Your Livelihood at Risk:

The Danger of Failing to Engage Legal Representation Through the Entitlement Process

Whether you are a land owner, a developer, an architect, engineer or other professional consultant working in Illinois, your livelihood is at-risk throughout the entitlement process. In Illinois, the preparation of certain documentation or the representation of a client in certain zoning proceedings constitutes the practice of law. For a land owner or developer the failure to engage a registered attorney to perform such functions may lead to catastrophic results including civil penalties, contempt of court and most importantly the invalidation of entitlements. For the professional consultant, engaging in such activities may be even more catastrophic as it may lead to professional discipline, forfeiture of fees, civil penalties and punitive damages.

  • (1) "No person shall be permitted to practice as an attorney or counselor at law within this state without having previously obtained a license for that purpose from the Supreme Court of this State (Illinois)" and;
  • (2) "No person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney, nor may an unlicensed person advertise or hold himself or herself out to provide legal services.” 705 ILCS 205/0.01 (Attorney Act).

The Attorney Act does not provide a hard and fast list of acts or services that constitute the practice of law. Instead, courts look to a given situation to determine whether a task is one that falls within the unique province of an attorney. Courts have been unequivocal that “it is the character of the act done, and not the place where it is committed, which is decisive of whether it constitutes the practice of law.” People ex rel Chicago Bar Ass’n v. Goodman, 366 Ill.346, 349 (Ill. 1937). The Goodman court went on to characterize the practice of law as:

  • One who, for a fee, contingent or otherwise, advises others as to their legal rights, the method to be pursued, the forum to be selected, and the practice to be followed for the enforcement of such rights, is engaged in the practice of law. Citing: In re Shoe Mfrs. Protective Ass’n, 3 N.E.2d 746.

It is probable that a court would find many aspects of the entitlement process implicate the practice of law. From the initial stages of a compiling a team of consultants an attorney should be engaged in order to negotiate and draft consultant’s contracts, determine the appropriate jurisdiction for the development and interpret provisions of the governing subdivision and zoning ordinances. As the entitlement process begins an attorney should be used to prepare and negotiate all agreements, applications, disclosures, notices or petitions for development approval. This documentation necessarily implicates issues of property ownership, corporate organization, case law concerning zoning or variance standards and state statutes governing items such as the disclosure of beneficial interests, notice of adjacent property owners or the various means of annexing property.

However, an attorney’s role is not complete with the drafting of documents. An attorney should serve as a lead negotiator with the governing body and should represent the development at any public hearings or meetings at which ordinances may be adopted. An attorney’s role during this process is not just cost savings but ensuring that the governing body does not over-step it bounds, that all agreements are legal and ethical and that any ordinances are approved pursuant to state law. All of these tasks are “legal services” under the Attorney Act and implicate a knowledge of law unique to the training of an attorney. The failure to utilize an attorney to perform any of these tasks may well undermine the validity of any entitlements that are obtained.

The belief that a court may invalidate ones’ entitlements for failure to engage legal representation is supported by case law. As recently as 2004 a trial court dismissed an appeal of a zoning decision based on the grounds that a non-attorney had prepared documentation and represented an entity in a zoning proceeding. Essentially, the trial court was following the well regarded rule that any legal document filed by a non-lawyer on behalf of another in a judicial or administrative proceeding is void ab initio. Oak Grove Jubilee Center, Inc. v. City of Genoa, 347 Ill.App.3d 973 (2nd Dist 2004).

The trail court was reversed on appeal because at the time the zoning application was filed a zoning hearing was commonly regarded as a legislative proceeding and representation of a client was akin to lobbying. However, today the trial courts dismissal of the case would have been upheld. In its landmark decision Klaren v. Village of Lisle, 202 Ill.2d 164 (2002), the Illinois Supreme Court declared that a hearing on a special use application (conditional use) was administrative in nature and that due process rights must be afforded to interested parties.

This decision is import because of the manner in which is characterized the zoning hearing. As an administrative hearing, the rule from Oak Grove Jubilee applies and application materials must be prepared by an attorney and representation at the hearing must likewise be through an attorney. In response to the Supreme Courts decision in Klaren, the legislature amended the Counties, Township and Municipal Codes in order to address some of the perceived difficulties of the Klaren decision. However, the legislature did not change the Supreme Court’s characterization of the zoning hearing in Klaren as administrative in nature. The end result of this analysis is that representation by an attorney is compulsory in certain zoning hearings.

For the landowner and developer the failure to engage proper representation may well result in the invalidation of a zoning entitlements. For the architect, engineer or other professional consultant, the preparation of application materials or representation of a client at a hearing may lead to professional discipline, fines, contempt of court, loss of fees or even punitive damages where a client has been aggrieved. The question everyone must ask is simply is your livelihood worth the gamble?