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THIRD DIVISION
JUNE 29, 2001

Plaintiff, Abbey Fishman Romanek, appeals the order of thecircuit court dismissing her second amended complaint withprejudice, pursuant to sections 2-615(a) and 2-619(a)(9) of theCivil Practice Act (Act) (735 ILCS 5/2-615(a), 5/619(a)(9) (West1998)), against defendants, Michael Connelly, John Schroeder,Thomas Tobin, Raymond Stachnik, Eugene Kraus, Daniel Konicek,Michael Hannigan, Brandt Madsen and Mary Lisa Kamins,individually and as general partners of defendant law firmConnelly & Schroeder (collectively referred to hereinafter as"Connelly & Schroeder"), for breach of contract, breach offiduciary duty and intentional interference with prospectiveeconomic advantage.

Plaintiff, an attorney, is a former member of Connelly &Schroeder. During her employment, she brought in a contingentfee case through a lawyer she knew. When she left the firm,there was an agreement for plaintiff to receive a portion of anyfee generated by the referral case. The principal issue in thiscase is whether the parties' agreement to share in the contingentfee recovered in the referral case is enforceable under Rule 1.5of the Rules of Professional Conduct ("RPC").

For the following reasons, we affirm in part, reverse inpart, and remand for further proceedings.

The following facts are derived from the well-pleaded factsof plaintiff's second-amended complaint and the reasonableinferences drawn therefrom, which for purposes of this appealmust be accepted as true (In re Chicago Flood Litigation, 176Ill. 2d 179, 184, 680 N.E.2d 265, 268 (1998)), as well as otherrecord materials properly before us on this appeal.

From October 1995 to August 1998, plaintiff was an associatemember of the Chicago law firm of Connelly & Schroeder. At somepoint during that time period, Connelly & Schroeder received,through plaintiff, litigation between Thunderhead Beverages Inc.and Dana Plastics, which had been referred to plaintiff by apersonal acquaintance and attorney in Cincinnati, Ohio. Thunderhead ultimately retained Connelly & Schroeder to representit, on a contingency fee basis, in the litigation with DanaPlastics. Thunderhead also retained the law firm to represent itin other matters in which it was involved at the time. Inaddition to bringing the case to the law firm, plaintiff providedsome services on Thunderhead's behalf at the inception of theDana Plastics case.

Plaintiff subsequently left Connelly & Schroeder in August1998 and, pursuant to an oral separation agreement, was allowedto take certain medical insurance cases she was handling at thetime. In addition to outlining the terms of plaintiff'sdeparture from the law firm, the separation agreementadditionally contained an alleged "fee sharing agreement"arranged between plaintiff and two of the firm's partners,Michael Connelly and Daniel Konicek. According to the amendedcomplaint, plaintiff intended to take the Dana Plastics case andall other Thunderhead matters with her. When presumably learningof plaintiff's intentions, Connelly allegedly stated to plaintiffthat the law firm "would like to keep the Thunderhead cases and*** [that it would] give [her] a referral fee if [she] agree[d]to leave the cases" with it. Konicek similarly asked plaintiffto leave all Thunderhead matters in exchange for the payment of afee. The record indicates that the firm's payment was to be madesolely from the contingency fee generated from the Dana Plasticsmatter. Plaintiff accepted the foregoing offers and made noattempt to take any Thunderhead cases when she left the firm'semployment.

The amended complaint does not identify the particular termsof the parties "fee sharing" arrangement. For instance, thecomplaint does not identify the amount and basis of the fee to bepaid plaintiff. The only contractual provision specified is thatConnelly & Schroeder had the obligation to "either *** obtain or*** make a good faith attempt to obtain the written consent ofthe client, Thunderhead, to the *** fee sharing agreement." Connelly & Schroeder has allegedly never made an attempt tofulfill its obligation.

In either late 1998 or early 1999, Connelly & Schroedersecured a $200,000 settlement of the Dana Plastics litigation onThunderhead's behalf, pursuant to which the firm collected a feeof $66,666.67. Connelly & Schroeder has never paid plaintiff anyportion of that recovered fee.

