Discharged Firm May Collect Contingency Fee.

In DeLapaz v. Selectbuild Construction, Inc., 394 Ill. App. 3d 969, (1st Dist. 2009), the plaintiff, Rafael DeLapaz, hired law firm Touhy & Touhy, Ltd. (Touhy) on a contingency fee basis to bring a negligence action.

Touhy lawyer James Zouras handled essentially all of the attorney work on the DeLapaz matter until he was terminated by Touhy for unknown reasons. Zouras then started a new firm and took the DeLapaz matter with him. Shortly thereafter, the matter settled and Touhy and Zouras both sought the right to be paid the contingency fee.

The trial court awarded Touhy its contingency fee and allocated a small portion of the fee to Zouras’ new firm on a quantum meruit basis. Zouras appealed.

The appellate court affirmed. The appellate court first cited the general rule that a discharged attorney (i.e., Touhy) normally is NOT entitled to the original contract contingency fee, which terminates upon discharge, but is entitled to be paid on a quantum meruit basis for services rendered prior to the discharge.

However, the appellate court relied on an established exception recognized by the Illinois courts, which holds that a discharged firm is entitled to its contract fee and the successor counsel merely entitled to a fee based on quantum meruit in cases where the overwhelming majority of that work was done at the original firm.

The courts have more discretion in allocating fees between former and successor law firms than I realized. Attorneys seeking fees in these situations should stress the relative contributions of their firm in the pleadings.

Close NIU Law School?

Scott Summers, a candidate for Illinois treasurer and a graduate of NIU Law, has proposed "slimming down" or even "mothballing" Northern Illinois and Southern Illinois universities' law school programs.

"We have three public law schools," Summers said. "And another seven or eight private law schools and a whole bunch of unemployed lawyers and underemployed lawyers. How long can we as taxpayers continue to support this?"

While the candidate said in a recent campaign website post he was grateful for the "tiptop legal education" he received at NIU, he said he is "counting beans today, not wallowing in sentiment."

Up until 35 years ago, he pointed out, the state had a single public law school at the University of Illinois. "We got by just fine with that," he said.

Full article here.

Credit information can no longer be used in employment decisions.

On August 10, 2010, Governor Quinn signed the Employee Credit Privacy Act (H.B. 4658) into law. The Act prohibits most employers from using an applicant’s or employee’s credit history or other credit information as a factor in any employment decision (e.g., hire, discharge, terms of employment).

The Act applies to employers of any size, but certain employers are specifically excluded from the Act’s coverage. Many governmental employers, as well as banks, savings and loan associations, other financial institutions, debt collectors, insurance companies, and surety businesses are specifically excluded from the Act’s prohibitions.

Employers may not retaliate or discriminate against a person for exercising rights under the Employee Credit Privacy Act. Employers who violate the Act may be sued and ordered to pay damages including attorneys’ fees. Further, the Act does not allow waivers of the Act’s rights and invalidates any such waivers that exist.

The effective date of the Act is January 1, 2011.

Share to Facebook

Please note that you know have the option to share Northern Law Blog posts to Facebook, Twitter, etc., with the links placed directly beneath each post. If you see something you like, please spread the word.

Corporate Voting Deadlocks

If you are ever asked to draft corporate bylaws or an operating agreement on behalf of a client, I suggest that you add the following provision:

Voting Deadlock. In the event of a deadlock in the vote of the members or managers, the decision shall be made using the method of "paper, rock and scissors." A representative of each side of the issue shall face each other with their arms in a right angle of 90 degrees as the elbow with fists closed and the right fist on top of the left fist. An independent participant, if available, or either of the representatives will be responsible to count to three in approximately one (1) second intervals. With each count, each representative shall lightly touch the left fist with the right fist to the cadence of the count and, at the count of three, each representative will signify whether he or she is selecting "paper," "rock," or "scissors." "Paper" shall be represented by the right hand fully extended, palm down. "Rock" shall be represented by the right hand in a full fist. "Scissors" shall be represented with the right hand in a fist with the index and third finger extended. The outcome of the issue shall be decided by the representative who wins the contest by the best two out of three sessions using the following rules:

i. A display of paper defeats a display of rock;

ii. A display of rock defeats a display of scissors; and

iii. A display of scissors defeats a display of paper.

The winning representative shall decide the issue conclusively on behalf of the company.

Driver rear-ends car, sues the other driver.

I had a debate a couple of years ago with some former law school classmates about whether a rear-end collision could ever be someone else's fault.

I was at a tavern with some assistant state's attorneys. They were saying that a rear-ender could never be the front car's fault. I took the position that you should never say never, but at that time I could not articulate a fact pattern whereby the front car would be at fault.

Well, according to the Sun Times, a Cook County plaintiff is helping me make my argument. A motorist is suing a student driver and his instructor for a 2008 crash triggered by the pupil making a "sudden stop at a green light."

That is a novel theory and I hope it works, if only for bragging rights the next time I am out with prosecutor buddies, but I have my doubts. Why wasn't the plaintiff keeping a proper look-out?

Can anyone else out there think of a scenario where a rear-ender could be the front car's fault?

A man who represents himself has a fool for a client.

Here is today's West Headnote of the Day. This reminds me of a good story from law school:

Evidence at a preliminary hearing that the accused asked the witness "How do you know it was me when I had a handkerchief over my face?" was properly admitted at trial for robbery as an admission. Nance v. United States, 299 F.2d 122 (D.C. Cir. 1962)

When I was at NIU, I worked at the DeKalb County State's Attorney's Office as a Rule 711 intern. I spent about half of my time in the felony division preparing for a murder trial. That case did not go to trial until after I graduated, passed the bar, and was working in private practice. But I still followed the case pretty closely in the newspaper.

The defendant fired several lawyers leading up to trial. The judge eventually allowed him to represent himself. He didn't do too bad, I guess, throughout the course of the trial, but he really blew it during closing arguments.

He stood before the jury and asked them "Please, please do not convict me of these crimes that I have committed."

Oops!

Presumptions in the Law

West's Headnote of the Day

157 Evidence

157II Presumptions

157k53 k. Nature and Scope in General.

Presumptions are the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts. Taufen v. Estate of Kirpes, 230 P.3d 199 (Wash. Ct. App. 2010)

Class Action Lawsuit Over iPhone 4?

I'm sure most of the technophiles out there have heard about the iPhone 4's poor reception and dropped call problems. Maybe some of you have even experienced it for yourself. If you have, you might want to consider contacting the law firm of Kershaw, Cutter, and Ratinoff, LLP. They are investigating a potential class action lawsuit against Apple for the poor reception quality, dropped calls, and weak signal received by the new iPhone 4. More information here.