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                                     Supreme Court                              Date: 2018.02.01
                                                                                13:06:23 -06'00'




                 Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297




Caption in Supreme      FERRIS, THOMPSON & ZWEIG, LTD., Appellee, v. ANTHONY
Court:                  ESPOSITO, Appellant.



Docket No.              121297



Filed                   May 18, 2017



Decision Under          Appeal from the Appellate Court for the Second District; heard in that
Review                  court on appeal from the Circuit Court of Lake County, the Hon.
                        Thomas Schippers, Judge, presiding.



Judgment                Appellate court judgment affirmed.
                        Cause remanded.


Counsel on              Thomas W. Dillon, Michael P. Hannigan, and Amanda J. Hamilton, of
Appeal                  Konicek & Dillon P.C., of Geneva, for appellant.

                        Saul M. Ferris and Austin C. Ferris, of Ferris, Thompson & Zweig,
                        Ltd., of Gurnee, for appellee.

                        Bruce R. Pfaff, of Chicago, for amicus curiae Illinois Trial Lawyers
                        Association.
     Justices                  CHIEF JUSTICE KARMEIER delivered the judgment of the court,
                               with opinion.
                               Justices Freeman, Thomas, Kilbride, Garman, Burke, and Theis
                               concurred in the judgment and opinion.



                                                OPINION

¶1         This appeal involves an action for breach of contract brought by one law firm against
       another after the defendant law firm refused to honor the fee-sharing provisions of the firms’
       joint client retainer agreements. A single question of law is presented: Are fee-sharing
       provisions in otherwise valid retainer agreements between clients and two separate law firms
       void and unenforceable if the primary service performed by one firm is the referral of the
       clients to the other but the agreements fail to specifically notify the clients that the lawyers in
       each firm have assumed joint financial responsibility for the representation?
¶2         Reversing the judgment of the circuit court of Lake County dismissing the plaintiff law
       firm’s second amended complaint pursuant to section 2-615 of the Code of Civil Procedure
       (735 ILCS 5/2-615 (West 2014)), the appellate court answered that question in the negative,
       rejecting the defendant law firm’s argument that the agreements’ lack of an express statement
       that the attorneys assumed joint financial responsibility violated Rule 1.5(e) of the Illinois
       Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) and thereby rendered the agreements
       invalid. 2016 IL App (2d) 151148. In reaching this result, the court declined to follow the
       Appellate Court, First District’s decision in Donald W. Fohrman & Associates, Ltd. v. Mark D.
       Alberts, P.C., 2014 IL App (1st) 123351, to the extent that case held that fee-referral
       agreements must expressly inform clients that the attorneys are assuming joint financial
       responsibility.
¶3         We allowed the defendant law firm’s petition for leave to appeal in order to resolve the
       conflict between the appellate court’s decision in this case and Fohrman. Ill. S. Ct. R. 315(a)
       (eff. Mar. 15, 2016). We also granted the Illinois Trial Lawyers Association leave to file a brief
       amicus curiae. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the reasons that follow, we affirm the
       judgment of the appellate court and remand the cause to the circuit court for further
       proceedings.

¶4                                           BACKGROUND
¶5         Our review in this appeal is guided by the procedural context from which it arose, a motion
       to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West
       2014)). Motions to dismiss under section 2-615 challenge the legal sufficiency of a complaint
       based on defects apparent on its face. When reviewing whether a motion to dismiss under
       section 2-615 should have been granted, we accept as true all well-pleaded facts and all
       reasonable inferences that may be drawn from those facts. The critical inquiry is whether the
       allegations of the complaint, when construed in the light most favorable to the plaintiff, are
       sufficient to establish a cause of action upon which relief may be granted. A cause of action
       should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of
       facts can be proved that would entitle the plaintiff to recover. Kanerva v. Weems, 2014 IL

