Case Information
*1 Before EASTERBROOK, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case marks another chapter in the colorful history of Cicero, a western Chicago suburb where Al Capone once set up shop and where more recent political shenanigans have been keeping federal invеstigators and attorneys busy.
Leading off this tale’s cast of characters is
Betty Loren-Maltese, president since 1993 of the
Town of Cicero and the widow of Frank Maltese, a
prominent Cicero politician who confessed to
being a mob bookmaker and pleaded guilty to a
federal gambling charge. See United States v.
Maltese,
Taking all facts alleged in the complaint to be true, as we must do at this time (without, of course, vouching for their accuracy), Loren- Maltese fired Hanania in October 1996 when he refused to defend her in the press against charges of rampant corruption. Resnick alsо made noise about corruption, requesting the State’s attorney to investigate and helping to organize an opposition slate of candidates that ran unsuccessfully against Loren-Maltese in the February 1997 Republican primary. Loren-Mаltese is not the sort of lady you want to cross, and Resnick paid the price. Loren-Maltese stripped the town collector’s office of authority and employees, exiled the office to shabby quarters, denied Resnick accеss to her files, and refused to accept the monthly statements Resnick was required to file.
In June 1997 Loren-Maltese took away two of Resnick’s last three employees. This, for Resnick, was the last straw. She hired Torshen, who helped her get a temрorary restraining order in state court that stopped Loren-Maltese from impeding Resnick’s duties. The order also reinstated two of Resnick’s employees. With the TRO in place (it was even extended) the case moved forward but, on Torshen’s rеcommendation, Resnick signed a settlement agreement in August in which she agreed to let it drop. The attorneys Cicero retained to work out this agreement were Merrick Rayle and Edward "Fast Eddie" Vrdolyak, the former aldermanic nemesis and failеd electoral opponent of the late Chicago mayor, Harold Washington. Incredibly, the Resnick-Cicero settlement called for Cicero to refer some of its future legal work to Torshen--and Torshen has since represented Rаyle in a lawsuit filed against Cicero by the town’s former police chief and his deputy.
There was a period of detente between Resnick and Loren-Maltese, but in December 1997 the Cicero board of trustees sacked Resnick with three weeks to go in her term. Resnick called Torshen, who by this time was happily representing Cicero in other matters. He finagled two weeks of vacation time for Resnick and persuaded her to leave it at that.
Or so he thought. Resnick and Hanania later
*3
filed a 42 U.S.C. sec. 1983 suit in federal court
against Torshen, his law firm, Loren-Maltese, the
Town of Cicero, and others. The lawsuit claims
that the defendants deprived Resnick and Hanania
of their constitutional right to speech by firing
them in retaliation for speaking out about
corruption. Torshen was nаmed as a defendant on
the theory that he was in cahoots with the Cicero
officials when he convinced Resnick to sign off
on a settlement that was not in her interests.
Judge James B. Moran let Resnick and Hanania
proceed with their suit against the rest of this
crowd but dismissed the claims against Torshen
and his law firm. Resnick and Hanania now appeal
the decision that let Torshen off the hook.
A complaint is properly dismissed under Federal
Rule of Civil Procedure 12(b)(6) if, taking all
facts alleged by the plaintiffs to be true and
construing all inferences in favor of the
plaintiffs, the plaintiffs have failed to state
a claim upon which relief can be granted. Pleva
v. Norquist,
A cause of action under sec. 1983 requires a
plaintiff to demonstrate that he was deprived of
a right secured by the Constitution or a federal
law аt the hand of someone acting under color of
law. Fries v. Helsper,
Why Resnick, who certainly is no idiot, signed a settlement agreement that she claims achieved nothing for her is anybody’s guess, but sign it she did. The agreement contained six provisions: 1. Resnick would drop her case.
2. "Plaintiff shall serve out her Term as Town Collector through December 31, 1997. She shall come to work and Board Meetings as appropriate and assist in the transition of her elected successor, whose Term commences January 1, 1998. She shall perform all of the duties and functions of her аppointive Office." 3. Resnick would not file any new suits arising out of the claims in this case.
4. The agreement would be confidential. 5. Cicero would refer to Torshen’s law firm the town’s defense in a pending personal injury case. 6. Resnick would try to persuade her husband, Hanania, to stop publicly slamming Cicero and its officials.
