By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
Trial court reversed for denying petition for final fees and costs on the basis of a potential conflict of interest. In a procedurally complex case involving a bifurcated judgment and the death of both parties after the judgment for dissolution of marriage had been entered, the lawyer who had represented both the wife and the wife’s caregiver filed a petition for set final fees and costs pursuant to section 508(a) and 508(c) of the IMDMA against wife. The case involved multiple emergency motions and petitions for restraining orders filed by husband to seek to have wife’s caregiver enjoined from taking any action to conceal, transfer or otherwise deal with the marital estate. Prior to her death, wife fired her attorney, but he continued to represent her caregiver who had been subpoenaed and enjoined in the proceedings. Wife’s estate argued that the lawyer breached the Rules of Professional Conduct when he also represented her caregiver because he should have known that the wife’s interests would be directly contrary to that of her caregiver and therefore, the engagement agreement between he and wife was invalidated. The trial court found that there was a conflict of interest between wife and her caregiver, and the dual representation was a violation of the Rules and ordered the disgorgement of $16,313 in fees which were paid after the date on which the dual representation commenced and denied the request for an additional $125,472 fees owed. The Appellate Court reversed. The trial court improperly premised its ruling on a violation of Rule 1.7 of the Illinois Rules of Professional Conduct. While the Rules are mandatory, they do not establish a separate duty or cause of action and violation of the rules should not itself give rise to a cause of action against a lawyer. The focus on the fee hearing should have been fair compensation for services provided pursuant to contract which were reasonable and necessary. The Court noted that the trial court presided over its own mini-ARDC hearing and used its conclusion to deny the lawyer even reasonable fees. The Court reversed and remanded for entry of judgment in favor of the lawyer on all claimed fees due to the conflict of interest. In re Estate of Sara C. Weber, deceased, 2021 IL App (2d) 200354.
In re Estate of Sara C. Weber
New Illinois state-wide Financial Affidavit promulgated. A new Financial Affidavit for all divorce and family law cases is available on the Illinois court website:
https://www.illinoiscourts.gov/forms/approved-forms/forms-circuit-court/divorce-child-support-maintenance
The new form provides expanded schedules for several asset categories as well as modifies the disclosure for the self-employed business owners with respect to income earned, business expenses and personal expenses paid by a business.
Section 603.5 of the IMDMA revised. Effective January 1, 2022, Section 603.5 provides that a court may enter a temporary relocation order if the relocation is in the best interest of the minor child. The temporary relocation shall not be prejudicial to either parent in the final allocation judgment of parental responsibilities. The text to the revised statute can be seen here:
https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=102-0143&GA=102
Section 5/221 and of the IMDMA revised. Effective immediately, the county clerk shall issue a new marriage certificate when it receives legal documentation indicating that one of the parties listed on the certificate has legally changed names. Effective on January 1, 2022, Section 5/221 of the IMDMA is revised to allow for a procedure for changing or removing gender identifying language on marriage certificates. The revised statutes can be found here:
https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=102-0171
https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=102-0169