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750 ILCS 5/508
(750 ILCS 5/508)
(from Ch. 40, par. 508)
Attorney's fees; client's rights and responsibilities respecting
(a) The court from time to time, after due notice and hearing, and after
considering the financial resources of the parties, may order any party to
pay a reasonable amount for his own or the other party's costs and
attorney's fees. Interim attorney's fees and costs may be awarded from the
opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501 and in any other proceeding under this subsection. At the
conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney's fees and costs may be
awarded from the opposing party in accordance with subsection (j) of Section
503 and in any other proceeding under this subsection. Fees and costs may be awarded in any proceeding to counsel from a former client in
accordance with subsection (c) of
Awards may be made in connection with the following:
(1) The maintenance or defense of any proceeding
(2) The enforcement or modification of any order or
(3) The defense of an appeal of any order or judgment
under this Act, including the defense of appeals of post-judgment orders.
(3.1) The prosecution of any claim on appeal (if the
prosecuting party has substantially prevailed).
(4) The maintenance or defense of a petition brought
under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act. Fees incurred with respect to motions under Section 2-1401 of the Code of Civil Procedure may be granted only to the party who substantially prevails.
(5) The costs and legal services of an attorney
rendered in preparation of the commencement of the proceeding brought under this Act.
(6) Ancillary litigation incident to, or reasonably
connected with, a proceeding under this Act.
(7) Costs and attorney's fees incurred in an action
under the Hague Convention on the Civil Aspects of International Child Abduction.
All petitions for or relating to interim fees and costs under this subsection shall be accompanied by an affidavit as to the factual basis for the relief requested and all hearings relative to any such petition shall be scheduled expeditiously by the court. All provisions for contribution under this subsection shall also be subject to paragraphs (3), (4), and (5) of subsection (j) of Section 503.
The court may order that the award of attorney's fees and costs
(including an interim or contribution award) shall be paid directly to the
attorney, who may enforce the order in his or her name, or that it shall be
the appropriate party. Judgment may be entered and enforcement had
accordingly. Except as otherwise provided in subdivision (e)(1) of this
Section, subsection (c) of this Section
is exclusive as to the right of any counsel
former counsel) of record to petition a court for an award and judgment for
final fees and costs during the pendency of a proceeding under this Act.
(a-5) A petition for temporary attorney's fees in a post-judgment case may be heard on a non-evidentiary,
(b) In every proceeding for the enforcement of an order or judgment
when the court finds that the failure to comply with the order or judgment
was without compelling cause or justification, the court shall order the
whom the proceeding is brought to pay promptly the costs and reasonable
fees of the prevailing party.
If non-compliance is with respect to a discovery order, the non-compliance is
presumptively without compelling cause or justification, and the presumption
may only be rebutted by clear and convincing evidence. If at any time a court
finds that a hearing under this Act was precipitated or conducted for any
improper purpose, the court shall allocate fees and costs of all parties for
the hearing to the party or counsel found to have acted improperly. Improper
purposes include, but are not limited to, harassment, unnecessary
delay, or other acts needlessly increasing the cost of litigation.
(c) Final hearings for attorney's fees and costs against an attorney's own
client, pursuant to a Petition for Setting Final Fees and Costs of either a
counsel or a client, shall be governed by the following:
(1) No petition of a counsel of record may be filed
against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel. On receipt of a petition of a client under this subsection (c), the counsel of record shall promptly file a motion for leave to withdraw as counsel. If the client and the counsel of record agree, however, a hearing on the motion for leave to withdraw as counsel filed pursuant to this subdivision (c)(1) may be deferred until completion of any alternative dispute resolution procedure under subdivision (c)(4). As to any Petition for Setting Final Fees and Costs against a client or counsel over whom the court has not obtained jurisdiction, a separate summons shall issue. Whenever a separate summons is not required, original notice as to a Petition for Setting Final Fees and Costs may be given, and documents served, in accordance with Illinois Supreme Court Rules 11 and 12.
