from the Circuit Court of Lake County. No. 13-L-483 Honorable
Thomas M. Schippers, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with
opinion. Justices McLaren and Hudson concurred in the
judgment and opinion.
1 Plaintiff, Ferris, Thompson, & Zweig, Ltd., and
defendant, Anthony Esposito, had a longstanding work
relationship. During that relationship, plaintiff referred a
number of workers' compensation clients to defendant in
return for a portion of the attorney fees defendant received.
Each such referral was evidenced by a written agreement that
each of the parties and the clients signed. When defendant
refused most recently to pay plaintiff pursuant to some of
these agreements, plaintiff sued defendant. Defendant moved
to dismiss, claiming that the agreements did not comply with
Rule 1.5(e)(1) of the Illinois Rules of Professional Conduct
of 2010 (eff. Jan. 1, 2010) in that they did not expressly
state that the parties assumed "joint financial
responsibility" in representing the clients. The trial
court granted the motion to dismiss. We reverse and remand.
2 The relationship between the parties began sometime around
2007. In 2012, before this appeal arose, defendant refused to
pay plaintiff pursuant to two referral agreements, and
plaintiff sued defendant in circuit court for breach of
contract. Defendant moved to dismiss, arguing that the
Worker's Compensation Commission, not the circuit court,
had jurisdiction over the case. The trial court denied the
motion, defendant appealed, and the trial court's
decision was affirmed by this court (see Ferris,
Thompson, & Zweig, Ltd. v. Esposito, 2014 IL App
(2d) 130129) and our supreme court (Ferris, Thompson,
& Zweig Ltd. v. Esposito, 2015 IL 117443)
3 While Ferris I was pending in this court,
defendant refused to pay plaintiff pursuant to 10 other
referral agreements. As a result, plaintiff filed a 10-count
complaint against defendant. Attached to the complaint were
the referral agreements executed in each case. These
agreements, which were executed between 2007 and 2010,
provided, like the agreements in Ferris I, that the
clients had retained plaintiff and that plaintiff had
contracted with defendant for defendant to pursue the
clients' workers' compensation cases on their behalf.
The agreements also outlined which services each attorney
would provide, and each agreement was signed by plaintiff,
defendant, and the client. Nowhere did the agreements state
that the attorneys assumed "joint financial
responsibility" for representing the clients. Ill. R.
Prof'l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010).
4 Defendant moved to dismiss pursuant to section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)),
arguing, among other things, that the agreements were
unenforceable. Specifically, defendant claimed that the
agreements did not comply with Rule 1.5(e)(1) in that the
agreements did not state that plaintiff and defendant agreed
to assume "joint financial responsibility." Ill. R.
Prof'l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010).
Plaintiff responded, claiming, among other things, that Rule
1.5(e), which governs referral agreements, does not mandate
that a written referral agreement contain such an express
statement. Ill. R. Prof'l Conduct (2010) R. 1.5(e) (eff.
Jan. 1, 2010).
5 The trial court granted defendant's motion. Plaintiff
moved the court to reconsider, the court denied the motion,
and this timely appeal followed.
6 At issue in this appeal is whether plaintiff's
complaint should have been dismissed. A section 2-615 motion
to dismiss attacks the legal sufficiency of a pleading.
Vernon v. Schuster, 179 Ill.2d 338, 344 (1997). We
review de novo an order granting a motion to dismiss
under section 2-615. Marshall v. Burger King Corp.,
222 Ill.2d 422, 429 (2006).
7 Resolving whether defendant's motion to dismiss should
have been granted is problematic, because, unfortunately,
defendant has not filed a brief on appeal. While we may not
reverse summarily on that basis alone, we need not serve as
defendant's advocate or search the record for a basis
upon which to affirm. First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill.2d 128, 133 (1976);
Orava v. Plunkett Furniture Co., 297 Ill.App.3d 635,
636 (1998). As relevant here, unless the record is simple and
the issues can be easily decided without the aid of an
appellee's brief, we may reverse "if the
appellant's brief demonstrates prima facie
reversible error and the contentions of the brief find
support in the record." Talandis, 63 Ill.2d at
133; see Orava, 297 Ill.App.3d at 636. "
'Prima facie means, "at first sight, on the first
appearance, on the face of it, so far as can be judged from
the first disclosure; presumably; a fact presumed to be true
unless disproved by some evidence to the contrary."
[Citation.]' " Talandis, 63 Ill.2d at 132
(quoting Harrington v. Hartman, 233 N.E.2d 189, 191
(Ind. App. 1968)).
8 We do not believe that the issue raised in this case can be
easily decided. Therefore, we consider whether
plaintiff's brief establishes prima facie
reversible error. We hold that it does.
9 In so holding, we must examine Rule 1.5(e). In interpreting
Rule 1.5(e), we apply the same principles that we employ in
construing a statute. In re Marriage of Nettleton,
348 Ill.App.3d 961, 967 (2004). Our primary goal in
construing a rule is to ascertain and give effect to the
drafters' intent. Id. The surest and most
reliable indicator of the drafters' intent is the
language used in the rule. Macknin v. Macknin, 404
Ill.App.3d 520, 530 (2010). Accordingly, when the language in
the rule is clear and unambiguous, we must apply it as
written, giving the rule's language its plain and
ordinary meaning. Id. However, if the rule is
ambiguous, we may look beyond the rule's language to
discern the drafters' intent, and we may consider the
purpose of the rule and the evils that the rule was designed
to remedy. People v. King, 349 Ill.App.3d 877, 879
(2004). Moreover, when a rule is ambiguous, courts may look
to the rule's committee comments to ascertain the
drafters' intent. In re Estate of Burd, 354
Ill.App.3d 434, 437 (2004). Regardless, whenever possible, we
will avoid a construction that leads to absurd or unjust
results, and we will presume that the drafters intended a
sensible result rather than an absurd one. In re Marriage
of Nettleton, 348 Ill.App.3d at 967. Like a ruling on a
motion to dismiss, we review de novo the
construction of a rule. See In re Marriage of Webb,
333 Ill.App.3d 1104, 1108 (2002).
10 Rule 1.5(e) provides:
"A division of a fee between lawyers who are not in
the same firm may be ...