Estate of Hudson By Caruso v. Tibble , 2018 IL App (1st) 162469, appeal denied sub nom. Estate of Hudson v. Tibbie, 98 N.E.3d 29 (Ill. 2018)

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The First District reversed a trial court opinion that granted summary judgment to an attorney.   The trial court held that an attorney hired by the administrator of an estate did not owe a duty to the estate, only the administrator.   The First District reversed and held that the symbiotic relationship between and administrator and an estate meant that the attorney owed duties to both.

Estate of Hudson By Caruso v. Tibble , 2018 IL App (1st) 162469, appeal denied sub nom. Estate of Hudson v. Tibbie, 98 N.E.3d 29 (Ill. 2018)

(This is for informational purposes and is not legal advice.)

Doe v. Williams McCarthy LLP , 2017 IL App (2d) 160860

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In this lawsuit, the plaintiff sued the lawyers of a trust for various claims, including invasion of privacy, intentional infliction of emotional distress, and violation of the Illinois Mental health and Development Disabilities Confidentiality Act (the “Act”). The trial court dismissed all claims against defendants. The three above claims were addressed on appeal, where the second district affirmed in part and reversed in par. Specifically, the court affirmed the dismissal of invasion of privacy and intentional infliction of emotional distress claims against the attorney and his law firm, finding that the absolute-litigation privilege barred the claims. The court, however, reversed the dismissal of plaintiff’s claim under the Act, holding that the litigation privilege did not bar such a claim. In so doing, the court looked at the legislative history of the Act to determine that the absolute-litigation privilege does not provide a shield for a party charged with violation of the Act.

Doe v. Williams McCarthy LLP, 2017 IL App (2d) 160860

(This is for informational purposes and is not legal advice.)

Johnson v. Stojan Law Office, P.C. , 2018 IL App (3d) 170003, reh’g denied (Feb. 22, 2018), appeal denied sub nom. Johnson v. Stojan Law Office, P.C, 98 N.E.3d 51 (Ill. 2018)

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The Third District affirmed the grant of summary judgment on a legal malpractice claim brought against a lawyer related to a trust dispute.  It held that the lawyer did not owe a duty to a beneficiary of a trust because the possibility that he could benefit from the trust is insufficient to create a duty.  The court also held that the plaintiff never actually became a trustee to whom the attorney would owe a duty because the trust was amended before the plaintiff would have become a trustee.

Johnson v. Sojan Law Office, P.C., 2018 IL App (3d) 170003, reh’g denied (Feb. 22, 2018), appeal denied subnom. Johnson v. Stojan Law Office, P.C., 98 N.E. 3d 51 (Ill. 2018)

(This is for informational purposes and is not legal advice.)

 

Killian v. Minchella, 2017 IL App (1st) 163429-U, appeal denied, 98 N.E.3d 65 (Ill. 2018)

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In this unpublished opinion, the First District affirmed the dismissal of a legal malpractice case. The court examined whether unpaid judgments constituted damages to the plaintiff. Although the court noted that an unpaid judgment could damage a malpractice plaintiff, it held that the malpractice complaint failed to state a claim because it failed to allege that the plaintiffs had paid or would have to pay a judgment in excess of what they would have paid in the absence of negligence.

The court also affirmed on statute of limitations grounds. It held that the entry of a non-final summary judgment order put the plaintiff on notice of the alleged malpractice. Thus, the statute began to run at that time. The court rejected the argument that the statute of limitations did not run until the summary judgment became final and appealable.

Killian v. Minchella, 2017 IL App (1st) 163429-U, appeal denied, 98 N.E.3d 65 (Ill. 2018)

(This is for informational purposes and is not legal advice.)

Lurie v. Wolin , 2017 IL App (1st) 161571

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In this unusual case, the First District addressed a situation where it had previously reversed an order of dismissal and found that a complaint stated a claim for legal malpractice. The plaintiffs, an escrow company and its principals, sued their first attorney for legal malpractice related to advice given over how to address embezzlement of company funds by the CFO. The trial court dismissed the original malpractice complaint without prejudice with leave to file an amended complaint by a date certain. Plaintiffs did not file an amended complaint by that date, and the court dismissed the complaint with prejudice. Subsequently, the plaintiffs’ malpractice attorney (their second attorney overall) filed a motion to reconsider the order dismissing the complaint and included an amended complaint that purported to have a file stamp before the court’s original deadline. In their response to the motion to reconsider, defendants attached certified copies of the official docket sheets for the case showing that neither the amended complaint nor the motion for reconsideration had been timely filed.

The trial court noted the inconsistency in the court records and documents submitted by the plaintiffs’ malpractice attorney, but concluded that it could not believe that plaintiffs’ malpractice attorney “would attempt to do anything not consistent with the court rules.” Accordingly, the court granted the motion to reconsider and set aside the earlier order dismissing the case with prejudice. Defendants then filed a motion to dismiss the amended complaint on substantive grounds, which the court granted with prejudice. Plaintiffs appealed and the First District reversed the dismissal. In the course of these events, Plaintiffs also hired new counsel (their third attorney overall).

Plaintiffs original malpractice counsel (their second attorney overall) was later disbarred for misconduct that included submitting a falsified email notice of filing in the Northern District of Illinois.

