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Drake v. Becker

SEPTEMBER 20, 1973.

ROSALIE A. DRAKE, PLAINTIFF-APPELLEE,

v.

JOSEPH H. BECKER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HERBERT C. PASCHEN, Judge, presiding.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 15, 1973.

This litigation arises from a dispute between an attorney and his client over his fee. The attorney, Joseph H. Becker, appeals from a judgment ordering him to repay the client, Rosalie Drake, $30,000 with interest and costs.

In August 1962 Mrs. Drake consulted Becker about her matrimonial difficulties with her husband, Keith Drake. Becker agreed to represent her and a discussion was had about his fee. According to the subsequent testimony of Mrs. Drake, Becker said that if a fee had to be paid, her husband, not she, would be obliged to pay it. Becker testified he told Mrs. Drake that setting a fee was discretionary with the court and that in addition to whatever the court might allow she would have to pay him a substantial fee. Shortly thereafter Becker filed in Cook County a complaint for separate maintenance which prayed that Keith Drake be compelled to pay her attorney's fee in full.

In the fall of 1963, negotiations were begun with the attorneys representing Drake concerning a division of the assets owned by the parties. In November 1963, as a basis for the negotiations Becker prepared suggestions regarding a possible settlement. One of the suggestions was for the creation of a trust from which Mrs. Drake would receive the income and another was that the attorney fees for both parties, to be agreed upon by them, would be paid out of the trust property.

The settlement negotiations were initially unsuccessful and were broken off. They were subsequently resumed and amicably concluded in 1964. The resulting agreement, which Mrs. Drake signed on November 27, 1964, provided that the attorneys' fees for her and her husband were to be paid out of the principal of the trust. This provision was incorporated into Article 1 of the trust, with the added stipulation that if the parties were unable to agree upon the amount of the fees, the court would determine them. The agreement also stated that it was contemplated that Mrs. Drake would amend her separate maintenance complaint to one for divorce. Becker filed the divorce action in Lake County, Illinois, and a decree was entered on January 21, 1965.

In the meantime, no agreement could be reached on attorneys' fees and, pursuant to the understanding of November 1964, the problem was submitted to the Circuit Court of Cook County which had jurisdiction of the still pending separate maintenance suit. Becker requested $60,000 for 200 hours of work already done and approximately 150 hours of anticipated work by him and associate counsel. Drake's attorneys objected and said a fair fee would be $30,000. Drake himself suggested $10,000. After a full discussion the court stated: "I have considered it very carefully and the total allowances determined by this Court will be the sum of $40,000. You may draw up an order, Mr. Becker."

The order, entered on December 22, 1964, stated:

"Plaintiff's attorneys have performed valuable services for her extending over a period of approximately two years in connection with filing and prosecuting this case and negotiating the terms of the above described agreement and trust agreement; and will perform additional valuable services for the Plaintiff in connection with consummating the above described agreement. The reasonable value of all of such services is the sum of Forty Thousand Dollars ($40,000)."

Becker did not move to vacate the order and did not appeal but, according to Mrs. Drake, he complained to her that the court's allowance of fees was inadequate and he demanded $30,000 more. Although she reminded him that he had assured her she would not be liable for any fee, he insisted upon receiving $30,000 from her and said this was what he wanted and she better have it or there would be no further action in her divorce case. Under this threat she reluctantly brought a check with her to the divorce hearing on January 7, 1965, and gave it to him in the hallway of the Lake County courthouse. Becker testified that he and his client had many conversations in reference to her paying him $30,000, both before and after the court determined his fee, that she was aware of her obligation to pay him a substantial fee from the outset of their relationship, that she never protested but rather payed him willingly and thought $70,000 was a reasonable fee.

Three years later Mrs. Drake, without prior demand, instituted this action against Becker seeking the return of the $30,000. She charged that the fee was not supported by consideration, that the defendant was guilty of over-reaching and that he breached the fiduciary relationship between attorney and client. After hearing the testimony of both parties and two other witnesses and examining ten exhibits, the trial court determined that Becker's insistence upon the additional compensation was unconscionable.

On appeal Becker contends that the agreement to pay him $30,000 was valid and enforceable, and that it was not the result of over-reaching or undue influence on his part. He declares that his client's testimony to the contrary is unworthy of belief.

There is a flat contradiction between Becker's and Mrs. Drake's versions of the fee discussion at their first meeting in 1962. Becker said she was fully informed that she personally would have to pay him a fee. She stated that he did not tell her this and that she came away from the meeting with the belief that she would not be accountable for any of his fee. This contradictory testimony raised a question of credibility which was for the trier of fact to resolve. In this connection one of the exhibits before the court was a memorandum prepared by Becker during their conversation. There was no mention of fees in the memorandum.

Becker's principal reliance, however, is not on the conversation at their first meeting but on a document signed by Mrs. Drake in November 1963, nearly 15 months afterwards. The document, drawn by Becker, was titled: "SUGGESTIONS RE PROPERTY SETTLEMENT BETWEEN KEITH DRAKE AND ROSALIE DRAKE, ASSUMING A DIVORCE IS GRANTED." At Becker's request Mrs. Drake signed the document on its last page and placed her initials and the letters "O.K." on the two preceding pages. Near the beginning of the document there was a provision which stated that the attorney fees for both parties would be paid out of a trust which was to be created as a part of the settlement. The paragraph which Becker claims binds his client was on ...


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