(2) No final hearing under this subsection (c) is
permitted unless: (i) the counsel and the client had entered into a written engagement agreement at the time the client retained the counsel (or reasonably soon thereafter) and the agreement meets the requirements of subsection (f); (ii) the written engagement agreement is attached to an affidavit of counsel that is filed with the petition or with the counsel's response to a client's petition; (iii) judgment in any contribution hearing on behalf of the client has been entered or the right to a contribution hearing under subsection (j) of Section 503 has been waived; (iv) the counsel has withdrawn as counsel of record; and (v) the petition seeks adjudication of all unresolved claims for fees and costs between the counsel and the client. Irrespective of a Petition for Setting Final Fees and Costs being heard in conjunction with an original proceeding under this Act, the relief requested under a Petition for Setting Final Fees and Costs constitutes a distinct cause of action. A pending but undetermined Petition for Setting Final Fees and Costs shall not affect appealability or enforceability of any judgment or other adjudication in the original proceeding.
(3) The determination of reasonable attorney's fees
and costs either under this subsection (c), whether initiated by a counsel or a client, or in an independent proceeding for services within the scope of subdivisions (1) through (5) of subsection (a), is within the sound discretion of the trial court. The court shall first consider the written engagement agreement and, if the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms, subject to the further requirements of this subdivision (c)(3). Before ordering enforcement, however, the court shall consider the performance pursuant to the contract. Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary. Quantum meruit principles shall govern any award for legal services performed that is not based on the terms of the written engagement agreement (except that, if a court expressly finds in a particular case that aggregate billings to a client were unconscionably excessive, the court in its discretion may reduce the award otherwise determined appropriate or deny fees altogether).
(4) No final hearing under this subsection (c) is
permitted unless any controversy over fees and costs (that is not otherwise subject to some form of alternative dispute resolution) has first been submitted to mediation, arbitration, or any other court approved alternative dispute resolution procedure, except as follows:
(A) In any circuit court for a single county with
a population in excess of 1,000,000, the requirement of the controversy being submitted to an alternative dispute resolution procedure is mandatory unless the client and the counsel both affirmatively opt out of such procedures; or
(B) In any other circuit court, the requirement
of the controversy being submitted to an alternative dispute resolution procedure is mandatory only if neither the client nor the counsel affirmatively opts out of such procedures.
After completion of any such procedure (or after one
or both sides has opted out of such procedures), if the dispute is unresolved, any pending motion for leave to withdraw as counsel shall be promptly granted and a final hearing under this subsection (c) shall be expeditiously set and completed.
(5) A petition (or a praecipe for fee hearing without
the petition) shall be filed no later than the end of the period in which it is permissible to file a motion pursuant to Section 2-1203 of the Code of Civil Procedure. A praecipe for fee hearing shall be dismissed if a Petition for Setting Final Fees and Costs is not filed within 60 days after the filing of the praecipe. A counsel who becomes a party by filing a Petition for Setting Final Fees and Costs, or as a result of the client filing a Petition for Setting Final Fees and Costs, shall not be entitled to exercise the right to a substitution of a judge without cause under subdivision (a)(2) of Section 2-1001 of the Code of Civil Procedure. Each of the foregoing deadlines for the filing of a praecipe or a petition shall be:
(A) tolled if a motion is filed under Section 2-1203
of the Code of Civil Procedure, in which instance a petition (or a praecipe) shall be filed no later than 30 days following disposition of all Section 2-1203 motions; or
(B) tolled if a notice of appeal is filed, in which
instance a petition (or praecipe) shall be filed no later than 30 days following the date jurisdiction on the issue appealed is returned to the trial court.
If a praecipe has been timely filed, then by timely filed written stipulation between counsel and client (or former client), the deadline for the filing of a petition may be extended for a period of up to one year.