                                                    -2-
     115811, ¶ 33. Whether the trial court erred in granting or denying a section 2-615 motion
     presents a question of law. Our review is therefore de novo. Imperial Apparel, Ltd. v. Cosmo’s
     Designer Direct, Inc., 227 Ill. 2d 381, 392 (2008).
¶6       The pleading at issue in this appeal is plaintiff’s second amended complaint. That
     complaint contains 10 separate but similar counts alleging breach of written contracts for the
     division of attorney fees earned in representing clients with claims under the Workers’
     Compensation Act (820 ILCS 305/1 et seq. (West 2014)).1 Attached to the complaint were
     copies of each of the retainer agreements signed by the various clients along with letters
     drafted by defendant and initialed by a representative of the plaintiff law firm confirming the
     terms of their respective obligations under each of the retainer agreements. Pursuant to section
     2-606 of the Code of Civil Procedure (735 ILCS 5/2-606 (West 2014)), those exhibits
     constitute part of the pleadings and may be considered in evaluating whether the complaint is
     sufficient to withstand a motion to dismiss under section 2-615. Napleton v. Village of
     Hinsdale, 229 Ill. 2d 296, 321 (2008).
¶7       According to the allegations of plaintiff’s second amended complaint and the attached
     exhibits, plaintiff, Ferris, Thompson & Zweig, Ltd., is a Gurnee, Illinois, law firm. Between
     2007 and 2010 it was retained by 10 clients to represent them on their Workers’ Compensation
     Act claims. Plaintiff, in turn, contracted with the law offices of defendant, Anthony S.
     Esposito, for assistance in representing the clients before the Illinois Workers’ Compensation
     Commission (Commission).
¶8       A letter of understanding was drafted by defendant for each of the 10 cases. Those letters
     confirmed that the cases had been referred to defendant by plaintiff, outlined the parties’
     respective responsibilities regarding representation of the clients, and specified that, among
     other things, the attorney fees obtained in each case would be split between plaintiff and
     defendant. Defendant would retain 55% of the fee plus reimbursement for costs his office had
     advanced. The remaining 45% of the fee would be paid to plaintiff. The letters of
     understanding further provided that the terms and conditions of the agreement between
     plaintiff and defendant were to be disclosed to the clients and were subject to the clients’
     approval and consent. As requested by defendant, a representative of the plaintiff law firm
     signed each of the letters of understanding to affirm that those letters properly stated “the
     essential terms and agreement reached between [the parties’] offices.”
¶9       The terms and conditions of the referral agreements, including the provision for division of
     attorney fees, were disclosed to and approved by each of the 10 affected clients through written
     “attorney-client agreements.”2 When the client was more proficient in Spanish, the agreement
     was written in that language, but the substantive provisions were identical. The agreements
     began by specifying that plaintiff had contracted with defendant’s law firm to pursue the
     client’s workers’ compensation claim. They then detailed the particular responsibilities
     plaintiff and defendant would assume with respect to the representation.
         1
           For the reasons discussed in an earlier opinion involving the same parties, the circuit court rather
     than the Workers’ Compensation Commission had jurisdiction to hear and decide the dispute between
     the law firms based on the referral agreements. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL
     117443.
         2
           The 10 clients are Juanita E. Garcia, Leoncio Morales, Dolores Hernandez, Eduardo Sajuan, José
     L. Rodriguez, Beatriz Ventura, Miguel Salgado, Fernando Colunga, Maria Tovar, and Carlos Duarte.

                                                     -3-
¶ 10        According to the agreements, plaintiff would do the following: (1) assist defendant with
       initial interviews and document preparation, (2) assist defendant with client contact and
       communication, (3) provide translation services, (4) represent the client in any related
       third-party action (with continued representation by defendant in certain circumstances), and
       (5) maintain a duplicate file containing any correspondence or filings associated with the
       client’s claim. In return, plaintiff would be entitled to 45% of all attorney fees recovered on the
       claim.
¶ 11        The attorney-client agreements further provided that defendant would be responsible for
       (1) preparing any documents and obtaining all records necessary to disposing of the claim;
       (2) representing the client before the Workers’ Compensation Commission3 and conducting
       any investigations, negotiations, and processing necessary for concluding the claim; and
       (3) forwarding status reports to plaintiff at specified intervals or when significant
       developments occurred in connection with the claim. For these services, defendant was to
       receive 55% of all attorney fees recovered on the claim, plus reimbursement for costs advanced
       by defendant.
¶ 12        All 10 attorney-client agreements concluded with the statement “I understand and agree to
       the above terms and conditions” (“Yo entiendo y estoy de acuerdo con *** las condiciones
       escritos arriba” in the Spanish language versions) and were signed and dated by the client, by a
       representative of plaintiff, and by defendant.
¶ 13        According to plaintiff’s second amended complaint, settlements were obtained for each of
       the 10 clients, yielding attorney fees ranging from $700 to $46,000. The total fees for all 10
       cases amounted to $109,390.89. Under the terms of the attorney-client agreements, plaintiff
       was entitled to 45% of this sum. Defendant, however, refused to pay plaintiff its share of the
       fees. Plaintiff therefore sued defendant for breach of contract to recover the unpaid fees it was
       owed, plus prejudgment interest pursuant to the Interest Act (815 ILCS 205/0.01 et seq. (West
       2010)).
¶ 14        Defendant moved to dismiss plaintiff’s second amended complaint pursuant to section
       2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). The sole basis for the
       motion was that the attorney-client agreements failed to comply with Rule 1.5(e) of the Illinois
       Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) and were therefore invalid because
       they failed to expressly state that the plaintiff assumed joint financial responsibility for
       representing the clients.
¶ 15        In response to defendant’s motion, plaintiff did not dispute that where one lawyer refers a
       case to another not in the same firm and the primary service performed by the first lawyer is the
       referral, Rule 1.5(e) requires the attorneys to assume joint financial responsibility for the
       representation if they wish to retain the right to divide the fee. Although the agreements called
       for plaintiff to perform various services with respect to the cases, plaintiff likewise did not
       dispute the primary service it was to perform under each of the agreements was the referral to
       defendant and that, by entering into the agreement, it therefore assumed joint financial
           3
            The English language version of the agreements actually referred to the Commission by its former
       name, the Industrial Commission. The Commission’s named changed to the Workers’ Compensation
       Commission when Public Act 93-721 (eff. Jan. 1, 2005) took effect in 2005, several years before the
       oldest of the agreements was signed. The correct name was used in the Spanish version of the
       agreements.

