dissenting:
This appeal presents an important issue of first impression for this court: whether, and if so, to what extent, clients may be held vicariously liable for the intentional torts of their attorneys. The majority holds that attorneys are nonagent independent contractors whose intentional misconduct may not be 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.” 212 Ill. 2d at 14. Applying this rule to the facts before it, the majority also holds that the circuit court properly granted summary judgment to the client, Holabird & Root, finding that there was no evidence giving rise to a genuine issue of material fact as to whether Holabird & Root authorized, directed, had prior knowledge of, or ratified the allegedly tortious conduct of its attorneys, Sabo & Zahn.
I respectfully dissent from the opinion of the majority. It is my view that the appellate court below was correct in determining that an agency relationship exists between an attorney and client. It is also my position that the appellate court correctly held that, under the facts presented in this cause, summary judgment was improperly granted by the circuit court because there exists a genuine issue of material fact both with respect to whether Sabo & Zahn was acting within the scope of its authority when it engaged in the allegedly tortious conduct, and whether Holabird & Root subsequently ratified the conduct of Sabo & Zahn. I would arrive at this conclusion, however, somewhat differently than the appellate court below.
The central issue presented in this case reaches the core of the relationship between an attorney and a client: to what extent can an attorney bind his or her client for the actions taken by the attorney? In order to answer this question, it is necessary to briefly review basic principles of the law of agency, and the differences between an “agent” and an “independent contractor.” In general, an agency relationship is characterized by a fiduciary affiliation between two individuals in which the principal exercises some degree of control over the conduct of the agent, and the agent has the power to act on behalf of the principal. Restatement (Second) of Agency § 1 (1958); see also 3 Am. Jur. 2d Agency §§ 1, 2 (1986). Section 2 of the Restatement (Second) of Agency defines an independent contractor as “a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Restatement (Second) of Agency § 2(3) (1958). Notably, section 2 of the Restatement also provides that an independent contractor “may or may not be an agent.” Restatement (Second) of Agency § 2(3) (1958). Thus, under the Restatement, the concept of an “independent contractor” and “agent” are not mutually exclusive. The comments to section 2 of the Restatement explain that, generally, an “agent who is not a servant is *** an independent contractor when he contracts to act on account of the principal.” Restatement (Second) of Agency § 2, Comment b, at 13 (1958). However, “not all independent contractors are agents.” Restatement (Second) of Agency § 2, Comment b, at 14 (1958). For example, “one who contracts for a stipulated price to build a house for another and who reserves no direction over the conduct of the work is an independent contractor; but he is not an agent, since he is not a fiduciary, has no power to make the one employing him a party to the transaction, and is subject to no control over his conduct.” (Emphasis added.) Restatement (Second) of Agency § 2, Comment b, at 14 (1958).
Thus, a fundamental distinguishing characteristic between an agent and an independent contractor is that an agent stands in a fiduciary position with respect to the principal, whereas an independent contractor is not a fiduciary of the principal. “The agency relation results if, but only if, there is an understanding between the parties which *** creates a fiduciary relation in which the fiduciary is subject to the directions of the one on whose account he acts.” Restatement (Second) of Agency § 1, Comment b, at 9 (1958); see also Restatement (Second) of Agency § 13, Comment b, at 59 (1958) (“The fact that an agent is subject to *** fiduciary duties distinguishes him from other persons who have power to affect the interests of others; and the understanding that one is to act primarily for the benefit of another is often the determinative feature in distinguishing the agency relation from other relations”).
Section 14N of the Restatement (Second) of Agency more clearly states the concept that an individual may be characterized as both an agent and an independent contractor. This section provides that “[o]ne who contracts to act on behalf of another and subject to the other’s control except with respect to his physical conduct is an agent and also an independent contractor.” Restatement (Second) of Agency § 14N (1958). Particularly relevant to the matter before us, the comment to section 14N discusses the dual roles that an attorney plays during the representation of a client. Comment a to section 14N explains that “most of the persons known as agents, that is *** attorneys *** are independent contractors as that term is used in the Restatement of this Subject, since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services.” (Emphasis added.) Restatement (Second) of Agency § 14N, Comment a, at 80 (1958). The comment goes on to explain that, even though attorneys may be considered independent contractors, they nevertheless also “fall within the category of agents,” because “[t]hey are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience.” Restatement (Second) of Agency § 14N, Comment a, at 80 (1958).
