DESK REFERENCE FOR ILLINOIS
LEGAL MALPRACTICE CLAIMS
By Peter A. Monahan, Linda J. Hay and Patricia M. Noonan
This Desk Reference will provide a guide to Illinois Legal Malpractice
Law. To the extent possible, it will
summarize Illinois Courts’ application of recognized legal principles to claims
filed in Illinois. Where significant, it
will also point out those areas of the law where Illinois Courts have deviated
from trends or prevailing views in other state jurisdictions, or positions
taken by the American Law Institute in the soon to be published Restatement of
the Law Governing Lawyers. We hope this
Desk Reference will provide an easy reference to assist claims representatives
in their evaluation of legal malpractice claims filed in Illinois.
The Desk Reference
discusses with Illinois courts’ application of the traditional elements of the
legal malpractice claim, followed by recognized defenses in Illinois to the
action. In preparing this Desk
Reference, we are cognizant that there are many other causes of action which
may be brought against attorneys other than the traditional legal malpractice
theory. Lawyers are subject to the
general law and theories that can be brought against the non-lawyer, such as
theories of breach of contract, fraudulent misrepresentation, breach of
fiduciary duty, intentional infliction of emotional distress, claims arising
under Federal anti-trust law, securities law, RICO, Civil Rights Act, and state
consumer protection statutes. We note
that the new Restatement of the Law Third Governing Lawyers references many of
these non-traditional legal theories in its statement of the law of civil
liability against attorneys. Its
upcoming publication could spark many more situations where claimants raise
these non-traditional legal theories in pleadings in Illinois. From the insurance carrier’s perspective,
more complaints may contain counts covered and uncovered by insurance policies
and the potential conflicts addressed in the Illinois decision of Maryland
Casualty Company v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (1976).
In order to state a
cause of action for legal malpractice under Illinois law, plaintiff must allege
facts showing: (1) the existence of an attorney-client relationship; (2) a duty
arising from that relationship; (3) a breach of that duty; (4) causation; and
(5) resulting damages. Continental
Casualty Company v. Grossmann, 274
Ill.App. 3d, 206, 210, 648
N.E.2d 175, 178 (1st Dist. 1995).
The action for legal malpractice is similar to the traditional tort
action for negligence in that both require the plaintiff to prove that the
defendant owed a duty to the plaintiff and that there has been a breach of such
duty, typically by showing that the defendant has acted without reasonable
care. The same elements of proximate
cause and damages also apply. In
addition to these traditional tort elements, a legal malpractice action applies
aspects of a breach of contract claim through the nature of the attorney-client
relationship. Through this element,
Illinois legal malpractice law borrows breach of contract principles including
those relating to duties to third parties and basic principles of contract
formation such as mutual assent. An
action for legal malpractice filed in Illinois is also subject to common
defenses applied to traditional tort actions for negligence, such as
comparative negligence.
A. The Existence of an Attorney-Client
Relationship
In order to sue an
attorney for malpractice, Illinois courts require the existence of an attorney-client
relationship. Pelham
v. Griesheimer, 92 Ill.2d 13, 440 N.E.2d 96 (1982). Illinois Courts have adopted an exception to
the requirement of an attorney-client relationship in finding that attorneys
owe a duty of care to non-clients in certain circumstances. (See subsection C for a detailed discussion
of this exception.)
1. Corporate
Clients
Under Illinois law,
an attorney for a corporate client owes his duty to the corporate entity, not
its individual shareholders, officers, or directors. See Majumdar
v. Lurie, 274 Ill.App.3d 267,
653 N.E.2d 915 (1st Dist. 1995). Similarly, a shareholder in a
closely held corporation cannot assert a legal malpractice action against the
corporation’s attorney based upon legal work on behalf of the corporation. Hager-Freeman v. Spircoff, 229 Ill.App.3d 262, 593 N.E.2d 821 (1st
Dist. 1992).
2. Prospective
Clients
Illinois case law has yet to address issues pertaining to an attorney’s
liability for malpractice based upon improper advice or inadequate advice in circumstances
where the attorney has declined the representation, or where the prospective
new client has declined to retain the firm.
The proposed Restatement of the Law, the Law Governing Lawyers, however,
may lend some guidance to how Illinois courts may rule on this issue. The Restatement has adopted the position that
a lawyer owes a duty to use reasonable care to a prospective client. (Restatement of the Law,
the Law Governing Lawyers, Tentative Draft No. 8 (March 21, 1997, Chapter 4,
Section 73(1), Comment d.)) The
American Law Institute in the Restatement has taken the position that “when a
person discusses with a lawyer the possibility of their forming a client-lawyer
relationship, and even if no such relationship arises, the lawyer may be liable
for failure to use reasonable care to the extent the lawyer advises or provides
other legal services for the person.”
(Chapter 4, Section 73, Comment d.)
3. Former
Clients/Withdrawal from Suit
An attorney has a duty to provide reasonable notice to a party when
withdrawing from representation. Thomas v. Sklodowski, 303
Ill.App.3d 1028, 1033, 709 N.E.2d 656, 659 (1st Dist. 1999). Where a court granting a motion to withdraw
has addressed the issue of the propriety of the notice to the client, a
subsequent malpractice action based on negligence in notifying the client of
the withdrawal is barred as a collateral attack on the previous Judge’s order
granting withdrawal. Thomas, 303 Ill.App.3d 1028.
A federal court in
Illinois has held that where an attorney is granted leave of Court to withdraw
from a pending action and the case is later dismissed for want of prosecution,
no attorney-client relationship exists at the time of the dismissal. Jiricko
v. Lakin and Herndon, P.C., 69 F.3d 539 (7th
Cir. 1995), cert. denied 517 U.S. 1137, 116 S.Ct. 1423 (1996).
B. Illinois Attorneys’ Duties to
Clients
1. Scope
of Duty
Illinois law
recognizes the consensual aspect of the attorney-client relationship. Many courts have cited to the principle that
the scope of an attorney’s duty to a client exists only in relation to the
representation sought by the client and undertaken by the attorney. e.g., Practical Offset,
Inc. v. Davis, 83 Ill.App.3d 566, 570, 404 N.E.2d 516 (1st Dist.
1980); Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, 75
Ill.App.3d 516, 522, 394 N.E.2d 559 (1st Dist. 1979). Very few Illinois Courts, though, have
discussed the parameters of this principle.
