An attorney-client relationship is fiduciary in nature and requires a high degree of trust and fidelity. Legal malpractice may occur when an attorney's negligent action, inaction (failing to file a lawsuit within the statute of limitations period), or advice causes the client damages. In certain situations, the attorney may also be liable to an intended beneficiary or a third party. The recovery may include the money the client would have obtained but for the former attorney's breach of duty, legal fees paid to the former attorney, or the amount of judgment imposed against the client due to the former attorney's breach of the duty of care.
To prove a claim of legal malpractice, the former client must plead and prove that:
- An attorney-client relationship existed
- The attorney breached the duty of care to the client
- That the attorney's breach proximately caused the client's injury
- The client suffered a pecuniary (financial) injury as a result of the wrongful conduct of the attorney. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 225-26 (2006).
- An attorney may be liable for failing to comply with filing deadlines, mishandling client funds, engaging in unfair dealing, failing to follow reasonable client instructions, breaching the duties of loyalty or confidentiality, and failing to charge a client in accordance with the fee agreement, or fraud.
The Illinois Supreme Court stated this duty (the duty of competence) quite succinctly in 1870. As a professional, the attorney owes the client a duty of due care. In 1870, the Illinois Supreme Court described the attorney’s duty of care, or duty of competence, in this fashion:
Where a person adopts the profession of the law, if he assumes to exercise the duties in behalf of another, for hire and reward, he must be held to employ in his undertaking, a reasonable degree of care and skill. If injury results to the client, for the want of such a degree of reasonable care and skill, he must respond in damages, to the extent of the injury sustained. This rule commends itself to our sense of right, as a wholesome and salutary one, and one that is necessary to the protection of that large class of persons who must of necessity submit their interests to the keeping of persons who hold themselves out to the public as learned and skilled in the law. Stevens v. Walker, 55 Ill. 151 (1870).
Other formulations of the duty of care are in recent cases:
See Owens v. McDermott, Will & Emery, 736 N.E.2d 145, 155 (Ill. App. 2000) which holds that to properly "state a cause of action for legal malpractice a plaintiff must allege in his complaint:
"(1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause establishing that "but for" the attorney's negligence, the plaintiff would have prevailed in the underlying action; and (4) damages," quoting Serafin v. Seith,284 Ill.App.3d 577, 586-87, 219 Ill.Dec. 794, 672 N.E.2d 302 (1996).
The Illinois Rules of Professional Conduct apply to the conduct of lawyers.
Lawyers are also subject to the Illinois Rules of Professional Conduct of 2010 (found at www.iardc.org) set forth by the Illinois Supreme Court. Those rules govern the conduct of lawyers and require the lawyer to be competent, to make certain disclosures involving legal fees to clients, to keep client confidences secret and to tell the truth to third parties and to courts. A violation of an Illinois Rule of Professional Conduct is not, by itself, grounds for a lawsuit against a lawyer. However, violations of the Rules of Professional Conduct are relevant evidence that the lawyer breached the duty of care in legal malpractice cases. See Rogers v. Robson, 74 Ill. App. 3d 467, 473, 392 N.E.2d 1365 (1979) (“It is true that the present action is one for malpractice and not a disciplinary proceeding, but it would be anomalous indeed to hold that professional standards of ethics are not relevant considerations in a tort action, but are relevant in a disciplinary proceeding.”) A Massachusetts court stated: “ if the plaintiff can demonstrate that a disciplinary rule was intended to protect one in his position, a violation of that rule may be some evidence of the attorney’s negligence.” Fishman v. Brooks, 396 Mass. 643, 649, 487 N.E.2d 1377 (1986).Exceptional Service in Malpractice Cases
Edward X. Clinton, Jr. has successfully prosecuted numerous malpractice cases against attorneys and has served as an expert witness for plaintiffs in legal malpractice cases. He has also defended attorneys accused of malpractice.The Case-Within-a-Case Requirement in the Litigation Context
One of the more challenging aspects of legal malpractice actions is proving that the lawyer’s conduct caused the client’s financial injury.
As the Illinois Supreme Court has noted, “the theory underlying a cause of action for legal malpractice is that the plaintiff client would have been compensated for an injury caused by a third party, absent negligence on the part of the client’s attorney.” Tri-G v. Burke, Bosselman & Weaver, 856 N.E.2d 389, 222 Ill. 2d 218 (2006).
In the Tri-G case, Tri-G alleged that the defendant law firm had failed to diligently prosecute a claim against another party, Elgin Federal. The Court held: “where the alleged legal malpractice involves litigation, no actionable claim exists unless the attorney’s negligence resulted in the loss of an underlying cause of action.” To satisfy this requirement, the plaintiff must introduce proof at trial that it would have won the underlying case. This means that the legal malpractice plaintiff must prove the underlying claim again in the legal malpractice context.
