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08/24/95 ROSE MARIE ANDERSON AND FRANK ANDERSON v.

August 24, 1995

ROSE MARIE ANDERSON AND FRANK ANDERSON, PLAINTIFFS-APPELLANTS,
v.
ANCHOR ORGANIZATION FOR HEALTH MAINTENANCE, D. DWARKANATHAN, AND FOSTER MCGAW HOSPITAL LOYOLA UNIVERSITY OF CHICAGO, DEFENDANTS (JOAN SCHILLER TRAVIS, APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM D. MADDUX, and PATRICK E. McGANN, JUDGES PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

In this opinion, we address appeals from orders of the circuit court entered in two distinct but related actions. Each appeal was separately briefed, but because they involve the same operative set of facts, we have elected to consolidate the appeals.

Rose Marie Anderson and Frank Anderson (plaintiffs) engaged Joan Schiller Travis, an attorney who had previously represented their son, to represent them in a medical malpractice action and signed contingent fee retainer agreements with Travis on February 22, 1986, and April 12, 1986, respectively. Both retainer agreements provided that Travis was entitled to a fee equal to 40% of the gross amount recovered by suit or settlement plus all expenses incurred. At the time the plaintiffs signed the contingent fee agreements, section 2-1114 of the Code of Civil Procedure (Code) limited contingent attorney fees in medical malpractice actions to an amount not to exceed 33 1/3% of the first $150,000 recovered, 25% of the next $850,000, and 20% of any amount recovered in excess of $1 million (Ill. Rev. Stat. 1987, ch. 110, par. 2-1114).

After the execution of the retainer agreement with Rose Marie Anderson, but before the execution of the agreement with Frank Anderson, Travis contacted Kenneth C. Chessick, who is licensed both as an attorney and a physician, and retained him to act as her co-counsel. Travis and Chessick orally agreed to equally divide the fees and costs. Although Travis advised the plaintiffs that Chessick had been retained and that there would be no additional charge forhis services, the plaintiffs never consented in writing to the employment of Chessick as required by the then applicable Rule 2-107(a)(1) of the Illinois Code of Professional Responsibility (107 Ill. 2d R. 2-107(a)(1)).

On January 27, 1987, a medical malpractice action was filed on behalf of the plaintiffs in the circuit court of Cook County as case No. 86 L 12564. Both Chessick and Travis rendered legal services and advanced costs in furtherance of the plaintiffs' action.

On February 19, 1992, the plaintiffs forwarded separate but identical letters to Travis discharging her as their attorney and stating that Chessick would act as their attorney. Coincidentally, on the same day, the plaintiffs signed a contingent fee agreement retaining Chessick to represent them.

After being discharged, Travis forwarded notices to all of the defendants in case No. 86 L 12564 claiming an attorney's lien in the amount of 40% of all sums that the plaintiffs might recover by settlement or judgment. Additionally, on June 19, 1992, Travis filed a multicount action against the plaintiffs and Chessick in the circuit court of Cook County as case No. 92 CH 5917.

On February 18, 1993, the plaintiffs agreed to a settlement having a value $1,442,608 with Loyola University, one of the defendants in their malpractice action. Thereafter, on April 12, 1993, the plaintiffs filed a motion in their malpractice action seeking an adjudication of Travis' attorney's lien. While that motion was pending and unresolved, the plaintiffs' malpractice action against the remaining defendant was tried to verdict and judgments were entered in favor of Rose Marie Anderson for $2,904,000 and Frank Anderson for $200,000.

On April 12, 1993, the court approved attorney fees of $533,762.74 on the plaintiffs' settlement with Loyola, and on April 22, 1993, required Chessick to hold that sum in a client fund account pending resolution of Travis' fee claims.

On May 11, 1993, Travis moved the court to consolidate her actions in case 92 CH 5917 with the plaintiffs' malpractice action. That motion was denied on June 22, 1993.

On July 20, 1993, Travis filed a four-count second-amended complaint in case No. 92 CH 5917 seeking relief against Chessick only. Count I set forth a cause of action for breach of contract and in the alternative sought relief under a quantum meruit theory, count II sought to recover for tortious interference with contract and prospective advantage, count III sought an adjudication of Travis' attorney's lien, and count IV was an action for breach of fiduciary duty.

On August 25, 1993, the trial court entered an order in case No. 86 L 12564 denying the plaintiffs' petition to adjudicate Travis' attorney's lien but ordered that her statement of professional services stand as a petition for quantum meruit recovery, consolidated her quantum meruit claim in case No. 92 CH 5917 with case 86 L 12564, ordered Chessick ...


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