One Illinois Court has defined the scope of an attorney’s duty in a
transaction for the sale of a client’s business based on the client’s
communications of his goals with regard to the sale to his attorney. Schmidt, 75
Ill.App.3d 516. The Court in Practical
Offset, has
more broadly interpreted the attorney’s duty, stating it would be unrealistic
to require a specific direction from the client in the circumstances of the
case before it and therefore held the attorney’s employment was broad enough to
encompass filing certain financing statements despite the lack of direction by
the client. Practical Offset, 83 Ill.App.3d 566.
2. Agreements
to Limit the Scope of Representation
Illinois Courts have not addressed the validity of agreements between
an attorney and a client to limit the scope of representation. Such agreements have, however, been addressed
by the Restatement of the Law Governing Lawyers, which provides some guidance
as to how Illinois courts may rule on this topic. This states that the validity of such
agreements depends on the lawyer obtaining the client’s consent, after adequate
advice, and on the reasonableness of the limitation in the circumstances. (The American Law Institute, Restatement of
the Law, The Law Governing Lawyers, proposed Final Draft No. 1, Chapter 2,
Section 30.)
C. Illinois Attorneys’ Duties to Non-Clients
Illinois Courts have
allowed a non-client to plead a legal malpractice action against an attorney
only under two scenarios: (1) where the
non-client can prove the primary purpose and intent of the attorney-client relationship
was to benefit or influence the non-client third party (the third party direct
beneficiary theory); or (2) where the non-client can prove that the attorney
had voluntarily undertaken to perform a service that has foreseeable
consequences to the non-client third party and the non-client justifiably
relied on the lawyer’s undertaking. Pelham v. Griesheimer,
92 Ill.2d 13, 440 N.E.2d 96 (1982).
1. The
Third-Party Direct Beneficiary Theory
The requirement in
Illinois of the third-party direct beneficiary theory, to prove an attorney’s
duty to a non-client, is a stricter requirement than that adopted by
many other jurisdictions and the Restatement of the Law Governing Lawyers. (See Restatement of the Law Governing
Lawyers, Tentative Draft No. 8, Chapter 4, Section 73 (2)(3)). The primary difference is that Illinois
requires that the benefit to the non-client must be the primary purpose
and intent of the attorney-client relationship, whereas the Restatement and
other jurisdictions require only that the client’s intention to benefit the
non-client be “one of the primary objectives of the representation”.
Illinois Courts have often found the primary, intended beneficiary test
is met in non-adversarial circumstances where the client’s intent is expressly
indicated, e.g., where there are express beneficiaries under a Will. See Ogle v. Fuiten,
112 Ill. App.3d 1048, 445 N.E.2d 1344 (4th Dist. 1983), aff’d
102 Ill.2d 356 (1984); Simon v. Wilson, 291 Ill.App.3d 495, 684 N.E.2d
791 (1st Dist. 1997).
Illinois courts have found the test is not satisfied where the
non-client only incidentally benefited from the relationship. For example, a non-client mother could not
sue her son’s divorce lawyer where the non-client mother could not allege the
primary reason her son hired the attorney in his divorce action was to change
her status from contingent beneficiary (on the son’s employer-provided
insurance plan) to primary beneficiary. Gale v. Williams, 299 Ill.App.3d 381, 701 N.E.2d 808 (3rd
Dist. 1998). Illinois Appellate
Courts have not been uniform, though, in their application of the primary,
intended beneficiary test in circumstances where the intent and adversarial
nature of the direct-client relationship are not readily discernible. For the most part, Illinois Appellate Courts
have disallowed actions where they find the non-client’s relationship to the
client is adversarial. (See Torres v.
Divis, 144 Ill.App.3d 958, 494 N.E.2d 1227 (2nd
Dist. 1986) (attorney for incorporation of business did not owe a duty to other
non-client incorporators in creation of novation
agreement for purchase of business); First National Bank of Moline v. Califf, 193 Ill.App.3d 83, 548 N.E.2d 1361 (3rd
Dist. 1989) (attorney for borrower did not owe a duty to lender in execution of
mortgage); Schecter v. Blank, 254
Ill.App.3d 560, 627 N.E.2d 106 (1st Dist. 1993) (attorney for debtor
did not owe duty to creditors in a Chapter 11 reorganization)).
2. The Undertaking Theory
Illinois Courts have
only had one occasion to address the undertaking theory as a basis for an
attorney’s liability to a non-client. In
that case, the Court held that a buyer’s attorney in a failed stock
deal, who had sent an opinion letter to the sellers stating that he had no
reason to suspect the buyer’s representations were untrue, owed a duty to the sellers
because the buyer’s attorney undertook to render that opinion in his letter to
the sellers. The Court, however, limited
the duty to the accuracy of the materials expressed in the opinion letter. Geaslen v. Berkson, Gorov & Levin, LTD.,
220 Ill.App.3d 600, 581 N.E.2d 138 (1st Dist. 1991), aff’d
155 Ill.2d 223, 613 N.E.2d 702 (1993).
3. Theories
Adopted in Other Jurisdictions
Illinois Courts have
yet to address a third basis applied by some jurisdictions for imposing a duty
of care to non-clients, where the attorney represents a client acting in a
fiduciary capacity for the non-client, such as trustees, executors, and
guardians. These Courts, generally,
limit the lawyer’s duty in these circumstances to prevent or rectify a client’s
breach of fiduciary duty to the non-client where the breach would constitute a
crime or fraud or where the lawyer has assisted in the breach. (See, e.g., Fickett
v. Superior Court, 558 P.2d 988 (Ariz. App. Ct. 1976) (liability for
failure to use care in detecting and preventing conservator’s misappropriation
of assets of incompetent person); Morales v. Field, DeGoff,
Huppert & MacGowan,
160 Cal. Rptr. 639 (Cal. Ct. App. 1979) (lawyer for
Trustee-Executor and others had duty to disclose conflict to beneficiaries); Pizel v. Suspann,
795 P.2d 42, 803 P.2d 205 (Kan. 1990) (Settlor’s
lawyer had duty to trust beneficiaries when trust invalidated after Settlor died,); Weingarten v. Warren, 753 F. Supp. 491
(S.D.N.Y. 1990) (Trustee’s lawyer liable to beneficiary for aiding Trustee’s
conversion)).
