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01/20/94 MATTER ESTATE MELISSA WEEKS v. LESLIE

January 20, 1994

IN THE MATTER OF THE ESTATE OF MELISSA WEEKS, A MINOR, PETITIONER, AND GLEASON & FRITZSHALL, APPELLANT,
v.
LESLIE VIRZINT, GUARDIAN OF THE ESTATE OF MELISSA WEEKS, A MINOR, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 92-PG-14578. Honorable Edward Masters, Judge Presiding.

Released for Publication February 24, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The law firm of Gleason & Fritzshall appeals from that portion of an order of the circuit court that denied, in part, their claim for attorney fees against the estate of Melissa Weeks, a minor.

On June 1, 1992, the minor's mother, Leslie Virzint, signed a written contingency fee agreement under which she retained the firm of Gleason & Fritzshall to represent her as attorneys in the prosecution of claims for injuries to the minor child sustained from a dog bite. The injury occurred on April 6, 1992, while the minor was delivering newspapers. The minor suffered a tender swollen right leg as a result of two bite marks approximately 3-4 millimeters in diameter and several small scratches that manifested into an infection and cellulitis. On April 9, the minor was hospitalized with a diagnosis of cellulitis of the right leg and was discharged on April 17. The fee agreement provided that Leslie Virzint would pay to Gleason & Fritzshall 33 1/3% of any gross recovery by way of settlement, 40% of any gross recovery after a lawsuit had been initiated, or 50% if an appeal was initiated. If there was no recovery, the agreement provided there would be no obligation to pay fees.

After negotiations, the minor was offered a structured settlement in the sum of $30,000 in present cash value as full and final settlement of all claims by the minor. The settlement terms provided for $20,000 payable at the time of settlement approval by the probate court and periodic payments in the amount of $3,615.00 per year made payable to the minor, beginning on her 18th birthday (June 21, 1997) and for three years thereafter.

At a hearing on the issue of the amount of attorney fees to be awarded to Gleason & Fritzshall, the court set aside the contingent fee contract and applied a multiplier of the hours set forth in the attorneys' supplemental petition in support of request for attorney fees. A multiplier of $150.00 an hour for 20.5 hours was awarded for a sum of $3,075. Thus, Gleason & Fritzshall's attorney fees were reduced by $6,925. Gleason & Fritzshall filed a motion to reconsider the reduction in fees. The motion was denied. The court entered an order on March 8, 1993, that made the court's reduction of attorney fees from $10,000 to $3,075 a final and appealable order.

The sole issue on appeal is whether the trial court erred in reducing Gleason & Fritzshall's attorney fees. The only case directly relevant is the supreme court's opinion in Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 506 N.E.2d 1279. In that case, the attorneys for the injured minor had a contingent fee agreement that would give them 33 1/3% of the recovery. After settlement, the trial court reduced the award of attorney fees to 25% based on Rule 9.20(e) of the Nineteenth Judicial Circuit. That rule placed a 25% of the amount recovered limit on attorney fees incurred on behalf of an injured minor. Attorneys could recover more than 25% only if it appeared to the court that that percentage did not fairly compensate them. The court held that a contingent fee agreement entered into on behalf of a minor by his or her next friend is enforceable unless the terms are unreasonable. In support of its holding, the court noted that significant public policy considerations supported the enforcement of reasonable contingent fee agreements. Specifically, the court noted that such agreements are the "poor man's key to the courthouse door," and that contingent fees are "rooted in our commitment to equal Justice for both those of moderate means and the wealthy." ( Arnold, 116 Ill. 2d at 164, 506 N.E.2d at 1281.) The court also upheld the validity of Rule 9.20(e) of the Nineteenth Judicial Circuit.

In the instant case, the settlement agreement was filed in the Twelfth Judicial Circuit. The Twelfth Circuit does not have a rule limiting contingent fees to 25% in minor's personal injury cases. Rather, there is a rule that provides in such cases, the attorney representing the minor shall include in a sworn petition:

(1) the terms of the employment, with a copy of all contracts or correspondence verifying the same,

(2) an itemized statement of services rendered including hours spent and the purpose of each hour or part thereof,

(3) the customary and usual charges made by persons rendering similar services for the community, and

(4) any special circumstances which might bear on the question of fees. (See Rule 11.21(d) of the ...


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