{ "id": 980637, "name": "SHELDON A. LUSTIG, d/b/a Lustig and Associates, Plaintiff-Appellee, v. ISAAC HORN, a/k/a Sam Horn, Defendant-Appellant", "name_abbreviation": "Lustig v. Horn", "decision_date": "2000-06-09", "docket_number": "No. 1\u201499\u20140965", "first_page": "319", "last_page": "329", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 319" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "566 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553027 ], "year": 1991, "pin_cites": [ { "page": "413-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0409-01" ] }, { "cite": "566 N.E.2d 905", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 127", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548491 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0127-01" ] }, { "cite": "74 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3270530 ], "year": 1979, "pin_cites": [ { "page": "472-73", "parenthetical": "\" 'Both malpractice actions and disciplinary proceedings involve conduct failing to adhere to certain minimum standards and we reject any suggestion that ethical standards are not relevant considerations in each' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0467-01" ] }, { "cite": "526 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082769 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0519-01" ] }, { "cite": "488 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 295", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3531698 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0295-01" ] }, { "cite": "443 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "93 Ill. 2d 285", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102559 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/93/0285-01" ] }, { "cite": "536 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615616 ], "year": 1989, "pin_cites": [ { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/1051-01" ] }, { "cite": "937 P.2d 1237", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "pin_cites": [ { "page": "1244" } ], "opinion_index": 0 }, { "cite": "607 N.E.2d 1242", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 174", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821113 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/154/0174-01" ] }, { "cite": "378 N.E.2d 1191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3346764 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0873-01" ] }, { "cite": "448 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "95 Ill. 2d 452", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3112269 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0452-01" ] }, { "cite": "491 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450541 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "449" }, { "page": "449" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0443-01" ] }, { "cite": "507 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648224 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "515" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0510-01" ] }, { "cite": "418 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128008 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0394-01" ] } ], "analysis": { "cardinality": 1046, "char_count": 23843, "ocr_confidence": 0.716, "pagerank": { "raw": 1.6266537480830037e-07, "percentile": 0.6881914737114017 }, "sha256": "3c4a064114ec4a63347848e81bfd55393ecc9a272dba732b52a5eb9db4d0dcf4", "simhash": "1:1f47d64037b276ad", "word_count": 3812 }, "last_updated": "2023-07-14T22:05:04.441996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHELDON A. LUSTIG, d/b/a Lustig and Associates, Plaintiff-Appellee, v. ISAAC HORN, a/k/a Sam Horn, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPlaintiff Sheldon M. Lustig (Lustig), an attorney, brought suit for breach of contract against defendant Isaac Horn (Horn), seeking to recover compensation from Horn for work performed by Lustig and other attorneys in his law. firm, Lustig & Associates. Lustig also sought compensation from Horn for the fees and costs incurred by Lustig and his firm in collecting the money owed Lustig by Horn. Horn counterclaimed for declaratory judgment, alleging, inter alia, that his retainer agreement with Lustig was void. Following a bench trial, the circuit court awarded Lustig $6,410.03. Horn appeals, claiming that the retainer agreement drafted by Lustig was void and unenforceable.\nOn February 17, 1998, Lustig brought suit, sounding in breach of contract and account stated, alleging that Horn failed to pay for legal services provided by Lustig\u2019s firm. In his complaint, Lustig alleged that Horn had entered into a retainer agreement with his law firm for legal services, that he and his firm had performed their obligations under the contract, and that Horn owed a balance of $21,095.32 in attorney fees. Lustig also sought \u201cone (1%) percent per month, plus attorneys fees and costs incurred in bringing this suit.