concurring in part and dissenting in part:
I fully agree with the majority’s thorough and well-reasoned decision to recognize the existence and validity of “advance payment retainers” as an option available to Illinois lawyers and their clients in connection with the payment and use of retainers. I further agree with the majority’s decision to identify the specific requirements that must be present in a fee agreement between an attorney and client in order for it to constitute an advance payment retainer. This recognition, in my view, provides both the bench and bar with much-needed guidance in this important area of Illinois law. I therefore concur in parts I, II and IV of the majority opinion.
I must part company with the majority, however, with respect to the analysis and holding set forth in part III of its opinion. Specifically, I do not agree with the majority’s holding that the $100,000 paid by Davis and Seibel to Piper in this case was an “advance payment retainer.” It is my belief that the appropriate disposition of this appeal is to remand the cause to the circuit court for further proceedings in which both parties, Dowling and Piper (and its clients Davis and Seibel), can present evidence with respect to the proper characterization of the fee retainer and the acknowledged ambiguities contained within that document. Despite relying upon several federal bankruptcy court decisions which state that the determination of the type of retainer which exists between an attorney and client is a question of fact to be decided in the trial court, the majority disregards these precepts. Instead, this court — a court of review — sits in this case as a finder of fact and bases its holding solely upon the February 25, 2003, engagement letter — the same letter, I must point out, which the majority candidly acknowledges to be “ambiguous.” I submit that these points reveal internal inconsistencies within the majority opinion.
The question presented by this appeal is whether the $100,000 paid to Piper by Davis and Seibel under the February 2003 engagement letter belong to Piper or to its clients, Davis and Seibel. The answer to this question, in turn, determines whether these funds are available to satisfy the judgments obtained by Dowling against Davis. As noted by the majority in its opinion, Dowling has maintained the position before this court that because there is no clear evidence in the record that the engagement letter was intended to provide for an advance payment retainer, this court should therefore construe the agreement as providing for a security retainer under which the money paid to Piper remains the property of the client until the lawyer applies it to charges for services that are actually rendered. Dowling concludes, therefore, that the $100,000 transferred by Davis and Seibel to Piper remained the property of Davis and Seibel — even though held by Piper — and was available to satisfy Dowling’s judgments.
In its opinion, the majority rejects Dowling’s contention that the agreement between Piper and its clients in this case constituted a security retainer, and, instead, holds that the agreement was an advance payment retainer. In arriving at the conclusion that an advance payment retainer is present in the instant matter, the majority characterizes its analysis as an “interpretation of a contract,” and cites to People ex rel. Department of Public Health v. Wiley, 218 Ill. 2d 207, 223 (2006), for the proposition that contract interpretation “involves a question of law, which we review de novo.” 226 Ill. 2d at 285. The majority fails to recognize, however, that in the very case it cites, this court held that construction of a contract is a matter of law in only those instances where no ambiguity exists. See Wiley, 218 Ill. 2d at 223, citing Farm Credit Bank v. Whitlock, 144 Ill. 2d 440, 447 (1991); see also Gunthorp v. Golan, 184 Ill. 2d 432, 440 (1998). Indeed, in instances where language in a contract is ambiguous — such as found by the majority in the matter at bar — “its construction is then a question of fact, and parol evidence is admissible to explain and ascertain what the parties intended.” Farm Credit Bank, 144 Ill. 2d at 447.
In light of these fundamental principles of contract interpretation, it is therefore significant that, in construing the agreement between the parties, the majority readily acknowledges that “some of the language of the engagement letter [is] ambiguous” (226 Ill. 2d at 299), and also candidly admits in its opinion that “the agreement [between Piper and its clients Davis and Seibel] is not a model of clarity” (226 Ill. 2d at 299). In light of the very ambiguities found by the majority to exist in the agreement between Piper and its clients, one would accordingly expect this court to conclude that the characterization of which type of retainer exists in this case is a question of fact to be determined, in the first instance, by the trial court, where additional relevant evidence— such as sworn testimony — can be adduced.
The majority, however, defeats this expectation by construing — as a matter of law — the agreement between Piper and its clients, Davis and Seibel, as an advance payment retainer. The majority makes this determination despite the fact that the above-discussed rules of contract interpretation call for this matter to be remanded to the circuit court for fact-finding. The majority also arrives at this conclusion despite the fact that the same federal bankruptcy court decisions upon which it relies with respect to guidance in setting forth the various types of retainers also establish procedural rules which call for fact-finding in determining the character of a specific retainer, and which, therefore, do not support the majority’s disposition of the instant cause. See In re McDonald Bros. Construction, Inc., 114 B.R. 989, 1002 (Bankr. N.D. Ill. 1990) (“a dispute about the terms of any particular retainer agreement can only be resolved as a question of fact,” and the absence of a “carefully drawn” retainer agreement necessitates that the court ascertain “the parties’ intentions from the circumstances surrounding the payment”); In re Production Associates, Ltd., 264 B.R. 180, 188 (Bankr. N.D. Ill. 2001) (citing McDonald for the proposition that “inquiry into the nature of Counsel’s retainer is a question of fact”). The majority’s own opinion demonstrates in this case that there is an absence of a carefully drawn retainer agreement (see 226 Ill. 2d at 294-95), which, therefore, requires that findings of fact must be made. As a court of review, it is improper for us to resolve this fact-dependent issue. See Sohaey v. Van Cura, 240 Ill. App. 3d 266, 276 (1992) (it is the function of the finder of fact, “not an appellate court, to determine both the disputed and undisputed facts of the case and to draw from those facts the reasonable inferences they support”).
Finally, I further note that, in part II of the majority opinion, the majority states that “in the event that the parties’ intent cannot be gleaned from the language of their agreement, we conclude that the agreement must be construed as providing for a security retainer.” 226 Ill. 2d at 294-95. The majority sets forth this caution based upon its “aware[ness] of the potential for abuse of advance payment retainers, particularly in circumstances such as the instant case where a judgment debtor seeks to resist efforts of a judgment creditor to collect on a judgment.” 226 Ill. 2d at 295. Yet, in part III of its opinion, the majority fails to heed its own cautionary admonishment in this case by construing — as a matter of law — the agreement between Piper and its clients to constitute an advance payment retainer despite finding that the agreement is also ambiguous. Given the fact that the majority recognizes the potential for abuse under the facts presented in the instant appeal, it is far more prudent to remand this matter to the circuit court for an evidentiary hearing wherein parol evidence can be adduced — including statements made under oath — which would guard against such abuse.
In sum, I believe that the proper disposition of the instant appeal is for this court to remand this cause back to the circuit court for further proceedings to discern the intention of Piper and its clients, Davis and Seibel, with respect to the specific fee agreement at issue here. As explained above, this issue presents a question of fact, and the parties to this appeal should be afforded the opportunity to present evidence in the circuit court— including sworn testimony from the witness stand — with respect to whether Piper and its clients, Davis and Seibel, intended this agreement to constitute an advance payment retainer. I am not convinced by the majority opinion that it is appropriate for this court — a court of review — to make a determination with respect to the characterization of the retainer based only upon an examination of the four corners of an admittedly ambiguous document.
For the reasons set forth above, I dissent from part III of the majority opinion.
JUSTICES KILBRIDE and BURKE join in this partial concurrence and partial dissent.