach of Contract

According to the amended complaint, Connelly & Schroeder are in breach of the alleged fee-sharing agreement obligating it to pay plaintiff an unidentified portion of the contingency fee received by settlement of the Dana Plastics case. Fee-sharing arrangements among lawyers are governed by RPC 1.5(f), which provides:

"Except as provided in Rule 1.5(j), a lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm, unless the client consents to employment of the other lawyer by signing a writing which discloses:

(1) that a division of fees will be made;

(2) the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division; and

(3) the responsibility to be assumed by the other lawyer for performance of the legal services in question." 134 Ill.2d R. 1.5(f).

The provisions of RPC 1.5 operate with the force and effect of law (see In re Vrdolyak, 137 Ill.2d 407, 422, 148 Ill.Dec. 243, 560 N.E.2d 840, 845 (1990); Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire Inc., 107 Ill.App.3d 442, 446-47, 63 Ill.Dec. 251, 437 N.E.2d 900 (1982)), and embody this State's public policy of placing the rights of clients above and beyond any lawyers' remedies in seeking to enforce fee-sharing arrangements. Albert Brooks Friedman, Ltd. v. Malevitis, 304 Ill. App.3d 979, 985, 238 Ill.Dec. 46, 710 N.E.2d 843, 847 (1999).

Connelly & Schroeder argues plaintiff is unable to succeed as a matter of law on her breach of contract claim because the client, Thunderhead, never consented to the parties' fee-splitting arrangement as required by RPC 1.5(f). As Connelly & Schroeder observe, the plaintiff's amended pleading is devoid of any allegations concerning Thunderhead's consent. Moreover, Connelly & Schroeder's section 2-619 motion to dismiss is supported by the affidavit of...