\u201d Attached to Lustig\u2019s verified complaint was a billing statement and a document entitled, \u201cRetainer Agreement,\u201d dated January 19, 1996, and signed by both Lustig and Horn.\nThe retainer agreement, in pertinent part, stated that Horn \u201cretains and employs\u201d Lustig for representation \u201cwith regard to a mortgage foreclosure action.\u201d The retainer agreement further stated in paragraph 3:\n\u201cBILLING. Client agrees to pay all statements within ten (10) days after billing, that any statement remaining unpaid more than thirty (30) days will be subject to a one (1%) percent per month late charge and that in the event of default in payment Client will pay reasonable attorney\u2019s fees and costs incurred in collecting said amount which may be due, whether by suit or arbitration. Client authorizes Attorney or his agent to obtain and/or exchange credit reports and information on Client. Client authorizes Attorney to withdraw from any Client funds in his possession, fees and costs which have been billed to Client. Any statement not objected to in writing within thirty days from presentment will be deemed accepted and approved by Client.\u201d (Emphasis added.)\nIn his answer, Horn admitted that he had signed the retainer agreement and further admitted that he had accepted Lustig\u2019s legal services. Nevertheless, he denied that he owed the amount claimed. Horn also counterclaimed for declaratory judgment, alleging, inter alia, that the retainer agreement provision allowing for interest on unpaid bills, withdrawal of client funds and recovery of costs and fees relating to the collection of unpaid bills effectively \u201cbar[red] a client from ever being able to exercise a right to contest the amount of attorney\u2019s fees claimed by the attorney *** without incurring a potential penalty of additional attorney\u2019s fees by reason of exercising the client\u2019s right to complain that the original amount of attorney\u2019s fees claimed by the attorney are unreasonable.\u201d Characterizing the retainer agreement as \u201coppressive,\u201d Horn sought a declaratory judgment that paragraph 3 of the retainer agreement was \u201cvoid and unenforceable.\u201d\nThe evidence presented at trial revealed that, sometime in early 1996, Horn met with Lustig and asked him for his assistance regarding legal matters. Horn explained to Lustig that, in 1993 and 1994, he was living at 8034 N. Kenton Avenue in Skokie, Illinois, a building he owned, and was working at the Chicago Mercantile Exchange as a trader. As a result of an automobile accident in October 1993, Horn took medical leave from his job. Unable to make the mortgage payments on his home and afraid he would lose it, in July 1994, Horn sold his residence to a local real estate broker, Manijeh Bayzaee, with the agreement that Bayzaee would, after one year, sell the building back to Horn, for which Horn would pay her an additional $25,000.\nAs part of his agreement with Bayzaee, Horn continued to live in an apartment in the building, paying Bayzaee rent, while Bayzaee was to pay Horn monthly mortgage payments. Bayzaee, however, refused to sell back the building to Horn, and she never made any mortgage payments to him. Horn was unable to make rent payments to her and stopped paying his rent in July 1995. In September 1995, Bayzaee sought an order of possession and eviction against Horn, which was entered on January 31, 1996.\nHorn, shortly thereafter, requested legal representation from Lustig regarding the order of eviction and Bayzaee\u2019s default on her mortgage. At one of their first meetings, Horn\u2019s brother-in-law, Alan Israel, also met with Lustig and, because Horn had little money, promised to pay the legal costs. However, Israel never signed a guarantee and began \u201cbacking away\u201d from his initial promise to guarantee Horn\u2019s payment of fees. As a result, Lustig required Horn to execute the retainer agreement.\nLustig\u2019s representation of Horn involved several distinct, but related, issues. First, as a result of Bayzaee\u2019s default on the mortgage, Lustig represented Horn in a mortgage foreclosure against Bayzaee. Second, Lustig undertook an investigation of Bayzaee and her conduct to determine if she had violated any real estate laws. Third, because Horn indicated that he had never received the earnest money from sale of the building to Bayzaee, Lustig investigated the whereabouts of those missing funds, focusing on Jerome Zelden, Horn\u2019s previous attorney. Finally, Lustig attempted to forestall the eviction proceeding against Horn, who was still living in his apartment in the building.