DeSeno v. Becker

                                             FIRST DIVISION
                                             July 7, 1997
                                             



No. 1-95-0672

ANTHONY DESENO,

          Plaintiff-Appellant,

     v.

ALVIN BECKER,

          Defendant-Appellee.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.

No. 96-0672

Honorable
Ian H. Levin,
Judge Presiding.                                                                  

     JUSTICE O'BRIEN delivered the opinion of the court:

     Plaintiff, Anthony DeSeno, appeals from the trial court's
entry of summary judgment in favor of defendant, Alvin Becker, an
Illinois attorney, on the issue of legal malpractice.  We affirm.
     On February 14, 1985, the Chicago police superintendent filed
charges against DeSeno before the police board of the City of
Chicago (Board).  DeSeno was accused of violating departmental
rules. Following a three-day hearing, the Board found DeSeno guilty
of all charges and ordered him discharged from the police force.
     Becker timely filed a complaint on behalf of DeSeno for
administrative review of the Board's decision.  The complaint named
only the Board as defendant.  On March 17, 1987, it was dismissed
for want of prosecution.  
     DeSeno then retained another attorney who refiled a complaint
for administrative review.  On January 27, 1989, the circuit court 
found the Board's order was against the manifest weight of the
evidence and ordered the cause remanded for rehearing and for a
sanction of less than discharge.  On May 18, 1989, the Board
reconsidered the charges, found DeSeno guilty of minor departmental
rules, and suspended him from the police force for one year.
     The superintendent of police then timely filed a complaint for
administrative review of the Board's new findings.  The circuit
court affirmed DeSeno's suspension.  
     The superintendent of police appealed to the appellate court
seeking reversal of the circuit court's decision.  He argued that
DeSeno was barred from seeking any administrative review because
his original complaint had failed to name and serve summons upon
all the necessary parties within the 35-day limitations period set
forth in the Illinois Administrative Review Law.  Ill. Rev. Stat.
1985, ch. 110, pars. 3-103, 3-107.  More specifically, the
superintendent argued that DeSeno's first petition in the case was
fatally defective because it failed to name and serve summons upon
him.  The appellate court agreed with the superintendent and
reversed the circuit court decision.  Consequently, DeSeno's one-
year suspension was reversed, and the Board's original discharge
decision was reinstated.
     DeSeno then filed the instant action for legal malpractice
against Becker.  DeSeno alleged that Becker's failure to name the
superintendent of police as a party defendant in the original
complaint for administrative review violated the then-existing
applicable standard of care of a reasonably competent attorney. 
DeSeno further alleged that due to Becker's purported negligence,
he was discharged rather than suspended from the police force. 
Becker filed a motion for summary judgment contending that he
breached no duty to DeSeno because the superintendent of police was
not a necessary party at the time he filed the original
administrative review complaint on his behalf.  The trial court
granted Becker's motion for summary judgment and denied DeSeno's
subsequent motion to reconsider.  From these orders DeSeno appeals.
     Summary judgment is proper only where there are no issues of
material fact and the moving party is entitled to judgment as a
matter of law.  735 ILCS 5/2-1005(c) (West 1992).  We review the
matter de novo.  Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 102 (1992).  
     At the time of the disputed representation, the pertinent
section of the Administrative Review Law provided:
     "Defendants.  In any action to review any final decision
     of an administrative agency, the administrative agency
     and all persons, other than the plaintiff, who were
     parties of record to the proceedings before the
     administrative agency shall be made defendants."  Ill.
     Rev. Stat. 1985, ch. 110, par. 3-107.

