Retention Agreement That Specified New York Jurisdiction Enforced by Illinois Court

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The United States District Court for the Northern District of Illinois interpreted a retention agreement that provided that “Client expressly agrees to in personam jurisdiction in New York . . . .” The court granted a motion to transfer on the basis of forum non conveniens based on the quoted language. The fact that the quoted language did not specifically provide for exclusive jurisdiction in New York did not stop the court from finding that the provision established an exclusive forum for a malpractice action.

Molon Motors and Coil Corp. v. Mishcon De Reya, LLP, John Petersoric, and Mark Raskin; 2020 WL 5702163; September 24, 2020

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

Illinois Labor Relations Board has Exclusive Jurisdiction Over Malpractice Claims Against Union-Provided Lawyers

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The Village of Fox Lake (“Village”) sought to terminate the employment of police officer Russell Zander (“Zander”).  At the advice of attorney Roy Carlson (“Carlson”) whose services were provided to him by the Fraternal Order of Police (the “FOP”), Zander waived his right to a hearing before the local police board and chose instead to challenge his dismissal through an arbitration in which Carlson represented him.  When the arbitrator ruled against him, Zander sued Carlson and the FOP for legal malpractice.  The Circuit Court dismissed Zander’s complaint, holding that Carlson was immune from personal liability for actions taken on behalf of a union and that Zander’s claim against the FOP must be brought before the Illinois Labor Relations Board.  Zander appealed.

The Appellate Court of Illinois, First District, affirmed dismissal.  It reiterated the Circuit Court’s holding that “the Labor Relations Act vests the [Illinois Labor Relations] Board with exclusive jurisdiction over claims that a union has violated its duty of fair representation.”  Id. at ¶13.  Similarly, with respect to any personal liability on Carson’s part, the Appellate Court explained that “when a union instead hires an attorney to act for it in the collective bargaining process—including in an arbitration proceeding where the underlying grievance belongs to a particular union member—the union itself continues to represent, and is ultimately responsible to, the member.”  Id. at ¶14.  To hold otherwise, it continued, would be to “hold certain agents or employees of the union to a far higher standard of care than the union itself.”  Id. at ¶15.  Zander countered that he had a direct attorney-client relationship which permitted him to sue Carlson independently.  The Appellate Court rejected this argument as well, saying “to invoke this exception, the union member must show that the attorney specifically agreed to provide direct representation to the union member as an individual client” rather than “acting pursuant to his obligation to provide representation for or on behalf of the union.”  Id. at ¶18.  Zander’s complaint did not allege any specific agreement to that effect.

Zander v. Carlson, 2019 IL App (1st) 181868

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

No Malpractice Causation if Client Can Remedy Attorney’s Misconduct

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In 2001, Multiut Corporation (“Multiut”) sued Mariam Draiman (“Draiman”), her husband, and five corporations that they owned or controlled.  Count V of the complaint was directed against all defendants except Draiman.  Attorney Glenn Seiden and his firm, Glenn Seiden & Associates, P.C. (together “Seiden”) initially represented each defendant.  The circuit court found in Multiut’s favor on Count V and awarded attorneys’ fees and costs thereunder against “defendants” without excluding Draiman.  Id. at ¶5.  Multiut then filed a petition for attorneys’ fees and costs in February, 2003, to which Seiden responded.  At no point did Seiden argue that Draiman was not subject to the petition, since Count V was not directed at her.  The circuit court issued an order drafted by Multiut’s counsel awarding attorneys’ fees “against defendants.”  Id. at ¶7.  Two weeks later, Seiden filed a motion to clarify, but again failed to raise the issue.  Seiden then filed a notice of appeal “on behalf of all defendants” in August, 2003, and withdrew its representation shortly thereafter.  Id. at ¶8.

Before briefing for the appeal was complete, the First District issued an order sua sponte saying Draiman was “not liable as to [the attorney fee] portion of the judgment” because she “was not named as a defendant below in the count that resulted” in the fee award.   Id. at ¶9.  Draiman’s new appellate counsel then withdrew, at which point she filed her brief pro se.  In it, she failed to argue that the court should reverse the award of attorneys’ fees against her because Count V was not directed at her.  Rather, she asserted inaccurately that the court should reverse all judgments against her because the judgment under Count V “had been reversed.”  Id.  When the First Circuit affirmed the circuit court’s judgment, it found that Draiman’s omission constituted a waiver of any right to contest the fees.

Draiman then sued Seiden for malpractice in March, 2006 for its repeated failure to argue that she could not be liable under Count V and for failure to preserve the issue for appeal.  After multiple cycles of judgment, appeal, and remand, Seiden filed for summary judgment in September, 2017, arguing that the March, 2003 notice of appeal divested the circuit court of jurisdiction, meaning Seiden was not the proximate cause of Draiman’s damages.  Although Draiman disagreed with Seiden’s conclusion, both parties acknowledged that this jurisdictional matter was a legal question to be ruled upon by a judge.  However, the circuit court disagreed, and ordered that the issue be put to a jury.  When the jury found in Seiden’s favor, Draiman filed a motion for a judgment notwithstanding the verdict or a new trial.  The motion was denied, which resulted in the present appeal.

