dissenting:
I dissent. According to the record, plaintiff, Maria O’Hara, the widow of attorney Barratt O’Hara II, entered into an agreement in 1977 to sell the goodwill and physical property of decedent’s law office and practice to defendants’ law firm and its principals for a percentage of income which was derived from decedent’s practice. The agreement also required defendants to provide periodic accountings to plaintiff. The agreement was drafted by the defendants, who were lawyers. The agreement was signed by plaintiff, a lay person, without the advice or benefit of a lawyer.
Pursuant to the agreement, plaintiff transferred case files of decedent’s clients from his practice to defendants, who provided legal representation for the clients listed in those files. In 1981, plaintiff can-celled the contract and demanded an accounting from defendants.
On September 15, 1982, plaintiff filed the instant complaint, which alleged that defendants had breached their agreement by failing to pay her the agreed remuneration and to provide an accounting. Plaintiff’s complaint demanded that the contract be rescinded, that defendants be ordered to return the physical property of the decedent’s law office to plaintiff and promptly pay her an amount to be established upon a proper accounting. Defendants filed a response which denied plaintiff’s allegations and also asserted the affirmative defenses that the goodwill of decedent’s law practice did not survive his death and that it was not a legal consideration which was capable of being transferred by plaintiff.
Plaintiff responded to defendants’ affirmative defenses, inter alia, that plaintiff had signed the agreement without the advice of an attorney and that, inasmuch as defendants, who were attorneys, had prepared the agreement and had received income in excess of $100,000 from O’Hara’s clients, the unjustly enriched defendants should be estopped from denying the validity of the agreement.
It is uncontested that defendants derived income from decedent’s clients who were listed in decedent’s files and who had been referred to defendants by plaintiff pursuant to their agreement. A portion of that income may have been earned by the decedent and owed to him by his clients before his death. Such income would have been part of decedent’s estate and would rightly pass to plaintiff as his heir.
Plaintiff filed a motion for partial summary judgment which alleged, inter alia, that there was no genuine issue of material fact, that defendants had acknowledged the legal sufficiency of their agreement and that defendants owed plaintiff a minimum of $11,351. Attached to the motion were lists of files of decedent’s clients that plaintiff had given to defendants and letters which the defendants had sent to plaintiff on May 16, 1980, July 22, 1981, and February 2, 1983. The letter of May 16, 1980, acknowledged plaintiff’s right to review records related to the files pursuant to their agreement. The letter of July 22, 1981, was a response to plaintiff’s request to cancel the agreement, and the letter of February 2, 1983, explained the accounting system and included audit sheets.
Subsequently, defendants filed a brief in opposition to plaintiff’s motion for partial summary judgment. Defendants also filed a cross-motion for summary judgment. Defendants argued that there was no genuine issue of material fact, contending that the parties had agreed that the goodwill of decedent’s law practice was the consideration plaintiff had given in exchange for payment of a percentage of the income to be derived by defendants from decedent’s cases. Defendants further asserted that such consideration was insufficient and nontransferable by plaintiff and that the contract was void and against public policy.
Therefore, plaintiff filed a response to defendants’ brief and motion. Attached to plaintiff’s response was her affidavit which alleged that plaintiff was decedent’s widow and the sole beneficiary of his estate, that in March 1979, after his death, plaintiff asked one of the defendant attorneys if he would take over decedent’s cases, that the attorney drafted an agreement and sent it to her through the mail, that without the advice of an attorney plaintiff signed the agreement and returned it to defendants and that defendants knew that plaintiff had not been advised by counsel before she signed the agreement.
In the case at bar, the majority has found that plaintiff was estopped from raising the illegality and unenforceability of the contract because plaintiff and defendants were in pari delicto. The majority relies upon Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 417 N.E.2d 764, Merchandise National Bank v. Kolber (1977), 50 Ill. App. 3d 365, 365 N.E.2d 688, and Schnakenberg v. Towle (1954), 4 Ill. 2d 561, 123 N.E.2d 817, to support its decision. However, I believe that the reliance of the majority has been misplaced. The facts in those cases are distinguishable from the facts herein, since the parties in the cited cases were in pari delicto and the parties herein were not.
Fleischer involved a fee splitting agreement between attorneys. The issue there was whether an agreement to compensate an attorney for referring clients to a law firm was enforceable. This court found that the contract was unenforceable because it was against public policy. The contracting parties were attorneys, whom we presume had knowledge of the law, and as such were equally culpable and in pari delicto.
In Kolber, two attorneys and a podiatrist had entered into an agreement to defraud a bank of certain funds. Although the podiatrist was a nonattorney, he was in pari delicto with the attorneys because the podiatrist and the attorneys had full knowledge of the fraudulent scheme.
Towle involved the enforceability of a fee splitting agreement between an attorney and a sitting judge, both of whom represented the same party in the prosecution of a claim for the refund of certain taxes. In a per curiam decision, our supreme court refused to assist either the judge or attorney, whom the court found to be “on equal footing”.in making the agreement. 4 Ill. 2d 561, 570,123 N.E.2d 817.
In the instant case the majority opined that plaintiff’s factual alie-' gation that.she was not in pari delicto with defendant lawyers, who drafted the agreement and benefited from it, was insufficient to establish plaintiff’s claim because she did not allege that “plaintiff had no knowledge of the illegality and that defendants did.” By its analysis the majority woefully begs the question and substitutes form over substance. It is well settled that lawyers are presumed to know the law. (Somerset Importers v. Gold Standard Liquors (1974), 18 Ill. App. 3d 39, 42, 309 N.E.2d 286; In re Estate of Britt (1983), 112 Ill. App. 3d 186, 188, 445 N.E.2d 367) and are held to a high standard of care when dealing with nonlawyers.
Here it is uncontested that plaintiff, a nonlawyer, signed the contract drafted by one of the defendant attorneys without the benefit of legal counsel. Since the defendants drafted the contract, it must be construed more strictly against them. (Smith, v. Connecticut General Life Insurance Co. (1984), 122 Ill. App. 3d 725, 728, 462 N.E.2d 604.) Moreover, defendants’ letters to plaintiff clearly established that defendants were unconscionably enriched from the contract in that they derived fees from decedent’s clients who had been referred to defendants by plaintiff.
Defendants were estopped from raising the illegality of the contract which they drafted and from which they benefited. Plaintiff, a nonlawyer, was not in pari delicto with defendant lawyers and their law firm because of their unequal contractual position.
I believe the facts herein are more similar to those in Rasmussen v. Mitchell (1944), 321 Ill. App. 618, 53 N.E.2d 467. There the plaintiff, Sue Rasmussen, widow, whose home had been the subject of a foreclosure, entered into an illegal agreement with defendant to obtain a second mortgage on plaintiffs home. There, we found that plaintiff was not in pari delicto with defendant because of the unequal nature of their positions.
I must also note that the contract herein was for the sale of the goodwill and physical property of decedent’s law practice. The amount paid for the physical property was to be determined by defendants upon their inspection of the property. Although the goodwill from decedent’s practice was not legal consideration transferrable by plaintiff, the physical property was. According to Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 533, 417 N.E.2d 764, that portion of the' contract involving the sale of the physical property was valid and severable from that portion of the contract the majority found invalid. Clearly, the agreement to exchange the physical property for money was enforceable by the trial court.
Based on the foregoing, I would reverse the orders entered by the circuit court upon plaintiff’s and defendants’ motions for summary judgment and remand for further proceedings.