Whether an attorney is characterized as an agent or an independent contractor affects the vicarious liability of the client for the attorney’s conduct. A principal is liable for the acts of an agent committed within the scope of the agent’s authority. Brubakken v. Morrison, 240 Ill. App. 3d 680, 686 (1992). Conversely, no vicarious liability exists for the conduct of independent contractors. Petrovich, 188 Ill. 2d at 31. However, “[vjicarious liability may nevertheless be imposed for the actions of independent contractors where an agency relationship is established.” Petrovich, 188 Ill. 2d at 31.
Although the majority correctly acknowledges that an attorney may simultaneously be an agent and an independent contractor (212 Ill. 2d at 13), the majority nevertheless incorrectly holds that “regarding particular conduct [an attorney] is either one or the other, not both” (212 Ill. 2d at 20). Based upon the apparent, yet incorrect, premise that the concept of an “agent” and an “independent contractor” are mutually exclusive, the majority concludes that “when attorneys act pursuant to the exercise of independent professional judgment, they possess such considerable autonomy over the details and manner of performing their work that they are presumptively independent contractors for purposes of imposing vicarious liability.” 212 Ill. 2d at 13. The majority justifies this holding by reasoning that although an attorney is vested with a classic hallmark of an agent — “ ‘the power to act for and to bind the principal in business negotiations within the scope of [the] agency’ ” (212 Ill. 2d at 13, quoting Hoffman & Morton Co. v. American Insurance Co., 35 Ill. App. 2d 97, 103 (1962)) — an attorney is not an agent because he or she is also an independent contractor who “act[s] pursuant to the exercise of independent professional judgment.” 212 Ill. 2d at 13. The majority concludes that, “presumptively,” unless it is shown otherwise, an attorney is not an agent at all. In my opinion, the majority’s holding is inconsistent with fundamental principals of agency law, as set forth above, which provide that: (1) the concepts of “agent” and “independent contractor” are not mutually exclusive; and (2) while the relationship of an attorney to a client may be characterized, in some respects, as that of an independent contractor, it nevertheless remains a relationship of agency to the extent that an attorney is a fiduciary to the client.
Under the majority’s holding, an Illinois attorney, when acting “pursuant to independent professional judgment,” is now considered a nonagent independent contractor. See 212 Ill. 2d at 23. The comments to section 14N of the Restatement (Second) of Agency define a “non-agent independent contractor” as an individual “who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other.(Emphasis added.) Restatement (Second) of Agency § 14N, Comment b, at 80-81 (1958). I cannot agree with the majority’s apparent position that, as of today, the attorney-client relationship in Illinois is now simply a relationship wherein an attorney, when “acting pursuant to independent professional judgment,” is an independent contractor who does not act as a fiduciary for the client, and who, therefore, neither stands in a position of confidence or trust with respect to the client, nor owes a duty of loyalty or obedience to the client. I cannot support such a result.
For almost a century, this court has repeatedly held that, as a matter of law, the existence of an attorney-client relationship creates a fiduciary relationship between those parties. E.g., In re Imming, 131 Ill. 2d 239, 252-53 (1989); In re Schuyler, 91 Ill. 2d 6, 11 (1982); Gaffney v. Harmon, 405 Ill. 273, 277 (1950); People ex rel. Chicago Bar Ass’n v. Charone, 288 Ill. 220, 228 (1919). Indeed, the majority readily acknowledges that the relationship between a client and an attorney is fiduciary in nature. See 212 111. 2d at 9 (“the attorney-client relationship is a fiduciary relationship”); 212 Ill. 2d at 21 (“attorneys stand in a fiduciary relationship to their clients”). It is well settled that a fiduciary relationship is an agency relationship. Latimer v. Perry, 410 Ill. 119, 128 (1951); American Environmental, Inc. v. 3-J Co., 222 Ill. App. 3d 242, 249 (1991). When two parties enter into an agency relationship, “the principal has the right to control the conduct of the agent and the agent has the power to affect the legal relations of the principal.” Taylor v. Kohli, 162 Ill. 2d 91, 95 (1994). Indeed, it is precisely because an attorney stands in a fiduciary relationship to the client that the attorney has the power to act for and to bind the client to matters within the scope of the attorney’s agency. Restatement (Second) of Agency § 1, Comment e (1958); see also In re Marriage of Marr, 264 Ill. App. 3d 932, 935 (1994) (“Generally, a client is bound by the acts or omissions of his attorney within the scope of the attorney’s authority”); Hoffman & Morton Co. v. American Insurance Co., 35 Ill. App. 2d 97, 102-03 (1962) (an agent, “[w]hen properly authorized *** makes contracts or other negotiations of a business nature on behalf of the principal, by which his principal is bound”).