\nAccording to Lustig, Horn was kept abreast of all the work being done in these cases. Despite his impoverished circumstances, Horn urged Lustig, and other members of the law firm, to continue their vigorous representation. As a result of the differing lines of representation and investigation, the legal fees and costs mounted. For instance, in an attempt to prevent eviction, Lustig filed on behalf of Horn two motions for temporary injunction, one in the eviction case, which was denied, and another in the mortgage foreclosure case, which was also denied.* Horn also asked Lustig to investigate thoroughly any broker misconduct and report it to the proper authorities. According to Lustig, this \u201caggressive\u201d approach was undertaken at Horn\u2019s urging.\nInvestigations into the missing earnest money involved \u201cgreat difficulty\u201d because Horn\u2019s previous attorney had died and many documents were missing. Likewise, the mortgage foreclosure required \u201cextensive\u201d third-party discovery to determine the extent of Bayzaee\u2019s misconduct, involved numerous court dates and was sharply opposed and unusually contentious. Ultimately, however, Horn was successful in the mortgage foreclosure, obtaining a judgment of $53,358.40.\nDespite Lustig\u2019s success in obtaining a judgment for Horn in the foreclosure case, Horn had not been paying his legal bills. According to Lustig, with the exception of an $18,000 payment, Horn did not pay any bills sent to him by Lustig. Although Lustig attempted to \u201cmaximize\u201d the amount of attorney fees and costs recovered in the foreclosure case, he nevertheless advised Horn that he \u201cwould be responsible directly for all fees and costs that were incurred.\u201d According to Lustig, Horn owed him and his firm $25,223.86 in fees and costs for the foreclosure litigation; $4,261.50 in fees and costs for the eviction case; $2,996.50 in fees and costs for the earnest money investigation; and $1,011.82 in fees and costs for the broker\u2019s license investigation. In all, Lustig claimed $33,493.68 in fees and costs, exclusive of any interest or \u201ccollection\u201d fees and costs.\nDisputing the legal fees billed by Lustig, Horn claimed that, although he approved of Lustig\u2019s actions at the time, he was unaware of the increasing fees and costs. He further testified that Lustig had promised to limit his fees and costs to the amount of attorney fees awarded by the circuit court in the foreclosure case. Although Horn stipulated at trial that he had signed the retainer agreement and was not incompetent at the time, he testified that Lustig never explained that document to him and was not present when Horn signed it. Horn further denied that it was his intention to \u201cgo after\u201d Bayzaee\u2019s broker\u2019s license or to file an injunction in the eviction case; he admitted, however, that he had agreed with Lustig when Lustig explained the courses of action to be taken.\nAfter hearing testimony and reviewing the numerous documents admitted, the circuit court found that the retainer agreement was \u201cunambiguous and clear\u201d and, by failing to pay his bills, Horn had breached that contract. The court then reviewed and adopted Judge Kinnaird\u2019s findings as to Lustig\u2019s fees in the foreclosure case, also finding \u201cthe fees and costs charged to be excessive and unwarranted.\u201d Nevertheless, after determining that Lustig had performed further necessary and reasonable services for Horn beyond those compensated by Judge Kinnaird, the court awarded Lustig $1,740 in additional fees for later work performed in the mortgage foreclosure litigation.\nFinding that the retainer agreement applied only in the foreclosure case, the court, sua sponte, applied principles of quantum meruit to the eviction representation, the broker\u2019s license investigation and the earnest money investigation. After a review of Lustig\u2019s billing statements, the court awarded Lustig $1,040 for work performed on the earnest money investigation; $1,984 for work performed in the eviction case; and $837.70 for costs. The court further awarded Lustig $400 for \u201cminimal\u201d work done on the broker\u2019s license investigation, noting that Horn had not received a benefit from that work, but stating, \u201cthis Court wishes to thank Mr. Lustig for bringing to the attention of the State the malfeasance of a real estate broker [and, as] such, therefore, the Court is giving [Lustig] 2.5 hours at $160 an hour for such service.