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Beesen-Dwars v. Duane Morris LLP

February 12, 2010

GAIL BEESEN-DWARS PLAINTIFF,
v.
DUANE MORRIS LLP, DAVID YELIN, AND JANE L. DALTON, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

This case is before the court on the pro se motion of plaintiff, Gail Beesen-Dwars, to quash or adjudicate an attorney's lien served by one of her former counsel, Keith L. Hunt, and his law firm, Hunt & Associates (herein, "Hunt"). The court adjudicates the lien at $18,994, plus ten percent of the plaintiff's cash recovery. The reasons follow:

FACTS

According to the documents before the court, on May 18, 2008, Hunt sent a letter of notice of his attorney's lien to "David Yelin, Duane Morris, LLP," at the law firm's Chicago address. The letter asserted a lien against any recovery made by plaintiff in this law suit "in an amount equal to, at a minimum, 25 percent of any recovery, whether by suit, settlement or otherwise, together with an amount equal to any outstanding hourly fees or litigation expenses," further stating that the present amount plaintiff owed to plaintiff was $41,567 (ignoring change). Doc. 130-1, page 7. Although plaintiff's motion contends there is no evidence that Hunt sent the letter by certified mail, Hunt's response to the motion includes a copy of a signed receipt for certified mail of a letter addressed to "David Yelin, Duane Morris LLP" reflecting a delivery date of June 2, 2008. Doc. 135-1, page 74.*fn1 The in-court hearing record will reflect that after a settlement conference between plaintiff and defendants with the designated magistrate judge, the parties by their respective counsel reported to this court at a number of status hearing that the case could be settled and ultimately was settled, the only impediment being the need to resolve Hunt' attorney's lien. The issues before the court are (a) the court's jurisdiction to adjudicate the lien; (b) the validity of the lien; and (c) the amount to which Hunt is entitled, if any.

ANALYSIS

1. Jurisdiction

The court has jurisdiction to adjudicate the fee dispute because it has jurisdiction over the subject matter of the action giving rise to the recovery against which Hunt's lien has been asserted. See, e.g., Clarion Corp. v. Am. Home Prods Corp., 464 F.2d 444, 445 (7th Cir. 1972) ("There is no question . . . that a Federal District Court may adjudicate the attorney's fee question pursuant to the lien created by said statute; the theory being that if the original action has a proper basis for Federal jurisdiction then any recovery achieved by that suit creates an attachable interest upon which the attorney may assert his claim for fees.") (internal citation omitted).

2. Validity of the Lien

The parties agree that Illinois law governs this dispute. The Illinois Attorney's Lien Act, 770 Ill. Comp. Stat. § 5/1 ("the Act"), has two essential requirements for an effective lien: "The attorney must have been hired by a client to assert a claim. The attorney must then perfect the lien by serving notice, in writing, upon the party against whom the client has the claim. The lien attaches from and after the time of the service of the statutory notice." People v. Philip Morris, Inc., 759 N.E.2d 906, 911, 198 Ill. 2d 87, 259 Ill. Dec. 845 (2001) (citing Rhodes v. Norfolk & Western Ry. Co., 399 N.E.2d 969, 973, 78 Ill. 2d 217, 227, 35 Ill. Dec. 680 (1979)). "Since the attorney's lien is a creature of statute, the Act must be strictly construed, both as to establishing the lien and as to the right of action for its enforcement. Attorneys who do not strictly comply with the Act have no lien rights." Id. (citations omitted). The attorney asserting the lien bears the burden of establishing valid service. Am. Nat'l Bank & Trust Co. of Chicago v. ALPS Elec. Co., No. 99 C 6990, 2004 WL 783156, at *2(N.D. Ill. Jan. 15, 2004) (citing Zazove v. Wilson, 80 N.E.2d 101, 103, 334 Ill. App. 594 (Ill. App. Ct. 1948). The parties agree that plaintiff hired Hunt to assert a claim but plaintiff argues that the lien was not perfected because service was made by an unspecified means of mail and on only one defendant.

A. Manner of Service

The Act provides, "To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action . . . ." 770 Ill. Comp. Stat. § 5/1. Plaintiff contends that the firm and Ms. Dalton were not served because the lien letter was addressed only to Mr Yelin.

Under the Illinois Code of Civil Procedure § 2-205(a), 735 Ill. Comp. Stat. § 5/2-205(a),"[a] partnership sued in its firm name may be served by leaving a copy of the process with any partner personally or with any agent of the partnership found anywhere in the State . . . ." The lien letter, fairly read, is addressed to both Mr.Yelin, who is a partner, and the firm. Although Hunt might have sent two letters, one to Mr. Yelin c/o the firm and one to the firm c/o Mr. Yelin, such a requirement would exalt form over substance indeed.

As for defendant Dalton, she has acknowledged notice of the lien, which is sufficient. In Unger v. Checker Taxi Co., 174 N.E.2d 219, 30 Ill. App. 2d 238 (Ill. App. Ct. 1961), on which plaintiff relies, an attorney notified the defendant by ordinary mail of his contract with the plaintiff in litigation. The defendant settled the claim without notice to the attorney and refused to pay the attorney's fee due under the fee agreement. In a law suit against the defendant to recover the fee, the court ruled that because the defendant had never acknowledged receipt of any notice of any attorney's lien by the defendant, there was not compliance with the lien act and the attorney could not recover on his claim. The holding is not as broad as plaintiff suggests, however. The court distinguished Bloom v. Richardson, 31 N.E.2d 368, 308 Ill. App. 320 (Ill. App. Ct. 1941), which held a lien perfected where the plaintiff had not pled that he served the lien by registered mail, on the basis that "the defendant there acknowledged receipt of the notice by return mail and also informed plaintiff's client of receipt of the notice when settlement was made and required her to post bond to indemnify defendant for any recovery from it on the lien." Unger, 174 N.E.2d at 221. See Bloom, 31 N.E.2d at 368-69 (abstract of decision reflects reversal of judgment in favor of defendant, stating it was not necessary to specifically allege service by registered mail where defendant had acknowledged receipt); see also TM Ryan Co. v. 5350 S. Shore, L.L.C., 836 N.E.2d 803, 807, 361 Ill. App. 3d 352, 297 Ill. Dec. 72 (Ill. App. Ct. 2005) ("In cases where courts have upheld the validity of a lien despite a lack of proper service of notice, there was proof of actual notice.")

The court infers from these cases that where the defendant acknowledges actual notice, lack of proof of service by personal service or by registered or certified mail does not defeat the lien. Here, all of the defendants through their counsel acknowledged receipt of notice of the lien in open court and in the settlement ...


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