Days before former Madison County Circuit Judge Barbara Crowder retired from the bench, she denied several motions to reconsider an $84,378.81 award she entered in favor of a former Roth Law attorney following a bench trial in a fee-sharing dispute.
On Nov. 28, Crowder denied plaintiff Deborah Besserman’s claim that attorney Ronald Roth was individually liable in the suit alleging he withheld fees from Besserman after her employment was terminated.
“Roth may have directed the corporation to fail to pay Besserman, but the court does not believe his failure to warrant personal liability,” Crowder wrote.
Crowder also denied the remaining requests concerning Besserman’s pro rata award for a wrongful termination suit Besserman referred to Roth Law Offices LLC in 2012.
On Sept. 24, Crowder entered an order awarding Besserman $84,378.81, plus costs following a bench trial.
“The court is not in the usual habit of determining whether attorneys strictly comply with the rules of professional conduct unless the dispute revolves around rules that govern when and how attorneys may receive fees," she wrote.
According to Crowder’s brief background on the split-fee agreement, Besserman was employed by Roth Law Offices, whose sole shareholder is Roth. Besserman’s role changed over the years as she went from being a clerk and paralegal to an associate attorney after graduating from law school.
There was an oral split-fee compensation agreement between Besserman and the defendants. As a law student, the agreement was for Besserman to receive 50 percent of any attorney’s fee on a case she referred to the firm.
After she became licensed to practice law in November 2013, the agreement was changed to lower the split-fee but increase her salary. According to the agreement at that time, she would receive a $75,000 base salary and 45 percent of the attorney’s fee on cases she referred to the defendants. However, the first $30,000 would be used to offset her salary. The new agreement applied to cases she referred to the defendants after she was sworn in as a lawyer.
On Oct. 2, 2013, Roth asked Besserman to produce a list of cases in which she claimed a split fee as well as a copy of the client’s contract. Besserman listed Eric Fields' wrongful termination case as part of her “current caselist.”
On Dec. 30, 2013, Roth sent Besserman an email altering the terms of the agreement. He testified that because Besserman was an “at-will employee,” he retained the right to change her employment terms at any time, Crowder’s order states. Several cases did not apply to the split-fee agreement change because they were referred to the firm in 2012.
Besserman testified that she did not agree with the new terms, but no new cases were referred after the email exchange.
Then in a June 25, 2014, email sent days before Besserman was terminated from her employment, Roth stated that an attorney must be employed by the firm at the time the attorney’s fees are paid in order to receive any split-fee.
“Again, a change of employment terms cannot be applied retroactively at the whim of the employer,” Crowder wrote.
Besserman was terminated July 1, 2014.
Crowder found that there were no violations of the Rules of Professional Conduct on the various claims and entered a judgment in favor of Besserman.
However, Roth argues that Besserman is not eligible to receive fees as a former attorney regardless of her employment terms, Crowder notes.
Roth Law Offices filed a motion to reconsider on Oct. 22 through attorney Christopher Hunter of Hunter & Johnson PC in Godfrey.
The defendant argues that Besserman’s claims are unethical.
“… Besserman is seeking a specific percentage share of legal fees received on cases she referred to the firm when she was a non-attorney employee … That is not profit sharing based on profits from gross revenues. That is Besserman asking the court to order Roth Law to violate the RPC and share fees with a non-attorney based upon cases referred to the firm.
“Such a practice has long been held to be unethical,” the motion states.
“Besserman tries to window dress her claim by stating that she did not receive any fee sharing before she was licensed (because none of the cases she referred to the firm settled before she was licensed),” it continues.
The defendant argues that there has been a disagreement as to whether the awards Besserman sought were bonuses or fees. Roth Law argues that the Illinois Wage Payment and Collection Act “does not specifically refer to the employee’s right to receive fee sharing after the employee is terminated …”
The defendant argues that the parties intended any fee sharing to be separate from wages or compensation, which would remove it from the scope of the Act.
Further, since the agreements were oral, “there is no proof that there was any agreement giving Besserman a right to receive a share of fees after her termination.”
The defendant also notes that Crowder awarded Besserman a pro rata share of fees with respect to the Fields’ wrongful termination case but did not provide a mathematical formula to calculate the plaintiff’s pro rata share.
The defendant requests Crowder provide the formula for calculation.
Besserman filed a motion for partial reconsideration on Oct. 24 through attorney Bill Walker of Granite City.
She sought reconsideration on Crowder’s conclusion that Roth is not individually liable and the award limiting her recovery to a pro rata share from Fields' case.
Crowder concluded that Roth “acted solely in his capacity as managing member of Roth Law” and had no individual liability.
Besserman argues that Crowder overlooked more specific and more recent provisions of the Wage Act, which places personal liability on corporate officers who direct violations of the Act.
“Defendant Roth testified he was the LLC, the sole manager and partner, and decision-maker, even claiming he had unilateral authority to retroactively change the terms of the split fee compensation agreement.
“He testified he alone made the decision not to honor the split fee compensation agreement and decided not to pay accumulated vacation and sick pay when he terminated plaintiff,” the motion states.
In regards to the pro rata share, Besserman argues Crowder found that the split fee compensation agreement applied to the Fields settlement, but she changed the agreed upon split and limited it to a pro rata amount because it settled more than two years after Besserman was terminated.
“The court may not add terms to a contract, even for the apparent purpose of making the agreement fairer.
“Reduction of the agreed-upon fee split was contrary to the evidence and impermissibly added terms to the contract, in contravention of Illinois law,” the motion states.
In her order, Crowder denied the motions for reconsideration, but provided the formula used to calculate Besserman's pro rata share of Fields' settlement.
“Besserman is entitled to a share of the attorneys fees calculated as 45% times a ratio of the number of months from the date the contract was signed with Roth Law (November 21, 2012) as the numerator and the denominator being the total number of months the file is with Roth Law from the date of the contract until the date of settlement,” she wrote.
Madison County Circuit Court case number 15-L-1337