\u201d\nThe circuit court refused to award interest, but did award Lustig \u201ccollection\u201d fees of $4,625 and \u201ccollection\u201d costs of $405, incurred as a result of Lustig\u2019s attempts to collect the $1,740.00 in additional fees awarded in the mortgage foreclosure litigation. These \u201ccollection\u201d fees and \u201ccollection\u201d costs were payable pursuant to paragraph 3 of the retainer agreement. In total, the court awarded fees and costs of $24,410.03; subtracting the $18,000 payment, the court entered a judgment for Lustig in the amount of $6,410.03. The court also summarily denied Horn\u2019s counterclaim.\nHorn\u2019s principal argument on appeal is that paragraph 3 of the retainer agreement, allowing Lustig to seek additional attorney fees and costs incurred in the collection of Horn\u2019s debt, should not be enforced. In particular, he asserts that paragraph 3 is \u201cvoid per se\u201d because it is \u201coppressive, contrary to the Rules of Professional Responsibility and against public policy.\u201d He claims that it \u201csets up an automatic conflict between the attorney and client,\u201d because it contemplates an adversarial proceeding between them. Horn likewise asserts that this paragraph does not benefit the client but confers only added, unnecessary rights upon the attorney and also could \u201cbe used as a weapon by a lawyer against the client to dissuade the client from contesting the fees sought by the lawyer.\u201d Although Horn does not dispute the fact that Lustig otherwise properly represented him, he takes the position that, because of Lustig\u2019s alleged breach of his fiduciary duty, he should not be made to pay any of Lustig\u2019s fees.\nLustig counters that the retainer agreement properly allows for the recovery of attorney fees in the event of a breach, likening it to many other business contracts. See, e.g., Midwest Concrete Products Co. v. La Salle National Bank, 94 Ill. App. 3d 394, 418 N.E.2d 988 (1981). Lustig also responds that the record in the instant case reflects no improper conduct on his part which would render his representation of Horn suspect or bar recovery of fees earned.\nA fiduciary relationship exists as a matter of law between an attorney and his or her client and it is incumbent upon the attorney to exercise the utmost good faith and fairness in dealing with the client. Coughlin v. SeRine, 154 Ill. App. 3d 510, 515, 507 N.E.2d 505 (1987); Durr v. Beatty, 142 Ill. App. 3d 443, 449, 491 N.E.2d 902 (1986). Particular attention will be given to contracts made or changed after the relationship of attorney and client has been established. Durr, 142 Ill. App. 3d at 449. A presumption of undue influence arises when an attorney enters into a transaction with his client during the existence of the fiduciary relationship. Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983). As a matter of public policy, once raised, a presumption of undue influence must be rebutted by the attorney by \u201cclear and convincing\u201d evidence. Franciscan Sisters Health Care Corp., 95 Ill. 2d at 464.\nHere, the evidence presented established that Lustig clearly had undertaken Horn\u2019s representation shortly before January 19, 1996, the date they entered into the retainer agreement. Lustig himself testified, \u201c[a]t some point after we had commenced representation *** I confronted Mr. Horn, told him that without a personal guaranty [from Israel] that I would require him to sign a retainer agreement and to pay the fees as they came due. He ultimately agreed to that. We prepared a retainer agreement for Mr. Horn. I reviewed it with him, he signed it, and we commenced our representation.\u201d Moreover, one of Lustig\u2019s billing invoices, dated February 9, 1996, charged Horn for \u201c5.10\u201d hours for work (all occurring on or before January 19, 1996). According to Lustig\u2019s own invoice, on January 14, 1996, he \u201cconference[d] with client at home in evening to discuss case\u201d for one hour, but did not charge Horn for that time. That same billing invoice reflects that Lustig charged Horn for two hours of the following work performed on January 16, 1996: \u201cConference with client to discuss case. Open file. Prepare memorandum outlining case.\u201d The billing invoice also indicated that Lustig billed Horn for \u201c.30\u201d hour on January 18, 1996 for the following work: \u201cTeleconference with atty [sic] Berg who called but pleaded ignorance of facts. He will contact his client and call tomorrow. Teleconference with CT&T release dept [sic] to put Trust Deed on Hot List.\u201d Lastly, that billing statement reflects that Lustig billed Horn for \u201c1.8\u201d hours of work on January 19, 1996: \u201cTeleconference with CT&T, client and opposing counsel. Prepared correspondence to CT&T advising of loss of note. Prepare correspondence to Alan with guaarnty [sic]. Multiple teleconferences with Chicago Title regarding tract search, Minutes of Foreclosure, etc.