Recent Illinois Case: Attorney Malpractice, The Statute of Limitations and At Issue Waiver in Graham v. Stone

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by Mitchell L. Marinello, Partner, Novack and Macey LLP

Mitchell L. Marinello Jan 2014
Mitchell L. Marinello

This decision, Graham v. Stone, 2015 IL App (4th) 140839-U, illustrates some of the issues that arise when a client sues his attorney for malpractice and the attorney raises a statute of limitations defense.  Specifically, to what extent is the accused attorney entitled to ask about his client’s communications with other counsel to prove when the client first learned of the alleged malpractice?


Plaintiff was a police officer whose employment was terminated.  He hired an attorney to contest the termination.  The attorney did not follow the applicable procedures which required the officer’s grievance to be submitted to the mayor before an arbitration proceeding was filed.  Instead, the attorney simply filed an arbitration proceeding.

In January, 2008, an arbitration award was rendered dismissing the officer’s grievance because it had not first been submitted to the mayor.  In September, 2008, the trial court denied an application to vacate the arbitration award.  In August, 2009, that decision was affirmed on appeal and in September, 2009, the appellate court denied a petition for rehearing.

In August, 2011, the police officer brought an action for legal malpractice against his attorney. The officer’s complaint claimed that he first learned of his attorney’s negligence in September 2009 when the petition for rehearing was denied.  The attorney filed an answer stating that the police officer’s case was barred by the two-year statute of limitations for legal malpractice.  To help prove this defense, the attorney served an interrogatory asking:

When was the first date you consulted an attorney other than [the defendant accused of malpractice] in regards to any aspect of your termination from the . . .[police department]?  This includes, but is not limited to an attorney consulted formally or informally for ‘second opinions’ and/or relating to the conduct of [defendant].  Please state the name and addresses of said attorney or attorneys.

The police officer refused to answer and argued that this information was protected by the attorney-client privilege.  The trial court rejected that argument and ordered the police officer to answer the interrogatory.  The officer refused to do so, and he and his attorney were found in contempt of court and fined.  They appealed.

The Legal Standards Governing The Appeal

Trial court decisions on discovery matters ordinarily are not appealable until the case is over, but they do become immediately appealable if a party or his attorney is held in contempt of court.  The appellate court normally reviews trial court’s decisions on discovery matters under an ‘abuse of discretion’ standard that gives the trial court a lot of leeway, but the appellate court takes a fresh and independent look — de novo as it is called — on legal issues including those that concern the attorney-client privilege.

The Appellate Court Ruling

The parties’ briefs each argued whether the police officer had waived the privilege that ordinarily would apply to his consultations with other legal counsel when the police officer claimed in his complaint that he did not learn about his attorney’s malpractice until September of 2009.  Wouldn’t the substance or content of his communications with other attorneys directly impact on what he knew about his attorney’s malpractice and when he knew it?  And, if so, wouldn’t it be unfair for the police officer to claim he had no knowledge of the malpractice until 2009 while hiding the communications he had with other attorneys before that date?

The appellate court could have answered this question, but it did not do so.  Instead, it looked at the interrogatory that the parties were fighting over.  That interrogatory did not ask the police officer to reveal the content of his communications with other attorneys.  Instead, it asked him only the dates on which he consulted other attorneys about the underlying case and the names and addresses of those attorneys.  The court held that such basic facts are not privileged, and it affirmed the trial court’s ruling that the police officer had to answer the interrogatory.

By limiting its decision in this way, the appellate court avoided going beyond the specific facts of its case, but the same issue may come up in another guise.  For example, if the police officer answers the interrogatory by saying that he did consult with other counsel about the underlying case before September of 2009, then his former attorney may serve a second interrogatory asking for detailed information about that consultation or ask probing questions during a deposition.  The issue of privilege and waiver may well come up again at that time.  On the other hand, a lot can happen in litigation.  Perhaps the case will settle.

The appellate court did give the police officer and his counsel a break, however. It found that their decision to disobey the trial court’s decision was a good-faith attempt to get guidance on the privilege issue, and it reversed the contempt finding as well as the monetary fine.

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

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