(d) A consent judgment, in favor of a current counsel of record against his
or her own client for a specific amount in a marital settlement agreement,
dissolution judgment, or any other instrument involving the other litigant, is
prohibited. A consent judgment between client and counsel, however, is
permissible if it is entered pursuant to a verified petition for entry of
consent judgment, supported by an affidavit of the counsel of record that
includes the counsel's representation that the client has been provided an itemization of the billing or billings to the client, detailing
hourly costs, time spent, and tasks performed, and by an affidavit of the
client acknowledging receipt of that documentation, awareness
of the right to a hearing, the right to be represented by counsel (other than
counsel to whom the consent judgment is in favor), and the right to be present
the time of presentation of the petition, and agreement to the terms of the
judgment. The petition may be filed at any time during which it is permissible
for counsel of record to file a petition (or a praecipe) for a final fee
hearing, except that no such petition for entry of consent judgment may be
filed before adjudication (or waiver) of the client's right to contribution
under subsection (j) of Section 503 or filed after the filing of a
petition (or a praecipe) by counsel of record for a fee hearing under
subsection (c) if the petition (or praecipe) remains pending. No consent
security arrangement between a client and a counsel of record, pursuant to
which assets of a client are collateralized to secure payment of legal fees or
costs, is permissible unless approved in advance by the court as being
reasonable under the circumstances.
(e) Counsel may pursue an award and judgment against a former client for
fees and costs in an independent proceeding in the following circumstances:
(1) While a case under this Act is still pending, a
former counsel may pursue such an award and judgment at any time subsequent to 90 days after the entry of an order granting counsel leave to withdraw; and
(2) After the close of the period during which a
petition (or praecipe) may be filed under subdivision (c)(5), if no such petition (or praecipe) for the counsel remains pending, any counsel or former counsel may pursue such an award and judgment in an independent proceeding.
In an independent proceeding, the prior applicability of this Section
shall in no way be deemed to have diminished any other right of any counsel (or
former counsel) to pursue an award and judgment for legal fees and costs on the
basis of remedies that may otherwise exist under applicable law; and the limitations period for breach of contract shall apply. In an
independent proceeding under subdivision (e)(1) in which the former counsel had
represented a former client in a dissolution case that is still pending, the former
client may bring
in his or her spouse as a third-party defendant, provided on or before the
final date for filing a petition (or praecipe) under subsection (c), the party
files an appropriate third-party complaint under Section 2-406 of the Code of
Civil Procedure. In any such case, any judgment later obtained by the
former counsel shall be against both spouses or ex-spouses, jointly and
severally (except that, if a hearing under subsection (j) of Section 503 has
already been concluded and the court hearing the contribution issue has imposed
a percentage allocation between the parties as to
fees and costs otherwise being adjudicated in the independent proceeding, the
shall be applied without deviation by the court in the independent proceeding
and a separate judgment shall be entered against each spouse for the
amount). After the period for the commencement of a proceeding under
subsection (c), the provisions of this Section (other than the standard set
forth in subdivision (c)(3) and the terms respecting consent security
arrangements in subsection (d) of this Section 508) shall be inapplicable.
The changes made by this amendatory Act of the 94th General Assembly are declarative of existing law.
(f) Unless the Supreme Court by rule addresses the matters set out in this
subsection (f), a written engagement agreement within the scope
of subdivision (c)(2) shall have appended to it verbatim the following
"STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement agreement, prepared
by the counsel, shall clearly address the objectives of representation and
detail the fee arrangement, including all material terms. If fees are to be
based on criteria apart from, or in addition to, hourly rates, such criteria
(e.g., unique time demands and/or utilization of unique expertise) shall be
delineated. The client shall receive a copy of the written engagement
agreement and any additional clarification requested and is advised not to
sign any such agreement which the client finds to be unsatisfactory or does
(2) REPRESENTATION. Representation will commence upon the signing of the
written engagement agreement. The counsel will provide competent
representation, which requires legal knowledge, skill, thoroughness and
preparation to handle those matters set forth in the written engagement
agreement. Once employed, the counsel will act with reasonable diligence and
promptness, as well as use his best efforts on behalf of the client, but he
cannot guarantee results. The counsel will abide by the client's decision
concerning the objectives of representation, including whether or not to accept
an offer of settlement, and will endeavor to explain any matter to the extent
reasonably necessary to permit the client to make informed decisions regarding
representation. During the course of representation and afterwards, the
may not use or reveal a client's confidence or secrets, except as required or
permitted by law.
