Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Bourke v. Conger, US Ct. of Appels, 7th Circ., April 19, 2011. 

Facts: Bourke was convicted of murder in Illinois state court, and after the conviction was turned over on appeal, filed malpractice claims against his defense attorneys. Bourker alleged that defense counsel's voire dire of the jury fell below acceptable standards of care.

Bourke's former attorney's argued that even if they breached their duty to Bourke, he could not establish proximate cause. 

Issue: Did Bourke set forth a valid cause of action for legal malpractice? 

Ruling: No. 

First, the Court stated the elements of a cause of action for legal malpractice: 

A plaintiff asserting a legal malpractice claim based on Illinois law must prove: (1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.

The Court then explained why Bourke failed to establish proximate cause: 

Bourke depended exclusively on Thomas's expert report to establish the causation element of his claim. While expert testimony is one of the types of evidence that a plaintiff like Bourke could normally rely on to ward off summary judgment, it is well established that an expert report that lacks foundation and depth will be given little consideration by courts. In order for an expert report to create a genuine issue of fact, it must provide not merely ... conclusions, but the basis for the conclusions. As the district court noted, the Thomas report does not support its conclusion that the Appellees' performance during voir dire caused the jury to find Bourke guilty with analysis, facts or reasoning. While the report discusses various ways in which the Appellees could have better represented Bourke's interests (e.g., by using their peremptory challenges, by questioning jurors for their opinions regarding the use of alcohol), this discussion only goes towards establishing that the Appellees breached their duty to Bourke, not causation. The Thomas report fails to identify facts that support its conclusion that the Appellees' alleged errors had any role in causing the jury to find Bourke guilty. This shortcoming prevents the Thomas report from creating a genuine, disputed issue of fact concerning causation.

Lesson: Plaintiff must establish proximate, in Illinois, by showing that "but for" his attorney's negligence, he would not have sustained the actual damages complained of. One way to do it is by expert opinion. However, the opinion must be supported by the "whys and wherefores" of the causal connection between the attorney's breach and the injury or damage complained of. 

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Cleveland v. Rotman, 297 F. 3d 569 (7th Cir. 2002)

IL: Underlying tax advice

Student Contributor: Clem Durham

Facts: In 1996 Cleveland retained Rotman for advice in resolving the tax dispute. At the time, Cleveland's therapist informed Rotman of Cleveland's poor financial status, his severe depression, and his suicidal tendencies. Rotman advised Cleveland that he needed to file tax returns for a 10-year period, but Cleveland claimed that he was unable to calculate his income and expenses for this period because his financial records had been lost during office moves and discarded by others during divorce proceedings. As a result, it is alleged that Rotman told Cleveland to estimate his income and expenses for the relevant years. Apparently, Cleveland's estimates did not agree with IRS figures and the IRS decided to audit him again. On January 26, 1998, shortly before the audit was scheduled to take place, Cleveland shot himself in the head. Cleveland's estate alleges that Rotman committed malpractice, which triggered the IRS's proposed 1998 audit, which in turn triggered Cleveland's suicide. The estate argues that the district court erred in ruling that, as a matter of law, a plaintiff's allegations were insufficient under Rule 12(b)(6).

Issue: Whether under Illinois law a plaintiff may recover for a decedent's suicide following a breach of contract?

Ruling: No. It is well-established under Illinois law that a plaintiff may not recover for a decedent's suicide following a tortious act because suicide is an independent intervening event that the tortfeasor cannot be expected to foresee. The 7th circuit agreed with the district court and found this rationale equally applicable in the contract context and therefore dismissed the estate's claims arising from Cleveland's suicide. Cleveland's suicide was an independent intervening event that broke the chain of causation from Rotman's alleged malpractice to Cleveland's death. Cleveland was an adult, and the estate has not alleged that he was mentally unstable. Essentially, Cleveland's estate seeks to impose on Rotman a duty to foresee and avoid a client's suicide. Although an Illinois court imposed such a duty on a psychiatrist who knew of his patient's history of suicidal depression and yet failed to protect the patient from self-harm, the estate here points to no case law extending such a duty to the attorney-client context. Because of the differences between the psychiatrist-patient relationship and the attorney-client relationship, we see no justification for extending such a duty to attorneys. Psychiatrists are health care professionals trained to care for their patients' mental and emotional health. By contrast, attorneys are medical laypeople who cannot be reasonably expected to anticipate the mental health consequences of their legal advice.