                                                     -4-
       responsibility under Rule 1.5(e). Plaintiff contended, however, that nothing in the rule required
       that its assumption of joint financial responsibility be expressly stated in the attorneys’
       contracts with the clients. In plaintiff’s view, the absence of such an express statement
       therefore did not render void and unenforceable what were otherwise proper agreements.
       Plaintiff further argued that defendant should be collaterally estopped from challenging the
       validity of the agreements based on failure to comply with Rule 1.5(e) because defendant had
       raised the identical argument in an earlier, related case, the circuit court had rejected it, and
       defendant then elected not to challenge the circuit court’s ruling in an earlier appeal.
¶ 16       In a written order filed July 2, 2015, the circuit court granted defendant’s motion to
       dismiss. The court rejected plaintiff’s estoppel argument and concluded that the language of
       Rule 1.5(e) required the parties’ agreements with their clients to include a provision expressly
       providing that each lawyer would assume joint financial responsibility for the representation. It
       based this interpretation of the rule on the Appellate Court, First District’s opinion in Donald
       W. Fohrman & Associates, Ltd. v. Mark D. Alberts, P.C., 2014 IL App (1st) 123351, ¶¶ 36, 41,
       55, which held (1) that referral agreements involving the division of fees between lawyers who
       are not in the same law firm are not enforceable unless they strictly comply with the provisions
       of Rule 1.5(e) and (2) that the requirement of strict compliance was not met in the matter
       before it where, among other things, the attorney-client agreements failed to provide that the
       lawyers had assumed joint financial responsibility for the matters. Because none of the 10 fee
       agreements at issue in this case specifically addressed the joint financial responsibility of the
       attorneys, the circuit court here held that the agreements were likewise fatally defective and
       that plaintiff’s complaint must therefore be dismissed with prejudice.
¶ 17       Plaintiff appealed. The appellate court agreed with the holding in Fohrman that for a
       fee-sharing agreement to be enforceable, the attorneys involved in the agreement must strictly
       comply with Rule 1.5(e) of the Illinois Rules of Professional Conduct of 2010. 2016 IL App
       (2d) 151148, ¶ 11. Contrary to the Fohrman court, however, the appellate court rejected the
       view that strict compliance required referral agreements involving fee sharing to expressly
       provide that the lawyers assume joint financial responsibility. Id. ¶¶ 12-13. The lawyers did
       have to assume joint financial responsibility; there was no dispute about that. That they were
       doing so, however, did not need to be specifically laid out in their agreement with the client.
       Under the appellate court’s reading of Rule 1.5(e), taking into account the rule’s language (id.),
       committee comments (id. ¶ 14), and history (id. ¶¶ 15-18), “the only thing that the written
       referral agreement must contain is an express statement that the client agrees to the referral and
       the proportion of attorney fees that each attorney involved in the referral agreement will
       receive” (id. ¶ 13). Both requirements were satisfied in each of the 10 agreements at issue in
       this litigation. The appellate court therefore reversed the judgment of the circuit court granting
       defendant’s motion to dismiss and remanded to the circuit court for further proceedings.
¶ 18       Defendant filed no brief when this matter was before the appellate court. Id. ¶ 7. After the
       appellate court ruled in favor of plaintiff, however, defendant petitioned for leave to appeal to
       our court. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016). We allowed that petition. As noted at the
       outset of the opinion, we also granted the Illinois Trial Lawyers Association leave to file a brief
       amicus curiae. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).




