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On July 2, 1997, Pochopien gave Marshall 30 days' notice inwriting of his intended withdrawal from the Marshall partnership inaccordance with paragraph 8-2 of the Agreement.

After Pochopien's withdrawal from the partnership, Marshallwithheld from him about $47,680, for the year following hisdeparture. This amount represented a deduction for Pochopien'sshare of Marshall's lease obligation, which Marshall continues towithhold, on the basis that paragraph 8-5 of the Agreement allowsthis reduction in the amounts owed to Pochopien from his capitalaccount. Pochopien made a demand upon Marshall to pay him the fullamount of his capital account, which Marshall refused. Pochopienreceived distributions from Marshall on August 12, 1997 andSeptember 12, 1997. No deduction for his proportionate share ofthe lease for Marshall's office space for the month of August 1997was made. Pochopien alleges that paragraph 8-5 is void because itcontravenes Rule 5.6 of the Illinois Code of Professional Conduct(Rule 5.6), as well as the public policy underlying Rule 5.6.⁽²⁾

Pochopien further alleged that Marshall selectively enforcedparagraph 8-5 against attorneys withdrawing to practice law atother law firms, but not against attorneys moving to corporations(i.e., prospective clients), using paragraph 8-5 as a restrictionin fact of an attorney's right to practice law, and as adisincentive for Pochopien to practice law at any firm other thanMarshall. Pochopien also alleged that in about February 1994,Marshall waived enforcement of paragraph 8-5 against departingpartner, Lewis Gruber, who joined Hyseq, Inc., and in February orMarch 1998, Marshall allegedly waived enforcement of paragraph 8-5against departing partner, Kevin Hogg, who joined Proctor andGamble. Also, in about 1998, Marshall allegedly waived enforcementof paragraph 8-5 against departing partner, Cynthia Schaller, whoceased practicing law in order to enter divinity school.

In count I of his complaint, Pochopien requested that thecircuit court declare his and Marshall's rights and liabilitiespursuant to the Agreement; enter a finding that paragraph 8-5 ofthe Agreement violates Rule 5.6 and is void and unenforceable;enter an award of money damages in his favor against Marshall in anamount equal to the amount of his entire capital account withoutany deduction or reductions; enter an award of interest on anyjudgment entered in his favor against Marshall pursuant to section2-1303 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1303(West 1996)); enter an award of costs in his favor against Marshall pursuant to section 2-701 of the Code (735 ILCS 5/2-701 (West1996)) and any further relief deemed just and proper.

In count II, Pochopien claimed that Marshall has waived anyclaim to deduct any amounts under paragraph 8-5, through itsactions in waiving enforcement of Agreement paragraph 8-5 againstdeparting partners, Lewis Gruber, Kevin Hogg, and Cynthia Schaller,and through its making distributions to him for August andSeptember without deducting any monies for his proportionate shareof the lease for office space for the month of August 1997. CountII sought the same relief requested in count I, except that insteadof seeking a finding that Agreement paragraph 8-5 violates Rule 5.6and is void and unenforceable, Pochopien prayed that the circuitcourt enter a finding that defendant has waived enforcement of paragraph 8-5.

On January 6, 1999, Marshall moved to dismiss Pochopien'sverified complaint for declaratory judgment and other reliefpursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615,2-619 (West 1996) (sections 2-615, 2-619)) with a supportingmemorandum. Marshall contended that Agreement paragraph 8-5 of thedoes not restrict Pochopien's right to practice law and thereforedoes not violate Rule 5.6, and affirmative matter establishes thatMarshall had not waived or discriminatorily enforced paragraph 8-5as to Pochopien.

Marshall's motion to dismiss was further supported by theaffidavit of Carl Moore, Chairman of Marshall's managementcommittee, who expressly averred: lease payments were withheldfrom a distribution made to Pochopien on September 17, 1997, andfrom subsequent monthly distributions; the reason for not deductingPochopien's proportionate share of the firm's lease obligationsfrom his August 1997 and September 12, 1997 distributions is thatMarshall was in the process of determining the amount of those obligations and wanted to ensure that he received all amounts towhich he was entitled; even after the August 1997 and September 12,1997 distributions, Marshall retained sufficient amounts inPochopien's capital account, plus future collections to which hewould be entitled, to meet his lease obligations for one year; and,by making the August and September 12, 1997 distributions, Marshalldid not intend to waive or believe it was waiving its right toenforce the lease payment obligations of paragraph 8-5.