The complaint had to be filed and summons issued within 35 days
from the date that a copy of the decision to be reviewed was
received by the party affected thereby.  Ill. Rev. Stat. 1985, ch.
110, par. 3-103.  We begin our analysis with a review of cases
interpreting these sections of the Administrative Review Law.
     In Winston v. Zoning Board of Appeals, 407 Ill. 588, 95 N.E.2d 864 (1950), the plaintiff filed an action seeking review of a
decision of the zoning board.  The complaint named the zoning board
but not its individual members as defendants.  The  complaint was
dismissed.  The Illinois Supreme Court affirmed the dismissal
stating that the complaint was "fatally defective in failing to
include as defendants all persons other than the plaintiffs who
were parties of record to the administrative proceeding."  407 Ill. 
at 596.  However, the subsequent case of Massoud v. Board of
Education of Valley View Community District No. 365-U, 97 Ill. App.
3d 65, 422 N.E.2d 236 (1981), limited the application of Winston to
cases where the defects were timely pointed out and the plaintiff
made no attempt to amend.  In Massoud, a discharged teacher filed
a complaint for administrative review against the local board of
education but failed to name either the hearing officer or the
State Board of Education as a defendant.  There, as here, the issue
was not raised until appeal.  The Massoud court did not dismiss the
complaint but, rather, ordered the amendment allowed.
     In O'Hare International Bank v. Zoning Board of Appeals, 8
Ill. App. 3d 764, 291 N.E.2d 349 (1972), appeal denied, 53 Ill. 2d 606 (1973), we held the review of a zoning decision was properly
dismissed because certain parties to the zoning administrator's
decision were not named.  The absent parties, being neighboring
landowners, had a keen interest in the outcome of the controversy. 
However, within one year after the decision, the plaintiff filed a
second complaint naming these individuals as defendants.  The
defendants moved to dismiss arguing that plaintiff had no right to
name additional parties at such a late date.  On appeal for the
second time, this court held that the plaintiffs had the right to
name additional parties by amendment even after the expiration of
the 35-day period for filing a complaint and issuing summons under
the Administrative Review Act.  O'Hare International Bank v. Zoning
Board of Appeals, 37 Ill. App. 3d 1037, 347 N.E.2d 440 (1976).
     Meanwhile, in Rizzo v. Board of Fire and Police Commissioners,
11 Ill. App. 3d 460, 297 N.E.2d 247 (1973), we held that the person
bringing charges against a police officer was not a necessary party
to any action challenging a decision of a police board.  Rather, we
held the Board and its members were the only proper defendants in
such an action.  11 Ill. App. 3d at 465, 297 N.E.2d  at 250.  We
reiterated this position in Schoenbeck v. Board of Fire & Police
Commissioners, 69 Ill. App. 3d 366, 387 N.E.2d 738 (1979).
     In Schoenbeck, a police officer filed a complaint seeking
administrative review of a decision of the board of fire and police
commissioners discharging him from the police department.  The
circuit court reversed the board's decision.  On appeal, the board
argued that plaintiff's complaint was fatally defective because it
failed to name the chief of police, the person who brought the
charges against plaintiff, as a party defendant.  Although we
recognized that the requirements of the Administrative Review Act
were mandatory (Winston v. Zoning Board of Appeals, 407 Ill. 588,
95 N.E.2d 864 (1950)), we disagreed with the board's analysis of
its application under the circumstances presented.  We reasoned
that the legislature intended to protect those potential parties
with independent interests in the outcome of the dispute from being
deprived of their right to have input into the decision.  We
distinguished the independent interest of neighbor landowners in a
zoning board suit from a police chief's professional interest in a
police board suit.  Whereas the interests of neighbor landowners
might have differed from those of the zoning board, the interest of
the police chief was identical to the interests of the police
board.  Schoenbeck, 69 Ill. App. 3d at 371-72, 387 N.E.2d at 742-
43.  Accordingly, we held that it was not necessary to name the
police chief as a defendant in a complaint for administrative
review of a police board decision.  69 Ill. App. 3d at 372, 387 N.E.2d  at 743.
     As in Schoenbeck, the plaintiff in Lockett v. Chicago Police
Board, 176 Ill. App. 3d 792, 31 N.E.2d 837 (1988) (hereinafter
Lockett I), was a police officer seeking administrative review of
a decision of the board of fire and police.  Relying upon that
case, the circuit court judge had declared: "the law in the First
District under Schoenbeck was clear and explicit on the same
identical facts as we have here, that an attorney did not have to
name the police chief or the police superintendent."  After quoting
at length from Schoenbeck, we agreed with the circuit court,
stating:
     "[W]e are not aware of any case which holds that in an
     administrative review of a decision to discharge or
     otherwise discipline a police officer, the person filing
     the charges must be named as a party defendant under the
     Administrative Review Law."  176 Ill. App. 3d at 794.

Accordingly, we held that the superintendent of police was not a
necessary party when the police board was named as a defendant.  
     Our decision in Locket I was overturned by the Illinois
Supreme Court in Lockett v. Chicago Police Board, 133 Ill. 2d 349,
549 N.E.2d 1266 (1990) (hereinafter Lockett II).  In Lockett II the
Illinois Supreme Court held that failure to name the police
commissioner as a defendant in a complaint for administrative
review of a Board decision rendered the complaint fatally
defective.  Lockett II, 133 Ill. 2d  at 354, 549 N.E.2d  at 1268.  
     The decision in Locket II was applied retroactively by this
court in Marozas v. Board of Fire & Police Commissioners, 222 Ill.
App. 3d 781, 584 N.E.2d 402 (1991).  At issue in the Marozas appeal
was whether the trial court erred in dismissing count I of
plaintiff's complaint for administrative review of his discharge
from the police force of the City of Burbank for failure to name
the chief of police.  This court reasoned:
          "The Lockett II decision does not establish a new
     principle of law since the plain language of the
     Administrative Review Act requires naming all parties of
     record at the administrative hearing as party defendants. 
     Judicial interpretation of a statute does not necessarily
     constitute a change in law.  [Citation.]  When
     interpreting statutes, the statute does not mean one
     thing prior to a judicial interpretation and another
     afterwards. [Citation.]  Where judicial interpretation of
     a statue is a commonsense construction based on the clear
     wording of the statute, it does not have to be applied
     only prospectively. [Citation.]"  222 Ill. App. 3d at
     788, 584 N.E.2d  at 407.

