FIRST DIVISION

									September __22, 2003

No. 1-01-1767

THORNWOOD, INC., THOMAS A. THORNTON,

and THORNTON SOD NURSERY, INC.

	Plaintiffs-Appellants,

		v.

JENNER & BLOCK, an Illinois General

Partnership; CARTER H. KLEIN,

Individually; RANDOLPH M. PERKINS,

Individually; and RICHARD L. VERKLER,

Individually,

	Defendants-Appellees.

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Appeal from the

Circuit Court of

Cook County

01 L 1401

Honorable 

James F. Henry, 

Judge Presiding

	JUSTICE McBRIDE delivered the opinion of the court:

	Plaintiffs-appellants (Thornton) appeal from the circuit

court's dismissal of their verified complaint (complaint). 

Thornton's three-count complaint accused defendants-appellees

(Jenner & Block) of (i) aiding and abetting a breach of fiduciary

duty; (ii) aiding and abetting a scheme to defraud; and (iii)

aiding and abetting a scheme of fraudulent inducement.  Jenner &

Block moved to dismiss the complaint, claiming that Thornton

previously released his claims against Jenner & Block.  The circuit

court agreed and dismissed the complaint.  Finding that Thornton

has raised a material issue as to whether the release is valid, we

reverse and remand.  

	In February 1991, Thomas A. Thornton and James Follensbee (Follensbee), through James Follensbee & Associates and JF+A

Properties, Ltd., formed the Thornwood Venture Limited Partnership (Partnership) for the purpose of developing Thornton's Kane County

farm as a residential community and golf course (Thornwood Golf

Course).  Thornton contributed 550 acres of land and an option to

buy an additional 180 acres of land.  Thornton further agreed to

fund the Partnership's endeavors until it was able to secure equity

investors.  Follensbee contributed his expertise and experience as

an architect, engineer, and real estate developer to the

Partnership.  In exchange, Thornton received a 75% ownership

interest in the Partnership.  Follensbee received a 25% ownership

interest and the right to be compensated for his services as the

Partnership's managing general partner.  

	The Partnership consumed significant funds in its efforts to

develop the Property.  By October 1994, Thornton had expended cash

and incurred debt of more than $8 million for the Partnership. 

Follensbee made numerous efforts to recruit investors for the

Partnership.  In 1994, for instance, Follensbee approached PGA Tour

Golf Course Properties, Inc. (PGA), and Potomac Sports Properties,

Inc. (Potomac), regarding the possibility of developing Thornwood

Golf Course as a PGA Tournament Players Course (TPC).  The benefits

of such a partnership could have been substantial, including:

		"(A) Golf tournament galleries of up to 75,000

people per day to visit the community during PGA Tour

events;

		(B) Immediate respect and credibility for the golf

course by having the best players in the world compete on the course and publicly discuss its merits and

playability;

		(C) Unsurpassed recognition and overall community

awareness from sports media and national television

audiences;

		(D) Ranking as a top residential community in annual

revenues and total home sales;

		(E) Highest average prices paid for any comparable

golf area home sites;        	

		(F) Increased real estate sales traffic directly

attributable to TPC/PGA Tour events;

		(G) Diverse price ranges and products sold; and

		(H) Realtor recommendations to prospects seeking

golf-oriented residential communities."

Thus, the Partnership was likely to experience tremendous revenue

growth if Thornwood Golf Course was a TPC.  Unfortunately, in a

letter dated June 8, 1994, the PGA indicated that it would not be

willing to work with the Partnership "unless the developer [was]

willing to start over."  Follensbee delivered a copy of the letter

to Thornton and told him that "the PGA and [Potomac's] involvement

in the development project was not feasible."

	Nevertheless, Follensbee continued to pursue partnership

negotiations with the PGA and Potomac.  Without disclosing his

continued negotiations, Follensbee began making plans with the PGA

and Potomac regarding the layout of the golf course, the division of profits, and the duties of the Partnership, the PGA, and

Potomac.  None of these plans involved Thornton; nor were they

disclosed to Thornton.

