{ "id": 4270455, "name": "PAUL B. EPISCOPE, LTD., et al., Plaintiffs-Appellants, v. LAW OFFICES OF CAMPBELL AND DI VINCENZO et al., Defendants-Appellees", "name_abbreviation": "Paul B. Episcoped, Ltd. v. Law Offices of Campbell", "decision_date": "2007-02-13", "docket_number": "No. 1-05-2329", "first_page": "384", "last_page": "396", "citations": [ { "type": "official", "cite": "373 Ill. App. 3d 384" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "101 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160925 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/101/0400-01" ] }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "386" }, { "page": "386" }, { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "293 Ill. App. 3d 430", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847503 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0430-01" ] }, { "cite": "174 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223624 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "293-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0281-01" ] }, { "cite": "181 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821410 ], "year": 1998, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0460-01" ] }, { "cite": "356 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3748746 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0574-01" ] }, { "cite": "246 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388337 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0719-01" ] }, { "cite": "203 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799394 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0378-01" ] }, { "cite": "325 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570857 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "521" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0517-01" ] }, { "cite": "282 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159564 ], "year": 1996, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0322-01" ] }, { "cite": "141 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238241 ], "year": 1990, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0281-01" ] }, { "cite": "26 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5354419 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "291" }, { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0287-01" ] }, { "cite": "185 Ill. 2d 457", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121996 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "462" }, { "page": "462" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0457-01" ] }, { "cite": "20 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737470 ], "year": 1960, "pin_cites": [ { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0486-01" ] }, { "cite": "60 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416119 ], "year": 1975, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0432-01" ] }, { "cite": "306 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336059 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0131-01" ] }, { "cite": "156 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777563 ], "year": 1993, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0076-01" ] }, { "cite": "224 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252515 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "656" }, { "page": "656" }, { "page": "656" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0653-01" ] }, { "cite": "302 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352878 ], "year": 1999, "pin_cites": [ { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0951-01" ] }, { "cite": "199 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58897 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "284" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0281-01" ] }, { "cite": "81 C 419", "category": "reporters:state", "reporter": "Cow.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1063, "char_count": 30294, "ocr_confidence": 0.719, "pagerank": { "raw": 6.50460383311555e-08, "percentile": 0.4001034423242436 }, "sha256": "8dcbea91e1ae3017379f4f3276e4ecfa4b50c76a3c1b69335d8c7068bd451097", "simhash": "1:b9a760123a867e24", "word_count": 4969 }, "last_updated": "2023-07-14T16:22:18.400209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PAUL B. EPISCOPE, LTD., et al., Plaintiffs-Appellants, v. LAW OFFICES OF CAMPBELL AND DI VINCENZO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nThe plaintiffs, attorneys Paul Episcope and John Erb and the Episcope law firm, sued defendant attorneys to recover fees under a fee-splitting agreement. Plaintiffs allege in their complaint that their representation agreement (agreement) with defendants, Anthony Di Vincenzo and Richard Campbell and their law partnership, and the parties\u2019 mutual client, Havoco of America, Ltd. (client), applies to more than one case. The lawyers agreed in writing to represent the client jointly and orally to split fees in the client\u2019s federal lawsuit for fraud and conspiracy against Elmer Hill, Hill\u2019s company, Hilco, Inc. (Hilco), and Sumitomo Shoji American, Inc. (Sumitomo), and for breach of contract against Sumitomo. The damages claimed were the loss of a multimillion dollar contract. The parties had substituted for the original attorneys who had filed the action but the defendants actually handled the case.