(3) COMMUNICATION. The counsel will keep the client reasonably informed
about the status of representation and will promptly respond to reasonable
requests for information, including any reasonable request for an estimate
respecting future costs of the representation or an appropriate portion of it.
The client shall be truthful in all discussions with the counsel and provide
all information or documentation required to enable the counsel to provide
competent representation. During representation, the client is entitled to
receive all pleadings and substantive documents prepared on behalf of the
client and every document received from any other counsel of record. At the
end of the representation and on written request from the client, the counsel
will return to the client all original documents and exhibits. In the event
that the counsel withdraws from representation, or is discharged by the client,
the counsel will turn over to the substituting counsel (or, if no
substitutions, to the client) all original documents and exhibits together with
complete copies of all pleadings and discovery within thirty (30) days of the
counsel's withdrawal or discharge.
(4) ETHICAL CONDUCT. The counsel cannot be required to engage in conduct
which is illegal, unethical, or fraudulent. In matters involving minor
children, the counsel may refuse to engage in conduct which, in the counsel's
professional judgment, would be contrary to the best interest of the client's
minor child or children. A counsel who cannot ethically abide by his client's
directions shall be allowed to withdraw from representation.
(5) FEES. The counsel's fee for services may not be contingent upon the
securing of a dissolution of marriage or upon being allocated parental responsibility or be based upon
the amount of maintenance, child support, or property settlement received,
except as specifically permitted under Supreme Court rules. The
counsel may not require a non-refundable retainer fee, but must remit back any
overpayment at the end of the representation. The counsel may enter into a
consensual security arrangement with the client whereby assets of the client
are pledged to secure payment of legal fees or costs, but only if the counsel
first obtains approval of the Court. The counsel will prepare and provide the
client with an itemized billing statement detailing hourly rates (and/or other
criteria), time spent, tasks performed, and costs incurred on a regular basis,
at least quarterly. The client should review each billing statement promptly
and address any objection or error in a timely manner. The client will not be
billed for time spent to explain or correct a billing statement. If an
appropriately detailed written estimate is submitted to a client as to future
costs for a counsel's representation or a portion of the contemplated services
(i.e., relative to specific steps recommended by the counsel in the estimate)
and, without objection from the client, the counsel then performs the
contemplated services, all such services are presumptively reasonable and
necessary, as well as to be deemed pursuant to the client's direction. In an
appropriate case, the client may pursue contribution to his or her fees and
costs from the other party.
(6) DISPUTES. The counsel-client relationship is regulated by the Illinois
Rules of Professional Conduct (Article VIII of the Illinois Supreme Court
Rules), and any dispute shall be reviewed under the terms of such Rules."
(g) The changes to this Section 508 made by this amendatory Act of 1996
apply to cases pending on or after June 1, 1997, except as follows:
(1) Subdivisions (c)(1) and (c)(2) of this Section
508, as well as provisions of subdivision (c)(3) of this Section 508 pertaining to written engagement agreements, apply only to cases filed on or after June 1, 1997.
(2) The following do not apply in the case of a
hearing under this Section that began before June 1, 1997:
(A) Subsection (c-1) of Section 501.
(B) Subsection (j) of Section 503.
(C) The changes to this Section 508 made by this
amendatory Act of 1996 pertaining to the final setting of fees.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17