                                                    -5-
¶ 19                                             ANALYSIS
¶ 20        As grounds for this appeal, defendant contends that the appellate court’s construction of
       Rule 1.5(e) in this case was erroneous; that the interpretation of Rule 1.5(e) followed by the
       appellate court in Donald W. Fohrman & Associates, Ltd. v. Mark D. Alberts, P.C., 2014 IL
       App (1st) 123351, was the correct one; that under Fohrman, all 10 of the agreements involved
       in this case were invalid and unenforceable; and that the circuit court therefore properly
       dismissed plaintiff’s cause of action in its entirety.
¶ 21        Rule 1.5(e) is part of the Rules of Professional Conduct of 2010, a comprehensive set of
       rules adopted in July 2009 and effective January 1, 2010, to replace the Illinois Rules of
       Professional Conduct. Because the Illinois Rules of Professional Conduct of 2010 are a
       component of the Illinois Supreme Court Rules, we interpret its provisions, including Rule
       1.5(e), just as we would other supreme court rules. See, e.g., People v. Santiago, 236 Ill. 2d
       417, 428 (2010).
¶ 22        The applicable standards are well established. Illinois Supreme Court Rules are construed
       using the same principles that govern the interpretation of statutes. People v. Roberts, 214 Ill.
       2d 106, 116 (2005). When construing a rule of the supreme court, a court’s primary goal is to
       ascertain and give effect to the intent of the drafters. The most reliable indicator of that intent is
       the language used, given its plain and ordinary meaning. In determining the plain meaning of
       the rule’s terms, a court must consider the rule in its entirety, keeping in mind the subject it
       addresses and the apparent intent of the drafters in enacting it. Courts will also interpret the
       rule so that no part of it is rendered meaningless or superfluous and will not depart from the
       plain language of the rule by reading into it exceptions, limitations, or conditions that conflict
       with the expressed intent. People v. Dominguez, 2012 IL 111336, ¶ 16.4
¶ 23        Rule 1.5(e) is one of five subsections of Rule 1.5, the portion of the Rules of Professional
       Conduct governing fees attorneys may charge their clients. Ill. R. Prof’l Conduct (2010) R.
       1.5(e) (eff. Jan. 1, 2010). Subsection (a) of Rule 1.5 requires fees and expenses to be
       reasonable and sets out the factors to be considered in determining the reasonableness of a fee.
       Ill. R. Prof’l Conduct (2010) R. 1.5(a) (eff. Jan. 1, 2010). Subsection (b) addresses the
       obligation of attorneys to communicate to their clients the scope of the representation, the basis
       or rate of the fee and expenses for which the client is responsible, and any subsequent changes
       in the basis or rate of the fees and expenses. Ill. R. Prof’l Conduct (2010) R. 1.5(b) (eff. Jan. 1,
       2010). Subsection (c) authorizes contingent fees, except in certain circumstances, and lays out
       the procedures that must be followed when an attorney charges a client on a contingent fee
       basis. Ill. R. Prof’l Conduct (2010) R. 1.5(c) (eff. Jan. 1, 2010). Subsection (d)(2) specifies
       when contingent fees are not permitted. Ill. R. Prof’l Conduct (2010) R. 1.5(d)(2) (eff. Jan. 1,
       2010). Subsection (e), the provision at issue in this case, addresses the division of fees between
       lawyers who are not in the same firm. Ill. R. Prof’l Conduct (2010) R. 1.5(e) (eff. Jan. 1, 2010).
¶ 24        The language of Rule 1.5(e) is simple and straightforward. It provides:



           4
           And of course, when this court is called upon to interpret one of its own rules, as we are here, we
       have an obvious advantage in discerning the drafters’ intent. That is particularly true when, as with
       Rule 1.5(e), the rule is recent enough that most of the present members of the court participated in its
       adoption.