Illinois Courts
apply the general standard of care of professionals in determining a lawyer’s
liability for malpractice. A lawyer who
owes a duty must exercise the degree of care expected from the legal
profession, i.e., expert testimony from a lawyer, is generally required to
establish the standard of care. Gray v. Hallett, 170 Ill.App.3d
660, 663, 525 N.E.2d 89 (5th Dist. 1988). Illinois Courts, except in the rare case
where the attorney’s conduct falls within the common knowledge of lay persons,
require that the standard of care be established through expert testimony. Barth v. Reagan, 139 Ill.2d 399, 564 N.E.2d 1196 (1990). Thus, the failure to present expert testimony
is usually fatal to a plaintiff’s legal malpractice action. Barth,
139 Ill.2d 399.
The defendant attorney may move for summary judgment if the plaintiff
fails to retain an expert. Brainerd v. Kates, 68 Ill. App.3d
781, 786-87, 386 N.E.2d 586 (1st Dist. 1979).
A. Illinois Case Law Distinguishes
Between Attorney Negligence and
Mere Errors of
Judgment.
Numerous Illinois
reviewing courts have cited the “error in professional judgment” rule. Under this principle, an attorney is not
liable for errors in judgment, only for failing to exercise a reasonable degree
of care and skill, even if it led to an unfavorable result for the client. e.g., Goldstein v.
Lustig, 154 Ill.App.3d 595, 507 N.E.2d 164 (1st Dist. 1987). Very few Illinois courts, however, have had
occasion to apply the rule. Only a few
Illinois reviewing courts have applied the rule to defeat an action at the
pleading stage or on summary judgment, deciding the question as a matter of
law. (Goldstein v.
Lustig, 154 Ill.App.3d 595 (1st Dist. 1987) (dismissing
complaint); O’Brien & Associates, P.C. v. Tim Thompson, Inc., 274
Ill.App.3d 472, 653 N.E.2d 956 (2nd Dist. 1995) (granting summary
judgment)). Another Illinois
Appellate decision, on the other hand, has reversed a trial court’s ruling
granting summary judgment under the error of professional judgment rule on the
basis that the question is one of fact to be determined through expert
testimony. Gelsomino
v. Gorov, 149 Ill.App.3d 809, 502 N.E.2d 264 (1st Dist. 1986). Thus, Illinois courts have yet to take the
more aggressive approach of some jurisdictions, which have held that the trial
judge should make a determination of the applicability of the rule to defeat
complaints at the pleading stage. (See Simko v. Blake, 448
Mich. 648, 532 N.W.2d 842 (1995), and cases cited therein.)
B. Ethics Rules and Establishing the
Standard of Care – The Illinois Approach
Illinois courts have
followed the majority of jurisdictions which recognize that an ethical code
violation does not constitute an implied cause of action for legal malpractice,
but evidence of ethical violations are admissible as
relevant evidence in establishing the standard of care. See Rogers v. Robson, 74 Ill.App.3d
467, 392 N.E.2d 1365 (3rd Dist. 1979), aff’d 81 Ill.2d 201 (1989). Illinois case law has yet to set forth the
manner and substantive content of admissible evidence on ethical rules, and
only one Illinois Appellate Court has found it appropriate for jury
instructions in legal malpractice cases to quote disciplinary rules. See Mayol v. Summers,
223 Ill.App.3d 794, 810, 585 N.E.2d 1176 (4th Dist. 1992). It remains to be seen whether Illinois courts
will follow the approach of the Restatement of the Law Governing Lawyers, which
states that an expert witness may rely on an ethical ruling in forming an
opinion on the standard of care and may testify as to its construction and
application to the circumstances. (Restatement of the Law Governing Lawyers, Tentative Draft No. 8,
Chapter 4, Section 74, Comment f.)
Because Illinois courts have found a violation of ethical rules not to
be a per se deviation from the standard of care, plaintiffs will
still be required to prove a breach of duty through expert testimony.
Illinois Courts
follow the general rule in legal malpractice actions that a plaintiff must
allege and prove that but for the attorney’s negligence,
the plaintiff would not have suffered damages.
Damages are never presumed, and a plaintiff in a professional
malpractice suit must prove that he sustained an actual loss by reason of his
attorney’s error. Zych v. Jones, 84
Ill.App.3d 647, 406 N.E.2d 70 (1st Dist. 1980).
A. The Case Within
a Case Methodology to Prove
the Loss of an Underlying Claim
Where the plaintiff
alleges that the malpractice of the attorney caused his lawsuit to be
prematurely terminated, due to a default judgment, a dismissal of the suit, or
the like, Illinois Courts follow most jurisdictions which use the “case within
a case” methodology to determine if the plaintiff suffered a loss. This methodology requires the plaintiff to
try the underlying lawsuit within the legal malpractice suit as part of the plaintiff’s
burden to prove proximate cause and damages.
Claire Associates by Livadis v. Pontikes, 151 Ill.App.3d 116, 122, 502 N.E.2d 1186 (1st
Dist. 1986). Illinois reviewing courts
have applied the “case within the case” requirement easily to actions alleging
the attorney failed to prosecute the client’s lawsuit, but have yet to address
how the methodology is to apply in a variety of other circumstances.
1. Litigation
Terminated by a Default Judgment
Where the client
alleges he suffered a default judgment due to his attorney’s failure to defend
a lawsuit, Illinois courts follow the majority of jurisdictions which place the
burden on the client to prove his underlying lawsuit was defensible. Albright v. Seyfarth, 176 Ill.App.3d 921, 531 N.E.2d 948 (1st
Dist. 1988). No Illinois
reviewing court has yet to address how the merits of the
underlying plaintiff’s case is to be presented to the trier of
fact.
2. Litigation
Terminated by Legal Rulings by Trial Judge
or
Appellate Tribunal
Where the outcome of
the underlying suit is hinged upon an issue of law that, in the underlying
case, would have been decided by the trial judge, Illinois Courts have not
specifically addressed whether the trial judge is to make the legal
determination or whether the determination is to be decided by a jury through
proper instructions of the law by the trial judge. Illinois reviewing courts, however, have
upheld trial judges who have themselves made the legal determination in actions
based on the attorney’s failure to perfect an appeal or present issues during
an appeal. (See J&G Restaurant,
Inc. v. Regas, 156 Ill. App.3d 834, 510 N.E.2d 17
(1st Dist. 1987); Environmental Control Systems, Inc. v. Long,
301 Ill.App.3d 612, 703 N.E.2d 1001 (5th Dist. 1998) (the issue
whether plaintiffs would have had a successful outcome if appeal had been
perfected should properly be decided by the court as a matter of law.))