Accordingly, we found that the plaintiff's failure to name the
chief of police as a defendant required that the dismissal of his
complaint for administrative review be affirmed.
     On appeal, DeSeno argues that because the rule enunciated by
the Illinois Supreme Court in Lockett II was held to apply
retroactively by Marozas, Becker's professional conduct should be
judged according to Lockett II.  Becker, on the other hand, argues
that his professional conduct should be judged according to the
rule enunciated by Rizzo and reaffirmed in Schoenbeck, the
controlling cases at the time he filed DeSeno's complaint for
administrative review.  
     Unfortunately, all of the above cases resulted from direct
appeals of rulings on complaints for administrative review, rather
than collateral suits alleging legal malpractice as here.  The
distinction makes a difference.  In direct appeals from
administrative rulings, the Lockett II decision affects only
procedural aspects of the case, namely, who must be listed as a
defendant in a complaint for administrative review.  In collateral
suits alleging legal malpractice, however, the Lockett II decision
effects a substantive change in the elements to be pleaded (and
proved) in order to make the attorney liable for malpractice,
namely, the attorney's professional obligation to his or her
client.  See Harraz v. Snyder, 283 Ill. App. 3d 254, 260-61, 669 N.E.2d 911, 915 (1996) (when obligations and liabilities between
parties are modified, substantive change in law occurs).
Accordingly, we find that the Marozas decision, which held that the
Lockett II decision applied retroactively, is not binding authority
in this case (Onlicki v. McCarthy, 4 Ill. 2d 342, 122 N.E.2d 513
(1954), Moshe v. Anchor Organization for Health Maintenance, 199
Ill. App. 3d 585, 557 N.E.2d 451 (1990) (generally, procedural
rules are applied retroactively whereas substantive rules are not);
People v. Ridens, 59 Ill. 2d 362, 380-81, 321 N.E.2d 264, 273-74
(1974) (retroactive application of state-court construction of a
criminal statute deprives accused of fair warning that contemplated
conduct constitutes a crime)), and look instead to attorney
malpractice and disciplinary cases for guidance in our decision.
     In Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974), the
plaintiff filed an action in the United States District Court for
the Northern District of Illinois against Warren W. Beal and Robert
O. Dunn.  Thereafter, Brainerd retained attorney Richard M. Kates
to file an amended complaint.  The court dismissed the amended
complaint on January 30, 1973.  The court clerk docketed the
decision on February 1, 1973.  Kates filed a notice of a appeal on
March 2, 1973.  The United States Court of Appeals dismissed the
appeal for lack of jurisdiction on grounds "the notice of appeal
was not timely filed".  See Brainerd v. Beal, 498 F.2d  at 902. 
Brainerd then sued Kates for professional malpractice alleging
Kates had failed to file a notice of appeal within 30 days of
judgment as required by Rule 4(a) of the Federal Rules of Appellate
Procedure for United States Courts of Appeal.  The trial court
granted summary judgment for Kates and dismissed the cause with
prejudice.  Brainerd appealed.  Brainerd v. Kates, 68 Ill. App. 3d
781, 386 N.E.2d 586 (1979).  On appeal, we stated:
     "[I]n determining whether [Kates] was or was not
     negligent it is necessary to judge his conduct by the
     factual situation which existed during the months of
     February and March of 1973 when the notice of appeal was
     actually filed; about 1 year prior to the decision in
     Brainerd [v. Beal].  We cannot say, without prophetic
     knowledge, that the conduct of the defendant at that time
     constituted legal malpractice as a matter of law.

