Illinois Contingency Fee Case

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu


In In re Bertucci, 926 N.E.2d 833 (Ill.2010), the Appellate Court of Illinois Donald T. Bertucci represented a former client Lourdes Rodriguez defendant client in a medical malpractice case, but allegedly kept a fee for himself after settling the case. The lawyer has been sued in state court and named in attorney disciplinary proceedings.

In the State Court action, the lawyer was sued on "claims of breach of contract, unjust enrichment, conversion, breach of fiduciary duty, fraud, and violation of the Illinois statute which limits contingent legal fees in medical malpractice actions”. Illinois State Statute Sec. 2-1114 Contingent fees for attorneys in medical malpractice.

The Illinois Appellate Court held that there was no duty to defend or indemnify under the lawyer's policy. The Illinois Courts compared the Policy Definition of covered "Damages" with the damages actually sought against the lawyer in the underlying lawsuit. The Courts concluded that there were no covered "Damages" at issue there. The former client's State Court lawsuit "alleges only non-covered, direct and consequential injuries from the excessive legal fees (the lawyer-Policyholder) charged against her assets; it does not allege 'damages' within the meaning of the policy."In the Disciplinary Proceeding, the Illinois Trial Court had ruled that the event in question qualified as covered "legal services" covered under the Policy's "supplementary payments provision" for disciplinary proceedings. The Illinois Appellate Court reversed. There were no covered "legal services" at issue in the Disciplinary Proceeding, the Court held, any more than there was covered “legal services” at issue in the underlying State Court lawsuit, in the Appellate Courts view.

This case teaches the importance of knowing the fees based on contingency Rule 1.5 (f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.