Cicero’s promise to hire Torshen--who at the
time was representing Resnick, Cicero’s adversary
in this litigation--for future legal work strikes
us as highly unusual. Settlement agreements
sometimes рrovide for one side to pay the other
side’s attorneys fees, but a settlement like this
in which one side essentially hires the other
side’s lawyer is new to us. Whether it violates
the duty of loyalty an attorney owes to the best
interests of his client is not for us to sаy, but
it should make one a little queasy (see Preamble
to the Illinois Rules of Professional Conduct,
Article VIII, Illinois Supreme Court Rules, 134
Ill. 2d 470; ABA Model Rule of Professional
Conduct 1.8(f); Kling v. Landry,
The question for us, however, is not whether Torshen acted unethically or committed legal malpraсtice, but rather whether this fact-laden complaint shows that, under color of state law, he conspired with others to deprive Resnick of her constitutional rights. Ironically, the fact that Torshen’s alleged conflict of interest was so blatantly spelled out in the settlement agreement undercuts the complaint’s conspiracy claim. Whatever scheming might have gone on here was certainly not covert.
Resnick’s sec. 1983 claim as to Torshen is based on the premise that this agreement gave her nothing, gave Cicero everything, and gave at least a little something to Torshen. The first question is whether the agreement was as lopsided as she claims. If not--if she actually got *5 something out of the settlement--then her claim against Torshеn is a nonstarter. Torshen says the second provision of the settlement allowed Resnick to serve out her term, thereby achieving the litigation’s purpose. Resnick says she was entitled to serve out her term the day she was appointed and thе settlement did nothing to shield her from Loren-Maltese’s ongoing harassment. We might be inclined to adopt Torshen’s interpretation if the agreement explicitly allowed Resnick to finish her term without interference, but the agreement contains no such lаnguage. Because all inferences must be construed in the plaintiff’s favor, we treat the settlement as a sham that provided Resnick with no benefits.
The next question is whether Torshen’s success
in persuading his client to sign a worthless
settlement agreemеnt raises an inference that he
and Cicero reached an understanding to deprive
Resnick of her constitutional rights. Torshen and
Cicero’s representatives clearly reached an
understanding that it would be advantageous for
Resnick tо drop her state lawsuit. Sharing the
goal of having Resnick abort her state case does
not necessarily translate, however, into a mutual
goal of trampling upon Resnick’s constitutional
rights. It is true that participants need not
share the same motives to share the same general
conspiratorial objective. See United States v.
Irwin,
Furthermore, the settlement of Resnick’s state lawsuit is not connected to the acts underlying the sec. 1983 claim. The sec. 1983 claim is that Loren-Maltese and the Town of Cicero retaliated against Resnick for exercising her First Amendment right to speech. Resnick says the defendants were unconstitutionally squeezing her office before she filed the state lawsuit, but Torshen was not involved in any of this. Resnick *6 also sаys the defendants forced her out of office after she settled the state lawsuit, but Torshen was not involved in this, either. Resnick argues that if Torshen had done a better job of protecting her in August of 1997 she would not have lost her job in December, but that, if true, is lеgal malpractice, not a federal sec. 1983 claim. If the settlement agreement had foreclosed Resnick from ever filing suit against Loren- Maltese and Cicero in the future, then perhaps Torshen could be tied into an alleged conspiracy to deny Resnick her constitutional rights. The dismissal of the state lawsuit, though, did not prevent Resnick from bringing her sec. 1983 claim-- her federal case is going forward against the Cicero defendants. The nastiness that gave rise to the sec. 1983 claim took place before and after Torshen was on the scene, but he was not involved in the nastiness.
To wrap up, if these allegations against Torshen are true, i.e., that he railroaded Resnick by getting her to sign the settlement agreement and latеr negotiated vacation pay on her behalf when by that time he was representing the town that had just fired her, Torshen may have acted unethically or committed legal malpractice. This complaint, loaded as it is with factual allegаtions, does not show, however, that Torshen conspired with the Cicero defendants to deprive Resnick of her constitutional rights. We affirm the district court’s dismissal of Torshen and his law firm from this case.
/1 Hanania is only a bit player in this present dispute so we’ll focus on Resnick’s claims as we move along.