HB4232 96TH GENERAL ASSEMBLY

LRB096 08326 AJO 18434 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB4232

Introduced 2/27/2009, by Rep. Timothy L. Schmitz

SYNOPSIS AS INTRODUCED:

750 ILCS 5/506

from Ch. 40, par. 506

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a court-appointed attorney serving as the attorney for the minor child, guardian ad litem, or child representative shall review the case and submit a litigation budget for court approval. (Eliminates provisions that state that (i) the court shall order the payment to an appointed attorney, guardian ad litem, or child's representative of an amount for costs, fees, and disbursements, according to invoices filed every 90 days during the representation; and (ii) the court shall review the invoices submitted and approve the fees, if they are reasonable and necessary.) Provides that the court shall not authorize payment of bills to an appointed attorney that are not properly itemized. Provides that case budgets, bills for services and expenses, and any case budget modifications shall be reviewed and approved by the trial judge and the chief judge of the circuit court or the chief judge's designee. Provides that the compensation for an appointed attorney shall not exceed $150 per hour, as adjusted annually by the State Treasurer based upon the consumer price index. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 506 as follows:

(750 ILCS 5/506) (from Ch. 40, par. 506)

Sec. 506. Representation of child.

(a) Duties. In any proceedings involving the support, custody, visitation, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates:

(1) Attorney. The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.

(2) Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.

(3) Child representative. The child representative shall advocate what the child representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case. The child representative shall meet with the child and the parties, investigate the facts of the case, and encourage settlement and the use of alternative forms of dispute resolution. The child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem. The child representative shall consider, but not be bound by, the expressed wishes of the child. A child representative shall have received training in child advocacy or shall possess such experience as determined to be equivalent to such training by the chief judge of the circuit where the child representative has been appointed. The child representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct. The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon all counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence. The court and the parties may consider the position of the child representative for purposes of a settlement conference.

(a-3) Additional appointments. During the proceedings the court may appoint an additional attorney to serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the capacities described in subdivision (a)(2) or (a)(3) on the court's own motion or that of a party only for good cause shown and when the reasons for the additional appointment are set forth in specific findings.

(a-5) Appointment considerations. In deciding whether to make an appointment of an attorney for the minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the availability of other methods of obtaining information, including social service organizations and evaluations by mental health professions, as well as resources for payment.

In no event is this Section intended to or designed to abrogate the decision making power of the trier of fact. Any appointment made under this Section is not intended to nor should it serve to place any appointed individual in the role of a surrogate judge.

(b) Fees and costs; court-appointed attorney for the minor child, guardian ad litem, or child representative.

(1) This Section applies only to compensation and expenses of an attorney appointed by the court as set forth in this Section for the period after appointment.

(2) Litigation budget.

(A) The court shall require an attorney for the minor child, guardian ad litem, or child representative, including those appointed in Cook County, after the attorney has had adequate time to review the case and prior to engaging trial assistance, to submit a proposed estimated litigation budget for court approval, that will be subject to modification in light of facts and developments that emerge as the case proceeds. Case budgets shall be reviewed and approved by the judge assigned to try the case and the chief judge of the circuit court or the chief judge's designee. As provided under paragraph (5) of this subsection (b), petitions for compensation shall be reviewed and approved by both the trial judge and the chief judge of the circuit court or the chief judge's designee.

(B) The litigation budget shall serve purposes comparable to those of private retainer agreements by confirming both the court's and the attorney's expectations regarding fees and expenses. Consideration should be given to employing a pretrial conference in order to facilitate reaching agreement on a litigation budget at the earliest opportunity.

(C) The budget shall be incorporated into an initial pretrial order that reflects the understandings of the court and the attorney regarding all matters affecting the attorney compensation and reimbursement and payments for investigative, expert, and other services, including, but not limited to, the following matters:

(i) The hourly rate at which the attorney will be compensated.

(ii) The best preliminary estimate that can be made of the cost of all services, including, but not limited to, attorney, expert, and investigative services, that are likely to be needed through the phases of the proceedings. The court shall have discretion to require that budgets be prepared for shorter intervals of time.

(D) An approved budget shall guide the attorney's use of time and resources by indicating the services for which compensation is authorized. The case budget shall be re-evaluated when justified by changed or unexpected circumstances and shall be modified by the trial judge and the chief judge of the circuit court or the chief judge's designee when reasonable and necessary.

(3) An attorney for the minor child, guardian ad litem, or child representative shall be compensated after the review and approval by the trial judge and the chief judge of the circuit court or the chief judge's designee of a claim for services detailing the date, activity, and time duration for which compensation is sought. Compensation for an attorney for the minor child, guardian ad litem, or child representative may be paid at a reasonable rate not to exceed $150 per hour. The court shall not authorize payment of bills that are not properly itemized.

(4) Beginning in 2010, every January 20, the statutory rate prescribed in paragraph (3) shall be automatically increased or decreased, as applicable, by a percentage equal to the percentage change in the consumer price index-u during the preceding 12-month calendar year. "Consumer price index-u" means the index published by the Bureau of Labor Statistics of the United States Department of Labor that measures the average change in prices of goods and services purchased by all urban consumers, United States city average, all items, 1982-84=100. The new rate resulting from each annual adjustment shall be determined by the State Treasurer and made available to the chief judge of each judicial circuit.

(5) An attorney for the minor child, guardian ad litem, or child representative may also petition the court for certification of expenses for reasonable and necessary expenses including, but not limited to, investigatory and other assistance, experts, and other witnesses. If the requests are submitted after services have been rendered, the requests shall be supported by an invoice describing the services rendered, the dates the services were performed, and the amount of time spent. These petitions shall be reviewed and approved by both the trial judge and the chief judge of the circuit court or the chief judge's designee.

(6) An attorney for the minor child, guardian ad litem, or child representative shall petition the court for certification of compensation and expenses under this Section periodically during the course of that person's representation. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done, and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The petitions shall be reviewed and approved by both the trial judge and the chief judge of the circuit court or the chief judge's designee.

The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child's representative is appointed. Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90-day period thereafter during the course of his or her representation, a detailed invoice for services rendered with a copy being sent to each party. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary.

Any order approving the fees shall require payment by either or both parents, by any other party or source, or from the marital estate or the child's separate estate. The court may not order payment by the Department of Healthcare and Family Services in cases in which the Department is providing child support enforcement services under Article X of the Illinois Public Aid Code. Unless otherwise ordered by the court at the time fees and costs are approved, all fees and costs payable to an attorney, guardian ad litem, or child representative under this Section are by implication deemed to be in the nature of support of the child and are within the exceptions to discharge in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed under this Section.

(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)

Section 99. Effective date. This Act takes effect upon becoming law.