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07/24/87 Maria P. O'hara, v. Ahlgren

July 24, 1987

MARIA P. O'HARA, PLAINTIFF-APPELLANT

v.

AHLGREN, BLUMENFELD AND KEMPSTER, A PARTNERSHIP, ET AL., DEFENDANTS-APPELLEES



Before physical merger : One third [1/3] of the net income derived from Barratt O'Hara's law practice. The term "income" was defined as fees obtained from cases of Barratt O'Hara's past or current immigration clients or from future clients developed from past or current clients.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

511 N.E.2d 879, 158 Ill. App. 3d 562, 110 Ill. Dec. 702 1987.IL.1058

Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by plaintiff, Maria P. O'Hara (O'Hara), a nonlawyer, from a summary judgment in a breach of contract action against defendants, who are all lawyers, involving the law practice of plaintiff's deceased husband, Barratt O'Hara II. Barratt O'Hara II practiced law in the immigration and naturalization field until his death on December 28, 1978.

In March 1979, plaintiff and defendants, Robert D. Ahlgren (Ahlgren) and Barry E. Blumenfeld (Blumenfeld), partners in a Chicago law firm, entered into a written agreement prepared by the partners wherein the plaintiff transferred to defendants the goodwill associated with the name of her deceased husband, Barratt O'Hara II, in connection with the practice of law. The defendants agreed to pay plaintiff a specified percentage of monies received by them through the transaction. The agreement contemplated the merger of Barratt O'Hara II's law firm with the law firm of defendants Ahlgren and Blumenfeld and provided that Maria O'Hara was to receive from the defendants as follows:

After physical merger : Twenty-five percent

O'Hara was to be given an accounting at her request for five years after the physical merger and at least once a year. Ahlgren and Blumenfeld could buy O'Hara's furniture and fixtures if the parties could agree on a price. She was given the right to sell those items absent such agreement. Defendants were given the right to use Barratt O'Hara's name on their stationery and office door.

Plaintiff instituted the instant action to recover the sums of money due her under the contract. In her prayer for relief, O'Hara seeks an accounting, a judgment of all amounts owing, punitive damages, attorney fees, termination of the contract, and injunctive relief. Defendants answered the complaint and raised three affirmative defenses. Plaintiff replied to the affirmative defenses.

Plaintiff filed a motion for partial summary judgment seeking a finding that the business agreement she had with defendants was a valid and enforceable one and for other relief, including partial damages. Defendants replied to plaintiff's motion with their own motion for summary judgment suggesting the illegality of the agreement.

The state of the record discloses a non-lawyer widow of a lawyer selling the "goodwill" of her deceased husband's law practice for a percentage of fees obtained by the law firm from the decedent's past or current clients. The record also discloses that defendant lawyers prepared the agreement. Serious violations of the Illinois Code of Professional Responsibility are suggested by both the plaintiff and defendants. These alleged violations were committed not by plaintiff, but by defendants. Because of at least one of these violations, the trial court should have denied both plaintiff's motion for partial summary judgment and defendants' motion, thereby giving relief to neither party. Schnackenberg v. Towle (1954), 4 Ill. 2d 561, 123 N.E.2d 817.

The fee-splitting arrangement made by O'Hara with defendants is in stark violation of the Illinois Code of Professional Responsibility, which precludes the splitting or sharing of fees between a lawyer or a law firm and a non-lawyer with certain exceptions not applicable to this case. Rule 3 -- 102 ...


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