specially concurring:
I specially concur because I am not as convinced as the majority that First Savings & Loan Ass’n of Bureau County v. Sadnick, 162 Ill. App. 3d 581 (1987), is indistinguishable from this case. On the contrary, I believe that the trial judge was correct when she indicated that the fee charged in this case “changes the nature of the transaction ***. [The Kings] paid [the fee] in exchange for a benefit to them, which is getting these documents prepared.” When the Kings were required to either pay the fee or do without the mortgage, the transaction was no longer only incidentally beneficial to the Kings. Paying the fee to prepare the document became a critical part of the lending process that enabled the Kings to successfully close their purchase of the real estate.
Nonetheless, I do not believe that the Kings have a remedy in Illinois law. Section 1 of the Attorney Act does not allow money damages for the unauthorized practice of law, but the statute does sanction “other remedies permitted by law.” 705 ILCS 205/1 (West 2000). Thus, we must review what “other remedies” exist in Illinois. The legislature permits actions to enjoin the unauthorized practice of law, and courts always have the inherent authority to punish it by contempt. Damages, however, can only be levied under more traditional common law theories of recovery such as negligence (see Torres v. Fiol, 110 Ill. App. 3d 9, 10 (1982) (“The *** language of the statute plainly evidences a legislative intent not to circumscribe other theories of recovery against a nonattorney who is retained to perform legal duties and who then mishandles the matter”)), or a breach of a duty of good faith and fair dealing by persons who falsely represent themselves as attorneys (see Rathke v. Lidisky, 59 Ill. App. 3d 560, 562 (1978), citing Miller v. Whalen, 158 Ill. 544 (1895)), which indicates a breach of a fiduciary relationship. See Illinois Tool Works Inc. v. Kovac, 43 Ill. App. 3d 789 (1976).
I have tried to rationalize why and how the line that divides equitable relief from damages for the unauthorized practice of law is drawn. I believe that the rationale is very simply the difference between money damages caused by the malfeasance, misfeasance, or nonfeasance of a nonattorney as opposed to acts of unauthorized practice for which there is no monetary loss. In other words, if you receive value for the legal services of an unauthorized practitioner, you cannot complain. If you suffer loss because of negligence or a breach of fiduciary duty by the nonlawyer, you can sue for money damages.1
For example, if a nonattorney represents a plaintiff in a personal injury case, does the job well and reaps a substantial judgment, the “client” cannot sue the nonattorney for the contingent fee simply for practicing law without a license. Of course, the nonlawyer can be enjoined from practicing, or the trial court can hold the person in contempt, but no damages would accrue because there is no loss to the client. If, however, the nonattorney is negligent, and the case flounders, the client could sue for damages caused by the negligence, but not for any contingent fee collected. Thus, it would seem that a kind of malpractice action for the negligent unauthorized practice of law is permitted.
Similarly, if a nonlawyer advises the “client” that he or she is an attorney and prepares a perfectly satisfactory will, there would be no cause of action for the legal fee for the services based on the unauthorized practice. However, if faulty drafting causes the wrong heir to inherit, an action for damages might be allowed for a breach of fiduciary duty. See Miller, 158 Ill. at 557.
It appears that the distinction between damages caused by negligence or a breach of fiduciary duty on one hand, and the mere status of being an unauthorized practitioner on the other, must underlie the divergent remedies at issue. The logic is, apparently, that if you get your money’s worth, you cannot complain. Thus, plaintiffs’ counts for money had and received and for violating the consumer fraud act are not allowed under Illinois law because they do not seek damages for the inept unauthorized practice of law, .but simply for restitution of the fee paid for defendant’s unauthorized practice of law. But see Lawson v. First Union Mortgage Co., 786 N.E.2d 279 (Ind. App. 2003).
In this case, plaintiffs did not allege that defendant’s agents were negligent or misrepresented themselves as attorneys. Without more, a cause of action was not pled, and the complaint should be dismissed.
I note that similar rules apply to those who are licensed to practice law.