Despite acknowledging, as it must, that an attorney-client relationship creates a fiduciary relationship between those parties, the majority nevertheless holds that, when an attorney exercises “independent professional judgment,” the attorney’s status automatically shifts from that of an agent of the client to an independent contractor. In other words, in the view of the majority, an attorney is no longer an agent of the client, even though he or she always stands in a fiduciary relationship to the client, when the attorney acts pursuant to “independent professional judgment.” This reasoning is in error. An attorney’s exercise of “independent professional judgment” is the very essence of the attorney’s relationship to the client. Indeed, Rule 2.1 of the Illinois Rules of Professional Conduct mandates that, “[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” 134 Ill. 2d R. 2.1. Therefore, because an attorney is required to exercise independent professional judgment during the course of representation of a client, the majority’s holding leads to the conclusion that an attorney is a non-agent independent contractor throughout the duration of the client’s representation.
The majority assures that its holding today neither “alter[s] the core relationship between the attorney and client” nor ‘‘impact[s] the ability of an attorney to bind his or her client in a traditional, representational context.” 212 Ill. 2d at 22. I disagree. The flaws inherent in the majority’s protestations are apparent from the majority’s statement that it “continuéis] to affirm the long-standing principles of an attorney’s fiduciary obligations,” and the majority’s citation to case law holding that “ ‘a client is bound by the acts or omissions of his attorney within the scope of the attorney’s authority.’ ” 212 Ill. 2d at 22, quoting In re Marriage of Marr, 264 Ill. App. 3d 932, 935 (1994). As set forth above, a fiduciary obligation arises from an agency relationship, a relationship which the majority today holds is nonexistent when an attorney exercises independent professional judgment. Similarly, any discussion of the “scope of the attorney’s authority” is defined by the scope of the attorney’s agency relationship with the client, a relationship which the majority has found does not exist when an attorney exercises independent professional judgment during the representation of a client.
It is my position that, as a result of the majority’s holding that during the course of representing their clients Illinois attorneys are nonagent independent contractors, the court’s opinion today calls into question the ability of attorneys to bind their clients in any legal or business dealings conducted by the attorney on behalf of the client. As stated, it is by operation of agency principles that an attorney has authority to bind a client with respect to acts performed by the attorney within the scope of the agency. It is foreseeable that a client, unhappy with a transaction, would rely upon the majority’s holding to argue that because his or her attorney was merely an independent contractor, the client is not bound by any actions that the attorney performed during the course of the legal representation. Under the majority’s holding, not only is the power of an attorney to act on behalf of a client limited, but those third parties with whom the attorney must deal may legitimately question whether the attorney has the necessary authority to negotiate for and bind the client.
In light of our own long-settled precedent which establishes that the fiduciary relationship between an attorney and client renders an attorney an agent of his or her client, there is considerable cause to question the basis of the majority’s holding in this case that because an attorney is an independent contractor, the attorney, therefore, is not an agent of the client. Review of the majority opinion, which not only effectively overrules a long line of precedent, but also calls into question the ability of Illinois attorneys to bind their clients to any matters the attorney engages in on the client’s behalf, appears to lead to the conclusion that this is a decision aimed at achieving a particular result: the nonliability of a client, in virtually every instance, for the intentional torts of the client’s attorney.
