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Sunday, August 18, 2019

Illinois Supreme Court: Lawyers representing themselves vs 'frivolous' suits, entitled to 'fees' for time lost


By Dan Churney | Jun 25, 2019

Illinois Supreme Court | Vimeo livestream screenshot

SPRINGFIELD - The Illinois Supreme Court has ruled that plaintiffs who press frivolous suits against lawyers representing themselves, can be made to pay the lawyer for time lost to his or her practice in defending against the suit.

The June 20 decision was authored by Justice Thomas Kilbride, with concurrence from justices Robert Thomas, Anne Burke and Mary Jane Theis. Chief Justice Lloyd Karmeier and Justice Rita Garman dissented in part. Justice P. Scott Neville Jr. did not participate. The decision was the first time the court addressed the sanctions that give attorney fees to lawyers fighting frivolous suits, who serve as their own, or pro se, attorneys.

In dissent, Garman said attorney fees are not called for, because a lawyer acting pro se does not rack up any fees.

Illinois Supreme Court Justice Thomas L. Kilbride

The matter involved a suit by Chicago lawyer Gerald S. McCarthy against another Chicago lawyer, Marvin Gray.

Gray put in place a trust for Abraham Lincoln Reynolds III in 2006, which among other provisions, left 80 percent of his estate to Cherie Coles and 10 percent to McCarthy. However, if Coles died before Reynolds, McCarthy instead received 80 percent.

Coles died in 2007 and Reynolds died in 2012, but shortly before Reynolds’ death, he had Gray change his trust to give McCarthy only 20 percent, according to court papers. The change was held valid in circuit court. Nonetheless, McCarthy sued Gray in 2015, alleging Gray breached a fiduciary duty he owed McCarthy and  interfered with McCarthy’s estate share by making false statements and presenting misleading evidence in the circuit court case.

Gray represented himself.

The action was dismissed, with the judge saying McCarthy made nothing more than a “bare-bones assertion” a fiduciary duty existed, without furnishing any facts.

Gray turned around and demanded that McCarthy pay his costs in defending against “unfounded, fallacious and specious allegations and pleadings.” The court gave $10,010 to Gray.

McCarthy appealed. The Illinois First District Appellate Court determined McCarthy’s suit was frivolous, but refused payment to Gray, saying a lawyer acting pro se is not entitled to attorney fees.

Gray gained reversal from the state high court, with Kilbride reinstating the fee payment.

“Defendant [Gray] did not initiate or otherwise invite the frivolous pleadings," Kilbride ruled. "Nevertheless, [the] defendant was forced to defend against the frivolous claims filed by the plaintiff, also an attorney. If the policy of sanctions is to deter frivolous pleading and litigation, it would be illogical to deny attorney fees to pro se attorneys defending themselves in such matters.” 

Kilbride added that to do otherwise, would “unfairly reward those who persist in maintaining frivolous litigation." He further noted, "Sanctions are intended as a punishment against the party who abuses the judicial process, not as a reward to a successful pro se attorney who is defending against a frivolous lawsuit."

Kilbride ruled the money McCarthy is to pay Gray, is to include compensation for time Gray spent away from handling other cases that earn him income.

Gray also asked for McCarthy to pay his cost in responding to the appeal. Kilbride remanded the matter to First District Appellate Court for proceedings in this regard.

In dissent, Karmeier said he agreed with fellow dissenter Garman that "an award of 'attorney fees' is inappropriate in this circumstance because there is no attorney-client relationship and thus no 'attorney fees' have been incurred" by Gray. However, Karmeier said he would still award compensation to Gray for loss of income attributable to the frivolous action, but not call it "attorney fees." Instead, payment should fall under the term "appropriate sanctions," as laid out in Illinois Supreme Court rules governing sanctions.

The point of sanctions in frivolous cases is to deter plaintiffs from bringing such suits; if a defendant-lawyer acting pro se cannot receive payment, deterrence is lost, Karmeier noted.

Garman would have not allowed compensation to Gray.

"The majority attributes little value to the fact that, for over 150 years, pro se attorneys have not been permitted to obtain attorney fees for their own work. Given that a pro se attorney does not incur legal fees, the majority is essentially awarding 'attorney fees' to defendant to 'compensate' him, not for the fees he incurred to obtain legal representation, but for the opportunity costs he chose to forgo," Garman said.

Partly quoting from a 1989 federal appellate ruling, Garman added: "The majority’s holding impermissibly carves out a special exception for attorneys," and it is "unseemly to treat pro se lawyers differently from pro se nonattorneys, because to allow the former but not the latter to recover fees creates the appearance that courts are 'especially solicitous for the economic welfare of lawyers."

Garman said she believed plaintiffs bringing frivolous suits should be sanctioned in ways other than giving fees to pro se lawyers.

On appeal, McCarthy has been represented by Chicago lawyer Tanya Woods.

Gray represented himself throughout the process, from the circuit court to the state Supreme Court.

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