APPEAL from the Circuit Court of Cook County; the Hon. MEL
R. JIGANTI, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
This is a tort action for abuse of process and malicious use of process (malicious prosecution) brought by Attorney J. Michael Madda for the malicious institution of proceedings before the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (see Illinois Supreme Court Rule 751 et seq. (Ill. Rev. Stat. 1975, ch. 110A, par. 751 et seq.)). The defendants, Reliance Insurance Company (hereinafter Reliance) and Robert H. Reid, moved to dismiss the complaint for failure to state a cause of action. At the conclusion of the proceedings on the motion to dismiss, the circuit court dismissed the complaint by adopting the position of the Supreme Court of New Jersey that a complaint before the ethics and grievance committee of the Bar is absolutely privileged and cannot be the basis for a malicious prosecution suit or similar action (Toft v. Ketchum (1955), 18 N.J. 280, 113 A.2d 671, aff'd on rehearing (1955), 18 N.J. 611, 114 A.2d 863, cert. denied (1955), 350 U.S. 887, 100 L.Ed. 782, 76 S.Ct. 141). Electing to stand on his complaint, Madda now seeks reversal of the order dismissing the suit.
Madda is an attorney-at-law licensed to practice in the State of Illinois and specializing in the handling of workmen's compensation claims. Reliance is an insurance carrier covering employers subject to liability under the Workmen's Compensation Act, and Reid is an agent of Reliance. In his practice before the Industrial Commission of the State of Illinois, Madda often represented persons seeking monetary awards from employers covered under insurance contracts with Reliance. In October 1974 Madda was retained to represent George Damas, an employee of one of the Reliance insurance accounts. At that time a "strained relationship" had developed between Madda and Reliance due to frequent adversary encounters in cases before the Industrial Commission.
The complaint, filed in this case by the appellant, alleges that in April 1975 Reliance, by and through its agent, Reid,
"* * * without any reason or cause, and merely because of the fact that Plaintiff had in the past successfully prosecuted matters in which Reliance Insurance Company was the insurer * * *, maliciously and for the purpose of injuring [Madda] in his profession and injuring his standing before the Industrial Commission, did file a complaint before the Attorney Registration Commission of the Supreme Court of Illinois."
It further states that the disciplinary complaint filed by Reid alleged that Madda had filed Damas' claim before the Industrial Commission without authority, that he caused Damas' signature to be fraudulently affixed to the application for adjustment of claim, and that he had solicited Damas' case. According to Madda, these allegations were known by the defendants to be false or, upon reasonable investigation, they could have determined that they were false. On June 19, 1975, the Inquiry Board of the Attorney Registration and Disciplinary Commission dismissed the complaint against Madda.
Madda claims to have been injured by Reliance and Reid in that he was forced to neglect his law practice to respond to the charges filed against him before the Inquiry Board, and, he further claims that the filing of the disciplinary complaint affected his health and caused him to be nervous and anxious. Madda also alleges that he suffered pain of mind and body and spent sleepless nights as a result of the complaint. He further alleges that his professional reputation was injured "among lawyers and among the Arbitrators and Commissioners of the State Industrial Commission." For these injuries Madda seeks actual and exemplary damages totaling $600,000.
• 1 As we stated at the outset, the trial court dismissed this matter by adopting the absolute privilege position enunciated in Toft v. Ketchum. This court recently has declined to rule on the adoption of the New Jersey position for Illinois, choosing rather to affirm the dismissal of a cause, similar to the cause in this case, on the basis of other defects found in the complaint. (Alswang v. Claybon (1976), 40 Ill. App.3d 147, 351 N.E.2d 285.) Since the reason assigned by the trial court in this case is immaterial if the order dismissing the complaint was proper on other grounds (Alswang v. Claybon (1976), 40 Ill. App.3d 147, 149 n. 1, 351 N.E.2d 285, 288 n. 1; Cady v. Hartford Fire Insurance Co. (1965), 56 Ill. App.2d 429, 206 N.E.2d 535), we do not decide in this case whether an absolute privilege attaches to the filing of ethics charges before the Registration and Disciplinary Commission.
• 2 Madda's complaint concerns either malicious use of process or abuse of process, or both. Consequently, the complaint was properly dismissed if it fails to allege the essential elements of at least one of the two torts.
• 3, 4 Under Illinois law a complaint for malicious use of process also known as malicious prosecution (see Ammons v. Jet Credit Sales, Inc., (1962), 34 Ill. App.2d 456, 181 N.E.2d 601), requires the allegation of five distinct elements:
"1. Institution and prosecution of judicial proceedings by the defendant.
2. Lack of probable cause for these proceedings.
3. Malice in instituting the proceedings.
4. Termination of the prior cause in ...