In Tri-G, the plaintiff established the case within a case by introducing evidence that the defendant law firm was not prepared for trial and that, had the law firm been properly prepared, plaintiff would have won the case and collected damages. This satisfied the case within a case requirement.
Here are some specific types of litigation malpractice cases:A. Failure to File a Case Within the Limitations Period
Illinois has always held that a lawyer who accepts a representation before the statute of limitations has run is negligent if he fails to file the case on time. See House v. Maddox, 46 Ill. App. 3d 68 (Ill. App. 1977). See also Kohler v. Woolen, Brown & Hawkins, 15 Ill. App. 3d 455, 304 N.E.2d 677 (Ill. App. 4th Dist. 1973).B. Failure to Prosecute a Case
A lawyer who accepts a representation, but fails to diligently prosecute the client’s case is liable to the client. The leading case is Stevens v. Walker, 55 Ill. 151 (1870). In Stevens, the defendant attorneys failed to diligently prosecute the client’s lawsuit, which was ultimately dismissed by the court for want of prosecution. The court explained: “the defendants accepted the retainer, and undertook the collection of the claim, but did not prosecute the same in a proper, skillful and diligent manner, whereby the claim became wholly lost to plaintiff.” The court described the omission as “an act of unreasonable neglect, or perhaps, to speak more accurately, of culpable forgetfulness on their part.” Id. Thus, under Illinois common law the lawyer has had a duty to diligently prosecute claims on behalf of clients since 1870.
A subset of the failure to prosecute cases arises in the family law context. The plaintiff alleges that his former divorce lawyer committed malpractice by failing to take discovery concerning the assets of the opposing party. Weisman v. Schiller DuCanto & Fleck, 733 N.E.2d 818, 314 Ill. App. 3d 577 (Ill. App. 2000).C. Failure to Convey a Settlement Offer to the Client
In First National Bank of LaGrange v. Lowrey, 872 N.E.2d 447, 375 Ill. App. 3d 181 (1st Dist. 2007), the appellate court affirmed a judgment of $1.0 million against a medical malpractice attorney who failed to tender a settlement offer of $1.0 million to his client. Lowrey represented the plaintiffs in a medical malpractice case. Prior to the trial the defendants offered $1.0 million to settle the case. Lowrey rejected the offer in the judge’s chambers and, according to plaintiff, did not communicate the offer to his client. The trial resulted in a not guilty verdict for the defendants. When plaintiff learned of the rejected offer, she sued for legal malpractice. Thus, it is advisable to keep a written record that a settlement offer was made and that it was conveyed to the client.D. Failing to Appeal an Adverse Judgment
Illinois courts have recognized that a failure to appeal an adverse judgment constitutes legal malpractice. Governmental Interinsurance Exchange v. Judge 221 Ill. 2d 195, 199, 850 N.E.2d 183, 186-87 (2006); Universal Underwriters Insurance v. Judge & James, Ltd., 865 N.E.2d 531 (Ill. App. 1st Dist. 2007).E. Charging Excessive Fees
In Coughlin v. Serine, 154 Ill. App. 3d 410, the Illinois Appellate Court held that the client can allege legal malpractice by alleging that the lawyer charged “exorbitant, excessive or fraudulent fees.” Rule 1.5 also prohibits the lawyer from charging excessive fees.Legal Malpractice in Corporate or Real Estate Transactions
Where litigation is not involved, it can be more difficult to prove that the lawyer’s breach of duty caused the client’s injury. The types of errors that can constitute malpractice include:
- Failing to obtain clear title to the client’s property
- Failing to file an estate tax return in a timely fashion
- Failing to open an estate in a timely fashion
- Failing to investigate factual statements made by a client or a third party
Often a client may feel that a case went very poorly. The judge ruled for the other side or the jury found against the client. Bad results are common in litigation. One side comes out the loser in every case that is decided by a judge or jury. Ties are exceedingly rare. Thus, a bad result is not legal malpractice unless the lawyer made a big mistake that probably changed the outcome of the litigation. Such mistakes are rare.
A plaintiff in a malpractice case must also prove actual damages, which can include economic losses due to the attorney malpractice and, in some cases, attorney fees incurred to correct any error. The damages must have been caused by the lawyer’s error. It is often the case that an error occurs but does not damage the client. In such cases, there is proof of a breach of the duty of care, but no evidence of proximate causation.
We recommend that you obtain experienced counsel to determine if the bad result you experienced was malpractice or just a bad result. Clinton Firm lawyers have extensive experience in evaluating legal malpractice claims.
The Clinton Law Firm maintains a blog on legal malpractice topics. We encourage you to consult our blog to learn further about legal malpractice topics.
Contact a Chicago legal malpractice attorney to discuss your situation.
If you feel that you have suffered an economic loss due to a former attorney's negligent or wrongful conduct, please contact the Clinton Law firm for a free initial consultation.