Moore averred also that Hogg withdrew from the Marshallpartnership in 1998 and became an in-house counsel for Proctor andGamble, a Marshall client; Schaller withdrew from the Marshallpartnership in 1998 and entered divinity school; Marshall did notwaive paragraph 8-5 with respect to Hogg or Schaller as both Hoggand Schaller each fulfilled their one-year lease paymentobligations in full, with Marshall assuming any liability of Hoggand Schaller lease obligations after the year; before Pochopienwithdrew from the Marshall partnership, only one other partner hadwithdrawn from the partnership, Jeffrey Smith, who withdrew on June1, 1997, who also fulfilled his lease obligations in full. Marshall assumed any liability of Smith for lease obligations afterthe one year.

Moore further averred that Marshall did not waive enforcementof Agreement paragraph 8-5 when another partner, Lewis Gruber,withdrew from Marshall prior to Pochopien's departure fromMarshall; Gruber was a party to an earlier partnership agreementcontaining language substantially similar to that of paragraph 8-5;Gruber withdrew from partnership with Marshall in 1994 to becomepresident of Hyseq, Inc., a Marshall client; in an effort to retainHyseq, Inc. as a client and to obtain additional legal work,Marshall "made the legitimate and sound business decision not torequire Gruber to make any lease payments after he withdrew fromthe partnership;" however, Marshall never assumed any of Gruber'sliability for future lease obligations.

In his deposition, Moore testified that Marshall chose not toenforce the forfeiture provision of paragraph 8-5 against Gruberbecause the latter left Marshall to become president and chiefexecutive officer of Hyseq, Inc., a "significant firm client," thearrangement with Gruber being "a quid pro quo," whereby he receivedhis post-withdrawal distributions without a pro-rata deduction forrent but, in exchange, he remained liable subsequently as aguarantor on Marshall's office lease. According to Moore, the firmfelt it had no alternative but to grant Gruber's request as to therent obligation in light of his position with their client. On July 9, 1999, following a hearing, the circuit courtentered its order granting Marshall's motion and dismissing withprejudice Pochopien's complaint in its entirety under section 2-619. This appeal followed.

Pochopien first contends that the circuit court erred indismissing count I of his complaint under section 2-619 because, onits face, paragraph 8-5 of the Agreement imposes a financialdisincentive for him to practice law at any firm other thanMarshall; therefore, it is an indirect restraint on an attorney'sright to practice law, violating the language of and the publicpolicy underlying Rule 5.6.

A section 2-619 motion to dismiss is expected to raise defectsor defenses that negate a cause of action or refute crucialconclusions of law or material fact that are unsupported byallegations of specific fact in the complaint. Peter J. HartmannCo. v. Capital Bank and Trust Co., 296 Ill. App. 3d 593, 600, 694N.E.2d 1108 (1998). All well-pleaded facts in the complaint areadmitted, together with all reasonable inferences gleaned fromthose facts, for a determination as to whether significant factsare contained in the pleadings, which, if established, wouldentitle the complainant to relief; there should be no dismissal onthe pleadings, unless it clearly appears no set of facts can beproved under the pleadings which will entitle the complainant torecover. Peter J. Hartmann Co., 296 Ill. App. 3d at 600. Factsand evidence must be viewed in the light most favorable to the non-moving party. Williams v. Board of Education of the City ofChicago, 222 Ill. App. 3d 559, 562, 584 N.E.2d 257 (1991). If itcannot be determined with reasonable certainty that the allegeddefense exists, the motion should not be granted. ConsumerElectric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703, 501N.E.2d 156 (1986). A section 2-619 motion is subject to de novoreview. Peter J. Hartmann Co., 296 Ill. App. 3d at 600. Thequestion presented on appeal is "`whether the existence of agenuine issue of material fact should have precluded the dismissalor, absent such an issue of fact, whether dismissal is proper as amatter of law.'" Zedella v. Gibson, 165 Ill. 2d 181, 185-86, 650N.E.2d 1000 (1995), quoting Kedzie & 103^rd Currency Exchange, Inc.v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).

