Horwitz v. Holabird & Root

(No. 89351. & v. HOLABIRD al., et Appellees,

TEM HORWITZ al., et Appellants. ROOT October 2004. Rehearing denied May

Opinion 2004.— filed Izzo, & M. A. A. Izzo Steven Tefft and David David Associates, of for Chicago, appellants. Silvestri, Novoselsky J.

Laurie A. David A. and Leslie Rosen, Chicago, appellees. for opinion

JUSTICE KILBRIDE delivered the court:

Plaintiffs, Tem and Matthews, Horwitz Horwitz Inc. (collectively, Matthews), Horwitz filed a six-count complaint County against in the circuit court Cook (the firm) law firm Sabo clients, & Zahn and its Jeffrey Root, Case, Horn, defendants Holabird & Gerald (collectively, Root), alleging, and Baird James Holabird & alia, inter tortious interference with business relation- ships. appeal, & Zahn Sabo is not involved in this and only sought count VI is at here. issue Count VI relief against Holabird & Root as who acted and through attorneys, & its Sabo Zahn. granted summary judgment

The trial court in favor ruling Root, & Holabird as a matter law that Ho- attorneys’ labird & could Root liable for be its ac- appealed appellate tions. Horwitz Matthews and the justice remanded, reversed with one dissent- ing. granted 312 111. 3d 192. & We Holabird Root’s petition appeal. for leave to 177 111.2d R. 315. nowWe whether, must if when, decide so vicariously attorney’s allegedly held hable for inten- tional tortious conduct.

BACKGROUND general partnership & Holabird Root is a in the Case, Horn, architectural business. and Baird are its partners. Holabird & Root retained & Zahn to Sabo col- lect a incurred debt Horwitz Matthews architec- corpora- tural services. Horwitz Matthews is an Illinois develops private tion that real In estate investors. representing Root, the course of Holabird & Sabo & Zahn judgment against obtained a Horwitz Matthews. response assets, to a to discover Horwitz citation provided Sabo Zahn with tax Mathews & various returns. deposition testimony, According to uncontradicted this subject confidentiality agree- tax information was the of a not to disclose agreed Zahn Sabo & Specifically, ment. its firm. outside law anyone the tax information identity learned discovery, & Zahn also Through Sabo and Horwitz investors several associates business these least & Zahn contacted at Matthews. Sabo letter, informing investors and associates business ap- had tax Horwitz Mаtthews that on its returns them it was entitled than greater percentage portioned itself also stated that The letters partnership business. filing tax showed the investors’ share partnership’s The letters were on underreported. of the loss was stated, “we Holabird & stationery represent and firm’s Horwitz Matthews.” judgment against Root who have a complaint against Matthews filed a six-count Horwitz The trial court & and & Root. Sabo Zahn Holabird sounding I defamation through dismissed counts IV Root. Sabo & Zahn and Holabird & and levied at both & solely against relief Sabo Zahn. Count sought Count V for interference with business sought relief tortious VI & Root as solely against Holabird relationships attorneys, & acting by through and its Sabo principal Zahn. Root’s granted subsequent

The trial court Holabird & summary judgment motion on count VI ruled as for matter & could be held of law Holabird Root attorneys’ ap actions. Horwitz Matthews liable its judgment reversing grant summary pealed. Root, appellate & court held that favor Holabird in this case one attorney-client was & the laws of with Holabird Root governed by agency agent. App. Sabo Zahn as the & that, although appellate at 195-96. The court reasoned 3d of their clients contractors (Washington Casey- v. regarding physical their activities (1996)), 97, 101 Ass’n, ville Health Care allegations physical no activities “any there were by Zahn; therefore, undertaken & Sabo & [Sabo Zahn] independent would be an contractor in its relation ship with the Holabird & Root defendants.” 312 Ill. App. According 3d at 196. court, to the appellate Sabo & Zahn’s misconduct could be attributed to Holabird & Root the of agency, binding by under law principals their agents’ App. 195-96; chosen deeds. 312 Ill. 3d at see (7th Diersen v. Car Chicago Exchange, F.3d Cir. 1997). appellate

The court also found that a genuine issue of material fact existed concerning whether Sabo & Zahn acted authority sending within the its the let ters to partners various business & Holabird Root. App. conclusion, 3d at 196-97. In support this the appellate court relied on the discovery depositions of Sabo Werner and James Zahn. Each stated that the firm was it had hired performing accomplish. task been The also appellate court relied on defendant James W. deposition discovery Baird’s statement that the letters sent Sabo & him by Zahn indicated to that the law firm was in an pursuing “aggressive way” fee “serving the firm was them as their clients.” Finally, the court that a appellate genuine held issue of material fact existed as to whether Holabird & Root ratified Sabo & Zahn’s misconduct. According ap- pellate court,

“It is from not clear the record when the Holabird & letters, Root defendants became aware and when did, being they they disapproved if ever of the letters they approved mailed or if silence and conduct their Holabird Root defendants’ actions letters. Whether the & or lack thereof question constituted ratification is App. fact.” 111. 3d at 197. there were appellate opinion

Given court’s fact, material genuine appellate issues of remanded the cause for further proceedings. dissent, Presiding Justice Hoffman stated (Hoffman, 3d at 198 Ill. App. flawed. 312

decision was that, in cases The concluded P.J., dissenting). dissent further a claim without an involving pursuing indepen held to be direction, should be (Hoffman, P.J., at 198-99 312 Ill. dent contractor. dissent, & Zahn since Sabo According to dissenting). & Root could contractor, Holabird independent was an its tortious allegedly vicariously held liable not be vicari there was no reasoned that conduct. dissent “right no employer has liability primarily ous because performed the work” doing the manner of control v. Red Ball Hartley contractor. See Co., 538-39 Transit Zahn is dissent, the even if Sabo & According to agent, summary judg deemed to be Holabird & Root’s to Holabird & Root granted ment appropriately was of its scope Zahn acted outside the Sabo & because (Hoffman, P.J., dissent authority. App. 3d at 199 ing). The dissent reasoned: things to all retention do general

“[T]he law, should, necessary as a be pursue a claim matter authorizing attorney only things to do all interpreted as the claim and not be legal proper pursue the should construed, more, attorney direction giving the without act. there is no permission or commit tortious Where authorized, exprеssly impliedly evidence of, directed, alleged knew or ratified the tortious conduct that, merely attorney, presumed it of its should not parties attorney- in the because the stand client, the tortious the client intended authorized or that the within the at- conduct conduct was (Hoffman, EJ., App. 111. 3d at torney’s duties.” 312 199-200 dissenting). summary

Concerning propriety judgment, dissent further stated: case, alleged no that the tor-

“In this there is evidence to the business associates of the letters sent tious content ordered or directed and investors of Horwitz Matthews was Root, by Holabird & nor I any do believe that there is evidentiary genuine material the record ‍​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​​​​​​​​​​‌​​‌‌‌‌​​​‌​‍that creates question issue of fact on the of whether the Holabird & Root defendants knew the contents letters before they were sent & Zahn. [Jeffrey] [James] Sabo Case and Baird, partners, both & seeing Holabird Root denied they letters before testimony were sent. Their constitutes only competent evidentiary material of record on the since, out, issue as the appellate points the most that & Zahn is to say Sabo able is that no one at the firm can recall whether to anyone letters were shown at Ho they labird & Root before were sent.” 3d at (Hoffman, P.J., dissenting). Root appeals. Holabird & now

ANALYSIS Summary judgment when appropriate plead “the ings, depositions, file, together and admissions on affidavits, any, if no genuine show that there is issue any as to material fact and that moving party judgment entitled to a as a matter of law.” ILCS 1005(c) (West 2000); v. Sycamore Gilbert Municipal 5/2 — (1993). Hospital, 156 Ill. 2d Summary judg 517-18 ment not be granted right should unless the of the mov Hess, free ing party is clear and from doubt. Purtill v. nonmoving party Ill. 2d While a summary judgment prove motion not required his case, or her present nonmovant must factual basis arguably entitling that to a party judgment. Michigan Cook, v. County Avenue National Bank 191 Ill. 2d (2000). involving We de all 517-18 review novo cases sum mary Espinoza Elgin, v. Joliet & Eastern judgment. Ry. (1995). Co., 107, 165 Ill. 2d 113 arguments appeal essentially Holabird & Root’s on the reasoning expressed Presiding follow Justice Hoff- Initially, man’s dissent. & Root maintains that Holabird the specific factual situation this case is one first impression Accordingly, for this court. Holabird & Root

9 Horwitz Matthews by the cited cases contends the and do not control inapposite are the court appellate disposition. Inc., Aluminum, v. in Gomien Wear-Ever

As we stated (1971): 50 Ill. 2d 19 is liable for it is law that a master

“Generally, of his committed within acts of his servant his liable for the acts of principal employment; agency; but scope of the performed agent neither is liable for unless the act within contractor the acts of an pursuant to causing or harm was omission un employer, or or principal order direction of or circumstances, employer the in less under certain selecting careful failed exercise reasonable care Gomien, Ill. at 21. competent 2d contractor.” relationship, generally In clients attorney-client during attorneys’ their acts omissions bound ap that fall within the legal representation course See, attorneys’ authority. Web parent scope e.g., of their (2001) (“this Hartman, Ill. 2d 433 n.1 ster v. possess express has held must long that counsel case”). compromise or authorization to or settle a consent Moreover, fiduciary is a attorney-client See, re relationship. Imming, In e.g., (1982). (1989); In re Ill. 2d As Schuyler, 252-53 fiduciaries, owe their clients “the basic loyalty and obedience.” Restate obligations agency: (Second) a, at 14N, § Comment Agency ment attorney’s does Nonetheless, this case not involve client, duty to a third but rather an duty to accurately out Thus, pointed Root has party. Holabird & addressing there no Illinois decision whether attorneys’ alleged their may be held liable for clients party undertaken against torts a third intentional of the client. knowledge without direction or Kitchen, Chicago Seven-Up Bottling Inc. v. Flight (1974), relied Co., heavily upon 3d 558 Mathews, filed аn action to recover plaintiff Horwitz 10

damages allegedly by suffered reason of an averred trespass property its the by defendant’s attorney. In enforcing judgment a rendered on behalf of the plaintiff against a third party, the attorney wrongfully directed the levy sheriff the against property an innocent party. third The fully client was levy against aware the wrong party. fact, the In the client executed a bond to levy proceeding. Thus, institute the the misconduct engaged in the by attorney was committed with the full Flight Kitchen, knowledge and direction the client. 22 App. Ill. 3d at 563. That not the is case here. A factual scenario clearly more on a point presented was case Services, In re Berry Publishing cited & Root, Holabird (Bankr. Inc., 231 B.R. 676 1999). N.D. Ill.

