Gekas v. Attorney Registration and Disciplinary Com'n of Supreme Court of Illinois

• Citation: 793 F.2d 846
• Decision Date: 12 June 1986
• Docket Number: Nos. 85-2376,85-2445,s. 85-2376
• Parties: Constantine John GEKAS, Plaintiff-Appellee, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the SUPREME COURT OF ILLINOIS and Carl H. Rolewick, its Administrator, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 846

793 F.2d 846

55 USLW 2078

Constantine John GEKAS, Plaintiff-Appellee, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the

SUPREME COURT OF ILLINOIS and Carl H. Rolewick,

its Administrator, Defendants-Appellants.

Nos. 85-2376, 85-2445.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1986.

Decided June 12, 1986.

Steven P. Handler, Hannafan & Handler, Ltd., Chicago, Ill., for plaintiff-appellee.

Theresa M. Gronkiewicz, Chicago, Ill., for defendants-appellants.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

PER CURIAM.

Disciplinary Rule 2-103 of the Illinois Code of Professional Responsibility formerly prohibited direct-mail advertising by attorneys. Constantine John Gekas filed suit under 42 U.S.C. Sec. 1983 against the Illinois Attorney Registration and Disciplinary Commission (the "Commission"), seeking a declaratory judgment that the rule violated the First Amendment, and preliminary and permanent injunctions prohibiting its enforcement. After the Illinois Supreme Court, in response to Gekas's motion, advanced the effective date of an amendment to Rule 2-103 permitting direct-mail advertising by attorneys, Gekas petitioned for $11,682.50 in attorney's fees as a prevailing party under 42 U.S.C. Sec. 1988. The district court held that Gekas was entitled to fees, but reduced the award to $5,000. The Commission appeals from the determination that Gekas is a prevailing party; Gekas cross-appeals from the reduction of his petition for $11,682.50 in fees. For the reasons stated below, we will affirm that Gekas is entitled to fees, vacate the award of $5,000, and remand for a recalculation of fees.

I

Until May 1, 1984, Disciplinary Rule 2-103(a) of the Illinois Code of Professional Responsibility provided that "[a] lawyer shall not by private communication, ... directly or through a representative, recommend or solicit employment of himself, his partner or his associate for pecuniary gain or other benefit and shall not for that purpose initiate contact with a prospective client." The rule prohibited written, as well as in-person, communications. See Ill. Code of Professional Responsibility DR 2-103(e).

Gekas desired to conduct a direct-mail advertising campaign to members of the commodities industry. He sought advisory opinions from the Commission, the Illinois State Bar Association, and the Chicago Bar Association as to the propriety of his proposed direct-mail advertising. On March 2, 1984, John O'Malley, counsel to the Commission, informed Gekas that the Advisory Committee to the Illinois Supreme Court had adopted a recommendation that Rule 2-103 be amended to permit direct-mail advertising, and that the recommendation would be submitted to the court during its March 1984 term. O'Malley, however, refused to provide Gekas with an advisory opinion or a copy of the Committee's proposal. Gekas then spoke with Louis Davidson, Chairman of the Advisory Committee. Davidson read portions of the proposed rule for Gekas, but cautioned him that the amendment might not be adopted in its present form and, in any event, would not be effective until July 1, 1984.

On March 26, 1984, Gekas filed this action to obtain a declaratory judgment that Rule 2-103 was unconstitutional, and an injunction barring its enforcement. On March 27, 1984, O'Malley informed Gekas that the Illinois Supreme Court had adopted an amendment to Rule 2-103(b) that provided that "[a] lawyer may initiate contact with a prospective client ... by written communication distributed generally to persons not known in a specific manner to require such legal services as the lawyer offers to provide but who in general might find such services to be useful and providing that such letters and circulars and the envelopes containing them are plainly labeled as advertising material." The amendment was to have become effective on July 1, 1984.

On March 28, 1984, Gekas's counsel telephoned O'Malley and offered to dismiss the lawsuit on the condition the Commission agreed that it would not take disciplinary action against Gekas under the old rule in the event he began his direct-mail advertising campaign before July 1, 1984. O'Malley refused to enter into such an agreement. Later that day, the parties met at the Commission's offices. O'Malley stated that if Gekas proceeded with his mailing before July 1, 1984, O'Malley would report Gekas to the Illinois Supreme Court for possible contempt proceedings.