	In the midst of Follensbee's undisclosed efforts to recruit

the PGA and Potomac as partners, Thornton confronted Follensbee

regarding the significant expenditures he had made to fund

Follensbee's development activities.  Thornton's assets were

quickly dissipating into the Partnership without any indication

that the Partnership was likely to have any success in the near

future; thus, Thornton indicated to Follensbee that he desired to

liquidate the Partnership or sell his interest. Follensbee

responded that he would sue Thornton before he would allow

liquidation of the Partnership.  Alternatively, he indicated that

he would be interested in purchasing Thornton's interest in the

Partnership.  At that time, Follensbee did not inform Thornton that

his interest was likely to gain significant value in the near

future because of the agreement Follensbee was negotiating with the

PGA and Potomac.  Instead, Follensbee enlisted the services of

Jenner & Block to assist him in acquiring Thornton's interest in

the Partnership.  Jenner & Block also participated in Follensbee's

negotiations with the PGA and Potomac.

	On January 11, 1995, Follensbee and Thornton executed a

settlement agreement (settlement agreement), which provided the

requirements and terms for Follensbee to acquire Thornton's

interest in the Partnership.  Alternatively, the settlement agreement provided for the liquidation of the Partnership. 

Significantly, the settlement agreement contained mutual releases

between the parties.  The release agreed to by Thornton (Follensbee

Release) provides:

		"Except as specifically provided in this Agreement

or in any other agreement entered into after the date

hereof, Thornton, jointly and severally, and the

Partnership, jointly and severally, hereby

unconditionally and irrevocably release [Follensbee] and

the Partnership (and any Affiliates, directors, officers,

employees, and agents of any of them) (collectively, the

'Released Parties') from any and all claims or rights

either Thornton (or any of Thornton) or the Partnership

may have against any one or more of the Released Parties

arising under or in any manner related to the

Partnership, the Partnership Agreement, the Contribution

Agreement, the Property, breach of fiduciary duties,

securities laws, or the solicitation and nondisclosure of

discussions, offers, and opportunities regarding

Financing Activities, any other document, instrument or

agreement (whether oral or written) between any of

Thornton or the Partnership and any of the Released

Parties, or the operations, activities and business of

the Partnership, including but not limited to any and all

obligations for the repayment of any loans or advances or the payment of any interest thereon, the payment of any

fees, the reimbursement of expenses, or any other such

obligations of any kind or nature whatsoever."  

	Additionally, Thornton contemporaneously executed a release

(Jenner & Block Release) purporting to relieve Jenner & Block,

Follensbee's attorneys:

	"from any liability from any and all claims,

counterclaims, controversies, actions, causes of actions,

demands, debts, damages, costs, attorneys fees, or

liabilities of any nature whatsoever in law of [sic] in equity, whether known or hereinafter discovered, that

arose out of events that have occurred from the beginning

of time until the date hereof." 

	At the time Thornton signed the releases, he was not aware

that Follensbee had continued negotiations with the PGA and Potomac

and reached a conditional agreement for their involvement in

Thornwood Golf Course.  Thornton did not become aware of

Follensbee's actions until November 1998, almost four years after

he signed the releases.  Nevertheless, Jenner & Block contends that

these releases bar Thornton's claims.  The trial court agreed and

dismissed the complaint.      

	This court reviews the trial court's dismissal of the complaint de novo, considering the allegations of the complaint in the light most favorable to Thornton.  See Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424 (1999). Our focus is not upon Thornton's ultimate

chances of success on the merits, but whether the complaint is

legally sufficient to allow Thornton to proceed with his claims

against Jenner & Block.  Importantly, "[a] cause of action will not

be dismissed on the pleadings unless it clearly appears that the

plaintiff cannot prove any set of facts that will entitle it to

relief."  Hoffman Group, 186 Ill. 2d at 424.  In this case, the primary issue is whether Thornton's claims were previously

released, in which case, no set of facts would entitle Thornton to

relief.  Accordingly, we analyze the releases.  

	A release "is the abandonment of a claim to the person against whom the claim exists and is a contract to be construed under

traditional contract law."  Hurd v. Wildman, Harrold, Allen & Dixon, 303 Ill. App. 3d 84, 88 (1999).  This means that "[w]here a written agreement is clear and explicit, a court must enforce the

agreement as written.  Both the meaning of the instrument, and the

intention of the parties must be gathered from the face of the

document without the assistance of parol evidence or any other

extrinsic aids."  Rakowski v. Lucente, 104 Ill. 2d 317, 323 (1984). 