In Berry, a party attempted purchase bankruptcy debtor’s interest certain assets at court-approved purchaser sale. The later commenced cause of action against the bankruptcy trustee and the trustee’s at- torney, alleging tortious interference the purchaser’s contracts or prospective business The relationships. claims stemmed from a letter sent the at- trustee’s torney knowledge without the trustee to several purchaser’s clients, purchaser had opining actually acquired not the assets at issue. addition to recovery against attorney, purchaser trustee’s sought also recovery against premised trustee upon an agency theory law of vicarious bank- liability. The ruptcy purchaser court held that could not recover from the on Berry, theory. trustee such a 231 B.R. at 682.

Applying law, Illinois the court held that a principal torts, not an agent’s provided liable for an employee principal. Berry, B.R. at Co., v. Anderson Marathon Petroleum citing 801 F.2d (7th Gomien, 1986), Cir. Ill. 2d at 21. Ac citing Berry court, although cording the attorney-client governed by at- agency principles, contractor. a classic is considered tornеy Co. v. & Morton Berry, 682, citing B.R. at Hoffman Co., Insurance American 102-03 pas Berry following relied on specifically in Anderson: opinion sage the Seventh Circuit’s “ independent contrac- the distinguishing ‘The reason for that, by the relation- employee the definition tor from is contractor, independent and an ship principal between a indepen- details of the supervise does not the principal the good posi- not in a and therefore is dent contractor’s work the es- negligent performance, whereas prevent tion to employment known as of the contractual sence right employer the to the employee that the surrenders is receiving work, exchange for to direct details his himself to The contractor commits wage. and the monitors providing specified output, monitoring inputs— performance not the contractor’s i.e., by inspecting supervising contractor —but to it contractually specified output make sure conforms to ” 682, quoting Ander- specifications.’ Berry, 231 B.R. at son, 801 F.2d at 938. Berry authority

The there was no concluded concerning attorney- depart from this rule in cases Berry, B.R. at 681. relationship. client 231 are, however, courts divided of our sister states for imposing on the issue vicarious the actions attorneys. jurisdictions, find no In some courts Butler, Baldasarre v. 278, N.J. liability. vicarious See 132 (an (1993) not 625 458 innocent should A.2d of his vicariously wrongful held liable for the conduct or direct, attorney advise, her if the client does not consent improper conduct); in the participate Court, Lynn Superior v. 346, Cal. 225 Cal. App. 180 Columbus, (1986); Plant Trust Co. v. 168 Ga. Rptr. 427 Casualty see also Aetna (1983); 909, 310 745 App. S.E.2d Co., 631 & Co. Protective National Insurance Surety v. (Fla. 1993) (an company So. 2d insurance not App. it vicariously malpractice liable v. insured); Brown Lumbermens selects defend Co., Casualty Mutual 464, 90 N.C. App. 369 S.E.2d 367 (1990) (since (1988), aff’d, 326 N.C. 387, 390 S.E.2d 150 attorneys employed by company indepen insurance were contractors, negligence dent their not imputable was Damon, v. company); Feliberty insurance 112, 72 N.Y.2d (1988) 120, 261, 265, 527 N.E.2d 531 N.Y.S.2d (vicarious liability produces untenable result where prohibited on the one hand a party conducting from litigation controlling decisions of the on the other that party hand charged responsibility lawyer’s for the day-to-day independent professional judgments). jurisdictions Other impose vicariously liability, holding attorney-client relation Stumpf v. ship relationship. is a principal-agent See Casualty Co., Continental 102 Or. App. 794 P.2d 1228 Wilson, Southwestern Bell Co. v. (1990); Telephone (Tex. 1988) (but West, v. see Bradt Ct. S.W.2d (Tex. 1994) (client 76-77 Ct. App. S.W2d automatically attorney)); liable for tortious conduct of Co., & N.A., Peterson v. Bank Trust Worthen 296 Ark. United Farm Mutual 201, (1988); 753 S.W2d 278 Bureau (Ind. Groen, Insurance Co. v. 1985); 486 N.E.2d 571 App. Roberts, Inc., v. Bayless Continental Insurance Co. & 608 (Alaska 1980); Carter, Nyer v. P.2d 281 367 A.2d 1375 (Me. 1977).

After consideration of author- conflicting careful this when, here, attorney an ity, we conclude acts pursuant professional to the of independent exercise independent he she as an judgment, presumptively acts may generally contractor intentional misconduct whose client, to the to imputed subject excep- not be factual 348-49, Lynn, App. See 180 Cal. 3d at 225 Cal. tions. at more often than not the as- Rptr. 429. Individuals seek they of an because are unfamiliar with sistance See perform the law and unable to the work themselves. C.J., dissenting, joined by (McMorrow, 2d at 33 212 Ill. J.). a usually pursues Garman, Therefore, an direction from legal specific without rights client’s judgment to client, using independent professional of the work. the manner and form determine defined level of An contractor is independent v. performance. Hartley manner control over the of work (1931). Co., Ball Red Transit is one who undertakes independent “An contractor of the in the actual execution produce given result but person under the orders control work not he the work but use his own discretion whom does *** being subject to things without his specified [and] [person done] for whom the work the orders of thе Hartley, 344 111.at 539. respect to the details of the work.” an contractor does not bar independent That someone is if liability of vicarious for her actions she the attachment Il an See v. Share Health Plan agent. is also Petrovich (1999) (“[a]s linois, rule, Inc., general Ill. 2d for the independent no vicarious exists actions liability may nevertheless be contractors. Vicarious independent for the actions of contractors where imposed established”). agency relationship person may an A independent both contractor and also authority both to control the details of the work and act for in busi power “the bind negotiations agency.” within the See [the] ness Co., & Morton Co. American Insurance v. Hoffman rule, fit general As Nonetheless, at this squarely category. within when torneys independent act exercise pursuant judgment, they possess such considerable professional autonomy performing and manner of over details they their work that presumptively liability. purposes imposing contractors for vicarious Accordingly, plaintiff seeks to hold client vicari where liable the tor- ously attorney’s allegedly intentional tious conduct, a plaintiff prove demonstrating must facts either that specifically directed, controlled, the client attorney’s authorized the precise performing method of the work or the that client subsequently ratified acts performed in the exercise of the judgment. If directed, there is no evidence that controlled, authorized, or ratified the attorney’s allegedly tortious conduct, no can vicarious attach.

Here, the record contains no evidence content of allegedly directed, tortious letters was controlled, or authorized by Holabird & Root. Nor there any evidentiary creating material in the record genuine issue of on the question fact whether Holabird & Root they knew of the contents of lеtters before were sent & by Sabo Zahn. The evidence deposition testimony relied the appellate on raise does not a question concerning this That issue. Sabo & Zahn firm believed that was had performing task it hired accomplish been does not address the issue whether & Root Holabird knew of the letters or let- Similarly, ters’ content. James W Baird’s statements the letters indicated the law firm was pursuing fee in an “aggressive way” and that the firm was “serv- ing them not as their clients” does contradict his testimony that he was unaware of letters until after the letters were only sent. evidence the record concerning the contents letters is deposition testimony indicating that Zahn agreed Sabo & anyone disclose the tax information outside law its firm. there Accordingly, question was no of fact raised as authorized, directed, to whether & Root Holabird controlled the content of the letters. parties’

Turning argument, final ratification an unauthorized act is tantamount to an original authorization and confirms what originally was unautho Beker, rized. Jones v. principle ratification is the doctrine

The behind through ratifying the ac person a benefit secures appar acting on his behalf another who tions authority. Insur implied Rule v. Swader Golden ent (1990). App. If there is 697, 704-05 3d Co., 203 Ill. ance implied. Ill. Jones, 260 not be ratification will benefit, no Geldermann, Inc., 295 v. 485; also Stathis at see 3d (ratification (1998) may pp. be inferred including long-term surrounding circumstances, from allegedly acquiescence, of an notice, to the benefits after transaction). in case is record this unauthorized support any suggestion inference that could devoid of any way & in from Sabo & Root benefitted Holabird alleged relation the business interference with Zahn’s question ships of fact Matthews. Without of Horwitz concerning derived a benefit & Root whether Holabird allegedly no letters, there could be tortious from the appropriately summary judgment was ratification granted to Holabird & Root. acknowledge holding, rendering that at- our we obligations by strong

torneys ethical remain bound attorney-client and that the their clients fiduciary relationship, fiduciary there are in As a nature. agents myriad act as of circumstances where simply not one at hand is for their clients. The situation holding acknowledge that our further of them. We following 253 of the section the comment conflicts with Agency: Restatement only if agent’s conduct] [for “The is liable its *** least, carry is, out part at

[that] conduct frequently most principal. of the The situation purposes *** tortiously attorney at law institutes aris[es] [when] an guilty of or is proceedings, civil or criminal or continues during the course wrongful conduct oppressive or a claim of the he enforce proceedings, order that subject discipline attorney is The fact that the principal. being from liable prevent the client by the court does not (Second) for his conduct.” Restatement Agency § Comment disagree We with the Restatement’s discounting that at torneys constrained certain court-imposed ethical considerations that serve to distance their behavior from their clients. Attorneys cannot blindly follow their directions, clients’ even if those particular directions are and express, if doing so require would them to violate (Il their obligations. ethical See 134 Ill. 2d R. 1.1 et seq. Conduct). linois Rules of Professional In representing a client, Rule 2.1 mandates that a lawyer exercise indepen professional dent judgment. 134 Ill. 2d R. 2.1. The rules of legal ethics are aimed at protecting attorney-client relationship, maintaining public confidence in legal profession, and ensuring the integrity judicial proceed ings. SK Handtool Industries, v. Dresser Corp. Inc., 246 979, Ill. App. 3d A lawyer prohibited under 1.2(f) Rule from acting on behalf any of a client in man ner that merely serves to harass or maliciously injure 1.2(f). another. 134 Ill. 2d R. An intentional tort al leged here would arguably fall within parameters 1.2(f). the type of behavior prohibited by Further, Rule 1.2(i) Rule provides that a lawyer “[w]hen knows that expects client permitted assistance not by these Rules law, other lawyer shall consult with the regard ing the relevant limitations on the lawyer’s conduct.” 1.2(i). 1.16(a)(1) 134 Ill. 2d R. Similarly, Rule states that lawyer representing a client before a tribunal shall “(1) withdraw from employment if: the lawyer knows or reasonably should know that the client is bringing the legal action, conducting defense, asserting a posi tion in the litigation, taken, or is otherwise having steps merely for purpose harassing or maliciously injur 1.16(a)(1). ing any person.” 134 Ill. 2d R. preamble to the Rules of Professional Conduct emphasizes

likewise the weighty obligations attorneys undertake in the practice ‍​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​​​​​​​​​​‌​​‌‌‌‌​​​‌​‍of law: Lawyers are the trust. practice public of law is

