Conflict of Interest

Illinois Appellate Court Holds that Violations of the Rules of Professional Conduct are Only Enforceable in Disciplinary Proceedings

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Last month, on July 7, 2021, the Illinois Appellate Court for the Second District held that the Circuit Court of DuPage County erred in ordering the disgorgement of $16,313 in attorney’s fees and the forfeiture of an additional $125,472 in outstanding fees related to a complicated divorce proceeding. The case began on November 6, 2015, when Sara C. Weber, represented by Botti Law Firm, P.C. (“Botti Law”), filed a petition for dissolution of her marriage to Karl Weber.

During the proceeding, Mr. Weber alleged that Mrs. Weber’s caregiver was exerting undue influence over his wife and misusing the parties’ marital and business assets. On June 9, 2016, Mr. Weber subpoenaed the caregiver’s bank records. In response, Botti Law appeared on behalf of the caregiver and began representing her.

On March 9, 2017, Mrs. Weber terminated Botti Law’s representation, but the firm continued to represent the caregiver. Later, Botti Law filed a petition for the setting of final fees and costs pursuant to sections 508(a) and 508(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a). In ruling on Botti Law’s petition, the trial court reasoned that the firm “was made aware of allegations that [the caregiver] was unduly influencing Sara Weber …” and therefore should have clearly recognized there was “at least a potential of a conflict” between Mrs. Weber and her caregiver.

The trial court concluded, there was “… no doubt that there was a conflict between Sara Weber and Mary Barton …” and decided the conflict arose when Botti Law filed its appearance on behalf of the caregiver on June 12, 2016. The court asserted that this action violated the Illinois Rule of Professional Conduct 1.7. Because the firm violated Rule 1.7, Botti Law was barred from collecting any billings after June 13, 2016. The trial court added that Botti Law’s fees were not “unreasonable, unnecessary or—and/or excessive” and that the firm would be entitled to recover its fees accrued through June 12, 2016.

On appeal, the Appellate Court disagreed. The Court held that disciplinary proceedings are the only appropriate forum for enforcing the Illinois Rules of Professional Conduct. The Court reasoned that disciplinary proceedings provide attorneys with protections not available in district courts including due process protections (e.g., removal of evidentiary obstacles like the Dead-Man’s Act) and a heighten burden of proof. As the Court summarized: “Again, the focus therein is on the ARDC proving attorney misconduct, and the burden is not on the attorney to prove that he or she did not commit misconduct.” In re Est. of Weber, 2021 IL App (2d) 200354, ¶ 28. In scolding the trial court, the Appellate Court stated:

This case is precisely the type of case that subverts the purpose behind the Rules. See Ill. R. Prof’l Conduct (2010), Scope ¶ 20 (eff. Jan. 1, 2010). The trial court’s decision completely violates the supreme court’s stated philosophy behind the Rules: “The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.” Id. In re Est. of Weber, 2021 IL App (2d) 200354, ¶ 24.

The Court remanded the case with directions to enter judgment in favor of Botti Law on all of its claimed fees.

In re: Estate of Sara C. Weber, Deceased, 2021 Il App. (2nd) 200354

(This is for informational purposes only and not legal advice.)