To: All Members of General Assembly
From: Concerned Citizens On behalf of families whose assets were depleted by the “cottage industry” and whose assets are no longer available for the care, up-keep, and education of their children – Michael Gerhardt, Esq., Milijana Vlastelica, Karyn Mehringer, MA., LCPC, Claudia Shabo, Miriam Shabo, David Bambic, Marie Szczypta and other Community Activists
PLEASE REVIEW THE LANGUAGE OF HB 2833 HA#1 AND VOTE YES TO END THE “COTTAGE INDUSTRY” IN THE DOMESTIC RELATIONS DIVISION PROBLEM:
Representation of Child statute, 750 ILCS 5/506 provides no fee cap that the private attorneys, in a capacity of a court-appointed Attorney for Child (AFC), Guardian ad Litem (GAL), Child Representative (CR), may bill the parties for representing their minor children in divorce/custody cases.
• On April 10, 2010, The Illinois Family Law Study Committee (Formed by the Illinois House of Representatives to investigate and recommend changes to laws) identified and referred to the present domestic relations system as a “cottage industry.”
• In Lawpulse, IBJ, July 07 publication, one of the attorneys stated, “There are attorneys making half a million dollars a year as child reps – and not working terribly hard for it”.
• Currently, the children’s attorneys, GALs/CRs/AFCs are allowed to bill a rate as high as $400.00/hour, especially in Chicago and its wide metropolitan area.
• Some GALs/CRs/AFCs are not submitting a detailed invoice for each 90-day period as required by the statute, without any consequences.
• Some courts are awarding lump sum fees to appointed GALs/CRs/AFCs without ever receiving properly itemized billing.
• Some GALs/CRs/AFCs are billing the parents a professional attorney rate for the preparation and presentation of their invoices. SOLUTION: House Bill 2833, HA #1 provides that:
• A court-appointed GAL/CR/AFC may be paid at a reasonable rate not to exceed $150.00/hour which is comparable to what a court-appointed attorney used to make in death penalty cases.
• A court-appointed GAL’s/CR’s/AFC’s failure to submit a detailed invoice for each 90-day period precludes the collection of fees for services rendered in that period.
• A court-appointed GAL/CR/AFC may not bill the parties any fees for the preparation and presentation of an invoice.
• A court may not award lump sum fees to a court-appointed GAL/CR/AFC.
• Deletes provision which states that unless otherwise ordered by the court at the time that the fees and costs are approved, all fees and costs payable to an appointed attorney, GAL/CR/AFC are by implication deemed to be in the nature of support of the child. STATUS: All 11 members of the Judiciary I – Civil Law Committee recommended that HB 2833, HA #1 be adopted with amendments to be added. DISCUSSION: Fees capped at $150/hour instead of $300-$400 and more:
• Presently, there is no cap on as to what the private attorneys in a capacity of court-appointed GAL/CR/AFC may charge the parties in divorce/custody cases for advocating the minor children’s best interests. GAL/CR/AFC often bill between $300 -$400/hour; and many times, no one knows what their billing rates are as judges are not requiring detailed invoices and rubberstamping their fees without question. This is one of the reasons this area is labeled a “cottage industry” and is open to serious fee abuse.
• Pursuant to the Illinois Supreme Court Rule 906, the Special Committee stated, “Ideally, the State would provide sufficient funding to reimburse the private attorneys who are appointed by the court. In the absence of such funding, the individual judicial circuits will need to be innovative in meeting the financial requirements of the plans. In addition to requiring the parties to pay for the appointed lawyer’s services, the local rules could provide for the targeting of court filing fees. Voluntary pro bono service is also strongly encouraged.” In practice, some judicial circuits became “innovative” by allowing the appointed attorneys to bill the parents excessive fees in excess of $100,000.00. Voluntary pro bono service is virtually non-existent.
• No trial court should ever be in a position to generate an extremely lucrative business to the private attorneys without any recourse available to the parties.
• There is no reason, rationale, or basis as to why the court-appointed attorneys, GALs/CRs/AFCs in custody cases, are allowed to bill $400/hour when paid for by the parents, whereas all other court-appointed attorneys make only a fraction of that.
• In Death Penalty cases, an appointed attorney fees did not exceed $125/hour (adjusted for COLA) per 725 ILCS 124-10.
• In non-death penalty cases, attorney fees are based on 725 ILCS 5/113-3, at $40/hour for court time and $30/hour for non-court time.
• Even the most senior Public Defenders are paid no more than $40/hour; and they are dealing with loss of freedom – jail time.
• Therefore, the proposed rate of $150/hour is more than equitable.
• Being an attorney as a GAL/CR/AFC has lower costs associated than being any other attorney.
• No “marketing costs” as one does not have to look for a case; but is assigned the case. (Assignment, other than randomly, opens this area for much abuse and favoritism.)
• One does not have to worry about collection of fees as the judge will order the fees from the marital estate, and often with the threat of contempt. No other attorneys enjoy this luxury. And in a “cottage industry” this is particularly disturbing. Invoices need to be detailed and submitted:
• This area has already been identified as a “cottage industry.” That includes: fee abuses, work not performed, no accountability, etc.
• How does one determine an amount to bill if there is no record of work performed? There needs to be repercussions for failure to submit a bill, because failure to submit a bill indicates that there is something amiss.
• Regularly submitting bills will encourage settlement, and is a method to control costs of litigation.
• Every profession, including lawyers, regularly submits bills. There should be no huge surprise at the very end. Hiding costs until late in the process is unprofessional and borders on extortion. The federal courts have already held that the fees and costs payable to GAL/CR/AFC are not a domestic support obligation of the debtor:
• In Joel Levin v. Carlo M. Greco, No. 08-A-00251, In the United States Bankruptcy Court For the Northern District of Illinois, Eastern Division, the Court held that the debt owed to a “child representative” in an Illinois divorce case is not a “domestic relations support obligation” under 101 (14A) of the Bankruptcy Code (Title 11, U.S.C), a status that would make the debt nondischargeable under 523 (a) (5) of the Code.