\nAfter a judgment of $15 million against Hill was upheld on appeal, defendants filed a separate lawsuit on behalf of the same client against the original attorneys for legal malpractice. Plaintiffs were not a party to the new representation agreement with the client as to the legal malpractice suit, which was settled for $8 million prior to trial. Plaintiffs claim that the original representation contract to represent the client (and split fees) extends to the legal malpractice action.\nIn defendants\u2019 first motion for summary judgment, defendants argued that the legal malpractice case was separate from the parties\u2019 fee agreement in the first case. That motion was denied. In a second motion for summary judgment, defendants contended that any representation agreement concerning the legal malpractice case is void and unenforceable under the fee-sharing requirements in Rules 1.5(f)(2) and (f)(3) of the Illinois Code of Professional Conduct. 134 Ill. 2d Rs. 1.5(f)(2), (f)(3). The trial court granted this motion. Plaintiffs appeal from the court\u2019s granting of summary judgment. For the reasons set forth below, we affirm.\nBACKGROUND\nIn June 1988, Barry Vandermeulen, the chairman of the board of Havoco, had concerns about his company\u2019s lawsuit for fraud, conspiracy and breach of contract and contacted his friend, plaintiff Episcope, for consultation. His original attorneys, Freeman, Alkins and Coleman (Freeman Firm), had filed the federal action in 1981 and had withdrawn from the case. Vandermeulen wanted plaintiffs Epis-cope and Erb to take the case over. Instead, Episcope recommended defendants Campbell and Di Vincenzo, who took over the case, and plaintiffs Episcope and Erb also filed their appearance at the direction of the client, but the legal work was performed only by Campbell and Di Vincenzo.\nThe parties and the client, by Vandermeulen, signed a joint representation agreement on July 5, 1988. The document was titled \u201cRepresentation Agreement.\u201d In the agreement it states: \u201cPaul B. Episcope, Ltd., and Campbell & Di Vincenzo agree to represent Hav-oco,\u201d and Havoco \u201cagrees to retain\u201d these same lawyers, \u201cthis being the complete agreement among them.\u201d\nThe representation agreement states nothing about how legal fees or the responsibilities for the performance of the legal services were divided between the lawyers. It provides' that, \u201cIn the event a monetary recovery is obtained by way of judgment, settlement or otherwise, Paul B. Episcope, Ltd., and Campbell & Di Vincenzo shall receive 33Vs% of the Net Recovery as a contingent fee. Net recovery is the total recovery, including any award of attorney\u2019s fees or expenses, less all expenses and disbursements that you [Havoco] have paid.\u201d\nThe caption of the agreement (at the left margin directly underneath the title) lists the \u201cClient\u201d and, under that, the \u201cMatter.\u201d The \u201cClient\u201d is \u201cHavoco of America, Ltd., a Delaware Corporation.\u201d The \u201cMatter\u201d is Havoco\u2019s federal case against Hill and Hilco: \u201cHavoco of America, Ltd. a Delaware Corporation v. Elmer C. Hill, Hilco, Inc., a Tennessee Corporation,\u201d and Sumitomo. After this follows the case number of the pending federal action, \u201cCivil Action No. 81 C 419.\u201d\nDefendants tried the case with a jury. In early 1989, before trial, the federal district court judge dismissed all of Havoco\u2019s tort claims against Sumitomo as barred by the statute of limitations and only the contract claim remained. The Freeman Firm had added Sumitomo as a party defendant in November 1981, which was barred by the statute of limitations. At trial, Hilco was granted a directed verdict in its favor, and the jury found in favor of Sumitomo on the contract claim. The jury did render a verdict for $15 million on the remaining tort claim against Hill personally.\nHill filed for bankruptcy prior to the Seventh Circuit affirming the judgment. The client was only able to collect $219,000 on the judgment. Defendants received a third of that amount for fees and paid Episcope a third of what they received under an oral understanding concerning their fee-splitting agreement.\nVandermeulen desired to file a legal malpractice action against the Freeman Firm for its failure to add Sumitomo as a party defendant within the statute of limitations. Initially he asked the parties to do so, but both defendants and plaintiffs declined. Plaintiffs claim they urged defendants to take the case and delivered them research on the issues. Plaintiffs were unable to show anything more that would indicate that they were representing the interests of the client.