“The disputes system by citizens resolve of the which trustees crime, themselves, and determine and deter among punish each other rights responsibilities and toward their relative responsible Lawyers therefore are government. and their *** system in the maintaining confidence public loyalty to the best acting competently and with justice by clients; by working improve of their interests changing society; challenges rapidly of a system to meet the judicial system of the by defending integrity it.” 134 corrupt, abuse or defraud against those who would Preamble, Conduct, at Ill. 2d Illinois Rules of Professional 470. otherwise, compel in effect we to hold we would

Were every micromanage to oversee or clients similar cases attorneys during action taken their course clients take relationship, obligate attorney-client hint of slightest at the representation control of their of their at wrongful part conduct on potentially (Tex. 56, West, Bradt v. 76-77 Ct. torneys. See 892 S.W2d (McMorrow, C.J., 1994); also 212 Ill. 2d at 40 see J.). by Garman, monitoring Such close dissenting, joined Bradt, 892 impossible would be for most clients. See (McMorrow, 76-77; 2d at 40 at see also S.W.2d J.). Garman, Moreover, C.J., dissеnting, joined by most type are not to undertake qualified clients Co., Link v. R.R. 370 U.S. monitoring. See Wabash (1962) 734, 747, L. Ed. 2d 82 S. Ct. C.J.) (it Warren, (Black, J., joined by cannot dissenting, duty try supervise that there a for a client to be said daily professional attorney); services of the see also (McMorrow, C.J., dissenting, joined by 212 111.2d at 40 J.). Garman, attorneys’ The an obligation supervise reluctant to file suit and plaintiffs conduct would make vigor to defend themselves make defendants hesitant (Tex. West, ously. Bradt v. 76-77 Ct. See S.W2d (McMorrow, C.J., 1994); also 212 Ill. 2d at 40 see J.). by Garman, only This would not dissenting, joined chill the willingness of Illinois citizens vindicate their legal rights, “it ultimately would make them responsible for their own legal representation act very for which —the place.” Bradt, they hire an the first 76-77; at (McMorrow, S.W.2d see also 212 Ill. 2d at 40 J.). C.J., joined Garman, dissenting, holding Given our & Zahn acting Sabo was as an independent Root, contractor of Holabird & and an not agent, letters, when it sent the allegedly tortious we need parties’ address the arguments concerning whether Sabo & Zahn acted authority outside the of its because an employer right has no to control the manner of performance independent used an contractor. See Co., Hartley v. Red Ball Transit 538-39 (1931). misunderstanding

The of this opinion apparent prompts respond both dissents us to to several issues. First, Justice on Freeman’s dissent is based the errant that, may notion because an individual be an both independent agent, contractor and is at Second, all times according both. to Justice Freeman’s dissent, Petrovich overruled Gomien. The dissent Petrovich, wrong patient on both In counts. who was (HMO) organization member of health maintenance malpractice, alleging sued the HMO for medical vicariously HMO was for the conduct of the liable who had treated her. The trial participating physician court the HMO and the granted summary judgment patient appealed. appellate reversed Illinois, Plan remanded. Petrovich v. Shаre Health Inc., affirmed, Ill. App. 3d 849 This court vicariously that an held liable for holding HMO negligence independent physicians of its contractor authority apparent implied under the doctrines of authority. Petrovich, 188 Ill. 2d at 31-52. order for an contrac- vicarious to attach (1) situations, there either be: tor’s actions in such must HMO, out,” agent, or its “holding meaning acted in a manner that lead a reasonable person would physician alleged conclude that who was (Petrov negligent employee was an of the HMO (2) 34); ich, 188 Ill. 2d at facts and circumstances showing that defendant exerted sufficient control alleged agent over the so as to negate person’s status (Petrovich, an independent as contractor 188 Ill. 2d at 42). theory Neither to overcome contractor raised by plaintiffs status was before this court or Therefore, before the trial court. Petrovich is of no avail plaintiffs Moreover, here. to the contrary dissent’s as sertion, good Gomien remains law. Unless Petrovich is satisfied, is, there no an generally, liability vicarious for independent contractor’s actions.

Third, Justice Freeman’s invocation of Rankin v. Heidlebaugh, App. (2001), Ill. 3d 266-67 likewise Rankin potential ineffective. involved the vicari ous liability organization, (EFE), for Equip Equality for the actions of attorney employees one of its and had absolutely nothing to do li potential with vicarious ability of a client for the conduct of retained counsel. Fourth, the other in Illinois cases cited Justice Freeman’s dissent do not run counter to our For opinion. example, previously, discussed Kitchen Flight involved miscon duct engaged by an the full knowledge Kitchen, and direction of the Flight App. client. Ill. 3d Moreover, Cole, (1998), at 563. in Woods v. 181 Ill. 2d 512 (1983), v. Doyle Shlensky, App. 3d 807 and Dan v. Co., (1969), Checker Taxi forth vicarious an attorney’s actions was not at is sue.

Fifth, Justice rely Freeman’s dissent asserts that we heavily too on Berry “wrongly decided,” because it was Petrovich, Anderson, contradicts and relies on a cаse that nothing attorneys. acknowledge that has to do with We Berry statement, “a is not liable for court’s agents’ [sic] torts,” context, taken out of contradicts statement, however, That was made rela- Petrovich. distinguishing indepen- tion to a discussion between employee purposes dent contractor and an liability. imposing vicarious expresses Sixth, Freeman’s dissent concern Justice foreign jurisdiction cases that we have that several of the approval Unfortunately, it cited with are insurance cases. directly possible on to find factual scenarios often deciding particular point cases, In issue. such when general propositions factu- of law are often taken from ally applied at hand. to the scenario similar cases practice of no That the dissenter frowns on this consequence. misunderstanding holding appar

Finally, of our vividly in Freeman’s dissent can be most seen ent Justice that “the disavowsbasic black- the statement agency principles holds that letter law when it agents’ principals within are not liable for their conduct agency.” scope 212 Ill. 2d at and in the service of the (Freeman, disavowing dissenting). J., are not We acknowledge agency principals black-letter law. We agents’ conduct within the are hable for their agency.Irrespective principle, of this in the service we hold that an can be both regarding particular agent, and an but contractor Thus, other, there or the not both. conduct is either one drawn for the straw man “distinction” is no basis attorney. agent” and an a “normal dissent between (Freeman, dissenting). bar, at J., the case Ill. 2d at 54 genuine plaintiffs there was a to demonstrate that failed Zahn was to whether Sabo & of material fact as issue engaged acting it of Holabird & Root when as the Accordingly, allegedly the trial conduct. in the tortious correctly determined that & Root Holabird was entitled to a judgment as matter of law.

Additionally, Chief Justice McMorrow’s dissent precariously agreeing majority opinion. close to with the Chief plainly agrees Justice McMorrow with our answer to the central question presented by whether, this appeal: so, extent, and if to what clients be held vicariously liable for the intentional torts of their attorneys. Her dis sent, like the majority opinion, answers that question affirmative, qualifying that answer in essentially same manner as the “In majority: order to hold a client liable for the intentional torts the client’s attorney, plaintiff required would he to produce evidence that authorized, directed, knowledge had of or ratified the attorney’s misconduct.” 212 (McMorrow, Ill. 2d at 45 J.). C.J., dissenting, joined by Garman, Moreover, we agree with Chief Justice McMorrow that it cannot be presumed an here, or, intentional tort as alleged for that matter, any other illegal act, or unethical lies within the scope the attorney-client 212 relationship. Ill. 2d at 45 (McMorrow, J.). C.J., dissenting, joined by Garman, We further agree that it should be presumed, as matter of public policy, that clients hire attorneys to pursue legal remedies in a legal manner; and ethical that, and since attorneys in fiduciary stand relationship to their clients court, are officers of the reasonably justi clients are fied in expecting that their attorneys will represent them ethically and within the bounds of the 212 law. Ill. 2d at J.). (McMorrow, C.J., 45 dissenting, joined by Garman, Chief Justice parts McMorrow company with the majority by her agreement with Justice Freeman that an attorney is both an and an independent contractor times, at all even when the attorney allegedly commits an intentional tort and there proof is no that the client directed, controlled, authorized, or ratified the attorney’s conduct. order to avoid Justice Freeman’s conclusion 22 client, instance, in every vicariously

that a liable for intentionally retained actions commit counsel’s tortious (see of the scope agency ted within Restatement (Second) Comment Ped 216, (1958); § accord Agency dinghaus Peddinghaus, v. App. Ill. 3d v. 21—New Century Realty, Letsos West (2000); Ill. (1996)), App. 3d Chief Justice McMorrow agents from all distinguishes types other exception liability and carves out an vicarious rule on distinction. While Chief Justice McMor based untenable, position completely row’s we believe opinion approach. that our the more reasoned presents exception agency Rather than fashion a wholesale attorneys, merely distinguish rules for we situations where, here, attorney-client relationship vicarious party alleged is claimed a third the attorney. conduct of intentional tortious Moreover, to Chief McMorrow’s contrary Justice our in this not alter holding case does protestations, and client. attorney core between Nor to bind impact ability does it his or traditional, representational in a context. See her client (1994) Marr, Marriage In re (“Generally, a client the acts or omissions of bound attorney’s author his within the the long-standing principles continue to affirm ity”). We respon ethical fiduciary obligations during to a that exist at all times sibilities Imming, See 2d at relationship. representational 252; Schuyler, 91 Ill. 2d 2d R. 11; at see also 134 Ill. 1.1 Conduct). (Illinois seq. Rather, et Professional Rules of understood as limited to narrow opinion this must be a client liability claims based against of vicarious conduct. intentional tortious alleged upon