Pochopien asserts that Marshall's position in this case isanalogous to that taken by the defendant law firm in Katchen v.Wolff & Samson, 258 N.J. Super. 474, 610 A.2d 415 (1992) (Katchen),since on its face the forfeiture provision of paragraph 8-5 isapplied equally against all withdrawing partners, with theexception of Lewis Gruber. He argues that under Marshall's ownconstruction, paragraph 8-5 is a blanket application of thefinancial disincentive provision, which is the type that theKatchen court characterized as "even more draconian" than therestriction in Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10,607 A.2d 142 (1992) (Jacob), the case upon which the Katchen courtrelied, which was applied only to those withdrawing attorneys whocontinued to represent the firm's clients. Katchen, 610 A.2d at419. Pochopien misreads both the Agreement and the authoritiesupon whom he relies.

Paragraph 8-5 provides that, for one year followingwithdrawal, any withdrawing partner remains liable proportionatelyon Marshall's lease obligations for firm office space; in return,after the one-year period, the partnership assumes the withdrawingpartner's remaining lease commitment, thereby obligating eachpartner to support its lease commitment for firm office space foronly one year. Paragraph 8-5 must be read together with paragraph8-3(iv), which provides that, after withdrawing from the firm, apartner is entitled to receive "[t]he partner's share ofparticipation in the firm's fee receipts collected after the dateof withdrawal for services rendered by the firm prior to the dateof withdrawal ***. Any liability of a partner under paragraph 8-5may first be satisfied from this share." (Emphasis added.) Underthe Agreement, then, withdrawing partners continue to share in thefirm's revenues and, as a corollary, also remain responsible forcertain expenses e.g., the firm's lease payments.

Entirely unlike the Agreement signed by Pochopien, theagreements in dispute in Jacob and Katchen contained provisionsthat were restrictive and had the effect of discouragingcompetition from departing partners. In Jacob, former partnerssued the law firm for compensation they claimed they were owedunder a service termination agreement that "provide[d] departingmembers with compensation above their equity interest in the firm"based upon formulas set forth in the agreement. Jacob, 607 A.2d at144. The Jacob agreement drew a sharp distinction betweencompetitive departures and non-competitive departures. Jacob, 607A.2d at 145. In a competitive departure, "'the Law Firm shall haveno obligation to pay and the Member shall have no right to receiveany termination compensation'" (emphasis added), clearlyrestricting the attorneys' right to practice law in violation ofNew Jersey Rule 5.6. This provision created a financialdisincentive on a withdrawing attorney's retaining the firm'sclients.

Also unlike the instant Agreement, in Katchen, a departingpartner sought to invalidate the firm's partnership agreement,which provided that an equitable stockholder voluntarilywithdrawing from the corporation will be deemed to have forfeitedhis equitable interest in the corporation, and will "not berequired to make any payment whatsoever in regard to such forfeitedequitable interest." Katchen, 610 A.2d at 417 (emphasis added). There, plaintiff "forfeit[ed] his interest in '[t]he right toreceive a share of close to a million dollars worth of businessthat [he] originated and the firm collected when [he] left.'" Katchen, 610 A.2d at 418. The Katchen court concluded that theprovision violated Rule 5.6 because it was "draconian" and"anticompetitive in the broadest sense" in that it required theplaintiff to "completely forfeit[] any interest he may haveacquired by becoming an equitable stockholder simply by deciding topractice law elsewhere," patently discouraging and penalizingcompetitive practice by the departing attorney. Katchen, 610 A.2dat 419.

Further, the Agreement signed by Pochopien contains no non-competition provision, no restrictive covenant, no forfeiture ofearnings provision, or any other similar terms, only a withdrawingpartner's rights and obligations with respect to future leasepayments under which Pochopien remains liable for the leasepayments for only one year, regardless of whether he works for acompeting firm, takes clients with him, or leaves the practice oflaw altogether. Pochopien continues to share in Marshall's revenueattributable to him, which is collected after he withdraws from thefirm regardless of whether, where and for whom he decides tocontinue to practice law.