	A release, however, will not "be construed to include claims

not within the contemplation of the parties."  Carlile v. Snap-On Tools, 271 Ill. App. 3d 833, 838 (1995).  In many cases, a release makes clear on its face what claims were within the contemplation

of the parties at the time the release was given.  In other

instances, the release provides very general language that does not indicate with any clear definition what claims were within the

contemplation of the parties.  In such cases, "the courts will

restrict the release to the thing or things intended to be released

and will refuse to interpret generalities so as to defeat a valid

claim not then in the minds of the parties."  Carlile, 271 Ill. App. 3d at 839.  In other words, general releases do not serve to

release unknown claims, which the party could not have contemplated

releasing when it gave the release.  See Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 448 (1991)("A general release is inapplicable to an unknown claim").  

	In Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68 (1992), for instance, the plaintiff sued his employer, seeking

malpractice coverage for a claim brought years after his employment

had terminated and after the alleged malpractice.  The defendant

asserted that the plaintiff's claim was barred by a release signed

seven years earlier by which the plaintiff released the defendant

from:		

		" 'all manner of actions, causes, and causes of

actions, suits, debts, sums of money, accounts ***

damages, judgments, executions, claims and demands,

whatsoever, in law or in equity, *** which [plaintiff]

now has against [defendant] or ever had, *** by reason of

any matter, cause, or thing, whatsoever, on or at any

time prior to the date of these Presents.' "  Myers, 225 Ill. App. 3d at 70.   

The court found that the release did not bar the plaintiff's claim

for two reasons.  One was the breadth of the release, and the other

was the release's time exemption.  Myers, 225 Ill. App. 3d at 75.  Specifically, the court found that "[t]he sweeping language of the

release, *** renders it general" and prevents the release from

barring the plaintiff's claim of which he was unaware when he

executed the release.  Myers, 225 Ill. App. 3d at 75.

	Similarly, the Jenner & Block Release contains sweeping

language which makes it very general.  It purports to release all

claims of any sort "that have occurred from the beginning of time

until the date hereof."  As such, when the release is considered on

its face, it cannot be construed to release the claims now made by

Thornton because those claims were unknown to Thornton when he

signed the release, and those claims could not have been in the

contemplation of the parties when the release was signed.  Notably,

the claims may have been contemplated by Jenner & Block, who

crafted the release in an effort to protect itself from all

potential claims.  But knowledge by one party, where the other

party lacks knowledge, does not bring the claim within the

"contemplation of the parties."  Todd v. Mitchell, 168 Ill. 199, 204 (1897)("[T]he breach of the covenant of warranty could not have

been in contemplation of the parties, because unknown to the

appellant at the time ***"). 

	Importantly, however, the Jenner & Block Release was not

executed in a vacuum.  It was executed contemporaneously with the settlement agreement.  And when more than one agreement is

contemporaneously entered into, "they are considered one contract

and the information needed to determine what 'claims, demands, and

causes of action' were intended can be derived from the face of the

[contemporaneously executed documents]."  First National Bank of Geneva v. Lively, 211 Ill. App. 3d 1, 5 (1991).  Therefore, the Settlement Agreement and the Follensbee Release contained therein

may be considered in determining the intent of the parties in

executing the Jenner & Block Release and may even compensate for

the general nature of the Jenner & Block Release by providing

guidance as to what claims were within the contemplation of the

parties when the Jenner & Block Release was executed.  Because the

Follensbee Release is considered separately below, we do not

consider that release here, but the same reasoning applies to

preclude dismissal.  	

	The Follensbee Release is less general than the Jenner & Block Release in numerous ways.  First, it limits the subject matter to

which the release applies.  Specifically, only partnership-related

claims are released.  Second, the Follensbee Release identifies

several types of claims that are explicitly released.  These

include claims arising under or related to the Partnership

Agreement, claims related to the property, and claims related to

breaches of fiduciary duties.  Certainly, Thornton's claims of

aiding and abetting a breach of fiduciary duty, a scheme to

defraud, and fraudulent inducement concern the Partnership and are based, in large part, on alleged breaches of fiduciary duty

perpetrated by Follensbee with the assistance of Jenner & Block. 