The majority attempts to somewhat ameliorate the result in this matter in several ways. The majority repeatedly characterizes its holding that an attorney is an independent contractor as a “presumption” limited to vicarious liability claims against a client based upon an attorney’s alleged intentional tortious conduct. See, e.g., 212 Ill. 2d at 12 (“[W]e conclude that when, as here, an attorney acts pursuant to the exercise of independent professional judgment, he or she acts presumptively as an independent contractor whose intentional misconduct may generally not be imputed to the client, subject to factual exceptions”); 212 Ill. 2d at 13 (“when attorneys act pursuant to the exercise of independent professional judgment, they possess such considerable autonomy over the details and manner of performing their work that they are presumptively independent contractors for purposes of imposing vicarious liability”); 212 Ill. 2d at 23 (“[F]or purposes of imposing vicarious liability for allegedly tortious conduct, when attorneys act pursuant to independent professional judgment, they are presumptively independent contractors whose alleged misconduct may not be imputed to their clients”). The majority further holds that its presumptive general rule of nonliability may be rebutted, and vicarious liability can attach, if a plaintiff proves either that (1) the client specifically directed, controlled or authorized the attorney’s precise method of performing the work, or (2) that the client subsequently ratified the attorney’s allegedly tortious acts. 212 Ill. 2d at 23.
Under the majority’s view, then, it is only upon proof of either of these two elements that an attorney becomes an agent of a client for whose acts the client may be vicariously liable. It would follow, then, that it would only be upon such proof that a client would be bound by the conduct engaged in by his or her hired attorney, because only then would the attorney be considered an agent of the client. As explained above, this holding is contrary to basic black-letter principles of agency law, which stand for the proposition that an attorney may be characterized, simultaneously, as both an agent and an independent contractor. Under the majority’s holding, an attorney will never be an agent of his or her client, as long as the attorney abides by professional standards of ethics and satisfies his or her obligation to exercise “independent professional judgment” during the representation of the client. In this way, the majority’s presumption effectively becomes irrebutable. In addition, by holding that an attorney is not an agent when acting in accordance with his or her independent professional judgment, the majority also calls into question the fiduciary obligations which an attorney owes to a client as a result of the agency relationship. By dispensing with the agency relationship, the majority also dispenses with the attorney’s fiduciary obligations to the client.
The difficulties which are apt to flow from the majority’s holding cannot be overstated. In addition to the several serious concerns I have outlined above, I note that in practical application the majority’s holding will be unworkable, as the status of an attorney will constantly be in flux. In apparent acknowledgment that its holding is problematic, the majority attempts to explain the result in this case by stating that, “[a]s a fiduciary relationship, there are a myriad of circumstances where attorneys act as agents for their clients. The situation at hand is simply not one of them.” 212 Ill. 2d at 15. This statement will do little to provide guidance to the bench and bar in addressing similar cases in the future. To the contrary, it will cause additional confusion. After holding that attorneys are nonagent independent contractors, the majority backtracks and states that there are “circumstances” where attorneys act as “agents.” However, under the majority’s holding today, these undefined “circumstances” cannot include actions where the attorney exercises his or her professional judgment, the very reason why an individual retains an attorney’s services in the first place. Accordingly, for the foregoing reasons, I submit that the majority’s holding is untenable.
I am, therefore, in agreement with the dissenting opinion filed by Justice Freeman that the majority errs in holding that attorneys are independent contractors to which traditional agency principles do not apply. My position mirrors that of Justice Freeman to the extent that, under application of basic principles of agency law and this court’s own precedent, an attorney is both an independent contractor and an agent for his or her client. Accordingly, as the attorney-client relationship is one of agency, it is proper to apply principles of agency law in resolving the matter before us. Finally, I also am in agreement with Justice Freeman that the majority relies upon inapposite and unpersuasive authority in arriving at the opposite conclusion.
I cannot join Justice Freeman’s dissent, however, with respect to his conclusion that, under agency law principles, a client, in every instance, is vicariously liable for the intentionally tortious actions of his or her attorney committed within the scope of the agency. It is my position that, as a matter of public policy, a plaintiff who attempts to hold a client liable for the intentional torts of that client’s attorney must show more than the mere existence of an attorney-client relationship. For the reasons set forth below, I would hold that, because an attorney is readily distinguishable from other agents, it should not be presumed that intentional, tortious acts performed by an attorney automatically fall within the scope of the attorney’s agency. Rather, as a matter of public policy, it should be presumed that a client hires an attorney to pursue legal remedies in a lawful and ethical manner, and that because an attorney not only has a fiduciary obligation to his or her client but is also an officer of the court, the client is justified in expecting that any activities engaged in on the client’s behalf are ethical and within the bounds of the law. It is this presumption which should set the parameters of an attorney’s authority in his or her representation of a client.
