00-3007 McKnight v. Dean, et al.

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“For Dean to have extracted a settlement of $765,000 from Gingras was impressive given the weaknesses in the case against Gingras, especially when we consider that the failure to argue waiver of waiver cost McKnight at most $555,000 (the damages that we held barred by GM’s Patterson defense). Had McKnight not settled for $765,000, the insurance company’s offer would have shrunk as the company continued spending money on Gingras’ defense; and Gingras, rather than throwing some of his own money into the settlement pot, might have decided to fight the case – and might have won, or at least lost less than $765,000.”

“We do not condone Dean’s action in ‘forcing’ McKnight to settle. If McKnight was pigheaded and wanted to tilt at windmills, that was his right. Dean didn’t have to continue representing him in those circumstances, but he could not, whether to safeguard his fee or for any other reason, use deception to induce his client to settle against the client’s will. The decision to settle is the client’s alone. Evans v. Jeff D., 475 U.S. 717, 728 n. 14 (1986); Clarion Corp. v. American Home Products Corp., 494 F.2d 860, 864 (7th Cir. 1974); Thomsen v. Terrace Navigation Corp., 490 F.2d 88 (2d Cir. 1974) (per curiam); In re Disciplinary Proceedings Against Martinez, 591 N.W.2d 866, 868 (Wis. 1999); Brewer v. National R.R. Passenger Corp., 649 N.E.2d 1331, 1333-34 (Ill. 1995). But misconduct of this sort, though a form of malpractice (more precisely, a breach of the lawyer’s ethical duty to his client), will often be harmless. Dean did McKnight a favor in ‘coercing’ a $765,000 settlement, if that is what really happened. (Dean denies it, and the district court merely assumed, for argument’s sake, that it did happen.) For there is no basis for believing that McKnight would have done better by rejecting the settlement and going to trial; and if there is no injury, there is no tort.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Plunkett, J., Posner, J.