Lesson: Lawyer’s cannot be liable for a client’s suicide as a result of their giving of poor legal advice. A client’s suicide is unforeseeable because attorneys are not trained medical practitioners; and therefore, should not be responsible for foreseeing a client’s likelihood of committing suicide.

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Greycas, Inc. v. Proud, 826 F. 2d 1560 (7th Cir. 1987)

Underlying loan transaction--duty to adversary

Student Contributor: Clem Durham

Facts: Theodore S. Proud, Jr., a member of the Illinois bar who practices law in a suburb of Chicago, appeals from a judgment against him for $833,760, entered after a bench trial. The original plaintiff, Wayne Crawford, like Proud was a lawyer but devoted most of his attention to a large farm that he owned in downstate Illinois. The farm fell on hard times and by 1981,  Crawford was in dire financial straits. He had pledged most of his farm machinery to lenders, yet now desperately needed more money. He approached Greycas, Inc., the plaintiff in this case, a large financial company headquartered in Arizona, seeking a large loan that he offered to secure with the farm machinery. He did not tell Greycas about his financial difficulties or that he had pledged the machinery to other lenders, but he did make clear that he needed the loan in a hurry. Greycas obtained several appraisals of Crawford's farm machinery but did not investigate Crawford's financial position or discover that he had pledged the collateral to other lenders, who had perfected their liens in the collateral. Greycas agreed to lend Crawford $1,367,966.50, which was less than the appraised value of the machinery. Crawford was required to submit a letter to Greycas, from counsel whom he would retain, assuring Greycas that there were no prior liens on the machinery that was to secure the loan. Crawford asked Proud to prepare the letter, and he did so, and mailed it to Greycas, and within 20 days of the first contact between Crawford and Greycas the loan closed and the money was disbursed. A year later Crawford defaulted on the loan; shortly afterward he committed suicide. Greycas then learned that most of the farm machinery that Crawford had pledged to it had previously been pledged to other lenders.

Issues: Does a lawyer have a duty of care to an adversary’s client when the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party?

Ruling: Yes. By addressing a letter to Greycas intended to induce reliance on the statements in it, Proud made himself prima facie liable for any material misrepresentations, careless or deliberate, in the letter, whether or not Proud was Crawford's lawyer or for that matter anyone's lawyer. Knowing that Greycas was relying on him to determine whether the collateral for the loan was encumbered and to advise Greycas of the results of his determination, Proud negligently misrepresented the situation, to Greycas's detriment. Crawford hired Proud not only for the primary purpose, but for the sole purpose, of influencing Greycas to make Crawford a loan; and therefore, is liable under Illinois law for legal malpractice.

Lesson: Privity, normally required as a pre-requisite to attorney liability, is not a bar where the adverse party relied on the lawyer's representations to its detriment. The duty of care and candor extends even to adverse parties where the lawyer knows that the adversary will rely on his/her representations to its determiment.  
 

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Jones Motor Co. v. Holtkamp, Liese, Beckemeier & Childress, PC, 197 F. 3d 1190 (7th Cir. 1999)

7th Cir. IL: Underlying personal injury lawsuit

Student Contributor: Clem Dunham

Facts: The underlying suit had been filed in a state court in St. Clair County and assigned to a judge who we are told, and accept for purposes of deciding this appeal, has the reputation of favoring plaintiffs in personal injury suits. Jones's lawyers negligently failed to make a timely effective request for a jury because they failed to accompany the request with payment of the fee for a jury trial. As a result the case was tried to the judge, who entered a judgment of $2.8 million for the plaintiff; the suit was then settled for $2.5 million. In the present case, the malpractice case, Jones tendered the opinion of an experienced lawyer in St. Clair County that had the case been tried to a jury, the verdict would have been in the neighborhood of $500,000. Jones and its insurer, which paid a part of the $2.5 million settlement, are suing for the $2 million difference.