          ***[P]rior to the existence of the decision in
     Brainerd [v. Beal], an attorney exercising a reasonable
     degree of care and skill might well have concluded that
     the time for filing the notice of appeal commenced to run
     from the date of th[e] entry of the judgment order on the
     docket of the clerk.  ***  In a situation of this type,
     far from demonstrating negligence as a matter of law, the
     record shows the need for expert testimony in determining
     whether or not defendant in the case at bar had exercised
     a reasonable degree of care and skill with due regard to
     the distinction between errors of negligence and of
     mistaken legal judgment. Duty is imposed not on the mere
     possibility of occurrence, but on what the reasonably
     prudent man would then have foreseen as likely to happen.
     [Citation.]"  68 Ill. App. 3d at 786, 386 N.E.2d  at 590. 
     

     In Brainerd v. Beal, the underlying case, the applicable rule
of procedure was not amended or altered--the court merely clarified
its application.  Yet we declined to apply that clarification
retroactively in Brainerd v. Kates, the collateral case alleging
attorney malpractice, absent expert testimony that it had been
required by the accepted standard of care and skill at the time of
Kates' alleged malpractice.  
     In Garrett v. Lawyers, Inc., 273 Ill. App. 3d 545, 653 N.E.2d 48 (1995), the plaintiff filed a malpractice claim alleging
defendants had failed to timely file his cause of action.  At issue
was whether a two-year or a four-year statute of limitations
applied to the underlying personal injury claim.  After Garrett's
personal injury claim was dismissed as untimely, the apparent
conflict was resolved by Hernon v. E.W. Corrigan Construction Co.,
149 Ill. 2d 190, 595 N.E.2d 561 (1992), in favor of the four-year
limitations period.  The plaintiff nevertheless asserted on appeal
that, at the time of the alleged malpractice, there was a "long
accepted notion" that the two-year limitations period applied.  The
plaintiff further argued that to condone the defendant's failure to
file within that time period would be to apply the Hernon ruling
retroactively.  We rejected the plaintiff's argument and dismissed
the malpractice claim on grounds the Hernon ruling had made no
references to any "long accepted notion" but, rather, had utilized
general rules of statutory construction to determine that the four-
year limitations period applied.  273 Ill. App. 3d at 548, 653 N.E.2d  at 50.  Here, in contrast, there was more than a "long
accepted notion" that the police commissioner need not be named as
a defendant, there was binding precedent to that effect.
     In People v. Maury, 287 Ill. App. 3d 77 (1997), this court
rejected a criminal defendant's contention that he was denied
effective assistance of counsel when his trial counsel failed to
argue that the prosecution of his case was a violation of the fifth
and fourteenth amendments' prohibition of double jeopardy (see U.S.
Const., amends. V, XIV) due to an earlier civil forfeiture
proceeding brought against defendant.  In support of his argument,
Maury had cited to In re P.S., 169 Ill. 2d 260 (1996), wherein the
Supreme Court of Illinois found that a civil forfeiture action
separate from the criminal proceeding could constitute double
jeopardy.  The Maury court reasoned that because P.S. was decided
over a year after defendant entered his guilty plea, and because at
the time of defendant's conviction, People v. 1988 Mercury Cougar,
154 Ill. 2d 27 (1992), a case contradicted and overruled by P.S.,
was still the leading Illinois decision in this area, defendants
argument was "absurd."  287 Ill. App. 3d at 84.
     The Illinois Supreme Court's opinion in the attorney
disciplinary case In re Corboy, 124 Ill. 2d 29 (1988), is also
instructive.  See Rogers v. Robson, Masters, Ryan, Brumund & Belom,
74 Ill. App. 3d 467, 472-73, 392 N.E.2d 1365, 1371 (1979), aff'd,
81 Ill. 2d 201, 407 N.E.2d 47 (1980) (there are obvious
similarities between the propriety of imposing malpractice
liability and disciplinary sanctions).  Corboy arose under the Code
of Professional Responsibility.  At issue in Corboy was whether
certain attorneys had given or loaned a "thing of value" to a judge
in violation of Rule 7-110(a).  107 Ill. 2d R. 7-110(a).  At the
time of the attorney's alleged misconduct, Rule 7-110(a) was part
of Canon 7 of the Code of Professional Responsibility and provided:
          "A lawyer shall not give or lend any thing of value
     of a judge, official, or employee of a tribunal, except
     that a lawyer may make a contribution to the campaign
     fund of a candidate for such office."  107 Ill. 2d R. 7-
     110(a).