Count I of the amended complaint charges Connelly &Schroeder with breach of contract, alleging that the firm hasfailed to adhere to the "fee sharing" provision of the parties'separation agreement by (1) failing and refusing to make anyattempt to obtain the written consent of Thunderhead and (2)"refusing to pay the plaintiff a referral fee on the Thunderheadcase." Count II alleges that the foregoing omissions andfailures on the part of Connelly & Schroeder constitute a breachof its fiduciary obligations toward plaintiff as a joint venturerin their dual representation of Thunderhead in the Dana Plasticslitigation. Finally, in count III, Connelly & Schroeder isalleged to have intentionally interfered with the prospectiveeconomic relationship plaintiff expected to have forged withThunderhead upon her departure from the firm.

A section 2-615 motion to dismiss attacks the legalsufficiency of the complaint whereas a section 2-619 motionraises defects or defenses that negate plaintiff's cause ofaction completely or refute crucial conclusions of law orconclusions of material fact that are unsupported by allegationsof specific fact. Lawson v. City of Chicago, 278 Ill. App. 3d628, 634, 662 N.E.2d 1377, 1382 (1996). Motions filed undereither section admit all well-pleaded facts together with allreasonable inferences drawn therefrom. Lawson, 278 Ill. App. 3d634, 662 N.E.2d at 1382. Conclusions of law or conclusions offact not supported by allegations of specific fact, however, arenot admitted. Lawson, 278 Ill. App. 3d 634, 662 N.E.2d at 1382. In ruling on either motion, all pleadings and supportingdocuments are construed in a light most favorable to thenonmoving party. Chicago Flood Litigation, 176 Ill. 2d at 184,680 N.E.2d at 268.

The question presented by a motion under section 2-615 iswhether the complaint alleges sufficient facts entitlingplaintiff to relief. Where facts alleged fail to support theasserted cause of action, the motion should be granted and theclaim dismissed. Chicago Flood Litigation, 176 Ill. 2d at 184,680 N.E.2d at 268. A motion to dismiss under section 2-619(a)(9), on the other hand, acknowledges the plaintiff's causeof action but presents affirmative matters that avoid the legaleffect of the claim. Golden v. Mullen, 295 Ill. App. 3d 865,869, 693 N.E.2d 385, 389 (1997). The relevant inquiry for thiscourt is "whether the existence of a genuine issue of materialfact should have precluded the dismissal or, absent such an issueof fact, whether dismissal is proper as a matter of law." Kedzie& 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735 (1993).

Since the issues raised by either of the foregoing motionsinvolve solely questions of law, our review is conducted de novo. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382.

According to the amended complaint, Connelly & Schroeder arein breach of the alleged fee-sharing agreement obligating it topay plaintiff an unidentified portion of the contingency feereceived by settlement of the Dana Plastics case. Fee-sharingarrangements among lawyers are governed by RPC 1.5(f), whichprovides:

"Except as provided in Rule 1.5(j), alawyer shall not divide a fee for legalservices with another lawyer who is not inthe same firm, unless the client consents toemployment of the other lawyer by signing awriting which discloses:

(1) that a division of fees will bemade;

(2) the basis upon which the divisionwill be made, including the economic benefitto be received by the other lawyer as aresult of the division; and

(3) the responsibility to be assumed bythe other lawyer for performance of the legalservices in question." 134 Ill. 2d R.1.5(f).

The provisions of RPC 1.5 operate with the force and effect oflaw (see In re Vrdolyak, 137 Ill. 2d 407, 422, 560 N.E.2d 840,845 (1990); Marvin N. Benn & Associates, Ltd. v. Nelsen Steel &Wire Inc., 107 Ill. App. 3d 442, 446-47, 437 N.E.2d 900 (1982)),and embody this State's public policy of placing the rights ofclients above and beyond any lawyers' remedies in seeking toenforce fee-sharing arrangements. Albert Brooks Friedman, Ltd.v. Malevitis, 304 Ill. App. 3d 979, 985, 710 N.E.2d 843, 847(1999).

