Warren v. Williams

• Court: Appellate Court of Illinois
• Citation: Warren v. Williams, 730 N.E.2d 512, 313 Ill. App. 3d 450, 246 Ill.Dec. 487 (Ill. App. 2000)
• Decision Date: 16 May 2000
• Docket Number: No. 1-99-3258, No. 1-99-3411.
• Parties: Robert WARREN, Plaintiff-Appellant v. Philip B. WILLIAMS et al., Defendants (Philip B. Williams, Appellant and Cross-Plaintiff-Appellant; The Village of Robbins, a Municipal Corporation, Cross-Defendant-Appellee).

730 N.E.2d 512

313 Ill. App.3d 450

246 Ill.Dec. 487

Robert WARREN, Plaintiff-Appellant v. Philip B. WILLIAMS et al., Defendants (Philip B. Williams, Appellant and Cross-Plaintiff-Appellant; The Village of Robbins, a Municipal Corporation, Cross-Defendant-Appellee).

Nos. 1-99-3258, 1-99-3411.

Appellate Court of Illinois, First District, Second Division.

May 16, 2000.

Michael Anthony Lowe, Chicago, Odelson & Sterk, Ltd., Evergreen Park, for Appellant.

Terrance A. Norton, Chicago, for Appellee.

Presiding Justice COUSINS delivered the opinion of the court:

The plaintiff, Robert Warren, brought this suit in contract and in tort for legal malpractice. According to Warren, the defendant attorney, Philip B. Williams, filed an appearance for him in a federal civil rights action without telling him that he had undertaken to represent him. Warren lost by default, as he discovered when his salary began to be garnished. Warren filed this action alleging malpractice on the part of Williams. Williams filed a cross-complaint for indemnity against the municipality that was his employer. The trial court ruled in favor of Warren. The court also ruled that the cross-defendant municipality was not required to indemnify Williams.

Williams now appeals arguing that the court erred in finding in favor of Warren because: (1) an attorney-client relationship never existed between him and Warren; and (2) even if a default judgment had not been entered against Warren, the finder of fact would have ruled against Warren on the merits. Warren and Williams both contend that the trial court erred in denying the Williams' cross-complaint for indemnity because indemnity was required by the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1996)).

BACKGROUND

In December 1987, the owner of a local tavern took two employees, Calvin Robinson and William Martin, to the police station in the Village of Robbins (the Village) because he considered them suspects in a break-in that had occurred at his establishment. After bringing the employees to the station, the owner left to check up on their alibis.

The plaintiff, Robert Warren, was a lieutenant on the Village police force. Warren talked with the employees while Dallas West, another police officer, went to run a computer check on them. Upon returning, Officer West punched William Martin two or three times. Martin later filed a federal civil rights suit against West, Warren and the Village under section 1983 of the federal Civil Rights Act. 42 U.S.C. § 1983 (1994).

The defendant, Philip B. Williams, was the Village attorney for Robbins at the time the suit was filed. He entered an appearance for the three defendants in the United States District Court for the Northern District of Illinois. Williams told the mayor that he would need to defend Warren and West in order to clear the Village of liability. However, after Williams managed to get the complaint against the Village dismissed, he did not go on to represent Warren and West. He did not file an answer for West or Williams until after a default judgment had already been entered against them. He also did not appear at the prove up, at which Warren and West were assessed $40,000 in compensatory and punitive damages.

Warren said that the police chief had told him that if he were named in litigation arising from West's attack on Martin, the Village attorney would handle it. He did not know that a lawsuit had occurred until his wages were garnished in order to satisfy the judgment.

Warren then filed this legal malpractice action against Williams, with one count in tort and one in contract. Williams, in turn, filed a cross-complaint against the Village for indemnity. After a bench trial, the trial court found in favor of the plaintiff and also ruled that the Village was not required to indemnify Williams.

Williams now appeals contending that the court erred in finding in favor of the plaintiff because: (1) an attorney-client relationship never existed between him and Warren; and (2) even if a default judgment had not been entered against Warren, the finder of fact would have ruled against Warren on the merits. Warren joins Williams in contending that the trial court erred in denying Williams' cross-complaint against the Village for indemnity because the Village was required to indemnify Williams under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1996)).

