Nothing Is Not a Plan: District Court Holds Doing Nothing Does Not Involve Judgment, Strategy, or Tactics
Michael Cadena retained attorney Helen Ogar to represent him in a child custody dispute. Cadena won custody of his minor son, and was encouraged by the Department of Children and Family Services to relocate for the child’s safety. Cadena e-mailed Ogar repeatedly asking if there were any legal barriers to him moving to another state with his son. Ogar did not respond substantively. After Cadena moved to Massachusetts, he was arrested and jailed. He also lost custody of his son. Cadena, now a citizen of Massachusetts, sued Ogar and her law firm in federal court based upon diversity jurisdiction.
The defendants moved to dismiss, arguing that the domestic relations exception to federal diversity jurisdiction barred Cadena’s lawsuit from federal court. The court denied the motion, explaining that Cadena was “suing his lawyer for malpractice pursuant to lack of advice on whether or not he could cross state lines… an independent civil action.” Id. at 2.
Ogar and her firm also moved to dismiss for failure to state a claim. They alleged that Cadena did not explain how counsel’s deficient performance did not involve an exercise of judgment, strategy, or trial tactics as required in Person v. Behnke, 242 Ill. App. 3d 933, 940 (4th Dist. 1993), which required such an allegation in a legal malpractice action arising out of allegedly deficient advice in a child custody case. The court disagreed, and held that while Cadena “failed to expressly plead” that the alleged malpractice did not involve judgment, his assertion that the defendants did “nothing” implicitly pleaded as much. Id. Ogar did find success in arguing that Cadena was not entitled to damages for emotional distress or loss of normal life. There, the court held that “legal malpractice is not sufficient basis to support damages for emotional distress,” even in custody cases. Id. at 3. Regarding loss of normal life, the court held that such damages “belong almost universally to the realm of personal injury cases.” Id.
(This is for informational purposes and is not legal advice.)