concurring in part and dissenting in part:
This case involves a dispute between an attorney and his client regarding their contractual relationship dealing with fees. I agree with the majority in reversing the trial court’s dismissal of count IV of the counterclaim, which alleges a breach of contract for fees. This provides a proper basis for resolving the dispute. I also agree with the majority in affirming the dismissal of counts III and V.
However, I respectfully dissent from the majority’s reversal of the trial court’s dismissal of count I charging attorney malpractice and count II charging a breach of fiduciary relationship.
An attorney is presumed to have discharged his duty to his client, and the burden is on the client “to allege and prove every fact essential to establish defendant’s duty and a violation of it.” (Emphasis added.) (Bronstein v. Kalcheim & Kalcheim, Ltd. (1980), 90 Ill. App. 3d 957, 959, 414 N.E.2d 96.) A complaint may not rest upon conclusions of fact unsupported by allegations of specific facts from which such conclusions may be drawn. (Payne v. River Forest State Bank & Trust (1980), 81 Ill. App. 3d 1128, 1134, 401 N.E.2d 1229, appeal denied (1980), 81 Ill. 2d 594.) An actionable wrong cannot be made out by the profuse interpolation of adjectives characterizing an act as having been wrongly done. (Alswang v. Claybon (1976), 40 Ill. App. 3d 147, 151, 351 N.E.2d 285.) The doctrine of liberal construction of pleadings does not require a defendant to go to trial on a complaint that does not allege facts sufficient for a cause of action. Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 841, 342 N.E.2d 290.
In Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E.2d 1022, appeal denied (1983), 92 Ill. 2d 574, a client sued her lawyer for failure to bring a malpractice action against one Connor, her previous attorney. The court described the complaint as “plaintiff’s conclusions to the effect that Connor fraudulently concealed wrongful acts which took place during the administration of her father’s estate. None of these fraudulent acts is alleged. Plaintiff then concludes that because of defendant’s breach of contract she could not recover her losses from Connor for his malpractice.” (109 Ill. App. 3d 582, 588, 440 N.E.2d 1022.) The court held that the pleading “is insufficient because it does not plead sufficient facts to allege a breach of contract by defendant. There are no facts alleged which purport to show what acts constitute a breach.” 109 Ill. App. 3d 582, 588, 440 N.E.2d 1022.
In the case before us, to support his allegations of malpractice and a breach of fiduciary relationship, SeRine merely alleges the conclusions that his attorney expended more time than was necessary considering the simplicity of the issues presented, performed work which was not necessary or authorized, and requested greater compensation by way of a bonus than was originally agreed. SeRine failed to allege any facts to support these conclusions.
SeRine’s brief concedes that “[t]he legal services rendered by Coughlin pertaining to the covenant not to compete were satisfactorily performed.” The record amply supports this concession. When SeRine engaged Coughlin, he was bound by an agreement whereby he sold his interest in a business for $1,200,000 to be paid over a period of time, and was restricted from engaging in a competing business. Through Coughlin’s efforts, the restrictions were released and payment was accelerated. Legally and economically, SeRine was better off than before. Under this state of the record with the meager allegations before us, it is not appropriate to require an attorney to respond to an action which challenges his professional competence and integrity.
Itemized legal bills are attached to plaintiff’s complaint, so there should be little doubt as to what services were performed. The bills were paid. Also attached to plaintiff’s complaint is a letter sent to SeRine on the very first day that he engaged Coughlin as his attorney which provides, in part:
“With respect to the bonus, the actual amount and the nature of the bonus shall be determined by agreement of the parties hereto. In the event that an agreement cannot be reached, then either party may submit this matter to the Chicago Bar Association’s Committee on Professional Fees, which shall appoint a panel of arbitrators to determine the amount of any bonus.”
This does not reflect a disposition to overcharge or breach a fiduciary relationship.
I am not aware of any case where an attorney accomplished every objective desired by his client and then had to respond to an action for malpractice or breach of fiduciary relationship.
SeRine’s counterclaim does not refer to,„ either the Code of Professional Responsibility or Canons of Ethics generally, nor does it identify any specific provision. No facts are alleged which would constitute a breach of the Code or Canons.
Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban and Fuller (1979), 75 Ill. App. 3d 516, 394 N.E.2d 559, involves an apparent conflict of interest on the part of attorneys. The court concluded that violations of the Code of Professional Responsibility are not actionable per se. “We are not aware of any case in Illinois holding that an attorney may be guilty of malpractice for representing conflicting interests.” 75 Ill. App. 3d 516, 524, 394 N.E.2d 559.
The majority relies on Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, aff'd (1980), 81 Ill. 2d 201, which is distinguishable from the case at bar. In Rogers, the attorney failed to follow his client’s specific instructions which deprived the client of the right to pursue a legal remedy. Here, Coughlin followed instructions and the client benefited. The only remaining dispute involves legal fees. Plaintiff’s complaint, defendant’s answer, and count IV of his counterclaim alleging breach of contract are adequate to resolve this dispute.