Connelly & Schroeder argues plaintiff is unable to succeedas a matter of law on her breach of contract claim because theclient, Thunderhead, never consented to the parties' fee-splitting arrangement as required by RPC 1.5(f). As Connelly &Schroeder observe, the plaintiff's amended pleading is devoid ofany allegations concerning Thunderhead's consent. Moreover,Connelly & Schroder's section 2-619 motion to dismiss issupported by the affidavit of Thunderhead's president, JaniceFries, who expressly avers that Thunderhead never consented toany fee-sharing arrangement between plaintiff and the law firm. Lack of Thunderhead's consent, according to Connelly & Schroeder,renders the parties' agreement invalid on public policy groundsand, hence, unenforceable by plaintiff.

Plaintiff responds that the client-consent requirement ofRPC 1.5(f) does not apply here because the fee-sharingarrangement was part of the separation agreement consummated uponplaintiff's departure from the law firm. In support of hercontention, plaintiff cites RPC 1.5(j), which states"[n]otwithstanding Rule 1.5(f), a payment may be made to a lawyerformerly in the firm, pursuant to a separation or retirementagreement." 134 Ill. 2d R. 1.5(j). Plaintiff argues since thefee payment from the Dana Plastics litigation was to be madepursuant to the parties' separation agreement, Thunderhead'sconsent was not necessary.

While acknowledging RPC 1.5(j), Connelly & Schroedermaintains that this court's decision in the pre-RPC decision ofCorti v. Fleisher, 93 Ill. App. 3d 517, 417 N.E.2d 764 (1981)precludes operation of that provision and dispels plaintiff'sclaim that the agreed-upon fee payment was part of a "separationagreement." In Corti, the plaintiff-attorney and the defendantlaw firm entered into an employment agreement where it wasagreed, inter alia, that upon the agreement's termination, Cortiwould be able to remove, notwithstanding client consent, any casefiles directly or indirectly referred to the firm by him. Cortiwas further entitled to "all fees" generated by those cases bythe firm subsequent to the agreement's termination irrespectiveof any legal services performed, or legal responsibility assumed,by him on those matters.

On appeal, this court affirmed the dismissal of Corti'scomplaint to enforce the terms of the employment agreement. After initially observing that Corti's complaint was devoid ofany allegations that he had enjoyed an attorney-clientrelationship with any of the referred clients, or that he hadperformed legal or other services with respect to those mattersother than providing referrals (Corti, 93 Ill. App. 3d at 523,417 N.E.2d at 769)), the court found, in relevant part, thecontractual obligation on the part of the defendant law firm toremit all fees generated by the referred files to Corti"injurious to the best interests of the clients concerned becauseit reduces the motivation of *** [the firm and its attorneys] touse their best efforts in resolving the clients' cases." Corti,93 Ill. App. 3d at 523, 417 N.E.2d at 769-70. Since Corti'srequest concerned the remittance of fees derived from matters "inwhich subsequent to his employment he did not and could not havedone any work," the effect of the parties' agreement, asexplained by the court, was that the firm "would be required ***to perform all the legal work on these files and then to remitall fees to [Corti] who 'earned' them solely by indirectlyreferring the files[.]" Corti, 93 Ill. App. 3d at 523-24, 417N.E.2d at 770. The court stated:

"It defies common sense to believe that ***[the firm and its attorneys] would beinclined to give the clients under thesecircumstances the same caliber ofprofessional treatment that they would renderto a client originating from their office.[The firm], instead, would be encouraged todispose of the matters as quickly as possiblewithout regard to the clients' bestinterests, realizing that all fees arisingtherefrom would accrue to [Corti] whorendered no services and assumed noresponsibility for the files. We will notlend judicial approval to an agreement ofthis nature, because it endangers theclients' right to receive their attorneys'complete care and consideration in thedisposition of their legal affairs." Corti,93 Ill. App. 3d at 524, 417 N.E.2d at 770.