On remand, the trial court held an evidentiary hearing to determine whether plaintiffs’ malpractice attorney had falsified the time stamps on the amended complaint and motion to reconsider. Defendants also argued that the trial court lost jurisdiction over the case when plaintiffs failed to file a timely motion to reconsider. Plaintiffs argued that the court’s previous ruling on the jurisdictional issue (granting the motion to reconsider and setting aside the dismissal order) became the law of the case following the First District’s reversal of the trial’s court’s order dismissing the case. The trial court ultimately held that the law of the case did not bar reconsideration of this issue because of a “significant change in circumstances” – the malpractice attorney was found guilty of falsifying court documents and lying to judges. The trial court concluded that it lost jurisdiction to take any action after plaintiffs missed the deadline for filing their motion to reconsider, vacated all orders entered after that date, and dismissed the case with prejudice.

On the second appeal, the First District held that its prior order finding that the complaint stated a claim for legal malpractice had become the law of the case, even with respect to the jurisdictional issue. Nonetheless, the Court held that the law of the case doctrine was not a limitation on its power to revisit an issue where the facts had changed or where the initial decision was “clearly erroneous and would work a manifest injustice.” Indeed, the Court found that a court may depart from the law of the case in numerous circumstances, including to remedy a fraud on the court. Thus, because plaintiffs’ malpractice attorney had perpetrated a fraud on the court, the Court exercised its discretion to consider the jurisdictional issue and affirmed the dismissal of the case.

This case is very interesting in its own right, but it raises another interesting question. What would the Lurie plaintiffs need to do to win a legal malpractice claim against the malpractice attorney who falsified documents? A number of “double malpractice” cases address the situation where a lawyer retained to prosecute a complaint against another lawyer is accused of malpractice. See, e.g., McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001); Rodi v. Horstman, 2015 IL App (1st) 142787. In these cases (and others), the courts make clear that the traditional elements of a malpractice case must be proved as to both underlying cases. For example, in McKnight v. Dean, the 7th Circuit affirmed summary judgment on a legal malpractice claim. There, the plaintiff sued his attorney in a lawsuit against his former employer. He ultimately settled this malpractice suit for $765,000, but later claimed that the attorney who represented him in the malpractice suit himself committed malpractice in the advice he gave about the settlement. The plaintiff then sued that attorney for malpractice. The court granted summary judgment and the 7th Circuit affirmed, finding that the plaintiff failed to show that, had it not been for the attorney’s alleged negligence related to the settlement, the plaintiff could have expected to obtain more than $765,000 in his original lawsuit. 270 F.3d at 520. In Rodi v. Horstman, the First District affirmed summary judgment and held that because the first malpractice case was bared by the statute of limitations, the second lawyer’s failure to file a timely notice of appeal from its dismissal did not cause any loss. 2015 IL App (1st) 142787, ¶ 40. A district court case from D.C. put the requirement into words with which legal malpractice lawyers are familiar when it stated that in a double malpractice case, the court must consider the “case within the case within the case.” Edelberg v. Roberts, No. Civ. A. 04-1992 (JDB), 2005 WL 1006000, at *4 (D.D.C. April 29, 2005).

Turning back to the Lurie case with this guidance, it seems that to win a malpractice case against the disbarred malpractice attorney, the plaintiffs would not only need to show that he breached the standard of care (which seems somewhat obvious), but also that they would have been successful in that malpractice action (and, by extension, in the underlying matter) had their first attorney not committed malpractice.

Lurie v. Wolin, 2017 IL App (1st) 161571

(This is for informational purposes and is not legal advice.)

Soverain Software, LLC v. Day, 2017 IL App (1st) 161913-U, appeal denied sub nom. Soverain Software, LLC v. Jones Day, 98 N.E.3d 58 (Ill. 2018)

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This unpublished opinion related to a suit between a former client and a law firm principally centered on past due fees.  The law firm brought a breach of contract claim for $10 million for past due fees and the client counterclaimed for a number of things, including breach of contract and legal malpractice.  The parties arbitrated the dispute and the arbitrator found in favor of the law firm for $1.5 million.  The trial court vacated the arbitration awarded finding that the arbitration panel exceeded its authority and created a compromise award.  The appellate court reversed and affirmed the arbitral award, finding that the award was grounded in the parties’ contract and the trial court improperly imposed its view in place of the arbitral award.

Soverain Software, LLC v. Day, 2017 IL App (1st) 161913-U

(This is for informational purposes and is not legal advice.)

Daily v. Greensfelder, Hemker & Gale, P.C. 2018 IL App (5th) 150384, appeal denied sub nom. Daily v. Greensfelder, Hember & Gale, P.C., 98 N.E.3d 39 (Ill. 2018):

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This case came to the Fifth District on a “friendly contempt” for failure to comply with a discovery order.  The Fifth District held that a breach of fiduciary duty claim put “at issue” a client’s communications with its attorneys because those communications were necessary to determine who contributed to the alleged breach of fiduciary duty and the relative contribution of each.

Daily v. Greensfelder, Hemker & Gale, P.C.

(This is for informational purposes and is not legal advice.)