CBA Record October 2017

Y O U N G L A W Y E R S J O U R N A L

a zealous advocate for their client and not with any other purpose or person in mind. It sounds simple, but if attorneys are not careful in how they represent their clients, they could end up facing a lawsuit, and, even worse, facing a judgment. For the most part, it is difficult for plain- tiffs in Illinois to maintain successful claims against an attorney for tortious interfer- ence. It is well-settled law in Illinois that third parties may, in certain circumstances, be privileged to cause a breach of contract between other parties or to interfere in a prospective business relationship. In Schott v. Glover , 109 Ill. App. 3d 230 (1st Dist. 1982), the Illinois Appellate Court decided whether an attorney is privileged to inter- fere in other parties’ business contracts and relationships. In Schott , the plaintiffs sued the defendant bank for breaching an exclusive agency agreement and sued the bank’s attorney for tortiously interfering with the agreement. Plaintiffs alleged that the agreement was extended orally and through correspondence while also alleging that the bank’s attorney advised the bank the agreement was not extended. The court found the fiduciary duty owed by an attor- ney to a client afforded the bank’s attorney a privilege to give the advice to the bank. An attorney’s privilege to advise his client, however, is not absolute; it is a conditional privilege. The Schott court explained that a plaintiff can state a cause of action for tortious interference against a third party who is conditionally privileged if the plaintiffmakes factual allegations that constitute actual malice. Such allegations must include a desire to harm the plaintiff that is independent of and unrelated to an attorney’s desire to protect their client’s interests; in other words, an attorney who makes it personal against the plaintiff. In Schott , the plaintiffs failed to state any allegations of “actual malice,” so the court dismissed the tortious interference count. The plaintiff in Boyd Real Estate, Inc. v. Shissler Seed Co., Inc. , 213 Ill. App. 3d 648 (3d Dist. 1991), suffered the same fate. The court recognized that public policy mandates attorneys to be free to advise clients without fear of personal liability to third parties. Because the plaintiff failed to

include any allegations of actual malice, the plaintiff could not overcome the attorney’s privilege, and the court dismissed the tor- tious interference claim against the attorney. Some plaintiffs have fared better by including at least some allegations of actual malice but without the necessary factual support. Illinois is a fact-pleading jurisdic- tion, which makes it more difficult for a plaintiff to successfully sue an attorney for tortious interference and survive a motion to dismiss. In Salaymeh v. InterQual, Inc. , 155 Ill. App. 3d 1040 (5th Dist. 1987), the plaintiff failed to allege facts that dem- onstrated the attorney’s intent to harm the plaintiff independent of and unrelated to the attorney’s desire to protect her clients. Without any factual allegations fromwhich it could be inferred that the attorney had an interest in the plaintiff independent of serving her clients, the court dismissed the tortious interference claim. Similarly, in Storm & Associates, Ltd. v. Cuculich , 298 Ill. App. 3d 1040 (1st Dist. 1998), the court emphasized that unsupported, bare conclusions that an attorney acted maliciously are insufficient to negate the protection of the privilege arising from the attorney’s fiduciary duty to his or her client. Conclusions of actual malice will not survive a motion to dismiss. Tortious Interference Sustained As difficult as it may seem to sustain a cause of action for tortious interference against attorneys, it is possible. In Clarage v. Kuzma , 342 Ill. App. 3d 573 (3d Dist. 2003), a landowner who tried to develop land into a vacation resort sued a member of the township board and the township’s attorney for, inter alia , tortious interference with contract and business expectancy. The defendants opposed the development. A large hotel company was interested in the project and engaged the construction firm plaintiff hired, but the hotel’s general counsel wrote a letter to the parties errone- ously denying the hotel’s connection to the project and demanding the parties cease all representations regarding the hotel’s involvement. The hotel later retracted the mistaken letter. The township’s attorney, however, republished the letter to local

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media outlets and the township board immediately after she received the letter. Upon learning of the letter, the govern- mental entity that had previously agreed to issue a bond to fund the development retracted its offer. As a result, the project collapsed. Although the township attorney asserted a qualified privilege, the court found, under the facts alleged, the qualified privilege did not apply. The plaintiff alleged the attorney republished a letter she knew was false and, consequently, the develop- ment of plaintiff’s resort collapsed. The court believed it was reasonable to infer that the attorney’s intentional republication of the false, defamatory letter was not related to the protection of her client’s interests but, instead, was meant to sabotage the plain- tiff’s interests. Having found the attorney’s qualified privilege inapplicable, the appel- late court reversed the trial court’s order dismissing the counts against the attorney. It is one thing for an attorney to be sued for tortious interference and have to incur the time and costs of filing a motion to dismiss. It is another thing to be thrust into full-blown discovery and to potentially lose on summary judgment. In Miller v. St. Charles Condominium Association , 141 Ill. App. 3d 834 (2d Dist. 1986), that is precisely what happened. In Miller , the plaintiff sued her condo association and the association’s attorney for tortiously inter- fering with her contract to sell her condo unit. The attorney represented the associa- tion in a forcible entry and detainer action against the plaintiff, which concluded in the plaintiff’s favor. In connection with that judgment, the plaintiff requested a statement from the association that all assessments were The CBA has a variety of meeting rooms and can provide catering and audio/visual services for client conferences, firmmeetings, social gather- ings etc. Call Michele Spodarek, CBA Conference Center Manager at 312/554-2124 for details.

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