                                                      -6-
                    “(e) A division of a fee between lawyers who are not in the same firm may be made
                only if:
                         (1) the division is in proportion to the services performed by each lawyer, or if
                    the primary service performed by one lawyer is the referral of the client to another
                    lawyer and each lawyer assumes joint financial responsibility for the
                    representation;
                         (2) the client agrees to the arrangement, including the share each lawyer will
                    receive, and the agreement is confirmed in writing; and
                         (3) the total fee is reasonable.” Id.
¶ 25       Subsection (e) is the most recent in a series of supreme court rules concerning the propriety
       of fee sharing among lawyers not in the same firm. Comparing the language of the various
       rules is helpful in understanding what this court meant to convey when it adopted current Rule
       1.5(e).
¶ 26       For much of its history, Illinois prohibited the sharing of fees between lawyers who were
       not in the same firm where the only service provided by one attorney was the referral of a client
       to the other. Corti v. Fleisher, 93 Ill. App. 3d 517, 531-32 (1981). That changed when this
       court adopted the Illinois Code of Professional Responsibility (Ill. S. Ct. Code of Prof’l Resp.
       R. 1-101 et seq. (eff. July 1, 1980)) in 1980. Holstein v. Grossman, 246 Ill. App. 3d 719,
       731-32 (1993). Section 2-107 of the Code of Professional Responsibility removed the outright
       prohibition against fee sharing based solely on a client referral but made fee-sharing
       arrangements in such cases permissible only if they satisfied various safeguards designed to
       protect the client. Id. at 733. The rule provided:
                    “(a) A lawyer shall not divide a fee for legal services with another lawyer who is
                not a partner in or associate of his law firm, unless
                         (1) the client consents in a writing signed by him to employment of the other
                    lawyer, which writing shall fully disclose (a) that a division of fees will be made,
                    (b) the basis upon which the division will be made, including the economic benefit
                    to be received by the other lawyer as a result of the division, and (c) the
                    responsibility to be assumed by the other lawyer for performance of the legal
                    services in question;
                         (2) the division is made in proportion to the services performed and
                    responsibility assumed by each, except where the primary service performed by
                    one lawyer is the referral of the client to another lawyer and (a) the receiving lawyer
                    fully discloses that the referring lawyer has received or will receive economic
                    benefit from the referral and the extent and basis of such economic benefit and
                    (b) the referring lawyer agrees to assume the same legal responsibility for the
                    performance of the services in question as if he were a partner of the receiving
                    lawyer; and
                         (3) the total fee of the lawyers does not exceed reasonable compensation for all
                    legal services they rendered to the client.
                         (4) For purposes of this rule, ‘economic benefit’ shall include (a) the amount of
                    participation in the fee received with regard to the particular matter; (b) any other
                    form of remuneration passing to the referring lawyer from the receiving lawyer,
                    whether or not with regard to the particular matter; and (c) an established practice

                                                    -7-
                    of referrals to and from or from and to the receiving lawyer and the referring
                    lawyer.
                    (b) This disciplinary rule does not prohibit payment to a former partner or associate
                pursuant to a separation or retirement agreement.” Ill. S. Ct. Code of Prof’l Resp. R.
                2-107 (eff. July 1, 1980).
¶ 27        Under subsection (a)(1) of this rule, the validity of an agreement to share fees required the
       written consent of the client, and the written consent was required to disclose to the client
       certain specific information, namely, the fact that the fees would be divided, the basis on which
       the division would be made, and “the responsibility to be assumed by the other lawyer for
       performance of the legal services in question.” Ill. S. Ct. Code of Prof’l Resp. R. 2-107(a)(1)
       (eff. July 1, 1980). Joint financial responsibility for the representation was not included among
       the mandatory disclosures.
¶ 28        The only place the rule touched on the issue was in a different subsection, (a)(2)(b), which
       stated that in cases where the primary service performed by one lawyer was the referral of the
       client to another lawyer, the referring lawyer had to agree to assume “the same legal
       responsibility for the performance of the services in question as if he were a partner of the
       receiving lawyer.” Ill. S. Ct. Code of Prof’l Resp. R. 2-107(a)(2)(b) (eff. July 1, 1980). The
       quoted language referred to a different obligation than the responsibility for performance of
       legal services referenced in subsection (a)(1) of the rule. It described the financial
       responsibility of the referring lawyer for potential malpractice actions against the receiving
       lawyer. In re Storment, 203 Ill. 2d 378, 392 (2002). But while the rule therefore did broach the
       subject of joint financial responsibility between the lawyers, the referenced responsibility was
       an obligation for which agreement had to be obtained from the referring lawyer. The terms of
       subsection (a)(2)(b) itself contained no language requiring express notice to or agreement by
       the client to the lawyers’ joint financial responsibility, nor is there any language in that
       subsection that can be read as requiring that the referring lawyer’s agreement to assume
       potential financial responsibility be incorporated into the written client consent mandated by
       subsection (a)(1) (Ill. S. Ct. Code of Prof’l Resp. R. 2-207(a)(1) (eff. July 1, 1980)).
¶ 29        In 1990 this court repealed the Illinois Code of Professional Responsibility and adopted the
       Illinois Rules of Professional Conduct (Ill. R. Prof’l Conduct R. 1.5 (eff. Aug. 1, 1990)) in its
       place. The Rules of Professional Conduct combined fee-related issues into a single rule, as do
       the 2010 Rules under examination in this case. The new rule, designated as Rule 1.5, included
       successor provisions to Rule 2-107 of the Illinois Rules of Professional Conduct. As with Rule
       2-107, Rule 1.5 permitted fee sharing between lawyers who are not in the same firm, but only
       under specified conditions.
¶ 30        Those conditions were broken down into five separate subsections. The relevant
       subsections stated:
                    “(f) Except as provided in Rule 1.5(j), a lawyer shall not divide a fee for legal
                services with another lawyer who is not in the same firm, unless the client consents to
                employment of the other lawyer by signing a writing which discloses:
                        (1) that a division of fees will be made;
                        (2) the basis upon which the division will be made, including the economic
                        benefit to be received by the other lawyer as a result of the division; and