3. Litigation
Terminated by Voluntary Settlement
Illinois Courts have
held that a plaintiff’s settlement of a lawsuit does not automatically bar a
subsequent legal malpractice complaint. McCarthy v. Pedersen & Houpt,
250 Ill.App.3d 166, 621 N.E.2d 97 (1st Dist. 1993). One Illinois Appellate Court has held that,
in the situation involving a settlement, that the
plaintiff must show she had to settle for a lesser amount than she could
reasonably have expected without the malpractice. Brooks v. Brennan,
255 Ill. App.3d 260, 625 N.E.2d 1188 (5th Dist. 1994). Illinois case law has yet to address many
evidentiary matters in settlement situations, such as how a plaintiff is to
show that he would have received a greater settlement, or the methodology to
determine if a plaintiff would have received a greater verdict if the case had
gone to trial. One Illinois Appellate
Court has suggested that expert testimony may be admitted under the theory that
a plaintiff would have received a greater settlement award. See Brooks v. Brennan, 255 Ill.App.3d 260.
4. Litigation Proceeds
to Adverse or Inadequate Judgment at Trial
No Illinois
reviewing court has addressed the procedure for trying a malpractice suit where
the underlying case proceeds to a claimed adverse or inadequate judgment. For instance, does the legal malpractice
claimant have the burden to retry the entire underlying case under the
traditional “case within a case” approach, or is the jury to determine whether
the claimant would have received a more favorable outcome from the original
trial transcript testimony and evidence presented to it of the alleged
errors? (See Morris v. Jetscher, 708 F.2d 1306, 1310 (8th Cir.
1983) (where a federal court held that the jury’s role is limited to deciding
whether the evidence of negligence and the probable results of that negligence
showed that the original jury would not have found against the defendant.)) Although Illinois courts have yet to address
these issues, Illinois courts have recognized that a plaintiff may plead a
cause of action, asserting damages from an adverse judgment or inadequate
judgment based upon errors committed by the attorney during a trial. Segall v. Berkson, 139 Ill.App.3d 325, 487 N.E.2d 752 (4th
Dist. 1985); Gelsomino v. Gorov, 149 Ill.App.3d 809, 502 N.E.2d 264 (1st
Dist. 1986).
B. Theory of Loss of Chance
Some jurisdictions,
as well as the Restatement of the Law Governing Lawyers, have stated that in
appropriate circumstances, a plaintiff may recover for his or her “loss of
chance” where he can establish that his lawyer deprived him of a substantial
chance of prevailing but, due to the malpractice, the results of the previous
trial cannot be reconstructed. (See
Restatement of the Law Governing Lawyers, Tentative Draft No. 8, Section 75,
Comment b; see also Singleton v. Stegall, 580
So.2d 1242 (Miss. 1991)). Illinois case
law thus far has rejected the argument of a “loss of chance” theory to satisfy
a plaintiff’s burden to prove proximate cause and damages in a legal
malpractice action. Sheppard
v. Krol, 218 Ill.App.3d 254, 578 N.E.2d 212 (1st
Dist. 1991).
C. Collectibility
of the Underlying Judgment
1. Collectibility is Plaintiff’s Burden
Illinois case law
requires a plaintiff as part of his prima facie burden to prove
proximate cause to prove that any judgment against the underlying defendant in
his lost lawsuit would have been collectible against a solvent underlying
defendant. Sheppard v. Krol, 218 Ill.App.3d 254, 578 N.E.2d 212 (1st
Dist. 1991); Nika v. Danz,
199 Ill.App.3d 296,
556 N.E.2d 873 (4th Dist. 1990); Goldzier
v. Poole, 82 Ill. App. 469, 472 (1898).
Thus far, Illinois courts have uniformly accepted the rule that it is
plaintiff’s burden to prove collectibility, refusing
to follow some jurisdictions and the Restatement of the Law Governing Lawyers
which have stated that uncollectibility of a judgment
should be raised and proved by the defendant attorney as an affirmative
defense. (See Jourdain
v. Dineen, 577 A.2d 1304 (ME. 1987); Restatement
of the Law Governing Lawyers, Tentative Draft No. 8, Section 75, Comment b
(adopting the position that the defendant lawyer bears the burden of coming
forward with evidence of uncollectibility, although
the burden of persuading the jury as to collectibility
remains upon the plaintiff.))
2. The
Bankruptcy Situation
Where the underlying
defendant has filed for bankruptcy, a determination may have to be made whether
there would have been any recoverable damages in the form of liability
insurance or other non-bankruptcy assets.
This may involve a determination whether the bankruptcy judge would have
allowed the tort claimant relief from the automatic stay provisions of the
bankruptcy code. A court in a bankruptcy
proceeding is not obliged to grant a relief from the stay simply because the
debtor is protected by liability insurance coverage. (See 9 AmJur 2nd
Bankruptcy, Section 1506). If it can be established that the underlying action
was barred by bankruptcy in that a relief from the stay would not have been
obtainable, the malpractice action against the attorney may be barred as uncollectible, or in the alternative, damages would be
limited to available insurance coverage or other assets not seized by the
trustee in bankruptcy.
3. Monetary Judgment or
Award Against the Client-Defendant
An issue similar to collectibility may arise in situations where a client,
named as a defendant in the underlying action, brings a malpractice action
against his attorney alleging that because of the attorney’s negligence, a
monetary judgment was awarded against him.
Is the malpractice plaintiff required to prove that he has paid the
judgment in order to prove actual damages, or is the mere fact of a judgment
sufficient to show actual damages? Like
many jurisdictions, Illinois courts have not squarely addressed the issue. One Illinois Appellate Court allowed the existence
of two unsatisfied judgments against the former client to suffice as evidence
of actual damages. Gruse
v. Belline, 138 Ill.App.3d 689, 486 N.E.2d 398 (2nd
Dist. 1985). However, this Appellate
Court recognized that other evidence may be appropriate in determining the
“actual damages” sustained by the former client. Gruse, 138 Ill.App.3d 689.
Thus, it is an open question whether the defendant attorney may present
evidence of the underlying defendant’s bankruptcy, actual insolvency, or the
existence of depleted assets, limited liability insurance coverage, or other
competent evidence to determine the loss actually sustained.
D. Premature Actions
Several Illinois
cases have cited the principle that a client cannot suffer actual damages as a
result of his attorney’s conduct where the underlying claim has yet to be
resolved. See Bartholemew
v. Crockett, 131 Ill.App.3d 456, 475 N.E.2d 1035 (1st Dist.
