MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY THE LATE MR. JUSTICE DOOLEY AND WAS ADOPTED AND FILED AS THE OPINION OF THE COURT.
This is a review of a recommendation of the Attorney Registration and Disciplinary Commission. The Review Board recommended that the respondent, David Alswang, a member of this bar for 50 years, should be censured for instituting a malicious prosecution action against a former client, Fannie Claybon. Respondent's action was filed after the Commission dismissed charges filed by Mrs. Claybon.
Does the filing of a malicious prosecution action by an attorney against the client who has unsuccessfully filed charges against him before the Disciplinary Commission constitute grounds for disciplining the attorney? This is the issue for decision here. The Illinois State Bar Association has been granted leave to file a brief as amicus curiae. It urges that the issue here is one of consequence to all Illinois lawyers, and that the Commission exceeded its authority.
Mrs. Claybon originally retained respondent in 1966 to handle a personal injury claim. In March 1971 she contacted respondent regarding her husband's withdrawal of her funds from a joint savings account and her advance of a large sum of money for his purchase of a car in his own name. She sought settlement of their financial difficulties but did not desire a divorce, although the marital relationship was strained.
Mrs. Claybon saw respondent on other occasions. On March 12, 1971, she paid him a retainer of $250, and on April 20, 1971, the following agreement was entered into:
"I hereby employ DAVID ALSWANG attorney, to prosecute all claims for property against George W. Claybon settlement of property or monies due me from said George W. Claybon and in consideration for 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 actions.
On April 18, 1971, a divorce action had been filed by Mr. Claybon. Respondent admittedly did everything necessary to protect Mrs. Claybon's interest in these proceedings. On February 2, 1973, Mrs. Claybon paid respondent a further sum of $2,000 as payment on account.
During the course of the protracted proceedings, Mrs. Claybon forged her husband's name to certain insurance checks issued to her husband and herself as payee in payment of fire and theft losses on their home. The respondent represented Mrs. Claybon on a hearing before the State's Attorney's office on a possible forgery indictment.
Eventually the divorce decree was entered. Mrs. Claybon was awarded a two-unit apartment building and its rent, certain furniture, $3,000 in lieu of alimony, and $1,500 for attorney's fees.
On July 31, 1973, respondent billed Mrs. Claybon for services. Although the total bill was $6,328.75, she was allowed a credit for the $250 retainer, the $2,000 payment on account, and the $1,500 attorney's fee awarded under the divorce decree. This left a balance owing respondent in the amount of $2,578.75.
Mrs. Claybon thought the original agreement gave respondent $1,000, being one-third of the $3,000 settlement in lieu of alimony. Since she had already paid him $2,250, she believed she was entitled to a refund. Respondent explained his bill represented his costs for services on a per diem basis. He explained that the settlement in lieu of alimony award had been far less than he expected. Accordingly, he waived his one-third portion of the settlement under the contingent-fee agreement. Methods of payment of the balance were discussed by Mrs. Claybon and respondent.
On January 21, 1974, Mrs. Claybon filed a complaint with the Attorney Registration and Disciplinary Commission alleging respondent's bill was "not in compliance with an initial agreement, nor commensurable with the work involved and was unfair and unjust." Yet, on January 27, 1974, Mrs. Claybon wrote respondent to advise him "that I am in the process of making arrangements to clear up the matter of the $2,578.75 balance you indicated I owed you."
On February 6, 1974, respondent wrote Mrs. Claybon that, since she had seen fit to repudiate their agreement, he was adding $1,000, or one-third of the settlement in lieu of alimony, to his bill for services, raising the total to $3,578.75. The charges contained in Claybon's complaint were referred to the Inquiry Board of the attorney disciplinary system. On September 9, 1974, respondent appeared before a panel of the Inquiry Board, which explained that a contingent fee in divorce proceedings was not in accord with public policy. Respondent agreed to forgo any claim for the additional $1,000 contingent fee, but stated that he would pursue ...