Attorneys are unique agents. First, an attorney must be licensed by the state, in accordance with both the Attorney Act (705 ILCS 205/0.01 et seq. (West 2002)), and the rules of this court. Although other professions also have licensing requirements, attorneys, in addition to meeting specific academic requirements and passing the bar examination, must also be “of good moral character and general fitness to practice law.” 188 Ill. 2d R. 701(a). In addition, an attorney is different from other licensed professionals in that every person admitted to practice law as an attorney in this state must take and subscribe to the following oath: “I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.” 705 ILCS 205/4 (West 2002). The taking of an oath is a condition precedent to the practice of law in this state and is imposed by the legislature. In re Anastaplo, 3 Ill. 2d 471, 475 (1954).
This court has repeatedly made clear that the practice of law is a privilege and not a right. In re Anastaplo, 3 Ill. 2d at 475. It is only upon satisfaction of the above-enumerated requirements that an individual is awarded a license to practice law. A license to practice law makes the holder of that license an officer of the court. In re DAngelo, 126 Ill. 2d 45, 56 (1988); In re Anastaplo, 3 Ill. 2d at 475; In re Both, 376 Ill. 177, 182 (1941). This court has made it clear that, “a lawyer, as an officer of the court, holds a position of public trust” (In re Anastaplo, 3 Ill. 2d at 478), and, as such, “an attorney’s professional conduct must be above reproach” (In re D'Angelo, 126 Ill. 2d at 56). Indeed, one court has accurately described attorneys as having a “superior” agency status, due to their unique roles as officers of the court and the heightened duty which attaches to attorneys as a result of this “quasi-judicial status.” Clark v. Burden, 917 S.W. 2d 574, 575 (Ky. 1996). In Clark, the Supreme Court of Kentucky described the attorney-client relationship as follows:
“ ‘The relationship is generally that of principal and agent; however, the attorney is vested with powers superior to those of any ordinary agent because of the attorney’s quasi-judicial status as an officer of the court; thus, the attorney is responsible for the administration of justice in the public interest, a higher duty than any ordinary agent owes his principal. Since the relationship of attorney-client is one fiduciary in nature, the attorney has the duty to exercise in all his relationships with this client-principal the most scrupulous honor, good faith and fidelity to his client’s interest.’ ” Clark, 917 S.W.2d at 575, quoting Daugherty v. Runner, 581 S.W2d 12, 16 (Ky. App. 1978). This court has similarly emphasized the heightened
duty attendant to attorneys as a result of the unique role attorneys play in our society. We have stated that, because attorneys are officers of the court,
“it is their duty to aid in the establishment of truth and the due administration of justice. [Citation.] When a license is granted to one to practice law by this court he assumes grave responsibilities, which only those worthy of trust and confidence and possessed of absolute fidelity and honesty should bear. Confidences are reposed in them; interests of great magnitude, and even the life, liberty and character of their fellow-men, are entrusted to their care. [Citation.] A license granted by this court to practice is a guaranty that, so far as this court is advised, the person holding such license is a fit and proper person to assume the responsibilities, to enjoy and safe-keep the confidences of others, and to aid and assist them in the care and management of their legal business and affairs.” People ex rel. Chicago Bar Ass’n v. Czarnecki, 268 Ill. 278, 294 (1915).
See also People v. Shirley, 214 Ill. 142, 150-51 (1905). In other words, “[t]he relation of the court and its attorneys to the people is one of high responsibility, involving on the one hand complete trust and confidence and on the other absolute fidelity and integrity.” In re Both, 376 Ill. at 182.
The preamble to the Rules of Professional Conduct also emphasizes the serious responsibilities attorneys undertake in the practice of law:
“The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for *** maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.” 134 Ill. 2d Illinois Rules of Professional Conduct, Preamble, at 470.
