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People Ex Rel. Brazen v. Finley

OPINION FILED AUGUST 15, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. LIONEL I. BRAZEN, PLAINTIFF-APPELLANT,

v.

MORGAN M. FINLEY, CIRCUIT CLERK, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County denying plaintiff's petition for the issuance of a writ of mandamus requiring the clerk to accept the filing of a complaint for process without the requisite affidavit of compliance mandated by circuit court Rule 0.7. By this appeal plaintiff challenges the validity of Rule 0.7 on the basis that the court was without the statutory or constitutional authority to promulgate such rule.

For the reasons stated herein, the judgment of the circuit court is reversed and the cause is remanded with directions.

Plaintiff, a licensed attorney in the State of Illinois, sought to file a petition for dissolution of marriage on behalf of a client with the clerk of the circuit court of Cook County. The clerk refused to accept the filing because plaintiff had failed to comply with Rule 0.7 of the circuit court requiring attorneys representing clients in personal injury and domestic relations cases to submit an affidavit of compliance indicating the factual circumstances under which they obtained their employment.

Rule 0.7 states:

"(a) The unethical solicitation of employment by or on behalf of any attorney and the payment of commissions, living expenses or other gratuities in connection with such employment, is prohibited.

(b) The Affidavit of Compliance with this rule is required in personal injury and domestic relations actions shall be in the form furnished by the Clerk of the Circuit Court of Cook County. Attorneys representing governmental bodies shall not be required to file the affidavit.

(c) The affidavit shall be filed by counsel when commencing personal injury and domestic relations actions and by other counsel when an appearance or initial pleading is filed in those actions.

(d) Pleadings unaccompanied by such an affidavit shall not be accepted by the Clerk."

The affidavit of compliance at issue provides:

"AFFIDAVIT OF COMPLIANCE WITH RULE 0.7 _______________________ on oath states: [Affiant]

(1) He is (a member of the law firm which is) the attorney of record for ________________________________________________ and (here insert all parties represented by affiant) has knowledge of the matters covered by this affidavit and has read Rule 0.7 of the Rules of the Circuit Court of Cook County.

(2) He has not directly or indirectly solicited employment by the above-named party or parties, and knows of no solicitation of said party or parties by any person that has resulted in the employment of the affiant, (or his firm), except (here state all exceptions, OR IF NONE, STATE `NO EXCEPTIONS'): ___________.

(3) He has not paid, nor promised to pay, the medical, living or other expenses of any party, and knows of no payment or promise of payment on his behalf or on behalf of his firm to the above-named party or parties, except, (here state all exceptions, OR IF NONE, STATE `NO EXCEPTIONS'): ___________.

(4) No part of any attorney's fee or any portion of recovery by suit or settlement here has been paid or promised to be paid to any person whatever, other than the above-named party or parties and the attorneys of record herein, except, (here state all exceptions, OR IF NONE STATE `NO EXCEPTIONS') ____.

__________________________________________ AFFIANT [Notary]."

On August 10, 1984, plaintiff filed his complaint against Morgan Finley, clerk of the circuit court and Douglas Curtis, one of Finley's employees, challenging the validity of Rule 0.7. Plaintiff's complaint prayed for the issuance of a writ of mandamus ordering the clerk of the circuit court to accept the divorce suit for process without the mandatory affidavit of compliance.

Defendants moved to dismiss the complaint on the basis that Rule 0.7 was a valid exercise of the State's police power to shield the public from unethical solicitation by overreaching attorneys. Plaintiff responded to defendants' motion by arguing that the subject rule violated the first amendment by infringing upon the right of an attorney to advertise. In answer to plaintiff's contention, defendants argued that Rule 0.7 did not address attorney advertising, but rather that the rule is directed to eliminating the unethical solicitation of business.

Following a hearing on the matter, the trial court concluded that Rule 0.7 related to the business of the court and the unethical solicitation of clients by attorneys and that it was reasonable and not illegal or unconstitutional. Thereafter, the court sustained defendants' motion and dismissed plaintiff's mandamus action. On appeal, plaintiff contends that the rule is invalid because it is (1) ...


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