Husband engaged an attorney to assist him in the divorce. They executed a written engagement agreement providing for a $ 2500 retainer. This could be exceeded only by executing a further writing.
A divorce was entered. The attorney who assisted husband filed a petition to set final attorney fees and costs against husband. The petition sought an award of $ 33,422.86.
Husband filed a response to the petition. He objected that, because the petition did not include a copy of the engagement agreement and therefore did not comply with the legal requirements, the circuit court should not hold a hearing on the petition. The law he relied on follows::
“(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 * * *.”
Husband also argued that there had been no further writing. The court allowed the attorney to amend his petition by adding the written agreement they had signed. The court ruled in attorney’s favor. Husband appealed.
The Appellate Court agreed with the Trial Court. In determining whether to permit an amendment to a pleading, a trial court considers “(1) whether the amendment cured a defective pleading. (2) whether the amendment prejudiced or surprised the other parties. (3) whether the amendment was timely. And (4) whether previous opportunities to amend were identifiable.”
The Appellate Court stated that husband had not been prejudiced. Attorney’s Petition referred directly to the written agreement that they had signed.
The Trial Court did not abuse its discretion in permitting law firm to amend its petition for fees by including the missing exhibit, which was the engagement agreement and “Statement of Client’s Rights and Responsibilities.
Also, the Trial Court did not err in awarding money to the law firm in excess of the retainer. In the 14 months preceding the final fee award, the law firm received interim fee awards from husband. These were in excess of the retainer, and husband had not objected.
In re Marriage of Keaton, 2019 IL App (2d) 180285.