our next case on the call the docket is agenda number thirteen case number one one four seven seven nine john early or john l early wine versus just a early wine and also thomas h james took this case to the second district and now it's here the status of this case at this time is that the appellate court purged the content but they did not purge th  holding of dolling and the advance payment for a retainer protections that it provides which are also under our p c one point one five as compared to the leveling the playing field  conduct which are part and parcel of illinois supreme court rules at this point now allow for the use of an advance payment retainer and what that retainer does is it precludes it from being subject to a turnover order that dolling there was a judgment but eight hundred thousand dollars the judgment better at that point sought to retain counsel needed to retain counsel because they need to deal with as a protection strategies they're looking to buy a house in florida and do some other things so that they could stay whole in essence the question is i think that goes to the issue of whether or not it was if it were marital funds would that somehow change it and i think the answer to that is still that we would end up following dolling i also think that although it's you're asking  question for the first time i think attorneys fees in general if they come out of marital funds that creates a claim dissipation so you can already create an equivalence or parity that isn't necessarily required  not for purposes not in this case because the third party specifically knew that they were going that this advance payment retainer was being used with regard to these funds that was explained to them in fact there's an affidavit to that effect in the file from john's mother because the third party is in fact family members and so in order to step forward they wanted some protection they wanted to know that this money is going to go and before representing john and again i had to explain what i'm doing and why we're going to use an advance payment retainer we're going to use dowling why because dolling changed what was before that a problem and actually the amaechi actually come in and talk about that goes directly to one point one five and why the amendment goes to that area the rules of professional conduct because they an area the rules of professional conduct is for the protection of the client to maintain the attorney client relationship that is both a personal right and a property right and so when you ask me for it for whose benefit it is for the benefit of the client but it is obvious that the attorney also benefits because they stay retained but it wouldn't matter whether it's this attorney or any other the client seeks to have representation and that's what the purpose of that retention is all about  representation so that gets to two things like clearly there is a desire on the leveling the playing field rules to create parity between the parties but it is also correct that there is a right to rain retain counsel for purposes of petitioning government that's a first amendment right and one of those first amendment rights have been tested what the s supreme court has said is that leveling play the playing field is not a legitimate government purpose consequently when you look at this policy issue of parity first is the first amendment you have to look at the second district decision and you have to look at it and go does this survive strict scrutiny is there a compelling governmental purpose which is closely drawn by the statu fulfill that purpose and that's what came up in arizona versus bennett and what justice roberts said is that and this isn't a discussion of the cola quiz actually in the brief there's a discussion correct and they go on in the decision and they point that out and they point that out based in arizona and they rely upon davis versus f yes very interesting question in that if a third purdie pays the advance payment retainer that's a fourteen somebody in this kind to get an attorney where presumably without that they may not be able to get it right isn't that one way of putting it it's possible to look at it that way it i guess i would i what i would follow up with and i would say is that to to make the parallel between that narrow zona the contestants the political contestants in those cases also were getting money from third parties the issues also that the that there happens to be a political contest i think what's in though and i understood your argument on the use of patient but where the money is coming out of the marriage presumably the one party would be allowed to get an attorney or have the opportunity to get an attorney but the other may not as a result of that advance retire i think that's the import of the question is this i think what you're getting at is to be direct you're asking about the issue when it's coming out of the marital fronts right ok which in this case it's not it's not it's not if we don't have the right marital funds there's virtually round her question said we have a different scenario when it is certainly werther's a third party is that that particular person is as a chance of getting an attorney where without that advance payment retainer you may not be willing to take the case very well that's correct that in fact that's the whole funds which may allow one of the parties to get a read in attorney but may prevent the other party getting an attorney in the myrtle context and what i think you're looking to do is try to find a distinction and the question then becomes asking if there is when i'm not looking to my unit excuse me united mine workers of america versus the our state bar association i look at arizona and i look at davis and when i look at those cases what they say is  i think that's to be direct that's the exact conflict that they addressed in arizona that's exactly what justice roberts was getting at because whether it's arizona or davis where they're talking about the millionaire rule the millionaire rule in davis was the whole point was we had one party who spent i think in that case over three hundred fifty thousand dollars with regard to basically it's advertising it's getting the message out and because of it there's a trigger that trigger causes state funds to come into the other side but what they said was that benefit that providing of the benefit they lose the speech of the other party when we look at the leveling the playing field rules as they're constructed in illinois it's not a question of dilution it's turning down a microphone or just turn issue than what happens when you start having people go into a public forum or go into a governmental forum and they hire counsel to be that advocate when counsel walks in councils the microphone the party still have to deal with their own issues relative to the cause of action which in this case is a divorce but the hiring of counsel is handled separately it carve out from dealing with what would be otherwise simply the application of the of the playing field rules carves out because of the first amendment obligation protection which is provided in this case to the client whichever client it is but the protection is the limitation placed on government for one posing upon the attorney client relationship that's that's the same thing question was your objection in the trial court more than just hey we have the advance payment retainer is protected did you also argue that when you look at the income and assets of this party versus that party there are sufficient assets where there's no  balance because that's what the statute says is whether or not the one party has access to sufficient income or assets to represent his his self or herself both both parties came in and testified and they testified  are no assets in this case therein lies the problem the only way my client was going to have protection in the or order of protection and be able to go forward was to have these third parties a system and that sense people can associate whether it's as a union as an association there's in a first amendment argument but let me ask you this under rule one point one five see it says you have to state a special purpose to benefit the client to protect it as an advance payment retainer and when i read in the record your retainer agreement basically if i understand correctly is there just to protect the defeat to level the playing field that's the only special purpose unless i misread it and i want you to tell me if i got it right or wrong the leveling the playing field rules by the very nature of them create a conflict of interest for the client for the attorney with the client because if i don't use an advance payment retainer and i don't explain away understand all that i'm just asking to your agreement set out any other special purpose well there's a fight there's five paragraphs of it or it that are in the agreement they set out there's different reasons because i have to address all those reasons relative to each paragraph and they're all addressed in there it's not just about leveling the playing field it's about head being able to obtain representation who's going to take on a case like john early one is if you know well are you saying that once we've approved it we i guess it would be a constitutional violation see it's not appropriate what i'm saying is that by  sanctioning the advance payment retainer and ensuring that it's not subject to turnover we avoid the constitutional problem but it is it is the implementation of the r p c one point one five that avoids us from having the first amendment problem it avoids it avoids all of these things that i brought up the only thing that the second district decision does is it creates the creates as agenda number thirteen thank you very much