dissenting:
I disagree with the majority’s determination that the funds held by Piper Rudnick belonged to Mr. Davis and were subject to a turnover order. The majority overlooks the role of the “retainer” in the relationship of the attorney and client.
A “retainer” is defined as both “[a] client’s authorization for a lawyer to act in a case” and a “fee paid to a lawyer to secure legal representation.” Black’s Law Dictionary 1317 (7th ed. 1999). “A retainer is the act of a client employing an attorney; it also denotes the fee paid by the client when he retains the attorney to act for him.” Carter & Grimsley v. Omni Trading, Inc., 306 Ill. App. 3d 1127, 1130, 716 N.E.2d 320 (1999). Thus, a retainer is more than a sum of money from which a law firm draws down its fees. It establishes the employment of the attorney by the client.
According to the engagement letter, Mr. Davis and his wife paid Piper Rudnick a $100,000 retainer. The fact that Piper Rudnick could satisfy its fees as earned from this fund does not diminish the fact that the existence of the retainer and various deposits to it signified the relationship of client and attorney between Mr. Davis and his wife and Piper Rudnick. As such it was the property of Piper Rudnick, subject to the provision that at the end of the representation, any remaining balance would be refunded to Mr. Davis and his wife.
The majority states that the “account in which Piper Rudnick placed Davis’s May 2003 retainer funds is not determinative of Piper Rudnick’s obligation to disclose that it held these funds.” 365 Ill. App. 3d at 98. Again, I disagree.
Rule 1.15 of the Rules of Professional Conduct provides a “lawyer shall hold property of clients or third parties that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.” 188 Ill. 2d R. 1.15(a). In the absence of any contention that Piper Rudnick violated the Rules of Professional Conduct by not retaining these funds in a separate account, the fact that they were held in Piper Rudnick’s general account establishes that the funds were Piper Rudnick’s, subject to reimbursement to the client in the event funds were remaining at the end of the representation.
The majority’s decision in this case will have a chilling effect on a person’s ability to obtain legal counsel, if retainers paid to law firms to establish the attorney-client relationship were subject to turnover orders as in this case. Under the decision in this case, where a judgment debtor seeks legal representation in a citation to discover assets proceeding and pays the firm a retainer, the law firm may lose the retainer even before it can commence work on the case. As a practical matter, law firms will be reluctant, understandably, to take on representation of such individuals, thus depriving them of legal representation.
I would conclude that as the funds were the property of Piper Rudnick, Piper Rudnick was correct when it informed the court that it was not holding any funds belonging to Mr. Davis. As a result, the circuit court abused its discretion in ordering Piper Rudnick to turn over the $137,576.53 to Mr. Dowling.
Therefore, I respectfully dissent.