1985); Farm Credit Bank of St. Louis v. Gamble, 197 Ill.App.3d 101, 554
N.E.2d 779 (3rd Dist. 1990).
For example, where an attorney failed to give a statutory notice of a
claim against a Board of Trustees of the University of Illinois, the court held
that the malpractice suit was premature inasmuch as the action against the
Board’s employee was still viable, even though the suit against the Board
itself was barred. Bartholemew,
131 Ill.App.3d 456.
An Illinois Court found a legal malpractice action to be premature where
the complaint alleged the attorney’s negligent tax advice resulted in a
disallowance of a deduction by the IRS and a notice of deficiency issued by the
IRS. The Court reasoned that the
issuance of the notice of deficiency did not establish that the client had
suffered a loss since the client’s tax liability had yet to be determined in
the tax court. Bronstein v. Kalcheim and Kalcheim, Ltd.,
90 Ill.App.3d 957, 414 N.E.2d 96 (1st Dist. 1980). Further, even where the former client has
been sued by a third party, unless the malpractice is plainly obvious, the
action is premature until the entry of an adverse judgment. Lucey v. Law Offices of Pretzel & Stouffer, 301 Ill.App.3d
349, 703 N.E.2d 473 (1st Dist. 1998).
E. Condition v. Cause Analysis for
Intervening Causes
Illinois general
negligence case law’s analysis of intervening causes deviates somewhat from
courts in other jurisdictions and the Restatement of the Law of Torts. Under Illinois’ general negligence law, where
the actor’s negligence does nothing more than create a condition which makes
the injury possible, and that condition, by subsequent act of a third party,
causes the injury, the two acts are not concurrent and the condition will not
be the proximate cause of injury. Boylan
v. Martindale, 103 Ill.App.3d 335, 431 N.E.2d 62 (2nd Dist.
1982); Lane v. City of Harvey, 178 Ill.App.3d 270, 533 N.E.2d 75 (1st
Dist. 1988).
F. Application to the Successor Attorney
Scenario
Illinois courts have
applied this analysis in legal malpractice cases to the following
scenarios. The proximate cause chain may
be broken where plaintiffs sue their former attorneys after hiring a successor
attorney where the successor attorney had an opportunity to cure the error of
the former attorney or to preserve the case.
Peters v. Barrett, Twomey, Morris &
Broom, 190 Ill.App.3d 709, 546 N.E.2d 1099 (5th Dist. 1989); Land
v. Greenwood, 133 Ill.App.3d 537, 478 N.E.2d 1203 (4th Dist. 1985);
see also McGee v. Danz, 261 Ill.App.3d 232,
633 N.E.2d 234 (4th Dist. 1994); Garrett v. Lawyer’s Inc.,
273 Ill.App.3d 545, 653 N.E.2d 48 (1st Dist. 1995). Where a plaintiff discharged his attorney at
the time his cause of action was still viable and hired another attorney who
failed to take appropriate measures to save the plaintiff’s case, the former
attorney was not liable because the successor attorney’s failure to take action
was an intervening cause which broke the chain of causation as to the former
attorney. Land, 133 Ill.App.3d 537.
Where a client’s first attorney, who filed a defective financial
statement, merely created a condition making it possible that his clients would
be found to be unsecured creditors in bankruptcy proceedings, the successor
attorney’s failure to file continuation statements broke the chain of legal
causation and constituted the independent intervening cause of the plaintiff’s
damages. Peters, 190 Ill.App.3d 709.
Illinois Courts follow the rule that damages are measured by the amount
that the client would have recovered but for the attorney’s negligence. Zych v. Jones, 84 Ill.App.3d 647, 406 N.E.2d 70 (1st
Dist. 1980). As set forth in the
previous section on proximate cause, where a claimant is alleging the loss of
an underlying judgment, this requires proof of viability of the claim and collectibility of the underlying judgment. See supra.
A. Recovery of Non-Economic Damages Such
as Emotional Distress
Illinois case law
has cited the principle that damages in a legal malpractice action are damages
are for pecuniary or monetary loss. Jackson
Jordan v. Leydig, 199 Ill.App.3d 728, 577 N.E.2d
525 (1st Dist. (1990), rev’d on other grounds 158 Ill.2d 240,
633 N.E.2d 627; Farm Credit Bank v. Gamble, 197 Ill.App.3d 101, 554
N.E.2d 779 (1st Dist. 1990).
In the past, Illinois has followed a general rule that a plaintiff
alleging legal malpractice or breach of a fiduciary duty by an attorney was not
entitled to recover for emotional distress, as a result of or caused by the
legal handling of the underlying case, because it was not a monetary loss. If emotional distress damages, however, were
an appropriate element of damages in the underlying case, they would be an
element of damages in that manner. See Suppressed
v. Suppressed, 206 Ill.App.3d 918, 565 N.E.2d 101 (1st Dist.
1990). More recently, an Illinois
Appellate Court held that a valid claim existed for damages for emotional distress resulting from a plaintiff’s loss of custody and
visitation of his children in a divorce proceeding. Person v. Behnke, 242 Ill. App.3d 933, 611 N.E.2d 1350 (4th
Dist. 1993). Another Illinois
Appellate Court held that in certain situations, such as where the attorney had
an improper sexual relationship with a client, the client could recover for
emotional distress. Jane
Doe v. John Roe, 289 Ill.App.3d 116, 681 N.E.2d 640 (1st
Dist. 1997). It remains to be
seen whether these recent decisions will be found to be limited to their unique
factual circumstances.
B. Recovery of Loss of Liberty –
Malpractice Against the
Criminal Defense Attorney
Illinois has adopted
the proposition that the liberty of a guilty criminal is not a legally
protected interest under Tort Law.
Therefore, where a legal malpractice action arises from the conviction
of a criminal defendant allegedly due to ineffective assistance of counsel, the
defendant must prove his actual innocence to recover. Moore v. Owens, 298
Ill.App.3d 672, 698 N.E.2d 707 (5th Dist. 1998); Levin v. Kling,
123 F.3d 580 (7th Cir. 1997).
An acquittal on retrial alone will not satisfy the defendant’s burden;
the defendant must prove his innocence independently in the civil trial. Moore, 298
Ill.App.3d at 674.
