In Marriage of Kent, 2021 Ill App (2d) 200637-U, the Illinois Appellate Court affirmed an award of Rule 137 sanctions against one of the lawyers. The lawyer who was sanctioned had filed numerous post-decree petitions and then withdrew them. The opposing party brought the motion for sanctions on the ground that the petitions lacked a good faith basis. The key portions of the opinion are quoted below.
¶ 9 On June 15, 2020, the trial court entered an order that the appellate court decision was “spread of record.”[2] On July 15, 2020, Luis filed various petitions and then, on July 17, 2020, he filed a motion for Rule 137 sanctions against Trent. He argued, in part, that several motions filed posttrial by Trent on Colleen’s behalf were not based in fact or law and were not filed in good faith. For example, when Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded counsel that he could not do so while he remained counsel of record; yet, he simply filed an amended petition for fees and another petition for a consent judgment, essentially seeking entry of fees without the benefit of a hearing for his client on those fees. Luis argued that, due to the numerous filings, his counsel was required to respond and appear in court nine times. Then, on the day of the November 6, 2019, hearing, Colleen’s multiple motions were simply withdrawn. Luis represented that, from the entry of the July 22, 2019, dissolution judgment through December 3, 2019, when the court issued its Rule 304(a) language, he had incurred over $38,000 in additional attorney fees and costs, most of which were incurred in the defense of the nine motions/petitions filed by Trent on Colleen’s behalf. He further noted that the substantial increase in postjudgment litigation costs would result in Colleen receiving no funds from the marital estate; hence, both parties to the litigation were being substantially harmed. Luis requested that the court impose against Trent sanctions and award Luis the fees he incurred to answer or defend Colleen’s posttrial motions.
¶ 27 Here, we cannot say that no reasonable person would agree with the court’s decision to sanction Trent. Indeed, when reviewing decisions concerning Rule 137 sanctions, “the deferential standard is applied because generally the conduct at issue occurred before the judge issuing the sanctions, who, therefore, is in the best position to determine whether the challenged conduct warranted penal sanctions or because the trial court heard testimony from individuals involved in the challenged conduct.” Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 50. Here, the trial judge was intimately familiar with the case, parties, and attorneys (indeed, it had previously noted the litigiousness with which Colleen and her counsel pursued the case). As Trent concedes, the court did not find convincing that allposttrial filings identified by Luis warranted sanctions, but after considering all circumstances and hearing argument, it determined that some of the filings and withdrawals thereof were not made in good faith. The court clearly considered carefully each challenged filing, and it was in the best position to weigh and assess whether those filings warranted sanctions.
¶ 28 Trent does not agree that his filings, particularly those concerning attorney fees, necessarily resulted in direct costs to Luis. However, we note that the court did not award sanctions in an amount even close to the $38,000 in additional attorney fees and costs Luis alleged to have incurred postjudgment. As such, the court implicitly determined that some of Luis’s postjudgment fees did not directly result from Trent’s alleged misconduct. Nevertheless, the court did find that Trent filed motions alleging issues that required Luis’s response and his counsel’s appearance, then withdrew those motions, and then, although he claimed that they were withdrawn to pursue an appeal, did not appeal the issues in those withdrawn motions. Further, given Trent’s lengthy legal career, the court did not find credible that his multiple filings for attorney fees and consent judgments, while he continued to represent his client, were filed for a proper purpose and, as such, that they were not well-based in law or fact. Indeed, section 508(c)(1) plainly states, “[n]o petition of a counsel of record may be filed against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel.” (Emphases added.) 750 ILCS 5/508(c)(1) (West 2018)). According to Luis’s 2020 sanctions motion, after Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded Trent that doing so while he remained counsel of record was improper, yet he simply filed an amended petition without moving to withdraw (indeed, while we do not have a transcript reflecting the court’s alleged reminder, the record does not show Trent as having filed a motion to withdraw as counsel between the original and amended petitions). Moreover, although Trent’s petitions for attorney fees against Colleen might not have directly required Luis’s response, Luis’s counsel was not unreasonable in pointing out to the court that the petitions for fees were improper and that all filings and fees in this dissolution case affected the total recovery available to all parties.
¶ 29 In sum, the court’s sanctions ruling was not an abuse of discretion.
Comment: It would appear from the appellate reports that Illinois courts have increased their use of Rule 137 to sanction lawyers for litigation conduct. Here, the record reflects that the lawyer filed numerous motions and then withdrew all of them after the other side had incurred legal fees.
Should you have a question about Rule 137 sanctions, do not hesitate to contact us. We may be able to provide an independent view of your issue.
Ed Clinton, Jr.
Illinois Procedure and Sanctions Decisions 