CONCLUSION reasons, generally For the above-stated we hold that at- torneys may independent agents be both contractors and but, regarding specific conduct, are either one or the other. further hold li- purposes imposing We that for vicarious ability conduct, for allegedly attorneys tortious when act pursuant judgment, to independent professional they are presumptively independent alleged contractors whose clients, misconduct may imputed not be to their unless it is directed, controlled, authorized, shown that the client alleged ratified the genuine misconduct. Since there was no issue presented of material fact regarding whether Holabird directed, controlled, authorized, & Root alleg- ratified the edly Zahn, tortious conduct of Sabo & judg- we reverse the ment appellate court judgment and affirm the circuit court County granting of Cook summary judgment to Holabird & Root. reversed; court

Appellate judgment circuit judgment affirmed. McMORROW, CHIEF JUSTICE dissenting: This appeal presents an important issue of first impression for whether, so, this court: and if to what extent, may clients be held vicariously liable for the intentional attorneys. torts their majority holds that are nonagent contractors whose intentional misconduct imputed to the client, unless a plaintiff proves facts demonstrating either “that the client specifically directed, controlled, or authorized the attorney’s precise method of performing the work or that the client subsequently ratified acts performed in the exercise of the attorney’s independent judgment.” Ill. 2d at 14. Applying this rule to the it, facts before also holds that the circuit court properly granted summary judgment client, to the Root, Holabird & finding that there giv was no evidence ing genuine rise to a issue of material fact as to whether authorized, directed, Holabird & Root prior had knowl- allegedly edge of conduct its of, or ratified the tortious attorneys, & Zahn. Sabo major- opinion respectfully of the

I dissent from the my appellate ity. court below was cor- It view that the is agency relationship determining exists that an rect in my position attorney It also and client. between an correctly appellate that, held under that the summary judgment presented cause, was in this facts improperly granted by there ex- circuit court because respect genuine of material fact both with ists a issue acting scope of its within the Sabo & Zahn was whеther engaged allegedly authority tortious it when subsequently rati- Holabird & Root conduct, and whether I arrive at this of & Zahn. would fied the conduct Sabo ap- differently than the conclusion, however, somewhat pellate court below. presented reaches the in this case issue

The central relationship and a client: between an core of the her client for his or extent can an bind to what attorney? by In order to answer taken the actions briefly necessary question, review basic it is this principles agency, the differences of of the law “independent “agent” contractor.” and an an between general, agency characterized an fiduciary in which two individuals affiliation between degree over the of control exercises some power agent, act and the has of the conduct (Second) principal. of Restatement on behalf §§ (1958); § 1, Agency Am. Jur. 2d also 3 Agency see (Second) (1986). Agency Restatement 2 of the Section person independent “a who contractor an defines something for him but who do another to with contracts subject the other’s the other nor controlled is not right physical respect conduct to his to control undertaking.” performance Restatement 2(3) (1958). (Second) Notably, § Agency 2 of section that an provides independent the Restatement also “may may agent.” contractor not be an Restatement (Second) 2(3) (1958). Thus, § under Agency Restatement, concept of an contrac- “independent tor” “agent” mutually are not The com- exclusive. that, ments to section 2 of the explain Restatement *** generally, “agent who is not a servant contractor when he contracts to act on ac- (Second) count of the principal.” Agency Restatement § 2, b, However, Comment at 13 “not all indepen- (Second) dent are agents.” contractors Restatement (1958). Agency 2, b, § Comment at For “one example, who contracts for a stipulated price to build a for house another and who reserves no direction over the conduct of the work is an independent contractor; but he is agent, an since he is not a has fiduciary, power no to transaction, make the one him employing to the party and subject is to no control over his conduct.” (Emphasis added.) (Second) § Restatement Agency 2, b, of Comment (1958). at

Thus, a fundamental distinguishing characteristic between agent an and an independent contractor is that an agent stands a fiduciary position respect with the principal, whereas an independent contractor is not a fiduciary of the principal. agency if, “The relation results only if, but there is an understanding between par- *** ties which fiduciary creates a relation in which the fiduciary is subject to the directions of the one on whose (Second) account he acts.” Restatement Agency § of (Second) b, Comment at (1958); see also Restatement (1958) (“The Agency 13, b, § of Comment at 59 fact that *** an agent subject fiduciary duties distinguishes him from other persons who power have to affect the others; interests of and the that understanding one is to act primarily the benefit of another is often the determinative feature distinguishing agency rela- relations”). tion from other (Second) Agency

Section 14N Restatement concept that an individual clearly more states as both an agent independent characterized who provides “[o]ne contractor. This section subject to the to act on behalf of another contracts conduct physical to his except respect other’s control with contractor.” Restate- independent and also an (1958). (Second) Particularly § 14N Agency ment us, the comment to section to the matter relevant before dur- attorney plays that an discusses the dual roles 14N a to section of a client. Comment ing representation agents, known as persons that “most of the explains 14N *** *** contractors are Subject, in the Restatement of this term is used but, although employed contractors they since right services, to the control or subject are not perform physical to their respect principal to control of (Emphasis in the services.” performance conduct added.) (Second) 14N, § Com- Agency Restatement (1958). a, at 80 goes explain comment on ment indepen- that, attorneys may be considered though even “fall contractors, nevertheless also within they dent fiduciaries; they “[t]hey are agents,” because category agency: obligations to the basic owe (Second) of Agency and obedience.” Restatement loyalty a, at 80 14N, § Comment agent an is characterized as attorney an

Whether liability affects the vicarious contractor independent an li A is principal conduct. the client for the of scope an committed within agent for the acts of able Morrison, 240 Ill. Brubakken v. authority. agent’s liability Conversely, no vicarious App. 3d Petrov contractors. independent of for the conduct exists “[vjicarious may However, ich, Ill. 2d at 31. independent actions of for the imposed be nevertheless is established.” relationship an agency where contractors Petrovich, 188 Ill. 2d at 31. acknowledges correctly majority

Although that agent simultaneously attorney may and an an be an (212 13), majority independent Ill. 2d at contractor “regarding particular incorrectly that holds nevertheless attorney] [an other, not both” either one or is conduct 20). (212 yet upon apparent, incor Based Ill. 2d at “agent” concept premise an an and rect, mutually “independent exclusive, the are contractor” pursuant majority act that “when concludes they judgment, independent professional exercise of autonomy possess the details over such considerable they presump performing manner of their work purposes imposing tively independent contraсtors majority justi liability.” The 212 Ill. 2d at 13. vicarious although attorney holding by reasoning an fies this agent ‘the hallmark of an classic vested —“ power business to act for and to bind ” (212 agency’ negotiations [the] Ill. within the quoting American & Morton Co. v. 2d at Hoffman (1962)) at Co., Insurance —an agent torney an not an he or she is also because pursuant “act[s] to the contractor who judgment.” independent professional exercise of “presumptively,” that, 2d at concludes 13. attorney otherwise, is not an unless it is shown holding my opinion, majority’s is inconsis at all. In agency principals law, as set tent with fundamental (1) concepts provide above, that: forth which mutually “independent “agent” are not contractor” (2) relationship of an exclusive;and while the respects, characterized, in as that a client some independent contractor, remains a it nevertheless of an agency to the extent that fiduciary to the client. attorney, majority’s holding, an Illinois

Under the judg- acting “pursuant independent professional when 28

ment,” is now considered a nonagent independent 212 contractor. See Ill. 2d at 23. comments to sec (Second) tion of the 14N Restatement of Agency define a “non-agent independent contractor” as an individual “who accomplish contracts to for something another or but who is not something another, to deliver to acting added.) a fiduciary other.(Emphasis Restate (Second) b, 14N, § ment of Agency Comment at 80-81 (1958). I agree cannot with the majority’s apparent posi that, tion as of today, attorney-client relationship Illinois is now simply relationship attorney, wherein an when “acting pursuant to professional judg ment,” is an independent contractor does not act as who client, a fiduciary who, therefore, for the neither stands in a position of confidence or trust with respect client, nor duty loyalty owes a or obedience to the client. I support cannot such a result.

For a century, repeatedly almost this court has held that, law, attorney- as a matter of the existence of an relationship fiduciary relationship creates In re E.g., Imming, parties. between those 131 Ill. 2d re 239, (1989); (1982); Schuyler, 6, 252-53 91 Ill. 2d 11 Harmon, v. Gaffney People ex rel. 273, (1950); 405 277 (1919). Charone, Chicago Bar Ass’n v. 288 Ill. 228 Indeed, the majority readily acknowledges relationship between a client and an attorney fiduciary (“the attorney-client nature. See 111. 2d at 9 relationship fiduciary relationship”); is a 212 Ill. 2d at in a their (“attorneys fiduciary relationship stand clients”). fiduciary It is settled that a relationship well Latimer v. agency relationship. Perry, 410 Ill. Environmental, Co., American Inc. v. 3-J (1951); When two enter into an parties agency relationship, right “the has agent control the conduct of the and the has the power legal principal.” to affect relations (1994). Indeed, it is 91, Kohli, 162 Ill. 2d v. Taylor fiduciary in a stands because precisely power attorney has the client that the within client to matters to bind the for and to act (Second) of Restatement attorney’s agency. of the scope Marriage In (1958); also re e see 1,§ Comment Agency (1994) a cli (“Generally, ‍​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​​​​​​​​​​‌​​‌‌‌‌​​​‌​‍932, 935 Ill. 3d Marr, App. attorney of his the acts or omissions by ent is bound authority”); attorney’s of the the scope within Hoffman 2d Co., App. 35 Ill. Insurance Co. v. American & Morton (an (1962) authorized properly agent, “[w]hen 102-03 *** aof business negotiations or other makes contracts which his principal, nature on behalf of the bound”). is must, attorney- that an as it acknowledging,

Despite fiduciary relationship creates a relationship client holds nevertheless majority parties, between those “independent profes that, attorney an exercises when automatically attorney’s status judgment,” sional indepen to an agent that of an of the client shifts from words, major In in the view of dent contractor. other client, of the even attorney longer an no an ity, is relation fiduciary in a thоugh always he or she stands client, attorney pursuant acts ship to the when reasoning This judgment.” “independent professional profes attorney’s An exercise of in error. “independent attorney’s of the very essence judgment” sional 2.1 the Illinois Indeed, Rule to the client. that, “[i]n mandates Conduct Rules of Professional client, lawyer independent a shall exercise representing advice.” 134 and render candid judgment professional Therefore, attorney is required 2.1. 2d R. because judgment during professional independent exercise client, hold majority’s representation course of a non- attorney that an leads to the conclusion ing the duration of throughout agent independent contractor representation. the client’s assures holding today its neither the core relationship

