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09/07/89 Hal Whalen, v. Charles Shear

September 7, 1989

HAL WHALEN, PLAINTIFF-APPELLANT

v.

CHARLES SHEAR, DEFENDANT (DUNN & MARTIN, LTD., INTERVENOR-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

546 N.E.2d 1, 190 Ill. App. 3d 84, 137 Ill. Dec. 377 1989.IL.1389

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

At issue on this appeal is the validity and the amount of a discharged attorney's lien for fees. In the circuit court of Will County, the lien was upheld and for the amount of $29,277.68. This appeal followed.

On the evening of June 23, 1986, the plaintiff, Hal Whalen, was injured when he was struck by a motor vehicle driven by the defendant, Charles R. Shear, and then hospitalized with serious injuries. After this initial one-sentence statement of facts, the record on appeal sets forth two very different versions of events. According to the plaintiff, Whalen, when he left the hospital in mid-July, he first realized, upon receipt of a letter, that while in the hospital he had retained Thomas Dunn, an attorney, to represent him in legal actions arising from his personal injuries. Whalen tried to discharge Dunn -- and his law firm, Dunn and Martin -- only to find out that he had signed a retainer agreement while hospitalized. Whalen testified that prior to this time, he had never heard of Thomas Dunn and that in the weeks that followed he again told Dunn that he did not want the lawyer's services.

In the meantime, Dunn proceeded to represent Whalen and had settled the latter's property damage claim for $2,250 within a month. He also obtained copies of the police reports and medical records. Dunn had an investigator take photos of Whalen's vehicle and negotiated a forbearance with the collection lawyers for the hospital where Whalen's injuries were treated.

Whalen testified that Dunn would not return his phone calls, that he was often out of the office, and that he had no confidence in Dunn's ability to handle his case. Therefore, on September 2, 1987, Whalen entered into a representation agreement with Horwitz, Horwitz and Associates, Ltd, to be his attorneys. Whalen's new attorneys advised Dunn by letter of his discharge.

Prior to his discharge, Dunn had received an oral offer to settle Whalen's case from the insurance adjuster. The settlement offer was in the amount of $85,000. When Dunn received this offer in writing, he communicated same by letter to his former client.

As one might expect, Thomas Dunn's recollection of his relationship with this client differs. Dunn testified as follows:

"I had an individual I represented by the name of Ronald Tomich, who had a Discussion with Mr. Whalen. . . . Mr. Whalen had asked Mr. Tomich if he knew a 'good lawyer'. Mr. Tomich gave him my name. Mr. Tomich called me and asked if I would be interested in seeing Mr. Whalen. He was in the hospital. He was in intensive care. I said I would not see him, while he was in intensive care, but after he got out of ICU, when he got out, I went to see him."

At the hospital, Whalen appeared in full command of his mental faculties. Dunn and Whalen had a 30-minute conversation regarding the accident, and Whalen signed the contingent fee contract with Dunn and Martin and certain medical authorizations. Dunn testified he met again with Whalen at the hospital before his erstwhile client's discharge.

Also, according to the fired attorney, he met with Whalen five to seven times during the course of his employment and conferred with his client by telephone 10 to 15 times. At no time during this period did Whalen ever complain of Dunn's services or say he did not want Dunn to be his attorney. The first ...


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