                                                   -8-
                        (3) the responsibility to be assumed by the other lawyer for performance of the
                   legal services in question.
                   (g) A division of fees shall be made in proportion to the services performed and
               responsibility assumed by each lawyer, except where the primary service performed by
               one lawyer is the referral of the client to another lawyer and
                        (1) the receiving lawyer discloses that the referring lawyer has received or will
                   receive economic benefit from the referral and the extent and basis of such
                   economic benefit, and
                        (2) the referring lawyer agrees to assume the same legal responsibility for the
                   performance of the services in question as would a partner of the receiving lawyer.
                   (h) The total fee of the lawyers shall be reasonable.
                   (i) For purposes of Rule 1.5 ‘economic benefit’ shall include:
                        (1) the amount of participation in the fee received with regard to the particular
                   matter;
                        (2) any other form of remuneration passing to the referring lawyer from the
                   receiving lawyer, whether or not with regard to the particular matter; and
                        (3) an established practice of referrals to and from or from and to the receiving
                   lawyer and the referring lawyer.
                   (j) Notwithstanding Rule 1.5(f), a payment may be made to a lawyer formerly in the
               firm, pursuant to a separation or retirement agreement.” Ill. R. Prof’l Conduct R.
               1.5(f)-(j) (eff. Aug. 1, 1990).
¶ 31        As with Rule 2-107(a) of the Illinois Code of Professional Responsibility, Rule 1.5 of the
       Illinois Rules of Professional Conduct required written client consent to fee-sharing
       arrangements. The content of those agreements was specified in subsection (f) of Rule 1.5 and
       included the same three elements mandated by Rule 2-107(a). As the text quoted above
       indicates, the document was required to disclose that the fees would be divided with another
       lawyer, the basis upon which that division would be made, and the responsibility to be assumed
       by the other lawyer for performance of the legal services in question. Ill. R. Prof’l Conduct R.
       1.5(f) (eff. Aug. 1, 1990). Subsection (f) of Rule 1.5 made no reference to joint financial
       responsibility, much less make it a requirement of the client’s written consent. As with Rule
       2-107, Rule 1.5 touched on the subject only in a different subsection, (g)(2), which stated that
       the referring lawyer must agree to assume “the same legal responsibility for the performance
       of the services in question as would a partner of the receiving lawyer.” Ill. R. Prof’l Conduct R.
       1.5(g)(2) (eff. Aug. 1, 1990). As was the case under Rule 2-107, nothing in Rule 1.5 required
       that obligation to be included in the written consent signed by the client.
¶ 32        When this court repealed the Illinois Rules of Professional Conduct in 2010 and replaced
       them with the Illinois Rules of Professional Conduct of 2010, which remain in effect today, it
       again continued to permit division of fees between lawyers who are not in the same firm
       provided that certain conditions are met. The applicable conditions, however, have been
       reduced to three. First, the division must be in proportion to the services each attorney actually
       rendered or, in cases where the primary service provided by one lawyer was the referral of the
       client to another lawyer, both lawyers must assume joint financial responsibility for the
       representation as a whole. Ill. R. Prof’l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010). Second,