C. Punitive Damages
1. Statutory
Prohibition Against Punitive Damages
in Legal Malpractice Actions
Illinois has a
statute which expressly prohibits the recovery of punitive damages in legal
malpractice cases. (735 ILCS 5/2-1115). Illinois courts interpreting this statutory
provision uniformly agree that it absolutely prohibits the recovery of punitive
damages in actions asserting claims for legal malpractice. Illinois courts, however, have not decided
whether this statute can be applied to causes of actions against attorneys
other than those for legal malpractice.
One Illinois Appellate Court (which was defended at trial and on appeal
by Alholm, Monahan, Keefe & Klauke, L.L.C.) specifically held that, pursuant
to the statutory bar, punitive damages cannot be recovered even if the legal
malpractice action asserted intentional fraud or willful and wanton conduct, on
the basis that the conduct arose from the original acts of professional
malpractice. Calhoun
v. Rane, 234 Ill. App.3d 90, 599 N.E.2d 1318 (1st
Dist. 1992). Another Illinois
Appellate Court also broadly interpreted the statute “to encompass any acts
arising out of the provision of legal services.” Safeway Insurance
Company v. Spinak, 267 Ill. App.3d 513, 641
N.E.2d 834 (1st Dist. 1994).
However, one Appellate Court, has construed the statutory language to be
limited to allegations of legal malpractice, and allowed the pleading of
punitive damages against an attorney for an action alleging common law
fraud. Cripe v. Leiter, 291 Ill.App.3d 155, 683 N.E.2d 516 (3rd
Dist. 1997). The Illinois Supreme
Court has yet to resolve the question.
2. Punitive Damages
Recoverable as Damages in the Underlying
Lost Cause of Action
Illinois reviewing
courts have yet to address whether the Illinois statutory prohibition on
punitive damages in legal malpractice actions applies to prohibit a malpractice
plaintiff, who claims his attorney’s negligence resulted in a lost cause of
action, from recovering punitive damages which would have been recoverable in the
underlying lawsuit. Malpractice
plaintiffs continue to argue before trial courts that the statutory bar is
inapplicable to these circumstances because the underlying punitive damages are
actually compensatory damages in the legal malpractice case. Malpractice
defendants continue to argue that the purpose for punitive damages is to
prevent the actual wrongdoer (the underlying defendant) from doing further
harm, and that goal is not met by asserting punitive damages against the
lawyer, not the actual wrongdoer.
Further, assessment of punitive damages must be based on the assets of
wrongdoer, and thus, would not be related to the attorney’s ability to
pay. In the absence of any statutory
provision addressing the issue, several other jurisdictions have allowed
malpractice plaintiffs recovery for punitive damages in the underlying action,
reasoning that the underlying punitive damages are actually compensatory
damages in the legal malpractice case.
See e.g., Elliott v. Videan, 791 P.2d
639 (Ariz. Ct. App. 1989); Hunt v. Dresie, 740
P.2d 1046 (Kan. 1987). The Restatement
of the Law Governing Lawyers, however, has taken a contrary position to these
jurisdictions, stating that there should be no recovery because it is
inconsistent with the punitive and deterrent purposes of punitive damage
awards. (Restatement of the Law
Governing Lawyers, Tentative Draft No. 8, Section 75, Comment h.)
3. Statutory
Pleading Requirements for Punitive Damages
In cases where a plaintiff is not barred by statute from recovering
punitive damages, a plaintiff is required to follow standard punitive damage
pleading requirements which are governed by statute in Illinois. This Illinois statute prohibits a plaintiff
from pleading punitive damages in a complaint without prior leave of court, and
only after a hearing in which the Court finds there is a reasonable likelihood
of the plaintiff proving facts at trial sufficient to support the award. This statute further provides a plaintiff is
not allowed to seek an amendment to add punitive damages 30 days following the
close of discovery. (735
ILCS 5/2-604.1). This statute,
however, applies only to “actions on account of bodily injury or physical
damage to property.” Since damages in a
legal malpractice action are for pecuniary interests, arguably this statute
would not apply. Illinois reviewing
courts have yet to address whether this statute applies where the claimant is
seeking punitive damages which could have been recovered in his underlying
claim seeking damages for “bodily injury” or “physical damage to
property.”
D. Pre-judgment Interest
The Illinois
Appellate Court has ruled that in actions sounding in tort for legal
malpractice, there is no recovery for pre-judgment interest
on the ground that Illinois general case law does not allow the recovery of
pre-judgment interest in negligence actions.
Wilson v. Cherry, 244 Ill.App.3d 632, 612
N.E.2d 953 (4th Dist. 1993).
Illinois courts have not addressed the issue whether pre-judgment
interest would be available if the plaintiff’s action sounded in contract
rather than in tort. However, Illinois
courts generally recognize that pre-judgment interest is only recoverable if
statutory authority exists such as under 815 ILCS 205/2, where creditors are
allowed to receive a rate of 5% percentum per annum
for all monies after they become due on any bond … or other instrument of
writing …”. Illinois general case law
also allows a court hearing an equitable claim in its discretion to award
pre-judgment interest. See Estate of Wernick, 127 Ill.2d 61, 535
N.E.2d 876 (1989). Thus, if a claim
against an attorney is equitable in nature, such as a breach of fiduciary duty
claim, the plaintiff may be entitled to pre-judgment interest.
E. Attorneys’ Fees
Illinois case law prohibits a plaintiff from recovering as part of his
(or her) malpractice damages attorneys’ fees incurred in the prosecution of the
legal malpractice action. Sorenson v. Fiorito, 90 Ill.App.3d
368, 413 N.E.2d 47 (1st Dist. 1980). Illinois case law does allow the malpractice
plaintiff to recover attorneys’ fees that were incurred by the plaintiff to
rectify his former attorneys’ malpractice.
National Wrecking Co. v. Coleman, 139
Ill.App.3d 979, 487 N.E.2d 1164 (1st Dist. 1985); Sorenson,
90 Ill.App.3d 368.
A. Illinois Statute of Limitations for
Attorney Malpractice Actions
Prior to 1991, the statute of limitations for attorney
malpractice actions was five years from the time the person bringing the action
knew or reasonably should have known of their injury. (Ill. Rev. Stat. Ch. 110,
par. 13-205.) The current
statute of limitations, effective January 1, 1991, provides for a two-year
statute of limitations from the time the person bringing the action knew or
reasonably should have known of the injury for which damages are sought. It
further provides that no action may be commenced more than six years after the
date on which the act or omission occurred.
(735 ILCS 5/13-214.3) This
statute of limitations applies to various theories brought against attorneys in
addition to the legal malpractice theory.