Thus, these claims are covered by the Follensbee Release because

the claims contemplated by the parties included partnership-related

claims.  Further,  because the Follensbee Release releases

Follensbee and his agents, its terms release these contemplated claims against Jenner & Block.  

	Additionally, as noted above, the terms of the Follensbee

Release and the settlement agreement may be properly considered in

interpreting the Jenner & Block Release.  The Follensbee Release

releases partnership-related claims such as those now made.  Thus,

the claims are barred if the releases are valid, because such partnership-related claims were within the contemplation of the

parties at the time the releases were executed.

	When a defendant's motion to dismiss is based upon a release,

which is valid on its face, as here, "then the burden shifts to the

plaintiff to sufficiently allege and prove that a material issue of

fact exists which would invalidate the agreement."  Meyer v. Murray, 70 Ill. App. 3d 106, 114 (1979).  See also Hurd v. Wildman, Harrold, Allen & Dixon, 303 Ill. App. 3d 84, 89 (1999); Dickman v. E.I. Du Pont de Nemours & Co., 278 Ill. App. 3d 776, 781 (1996); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 256 (1993).  Such facts include that "there has been fraud, duress, mutual

mistake, or, at least in some cases, unconscionability."  Carlile, 271 Ill. App. 3d at 839.  Where such facts are alleged, an issue of material fact exists, which if proven, would likely defeat the

affirmative defense of prior release.  See Carlile, 271 Ill. App. 3d at 840-42.

	In Phil Dressler & Associates, Inc. v. Old Oak Brook Investment Corp., 192 Ill. App. 3d 577, 579 (1989), for instance, the court reversed a grant of summary judgment where it found "a

genuine issue existed as to a material fact, namely whether the

release was procured by fraud."  In that case, the parties signed

a release of claims arising in connection with a development

agreement.  Phil Dressler & Associates, 192 Ill. App. 3d at 582.  The evidence surrounding the execution of the release, however,

revealed that one of the parties to the release may have misstated

material facts in order to induce the other plaintiff to sign the

release.  Phil Dressler & Associates, 192 Ill. App. 3d at 583-84.  Thus, the court found that a material fact existed as to whether

the release had been fraudulently induced and reversed summary

judgment.  Phil Dressler & Associates, 192 Ill. App. 3d at 585-86. 

	Similarly in Ainsworth Corp. v. Cenco, Inc., 107 Ill. App. 3d 435 (1982), this court reversed a grant of summary judgment where

it found a question of fact regarding fraudulent inducement. 

Ainsworth involved an asset purchase agreement for the purchase of the inventory and operating assets of a company engaged in the

manufacture and sale of medical sutures and related hospital

medical products (Asset Purchase Agreement) .  Ainsworth, 107 Ill. App. 3d at 436.  A warranty in the Asset Purchase Agreement provided:

	" ' to the best of [Cenco's] knowledge none of the

properties owned occupied or operated by [Cenco], nor the

ownership, occupancy or operation thereof, is, to any

extent materially and adversely affecting the business of

[Cenco], in violation of any law, ordinance or regulation

or *** federal, state and local safety laws, regulations

and ordinances (including *** the United States Pure Food

and Drug Act, or similar laws and regulations ***.)' "  Ainsworth, 107 Ill. App. 3d at 436.  

Subsequently, the parties had a dispute regarding the Asset

Purchase Agreement.  In their resolution of that dispute, the

parties entered into a settlement agreement, which provided, in

part:

		" '[T]he representations and warranties of [Cenco]

in the [Asset Purchase] Agreement shall all expire on the

date of [the settlement agreement] and Ainsworth and Cvengros waive any breach of any of such representations,

warranties or covenants, or any default under the

agreement which may have occurred prior to the date of

this agreement.' (Emphasis added.)" Ainsworth, 107 Ill. App. 3d at 437.  