\nHowever, defendants did later accept the legal malpractice case. Plaintiffs claim they were \u201cunaware\u201d of the representation agreement in the legal malpractice case signed on February 2, 1993, and the fact that they were not included. Additionally, plaintiffs were unaware of a settlement proposal on September 8, 1993, and of the legal malpractice suit that was filed on November 10, 1993. On June 4, 1997, Erb telephoned Di Vincenzo to obtain an \u201cupdate\u201d and was told that the case was settled for $8 million in 1996. Di Vincenzo refused to discuss fee sharing.\nPlaintiffs then brought this action, alleging breach of a fiduciary duty and seeking a third of the fees received from the settlement. Their claim relies on the initial representation agreement. They claim it reflects the parties\u2019 joint undertaking of representation and fee sharing, consistent with an oral agreement. They claim that the legal malpractice case is part of the same representation as that contained in the original representation agreement, only directed against a different defendant and as a result the defendants have a duty to share the fees.\nDefendants in their motion for summary judgment argue the representation agreement of February 2, 1993, must be construed as a separate action. They further claim contracts, especially integrated contracts, are confined to their specific terms and point out that the initial agreement was specifically limited to the parties\u2019 representation of the client in Havoco v. Elmer Hill, Hilco, Inc., and Sumitomo, No. 81 C 419.\nThe plaintiffs advocate an expansive construction. They claim that the legal malpractice litigation was part of the \u201clegal dispute as a whole.\u201d As Episcope characterized it, the suit was just another way to collect the judgment in the underlying case. Plaintiffs argue the parties\u2019 oral understanding reflected this broader interpretation. The trial court denied the first motion for summary judgment without written comment.\nDefendants then brought their second motion for summary judgment relying on Rule 1.5(f) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.5(f)). In that motion they attacked the very validity of the written agreement of July 5, 1988. Rule 1.5(f) requires a lawyer dividing a fee with another lawyer from a different firm to have the client\u2019s signed, written consent to the other lawyer\u2019s employment. Defendants emphasized that under Rule 1.5(f)(2) the writing must disclose the basis for the division of fees, including the economic benefit to the other lawyer as a result of the division. Defendants also cited Rule 1.5(f)(3) that the writing must disclose the responsibility to be assumed by the attorney for the performance of the legal services.\nPlaintiffs responded that the signed writing is sufficient to prove their case, even under Rule 1.5(f), if supplemented with the oral agreement providing them with a third of the fees. They argue, alternatively, that the representation agreement could be read (excising the oral agreement) with implied joint ventures principles of equal profits, providing them a 50/50 split of fees. Thirdly, they advanced the claim there was a breach of duty in defendants\u2019 failure to include the prior oral understanding in the written agreement. Plaintiffs\u2019 counsel argues that the oral provision for the fees \u201cshould have been included by Mr. Di Vincenzo in the written agreement.\u201d Those arguments are contained in an affidavit in response to the second motion for summary judgment. In that affidavit plaintiffs aver that plaintiffs \u201cinadvertently overlooked the fact that a specific division of fees between the lawyers was not contained in the assessment.\u201d\nThe judge agreed with defendants. The court ruled that the representation agreement failed to comply with Rule 1.5(f). The judge found it disclosed nothing about the basis for the division of fees nor of the responsibility for legal services. The court stated: \u201cThe Agreement is clearly silent on the matters which subsections (2) and (3) of Rule 1.5(f) require to be in writing.\u201d The court declared the agreement void and unenforceable, granting summary judgment for defendants.\nPlaintiffs appeal. We affirm.\nANALYSIS\n\u201cSummary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002). We review the granting of a motion for summary judgment de novo. General Casualty, 199 Ill. 2d at 284.\n\u201cThe reviewing court must construe all evidence strictly against the movant and liberally in favor of the nonmoving party.\u201d Larry Karchmar, Ltd. v. Nevoral, 302 Ill. App. 3d 951, 956 (1999).\n\u201cOn appeal from a grant of summary judgment, a reviewing court\u2019s function is to determine whether the trial court properly concluded that there was no genuine issue of material fact, and if there was not, whether the judgment was correct as a matter of law.