“alter[s] between the client” nor ‘‘impact[s] the ability to bind traditional, his or her client in a representational context.” Ill. 2d at 22. I disagree. The flaws inherent majority’s protestations from apparent majority’s statement it “continuéis] to affirm the long-standing principles attorney’s of an fiduciary obliga tions,” majority’s and the citation to case law holding “ ‘a is bound the acts or omissions of his ” attorney within the of the attorney’s authority.’ Marr, re Ill. 2d at Marriage of quoting above, fiduciary As set forth obligation arises from an agency relationship, a relation ship which the majority today holds is nonexistent when an attorney exercises professional judgment. Similarly, any discussion of the “scope authority” by is defined the scope of the agency relationship client, with the a relationship which the majority has found does not exist when an attorney independent professional exercises judgment during the representation of a client. that, my position

It is a of the majority’s as result holding that the during representing course of their clients attorneys nonagent independent Illinois contractors, the opiniоn today question court’s calls into the of in ability any legal to bind their clients dealings attorney business conducted the on behalf stated, of the client. As it is of operation agency that an principles attorney authority has to bind a client with to respect performed by attorney acts the within the scope agency. client, It is foreseeable that a transaction, a unhappy rely upon majori- would the ty’s holding argue attorney to his or her because merely contractor, was an the client not independent by any attorney performed during bound actions that the legal representation. the Under the the course of attorney power holding, only majority’s an of par- third limited, those of a client but act on to behalf legitimately may attorney must deal ties with whom necessary attorney question author- has the whether ity negotiate for and the client. to bind long-settled precedent light which our own fiduciary an at- between agent establishes torney attorney an of his an and client renders question the to client, there is cause her considerable majority’s holding in this case because basis attorney, independent attorney contractor, the an is an therefore, the client. Review of is not an only effectively majority opinion, a overrules which not question long precedent, into line also calls but any ability attorneys to their clients to of Illinois bind attorney engages behalf, in client’s matters on the appears this is decision to lead to conclusion that nonliability achieving particular result: the aimed at virtually every client, instance, the intentional attorney. torts the client’s majority attempts

The to somewhat ameliorate ways. matter in result repeatedly this several holding that an characterizes its “presumption” independent as a limited an contractor against upon a client based an vicarious claims e.g., attоrney’s alleged See, conduct. intentional tortious (“[W]e when, here, as conclude that 2d at pursuant the exercise of acts judgment, presumptively professional he or she acts independent contractor whose intentional misconduct subject imputed generally client, not be (“when exceptions”); 2d at factual professional pursuant independent act exercise autonomy judgment, they possess over considerable such performing their work that the details and manner of they are presumptively independent contractors purposes of imposing liability”); vicarious 212 Ill. 2d at (“[F]or purposes of imposing vicarious liability for al legedly conduct, tortious when attorneys act pursuant independent professional judgment, they are presump tively independent contractors whose alleged misconduct may clients”). not be imputed to their The majority further holds that its presumptive general rule of nonli ability may be rebutted, can at vicarious tach, if (1) a plaintiff proves either that the client specifi cally directed, controlled or authorized the attorney’s precise (2) method of performing work, or client subsequently ratified the attorney’s allegedly tor tious acts. 212 Ill. 2d at 23.

Under majority’s view, then, only it is upon proof of either of these two elements that an attorney becomes an agent of a client for whose acts the be vicariously liable. It follow, then, would it would only upon be proof such that a client would be bound by the conduct engaged his or her attorney, hired only because then would the attorney be considered an agent of the client. explained above, As holding this contrary to basic black-letter principles of agency law, which stand for the proposition that an attorney may be characterized, simultaneously, as both an and an contractor. Under the majority’s holding, an attorney will never an agent client, his or her long as the attorney abides professional standards of ethics and satisfies his or her obligation to exercise “independent professional judgment” during repre- sentation of the client. In way, this the majority’s presumption effectively becomes addition, irrebutable. by holding that an attorney not an agent acting when in accordance with his or her independent professional judgment, the majority also question calls into fiduciary obligations which an attorney owes to a client dispensing with relationship. By agency a as result with dispenses also relationship, majority the agency the the client. fiduciary to attorney’s obligations the the apt to flow from which are The difficulties In addition holding cannot overstated. majority’s be above, I I note concerns have outlined the several serious holding the will practical application majority’s that in attorney of an con unworkable, as the status will acknowledgment that its stantly apparent be in flux. majority attempts explain holding problematic, is the that, fiduciary stating “[a]s the result in this case are where relationship, myriad there circumstances at attorneys agents for their clients. situation act 2d at This not one them.” 212 Ill. 15. simply hand is guidance little to the bench provide do statement will in cases in the future. To the addressing and bar similar contrary, holding it cause additional confusion. After will contractors, attorneys nonagent that are independent there are majority backtracks states attorneys “agents.” where act as “circumstances” However, these majority’s holding today, under undefined cannot include actions where “circumstances” professional judgment, or her exercises his why individual retains an very reason an foregoing in first for the place. Accordingly, services reasons, holding I unten majority’s submit is able. am, therefore, dissenting

I agreement with errs opinion filed Justice Freeman that holding contractors to apply. My posi- do not agency principles which traditional that, that of Freeman to the extent tion mirrors Justice law and application agency under of basic principles an precedent, this own is both court’s his her cli- independent contractor and for Accordingly, attorney-client ent. as the one of it agency, proper to apply agency principles resolving law in Finally, matter before us. I also am in agreement with Justice Freeman that the majority relies upon inapposite unpersuasive authority in ar- riving at the opposite conclusion. join

I cannot dissent, Justice however, Freeman’s that, respect his conclusion agency under law client, principles, instance, in every vicariously liable intentionally tortious actions of his her at- torney committed within the agency. my It is position that, public as a matter policy, plaintiff of who to hold a attempts liable for the intentional torts of that attorney client’s must show more than the mere of existence an attorney-client relationship. For the below, reasons forth I that, set would hold an at- because torney readily distinguishable agents, from other it should be presumed intentional, not tortious acts performed by an attorney automatically fall within the attorney’s agency. Rather, a matter of as it public policy, should presumed be that a client hires an pursue attorney legal to remedies in a lawful and ethical manner, only and that an attorney because has a obligation fiduciary to his or her client is also an but of- court, justified ficer of the the client is expecting any the engaged activities in on client’s behalf are ethical and within the bounds of the law. It presumption is this which set the parameters should of an author- ity in her of a representation his or client.

Attorneys are agents. First, attorney must unique state, the both the At licensed in accordance with (705 (West 2002)), et torney seq. Act ILCS and 205/0.01 Although professions the of this court. other also rules licensing requirements, attorneys, have in addition to requirements the meeting specific passing academic and examination, good bar must be “of moral character also 701(a). 2d R. general practice fitness law.” 188 Ill.

35 attorney from other licensed different addition, an In professionals practice every person admitted in that take and subscribe state must law an this as (or solemnly following affirm, “I as do swear oath: be), support of that I constitution will case of Il of the state States and the constitution United faithfully discharge duties of linois, and that I will at law to the best of of and counselor office 2002). (West taking my ability.” 705 ILCS 205/4 practice precedent to of law in an oath is a condition legislature. Anastap imposedby In re this state lo, (1954). 3 Ill. 2d repeatedly practice court has made clear

This right. Anastaplo, privilege In re is a and not law only upon Ill. 475. It is the above- 2d at satisfaction requirements that an individual is awarded enumerated practice practice law. A license law makes a license to In of the court. re holder that license an officer (1988); Anastaplo, DAngelo, 2d re 3 Ill. Ill. In 475; Both, 2d at re This court lawyer, that, has made it clear “a as officer (In public Anastaplo, position court, holds trust” re 478), attorney’s professional and, such, “an 3 Ill. 2d at (In reproach” D'Angelo, must re conduct be above 56). accurately Indeed, at described one court has attorneys having “superior” agency status, a due to as unique as the and the their roles officers of court heightened attorneys duty attaches as result which to “quasi-judicial Burden, of Clark v. 917 this status.” S.W. 1996). Supreme (Ky. Clark, 574, In the Court of 575 attorney-client relationship Kentucky as described the follows: “ generally ‘The that of and is however, powers superior

agent; is vested any ordinary agent of the to those because thus, court; of the at- quasi-judicial status an officer justice in torney responsible the administration of public interest, higher duty any ordinary agent than principal. owes his the relationship attorney-client Since nature, fiduciary is one in duty has the to relationships exercise in all his client-principal with this honor, scrupulous good fidelity most faith and to his ” Clark, 575, quoting client’s interest.’ 917 S.W.2d at 1978). Daugherty Runner, (Ky.App. v. 581 S.W2d similarly This court has emphasized heightened duty as a attorneys attendant result role unique attorneys play society. that, our We have stated attorneys court, because are officers of the duty “it is their to aid in the and establishment of truth justice. the due [Citation.] administration of When a license granted one practice law this court he assumes grave responsibilities, only worthy which those of trust fidelity and and possessed confidence of absolute and honesty them; reposed should bear. Confidences are life, liberty great magnitude, interests of and even the and fellow-men, their character of are entrusted to their care. granted by practice [Citation.] A license this court to is a that, guaranty advised, person so far as this court is holding proper person license a fit and such to assume responsibilities, enjoy safe-keep and the confidences others, and to aid and assist them in the care and management People legal their business and affairs.” ex (1915). Czarnecki, Chicago rel. Bar Ass’n Ill. v. also v. Ill. People Shirley, See 150-51 words, other and attorneys relation its “[t]he people responsibility, involving to the is one of on high complete the one hand and confidence and trust on fidelity integrity.” Both, other absolute In re at 182. to the preamble Rules of Professional Conduct emphasizes responsibilities

also serious practice undertake in the of law: practice public Lawyers “The trust. are the law is system disputes trustees of the which citizens resolve themselves, crime, among punish and deter and determine rights responsibilities their toward each other relative responsible government. Lawyers therefore and their *** system maintaining public confidence loyalty to the best justice by acting competently and with clients; by working improve that interests of their society; rapidly changing of a challenges system meet judicial system defending integrity and it.” 134 corrupt, or defraud would abuse against those who Conduct, Preamble, at Rules of Professional Ill. 2d Illinois 470. fiduciary is a relationship the lawyer-client

