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Romanek v. Connelly

June 29, 2001

ABBEY FISHMAN ROMANEK, PLAINTIFF-APPELLANT,
v.
MICHAEL P. CONNELLY, JOHN L. SCHROEDER, THOMAS F. TOBIN, RAYMOND E. STACHNIK, EUGENE S. KRAUSE, DANIEL MICHAEL P. HANNIGAN, BRANDT MADSEN AND MARY LISA KAMINS, INDIVIDUALLY AND AS THE GENERAL PARTNERS OF CONNELLY & SCHROEDER, A LAW FIRM, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Judge Cerda

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable James F. Henry, Judge Presiding.

Plaintiff, Abbey Fishman Romanek, appeals the order of the circuit court dismissing her second amended complaint with prejudice, pursuant to sections 2-615(a) and 2-619(a)(9) of the Civil Practice Act (Act) (735 ILCS 5/2-615(a), 5/619(a)(9) (West 1998)), against defendants, Michael Connelly, John Schroeder, Thomas Tobin, Raymond Stachnik, Eugene Kraus, Daniel Konicek, Michael Hannigan, Brandt Madsen and Mary Lisa Kamins, individually and as general partners of defendant law firm Connelly & Schroeder (collectively referred to hereinafter as "Connelly & Schroeder"), for breach of contract, breach of fiduciary duty and intentional interference with prospective economic advantage.

Plaintiff, an attorney, is a former member of Connelly & Schroeder. During her employment, she brought in a contingent fee case through a lawyer she knew. When she left the firm, there was an agreement for plaintiff to receive a portion of any fee generated by the referral case. The principal issue in this case is whether the parties' agreement to share in the contingent fee recovered in the referral case is enforceable under Rule 1.5 of the Rules of Professional Conduct ("RPC").

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

The following facts are derived from the well-pleaded facts of plaintiff's second-amended complaint and the reasonable inferences drawn therefrom, which for purposes of this appeal must be accepted as true (In re Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265, 268 (1998)), as well as other record materials properly before us on this appeal.

From October 1995 to August 1998, plaintiff was an associate member of the Chicago law firm of Connelly & Schroeder. At some point during that time period, Connelly & Schroeder received, through plaintiff, litigation between Thunderhead Beverages Inc. and Dana Plastics, which had been referred to plaintiff by a personal acquaintance and attorney in Cincinnati, Ohio. Thunderhead ultimately retained Connelly & Schroeder to represent it, on a contingency fee basis, in the litigation with Dana Plastics. Thunderhead also retained the law firm to represent it in other matters in which it was involved at the time. In addition to bringing the case to the law firm, plaintiff provided some services on Thunderhead's behalf at the inception of the Dana Plastics case.

Plaintiff subsequently left Connelly & Schroeder in August 1998 and, pursuant to an oral separation agreement, was allowed to take certain medical insurance cases she was handling at the time. In addition to outlining the terms of plaintiff's departure from the law firm, the separation agreement additionally contained an alleged "fee sharing agreement" arranged between plaintiff and two of the firm's partners, Michael Connelly and Daniel Konicek. According to the amended complaint, plaintiff intended to take the Dana Plastics case and all other Thunderhead matters with her. When presumably learning of plaintiff's intentions, Connelly allegedly stated to plaintiff that the law firm "would like to keep the Thunderhead cases and *** [that it would] give [her] a referral fee if [she] agree[d] to leave the cases" with it. Konicek similarly asked plaintiff to leave all Thunderhead matters in exchange for the payment of a fee. The record indicates that the firm's payment was to be made solely from the contingency fee generated from the Dana Plastics matter. Plaintiff accepted the foregoing offers and made no attempt to take any Thunderhead cases when she left the firm's employment.

The amended complaint does not identify the particular terms of the parties "fee sharing" arrangement. For instance, the complaint does not identify the amount and basis of the fee to be paid plaintiff. The only contractual provision specified is that Connelly & Schroeder had the obligation to "either *** obtain or *** make a good faith attempt to obtain the written consent of the client, Thunderhead, to the *** fee sharing agreement." Connelly & Schroeder has allegedly never made an attempt to fulfill its obligation.

In either late 1998 or early 1999, Connelly & Schroeder secured a $200,000 settlement of the Dana Plastics litigation on Thunderhead's behalf, pursuant to which the firm collected a fee of $66,666.67. Connelly & Schroeder has never paid plaintiff any portion of that recovered fee.

Count I of the amended complaint charges Connelly & Schroeder with breach of contract, alleging that the firm has failed to adhere to the "fee sharing" provision of the parties' separation agreement by (1) failing and refusing to make any attempt to obtain the written consent of Thunderhead and (2) "refusing to pay the plaintiff a referral fee on the Thunderhead case." Count II alleges that the foregoing omissions and failures on the part of Connelly & Schroeder constitute a breach of its fiduciary obligations toward plaintiff as a joint venturer in their dual representation of Thunderhead in the Dana Plastics litigation. Finally, in count III, Connelly & Schroeder is alleged to have intentionally interfered with the prospective economic relationship plaintiff expected to have forged with Thunderhead upon her departure from the firm.

ANALYSIS

A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint whereas a section 2-619 motion raises defects or defenses that negate plaintiff's cause of action completely or refute crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific fact. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377, 1382 (1996). Motions filed under either section admit all well-pleaded facts together with all reasonable inferences drawn therefrom. Lawson, 278 Ill. App. 3d 634, 662 N.E.2d at 1382. Conclusions of law or conclusions of fact not supported by allegations of specific fact, however, are not admitted. Lawson, 278 Ill. App. 3d 634, 662 N.E.2d at 1382. In ruling on either motion, all pleadings and supporting documents are construed in a light most favorable to the nonmoving party. Chicago Flood Litigation, 176 Ill. 2d at 184, 680 N.E.2d at 268.

The question presented by a motion under section 2-615 is whether the complaint alleges sufficient facts entitling plaintiff to relief. Where facts alleged fail to support the asserted cause of action, the motion should be granted and the claim dismissed. Chicago Flood Litigation, 176 Ill. 2d at 184, 680 N.E.2d at 268. A motion to dismiss under section 2-619(a)(9), on the other hand, acknowledges the plaintiff's cause of action but presents affirmative matters that avoid the legal effect of the claim. Golden v. Mullen, 295 Ill. App. 3d 865, 869, 693 N.E.2d 385, 389 (1997). The relevant inquiry for this court is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735 (1993).

Since the issues raised by either of the foregoing motions involve solely questions of law, our review is conducted de novo. Lawson, 278 ...


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