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Hofing v. Willis

JUNE 26, 1967.

DELLA S. HOFING, ET AL., PLAINTIFFS,

v.

HOWARD WILLIS, ET AL., DEFENDANTS. C.G. COLBURN, PETITIONER-APPELLEE,

v.

KENNETH L. BAST, ET AL., OBJECTORS-APPELLANTS.



Appeal from the Circuit Court of Menard County; the Hon. FRED W. REITHER, Judge, presiding. Affirmed.

HOFFMAN, J.

This appeal is brought to reverse an order fixing attorney's fees.

Mr. C.G. Colburn is a licensed attorney who has engaged in the general practice of the law in the city of Virginia since 1932. In 1961 he was contacted by 21 persons, ultimately the plaintiffs in the original cause, to determine what rights, if any, they possessed in 200 acres of farmland. Their interest depended upon the interpretation of two deeds, executed in 1904, and raised difficult points of law involving alternative contingent remainders. At the time Colburn was approached by plaintiffs, Howard and Mary Willis, the ultimate defendants, claimed the entire fee as devisees under an ancestor's will.

In October, 1961, Colburn, on behalf of his 21 clients, filed a suit against the Willises to quiet title and construe the deeds, and demanded partition plus an accounting of the rents and profits from the date of defendant's inheritance. To sustain a position for plaintiffs Colburn had to overturn the rule of Drury v. Drury, 271 Ill. 336, 111 N.E. 140, which asserted a rigid rule of construction that had stood in the law of Illinois for nearly 50 years. In the trial court Colburn was partially successful. He then appealed to the Supreme Court, and in the original case, reported as Hofing v. Willis, 31 Ill.2d 365, 201 N.E.2d 852, he succeeded in changing the Drury rule and secured a ruling awarding plaintiffs 15/16ths of the acreage involved.

Colburn then followed through on the partition sale. The real estate sold for $155,600, of which plaintiffs' share was $145,875. In addition, plaintiffs were entitled to rents which had accrued in the sum of almost $25,000.

At the time Colburn was first approached by plaintiffs, a contract for his services was entered into. It is this contract which raises the dispute in this case as to Colburn's fee. By the contract Colburn was hired to represent the plaintiffs "in an attempt to establish, prosecute and handle their respective claim and establish their rights of inheritance, if any, . . ." It was agreed that Colburn "has made no guarantee regarding the successful termination of said suit . . ." The plaintiffs agreed to pay court costs and expenses, to pay Colburn a retainer of $500 upon the execution of the agreement, and:

"The said parties of the first part agree to pay to the party of the second part for all services rendered after the execution of this contract a reasonable, fair and customary fee based upon the recommended fees and charges as set forth in the schedule of fees of the Bar Association of Menard County, Illinois, upon the final completion of said suit, litigation or other legal means that in his opinion and judgment may be necessary by said second party in the matters involved herein."

At the hearing to determine attorney's fees, Colburn asked for one-third of the sale price (not including the rents) which was a fee of $48,625. He was supported in this view by two attorneys who had practiced extensively in the Circuit and who testified to their familiarity with the case and with the work involved. Several of the plaintiffs, who had been represented by Colburn, objected to this fee. However, they introduced no evidence or opinion concerning what the fee should be, and left the computation of it up to the court. The court considered the matter at length, analyzed its many aspects, studiously examined the manual of fees, and, in an opinion covering five pages of the abstract, concluded that the fee should be the amount asked for. From the order fixing this amount the several objecting plaintiffs have taken this appeal.

The schedule of fees of the Bar Association of Menard County provides that general office work shall be charged at the rate of $25 per hour. For contingent fees the schedule provides 33 1/3rd percent of the amount of recovery in the trial court, and 40% upon appeal.

In his testimony at the fee hearing Colburn stated that he worked approximately 100 days on this case. He argued that the contract called for a contingent fee, but did not ask for the 40% because of the appeal, and claimed no part of the rents which had accrued. The objectors say that the contract does not provide for a contingent fee but merely authorized a fee computed on an hourly basis. Arguing from this they state that if Colburn worked eight hours per day at the rate of $25 per hour for 100 days, the reasonable charge would be $20,000. It is interesting to note that they do not suggest that they would have been willing to pay this amount had Colburn lost the case.

The court, in its analysis, concluded that the contract called for a contingent fee. But the court also, upon reasoning founded on Canon 12 of the American Bar Association (later discussed) justified the fee which was fixed, apart from the contingent basis.

The contract between Colburn and his clients provides that the fee be based upon the schedule of fees of the Bar Association of Menard County. The parties to this appeal have agreed that the Menard County Bar has adopted the Illinois State Bar schedule of fees. The Illinois State Bar minimum fee schedule, in effect at the time, adopted Canon 12 of the American Bar Association Canons of Professional Ethics, and the State Bar Association has announced that Canon 12 "should remain foremost at all times in the mind of the attorney as he sets fees for his services."

Canon 12 provides, in part, as follows:

"In determining the amount of the fee, it is ...


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