Because confidence, “[s]uch on trust and based lawyer if the acts only confidence can be maintained the client’s interests zealously pursues and competently not mean ‘Zealously’ of the law. does within bounds Rather, it is the mindlessly unfairly oppressively. or or at the duty lawyers disputes of all to seek resolution time, to all expense parties least cost trauma 134 Ill. 2d Illinois Rules Professional the courts.” Preamble, Conduct, at 472. end, Conduct

To this Rules Professional example, For provide a framework for conduct. 1.2(f)(1) suit, not a lawyer states that a shall “file Rule defense, delay a or take position, assert a conduct a trial lawyer the client when the other action on behalf of reasonably or know that such action would knows should merely maliciously injure harass another.” serve 1.2(i) 1.2(f)(1). 2d R. provides “[w]hen Rule lawyer expects a knows a client assistance law, the lawyer or other shall permitted these Rules with the client the relevant limitations regarding consult 1.2(i). Indeed, lawyer’s on the conduct.” 134 Ill. 2d R. 1.16(a)(1) lawyer representing Rule cli “[a] states ent from employment before tribunal shall withdraw (with permission if such permission tribunal in other required), lawyer representing and a client (1) from if: employment, matters shall withdraw lawyer reasonably knows or should know that defense, action, conducting bringing legal asserting a position litigation, in the isor hav otherwise taken, ing steps merely for the purpose harassing or 1.16(a)(1). maliciously injuring any person.” 134 Ill. 2d R. Thus, as an court, officer of the an attorney has a heightened duty to honestly fairly deal and or with his client, her with the public. court and with the In obtain- a license, an ing attorney law oath he takes an that or will uphold law, she the and in granting attorney a practice law, license to this court has that determined the a fit attorney is and to proper person assume these heightened responsibilities. a Accordingly, client would be in justified having heightened expectation a that his or her attorney will the client in represent a manner fair, Therefore, that honest and ethical in respects. all I hold that public policy would that the ordinary dictates rules of which agency, vicariously would make a client li- for the able intentional tortious actions of at- his or her torney simply agency because of the which relationship exists as a result of attorney-client relationship, their not to apply unique agent. should this More I specifically, believe that it that presumed allegedly should be the the attorney tortious acts of were within scope done the authority. Rather, of the attorney’s I believe that the resolving most manner of this appropriate issue was Hoffman, by Justice who a proposed separate submitted Based the opinion upon premise below. clients, agents of their Justice Hoffman reasoned general attorney things

“the of an to retention do all law, necessary should, a pursue claim as matter of interpreted only things the authorizing attorney as to do all legal proper pursue the and not be claim should construed, more, giving attorney direction without permission to Where is no commit a tortious act. there authorized, expressly impliedly evidence that client directed, of, or tortious alleged knew ratified the conduct attorney, that, merely presumed of its it should not he attorney/ relationship of in the parties stand because the tortious client, or authorized the client intended scope at of the that the conduct was within conduct or contrary of a torney’s implications duties. The undesirable good in faith Clients who seem rather obvious. position liability for to vicarious attorney exposed will be employ an matter, when, practical conduct as a attorney’s tortious attorney’s position to control client is in no added.) at 199-200 (Emphasis conduct.” P.J., (Hoffman, dissenting). of a that, assessing

I hold when would attorney, we of the client’s client for the tortious acts should not presume

authority intentional misconduct. encompass extends to public policy, contrary, To the as a matter we should pursue hired the presume that: manner; that, legal legal remedies and ethical fiduciary because stands court, justi- the client is the client and is an officer of the the the cli- expecting attorney represent fied in that will ent and bounds of the law. It is this ethically within the of the at- scope that should define the presumption authority in the It would torney’s representing client. to the upon party seeking then incumbent the hold be by producing to presumption client liable rebut this authorized, directed, client had evidence that the attorney’s misconduct, or ratified so as knowledge of at- bring to scope that misconduct within authority. that torney’s “[t]he It is well settled client is *** attorney not for acts of the which are outside liable Thus, a client is not authority. any illegal by for action taken or directed his responsible advise, to, did attorney the client not consent which by any and not author- in, justified which was participate § & at ity Attorney he had 7A Client given.” C.J.S. I analysis employ which serves proposed at- not an client who hired an only protect to innocent in engaged faith thereafter miscon- torney good who not client, duct known to the but it would also allow a hold plaintiff vicariously liable those clients who authorized, directed, had knowledge of or ratified the at- torney’s misconduct.

A contrary result imposing upon vicarious in every instance intentional tortious misconduct attorney client’s would mean that clients would forced micromanage be attorneys. conduct of their require This would the client be appraised every step taken the attorney during legal the course of the It proceedings. precisely because clients have no expertise in the they law hire for their specialized legal skill, and it would be unfair manifestly hold a client for liable the intentional torts his or if her client did not authorize direct those actions, if the client was unaware of those actions. Indeed, clients possibly “[m]ost cannot monitor at- their torneys degree required would to meet obligation, most, such clearly, qualified such for monitoring, anyway. Imposing obliga- such an on would, tion clients make unjustly, plaintiffs reluctant suit, to file and defendants far too about tentative defend- ing vigorously. themselves only This would not chill the *** willingness legal rights, citizens to vindicate their it would make them ultimately responsible their own legal representation very act for they which hire —the West, in the first Bradt v. place.” S.W2d (Tex. 1994). Civ.

In the majority, holding words of the set forth opinion own is “precariously agreeing its close” to position I dissenting According take in this opinion. to the it in majority, agreement my position with that vicariously is not liable for the intentional torts of his or her the plaintiff proffers unless authorized, directed, evidence that the client had or ratified the knowledge of misconduct. with agrees that it also states majority 2d at 23. The Ill. an inten that presumed “that it cannot be my position matter, any here, or, that other alleged for tort as tional the act, lies the of within illegal or unethical The major Ill. 2d at 21. attorney-client relationship.” 212 my that “it agrees position it further that ity states public policy, that as matter presumed, should be legal in a legal remedies attorneys pursue clients hire in a that, attorneys stand manner; and since and ethical and are officers to their clients fiduciary relationship expecting reasonably justified court, clients are the and ethically them attorneys represent will that their Ill. 2d at 21. the law.” 212 within bounds it however, my from states, departs The majority with Justice Freeman upon my agreement position based and an that “an is both at The majority all 212 Ill. 2d 21. contractor at times.” Freeman, however, I, “distin notes, unlike Justice types agents all from other guish[ ] rule liability carve[ the vicarious exception ] out 2d at 22. Although, on that distinction.” 212 Ill. based dissenting my in this majority, position the view of untenable,” majority “not opinion completely opinion “presents that its adheres to belief own 2d at 22. The approach.” majority more reasoned upon following arrives at this conclusion based exception “Rather than a wholesale reasoning: fashion merely agency attorneys, distinguish rules for we where, attorney-client situations in here, party vicarious is claimed third attorney.” conduct alleged intentional tortious 2d at 22. I it is the which respectfully submit creating a wholesale unnecessarily improperly agency with the issu- change to the traditional laws explained above, majority’s opinion. ance of As its 42

holding upon premises rests incorrect and reasoning uses engender which is sure to confusion and uncertainty among contrast, the bench and bar. the proposed analysis I which does employ attempt to alter law, well-established black-letter of principles agency but, instead, seeks carve a public out limited policy excep- tion to those traditional a principles when is plaintiff seeking to a hold client liable for the intentional torts of attorney. above, the client’s my As set forth proposed analysis straightforward. is As the attorney-client is agency, one of it proper apply principles agency law in resolving matter before However, us. because an is a as a unique agent, public policy matter of it presumed should be that cli- ent an attorney pursue legal hires remedies in law- manner, and, therefore, only ful ethical that such lawful fall attorney’s actions within the of an scope or authority representation his her of a client. Accord- ingly, to hold a client vicariously liable the intention- ally attorney, tortious acts of her a plaintiff his or must proffer sufficient facts to establish that the client authorized, directed, had knowledge of ratified at- torney’s misconduct, so as to bring misconduct within the authority. my bar,

Applying proposed analysis to case at I agree below, with the appellate and also with dissent, Justice Freeman’s there are sufficient facts presented summary judgment. to withstand The purpose summary judgment is to determine whether there Hess, Purtill v. any genuine of material issues fact. (1986). grant summary judgment Ill. 2d depositions, where the appropriate pleadings, admis sions, file, on in the affidavits exhibits when viewed nonmovant, most to the light favorable establish there is genuine no issue material fact and that moving party judgment is entitled to as a matter of law. (West 1005(c) Ill. 2d 2002); Petrovich, 735 ILCS 5/2 — encouraged is to be summary judgment Although 31. at lawsuit, it of a disposing method expeditious when the only allowed measure and should be drastic clear is free and judgment right moving party Etheridge, v. from doubt. Olson is a where there fact exists A issue of triable where, the facts although to a material fact dispute as in could differ draw reasonable minds disputed, are not 2d Petrovich, at facts. ing inferences from those summary involving of in cases 31. The standard review Mutual Insur is de novo. v. Columbia judgment Ragan (1998). Co., 2d ance 183 Ill. that, I as a mat- majority, the cannot conclude

Unlike for the actions of law, & Root is not liable ter of Holabird summary to judg- and thеrefore entitled its the that sufficient A record reveals ment. review ques- rise to a presented by give plaintiffs evidence was Root or expressly tion Holabird & of fact to whether authorized, directed, alleged or knew impliedly attorneys, of its Sabo & Zahn. For tortious conduct during deposition that his example, record reflects that the a & Root stated testimony, principal Holabird him Sabo & Zahn indicated to that letters sent out “aggressive fee way” firm in an pursuing law was as their clients.” “serving and that the firm was them depositions, The in their at- record also reflects sending of the & Zahn firm stated that torneys Sabo hired letters, doing they what they out the were were addition, summary judgment, in its Ho- do. In motion discovery were a labird & Root letters stated gives The rise to a litigation. tool in above evidence fact as to whether the client genuine issue of material authorized, directed, allegedly of the tortious knew Zahn, and thus created acts committed Sabo & respect issue of fact whether genuine with complained-of fell acts within the attorneys’ scope of authority. stated, As summary judgment drastic measure, and is not appropriate right when the of the moving party to judgment is not free and clear from doubt.