The United States Food and Drug Administration inspected the

medical products facilities acquired through the Asset Purchase

Agreement four months after the settlement agreement was executed.  That inspection revealed that the manufacturing processes used

violated federal regulations.  Ainsworth, 107 Ill. App. 3d at 437.  Plaintiff filed suit against defendants alleging that they "had

fraudulently induced it to purchase the medical products group by

misrepresenting that it was being operated in accordance with

government manufacturing and sterility procedures."  Ainsworth, 107 Ill. App. 3d at 438.  Defendants asserted the release as an

affirmative defense.  Ainsworth, 107 Ill. App. 3d at 438.  The trial court granted summary judgment finding that "the terms of the

settlement agreement between these parties [were] unambiguous and

effectively barred the subsequent tort action, as a matter of law." 

Ainsworth, 107 Ill. App. 3d at 439.  Significantly, in reversing on appeal, this court noted:

		"A careful review of the record does not disclose an

unequivocal denial by defendants that fraudulent

representations were not in fact made to the plaintiff. 

Instead, defendants persistently argue that the plain

language of the settlement agreement waiving 'any breach

of any such representations' wholly precludes any

interpretation to the contrary."  Ainsworth, 107 Ill. App. 3d at 439.

	In Phil Dressler & Associates and Ainsworth, the alleged fraud concerned misrepresentations of fact. However, "[f]raud also may

consist of the intentional omission or concealment of a material

fact under circumstances creating an opportunity and duty to speak."  H.K. Warner v. Lucas, 185 Ill. App. 3d 351, 354 (1989).  "In order to prove fraud by the intentional concealment of a

material fact, it is necessary to show the existence of a special

or fiduciary relationship, which would raise a duty to speak." 

First Midwest Bank, N.A. v. Sparks, 289 Ill. App. 3d 252, 260 (1997). Significantly, "in a confidential or fiduciary

relationship, the dominant party's silence alone may constitute

fraudulent concealment."  Melko v. Dionisio, 219 Ill. App. 3d 1048, 1061 (1991).  

	Partners have a fiduciary relationship.  Borys v. Rudd, 207 Ill. App. 3d 610, 620 (1990).  Consequently, they "owe one another a duty of full disclosure of material facts when making a

settlement and obtaining a release."  Golden v. McDermott, Will & Emery, 299 Ill. App. 3d 982, 988 (1998).  Specifically, "the partner assuming control of the business is obliged to manage it in

the interest of all the partners."  Rizzo v. Rizzo, 3 Ill. 2d 291, 302 (1954).  Accordingly, an agreement between partners is subject

to close scrutiny,  McCormick v. McCormick, 118 Ill. App. 3d 455, 466 (1983)("A release between a trustee and a beneficiary, like all

transactions growing out of a fiduciary relationship, is subject to

the closest scrutiny"), and "no form of words, no matter how all

encompassing, will foreclose scrutiny of a release [citation] or

prevent a reviewing court from inquiring into surrounding

circumstances to ascertain whether it was fairly made and

accurately reflected the intention of the parties."  Ainsworth, 107 Ill. App. 3d at 439.    

	"Factors significant in determining whether a particular

transaction between parties standing in a fiduciary

relation is fair include showing that the fiduciary has

made a frank disclosure of all relevant information which

he had, that the consideration was adequate, and that the

other party had competent and independent advice before

completing the transaction."  Rizzo v. Rizzo, 3 Ill. 2d at 305.  

Importantly with regard to releases between partners, this court

has recognized:

		"A release between fiduciaries is to be evaluated in

the context of the fiduciary relationship. [Citation.] In

appraising the validity of a release in the context of a

fiduciary relationship, the court must regard the

defendant as having the burden of showing by clear and

convincing evidence that the transaction embodied in the

release was just and equitable. [Citation.] In addition,

the defendant must show by competent proof that a full

and frank disclosure of all relevant information was made

to the other party."  Peskin v. Deutsch, 134 Ill. App. 3d 48, 55 (1985).  

Thus, an agreement between partners is voidable if one partner

withheld from the other facts that were material to the

transaction.  Golden, 299 Ill. App. 3d at 990.       