Because the lawyer-client relationship is a fiduciary relationship based on trust and confidence, “[s]uch confidence can only be maintained if the lawyer acts competently and zealously pursues the client’s interests within the bounds of the law. ‘Zealously’ does not mean mindlessly or unfairly or oppressively. Rather, it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts.” 134 Ill. 2d Illinois Rules of Professional Conduct, Preamble, at 472.
To this end, the Rules of Professional Conduct provide a framework for attorney conduct. For example, Rule 1.2(f)(1) states that a lawyer shall not “file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another.” 134 Ill. 2d R. 1.2(f)(1). Rule 1.2(i) provides that “[w]hen a lawyer knows that a client expects assistance not permitted by these Rules or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.” 134 Ill. 2d R. 1.2(i). Indeed, Rule 1.16(a)(1) states that “[a] lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if: (1) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.” 134 Ill. 2d R. 1.16(a)(1).
Thus, as an officer of the court, an attorney has a heightened duty to deal honestly and fairly with his or her client, with the court and with the public. In obtaining a law license, an attorney takes an oath that he or she will uphold the law, and in granting an attorney a license to practice law, this court has determined that the attorney is a fit and proper person to assume these heightened responsibilities. Accordingly, a client would be justified in having a heightened expectation that his or her attorney will represent the client in a manner that is fair, honest and ethical in all respects. Therefore, I would hold that public policy dictates that the ordinary rules of agency, which would make a client vicariously liable for the intentional tortious actions of his or her attorney simply because of the agency relationship which exists as a result of their attorney-client relationship, should not apply to this unique agent. More specifically, I believe that it should not be presumed that the allegedly tortious acts of the attorney were done within the scope of the attorney’s authority. Rather, I believe that the most appropriate manner of resolving this issue was proposed by Justice Hoffman, who submitted a separate opinion below. Based upon the premise that attorneys are agents of their clients, Justice Hoffman reasoned that
“the general retention of an attorney to do all things necessary to pursue a claim should, as a matter of law, be interpreted as authorizing the attorney only to do all things legal and proper to pursue the claim and should not be construed, without more, as giving the attorney direction or permission to commit a tortious act. Where there is no evidence that the client expressly or impliedly authorized, directed, knew of, or ratified the alleged tortious conduct of its attorney, it should not he presumed that, merely because the parties stand in the relationship of attorney/ client, the client intended or authorized the tortious conduct or that the conduct was within the scope of the attorney’s duties. The undesirable implications of a contrary position seem rather obvious. Clients who in good faith employ an attorney will be exposed to vicarious liability for the attorney’s tortious conduct when, as a practical matter, the client is in no position to control the attorney’s conduct.” (Emphasis added.) 312 Ill. App. 3d at 199-200 (Hoffman, P.J., dissenting).
I would hold that, when assessing the liability of a client for the tortious acts of the client’s attorney, we should not presume that the scope of the attorney’s authority extends to encompass intentional misconduct. To the contrary, as a matter of public policy, we should presume that: the client hired the attorney to pursue legal remedies in a legal and ethical manner; and that, because the attorney stands in a fiduciary relationship to the client and is an officer of the court, the client is justified in expecting that the attorney will represent the client ethically and within the bounds of the law. It is this presumption that should define the scope of the attorney’s authority in representing the client. It would then be incumbent upon the party seeking to hold the client liable to rebut this presumption by producing evidence that the client authorized, directed, had knowledge of or ratified the attorney’s misconduct, so as to bring that misconduct within the scope of the attorney’s authority. It is well settled that “[t]he client is not liable *** for acts of the attorney which are outside the scope of the attorney’s authority. Thus, a client is not responsible for any illegal action taken or directed by his attorney which the client did not advise, consent to, participate in, and which was not justified by any authority he had given.” 7A C.J.S. Attorney & Client § 190, at 309 (1980). The proposed analysis which I employ serves not only to protect an innocent client who hired an attorney in good faith who thereafter engaged in misconduct not known to the client, but it would also allow a plaintiff to hold vicariously liable those clients who authorized, directed, had knowledge of or ratified the attorney’s misconduct.
