Madison County Circuit Judge Dennis Ruth denied default judgment in a legal malpractice suit alleging Alton attorney Lee Barron retained additional attorney’s fees.
In his Aug. 6 order, Ruth gave Barron until Aug. 23 to respond to the complaint. He also denied the plaintiff’s motion to disqualify Barron from representing himself in the litigation.
St. Louis attorney Peter Fiore III of Summers Compton Wells LLC sought default judgment and to disqualify Barron from representing himself on July 9. The motions were filed on behalf of plaintiffs Kathleen Levy and Melissa Favier.
“Defendant is a material and necessary witness on every required element of plaintiffs’ causes of action and to the defense of the claims at issue in the case sub judice. Defendant is therefore a necessary witness on contested issues in the case at bar,” Fiore wrote.
Fiore wrote that if the court were to permit an advocate to testify as a witness, it could unfairly prejudice the case “and may erode confidence in the administration of justice.”
He argued that it could confuse the roles of the attorney as witness or attorney as advocate.
“If the trier, especially a jury, grants undue weight to the attorney’s testimony, the opponent of the attorney witness may be unfairly disadvantaged. An attorney-witness will also be in a position to vouch for his own credibility in summing up to the jury, which is also unfair to the opponent,” Fiore wrote.
In their motion for default judgment, the plaintiffs argued that Barron failed to respond after he was served with the suit on April 6.
According to the plaintiffs’ complaint, Levy and Favier retained Barron in 2008 to represent them in a lawsuit against Coyle Mechanical Supply Inc. and its stockholders, officers and directors. The underlying suit was filed March 30, 2009 in Madison County Circuit Court (09-CH-416). The case was tried in a bench trial over the course of several days in 2013. The court allegedly entered “a substantial monetary judgment in plaintiffs’ favor” and awarded them attorneys’ fees and expenses in April 2014.
Then on June 1, 2017, the Fifth District Appellate Court entered a decision affirming in part and reversing in part the judgment.
The appellate court awarded each plaintiff $297,000 for the purchase of their interests in the corporate defendant and $250,000 as a divided payment. The appellate court also upheld an award of $139,292.64 for attorneys’ fees and court costs.
The trial court then entered an order on May 11, 2018, affirming the awards with an interest to accrue at 9 percent from Feb. 26, 2015, through the date of payment.
The plaintiffs claim that at some point in 2017 or 2018, one or more of the defendants paid the attorney’s fees and expenses directly to Barron, who allegedly retained all of those funds.
Throughout the litigation, Levy, Favier and Barron allegedly had an agreement which stated that Barron would represent them for a fixed hourly billing rate. They claim that when Barron received the underlying defendants’ payment for attorneys’ fees, they had already paid him at least $98,400 for his services from March 10, 2009, to March 25, 2014.
“Thus, defendant Barron received and retained a total of more than $237,690 in fees and expenses for the period from March 10, 2009 through March 25, 2014,” the suit states.
Levy and Favier further allege that at some point in 2018, one of the underlying defendants paid Barron $37,609 the computation of interest due on the attorneys’ fees and costs.
The plaintiffs allege Barron retained the interest payment and has not offered to return the amount to them.
“Said $37,609 interest payment was never entered or disclosed in the Madison County Circuit Court minutes or docket sheet. Plaintiffs first learned of defendant’s receipt and retention of the $37,609 interest payment in late November 2020,” the suit states.
Fiore wrote that Barron knew he had been overpaid but fraudulently concealed that he received more compensation for his services than he earned under his billable hour agreement with the plaintiffs.
The plaintiffs met with Barron in October 2018, and he “indicated he thought the attorneys’ fees were probably ‘a wash’ - meaning plaintiffs were not entitled to any monies.” From 2018-2020, the plaintiffs allegedly requested Barron’s billing records to determine if he had been overpaid.
Levy and Favier sought the assistance of new counsel, who wrote a letter to Barron in February 2020 asking for their case file and accounting. Barron send the file on Oct. 13, 2020 after the plaintiffs filed a complaint with the Illinois Registration and Disciplinary Commission of the Illinois Supreme Court. However, Barron allegedly failed to include any billing statements, invoices or other time records documenting his services.
As for their award and interest, Levy and Favier claim Barron did not deliver their funds in a timely manner. They claim the underlying defendants began making partial payments by delivering checks separately payable to each plaintiff. For example, checks for $69,407 and another for $297,000 were made in June 2018. The plaintiffs claim they didn’t receive those checks from Barron until October 2018.
When he delivered the checks, Barron allegedly took responsibility for the delay and promised to pay interest for the time period. The plaintiffs claim he never paid the promised interest.
The plaintiffs allege that none of the payments received by Barron were reported to the Madison County Circuit Court or indicated in the docket sheet.
Madison County Circuit Court case number 21-L-401