Issue: Can the loss of a procedural advantage give rise to a malpractice suit even if the advantage was not essential to the protection of the client's substantive rights?

Ruling: No. A malpractice plaintiff cannot prevail merely by showing that his claim which his lawyer booted, though baseless, had some nuisance value. To impose malpractice liability for booting a nuisance suit would—like deeming a plaintiff who obtains a nuisance settlement a prevailing party for purposes of entitlement to an award of attorneys' fees, which courts also refuse to do, simply encourage nuisance suits, of which we have enough already. There is a difference, however, between saying that a claim can be meritorious without its being certain to prevail at trial and saying that one of the parties would have done better than the other, had it not been for the negligence of his lawyer, regardless of the relative merits of the parties' positions. We hesitate to rule out the possibility of convincing an Illinois court to allow a malpractice suit to go forward on the basis of an argument that the plaintiff lost a procedural entitlement even though it was not an entitlement necessary to avert an unjust outcome. But given the uncertainty of harm we think the plaintiff in such a case must do more than the plaintiffs have done here to show that they can prove damages to a reasonable certainty.

Lesson: Even though a client may be correct in asserting that an advantage was lost by its lawyer’s failure to capitalize on a procedural entitlement; courts in Illinois will not permit a malpractice claim to go forward on this theory unless, the plaintiff can prove damages to a reasonable certainty. 

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Beatty v. Wood, 204 F. 3d 713 (7th Cir. 2000)

Underlying claim: Age discrimination case

Student Contributor: Clem Durham

Facts: Plaintiff, Robert Beatty, was employed with the FAA, Department of Transportation from 1962 until his retirement in September 1996. He was an Air Traffic Manager of Willow Run Tower at Detroit Metro from 1987 to 1995, and in 1992 Dennis Ragle became his supervisor. In 1995, Ragle issued Beatty a performance rating of "unacceptable" for the period from August 1993 to March 1995, and on April 10, 1995, Ragle reassigned him to the position of Program Specialist at Detroit Metro. That position was the same pay and grade as Air Traffic Manager, but Beatty contends that in contrast to the Air Traffic Manager position, it was a much lower profile position with no management responsibilities and no possibility for promotion. Beatty refused to report to the reassigned position when it commenced in June 1995, and claimed medical leave for a year. When the FAA sought further proof of eligibility for medical leave after the year, he chose instead to voluntarily retire. During that same time period, Beatty challenged the reassignment and was represented by his attorney, defendant, Wood. Beatty has brought a legal malpractice action against Wood for failing to timely appeal an EEOC dismissal for age discrimination. The age discrimination claim was determined to be meritless.

Issue: Can a claimant receive damages for demonstrating not that his case was meritorious, but by showing that he could have obtained settlement for the nuisance-value of the suit?

Ruling: No. A legal malpractice cause of action is meant to provide a litigant with damages that he would have been entitled to under law had the case been properly handled. It is not a vehicle for compensating a litigant for the damages that could have been extracted by pursuit of a
meritless case. Under Illinois law an element of a legal malpractice claim is the requirement that plaintiff demonstrate that "but for" the attorney's negligence, he would have prevailed in the underlying action. Lucey, 234 Ill.Dec. 612, 703 N.E.2d at 476. We have already held that the thrust of that requirement is that "a malpractice plaintiff cannot prevail merely by showing that his claim which his lawyer booted, though baseless, had some nuisance value."

Lesson: If the underlying claim does not have merit, plaintiffs  cannot prove proximate cause and damages of the cause of action for legal malpractice.