Finally, even if Zahn actions Sabo & were determined to fall outside authority its representing & Root, genuine Holabird issue mate rial fact remains as whether Holabird & Root subse quently acquiesced to, ratified, the misconduct. Ratification when principal occurs becomes aware of transaction, unauthorized yet retains the benefits of the transaction or takes a position inconsistent with non- Geldermann, v. Inc., Stathis affirmation. Ill. App. 3d (1998). 844, 858 For place, ratification to take must, act, full knowledge evidence with, an intent to comply by, bound transac Deutsch, tion. Peskin v. App. 134 Ill. surrounding

Ratification be inferred from circum stances, long-term including acquiescence, notice, after to the ‍​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​​​​​​​​​​‌​​‌‌‌‌​​​‌​‍benefits of an allegedly unauthorized transaction. Stathis, 3d at 858. appropri holds the circuit court

ately summary granted judgment on this issue because record in case is of any “[t]he this devoid suggestion support could an inference & Holabird Root benefitted way from & any alleged Sabo Zahn’s interference with relationships business of Horwitz Matthews.” Rather, I disagree majority. at 15. with the I am in agreement appellate with the it below is unclear from the when & record before us Holabird Root letters, and, did, became aware of when if they they mailed disapproved being letters or whether Ho a subsequent labird & Root’s silence amounts to ratifica tion of this conduct. whether the acts or Accordingly, & a omissions Holabird Root constituted ratification preclud- is an issue fact of Sabo & Zahn of the conduct summary judgment. ing entry of foregoing that, in the reasons, I hold would For the attorney representing an client, both a an is course hold I would also an contractor. attempts plaintiff public policy,a who a matter of that, as torts of that for the intentional a client liable hold attorney exist- the mere must show more than client’s attorney-client relationship. at- Because an ence of presumed agent, torney unique it should be performed intentional, tortious acts attorney’s automatically scope of the fall within the public policy, agency. it be Rather, a matter of should presumed only authorized to do all that an legal proper pursue things a client’s claim. for the intentional torts of order to hold a client liable required attorney, plaintiff the produce be client’s would authorized, directed, evidence that the client attorney’s knowledge misconduct, had of or ratified bring so that misconduct within the of the at- as to authority. torney’s that, I also would hold under facts summary presented judgment cause, in the instant was granted. Accordingly, improperly respectfully I dissent majority opinion. from the joins

JUSTICE GARMAN this dissent. dissenting: FREEMAN, JUSTICE also respectfully I dissent. May question appeal simple:

The raised in this vicariously client held liable tortious conduct com- during litigation behalf mitted counsel on client’s litigation? in furtherance of that holds that only “specifically a client can be liable when precise attorney’s controlled, directed, authorized *** performing subsequently rati- method work performed in fied acts the exercise of independent judgment.” I 2d at 14. believe this position is inconsistent with basic law agency which this previously has endorsed. The majority’s holding is also inconsistent with previous directly decisions on point appellate court, Circuit, our the Seventh the Restate (Second) ment Agency, of majority and vast of foreign jurisdictions to have addressed the Accordingly, issue. I respectfully dissent.

Black-letter agency law tells us that there are three types of relationships in vicarious analysis: master/servant, principal/agent, independent and con (Second) (1958). tractor. § See Restatement of Agency relationships of independent and master/servant contractor are mutually exclusive —a subordinate independent servant, either an contractor or a not both. (Second) (1958). § Restatement Agency of But relationships independent agent contractor are mutually not exclusive; may one both an independent be and an agent, appellate majority contractor noted. (Second) 3d at Ill. 196. See also Restatement *** 2(3) (1958) (“[a]n Agency § independent contractor may may fact, be an agent”). *** is, persons agents, “most of the known as at- *** torneys, independent are as the contractors term is Subject, used they Restatement this since are but, although employed services, contractors perform subject right are not the control to control of the principal with their respect physical conduct in the However, they performance of the fall services. within the category agеnts. They fiduciaries; they owe to the obligations agency: loyalty the basic and obedi- added.) (Second) (Emphases Agency ence.” Restatement 14N, § Comment a I far, majority agreement

So are in —the recognizes “a person both an agent.” contractor and 2d at 13. Yet, majority immediately thereafter states should not be treated as an because of precisely an those which make attributes “autonomy independent and over the details contractor — performing 13. 212 2d at of their work.” Ill. manner though person according majority, “a Thus, to the even agent,” independent an and an contractor be both they independent agents, are because not confusing at is best. contractors. This about-face independent contractor fact is an that someone liability his for not bar the attachment vicarious does agent, explicitly less if he is held actions an this court years ago. Il Health Plan than five Petrovich v. Share (“As (1999) general rule, linois, Inc., 17, 31 a 188 Ill. 2d independent actions of no vicarious exists liability may contractors. Vicarious nevertheless imposed independent for the actions of contractors where established”). agency relationship the extent an is To says incor otherwise, that our decision in it is Gomein rect and was overruled Petrovich.1 agent’s Simplyput, principal is for its conduct a liable authority. agent’s v. within the Brubakken (1992). Liability App. Morrison, 240 is 680, Ill. 3d 686 principal limited to cases in autho those which specific agent. conduct of rized Restatement (Second) (1958). Although § Agency principal is a by negligent physical physical not liable for harm caused independent agent of an contrac conduct who is also an (Restatement (Second) (1958)), § Agency a tor majority distinguishes from

1The Petrovich Gomein on apparent implied authority. 212 that Petrovich involved basis 18-19. in because Ill. 2d at These doctrines were involved Petrovich ordinаry agency agent a is not of an HMO under physician an basis, principles. distinguishing But cases on this law, stating maintaining good remains Gomein according liable for the acts principal Illinois law is not agent (Gomein), independent but a an contractor who an actual principal is liable for acts of an contractor who is (Petrovich). agent apparent is liable for the agent’s conduct matters

which the has the right to direct under agree ment creating relation, the agency if even the principal wholly unaware of the specific conduct question. (Second) Restatement 216, § of Agency Comment (1958). Accord Peddinghaus v. Peddinghaus, 314 (2000); 3d Letsos v. Century 21—New West Realty, 285 Ill. App. Woods v. Cf. (1998) (“[u]nder Cole, 181 Ill. 2d the doctrine of respondeat superior, principal may be held liable for the tortious actions of an agent which plaintiffs cause a injury, if even the principal does not himself engage in any conduct in relation to the plaintiff’). (Second)

The Restatement of Agency contains entire title devoted exclusively to “Agents’ Torts —Li- ability Dependent Not Upon Relation of Master And (Second) Servant.” Restatement of Agency, 7, 2, ch. topic (1958). tit. Moreover, C section of 253 the Restatement speaks to the precise presented situation in this case. section, That entitled “Tortious Institution or Conduct Legal of Proceedings,” states that principal

“A who agent authorizes a servant or other to legal institute or proceedings conduct such in judg- his ment are lawful and for protection desirable principal’s subject interests is liability person to to a against whom proceedings reasonably adapted to ac- complish the principal’s purposes tortiously brought by (Second) (1958). the agent.” Restatement Agency § of 253 comments section 253 explain that only “The is liable agent conduct of the if is, least, part in at carry out the purposes of the principal. Thе frequently arising situation most which involves the rule in stated this Section is that in which an attorney tortiously at law institutes or or continues civil proceedings, guilty oppressive criminal wrongful is of during conduct proceedings, the course in order that of may he principal. a claim the The fact that the enforce of subject discipline by the court does not liable for his conduct.” being from prevent the client (Second) added.) § Agency Restatement (Emphases (1958). Comment (1980) (“A § Attorney cli- & Client Accord 7A C.J.S. injured by person at- an act of the a third ent liable to torney his of matters within done in the execution ordinary agency, according authority, rules of to the *** may institution, the tortious bound a client be legal proceedings prosecution continuation, or claim”). the client’s enforce although

Additionally, contends that addressing clients whether “there is no Illinois decision alleged attorneys’ intentional held for their liable against party the direc a third undertaken without torts (212 9), knowledge 2d at Illinois of the client” Ill. tion or imposed for the actions of vicarious courts have litigation. v. See Rankin the conduct (2001);Flight App. Heidlebaugh, 255, 266-67 321 Ill. 3d App. Chicago 7-UpBottling Co., 22 Ill. 3d Kitchen, Inc. v. (1974). App. Doyle Shlensky, 3d v. See also (1983) (“[t]he attorney-client relationship one *** agent-principal[,] general rule is that ‘the and the lawyer- client is the acts and omissions his bound ”), remedy’ prosecution quoting Dan- Co., v. Taxi Checker forth ap Heidlebaugh There, our Rankin v. is instructive. organization Equip pellate specifically held that (EFE) subject directly Equality to sanctions was itself Supreme the actions of its at Court Rule 137 for under showing torney. in that EFE no that case There was “specifically controlled, the at directed, or authorized torney’s performing precise the work” method of “subsequently performed ratified acts the exercise (see attorney’s independent judgment” 212 Ill. 2d at 14). appellate Nevertheless, concluded that рrincipal “[a] EFE is hable was sanctionable because 50

the acts of agent its committed within the of her *** authority. that EFE responsible [W]e conclude is principal for the agent, sanctionable conduct its Karen Rankin, Kauffman.” 3d at 266-67. re Berry Publishing The majority heavily relies on (Bankr. Services, Inc., B.R. 1999), N.D. Ill. which held purchaser could not hold the bankruptcy purported trustee liable for misconduct by trustee’s attorney. However, 212 Ill. 2d at 10-11. as the recognizes, Berry Publishing exclusively upon relied Co., Anderson v. Marathon Petroleum 801 F.2d (7th 1986), Cir. a case which had to do at nothing torneys. question there was whether Marathon held should be liable for a tank cleaner’s failure provide proper respirators employ to the tank cleaner’s ees. There was no principal/agent relationship between cleaner; solely Marathon and the tank the question was one of relationship whether was master/servant contractor. Berry the tank cleaner was an on Anderson Publishing erred in relying without consid ering agency attorney/client whether nature of the was relevant vicarious Berry Publishing overlooked Seventh Moreover, analysis. v. Anderson. See Diersen postdating Circuit case law (7th Car Chicago Exchange, 110 F.3d 489 n.9 Cir. 1997) (“ ‘attorney’s errors and misconduct are attributed principals, to his clients. The clients are is and under agent, agency principal law United ”), agent’s quoting bound his chosen deeds’ (7th Ave., States v. 7108 W. Grand Cir. 15 F.3d 1994). Berry Publishing Flight failed to also discuss Kitchen. Berry Publishing Moreover, begins analysis its “[ujnder Illinois law a stating of this issue torts, agents’ provided for an [sic] liable (Berry Publishing, not an employee” 682), flatly which is incorrect. See position B.R. at (“[vicarious liability may Petrovich, 188 Ill. 2d at 31 imposed the actions of be for nevertheless established”). agencyrelationship is contractors where majority wrongly in and the errs was decided case relying upon it. split jurisdictions