	In this case, Thornton has properly raised issues regarding

the validity of the releases.  Specifically, the allegations of the

complaint indicate that the releases may have been obtained by

fraud because Follensbee, a fiduciary to Thornton, failed to

disclose his continued negotiations with the PGA and Potomac. 

Jenner & Block has not offered any evidence that the releases were

obtained after full and frank disclosure of these facts.  If in

fact fraud is found, the releases may not bar Thornton's claims

against Jenner & Block.  This is true regardless of whether Jenner

& Block had a fiduciary duty to Thornton with regard to the

Partnership because Follensbee's actions could invalidate the

entire settlement agreement and related releases.  See, e.g., Phil Dressler & Associates, 192 Ill. App. 3d at 584("A release may be set aside if there is fraud in the inducement."); Ainsworth, 107 Ill. App. 3d at 439 ("[F]raud in the inducement vitiates all

contracts [citation] and renders [them] voidable at the option of

the injured party").

	While such a result might seem unfair to an innocent party who

was released and had no knowledge of the underlying fraud that

later invalidated the release, we are not faced with such a case

here and our decision should not be construed to have decided such

a case.  Instead, Jenner & Block was involved in the drafting of

the releases in question and, allegedly, in the acts underlying

Follensbee's fraud.  Yet, it does not answer the alleged fraud, but

instead argues that the releases are valid.  The very insertion of the clause in the settlement agreement that purports to release

certain fiduciary duties between Follensbee and Thornton from

October 1, 1994, until the date the release was signed indicates an

awareness that breaches of fiduciary duties may have occurred

during that time.  See Bakalis v. Bressler, 1 Ill. 2d 72, 81 (1953) quoting Selwyn & Co. v. Waller, 212 N.Y. 507, 106 N.E. 321, 322 (1914)(" 'The very fact that one [partner] conceals his true

interest from the other indicates a purpose to gain some advantage

at the other's expense' ").  Because Follensbee and Thornton were

partners, there was a duty to disclose these acts.  See Bakalis, 1 Ill. 2d 72 (holding that one partner violated his fiduciary duty to

another partner by failing to disclose his own negotiations for and

actual purchase of the building in which the partnership leased

property).  If the acts had been disclosed or were otherwise within

Thornton's knowledge and Thornton had then agreed to the release,

it would be binding.  If, however, those acts were concealed from

Thornton in violation of Follensbee's fiduciary duties, the release

may not prevent Thornton's claims.   See Peskin v. Deutsch, 134 Ill. App. 3d 48, 55 (1985)(holding that a release between partners

was not effective to bar the plaintiff partner's claim where there

was "no evidence of a full and frank disclosure to plaintiff by

defendant of the nature of the questioned payments either prior to

or at the time of execution of the dissolution agreement"). 

Thornton has stated facts that support such a finding, and those

facts have not been disproved or even denied by Jenner & Block.  Therefore, we reverse.  

	We further find no merit to Jenner & Block's argument that

Thornton ratified the settlement agreement, the Follensbee Release,

and the Jenner & Block Release by accepting the benefits of these

documents.  Based on the pleadings, there is still some question as

to what, if anything, constitutes the benefit allegedly received

and retained by Thornton under the settlement agreement. 

Regardless, even if Thornton did receive and retain some benefit

from the settlement agreement, we believe that Thornton timely

sought to invalidate the settlement agreement and the related

releases upon discovering the alleged fraud.  The same month that

he discovered the alleged fraud, Thornton brought a claim against

Follensbee seeking to rescind the settlement agreement.     

	Jenner & Block urges that even if we find the releases do not bar Thornton's claims, we should affirm the dismissal of the

complaint because it fails to state any claims upon which relief

can be granted.  We disagree.  

	In Illinois, a claim for aiding and abetting includes the

following elements:

		"(1) the party whom the defendant aids must perform

a wrongful act which causes an injury; 	(2) the defendant

must be regularly aware of his role as part of the

overall or tortious activity at the time that he provides

the assistance; (3) the defendant must knowingly and

substantially assist the principal violation." Wolf v. Liberis, 153 Ill. App. 3d 488, 496 (1987)(recognizing the elements of claims for aiding and abetting and concert of

action but failing to find liability where there were no

allegations that the codefendant agreed to assist or

substantially assisted in the commission of tort

resulting in the plaintiff's injury).