                                                   -9-
       the client must agree in writing to the arrangement, including the share each attorney is to
       receive. Ill. R. Prof’l Conduct (2010) R. 1.5(e)(2) (eff. Jan. 1, 2010). Third, the total fee
       charged to the client must be “reasonable” (Ill. R. Prof’l Conduct (2010) R. 1.5(e)(3) (eff. Jan.
       1, 2010)), a determination governed by factors set out in subsection (a) of Rule 1.5 (Ill. R.
       Prof’l Conduct (2010) R. 1.5(a) (eff. Jan. 1, 2010)). Ill. R. Prof’l Conduct (2010) R. 1.5,
       Comment, Division of Fee (eff. Jan. 1, 2010).
¶ 33       The reference to “joint financial responsibility” in the first of these three conditions
       “entails financial responsibility for the representation as if the lawyers were associated in a
       general partnership.” It is the same as the “legal responsibility” referenced in Rule
       2-107(a)(2)(b) of the Illinois Code of Professional Responsibility (eff. July 1, 1980) and Rule
       1.5(g)(2) of the previous Illinois Rules of Professional Conduct (eff. Aug. 1, 1990). See Ill. R.
       Prof’l Conduct (2010) R. 1.5, Comment, Division of Fee (citing In re Storment, 203 Ill. 2d 378
       (2002)).
¶ 34       Defendant’s appeal in this case turns on the proposition that under the current version of
       our fee-sharing rule, the existence of an agreement between the referring and receiving lawyers
       to assume joint financial responsibility is something that must be expressly included in the
       attorneys’ agreements with their clients. History and the language of the rule do not support
       defendant’s position. As with the prior versions of our fee-sharing rules, the current joint
       financial responsibility requirement is included in a different subsection of the rule than the
       provision addressing what the client must agree to. Consistent with its predecessors, the client
       consent provision, now set forth in Rule 1.5(e)(2), makes no mention of the attorneys’
       assumption of joint financial responsibility. Indeed, in contrast to the prior versions of the rule,
       it no longer even requires an explanation to the client of the attorneys’ respective
       responsibilities with respect to the legal services to be rendered on the client’s behalf or the
       basis on which the fees will be divided. Now all the written consent must include is that the
       client has agreed to the “arrangement,” i.e., the referral of the case and the division of fees
       between the referring and receiving lawyers, including how much each lawyer will receive. Ill.
       R. Prof’l Conduct (2010) R. 1.5(e)(2) (eff. Jan. 1, 2010). The 10 client retainer agreements in
       this case contained considerably more information than that.
¶ 35       Because Rule 1.5(e)(2) does not, itself, directly address the joint financial responsibility
       lawyers are required to assume if they wish to divide fees under a referral agreement,
       defendant can prevail only if the client consent requirement in Rule 1.5(e)(2) can be read as
       incorporating the joint responsibility obligation, which is set forth in Rule 1.5(e)(1). We reject
       that construction. Rule 1.5(e)(2) does not incorporate Rule 1.5(e)(1). To the contrary, now, as
       before, each of Rule 1.5’s three subsections constitutes a separate condition that must be
       satisfied in order for a fee-sharing agreement to be enforceable. They are in the nature of a
       checklist in which each of the enumerated items must be crossed off before moving to the next,
       and all must be checked off before the fees may be divided. First, when the primary service
       performed by one lawyer is the referral of the client to another, both lawyers must assume joint
       financial responsibility for the representation. Second, the client has to agree to the referral and
       fee-sharing arrangement, including how much each lawyer will get, and the client’s agreement
       must be confirmed in writing. Third and finally, the total fee charged to the client must be
       reasonable. The steps proceed in a manner that is both chronological and logical.