\u201d People ex rel. Burris v. Memorial Consultants, Inc., 224 Ill. App. 3d 653, 656 (1992). In other words, where no genuine issue of material fact exists, the reviewing court\u2019s sole function is to determine whether judgment for defendant was correct as a matter of law. Cates v. Cates, 156 Ill. 2d 76, 78 (1993).\n\u201cConstruing the language employed in a contract is a matter of law appropriate for summary judgment [citations], unless the contract is ambiguous.\u201d Memorial Consultants, 224 Ill. App. 3d at 656. \u201cWhether an ambiguity exists in a document is a question of law.\u201d Memorial Consultants, 224 Ill. App. 3d at 656. \u201cA contract is ambiguous if it is reasonably susceptible to more than one meaning [citation], but an ambiguity is not created merely because the parties disagree.\u201d Memorial Consultants, 224 Ill. App. 3d at 656.\nPlaintiffs claim that the defendants breached their fiduciary obligations of honesty, good faith and fair dealings arising out of a joint venture agreement with plaintiffs. The joint venture agreement that plaintiffs refer to is the written retainer agreement of July 5, 1988, signed by the parties and the client, and the subsequent oral agreement as to the splitting of the fees on the federal case referred to in that agreement. That agreement referred only to client Havoco\u2019s federal case number 81 C 419 against Elmer Hill, Hilco, Inc., and Sumitomo. This agreement does not mention a legal malpractice case against the Freeman Firm. It is plaintiffs\u2019 theory that a trier of fact could find from Erb\u2019s affidavit that an oral agreement to split fees between the parties existed prior to the written agreement of July 8, 1988, and that the defendants breached their fiduciary obligations of honesty, good faith, and fair dealings arising out of a joint venture in their failure to place that information in the agreement. It is this court\u2019s position that even if the fee-splitting provision was included in the July 5 agreement, it would not extend to the legal malpractice case because the agreement is not ambiguous and was limited to the federal lawsuit that was specified in the document.\nPlaintiffs further claim that the legal malpractice case was part of the agreement of July 5, because the agreement states:\n\u201cIn the event a monetary recovery is obtained by way of judgment, settlement, or otherwise, the parties shall receive 33Vs% of the net recovery as a contingent fee.\u201d\nPlaintiffs\u2019 theory is that \u201cotherwise\u201d widens the meaning of the recovery agreed upon to include a plaintiffs recovery from a lawyer who was negligent in pursuing recovery. Plaintiffs\u2019 second argument is also not persuasive.\nThe word \u201cotherwise\u201d does not have the expansive meaning claimed by plaintiffs. \u201cOther\u201d and \u201cotherwise\u201d are limited to the objects and persons that plaintiffs enumerated, according to ejusdem generis principles which means \u201cother such like things.\u201d E&E Hauling, Inc. v. Ryan, 306 Ill. App. 3d 131, 137 (1999). For the purposes of the ejusdem generis rule, \u201cother\u201d and \u201cotherwise\u201d are treated identically. E&E Hauling, Inc. v. Ryan, 306 Ill. App. 3d at 137.\nIn Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975), quoting People v. Capuzi, 20 Ill. 2d 486, 493-94 (1960), our Illinois Supreme Court stated:\n\u201c \u2018The doctrine of ejusdem generis is that where a statute or document specifically enumerates several classes of persons or things and immediately following, and classed with such enumeration, the clause embraces \u201cother\u201d persons or things, the word \u201cother\u201d will generally be read as \u201cother such like,\u201d so that the persons or things therein comprised may be read as ejusdem gene-ris \u201cwith,\u201d and not of a quality superior to or different from, those specifically enumerated.\u2019 \u201d\nThus, we must interpret \u201cotherwise\u201d in the initial agreement to mean that monetary recovery can occur by judgment, settlement, and by such other similar means as arbitration, mediation, or other alternative dispute resolutions. Since \u201cotherwise\u201d is not interpreted to extend to things of a different quality, it cannot apply to a different recovery when a written agreement limits itself to a single action, as it normally will not be expanded beyond its terms.\n\u201c \u2018[A]n agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it.\u2019 \u201d Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999), quoting Western Illinois Oil Co. v. Thompson, 26 Ill. 2d 287, 291 (1962). \u201c \u2018It speaks for itself, and the intention with which it was executed must be determined from the language used.\u2019 \u201d Air Safety, 185 Ill. 2d at 462, quoting Thompson, 26 Ill. 2d at 291. \u201c \u2018It is not changed by extrinsic evidence.\u2019 \u201d Air Safety, 185 Ill. 2d at 462, quoting Thompson, 26 Ill. 2d at 291. If no ambiguity exists in the writing, the parties\u2019 intent must be derived by the trial court from the writing itself, as a matter of law. Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288 (1990). Any ambiguity claimed has to be asserted reasonably and plausibly. The interpretation of the party contending for ambiguity needs to be equally plausible to the construction of the party arguing the contract is unambiguous. Krantz v. Chessick, 282 Ill. App. 3d 322, 329 (1996). There is no plausible ambiguity in the representative agreement when it applies to a specific case filed in the federal court.\nWhere a document is a fully integrated writing, the extrinsic or parole evidence rule is not available to vary or contradict the writing. Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 521 (2001). The meaning of the integrated document (as it expresses the intentions of the parties exclusively and is facially unambiguous) has to he confined to the \u201cfour corners\u201d of the document. Eichengreen, 325 Ill. App. 3d at 517. The agreement as an integrated writing here does not include the legal malpractice suit.\nHowever, even if this court found that there was a question of fact for the trier of fact to determine as to whether there was a valid joint venture agreement among the parties concerning the legal malpractice case, the agreement would still be void and unenforceable as a matter of law under Rule 1.5(f) of the Illinois Rules of Professional Conduct, which is the primary basis of defendants\u2019 motion for summary judgment and the subject of this appeal. At the time of the execution of the agreement of July 5, 1988, the relevant provision was Disciplinary Rule 2 \u2014 107(a)(1), which is, for all practical purposes, identical to Rule 1.5(f), which states:\n\u201c(f) *** [A] lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm, unless the client consents to employment of the other lawyer by signing a writing which discloses:\n(1) that a division of fees will be made;\n(2) the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division; and\n(3) the responsibility to be assumed by the other lawyer for performance of the legal services in question.\u201d 134 Ill. 2d R. 1.5(f).\nDefendants argue that the agreement claimed by plaintiffs violates Rule 1.5(f) in that it fails to set forth the basis for a division of fees between the two firms and the responsibilities to be assumed by the parties as to the performance of legal services. This court agrees.\nAny agreement claimed by plaintiffs is silent on the matters that subsections (2) and (3) of Rule 1.5(f) require to be in writing.\nIn In re Storment, 203 Ill. 2d 378 (2002), our Illinois Supreme Court recognized the importance of the writing requirements imposed by Rule 1.5(f) when it stated:\n\u201cThe writing must not only authorize a division of fees, but also must set out the bases for the division, including the respective responsibility to be assumed and economic benefit to be received by the other lawyer. The requirement of a writing ensures that the scope and terms of each lawyer\u2019s representation are defined, thus preventing or minimizing uncertainties and disputes. [The client\u2019s] general understanding that both respondent and Rosenblum were to be compensated for their services does not fulfill the rule\u2019s mandatory writing requirement. For this reason, we cannot agree with the Board\u2019s assessment of respondent\u2019s violation of Rule 1.5(f) as a mere technicality.\u201d In re Storment, 203 Ill. 2d at 398.\nPlaintiffs argue that their action for breach of a fiduciary duty under the facts of this case does not require compliance with Rule 1.5(f).\nThe plaintiffs rely on Holstein v. Grossman, 246 Ill. App. 3d 719 (1993), to support their position. The complaints in both the case at bar and Holstein started out as complaints in chancery for an accounting. Holstein\u2019s complaint had a count based on breach of contract and a count based on breach of a fiduciary duty of loyalty and good faith. Both counts were based on a joint venture. The case at bar contained only the theory of breach of a fiduciary duty based on a joint venture. The applicable supreme court rule in both cases was Supreme Court Rule 2 \u2014 107 (107 Ill. 2d R. 2 \u2014 107).\nIn Holstein the plaintiff-attorney allegedly entered an oral fee-referral agreement with defendants. Plaintiff claimed that the receiving attorney induced him into making the referrals. Under the claimed agreement, plaintiff was to refer personal injury cases to defendants in exchange for a one-half share of any attorney fees that defendants receive on the cases. Defendants would primarily pursue settlement or litigation of the clients\u2019 claims. Defendants would assume responsibility for the referred clients as if they were a partner of plaintiff and would prepare a written representation agreement that would provide a written disclosure of the forwarding fee agreement between the lawyers in accordance with Supreme Court Rule 2 \u2014 107, and no fees charged would exceed a reasonable fee. Plaintiff subsequently drafted a model attorney-client contract that he tendered to defendants which plaintiff claimed defendants agreed to use. Defendants never used this agreement, or any written agreement to comply with Supreme Court Rule 2 \u2014 107, and paid plaintiff in 5 out of 10 referred cases.