     In analyzing the situation, the Illinois Supreme Court held
for the first time that Rule 7-110(a) was to be read in conjunction
with Rule 65(C)(4)[fn1] of the Code of Judicial Conduct (107 Ill.
2d R. 65(C)(4)), and concluded that the attorneys' actions violated
Rule 7-110(a).  It nevertheless declined to impose sanctions,
noting that the attorneys had "acted without the guidance of
precedent or settled opinion, and there was, apparently,
considerable belief among members of the bar that they had acted
properly." Corboy, 124 Ill. 2d  at 45.  Under such circumstances,
the Corboy court reasoned it would be "unfair" to apply a
limitation just announced to the attorneys' conduct seven years
earlier.  124 Ill. 2d  at 45.  Accord In re Jones, 125 Ill. 2d 371,
534 N.E.2d 239 (1988).  Cf. In re Alexander, 146 Ill. 2d 83, 585 N.E.2d 70 (1991) (collecting cases resulting in sanctions); In re
Rinella, 175 Ill. 2d 504 (1997) (attorney's sexual relations with
client sanctionable because no member of the bar could reasonably
have considered such conduct to be acceptable though it was not
specifically proscribed by rules governing the legal profession).
     Here, too, the language of the statute remained unchanged, but
the court's interpretation of the actions required by it clearly
did.  When the rules of action prescribed by a controlling
authority change, an attorney's conduct is to be viewed according
to the state of the law during the period of the disputed
representation.  Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066 (1984); Land v. Auler, 186
Ill. App. 3d 382, 542 N.E.2d 509 (1989).  Applying the Strickland
rule and the reasoning of Brainerd v. Kates, People v. Maury, and
In re Corboy to the instant facts, we find that, based upon the
precedent and settled opinion of this court enunciated in Rizzo and
reaffirmed in Schoenbeck, an attorney exercising a reasonable
degree of care and skill would have been warranted in his or her
belief that the police commissioner was not a necessary party to
DeSeno's complaint for administrative review.
     DeSeno nevertheless contends that where case law conflicts
with the language of the statute, an attorney has the duty to err
on the side of caution in order to protect the interests of his or
her client and failure to do so constitutes legal malpractice. 
More specifically, DeSeno argues that Schoenbeck conflicted with
the language of the Administrative Review Law that requires "all
persons *** who were parties of record to the proceedings" to be
named as defendants (Ill. Rev. Stat. 1985, ch. 110, par. 3--107),
as well as the holdings in Winston v. Zoning Board of Appeals, 407 Ill. 588, N.E.2d 864 (1950) and O'Hare International Bank v. Zoning
Board of Appeals, 8 Ill. App. 3d 764, 347 N.E.2d 440 (1972). 
DeSeno therefore contends Becker had the duty to err on the side of
caution and name the police commissioner in his complaint for
administrative review, even though case law clearly indicated it
was superfluous, and that his failure to do so constituted legal
malpractice.
     DeSeno's argument fails because law, in its generic sense, is
a body of rules of action or conduct prescribed by controlling
authority, and having binding legal force.  United States Fidelity
& Guaranty Co. v. Guenther, 281 U.S. 34, 74 L. Ed. 683, 50 S. Ct. 165
(1930).  In Illinois, appellate court cases are controlling
authority on the interpretation of a statute unless and until
overturned.  State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d 539 (1992).  Hence there can be no conflict
between a statute and the judicial interpretation thereof. The two
sources of law are effectively merged because the judiciary merely
elucidates statutory law for the benefit of attorneys and
litigants.
     Even assuming the existence of a conflict such that it was
necessary for Becker to err on the side of caution and name the
police commissioner as a defendant in DeSeno's complaint, the
Administrative Review Law as interpreted by cases such as Dendor v.
Board of Fire & Police Commissioners, 11 Ill. App. 3d 582, 297 N.E.2d 316 (1973), and O'Hare International Bank v. Zoning Board of
Appeals, 37 Ill. App. 3d 1037, 347 N.E.2d 440 (1976), permitted
amendments after the 35-day appeals period for the purpose of
adding defendants.
     Because we find that Becker's professional conduct should be
judged according to the controlling cases at the time he filed
DeSeno's complaint for administrative review, we affirm the trial
court's dismissal of DeSeno's complaint against Becker alleging
legal malpractice.
     Affirmed.
     CAHILL, J., and THEIS, J., concur.

     [fn1]The rule actually in effect at the time of the alleged
violation was Rule 61(c)(22), which provided: "A judge should not
accept gifts or favors from litigants, lawyers practicing before
him, or others whose causes are likely to be submitted to him for
judgment."  87 Ill. 2d R. 61(c)(22).  However, because the
committee commentary to Rule 65(C)(4) made it clear that the new
rule retained the "requirements" of former Rule 61(c)(22), the
Supreme Court looked to its "refined successor" to flesh out the
scope of Rule 7-110(a).  Corboy, 124 Ill. 2d  at 42, 528 N.E.2d  at
699.