I

Williams argues that he cannot be guilty of malpractice toward Warren because he never contracted to represent Warren. In order to prevail in a legal malpractice claim, a plaintiff must show the existence of an attorney-client relationship, a duty arising from that relationship, a breach of that duty, and actual damages proximately resulting from the breach. Thomas v. Sklodowski, 303 Ill.App.3d 1028, 1032, 237 Ill.Dec. 401, 709 N.E.2d 656, 658-59 (1999). Williams notes that the attorney-client relationship is contractual in nature. Zych v. Jones, 84 Ill. App.3d 647, 651, 40 Ill.Dec. 369, 406 N.E.2d 70, 74 (1980). Since Williams never discussed the case with Warren at all, much less contracted to represent him in it, Williams concludes that no attorney-client relationship existed. Accordingly, he argues, the malpractice claim must fail because one of the elements is lacking. We disagree.

"The lawyer-client relationship required is not necessarily a relationship between the lawyer and the plaintiff, since non-clients may be third party beneficiaries entitled to sue for malpractice." D. Dobbs, The Law of Torts 1386 n. 16 (2000). The Illinois Supreme Court has held that privity of contract is no longer an indispensable element of a legal malpractice claim. Pelham v. Griesheimer, 92 Ill.2d 13, 17-18, 64 Ill.Dec. 544, 440 N.E.2d 96, 99 (1982). In our view, there was an attorney-client relationship between Williams and the Village in the instant case that resulted, in accordance with Rule 3.15 for the United States District Court for the Northern District of Illinois (N.D. Ill. Loc. Gen. R. 3.15 (eff. July 1, 1996)), when the attorney filed an appearance for plaintiff.

A legal malpractice claim may be based either in tort or in contract. Collins v. Reynard, 154 Ill.2d 48, 50, 180 Ill.Dec. 672, 607 N.E.2d 1185, 1186 (1992). Warren brought his claim under both theories. Assuming that the absence of a contract between him and Williams would defeat the malpractice claim under the contract theory, the tort theory could still be viable. As a general matter, in a negligence action there must be a duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately resulting from the breach. Pelham, 92 Ill.2d at 18, 64 Ill.Dec. 544, 440 N.E.2d at 98. An action for legal malpractice is not essentially different from any other action for ordinary nonprofessional negligence. Cook v. Gould, 109 Ill.App.3d 311, 314, 64 Ill.Dec. 896, 440 N.E.2d 448, 450 (1982). In a legal malpractice action, the duty owed is one of competent representation of the plaintiff by the defendant, and the duty generally grows out of a contract between the two parties. D. Dobbs, The Law of Torts at 1397 (2000). While there was no contract between Warren and Williams in the instant case, we think that a duty of reasonable care was nevertheless imposed. Rule 3.15 was the source of a legal duty upon Williams to provide professional care once he had appeared for Warren.

"Once an attorney has filed an appearance form pursuant to General Rule 3.14, [he/she] is the attorney of record for the party represented for all purposes incident to the proceeding in which the appearance was filed. The attorney of record may not withdraw, nor may any other attorney file an appearance on behalf of the same party or as a substitute for the attorney of record, without first obtaining leave of court * * *." N.D. Ill. Loc. Gen. R. 3.15 (eff. July 1, 1996).

Decisions on this issue from courts in other jurisdictions provide guidance. "An attorney who enters an unauthorized appearance for a party is liable to the party for any damage sustained." 7 Am.Jur.2d Attorneys at Law § 219 (1997). As one court explained:

"It is obvious that an attorney does not owe members of the general public the same duty which he owes to his client. [Citation.] However, in appropriate circumstances, an attorney is not exempt from the general principle that `one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.'" Security National Bank v. Lish, 311 A.2d 833, 834 (D.C.1973), quoting Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922).

According to Williams, however, this is not the rule in Illinois. Williams cites Zych v. Jones for the proposition that an unauthorized appearance does not create a duty to the party on the part of the attorney. In Zych, the defendant allegedly entered an unauthorized appearance for the plaintiff, who then defaulted. The court held that lack of authorization for the appearance would defeat the malpractice claim. "[S]ince an attorney has no right to appear as an attorney for another without the latter's authority [citation], the defendant's unauthorized act of entering an appearance did not create a duty to continue to appear as an attorney for the plaintiff although unauthorized." Zych, 84 Ill. App.3d at 651-52, 40 Ill.Dec. 369, 406 N.E.2d at 74.

We need not address the general question of whether an unauthorized appearance will always create a duty on the part of an attorney, since the instant case is distinguishable from Zych on its facts. The critical difference between the instant case and Zych is Rule 3.15, which governed Williams' appearance for Warren.

Once Williams filed his appearance, he was Warren's attorney of record and the case could proceed. In fact, Warren would not have been able to have any other attorney represent...