A contrary result imposing vicarious liability upon a client in every instance of intentional tortious misconduct by the client’s attorney would mean that clients would be forced to micromanage the conduct of their attorneys. This would require that the client be appraised of every step taken by the attorney during the course of the legal proceedings. It is precisely because clients have no expertise in the law that they hire attorneys for their specialized legal skill, and it would be manifestly unfair to hold a client liable for the intentional torts of his or her attorney if the client did not authorize or direct those actions, and if the client was unaware of those actions. Indeed, “[m]ost clients cannot possibly monitor their attorneys to the degree that would be required to meet such an obligation, and most, clearly, are not qualified for such monitoring, anyway. Imposing such an obligation on clients would, unjustly, make plaintiffs reluctant to file suit, and defendants far too tentative about defending themselves vigorously. This would not only chill the willingness of *** citizens to vindicate their legal rights, it would make them ultimately responsible for their own legal representation — the very act for which they hire an attorney in the first place.” Bradt v. West, 892 S.W2d 56, 77 (Tex. Civ. App. 1994).
In the words of the majority, the holding set forth in its own opinion is “precariously close” to agreeing with the position I take in this dissenting opinion. According to the majority, it is in agreement with my position that a client is not vicariously liable for the intentional torts of his or her attorney unless the plaintiff proffers evidence that the client authorized, directed, had knowledge of or ratified the attorney’s misconduct. 212 Ill. 2d at 23. The majority also states that it agrees with my position “that it cannot be presumed that an intentional tort as alleged here, or, for that matter, any other illegal or unethical act, lies within the scope of the attorney-client relationship.” 212 Ill. 2d at 21. The majority further states that it agrees with my position that “it should be presumed, as a matter of public policy, that clients hire attorneys to pursue legal remedies in a legal and ethical manner; and that, since attorneys stand in a fiduciary relationship to their clients and are officers of the court, clients are reasonably justified in expecting that their attorneys will represent them ethically and within the bounds of the law.” 212 Ill. 2d at 21.
The majority states, however, that it departs from my position based upon my agreement with Justice Freeman that “an attorney is both an agent and an independent contractor at all times.” 212 Ill. 2d at 21. The majority notes, however, that I, unlike Justice Freeman, “distinguish[ ] attorneys from all other types of agents and carve[ ] out an exception to the vicarious liability rule based on that distinction.” 212 Ill. 2d at 22. Although, in the view of the majority, my position in this dissenting opinion is “not completely untenable,” the majority adheres to the belief that its own opinion “presents the more reasoned approach.” 212 Ill. 2d at 22. The majority arrives at this conclusion based upon the following reasoning: “Rather than fashion a wholesale exception to the agency rules for attorneys, we merely distinguish situations in the attorney-client relationship where, as here, vicarious liability is claimed by a third party for the alleged intentional tortious conduct of the attorney.” 212 Ill. 2d at 22.
I respectfully submit that it is the majority which is unnecessarily and improperly creating a wholesale change to the traditional laws of agency with the issuance of its opinion. As explained above, the majority’s holding rests upon incorrect premises and uses reasoning which is sure to engender confusion and uncertainty among the bench and bar. In contrast, the proposed analysis which I employ does not attempt to alter the well-established black-letter principles of agency law, but, instead, seeks to carve out a limited public policy exception to those traditional principles when a plaintiff is seeking to hold a client liable for the intentional torts of the client’s attorney. As set forth above, my proposed analysis is straightforward. As the attorney-client relationship is one of agency, it is proper to apply principles of agency law in resolving the matter before us. However, because an attorney is a unique agent, as a matter of public policy it should be presumed that a client hires an attorney to pursue legal remedies in a lawful and ethical manner, and, therefore, that only such lawful actions fall within the scope of an attorney’s authority in his or her representation of a client. Accordingly, to hold a client vicariously liable for the intentionally tortious acts of his or her attorney, a plaintiff must proffer sufficient facts to establish that the client authorized, directed, had knowledge of or ratified the attorney’s misconduct, so as to bring that misconduct within the scope of the attorney’s authority.