It broadly applies to “an action for damages based on tort, contract, or
otherwise against an attorney arising out of an act or omission in the
performance of professional services **.”
(735 ILCS 5/13-214.3)
1. Application of the
Discovery Rule
The Illinois Supreme
Court resolved a previous conflict among Illinois Appellate Courts whether an
application of the discovery rule required the Court to look to whether there
was reasonable time remaining in the limitations period. The Illinois Supreme Court has ruled that the
discovery rule is to be applied regardless of when discovery occurs
since the discovery rule delays the commencement of the statute of limitations
until the plaintiff knows or reasonably should know that she has been injured
and that her injury has been wrongfully caused.” Hermitage Corporation v.
Contractors Adjustment Company, 166 Ill.2d 72, 651 N.E.2d 1132 (1995).
2. Reassurances
Made By Attorney Equitably Estopps Attorney
From
Raising Defense
The doctrine of
equitable estoppel bars a legal malpractice defendant
from raising a statute of limitations defense where the attorney reassures the
client of his case’s legal foundation, resulting in a delay in filing
suit. Environmental
Control Systems v. Long, 301 Ill.App.3d 612, 703 N.E.2d 1001 (5th
Dist. 1998); Jackson Jordan, Inc. v. Leydig,
158 Ill.2d 240, 633 N.E.2d 627 (1994).
When a defendant attorney pleads the statute of limitations defense, the
plaintiff is required to amend the complaint to specifically allege facts
supporting the discovery rule in order to provide an affirmative matter to
create a factual issue. Ogle v. Hotto, 273 Ill. App.3d
313, 652 N.E.2d 815 (5th Dist. 1995).
3. Illinois Has
Rejected the Continuous Representation Rule
Illinois Courts have
rejected the sole-called “continuous representation rule,” which tolls the
running of the statute of limitations until the attorney ceases to represent
the client. Serafin v. Seith, 284 Ill.App.3d 597, 672 N.E.2d 302 (1st
Dist. 1996); Witt v. Jones & Jones Law Offices, 269 Ill.App.3d 540,
646 N.E.2d 23 (4th Dist. 1995). This position is contrary to the position
taken by the Restatement of the Law Governing Lawyers, which states that the statute
of limitations does not run while the lawyer continuously represents the client
in the matter in question or a substantially related matter. (Restatement of the Law
Governing Lawyers, Tentative Draft No. 8, Section 76, Comment g.)
4. An Appeal Does Not Toll the Statute of Limitations
The Illinois Supreme
Court has held that the statute of limitations commences at the time of an
adverse judgment and is not tolled while plaintiff appeals the
underlying judgment. Hermitage Corp.,
166 Ill.2d 72; see also Zupan v. Berman,
142 Ill.App.3d 396, 491 N.E.2d 1349, 1352 (1st Dist. 1986).
5. Special Statute of
Limitations for Injuries Occurring After
the Death of a Client
Section 13-214.3(d)
provides that when an injury caused by the act or omission does not occur until
the death of the person for whom the professional services were rendered, the
action may be commenced within two years after the date of the person’s death
unless letters of office are issued or the person’s Will is admitted to probate
within that two year period. In the
latter circumstances, the action must be commenced within the time for filing
claims against the estate or a petition contesting the validity of the Will,
whichever is later. (735 ILCS
5/13-214.3(d)) In one case interpreting
this statute, a complaint alleged that the attorney was negligent in drafting
and executing a Will. The decedent died,
and the court found the cause of action accrued when the plaintiff incurred
attorneys’ fees, after her husband’s death, to defend against the petition
contesting the Will. Plaintiff, therefore, was required to bring suit within
the time periods set forth in Section 13-214.3(d). Palmros
v. Barcelona, 284 Ill.App.3d 642, 672 N.E.2d 1245 (2nd Dist.
1996); see also Zelenka v. Krone, 294 Ill.App.3d 248, 689 N.E.2d 1154 (3rd
Dist. 1998).
6. Accrual of a Cause
of Action for Legal Malpractice
The Illinois Supreme
Court has yet to definitively rule when a cause of action for legal malpractice
accrues. The accrual date for a cause of
action for legal malpractice in Illinois is important because: (1) it is necessary to determining whether
the two year or five year statute of limitations applies; (2) it may be
necessary to determine whether the special limitations period of Section
13-214.3(d) applies; and (3) it may be necessary to determine whether the
statute of repose applies. Most recent
Appellate Court decisions have agreed that the cause of action for legal
malpractice does not accrue at the time of the negligent act, but when the plaintiff
knows or reasonably should know of the injury and its wrongful cause. Goran v. Glieberman, 276 Ill.App.3d
590, 659 N.E.2d 56 (1st Dist. 1995); Goodman v. Harbor Market,
Ltd., 278 Ill.App.3d 684, 663 N.E.2d 13 (1st Dist. 1995).
Many cases have addressed
specific circumstances where application of the Repose provision left little
time to file suit after the effective date of the new statute in January,
1991. An Illinois Appellate Court ruled
that where the application of the six year statute of repose (in the new
statute of limitations) does not provide a reasonable amount of time between
the 1991 effective date of the statute and the date on which the plaintiff’s
claim would be barred, then the plaintiffs will be allowed a reasonable time
within which to file their actions. Goodman,
278 Ill.App.3d 684.
Thus, in Goodman, where the alleged negligent act occurred in
April 1985 and the repose period would have expired six years later in April
1991, the plaintiff only had three months after the effective date of the 1991
statute of repose to file the suit. The Goodman
court held this was not a reasonable time within which to file the action and
allowed the plaintiff six more years after the effective date of the repose
period, or until January 1, 1997, in which to file the suit. (Since the Appellate Court has construed a
reasonable period of time as six years after the repose period, it is arguable
that all claims arising from acts or omissions accruing before 1991 should
automatically be barred on January 2, 1997.)
A Federal District Court held that 2-1/2 years from the date the statute
of repose became effective to the date of the expiration of the repose period
was a reasonable period of time in which to discover the injury and file the
lawsuit. Kaplan v. Shure Brothers, Inc., 1996 U.S. Dist. Lexis 10208, WL
529373 (N.D. Ill. 1996). Another
Illinois Appellate Court has found that a malpractice claim was barred by the
six year statute of repose where there was less than two years from the date
the statute of repose became effective to the date of the expiration of the
repose period. Serafin v. Seith, 284 Ill.App.3d 577, 672 N.E.2d 302 (1st
Dist. 1996).
