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Elements

The Attorney Litigation Privilege in Action

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Randy Brown (“Brown”) sued his former attorney, Elizabeth Bacon (“Bacon”), for malpractice.  During that litigation, Bacon’s counsel, Thomas McGarry (“McGarry”), sent allegedly defamatory letters to Brown’s attorneys, including Ed Clinton (“Clinton”). Brown then sued McGarry and his firm for defamation.  The trial court dismissed, holding that McGarry’s statements were protected by the litigation privilege.  The appellate court affirmed.  It explained that the attorney litigation privilege applies to publications (1) made in a judicial proceeding, (2) that have some connection or logical relation to the action, (3) that are made to achieve the objectives of the litigation, and (4) that involve only litigants or other participants authorized by law.

To the first element, Brown argued that the communications were not made in a judicial proceeding because Clinton no longer represented him when he received them.  The appellate court disagreed, stating “the only requirement is that the communication pertain to proposed or pending litigations.”  Id. at ¶30.  Here, the communications in question “clearly pertained to an ongoing judicial proceeding.”  Id. at ¶31.  Brown lost on the second point as well because the letters in question “both relate[d] directly to the merits” of the malpractice litigation.  Id. at ¶38.  As for the third factor, the appellate court held that McGarry’s communication was made to achieve the objectives of the litigation by “resolv[ing] the Malpractice Litigation favorably for his client without a potentially expensive and time-consuming appeal” and “apparently sought to secure Clinton’s cooperation in confirming that plaintiff made statements in open court that were refuted” by Bacon.  Id. at ¶32.  As to the last element, Brown asserted that McGarry’s communications with Clinton went to an e-mail account Clinton allegedly shared with nine other people.  However, a representative from Clinton’s e-mail provider confirmed that usernames are unique and that it does not permit the sharing of master accounts. “At most,” the Court concluded, “a third party might have gained unauthorized access to Clinton’s email account […] but, even if true, it would not defeat the litigation privilege.” Id. at ¶42.

Randy M. Brown v. Thomas P. McGarry & Hinshaw & Culbertson, LLP 2020 IL App (1st) 190427-U

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

Non-Answers, Conclusions, Opinions, and Deductions are not Perjury

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Edwin Johnson (“Johnson”) sued the law firm Gardiner Koch Weisberg & Wrona (“GKWW”) and one of its partners for legal malpractice. In that matter, Johnson’s attorneys deposed attorney Jacqueline Bammert (“Bammert”) of GKWW. Many of their questions called for Bammert’s recollection and interpretation of events, communications, and documents from more than four and a half years prior. Johnson believed Bammert’s answers to seven sequences of questions in her deposition were false, and petitioned the Court to hold Bammert in criminal contempt.

In a petition concerning alleged perjury, a petitioner must adequately allege that (1) the deponent’s testimony was false and untrue when made; (2) the deponent knew the testimony was false when she gave it; and (3) the deponent had a willful and malevolent intention of assailing the dignity of the court or of interfering with its procedure and the due administration of justice. The Court added to this standard that “an alleged false statement must be a statement of fact and not a conclusion, opinion or deduction drawn from given facts. [internal citation omitted]. Moreover, a truthful answer to a question subject to various interpretations is not perjury.” Id. at 2.

Applying this framework, the Court found that none of Bammert’s contested responses constituted perjury. For example, Bammert was asked to interpret a document, to which she responded “no, I can’t answer that question.” Id. at 3. The Court explained that a non-answer is not a basis for perjury, and that “had a direct answer been given, a witness’ interpretation cannot be the basis for perjury.” Id. Bammert was also asked if she was told Johnson had done anything fraudulent. She answered, “no, I can’t recall, no.” Id. at 4. Johnson claimed that this was false because Bammert participated in an investigation of him. “However,” the Court declared, “the question wasn’t whether Bammert participated; the question was whether anyone told her.” Id. As to whether Bammert “assail[ed] the dignity of the court or […] interfere[ed] with its procedures and the due administration of justice” by her actions, the Court found the allegation insufficient on its face given there was no allegation of intent. Id.

The Court found it “clearly apparent” that Johnson’s allegations were factually insufficient and dismissed with prejudice. Id. “Being a witness in hotly contested litigation is difficult enough,” it explained. Id. “If in addition we permit the sword of Damocles to be poised over [witness’] heads in the threat that for any false statement made on the witness stand they may be summarily punished for contempt, we are hindering and not advancing the cause of justice.” Id.

Order dated May 29, 2020

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

Illinois Legal Malpractice and Defense of Lawyers Blog — Novack and Macey LLP

Short v. Grayson

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The District Court for the Northern District of Illinois granted in part and denied in part motions to dismiss legal malpractice claims. The court dismissed the plaintiff’s claim that his attorneys committed malpractice by failing to bring derivative claims in the underlying action because the plaintiff had sold his stock in the relevant company before initiating the underlying litigation and, thus, lacked standing to bring any derivative claims on its behalf. The court further dismissed a claim that the plaintiff alleged should have been asserted against an individual because the statute of limitations on that claim had expired before the defendant attorney took over the underlying case for the plaintiff. The court denied the motion as to the plaintiff’s various other claims generally holding that the plaintiff had alleged sufficient facts to survive the motions to dismiss.

Short v. Grayson , No. 16 C 2150, 2017 WL 977001 (N.D. Ill. Mar. 14, 2017)

West Bend Mutual Ins. Co. v. Schumacher

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The Seventh Circuit affirmed the dismissal of a legal malpractice claim because it did not adequately allege causation and damages.   The court held that the allegations as to how the malpractice plaintiff would have prevailed in the underlying litigation but for the attorney’s malpractice were insufficiently specific to state a claim.

West Bend Mutual Ins. Co. v. Schumacher, Case No. 14-2731, 2016 WL 7395708 (7th Cir. Dec. 21, 2016)

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

Cwik v. Law Offices of Jonathan Merel, P.C.

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In this unpublished order, the First District held that the plaintiff had failed to allege that he would have won his underlying petitions but for the defendant lawyer’s malpractice.   The court held it was not enough for the plaintiff to allege that he would have defeated the underlying defendant’s motions to dismiss but for the lawyer’s negligence, he needed to allege that he ultimately would have succeeded on the petitions themselves.

Cwik v. Law Offices of Jonathan Merel, P.C., 2017 IL App (1st) 153143-U

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

Land v. Auler, 186 Ill. App. 3d 382, 542 N.E.2d 509 (4th Dist. 1989)

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Land v. Auler, 186 Ill. App. 3d 382, 542 N.E.2d 509 (4th Dist. 1989)

B.T. Explorations, Inc. v. Stanley, 187 Ill. App. 3d 23, 542 N.E.2d 1292 (5th Dist. 1989)

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B.T. Explorations, Inc. v. Stanley, 187 Ill. App. 3d 23, 542 N.E.2d 1292 (5th Dist. 1989)

Fabricare Equip. Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 767 N.E.2d 470 (1st Dist. 2002)

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Fabricare Equip. Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 767 N.E.2d 470 (1st Dist. 2002)

Fox v. Berks, 334 Ill. App. 3d 815, 778 N.E.2d 1141 (1st Dist. 2002)

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Fox v. Berks, 334 Ill. App. 3d 815, 778 N.E.2d 1141 (1st Dist. 2002)

First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 872 N.E.2d 447 (1st Dist. 2007)

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First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 872 N.E.2d 447 (1st Dist. 2007)