\u201d\nThe foregoing, in conjunction with Horn\u2019s repeated protestations concerning the unfairness of the agreement and regarding Lustig\u2019s \u201coppressive\u201d conduct, was sufficient to raise a presumption of undue influence in this case. To rebut such an inference, Lustig was required to present some evidence indicating that (1) he made a full and fair disclosure to Horn of all the material facts affecting the transaction and (2) the transaction was fair. Durr, 142 Ill. App. 3d at 450. Here, there is scant evidence that Lustig explained the details and implications of paragraph 3 to Horn. Moreover, the content of paragraph 3 cannot be viewed as \u201cfair\u201d to Horn.\nAn attorney should not place himself in the position where he may be required to choose between conflicting duties or where he must reconcile conflicting interests rather than protect fully the rights of his client. See Freiders v. Dayton, 61 Ill. App. 3d 873, 883-84 n.1, 378 N.E.2d 1191 (1978); see also 134 Ill. 2d R. 1.7. In the instant case, paragraph 3 of the retainer agreement anticipates suit against and recovery of additional fees from a client should that client fail to pay the bill within the time required. As evidenced from Lustig\u2019s conduct, paragraph 3 gives rise to substantial fees for vigorous prosecution of the attorney\u2019s own client. As Horn aptly points out, this provision very well could be used to silence a client\u2019s complaint about fees, resulting from the client\u2019s fear of his attorney\u2019s retaliation for nonpayment of even unreasonable fees. Such a provision is not necessary to protect the attorney\u2019s interests; on the contrary, it merely serves to silence a client should that client protest the amount billed.\nHere, such a provision clearly is unfair and potentially violative of the Rules of Professional Conduct barring an attorney from representing a client if such representation may be limited by the attorney\u2019s own interests. See, e.g., In re Marriage of Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242 (1992); 134 Ill. 2d Rs. 1.5, 1.6. Although not every violation of ethical rules will deem an attorney\u2019s contract with his client voidable per se, conduct which violates both professional ethics and contract law is not placed beyond the reach of contract law because it violates professional standards. See Maksym v. Loesch, 937 P.2d 1237, 1244 (7th Cir. 1991). Accordingly, the circuit court\u2019s award of attorney fees and costs incurred in \u201ccollection\u201d by Lustig of Horn\u2019s unpaid bill is reversed.\nHorn also maintains that Lustig\u2019s right to recover all other fees earned in representing him, in quantum meruit, is barred by Lustig\u2019s improper and unethical conduct. Although complete denial of attorney fees for legal work tainted by unprofessional conduct may be deemed an appropriate sanction (see, e.g., Licciardi v. Collins, 180 Ill. App. 3d 1051, 1063, 536 N.E.2d 840 (1989)), such a sanction is not appropriate in the instant case.\nThe supreme court has exclusive and plenary jurisdiction over attorney disciplinary matters. In re Harris, 93 Ill. 2d 285, 443 N.E.2d 557 (1982). Courts other than the supreme court may adjudicate matters touching on attorney discipline only when acting as agents of the supreme court upon direct order of that court. Ettinger v. Rolewick, 140 Ill. App. 3d 295, 488 N.E.2d 598 (1986). Attorney disciplinary proceedings are conducted by Illinois Attorney Registration and Disciplinary Commission (ARDC) and are completely separate from the judicial proceedings in which the alleged attorney misconduct occurred; a denial of attorney Lustig\u2019s fees, imposed solely as a sanction for unprofessional conduct on his part, would constitute an impermissible infringement on the exclusive power of the supreme court, acting through the ARDC, to adjudicate disciplinary matters. See Reed Yates Farms, Inc. v. Yates, 172 Ill. App. 3d 519, 526 N.E.2d 1115 (1988).\nAn attorney\u2019s unprofessional conduct is relevant to the issues involved in both a disciplinary proceeding and in defense of an attorney\u2019s suit for collection of fees. See Coughlin, 154 Ill. App. 3d at 514, quoting Rogers v. Robson, Master, Ryan, Brumund & Belom, 74 Ill. App. 3d 467, 472-73 (1979) (\u201c \u2018Both malpractice actions and disciplinary proceedings involve conduct failing to adhere to certain minimum standards and we reject any suggestion that ethical standards are not relevant considerations in each\u2019 \u201d). Nevertheless, Lustig is entitled to those fees related to proper and necessary work he performed for the benefit of Horn, barring any unprofessional or unethical conduct during representation. Any work performed by Lustig \u201ccollecting\u201d his own fees from Horn certainly was not for Horn\u2019s benefit, and may not be recovered from Horn, notwithstanding the fact that Lustig is entitled to compensation for the other work performed.