Chapman & Chapman, Chartered v. Rhoades , 67 Ill. App. 3d 1037 ( 1978 )

Mr. JUSTICE FRIEDMAN

delivered the opinion of the court:

This action was brought upon an attorney’s lien properly preserved under section 1 of “An Act creating attorney’s lien and for enforcement of same” (Ill. Rev. Stat. 1975, ch. 13, par. 14) to recover attorney’s fees allegedly due under a contingent fee contract entered into between the petitioner, Chapman & Chapman, a law firm in Granite City, Illinois, and respondent, William D. Rhoades, that firm’s putative client. The trial court awarded judgment for the law firm in the amount requested, and defendants appeal. The Norfolk and Western Railway Company is involved as a party defendant because it has paid a personal injury settlement to Rhoades against which the attorney’s lien is asserted.

On January 11,1976, while in the employ of the Norfolk and Western Railway Company, the defendant sustained a knee injury. On February 12, 1976, Rhoades telephoned the offices of Chapman & Chapman and explained that he was considering filing suit against the railroad and requested that someone from the law firm come to his home to consult with him about his claim. Robert Chapman, an investigator for the law firm, went to Rhoades’ home to speak with him. Robert Chapman was a self-employed legal investigator with his office in the offices of Chapman & Chapman. Robert Chapman discussed the circumstances of the injury with Rhoades and his wife and voiced his opinion that Rhoades’ claim was valid and worth a fairly large amount of money. Robert Chapman then produced a form contract employing the law firm of Chapman & Chapman which Rhoades signed, authorizing that firm to represent him in a lawsuit against the railroad.

This contract is in evidence and provides that the law firm was retained by Rhoades for the purpose of filing suit against the Norfolk and Western Railway Company to recover for the injury sustained by Rhoades. The contract blanks were filled in by Robert Chapman and provided that the law firm was to be paid 25 percent of any recovery. Robert Chapman initialed the contract “MBC” in the blank provided for the law firm’s acceptance of the retainer agreement. These initials were apparently intended to be those of the senior member of the law firm, Morris B. Chapman. At the time the retainer agreement was executed, Rhoades orally specified that suit was not to be filed until after he returned to work as his ultimate level of disability was in considerable doubt.

Robert Chapman returned to the offices of the law firm and delivered the executed retainer agreement to them. That same evening, Mr. and Mrs. Rhoades decided to reverse their decision to sue the railroad and the next morning telephoned Robert Chapman to tell him of that decision. Mrs. Rhoades testified that she made the call and Robert Chapman said that he would tear up the contract. This point is denied by Chapman.

The law firm proceeded to file a complaint for Rhoades resulting in complaints by the Rhoadeses to the firm that their instructions had not been followed. On February 17,1976, the same day suit was filed, the law firm asserted an attorney’s lien by delivering a declaration of lien with the railroad. On March 1,1976, the Rhoadeses sent a certified letter to the law firm ordering that the litigation be dismissed. A motion to dismiss the suit was granted by the trial court on March 4, 1976. Subsequently, Rhoades and the railroad agreed to a settlement, and it is against this fund that the action for attorney’s fees is brought.

The trial court’s dismissal of the Roades’ complaint on March 4,1976, specifically reserved jurisdiction to enforce any claim for attorney’s lien on behalf of the law firm. Following the filing of a petition and answer, judgment for the law firm in the amount of *3,750 was entered against the railroad and Rhoades by the trial court on July 8, 1977. This appeal followed. We reverse.

Judgment was rendered below on the basis of the attorney’s lien filed by the law firm. The defendants opposed the enforcement of the lien below, and in this court, upon several theories, but we need only address one of them.

Section 1 of an Act entitled “An Act to prohibit the solicitation of legal business * 9 (Ill. Rev. Stat. 1975, ch. 13, par. 15) provides that:

“It shall be unlawful for any person not an attorney at law to solicit for money, fee, commission, or other remuneration directly or indirectly in any manner whatsoever, any demand or claim for personal injuries or for death for the purpose of having an action brought thereon, or for the purpose of settling the same.”

Section 3 of the same act (Ill. Rev. Stat. 1975, ch. 13, par. 17) provides that “[a]ny contract of employment of an attorney obtained or made as a result of a violation of this Act shall be void and unenforceable.” It is agreed that if the activities of Robert Chapman here constituted solicitation within the provisions of section 1, the contract upon which this action is brought is void and unenforceable as a matter of law under section 3.

Solicitation has been defined as:

“1. The pursuit, practice, act or an instance of soliciting; often, specif., and entreaty; importunity; as, to yield to his solicitations.

2. The operation, influence, pressure, etc., of that which solicits or attracts or draws; moving or drawing force; incitement; allurement; as, to resist the solicitations of an appetite for drink.” (Webster’s New International Dictionary (2d ed. 1941).)

From the bare definition of the word it is difficult to gauge whether Robert Chapman’s actions here amounted to solicitation. The petitioners argue that solicitation in this instance was impossible because the Rhoadeses initiated contact with the law firm by calling to say they were thinking about suing the railroad. Because Rhoades could not travel to the office of the law firm, Robert Chapman went to his house. We do not accept the law firm’s contention that solicitation was impossible under these circumstances.

What is central in determining whether solicitation has occurred is the activity of the solicitor after his arrival at the home of the person being solicited. Here, it is important to note that after obtaining a statement of the circumstances of the injury to Rhoades, Robert Chapman voiced his opinion that Rhoades had a valid claim against the railroad and that his claim was worth a lot of money. According to the depositions of all parties, the next thing that occurred was the removal of a form contract employing the law firm of Chapman & Chapman from Robert Chapman’s briefcase. Under these circumstances we cannot characterize the contact made by Robert Chapman as anything other than solicitation.

We also note that the activities of Robert Chapman here are not unlike those censured by the Illinois Supreme Court in In re Cohn (1956), 10 Ill. 2d 186, 139 N.E.2d 301, and In re Mitgang (1944), 385 Ill. 311, 52 N.E.2d 807. While both of these cases involve disbarment of the attorney for whom a solicitor was directly working, and there is no evidence that Robert Chapman was employed by the law firm of Chapman & Chapman to solicit clients, in both instances the court found solicitation to have occurred. That the opportunity for solicitation arose from Rhoades’ telephone inquiry rather than from a more direct approach by the investigator does not sufficiently distinguish the characterization made by the supreme court. Had Mr. Chapman gone to the Rhoades home only to investigate the facts surrounding Rhoades’ claim against the railroad or to give him any information he may have requested, a different question may have been presented. But Robert Chapman gave opinions as to the validity of a claim, characterized the claim as being valuable, and carried form contracts of the law firm — with which he had no ostensible association — in his brief case ready for execution.

Under the facts of this case, we cannot but say that solicitation occurred in violation of section 1 of “An Act to prohibit the solicitation of legal business for remuneration and to provide a penalty therefor” (Ill. Rev. Stat. 1975, ch. 13, par. 15) and that therefore this contract was void and unenforceable. The judgment of the trial court is accordingly reversed.

JONES, J., concurs.