Nevertheless, citing Denburg v. Parker Chapin Flattau andKlimpl, 82 N.Y.2d 375, 624 N.E.2d 995 (1993) (Denburg), Pochopieninsists that at least one court has held that a law firm could notrecoup its expenses for lease obligations from a withdrawingpartner. The partnership provision in Denburg, however, wouldforce a departing partner to disgorge a certain percentage of thebillables at his new firm if he continued to represent clients ofthe former firm. Denburg, 624 N.E.2d at 997. Although the lawfirm viewed the provision as designed to ensure payment of thefirm's lease obligation, the court struck down the provisionbecause it was anticompetitive on its face. The amount a partnerhad to pay was directly proportional to whether or not herepresented former firm clients; departing partners would not beliable to their former firm if they refrained from representing anyold clients, entirely distinguishable from the present Agreement.

Clearly, paragraph 8-5 of the present Agreement is faciallyneutral, unlike those involved in the cases upon which Pochopienrelies; it has nothing to do with whether a withdrawing partnerleaves to compete or not compete with Marshall. Simply stated,withdrawing partners continue to share in the firm's revenues andalso remain liable for certain expenses, such as the firm's leaseobligations, and that only for a limited time. In Shuttleworth,Ruloff & Giordano, P.C. v. Nutter, 254 Va. 494, 493 S.E.2d 364(1997), the Virginia Supreme Court found a lease provision similarto the one at issue here enforceable because the intent of theprovision was not to restrict competition, but to ensure payment ofthe firm's lease obligations. The same is true with regard toAgreement paragraph 8-5.

Pochopien next contends that the circuit court erroneouslydismissed count I of his verified complaint because the well-pleaded facts allege that Marshall selectively enforced paragraph8-5 against him in an anti-competitive manner in violation of Rule5.6. At the time of his voluntary withdrawal, Pochopien assertsthat Marshall selectively waived paragraph 8-5 as applied to avoluntarily withdrawing partner who went to a corporation, butenforced the provision against Pochopien and Smith, who went towork at competing law firms. Accordingly, paragraph 8-5, asallegedly selectively enforced by Marshall at the time ofPochopien's withdrawal, imposed a financial disincentive on himthat was intended to discourage competitive activities, violatingboth the language and spirit of Rule 5.6.

The undisputed facts in this case establish that Marshall hasnot applied paragraph 8-5 in such a way as to discriminate againstthose withdrawing partners who subsequently compete against thefirm. Moore's affidavit reveals, however, that withdrawingpartners Hogg, who left for Proctor & Gamble, Schaller, who leftfor divinity school, and Smith, who left for a Wisconsin law firm,each fulfilled their one-year lease payment obligations in full andMarshall assumed liability for their lease obligations thereafter. Marshall has enforced paragraph 8-5 as to withdrawing partnerswhether or not they join a law firm competitor. Marshall enteredinto a special arrangement with Gruber, honoring his request not toenforce the lease payment provision as to him because he wasleaving the firm to become president and chief executive officer ofa significant client firm and would be in a position to sendMarshall additional legal work. Significant, also, is the factthat, in turn, Marshall never assumed Gruber's future leaseobligations. Marshall's special arrangement with Gruber cannot beread so as to constitute discrimination against other withdrawingpartners, who compete with the firm.

There is no evidence that Marshall selectively enforcedAgreement paragraph 8-5, and the circuit court properly so ruled.

As his final argument, Pochopien contends that the circuitcourt erred when it dismissed count II of his complaint because onone or more occasions Marshall waived enforcement of paragraph 8-5.

Pochopien asserts that the uncontradicted pleadings andevidence before the court, namely his complaint and Marshall'sadmissions, show that Marshall waived enforcement of the forfeitureprovision of paragraph 8-5 against him when it made monthlypayments to him on August 12 and September 12, 1997 withoutwithdrawing or accounting for withdrawal of the pro rata share ofthe rent for August and September 1997, and against Gruber, aformer Marshall partner who voluntarily withdrew from the Marshallpartnership before he did and, in doing so, created an expectationof waiver of enforcement against other voluntarily withdrawingpartners, such as Pochopien. He asserts that waiver by Marshall orits agents, whether accidental or intentional, is a question offact and the court here allegedly erred because it failed to readall inferences in his favor. Pochopien concludes that, on itsface, Marshall's acts constituted waiver; however, when allinferences are drawn in his favor, the court erred in dismissingcount II for failure to state a claim upon which relief can begranted.