After examining at length various legal authoritiesdiscussing the propriety of fee division agreements betweenattorneys, including the predecessor to Rule 1.5(f), DisciplinaryRule 2-107 of the American Bar Association's Model Code ofProfessional Responsibility⁽¹⁾, the court further declared intra-attorney fee sharing agreements based solely upon a clientreferral unenforceable as violative of public policy. 93 Ill.App. 3d at 531, 417 N.E.2d at 775.

As part of its decision, the court considered Corti'sargument that the parties' employment agreement constituted "aseparation agreement between members of a law firm" and, thus,was sanctioned by DR 2-107(B) which, in similar fashion to RPC1.5(j), sanctions payments to a former partner or associate of alaw firm pursuant to a separation or retirement agreement.⁽²⁾ Thecourt rejected Corti's contention, explaining:

"[i]n our opinion, DR 2-107(B) sanctionspayment to a former partner or associate of alaw firm for legal services which contributedto the firm's overall profits. Invariably, aportion of those profits and thecorresponding payments to the attorney mayhave derived from files upon which thedeparting employee rendered no actualservices. This practice, however, ispermissible for two reasons. First, thecompensation is not directly linked to theparticular files, so the employee is notrewarded for soliciting the clients'employment or failing to perform services forthem. Second, and more importantly, theclients are not affected by this arrangementand continue to receive the firm's bestskills and abilities after the employee'stermination of employment. If applied to theparticular agreement, however, this section[DR 2-107(B)] would condone an oppositeresult. Because the compensation under theprovision in question is exclusively tied tothe referred files instead of the firm'sgeneral profits, [the] plaintiff wouldactually be rewarded for simply being a linkin the chain which led to the clients'referral. In addition, the client's bestinterests would suffer since the motivationof the firm to render them quality legalservices would be substantially reduced,since all fees resulting from their fileswere promised to plaintiff, the departingemployee, under the agreement." Corti, 93Ill. App. 3d at 531, 417 N.E.2d at 775.

Relying on this portion of Corti's analysis, Connelly &Schroeder asserts the fee sharing arrangement in the present casedoes not represent, contrary to plaintiff's claim, a "separationagreement" as contemplated by RPC 1.5(j). According to Connelly& Schroeder, Corti mandates that, for purposes of paragraph (j),a payment made pursuant to a separation agreement must be madefrom the general profits of the law firm and not from feesgenerated by representation of a particular case. Since thepayment to be made to plaintiff under the parties' agreement isdirectly linked to the Dana Plastics' litigation, rather than tothe firm's profits as a whole, Connelly & Schroeder claims RPC1.5(j) is inoperative and, therefore, client consent wasnecessary under paragraph (f).

We do not share defendants' reading of the Corti decision. In our view, Corti does not hold that all payments made pursuantto a separation agreement must be from the firm's generalprofits. Rather, the court, limiting its analysis to theparticular agreement in that case, held that enforcement of theparties' accord under DR 2-107(B) could not be reconciled withpublic policy concerns. According to the court, the provisionproviding for the remittance of all fees could not be directlytied to the referred files at issue because it would operate toundermine both the clients' best interests and the ethicalprohibition of client referral payments. Because giving effectto the "unique terms" of the "particular agreement" as urged byCorti would offend its public policy determinations, the courtrefused to apply DR 2-107(B). Thus, the court focused on theapplication of paragraph (B) under the circumstances presented inthat case and did not attempt to define that provision'soperation in every conceivable situation.

We do not read Corti as standing for the proposition that aseparation payment can never be tied to the fees generated in aparticular case. Instead, we construe Corti as holding that sucha payment is improper only when its violates some establishedexpression of public policy like those identified in the court'sruling. Public policy concerns may, but not always, beimplicated, and whether such concerns arise will depend on thecircumstances and particular terms of the agreement involved ineach case.

Connelly & Schroeder intimates that the public policyconcerns raised by the Corti court are implicated by the parties'fee-sharing agreement in this case. Because Corti was decidedwithout reference to, and before the adoption of, the RPC and itspredecessor, the Illinois Code of Professional Responsibility,the question arises whether the public policy expressed by Cortiremain viable.