\nPlaintiff filed suit and defendants moved for summary judgment claiming any agreement between the parties was void and unenforceable in violation of public policy as set forth in Supreme Court Rule 2 \u2014 107. The trial court granted summary judgment, and this court affirmed the trial court based on the contract count holding that by allowing plaintiff to obtain a fee in such instance would violate public policy. As to the count for breach of fiduciary duties of loyalty and good faith, this court reversed on only one of the referral cases carving out a narrow exception to Rule 2 \u2014 107 in finding that defendants breached their fiduciary duties of loyalty and good faith by their failure to present the model agreement to the client for his approval.\nThe court stated:\n\u201cIt is clear that Illinois public policy cannot endorse defendants\u2019 alleged misconduct in this case. Receiving attorneys cannot be allowed to induce a referring attorney to make a referral under the belief that the receiving attorney will obtain Rule 2 \u2014 107\u2019s signed writing requirement. Clearly, the profession will be served if attorneys are bound to their word.\u201d Holstein, 246 Ill. App. 3d at 740.\nIn this narrow exception, this court found that Rule 2 \u2014 107 did not require the referring attorney to obtain the signed writing containing the necessary disclosures prior to the referral, and that the alleged agreement envisioned compliance with Rule 2 \u2014 107. However, this court refused to enforce the alleged fee-sharing agreement, holding that public policy dictated that a fee-sharing agreement was not valid unless the referred client consented in writing. This court\u2019s decision concluded that there was a valid factual issue for the trier of fact to decide as to whether defendants breached their fiduciary duty by their failure to present the agreement to the client for his approval.\nThe facts in the case at bar do not fit into the narrow exception promulgated by Holstein. Here, it is plaintiffs\u2019 claim that the original retainer agreement and joint venture arrangement extends to the legal malpractice case. We are dealing with one client, who does not support plaintiffs\u2019 position, and there is no claim that the receiving attorney induced the referring attorney to make the referral. The plaintiffs were given the opportunity to handle the legal malpractice claim and refused. Their only involvement in that process was their unilateral preparation of some research that they provided to defendants. The referral was not made on the legal malpractice case; it was made on a previous specific pending case in the federal district court.\nThis court ruled that an oral joint venture fee-sharing agreement was invalid and unenforceable when it did not comply with the disclosure requirements of Rule 1.5(f) in Thompson v. Hiter, 356 Ill. App. 3d 574 (2005). This court, in affirming the trial court, stated, \u201c[t]he contingent fee agreement in this case does not disclose the terms of the oral fee-sharing arrangement of the co-venturers and hence does not comply with the disclosure requirements of Rule 1.5(f), which must be strictly enforced.\u201d Thompson, 356 Ill. App. 3d at 590.\nPlaintiffs further argue that the standards for enforcing Rule 1.5(f)\u2019s predecessor, Rule 2 \u2014 107(a)(1) were less strict and should be controlling in this case. Plaintiffs argue that the more lenient standards apply, since the predecessor rule was in effect at the time of the events in question. Plaintiffs are, in other words, arguing that Rule 1.5(f), and its judicial interpretations, should not be applied retroactively.\nWe disagree. This very argument was rejected in Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 481 (1998), when our Illinois Supreme Court ruled that a supreme court rule is applied retroactively, even though it was different from its predecessor rule, in reliance on the maxim that the law cannot enforce a contract it prohibits based on public policy.\nPlaintiffs further claim for the first time in their motion for reconsideration that an action for breach of an implied fiduciary relationship is not governed by the law of contract even though it may arise in the context of a written agreement. Armstrong v. Guigler, 174 Ill. 2d 281 (1996). Our Illinois Supreme Court has held that the duty can arise by legal implication from the parties\u2019 relationship under a written agreement. Armstrong, 174 Ill. 2d at 293-94. We agree. The trial court must look to the terms of the instrument (agreement) itself for the determination of duty. Martin v. Rockford Trust Co., 281Ill. App. 441, 445 (1935). However, under the case at bar this court cannot find any evidence of an implied fiduciary duty or any evidence from the parties\u2019 relationship under the written agreement where a duty could arise by legal implication from the parties\u2019 relationship.