\nHorn stipulated that Lustig and his associates performed all the work stated and that the rates charged were reasonable. The only dispute at trial involved whether the work performed was \u201cnecessary.\u201d The circuit court determined that some of the charges and fees resulting from Horn\u2019s representation were \u201cexcessive and unwarranted\u201d; accordingly, the court awarded Lustig compensation only for those fees and costs that the court found justified. The court\u2019s determination is entitled to deference and will not be reversed absent an abuse of discretion. Tampam, Inc. v. Property Tax Appeal Board, 208 Ill. App. 3d 127, 566 N.E.2d 905 (1991). No such abuse is apparent from the instant record.\nFinally, Horn raises for the first time in his reply brief the argument that Lustig\u2019s \u201cstate of mind\u201d is relevant to the issue of the forfeiture of all fees; for support he directs this court\u2019s attention to the myriad cases in which Lustig has sued his own clients for nonpayment of fees, revealing a consistent pattern and practice. Nevertheless, points raised and argued for the first time in a reply brief are waived (177 Ill. 2d R. 341(e)(7); Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 413-14, 566 N.E.2d 16 (1991)) and, therefore, will not be considered.\nIn sum, Lustig\u2019s recovery of reasonable fees and costs incurred in the able representation of Horn is allowed. Lustig\u2019s fees and costs incurred in collecting on his bills, however, must be denied in the instant case where such a request is premised upon a void provision of the retainer agreement. Accordingly, we reverse and remand for entry of judgment for Lustig in an amount not including the fees and costs incurred for \u201ccollection\u201d of Horn\u2019s debt to him.\nReversed and remanded with directions.\nTHEIS, P.J., and QUINN, J., concur.\nHorn\u2019s attorney for the sale of the building, Jerome Zelden, was referred to Horn by Bayzaee. Some, improprieties allegedly were committed by Zelden, including not putting in writing the \u201csell-back\u201d agreement, not giving Horn the earnest money and keeping the mortgage note. However, Zelden died sometime after the sale and his alleged improper conduct was never substantiated.\nNevertheless, Horn\u2019s eviction was \u201cdelayed\u201d for many months and he did not move out of his apartment until June 1996.\nAs a result of Lustig\u2019s investigation into, and reporting of, Bayzaee\u2019s misconduct, her broker\u2019s license was suspended and she was fined $5,000.\nIn the foreclosure case, Lustig filed a motion for attorney fees and attempted to collect fees for some of the peripheral legal work performed for Horn on the other issues, in order \u201cto maximize the award of attorneys\u2019 fees under the foreclosure case.\u201d However, Judge Dorothy Kinnaird, ruling in the foreclosure action, denied most of the fees and costs requested, finding them excessive and unrelated to the \u201cstraightforward\u201d foreclosure action. After thoroughly reviewing the fee petition in the foreclosure case, Judge Kinnaird awarded a total of $13,378.33 in attorney fees and costs (which was included in the $53,358.40 judgment amount).\nSince the filing of the complaint, Lustig\u2019s fees increased because he continued to bill Horn for his services related to the \u201ccollection\u201d of his unpaid fees. As of January 20, 1998, Lustig was billing Horn for $28,758.98 in fees and expenses. One of the latest bills sent, dated November 8, 1998, reflected a total due of $48,366.82, of which $18,000 had been paid, leaving a sum due of $30,366.82. This amount included fees and costs of $14,873.14 related solely to the \u201ccollection\u201d of Lustig\u2019s fees and costs.\nLustig also is demanding from Horn payment of the fees and costs expended in defending the instant appeal.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "John Bernard Cashion, of Chicago, for appellant.", "Sheldon M. Lustig, of Skokie, appellee pro se." ], "corrections": "", "head_matter": "SHELDON A. LUSTIG, d/b/a Lustig and Associates, Plaintiff-Appellee, v. ISAAC HORN, a/k/a Sam Horn, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201499\u20140965\nOpinion filed June 9, 2000.\n\u2014 Rehearing denied July 31, 2000.\nJohn Bernard Cashion, of Chicago, for appellant.\nSheldon M. Lustig, of Skokie, appellee pro se." }, "file_name": "0319-01", "first_page_order": 337, "last_page_order": 347 }