Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KAPLAN v. PAVALON & GIFFORD

October 13, 1992

JACK S. KAPLAN, Plaintiff,
v.
PAVALON & GIFFORD, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This diversity action arises from an alleged oral fee-sharing agreement between attorneys. Plaintiff Jack S. Kaplan brings this single-count complaint against the law firm of Pavalon & Gifford, alleging breach of contract. Presently before the court is Pavalon & Gifford's motion for summary judgment. For the reasons set forth below, we grant the motion.

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Background

 In 1986, Dr. James Cohn and his wife, Lisa Bahn Cohn, retained Kaplan to represent their minor child, Matthew Cohn, in connection with a medical malpractice action arising from injuries sustained during Matthew's birth. Although agreeing to the representation, Kaplan informed the Cohns that additional counsel possessing some experience in medical malpractice suits would be required. Accordingly, Kaplan referred the Cohns to Geoffrey Gifford, an experienced malpractice attorney associated with the law firm then known as Asher, Pavalon, Gittler & Greenfield, Ltd. ("Asher & Pavalon"). *fn1"

 Kaplan introduced the Cohns to Gifford in a meeting at Gifford's office in approximately October of 1986. At this meeting, pursuant to Kaplan's advice, the Cohns retained Gifford as additional counsel. Gifford agreed on behalf of his firm to represent Matthew Cohn on a contingent fee basis. According to Kaplan, all parties to the meeting understood that Kaplan would continue as counsel of record, contributing to the litigation as called upon by Gifford, who agreed to assume principal responsibility over the action. Further, Kaplan claims that Gifford expressly informed the Cohns that Kaplan would receive 1/3 of the fee paid to Asher & Pavalon pursuant to its fee agreement with the Cohns. The Cohns purportedly understood and consented to the fee-sharing agreement between Kaplan and Gifford, on behalf of his firm. Pavalon & Gifford denies the existence of such a fee-sharing agreement and, hence, denies that the Cohns were informed of, or consented to, the agreement as detailed by Kaplan.

 The terms of the contingency fee arrangement between Asher & Pavalon and the Cohns are embodied in a written agreement prepared by Gifford, and signed by the Cohns on February 13, 1987. This agreement does not contain reference to, or disclosure of, any division of attorneys' fees or any economic benefit to be received by Kaplan. Indeed, at no time did the Cohns sign a writing disclosing the purported fee-sharing agreement between Asher & Pavalon and Kaplan. Furthermore, in all prior instances in which Kaplan referred cases to Asher & Pavalon and there was an agreement to share any attorneys' fees recovered, written retainer agreements disclosing the division of fees were signed by the clients.

 In August of 1991, the parties to the Cohn action entered into a settlement agreement, entitling Matthew Cohn to $ 1,500,000 (in present cash value). Pursuant to its contingency fee agreement with the Cohns, Pavalon & Gifford received $ 362,500 in attorneys' fees. Kaplan claims that, under the terms of the fee-sharing agreement, he was to collect 113 of the $ 362,500, or $ 120,833.33. Upon demand, Pavalon & Gifford denied the existence of any fee-sharing agreement, yet paid to Kaplan $ 32,500 in compensation for his costs and actual time expended in connection with the Cohn case. Kaplan brings this action to recover the additional $ 88,333.33 allegedly due under the fee-sharing agreement.

 III. Discussion

 Assuming the existence of a fee-sharing agreement between Kaplan and Pavalon & Gifford (as successor in interest to Asher & Pavalon), it is undisputed that the Cohns did not sign any writing consenting to such agreement. By failing to obtain the Cohns' written consent to the division of fees, the alleged agreement runs afoul of Rule 2-107 of the Illinois Code of Professional Responsibility, formally adopted by the Illinois Supreme Court on June 3, 1980, which provides in pertinent part:

 (a) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm, unless (1) the client consents in a writing signed by him to employment of the other lawyer, which writing shall fully disclose (a) that a division of fees will be made, (b) the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division, and (c) the responsibility to be assumed by the other lawyer for performance of the legal services in question; . . . .

 Ill. Ann. Stat. ch. 110A, foll. P 774 (Smith-Hurd 1985) (Canon 2). *fn2" As such, the sole issue raised in Pavalon & Gifford's motion for summary judgment is as follows: whether the violation of Rule 2-107 prohibits Kaplan ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.