Further, is far more other majority represents. lopsided 212 111.2d at than the See majority’s example, listed in the 11-12. For the cases (Aetna Surety string Casualty v. citation & Co. “see also” (Fla. Co., 2d 305 Insurance 631 So. Protective National App. 1993); Feliberty Damon, 112,527 N.E.2d v. 72 N.Y.2d (1988); 261, Brown v. Lumbermens 531 N.Y.S.2d 778 Casualty App. Co., 464, Mutual 90 N.C. 369 S.E.2d (1990)) (1988), 390 S.E.2d 150 are aff’d, N.C. suing wholly inapposite. party than a third a cli- Rather attorney, ent the actions of involve a for his these cases suing attorney entity paying his and the meaning attorney, principal/agent there no relation- is ship and the defendant.2 factu- between Also ally distinguishable Baldasarre, in which an represented both sides of a real estate deal and one client sued other for the failure to discloseinfor- mation.3 only foreign

Thus, two of the cases on which the majority my 2The characterizes criticism of its reliance on foreign jurisdiction these cases as “concern that several of the *** point “of no cases insurance cases” and finds this majority consequence.” 212 Ill. 2d me. at 20. The misunderstands *** objection taking “general I propositions have no law from factually cases,” lacking on-point support it similar when —as surely majority’s My position. is for the concern is that these cases factually did not are not similar because insurer-defendants attorney-client lawyers have an with the whose recognize aggrieved plaintiffs. failing conduct attorney-client agency relationship to li relevance of the vicarious ability analysis majority sadly analytical repeats error Berry Publishing. committed holding although

3The the court of Baldasarre is also unclear — Lynn, eases, are on One of majority point. relies these Merritt, wholly must be discounted because it relies on which, again, inapposite. This leaves it, Plant v. Trust Co. single supports case which Columbus, 310 S.E.2d App. Ga.

However, Georgia, I note that court of appellate even has not decided majority’s supporter, sole this issue Farris, See Atlantic Co. v. uniformly. 62 Ga. (1940) (“the 665, bound, 215-16, 8 669 is S.E.2d according ordinary agency, by to the rules of the acts of *** attorney[;] may trespass his the client be liable for authorized, way that he in no attorney committed his attorney, of the or for except by general employment his continuation, institution, prosecution the of tortious claim”). legal to enforce the client’s proceedings hand, in which the On the other most of cases that clients have been held liable for majority concedes actions, agency of attorneys’ precepts their under Southwestern Bell e.g., law, See, quite point. on Wilson, (Tex. Co. v. Telephone Ct. App. 768 S.W.2d 755 Co., Peterson v. Worthen Bank & Trust 1988); Ark. 296 (1988); United Farm Bureau Mutual 201, 753 S.W.2d 278 (Ind. Groen, Insurance Co. v. 1985); 486 N.E.2d 571 Carter, (Me. 1977). v. Nyer Indeed, 367 A.2d 1375 authority directly of on which runs counter point wealth greater majority to the is even than the majority Co.,& SEI v. Norton e.g., Corp. 631 F. See, recognizes. (E.D. 1986) (“[client] 497, Penn. is liable 503 n.6 Supp. attorney’s wrongful conduct party] for his [opposing judicial proceeding irrespective during course for the acts of an point that a client cannot be liable at one states contractor, recognizes it attorney, is an elsewhere who attorney agent, principal that a is a client’s and ordinarily agent acting acts of an within the liable for the tortious 288-89, Baldasarre, authority. 132 J. at scope Compare of N. his 290, 463-64, Baldasarre, 625 A.2d at 132 N.J. at 625 A.2d at 464-65. subject judicial attorney may be fact his

discipline”); Bridge C.A.T. Scan Associates v. Ohio- (S.D.N.Y1985) (“A Supp. Inc., Nuclear 608 F. client and his in the stand principal agent. responsible such, client and As purpose aiding, statements made for the within scope legal representation”); Levy, of, his Otto v. (1935) (“As 349, 353, A.D. 279 N.Y.S. their at- *** torney acting general scope was within the of his authority, they act”); are hable for v. his unlawful Hewes (1985) App. 610, 619, Wolfe, N.C. 330 S.E.2d *** (“In circumstances in which an at law guilty oppressive wrongful during conduct proceeding course in order to enforce a claim of principal, is liable for the acts”). wrongful split jurisdictions Thus the in other nearly majority suggests. as balanced as the Our holding puts minority. Illinois in a distinct importantly, however,

More disavows principles agency basic black-letter law when it holds principals agents’ are not liable for their conduct agency. within the e.g., See, the service of the App. Petrovich, 31; 188 Ill. 2d Rankin, at 321 Ill. 3d Flight App. 266-67; at Kitchen, 558; 3d Restate (Second) (1958); § Agency Attorney ment of 7A C.J.S. (1980). § & Client Diersen, See also 110 F.3d at 489 n.9. recognize public policy argument

I that clients attorneys should be entitled to assume that will behave properly. See 212 is, course, Ill. 2d at 16-18. It of reprehensible attorney oversteps when an the bounds of appropriate behavior in the of service his client’s cause. liability But the whole field of vicarious concerns situa authority tions in which someone entrusted responsibility wrongly princi falls short or acts in their pal’s agree I service. do not that we should create a attorneys attorneys, simply

special because rule for subject disciplinary rules. to regard note, first, I that the Restatement

In this subject directly “[t]he fact that the states by prevent discipline the client the court does not to (Second) being for his conduct.” Restatement from hable § Agency 253, See also SEI Comment Corp., (“[client] [opposing Supp. at 503 n.6 is liable 631 F. during attorney’s wrongful party] conduct for his judicial proceeding irrespective of the fact of the course discipline”). attorney may subject judicial be that his principal can held liable even for Second, I note that a agent’s by fact that an actions his criminal —the mean that no does not actions are criminal automatically lie. will v. Board Deloney respondeat superior Township, Education Thornton (Second) Agency § (1996), citing Restatement 783 (1958). suggesting that I that the is not assume ordinary people lax their observance are more respect to the than are with criminal code profession’s otherwise, the basis But what is ethical rules. majority’s tortious for the distinction—that inherently so unforeseeable conduct is agent’s illegal liable, a normal held whereas cannot be liability? principal’s activity may form the basis for still analogy оf the criminal law to violations I believe reject li- vicarious instructive, courts do because when is ability agent, it is criminal act in the context of a criminality taken found to have of the act is because agency. employment I the act outside inquiry proper in cases focus this forms believe that wrongdoing seeking their for the hold clients liable question attorneys. be whether should conducting en- he had been with which matters was part his desire at least in motivated trusted, and was In the the tort. committed client, when he serve his court that there bar, appellate I agree at case on this summary judgment facts to survive are sufficient of Holabird & (principal 3d at 196 issue. See firm letters the law in a that deposition Root stated firm pursu to him that the law was sent out “indicated firm way’ in an was ing ‘aggressive the fee attorneys stated in them as their clients’ ‘serving they were hired to they doing were what depositions do; in its motion for sum and Holabird & Root asserted in mary discovery that the “were tool judgment letters Therefore, concluding there is no basis for as litigation”). attorneys’ a matter that the actions were outside of law thus, nearly every And agency. the client question agreed, to consider has held for actions. potentially be hable its I finally suggested by major- submit that the rule I ity public policy. is ill-advised as matter of believe unwittingly encouraging the retention of at- majority is torneys operate beyond who at or the boundaries of law matter and ethics. The would hold no what does, any the client is not acts liable directed, controlled, or except “specifically those he rule, unscrupulous authorized.” Under such a hire an freely “push could known then, ostrich-like, in envelope” and hide his head in the at- any specific sand so as to disavow involvement methods, away any wrongdoing from torney’s walk committed on his in the his chosen behalf cause. service his

I firmly in the moral character of upstanding believe The Chief Justice’s membership Illinois bar. regarding observations the ethical constraints within are required operate which Illinois ‍​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​​​​​​​​​​‌​​‌‌‌‌​​​‌​‍entirely although majority’s I must note that the correct — to at- agency alteration of the laws of is not restricted state, But torneys country. licensed this or even this my that take despite very stoop conviction few would it, I advantage of cannot endorse the incentive perverse system the majority today. creates agency

The holds that traditional principles in context of apply attorneys, quintessential do not Co., agent.4 See Link v. Wabash R.R. 370 U.S. 633- (1962) 734, 740, L. Ed. 82 S. Ct. (“Petitioner voluntarily chose this as his action, in the and he now representative cannot avoid the consequences freely of the acts or omissions of this selected agent. Any wholly other notion would be system representative litigation, inconsistent with our in party which each is deemed bound the acts of his (Second) 14N, § lawyer-agent”); Agency Restatement (1958). Along Comment way, majority ignores previous holdings regarding general agency of this court (see Petrovich, 31; Woods, 188 Ill. 2d at principles 517), inapposite authority 2d at relies on and ill-founded jurisdictions, diverges from other from the Restate ment, Circuit, court, and our appellate Seventh own I each of which has arrived at what submit is the proper conclusion, vicariously that a client be held liable counsel, agent, by ap for the actions of his chosen his plication ordinary principles agency law. the client accountable majority’s holding concern that the client attorney’s require for the actions will that all agency oversee the actions overlooks on the it is the client’s premise is based at risk of be responsibility agent carefully, to choose its wrongly if ing they held liable for their actions behave actions principal’s interests those promoting are entrusted. they the conduct of which I dissent. Accordingly, respectfully explicitly & Root states briefings 4In its to this court Holabird agency “in there is an dispute! ]” it “not Illinois does and client.” between

Case Details

Case Name: Horwitz v. Holabird & Root

Court Name: Illinois Supreme Court

Date Published: May 20, 2004

Citation: 816 N.E.2d 272

Docket Number: 89351

Court Abbreviation: Ill.