On March 29, 1984, the parties appeared before Judge McMillen, who set a hearing for April 1, 1984. At the hearing, O'Malley stated that "if he [Gekas] sends out his ads I will report it to the [Illinois Supreme] Court and any action they might want to take, they are free to do so." After the hearing on April 2, 1984, O'Malley confirmed to Gekas's counsel that the Commission had several investigations and disciplinary proceedings pending under the old rule.

On April 3, 1984, Judge McMillen referred Gekas's application for a preliminary injunction to Magistrate Olga Jurco for hearing. The parties then agreed that Gekas would petition the Illinois Supreme Court to advance the amendment's effective date, and that the district court would stay its proceedings but would retain jurisdiction. Gekas on April 10, 1984, petitioned the Illinois Supreme Court to advance the effective date of the new rule. On April 16, 1984, the Illinois Supreme Court advanced the new rule's effective date from July 1, 1984, to May 1, 1984.

On April 24, 1984, Gekas moved for $11,682.50 in fees under 42 U.S.C. Sec. 1988. On May 26, 1984, Magistrate Jurco recommended that Gekas's motion be denied. On October 19, 1984, Judge McMillen held that Gekas was entitled to fees as a prevailing party under Sec. 1988, but reduced the award to $5,000. On February 28, 1985, Judge McMillen denied the Commission's order for reconsideration, but disclosed that he had entered into "an informal attorney-client relationship" with Gekas's attorneys during December 1984 and January 1985. ¹ On April 1, 1985, upon the Commission's motion, Judge McMillen vacated his decision on the Commission's motion to reconsider; the case was reassigned to Judge Kocoras. On July 10, 1985, Judge Kocoras denied the motion to reconsider. The Commission appeals and Gekas cross-appeals.

II

A. Standard for "Prevailing Party"

42 U.S.C. Sec. 1988 provides that "[i]n any action or proceeding to enforce a provision of section[] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." For " 'purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.' " Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (quoting S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912). When a case settles without a formal judicial resolution of plaintiff's claims, the plaintiff is a prevailing party under Sec. 1988 if, first, the plaintiff's lawsuit is causally linked to the relief obtained, and, second, the defendant did not act wholly gratuitously, i.e., the plaintiff's claims, if pressed, were not frivolous. Lovell v. City of Kankakee, 783 F.2d 95, 96-97 (7th Cir.1986); Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982).

With respect to the first element, Gekas contends, and the Commission agreed in oral argument, that the question as to whether the plaintiff's lawsuit is causally linked to the relief obtained is a question of fact. We concur. There is no "rule or principle that will unerringly distinguish a factual finding from a legal conclusion." Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 1982). Nevertheless, as Justice O'Connor recently wrote for the Court, "the decision to label an issue a 'question of law,' a 'question of fact,' or a 'mixed question of law and fact' is sometimes as much a matter of allocation [of authority between the primary and the secondary decision-makers] as it is of analysis." Miller v. Fenton, --- U.S. ----, ----, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985). The distinction between questions of fact and of law "at times has turned on a determination that, as a matter of sound administration of justice, one judicial actor is better positioned than another to decide the issue in question." Id. at ----, 106 S.Ct. at 452. In the context of fee disputes, the district court, given its familiarity with the parties and the proceedings, is better positioned than the court of appeals to decide whether a plaintiff's lawsuit is causally linked to the relief obtained. "Duplication of the trial court's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources." Anderson v. City of Bessemer, 470 U.S. 564, ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). We, therefore, hold that a district court's determination whether the plaintiff's lawsuit is causally linked to the relief obtained is a finding of fact, which is subject to review for clear error. See Ekanem v. Health and Hospital Corp. of Marion County, 778 F.2d 1254, 1258 (7th Cir.1985) (clearly erroneous standard of review applied); Toth v. United Automobile, Aerospace and Agricultural Implement Workers of America, 743 F.2d 398, 407 (6th Cir.1984) (same); Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir.1978) (Coffin, J.) (whether claim is causally linked to relief obtained is question of fact).

With respect to the second element, the standard by which the merit of the plaintiff's claims is judged is whether plaintiff's claims were "frivolous, unreasonable, or groundless." Lovell, 783 F.2d at 97 (quoting Harringt...