APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from an order dismissing Count II of his complaint and from a denial of his motion for fees and costs brought under section 41 of the Civil Practice Act. Ill. Rev. Stat. 1973, ch. 110, par. 41.
Count I of plaintiff's complaint alleged that defendant was indebted to him in the amount of $2,578.75 as the balance due for legal services provided during the course of the prosecution of certain actions on her behalf and in the defense of defendant from a criminal charge of forgery.
Count II alleged that defendant, with the sole intent of maliciously prejudicing plaintiff's professional standing, brought a complaint against him to the Attorney Registration and Disciplinary Commission charging him with fraud and unethical conduct. It was further alleged that he was forced to appear before the Commission on at least two occasions, that he was required to expend considerable time and effort in preparing his defense and that ultimately the Commission dismissed defendant's complaint. Plaintiff claims he is entitled to $50,000 in exemplary and actual damages.
Defendant moved to dismiss the complaint. With regard to Count I she alleged that it was a suit for a contingent fee for services provided in the prosecution of a divorce action and, as such, was "contrary to good ethics and proper professional standards." She therefore argued that the complaint was "defective." With regard to Count II she asserted that her "complaints to said disciplinary body were absolutely privileged * * * and said count does, therefore, fail to state a cause of action." Defendant's motion was accompanied by a lengthy memorandum of points and authorities.
In opposition to the motion to dismiss, plaintiff argued that Count I was merely a suit for time accruals, that there was no mention of contingent fees in the complaint and that therefore the motion was improperly brought under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 45) since it was not based on matters appearing on the face of the complaint.
Defendant's motion to dismiss Count I was denied and she filed an answer thereto in which it was alleged that plaintiff was seeking a contingent fee. Attached to her answer was a document on a printed form provided by plaintiff, dated April 20, 1971, stating:
"I hereby employ DAVID ALSWANG to prosecute all claims for property against George W. Claybon, settlement or property or moneys due me from said George W. Claybon. [sic] and in consideration of his services rendered and to be rendered, I agree to pay him a sum of money equal to 1/3 if settlement is made without suit and 1/3 in the event of suit, of any amount received or realized from said claim. This does not include fees from services in securing or defending divorce action."
The document was signed by defendant.
With regard to the motion to dismiss Count II, plaintiff argued that the bringing of an ethics complaint is not a privileged activity. In a supplemental motion he also argued that to deny him the right to bring an action for malicious prosecution would deny him the right to equal protection of the law. In addition, plaintiff moved for fees and costs under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 41).
The court dismissed Count II of the complaint and denied plaintiff's motion for fees and costs. The court found that there was no just reason to delay review of its order, and plaintiff has taken this appeal pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 304(a)).
Plaintiff initially contends as to Count II that the institution of a groundless ethics complaint against an attorney is tortious behavior under a theory of malicious prosecution. He specifically contests defendant's assertion that the filing of a complaint is a privileged activity. Defendant in response reasserts her argument that the filing of a complaint with a disciplinary body is absolutely privileged and, as an additional ground for affirming the dismissal of Count II, argues that plaintiff failed to allege all essential elements of the tort of malicious prosecution. *fn1
We have found only a single reported case in this country dealing precisely with the issue before us, that is, whether an attorney may bring a malicious prosecution action against a person who has filed a professional grievance charging him with a breach of professional ethics. In Toft v. Ketchum (1955), 18 N.J. 280, 113 A.2d 671, adhered to on rehearing, 18 N.J. 611, 114 A.2d 863, 52 A.L.R. 2d 1208, cert. denied, 350 U.S. 887, 100 L.Ed. 782, 76 S.Ct. 141, an attorney brought a malicious prosecution action against an individual who had filed a professional grievance with a local bar association charging the attorney with unethical conduct due to his actions relating to a real estate transaction. *fn2 The professional grievance was ultimately resolved in the attorney's favor. ...