The First District affirmed, readily agreeing with both parties that the question of jurisdiction “should not have been submitted to a jury.”  Id. at ¶40.   As to Seiden proximately causing Draiman’s damages, the court stated that “where a claim or defense is alleged to have been compromised by… an attorney, but the claim or defense is still viable when the attorney is discharged, the attorney is not the proximate cause of any resulting loss.”  Id. at ¶41.  Thus whether the court retained jurisdiction was potentially dispositive, “because if Seiden is correct… then, as a matter of law, he could not have been the proximate cause of Draiman’s adverse ruling.”  Id. at ¶40.  To that point, the First District cited Illinois Supreme Court Rule 304(a):

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

It added that “upon filing a notice of appeal, the circuit court is divested of jurisdiction… and the jurisdiction of the appellate court attaches instanter.”  Id. at ¶46.  In this case, the circuit court’s February, 2003 order stated that there was no just cause for delay in enforcement or appeal of its ruling with respect to Count V, and Seiden filed a notice of appeal on Draiman’s behalf.  Thus, “to the extent that the circuit court’s award of attorneys’ fees… included Draiman, such an order was void as the circuit court no longer had the jurisdiction to enter such an award against her.  And because a void judgment may be attacked collaterally at any time, the defense was still viable when Seiden withdrew from the case.  Accordingly, Seiden cannot, as a matter of law, have been the proximate cause of Draiman’s loss.”  Id. at ¶47.

Fox v. Seiden, 2019 IL App (1st) 180598-U, appeal pending (Sep Term 2019)

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


A Law License Does Not Establish Personal Jurisdiction

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Elham Sheikholeslam (“Sheikholeslam”), an Iranian citizen, sued attorney Antonin Favreau (“Favreau”), a Canadian citizen, in Cook County, Illinois for alleged fraud and malpractice in Favreau’s representation of her in an immigration matter.  Favreau moved to dismiss for lack of personal jurisdiction.  He explained that although he was licensed to practice in Illinois, he had no office in Illinois, had never practiced in Illinois, never had any contact with Sheikholeslam in Illinois, never performed any services for her in Illinois, and resided exclusively in Canada.  His only connection to Sheikholeslam was his affiliation with ACIC Management Co. Ltd. (“ACIC”), an immigration services company based in the British Virgin Islands that Sheikholeslam had retained, and on whose behalf Favreau had signed a client representation agreement with Sheikholeslam.

The trial court granted Favreau’s motion, agreeing that he did not possess “such connections to Illinois that he should reasonably anticipate being haled into court here and somehow purposely availed himself of the privilege of conducting activities in Illinois so that he invoked the benefits and protection of Illinois law.”  Id. at ¶14.  The First District affirmed, rejecting Sheikholeslam’s argument that the trial court had personal jurisdiction, either specific or general, simply because Favreau could only have rendered his services by virtue of having his Illinois license.  More precisely, the court lacked specific jurisdiction over Favreau because he “performed no relevant action or event in Illinois within the period relevant to plaintiff’s causes of action.”  Id. at ¶25.  As to general jurisdiction, the First District reached the same conclusion, reiterating that Favreau “resides in Canada and his only relevant connection to Illinois is his law license, having not been in Illinois since he sat for the bar examination in 2013.”  Id. at ¶24.

Sheikholeslam v. Favreau, 2019 IL App (1st) 181703

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


Nothing Is Not a Plan: District Court Holds Doing Nothing Does Not Involve Judgment, Strategy, or Tactics

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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.

Cadena v. Ogar, No. 19-CV-01092, 2019 WL 3325787 (C.D. Ill. July 24, 2019)

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

Recent Illinois Case: Otto v. Rozenstauch

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In the unpublished order, the First District held that it lacked jurisdiction to hear an appeal filed by a plaintiff after she voluntarily dismissed her legal malpractice claim. The court reasoned that a notice of appeal filed within 30 days after a voluntary dismissal is premature because a voluntary dismissal is not final until one year after entered.

Otto v. Rozenstauch, 2015 IL App (1st) 141644-U

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

Recent Illinois Case: Banks v. Preston Humphrey, LLC

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In this recent case, the Northern District of Illinois dismissed a legal malpractice case for lack of diversity jurisdiction because the amount in controversy requirement was not satisfied.   The plaintiff argued that his attorney provided negligent representation in a criminal matter.   However, the plaintiff did not pay his attorney any fees, and his conviction remained intact, thus negating any potential damages for wrongful conviction.

Banks v. Preston Humphrey, LLC, No. 14-3766, 2015 WL 1840665 (7th Cir. April 23, 2015).

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