Nothing in the RPC sanctions a fee-splitting agreementbetween lawyers where one attorney is entitled to a remittance ofall the fees generated by the legal work of the other. Certainly, as explained in Corti, such a fee-splitting agreementseverely comprises the best interests of the client since thepaying attorney has little or no incentive to effectively handlethe client's matter.

Moreover, Corti's prohibition of fee-sharing agreementspredicated solely on client referrals is embodied in the RPC. While the RPC expressly approves of fee sharing agreements wherethe primary service performed by one lawyer is the referral ofthe client to another lawyer (see 134 Ill. 2d R. 1.5(g)), sucharrangements cannot rest on the referral alone. Mostimportantly, the referring attorney must assume "the same legalresponsibility for the performance of the services in question aswould a partner of the receiving lawyer." 134 Ill. 2d R.1.5(g)(2).⁽³⁾

Further, to the extent Corti's analysis can be construed asconflicting with the provisions of RPC 1.5, we note, as discussedearlier, that the supreme court in Vrdolyak made it clear thatthe rules governing attorney conduct operate with the force oflaw. The court went further and stated: "[a]ccordingly, the[Disciplinary] Code, as a binding body of disciplinary rules,has, sub silentio, overruled prior judicial decisions whichconflict with its mandates and proscriptions." 560 N.E.2d at845, 137 Ill. 2d at 422.

Since we find the public policy determinations expressed inCorti still viable, we must consider whether those particularconcerns are implicated by the parties' fee-sharing agreement inthis case. We find they are not.

First, the best interests of Thunderhead in receivingcomplete and careful representation is not comprised by theparties' arrangement. While the record suggests that Connelly &Schroeder would be responsible for a majority of the workperformed in the Dana Plastics matter, the firm is not requiredto remit the entire fee recovered for its efforts to plaintiff. Rather, the amended complaint indicates the law firm is to retainsome percentage of the recovered fee. Connelly & Schroedercertainly stands to gain from its services and, accordingly,possesses the incentive to use its best efforts in handlingThunderhead's case.

The fee-sharing agreement is further not predicated on amere client referral. While we acknowledge plaintiff's repeatedreferences in her amended complaint to the payment as a "referralfee," a liberal reading of the complaint shows that the firm'spayment represents its consideration for plaintiff agreeing notto take all the Thunderhead files with her upon leaving thefirm's employ. Hence, the agreement does not impermissiblyreward plaintiff for "simply being a link in the chain."

We find the parties' fee-sharing agreement, as it is allegedin the amended complaint, falls within the scope of RPC 1.5(j)and, as such, does not need to adhere to the requirementscontained in RPC 1.5(f).⁽⁴⁾ Plaintiff's contract claim, therefore,is not precluded as a matter of law.

Nonetheless, dismissal is warranted under section 2-615 ofthe Act because plaintiff's factual allegations do not adequatelysupport her cause of action. A claim for breach of contractrequires the plaintiff to allege, inter alia, the definite andcertain terms of the parties' agreement. Brown and Kerr, Inc. v.American Stores Properties, Inc., 306 Ill. app. 3d 1023, 1030,715 N.E.2d 804, 810 (1999); Barille v. Sears Roebuck and Company,289 Ill. App. 3d 171, 175, 682 N.E.2d 118, 121 (1997). Theallegations of the amended complaint fail in this regard. Particularly, the complaint is silent as to the percentage of therecovered contingency fee, or basis thereof, to be paidplaintiff. While proper on this basis, dismissal is withoutprejudice since the complaint's infirmity can be corrected byamendment. See Jeffrey M. Goldberg & Associates, Ltd. v. CollinsTuttle & Co., Inc., 264 Ill. App. 3d 878, 885, 637 N.E.2d 1103,1109 (1994) ("[i]f a plaintiff can state a cause of action byamending the pleadings, a case should not be dismissed withprejudice on the pleadings").