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Kohler v. Hawkins, 15 Ill.App.3d 455, 304 N.E.2d 677(App. Ct. 1973)

IL. underlying tort action

Student contributor: Cheryl Neuman

Facts: Two men were killed a car accident. Their estates hired defendant attorney in an action against the driver of the car in which the two men were killed. The defendants filed demands for arbitration and the arbitration hearings were held and damages were awarded. The award was subsequently vacated because the demand for arbitration was not filed within two years of the death of the decedents as required by the Injuries Act (Ill.Rev.Stat. 1965, ch. 70, pars. 1 and 2.). After the denial of a petition for leave to appeal, the defendants told the administrators of the estates that there would not be any recovery. The administrators then filed a complaint against the defendants alleging that the defendants were negligent and carelessly filed the demand for arbitration after the two year statutory allowance, thereby causing the administrators and heirs of the decedents the lost value of the arbitrator’s award. The defendants contend, however, that the statute of limitations has run and the plaintiffs can no longer sue them for a legal malpractice action.

Issue: Whether the statute of limitations for legal malpractice commences at the time of the negligent act or when the client discovers or should discover the facts establishing the elements of his cause of action?

Ruling: The cause of action for legal malpractice does not accrue until the client discovers or should have discovered the facts establishing the elements of his cause of action. Therefore, the complaint for legal malpractice was timely filed in this case. The statute of limitations did not begin to run until the administrators of the estates were advised by the defendant that they wouldn’t be able to recover in the underlying suit. Complaints filed within 5 years from that date were considered proper and timely filed.

Lesson: It is unrealistic and unfair to bar a negligently injured party’s cause of action before he had an opportunity to discover that it exists. The court reasoned that a client may not realize the negligence of an attorney when it occurs and to require a professional to check the work of the attorney would be impractical and would destroy the confidential relationship between attorney and client.
 

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Gelsomino v.Gorov, 502 N.E.2d 264, 149 Ill.App.3d 809, (App. Ct. Ill., 1986)

IL Underlying Representation: Insurance coverage lawsuit

Student Contributor: John Anzalone

Facts: Plaintiffs sue Attorney and his law firm for legal malpractice for negligently investigating, preparing and presenting Plaintiffs in a lawsuit against the insurer that failed to cover the loss of their restaurant to a fire. Plaintiffs obtained Attorney as their counsel shortly before trial after their previous attorney had to withdraw because he was involved in an ongoing trial. The jury found for Insurer on the grounds that the plaintiffs' had committed arson and fraud.

Issue: Did the lower court err in holding that since the plaintiff did not present a question of fact regarding proximate cause or the attorney's breach of duty, the alleged errors were not actionable because they were errors of judgment, and that Plaintiffs were barred from claiming Defendant was negligent?

The Ruling: In reversing the lower court, the Appellate Court held that summary judgment was improperly given, based on the following considerations:
1) Plaintiffs are estopped from relitigating facts in one action that were specifically litigated and decided in a prior action. The Plaintiff's post-trial motion in the underlying case claiming that the court erred in not granting continuance and that this resulted in their counsel being unprepared did not bar Plaintiffs from asserting that Defendants were negligent.
2) To prove legal malpractice, Plaintiffs must establish that there was an attorney-client relationship, "a duty arising out of that relationship" that was breached, and that the breach proximately caused Plaintiffs' actual damages.
3) Plaintiffs were Attorney's client and were damaged by the jury verdict.
4) There was a question of fact regarding the attorney's breach of duty because Plaintiffs.rovided expert testimony alleging specific breaches of the attorney duty of care to Plaintiffs.
5) There was a question of fact about proximate cause because Plaintiffs supplied affidavits of people Defendants' knew about but failed to investigate whose testimony would have rebutted the circumstantial proof of arson and fraud alleged by Insurer.
6) An error of judgment is not immune for prosecution. If the attorney's judgment was one that a reasonably competent attorney would not come to, the attorney can be held liable for failing to exercise a "reasonable degree of care or skill in representing his client."

The Lesson: Errors of judgment is not an absolute defense to lawyer malpractice.  It is no defense that the allegedly negligent attorney's judgment was a non-actionable tactical choice if a reasonable attorney would not come to that conclusion. 

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