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¶ 36       To hold otherwise would require a finding that when we adopted the current version of the
       fee-sharing rule, we intended its provisions to operate differently than its predecessors and to
       expand the required content of written client consent to fee-sharing arrangements in situations
       where the primary service performed by one lawyer is the referral of the client to the other. As
       we have already described, however, the current rule actually reduced the conditions which
       must be satisfied in order for fees to be divided between lawyers who are not in the same firm.
       In light of that change, which is apparent in the text of the rule, and absent any supporting
       evidence in either the rule itself or elsewhere, it is difficult to see what possible basis we would
       have for now holding that the rule should be read more expansively to include the additional
       requirement on which defendant’s position depends.
¶ 37       In urging a contrary interpretation, defendant, like the trial court, looks for support in
       Donald W. Fohrman & Associates, Ltd. v. Mark D. Alberts, P.C., 2014 IL App (1st) 123351.
       That decision, however, will not carry the analytical weight defendant has asked it to bear. The
       appellate court in Fohrman did agree that a fee-sharing agreement that failed to include a
       provision advising the client that the attorneys had assumed joint financial responsibility failed
       to strictly comply with Rule 1.5(e) and was therefore unenforceable. The agreements in that
       case, however, suffered from numerous deficiencies, and the attorney seeking to enforce them
       did not dispute that they failed to conform to Rule 1.5(e). Id. ¶ 36. In the face of that
       concession, the appellate court refrained from undertaking any analysis whatever as to whether
       Rule 1.5(e) actually requires the agreement from the client to include a provision regarding the
       attorneys’ acceptance of joint financial responsibility. It simply took such a requirement as a
       given. Its focus, instead, was on whether the fee-sharing agreements could be enforced
       notwithstanding the failure to strictly comply with Rule 1.5(e) (id. ¶¶ 37-56), a point not
       contested here. Defendant’s reliance on Fohrman is therefore unavailing.
¶ 38       Rule 1.5 and its predecessor provisions have required disclosure of fee-sharing
       arrangements in order to preserve a client’s right to be represented by the attorney of his or her
       choosing. Canel & Hale, Ltd. v. Tobin, 304 Ill. App. 3d 906, 915 (1999). That right was fully
       protected by the joint client retainer agreements executed in this case. The rule’s joint financial
       responsibility requirement, as the appellate court in this case correctly recognized, is directed
       to protection of a different value, insuring that if one of the lawyers involved in the referral is
       sued for malpractice, the other will also be liable as would be lawyers in a general partnership.
       Ferris, Thompson, & Zweig, Ltd. v. Esposito, 2016 IL App (2d) 151148, ¶ 14. This protection
       exists whether it is included in the notice to the client or not. Id. Defendant has cited no
       authority to the contrary. Its inclusion in the notice and client consent is therefore not necessary
       in order to give effect to the attorneys’ joint financial responsibility.
¶ 39       We note, moreover, that if the clients in this case had retained a single law firm with
       multiple partners, our Rules of Professional Conduct would not have required the retainer
       agreements to expressly notify the clients, in writing, as a precondition to enforcement of the
       fee agreement, that the partners would be subject to liability along with the attorney providing
       the actual legal services if that attorney committed malpractice. Defendant has not explained,
       and we do not see, why the situation should be any different where, as here, the lawyers
       involved have agreed to assume the very same joint financial responsibility but simply do not
       practice in the same firm. As we have pointed out, the clients are protected either way.



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¶ 40        If this court had intended to require that the assumption of joint financial responsibility by
       the attorneys be included among the items for which the client is required to give express
       written consent, we could readily have done so. Indiana law provides an example of such an
       approach. In a now-superseded counterpart to Rule 1.5(e), the Indiana Supreme Court included
       written client consent in the initial provision dealing with joint responsibility. The rule
       provided:
                     “A division of fee between lawyers who are not in the same firm may be made only
                 if:
                         (1) the division is in proportion to the services performed by each lawyer or, by
                     written agreement with the client, each lawyer assumes joint responsibility for the
                     representation;
                         (2) the client is advised of and does not object to the participation of all the
                     lawyers involved; and
                         (3) the total fee is reasonable.” (Emphasis added.) In re Hailey, 792 N.E.2d
                     851, 862 (Ind. 2003).
       Under the Indiana rule, the assumption of joint responsibility by the lawyers was expressly,
       directly, and unambiguously linked to a requirement of written client consent. Our version of
       the rule, by contrast, contains no such language. To read it as if it did would require us to depart
       from the rule’s plain language and insert a condition we did not express when the rule was
       adopted. Under basic rules of construction, that is something we may not do. See Gaffney v.
       Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 56.
¶ 41        We therefore agree with plaintiff that the fee-sharing provisions of the 10 joint client
       retainer agreements at issue in this case were not fatally defective under Rule 1.5(e) of the
       Illinois Rules of Professional Conduct of 2010 simply because they did not contain language
       specifically stating that plaintiff and defendant had agreed to assume joint financial
       responsibility for the representation. The circuit court therefore erred as a matter of law when it
       dismissed plaintiff’s second amended complaint on that basis, and its judgment was properly
       reversed by the appellate court. In light of this conclusion, we need not address plaintiff’s
       additional contentions that certain of the retainer agreements were not subject to the current
       version of Rule 1.5(e) because they were signed before the Rules of Professional Conduct took
       effect or that defendant should be estopped from contesting the validity of the agreements
       under Rule 1.5(e) based upon his failure to pursue the question in an earlier appeal.

¶ 42                                         CONCLUSION
¶ 43      For the foregoing reasons, the judgment of the appellate court is affirmed, and the cause is
       remanded to the circuit court for further proceedings consistent with this opinion.

¶ 44      Appellate court judgment affirmed.
¶ 45      Cause remanded.




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