Further, the Restatement (Second) of Torts controls recovery under

the theory of concert of action in Illinois.  Wolf, 153 Ill. App. 3d at 496.  It provides:

		"For harm resulting to a third person from the

tortious conduct of another, one is subject to liability

if he 

		(a) does a tortious act in concert with the other or

pursuant to a common design with him, or 

		(b) knows that the other's conduct constitutes a

breach of duty and gives substantial assistance or

encouragement to the other so to conduct himself, or 

		(c) gives substantial assistance to the other in

accomplishing a tortious result and his own conduct,

separately considered, constitutes a breach of duty to

the third person."  Restatement (Second) of Torts §876

(1979).

	Although Illinois courts have never found an attorney liable

for aiding and abetting his client in the commission of a tort, the

courts have not prohibited such actions.  In Reuben H. Donnelley Corporation. v. Brauer, 275 Ill. App. 3d 300 (1995), for instance, the court considered a claim of aiding and abetting made against one

defendant and his attorneys.  While not specifically considering

whether the claim could be maintained against the attorneys as a

matter of law, the court implicitly accepted that such a claim

could be maintained when it held that there could be no liability

because the underlying conduct involved a breach of contract, not

a tort.  Brauer, 275 Ill. App. 3d at 310.  

	Similarly, Illinois courts recognize that claims for

conspiracy may be maintained against attorneys where there is

evidence that the attorneys participated in a conspiracy with their

clients.  See, e.g., Bosak v. McDonough, 192 Ill. App. 3d 799, 804- 05 (1989) (recognizing conspiracy claim against attorney but

finding insufficient evidence to impose liability).  Accordingly,

we see no reason to impose a per se bar that prevents imposing liability upon attorneys, who knowingly and substantially assist

their clients in causing another party's injury.  As we have

recognized, " '[o]ne may not use his license to practice law as a

shield to protect himself from the consequences of his

participation in an unlawful or illegal conspiracy.' "  Celano v. Frederick, 54 Ill. App. 2d 393, 400 (1964), quoting Wahlgren v. Bausch & Lomb Optical Co., 68 F.2d 660, 664 (7th Cir. 1934).  The same policy should prevent an attorney from escaping liability for

knowingly and substantially assisting a client in the commission of

a tort.  

	Certainly, as Jenner & Block points out, mere receipt of

copies of letters authored by Follensbee, which expose his breach

of fiduciary duty, probably does not constitute aiding and abetting

under Illinois law.  Here, however, Thornton alleges more.  He

alleges that Jenner & Block aided and abetted by knowingly and

substantially assisting Follensbee in breaching his fiduciary duty

by (1) communicating the competitive advantages available to the

Partnership from the PGA/TPC plan to other parties, but

specifically not to Thornton; (2) expressing Follensbee's interest

in purchasing Thornton's interest in the Partnership and

negotiating the purchase of that interest without disclosing to

Thornton the continued negotiations with the PGA and Potomac; (3)

reviewing and counseling Follensbee with regard to the production

of investment offering memoranda, financial projections, and

marketing literature, which purposely failed to identify Thornton

as a partner; and (4) drafting, negotiating, reviewing, and

executing documents, including the Jenner & Block and Follensbee

Releases, relating to the purchase of Thornton's interest and the

PGA/TPC Plan with knowledge that Thornton was not aware of the

PGA/TPC plan.  All of these acts are alleged to have been

perpetrated by Jenner & Block while it had knowledge that Thornton

and Follensbee were partners, that Follensbee had a duty to

disclose the PGA/TPC plan to Thornton, and that Follensbee did not

disclose the PGA/TPC plan to Thornton despite having the

opportunity and duty to do so.   Importantly, Thornton is not required to prove his allegations at this time.  Thus, even though

Thornton may face an uphill battle in proving his claims, we cannot

at this time affirm the dismissal of his Ccomplaint.         

	Because we find that Thornton has raised a material issue as to whether the releases are valid, we reverse and remand this case

to the circuit court for further proceedings consistent with this

opinion.

     Reversed and remanded.

	CAHILL and GARCIA, JJ., concur.