Applying my proposed analysis to the case at bar, I agree with the appellate court below, and also with Justice Freeman’s dissent, that there are sufficient facts presented to withstand summary judgment. The purpose of summary judgment is to determine whether there are any genuine issues of material fact. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). The grant of summary judgment is appropriate where the pleadings, depositions, admissions, affidavits and exhibits on file, when viewed in the light most favorable to the nonmovant, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 2002); Petrovich, 188 Ill. 2d at 31. Although summary judgment is to be encouraged as an expeditious method of disposing of a lawsuit, it is a drastic measure and should be allowed only when the right of the moving party to judgment is free and clear from doubt. Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997). A triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not disputed, reasonable minds could differ in drawing inferences from those facts. Petrovich, 188 Ill. 2d at 31. The standard of review in cases involving summary judgment is de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998).
Unlike the majority, I cannot conclude that, as a matter of law, Holabird & Root is not liable for the actions of its attorneys and therefore entitled to summary judgment. A review of the record reveals that sufficient evidence was presented by plaintiffs to give rise to a question of fact as to whether Holabird & Root expressly or impliedly authorized, directed, or knew of the alleged tortious conduct of its attorneys, Sabo & Zahn. For example, the record reflects that during his deposition testimony, a principal of Holabird & Root stated that the letters sent out by Sabo & Zahn indicated to him that the law firm was pursuing the fee in an “aggressive way” and that the firm was “serving them as their clients.” The record also reflects that in their depositions, attorneys of the Sabo & Zahn firm stated that in sending out the letters, they were doing what they were hired to do. In addition, in its motion for summary judgment, Holabird & Root stated that the letters were a discovery tool in litigation. The above evidence gives rise to a genuine issue of material fact as to whether the client authorized, directed, or knew of the allegedly tortious acts committed by Sabo & Zahn, and thus created a genuine issue of fact with respect to whether the complained-of acts fell within the attorneys’ scope of authority. As stated, summary judgment is a drastic measure, and is not appropriate when the right of the moving party to judgment is not free and clear from doubt.
Finally, even if the actions of Sabo & Zahn were determined to fall outside the scope of its authority in representing Holabird & Root, a genuine issue of material fact remains as to whether Holabird & Root subsequently acquiesced to, or ratified, the misconduct. Ratification occurs when the principal becomes aware of an unauthorized transaction, yet retains the benefits of the transaction or takes a position inconsistent with non-affirmation. Stathis v. Geldermann, Inc., 295 Ill. App. 3d 844, 858 (1998). For ratification to take place, the principal must, with full knowledge of the act, evidence an intent to comply with, and be bound by, the transaction. Peskin v. Deutsch, 134 Ill. App. 3d 48, 55 (1985). Ratification may be inferred from surrounding circumstances, including long-term acquiescence, after notice, to the benefits of an allegedly unauthorized transaction. Stathis, 295 Ill. App. 3d at 858.
The majority holds that the circuit court appropriately granted summary judgment on this issue because “[t]he record in this case is devoid of any suggestion that could support an inference Holabird & Root benefitted in any way from Sabo & Zahn’s alleged interference with the business relationships of Horwitz Matthews.” 212 Ill. 2d at 15. I disagree with the majority. Rather, I am in agreement with the appellate court below that it is unclear from the record before us when Holabird & Root became aware of the letters, and, when they did, if they disapproved of the letters being mailed or whether Holabird & Root’s subsequent silence amounts to a ratification of this conduct. Accordingly, whether the acts or omissions of Holabird & Root constituted a ratification of the conduct of Sabo & Zahn is an issue of fact precluding the entry of summary judgment.
For the foregoing reasons, I would hold that, in the course of representing a client, an attorney is both an agent and an independent contractor. I would also hold that, as a matter of public policy, a plaintiff who attempts to hold a client liable for the intentional torts of that client’s attorney must show more than the mere existence of an attorney-client relationship. Because an attorney is a unique agent, it should not be presumed that intentional, tortious acts performed by an attorney automatically fall within the scope of the attorney’s agency. Rather, as a matter of public policy, it should be presumed that an attorney is authorized only to do all things legal and proper to pursue a client’s claim. In order to hold a client liable for the intentional torts of the client’s attorney, a plaintiff would be required to produce evidence that the client authorized, directed, had knowledge of or ratified the attorney’s misconduct, so as to bring that misconduct within the scope of the attorney’s authority. I also would hold that, under the facts presented in the instant cause, summary judgment was improperly granted. Accordingly, I respectfully dissent from the majority opinion.
JUSTICE GARMAN joins in this dissent.