B. Releases Executed Between Attorney
and Client
A release executed
between an attorney and a former client represented by independent counsel in
settlement of a fee dispute is enforceable.
Weisblatt v. Colky, 265 Ill.App.3d 622, 637
N.E.2d 1198 (1st Dist. 1994).
In these circumstances, no fiduciary relationship exists with regard to
the transaction the attorney and former client were litigating and which the
former client was represented by independent counsel. Weisblatt, 265 Ill.App.3d 622.
Illinois is the only
jurisdiction that has a reported decision holding that a release prospectively
limiting liability of an attorney with regard to the attorney’s representation
of the client, entered into when the former client was represented by
independent counsel, is enforceable and provides a basis to dismiss a
subsequent legal malpractice action. Gavery
v. McMahon, 283 Ill.App.3d 484, 670 N.E.2d 822 (1st Dist. 1996).
C. Defense of Unclean Hands
Illinois courts
recognize the application of the doctrine of in pari
delicto to legal malpractice actions. This defense bars a plaintiff from recovering
from a defendant for a wrong in which the plaintiff’s conduct was also
seriously culpable. Mettes v. Quinn, 89
Ill.App.3d 77, 411 N.E.2d 549, 551 (3rd Dist. 1980); Robbins v. Lasky, 123 Ill.App.3d 194, 462 N.E.2d 774 (1st
Dist. 1984). Thus, in some
circumstances, Illinois courts have held that an attorney will not be liable
for legal malpractice, even when he or she has provided negligent advice, if
the client uses this advice to commit a fraud.
Makela v. Roach, 142 Ill.App.3d 827, 492 N.E.2d 191 (2nd
Dist. 1986); Robbins, 123 Ill.App.3d 462.
D. Plaintiff’s Comparative Fault as a
Defense to the Legal Malpractice Action
1. Application of Illinois General
Statute to Legal Malpractice Actions
Illinois’ general statutory provisions are applicable “in all actions
on account of bodily injury or death or physical damage to property, based on
negligence, or product liability, based on strict tort liability.” These provisions provide that a plaintiff
“shall be barred from recovering damages if the trier of fact finds that the
contributory fault on the part of the plaintiff is more than 50% of the
proximate cause of the injury or damage for which recovery is sought” but if
the contributory fault on the part of the plaintiff is not more than 50% of the
proximate cause of the injury or damage then “any damages allowed shall be
diminished in the proportion to the amount of fault attributed to the
plaintiff.” (735 ILCS 5/2-1116)
In the legal malpractice context, Illinois Courts have held that
damages from legal malpractice result in pecuniary injuries to intangible
property interests of the former client.
Glass v. Pitler, 276
Ill.App.3d 344, 657 N.E.2d 1075, 1079 (1st Dist. 1995), citing to Gruse v. Bellini,
138 Ill.App.3d 689, 486 N.E.2d 398 (2nd Dist. 1985). Although the Illinois’ contributory
negligence statute in Section 2-1116 of the Illinois Code of Civil Procedure
does not refer to “pecuniary injuries,” Illinois decisions have supported the
position that the statute is applicable to legal malpractice actions. Nika v. Danz, 199 Ill.App.3d 296, 556
N.E.2d 873 (4th Dist. 1990).
Thus, the Illinois Appellate Court has held that a legal malpractice
case is no different from an ordinary negligence case where the affirmative
defense of contributory negligence is available. Nika, 199 Ill.App.3d 296.
2. Proving
Plaintiff’s Contributory or Comparative
Fault in the
Underlying Lawsuit
Under the “case within a case” methodology, the defendant attorney
steps into the shoes of the underlying defendant and may raise all defenses
available to the underlying defendant.
See Nika v. Danz,
199 Ill.App.3d 296, 556 N.E.2d 873 (4th
Dist. 1990). The plaintiff’s
contributory negligence with regard to his (or her) actions in the underlying
claim must be pled as an affirmative defense.
E. Reducing the Damages
in the Malpractice Case by Collateral Sources
Illinois Courts have not squarely addressed the issue of whether the
generally applicable rules to the underlying case, relating to the reduction of
damages based on collateral sources, applies when plaintiff is proving the
underlying claim in the context of a legal malpractice suit. Because of this uncertainty, legal
malpractice defendants may try to claim that the underlying damages would have
been reduced under theories that would have applied to the underlying case.
1. Reduction
of Medical Charges from Medical Malpractice Verdict.
An Illinois Appellate Court has ruled that in an underlying medical
malpractice claim, the malpractice award should not be reduced by Section
5/2-1205 of the Illinois Code of Civil Procedure, which allows the reduction of
a medical malpractice judgment by 100% of the medical, nursing or caretaking charges associated with the claim. The Court
rejected the defendant attorney’s argument that the malpractice award should be
reduced according to the provisions in Section 2-1205 and held that this
section applied only to medical malpractice cases not to legal malpractice
cases. Bloome v. Wiseman, et al.,
279 Ill.App.3d 469, 664 N.E.2d 1125 (5th Dist. 1996).
2. Reduction of Workers’ Compensation
Benefits Received by Plaintiff
No Illinois Appellate Court has definitively ruled whether settlement
proceeds received by a plaintiff from a workers’ compensation action should be
reduced from the damages plaintiff receives in a legal malpractice action
asserting the loss of a common law negligence claim. Plaintiffs commonly argue in the trial courts
that reduction of damages would result in the plaintiff having to pay twice for
the workman’s compensation settlement since the employer’s worker’s
compensation lien would attach to the judgment in the legal malpractice
action. This should no longer be a
viable argument. Illinois Appellate Courts have held that a workers’ compensation
lien cannot attach to a judgment in a legal malpractice action. Woodward v. Pratt, Bradford & Tobin,
P.C., 291 Ill.App.3d 807, 684 N.E.2d 1028 (5th Dist. 1997); Eastman
v. Messner, 302 Ill.App.3d 526, 707 N.E.2d 49 (1st
Dist. 1998), aff’d 188 Ill.2d 404, 721 N.E.2d 1154; Mosier, III v. Danz, 302 Ill.App.3d 731, 706 N.E.2d 83 (4th
Dist. 1999).
Copyright©2000 Peter
A. Monahan, Linda J. Hay, Patricia M. Noonan and Alholm, Monahan, Keefe &
Klauke, L.L.C. Any other use, publication, copying or dissemination without the
written permission of Alholm, Monahan, Keefe & Klauke, L.L.C.
is prohibited.