The waiver of a contract provision requires the voluntaryrelinquishment of a known right. Midwest Television, Inc. v.Oloffson, 298 Ill. App. 3d 548, 558, 699 N.E.2d 230 (1998). If thefacts necessary to support a finding of waiver are disputed, or ifreasonable minds could draw different inferences from the evidence,waiver becomes a question of fact. Midwest Television, Inc., 298Ill. App. 3d at 558.

There is but one possible inference in this case; therefore,no question of fact exists as to whether Marshall voluntarilywaived its rights. Moore averred that Marshall did notintentionally relinquish any rights with respect to Pochopien; Hoggand Schaller fulfilled their one-year lease obligations in fulland, accordingly, Marshall assumed their respective liabilities forfuture obligations under the lease; and although Gruber did notfulfill his one-year lease obligation, Marshall did not assume hisliability for future lease payment obligations. Even if Marshall'sarrangement with Gruber could be construed as a partial waiver,under the undisputed circumstances, it would not constitute awaiver as to Pochopien. The non-enforcement of a provision as toprevious employees in different situations is insufficient toconstitute waiver as to a subsequent employee (Midwest Television,Inc., 298 Ill. App. 3d at 559).

Making its first two payments to Pochopien without deductinghis portion of lease obligations for the subject year shows nointent by Marshall to waive its right to enforce paragraph 8-5 asto him, since his remaining distributions were more than sufficientto cover his share of the lease obligations for that year.

Based on the foregoing, the circuit court did not err ingranting Marshall's section 2-619 motion, dismissing with prejudicePochopien's complaint in its entirety. For the reasons set forthabove, the judgment of the circuit court of Cook County isaffirmed.

Affirmed.

THEIS, P.J., and GREIMAN, J., concur.

1. Article VII, paragraph 7-2 provides, in part:

"An individual Capital Account shall bemaintained for each partner to record hiscontributions to the capital accounts of thefirm, which contributions shall be based onhis participation percentage in net income for the year in which the contributions are made. No partner shall be entitled to receiveinterest on his Capital Account. *** Noother withdrawals or contributions to capitalshall be made by any partner, except in theevent of withdrawal from the firm as set forthin Article VIII, or unless pursuant to theexpress written consent of the managementcommittee."

Article VIII of the Agreement to which reference is made,specifically paragraph 8-2, in part provides:

"Any partner may voluntarily withdraw from thefirm upon giving to the chairman of themanagement committee thirty days (or suchgreater or lesser time as the managementcommittee may approve on the request of thewithdrawing partner) prior notice in writingof his intention to do so."

Article VIII, paragraph 8-3(i) of the Agreement provides:

"Any partner withdrawing from the firm andgiving written notice as prescribed onparagraph 8-2 shall be entitled to receive:

(i) The amount of the Capital Account (asdefined in paragraph 7-2, supra) standing tohis credit as of the end of the business dayof the withdrawal date, said amount to be paidin monthly installments within one year of thedate of withdrawal, or in such lesser time as the management committee may direct. Thewithdrawing partner shall be liable for anydeficiency."

Further, Article VIII, paragraph 8-5 of theAgreement ("the forfeiture provision") states in part:

"Any partner withdrawing voluntarily shallremain liable in accordance with hispartnership participation percentage thatexisted immediately prior to his withdrawalfor any continuing obligation of the firm tomake payments on any lease for firm officespace in effect at the time he gives writtennotice of withdrawal, for the remaining termof said lease, but not for more than a one (1)year period following the effective date ofhis withdrawal. *** Upon the expiration ofsaid period, the partnership agrees to assumeany further liability of the withdrawingpartner to make such payments."

2. Rule 5.6 of the Illinois Code of Professional Conductprovides:

"A lawyer shall not participate in offering ormaking:

a) a partnership or employment agreement

that restricts the rights of a lawyer topractice after termination of arelationship, except an agreementconcerning benefits upon retirement; or

b) an agreement in which a restriction onthe lawyer's right to practice is part ofthe settlement of a controversy betweenprivate parties." 134 Ill. 2d R.5.6.