Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case In re Marriage of Earlywine and the criminal case People v. Hale.

CIVIL

In re Marriage of Earlywine

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

In re Marriage of Earlywine presented the issue of whether attorneys’ fees paid to a spouse’s attorney and held in an advance payment retainer account complying with Rule 1.15 of the Illinois Rules of Professional Conduct is subject to a disgorgement order for payment of interim attorneys’ fees under the authority of § 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act.  The circuit court, finding that neither party had the financial ability or resources to pay their respective attorney fees, ordered the husband’s attorney to turn over to the wife’s attorney half of the fees previously paid. 

The appellate court affirmed, and in turn was affirmed by the supreme court.  The trial court’s opinion noted that the purpose of the Dissolution Act is to achieve substantial parity between the parties, and that that public policy should override the advance payment retainer device for protecting fees.  The supreme court endorsed that reasoning.

The supreme court recognized that its opinion in Dowling v. Chicago Options Associates, Inc. held that advance payment retainers are generally not subject to turnover because such fees are the property of the attorney.  The court noted, however, that Dowling cautioned that such retainers “should be used only sparingly,” and that in most cases a security retainer is the best vehicle to protect a client’s funds.  The court stated that the use of an advance payment retainer in a marital case undermines the purpose of the “leveling of the playing field rules” in the Dissolution Act.  The Act expressly provides for disgorgement of fees already paid upon a finding that both parties lack the financial ability to pay reasonable fees, although the legislature did not specify the types of retainers which might be subject to disgorgement.  The court held that disgorgement from an advance payment retainer is proper under the Act, and that to hold otherwise would render the “leveling of the playing field” provisions “powerless.” 

The court rejected the argument that because the fees had been paid by the husband’s parents they were nonmarital property and therefore not subject to disgorgement.  The court also held that there was no conflict between the retainer provisions of the Rules of Professional Conduct and the Act. 

Notable procedural aspects of this case are that the appellate route was through friendly contempt, two matrimonial lawyers were permitted to file a brief amicus curiae, and that the court reached the merits of the appeal despite the lack of an appellee’s brief, under the principles of First Capitol Mortgage Corp. v. Talandis Constr. Corp., 63 Ill.2d 128 (1976).

CRIMINAL

People v. Hale

By Kerry J. Bryson, Office of the State Appellate Defender

Defendant claimed ineffective assistance of counsel for failing to advise him that consecutive sentences were mandatory if he was convicted of two counts of attempt (first degree murder) at trial. Defendant rejected a 15-year offer to a single attempt charge and proceeded to trial. After trial, he received terms totaling 40 years.

The Supreme Court acknowledged the recent US Supreme Court cases of Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), both noting that the Sixth Amendment right to the effective assistance of counsel applies to plea bargaining, a right which previously had been recognized by the Illinois Supreme Court in People v. Curry, 178 Ill. 2d 509 (1997). Claims of ineffective assistance of counsel during plea bargaining are evaluated under the familiar two-prong Strickland analysis.

Noting that it is appropriate to proceed to the prejudice prong without addressing counsel's performance if the case can be disposed of on that basis, the Court considered the prejudice factors applicable to such an analysis. To establish prejudice, defendant must show a reasonable probability that (1) defendant would have accepted the offer if he had received effective assistance of counsel; (2) the plea would have been entered without the prosecution cancelling its offer; (3) the plea would have been entered without the court refusing it; and (4) the end result would have been more favorable by either a plea to a lesser charge or a lesser sentence.

The Court noted that the first and fourth factors were in line with what was required under Curry, but the second and third were new factors from Cooper and Frye.  Regardless, Hale could not even meet the first element because the only evidence he offered was his self-serving statement that he "would have been inclined to take" the offer.  There was nothing else to substantiate Hale's claim, where Hale had consistently professed his innocence and indicated a desire for trial.  Indeed, Hale did not even complain about counsel's allegedly deficient advice until after the case was remanded for an inquiry into defendant's post-trial claims of ineffective assistance of counsel.  Only on remand did Hale include the complaint in a motion filed with the court.  Defendant's ineffective assistance claim was rejected.

Hale plainly holds that the standards set out in Cooper and Frye will be applied in Illinois cases claiming ineffective assistance of counsel in plea negotiations. Also of note is the clarification that the appropriate question for a prejudice analysis is not whether the rejection of a plea offer was knowing and voluntary, a standard which the appellate court seemed to have applied.