Horwitz v. Holabird & Root

PRESIDING JUSTICE HOFFMAN,

dissenting:

I dissent from the result reached by the majority because I believe that the trial court correctly found that Sabo & Zahn acted outside of the scope of its authority as Holabird & Root’s attorney if it committed an intentional tort by sending letters to the business associates and investors of Horwitz Matthews. At the heart of this case, however, is an issue of first impression in Illinois, namely: whether a client can be held vicariously liable for an intentional tort committed by its attorneys while discharging their duties under circumstances where the client did not authorize or direct or have any prior knowledge of the tortious conduct.

There can be no dispute on the proposition that a principal is vicariously liable for the tortious conduct of an agent committed while acting within the scope of his authority. Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21, 276 N.E.2d 336 (1971). The majority finds that the attorney/client relationship is one of principal/agent and, based on that finding, seemingly concludes that a client may be held vicariously liable for the intentional torts of its attorney. It supports this conclusion by reference to a number of Illinois cases in which a client was held to be bound by agreements made by his or her attorney acting within the apparent scope of his authority (see In re Marriage of Marr, 264 Ill. App. 3d 932, 935, 638 N.E.2d 303 (1994)), cases having nothing to do with an attorney/client relationship (see Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 675 N.E.2d 217 (1996); Kouba v. East Joliet Bank, 135 Ill. App. 3d 264, 481 N.E.2d 325 (1985)), and a case in which the tortious conduct of the attorney was committed with the full knowledge and direction of the client (see Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co., 22 Ill. App. 3d 558, 563, 317 N.E.2d 663 (1974)). Since the facts of this case are so easily distinguishable, I find the cases cited by the majority to be of little or no value in resolving the issue present here.

Courts in other jurisdictions are divided. Like the majority, some jurisdictions favor liability, finding that the attorney/client relationship is one of principal/agent (see Peterson v. Worthen Bank & Trust Co., N.A., 296 Ark. 201, 753 S.W.2d 278 (1988); Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693 (Tex. 1986); Continental Insurance Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980); Nyer v. Carter, 367 A.2d 1375 (Me. 1977); Stumpf v. Continental Casualty Co., 102 Or. App. 302, 794 P.2d 1228 (1990); Southwestern Bell Telephone Co. v. Wilson, 768 S.W.2d 755 (Tex. App. 1988); United Farm Bureau Mutual Insurance Co. v. Groen, 486 N.E.2d 571 (Ind. App. 1985)); others find no liability, holding that an attorney is an independent contractor (see Baldasarre v. Butler, 132 N.J. 278, 625 A.2d 458 (1993); Feliberty v. Damon, 72 N.Y.2d 112, 527 N.E.2d 261 (1998); Aetna Casualty & Surety Co. v. Protective National Insurance Co., 631 So. 2d 305 (Fla. App. 1993); Brown v. Lumbermens Mutual Casualty Co., 90 N.C. App. 464, 369 S.E.2d 367 (1988), aff’d, 326 N.C. 387, 390 S.E.2d 150 (1990); Plant v. Trust Co., 168 Ga. App. 909, 310 S.E.2d 745 (1983); Lynn v. Superior Court, 180 Cal. App. 3d 346, 225 Cal. Rptr. 427 (1986); Merritt v. Reserve Insurance Co., 34 Cal. App. 3d 858, 110 Cal. Rptr. 511 (1973)). I favor the reasoning of the latter cases, which hold that attorneys are independent contractors, at least when, as in this case, they are engaged to pursue a claim without further direction.

An independent contractor is one who undertakes to produce a given result, without being controlled by his principal as to the means or methods by which he attains that result. Fut another way, an independent contractor represents the will of his principal only as to the result, not the means by which that result is accomplished. Alexander v. Industrial Comm’n, 72 Ill. 2d 444, 449-50, 381 N.E.2d 669 (1978). This definition fits the status of an attorney merely retained to pursue a claim or defense without further direction from the client. Under such circumstances, attorneys are not subject to their client’s control in a traditional sense. Rather, they are engaged by clients who, in the main, are totally unfamiliar with the means or methods to be employed in achieving their desired result. Further, attorneys are responsible for their own acts and can be disciplined if they fail to conduct themselves in accordance with the Rules of Professional Conduct.

One who employs an independent contractor is not vicariously liable for the tortious conduct of the contractor, primarily because the employer has no right of control over the manner in which the contractor performs his work. Hartley v. Red Ball Transit Co., 344 Ill. 534, 538-39, 176 N.E. 751 (1931). An exception to this rule exists when the act or omission of the independent contractor that caused harm to a third party was pursuant to the order or direction of the employer. Gomien, 50 Ill. 2d at 21. I can conceive of no logical reason to alter this rule when the independent contractor is an attorney.

In this case, there is no evidence that the alleged tortious content of the letters sent to the business associates and investors of Horwitz Matthews was ordered or directed by Holabird & Root, nor do I believe that there is any evidentiary material in the record that creates a genuine issue of fact on the question of whether the Holabird & Root defendants knew of the contents of the letters before they were sent by Sabo & Zahn. Case and Baird, both Holabird & Root partners, denied seeing the letters before they were sent. Their testimony constitutes the only competent evidentiary material of record on the issue since, as the majority points out, the most that Sabo & Zahn is able to say is that no one at the firm can recall whether the letters were shown to anyone at Holabird & Root before they were sent.

If Sabo & Zahn was acting as an independent contractor, as I believe that it was, then the trial court correctly entered summary judgment in favor of the Holabird & Root defendants. However, even if Sabo & Zahn is deemed to be Holabird & Root’s agent, I still find summary judgment to be appropriate.

I believe 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 be 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.

As a final point, the majority suggests that a question of fact exists on the issue of whether Holabird & Root ratified Sabo & Zahn’s conduct. I disagree. Ratification of an unauthorized act is equivalent to an original authorization and confirms that which was originally unauthorized. Illinois Armored Car Corp. v. Industrial Comm’n, 205 Ill. App. 3d 993, 998, 563 N.E.2d 951 (1990). The rationale behind the doctrine is that the person ratifying obtains a benefit through the actions of someone who is acting in his behalf with apparent authority. Swader v. Golden Rule Insurance Co., 203 Ill. App. 3d 697, 704-05, 561 N.E.2d 99 (1990). Absent a benefit, ratification will not be implied. Jones v. Beker, 260 Ill. App. 3d 481, 485, 632 N.E.2d 273 (1994). There is simply nothing in this record that could support an inference that Holabird & Root benefitted in any way by Sabo & Zahn’s alleged interference with the business relationships of Horwitz Matthews.