\nThe plaintiffs further claim that the defendants\u2019 failure to comply with Supreme Court Rule 303(a)(3) by failing to file a cross-appeal from the denial of their first summary judgment motion waived any argument in this appeal that the representation agreement of July 5, 1988, is separate from any follow-up agreement made by the parties. Supreme Court Rule 303(a)(3) (210 Ill. 2d R. 303(a)(3)) provides that a party has 10 days after being served with a notice of appeal, or 30 days from the entry of the judgment or order being appealed from, or 30 days from the entry of the order disposing of the last pending post-judgment motion, whichever is later, to join an appeal separately or by cross-appeal. This argument is also not persuasive.\nIn a case similar to the case at bar, this court rejected the same argument raised by plaintiffs here. Solimini v. Thomas, 293 Ill. App. 3d 430 (1997). In the Solimini case, this court noted that while the trial court had rejected one argument advanced by defendants, it had accepted another argument and on that basis had granted judgment for defendants. Plaintiffs contended that because defendants had failed to cross-appeal, they are barred from making an argument based on the rejected argument.\nThis court, citing our Illinois Supreme Court in Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 386 (1983), held that because defendants had obtained by judgment all that had been asked for in the trial court, a cross-appeal was not only unnecessary, but was not permitted.\nOur Illinois Supreme Court stated in Material Service:\n\u201cA party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment.\u201d Material Service, 98 Ill. 2d at 386.\nOur supreme court reversed the appellate court\u2019s refusal to consider a ground rejected by the trial court:\n\u201cFindings of the trial court adverse to the appellee do not require the appellee\u2019s cross-appeal if the judgment of the trial court was not at least in part against the appellee.\u201d Material Service, 98 Ill. 2d at 387.\nIn the case at bar, the defendants obtained all that they had requested in the trial court summary judgment in their favor and dismissal with prejudice. As Justice Daniel Ward noted in Material Service, \u201c[i]t is the judgment and not what else may have been said by the lower court that is on appeal to a court of review.\u201d Material Service, 98 Ill. 2d at 387. Plaintiffs\u2019 legal reasoning for their argument is based on Abdul-Karim v. First Federal Savings & Loan Ass\u2019n of Champaign, 101 Ill. 2d 400 (1984).\nThe Abdul-Karim case is distinguishable from the case at bar. In that case, the defendant prevailed on the merits in the trial court, but a judgment was entered against defendant on its claim for attorney fees. In that case the defendant had not obtained all that had been asked for in the trial court. As a result, our Illinois Supreme Court held that the defendants\u2019 failure to cross-appeal that portion of the final judgment denying attorney fees barred consideration of the attorneys\u2019 fees claim on appeal. In the case at bar, the defendants obtained all the relief requested in the trial court and therefore were not required to cross-appeal.\nAttorneys should act reasonably toward each other. While this court takes note of plaintiffs\u2019 arguments founded in equity that defendants should have paid plaintiffs a portion of the fee, we cannot find a legal basis on which to require the defendants to do so.\nWe conclude as a matter of law that the malpractice action is a matter separate from that included in the original representation agreement and that defendants have not waived that argument. We conclude as well that any client representation agreement that plaintiffs alleged in this case would be in violation of the requirements of Rules 1.5(f)(2) and (f)(3), and the trial judge was correct to so rule as a matter of law.\nCONCLUSION\nFor the reasons set forth above, we affirm the circuit court\u2019s granting of summary judgment in favor of defendants.\nAffirmed.\nCAHILL and GARCIA, JJ., concur.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Michael J. Polelle and John N. Hourihane, both of Chicago, for appellants.", "Freeman, Freeman & Salzman, P.C., of Chicago (Lee A. Freeman, Jr., of counsel), for appellees." ], "corrections": "", "head_matter": "PAUL B. EPISCOPE, LTD., et al., Plaintiffs-Appellants, v. LAW OFFICES OF CAMPBELL AND DI VINCENZO et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1-05-2329\nOpinion filed February 13, 2007.\nRehearing denied May 18, 2007.\nModified opinion filed May 29, 2007.\nMichael J. Polelle and John N. Hourihane, both of Chicago, for appellants.\nFreeman, Freeman & Salzman, P.C., of Chicago (Lee A. Freeman, Jr., of counsel), for appellees." }, "file_name": "0384-01", "first_page_order": 402, "last_page_order": 414 }