Appeal from the Circuit Court of Cook County No. 98 L 5216 The Honorable Leonard R. Grazian, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cousins
The plaintiff brought this suit in contract and in tort for legal malpractice. According to the plaintiff, the defendant attorney filed an appearance for him in a federal civil rights action without telling him that he had undertaken to represent him. The plaintiff lost by default, as he discovered when his salary began to be garnished. The plaintiff filed this action alleging malpractice on the part of the defendant. The defendant filed a third-party action for indemnity against the municipality that was his employer. The trial court ruled in favor of the plaintiff. The court also ruled that the third-party defendant municipality was not required to indemnify defendant.
The defendant now appeals arguing that the court erred in finding in favor of the plaintiff because: (1) an attorney-client relationship never existed between him and the plaintiff; and (2) even if a default judgment had not been entered against the plaintiff, the finder of fact would have ruled against the plaintiff on the merits. The plaintiff and the defendant both contend that the trial court erred in denying the defendant's third-party 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)).
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, Phillip 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 third-party claim 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 the plaintiff; 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' third-party 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)).
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, 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, 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, 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, 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, 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, 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 ...