Recent Illinois Case

Disability Disclosure — What is an Attorney’s Duty?

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Attorneys may have a duty to inform the Probate Division of the Circuit Court of Cook County of a client’s potential mental disability or diminished capacity according to a recent decision by the Illinois Appellate Court. Estate of Barbara Rose Christo v. The Law Offices of Thomas Leahy, et al., 2021 IL App (1st) 200575-U. The legal malpractice case stemmed from a 1998 wrongful death case in which the Law Office of Thomas Leahy (“Leahy & Hoste”) represented Barbara Rose Christo and her two siblings.  In 2002, Leahy & Hoste obtained approximately $550,000 in damages for each client.  Six years later, in 2008, Barbara Rose was adjudicated to be a disabled person and the Cook County Public Guardian was appointed to serve as her guardian.  At that time, the Public Guardian discovered that Barbara Rose’s brother had been stealing her damages award.  In 2010, the Public Guardian sued Leahy & Hoste and several of its attorneys alleging professional negligence for failing to seek a guardianship for Barbara Rose prior to releasing the damages award.  The trial court concluded that Leahy & Hoste did not commit legal malpractice, but on July 16, 2021, an Illinois Appellate Court reversed the lower court’s decision.

Citing to the trial record, the opinion describes Barbara Rose as having “mild mental retardation … an IQ of 51, [and] a second-grade reading level…” Id. at ¶ 5.  Further, Barbara Rose’s guardian stated that she was “unable to tell time or make telephone calls.”  Id. at ¶ 9.  Evidence was also presented that  Barbara Rose collected Supplemental Security Income for “mental retardation with an onset date of September 13, 1984.”  Id. at ¶ 14.  Dr. Jaffe, a clinical and forensic psychologist, testified that Barbara Rose’s handicap “would be observable to the untrained person within just a couple of minutes of interacting with her.  Id. at ¶ 23.  Relying on these facts, and others, the Public Guardian asserted that Leahy & Hoste should have notified the court of their client’s disability before handing her over half a million dollars.  In response, Leahy & Hoste claimed it was ignorant of Barbara Rose’s disability.  One Leahy & Hoste attorney testified that he “didn’t have the impression that she had a diagnosed disability.”  Id. at ¶18.  But, the wrongful death trial paints a different story.  While Barbara Rose was on the witness stand, her attorney asked her if she had a disability and she answered, no. That attorney then described Barbara Rose as a “special person” adding, “We could tell… from the witness stand… She denied it, and good for her, but I think we can tell…” during his closing argument.  Id. at ¶ 13. 

While the trial court granted Leahy & Hoste’s motion for a partial directed finding and ultimately entered judgment in its favor, on appeal, the Court remanded the case and stated, “evidence plausibly shows that the Leahy defendants knew the extent of Barbara’s disability and yet still failed to notify the court.”

Estate of Barbara Rose Christo v. The Law Offices of Thomas Leahy, et al., 2021 IL App (1st) 200575-U

(This is for information purposes only and not legal advice.)

  

Court Again Affirms Inquiry Notice Standard

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The First District Appellate Court concluded that Plaintiffs, Brian Scheinblum and Chicago Hotel Partners, LLC (“CHP”), did not timely file their legal malpractice complaint against the law firm of Schain Banks Kenny & Schwartz, Ltd.’s (“Schain Banks”).  Brian Scheinblum, et al., v. Schain Banks Kenny & Schwartz, LTD, 2021 IL App (1st) 200798. 

According to Plaintiffs, they retained Schain Banks in 2015 to file a complaint for declaratory judgment and specific enforcement of a contract related to developing a hotel on certain floors of a building located at 55 East Washington Street in Chicago (the “Pittsfield Building”).  Schain Banks helped Plaintiffs’ successfully settle the dispute.  At the same time, without Plaintiffs’ knowledge, Schain Banks was advising another party on how to stop the development of a hotel at the Pittsfield Building.  Subsequently, the City of Chicago passed a downzoning ordinance related to the Pittsfield Building on March 16, 2016 that killed Plaintiffs’ plan to open a hotel causing them a “tremendous financial loss.”  Id. at ¶ 7.

In granting Schain Banks’ motion to dismiss, the Court held that Plaintiffs should have known they were injured when the City passed the downzoning ordinance.  On appeal, Plaintiffs argued that they had “no way of knowing” they should have investigated their own attorneys’ involvement in the passage of the ordinance.  Id. at ¶ 21.  Plaintiffs alleged that they only became aware of Schain Banks’ involvement after it sued the City, and obtained a 2015 Schain Banks’ email providing legal advice on how to rezone the building, through discovery in October 2017.  The Court disagreed.  The Court concluded, “Because plaintiffs developed a reasonable belief that the downzoning was caused by wrongful conduct, they had an obligation to inquire further on that issue.”  Id. at ¶ 19.  The court stressed that it was not necessary for Plaintiffs to know that their lawyers were involved in wrongdoing; they needed only know that there was wrongdoing by somebody in order for them to be required to inquire whether their lawyers were involved.

Brian Scheinblum, et al., v. Schain Banks Kenny & Schwartz, Ltd., 2021 IL App (1st) 200798

(This is for information purposes only and not legal advice.)

Legal Malpractice Claims Do No Always Require An Expert

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The Second District Appellate Court affirmed the circuit court’s decision in Bruning & Associates v. Michael Eversman granting summary judgment to a law firm on its claim for fees and denying the defendant’s malpractice counterclaim.  Bruning & Assocs., P.C. v. Eversman, 2021 IL App (2d) 200502-U.  The defendant argued that the trial court erred by denying his motion for extra time to retain an expert to respond to the summary judgment motion.  The Appellate Court held that the defendants’ failure to comply with Illinois Supreme Court Rule 191 was sufficient grounds to deny his motion requesting time to retain an expert.  The court also found that the defendant failed to raise a genuine issue of fact as to whether the marital settlement agreement that plaintiff advised him to enter into was unreasonable and failed to raise a genuine issue of fact with respect to any of the other issues he raised.

Bruning & Associates v. Michael Eversman, 2021 IL App (2d) 200502-U.

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

Three Months And A Day Is “More Than” Reasonable

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The Second District Appellate Court affirmed the Circuit Court of McHenry County’s decision to not apply the five-year statute of limitations for fraudulent concealment when (1) Plaintiff’s concealment claim was identical to his legal malpractice claim; and (2) Plaintiff had a “reasonable time” to file his legal malpractice claim within the normal two-year limitations period.  Harold Crowe v. Randall Taradash & The Taradash Law Offices, 2021 IL App (2d) 200316-U.  The court reasoned that this case was analogous to Barratt v. Goldberg, 296 Ill. App. 3d 252, 258 (1998), and further held that three months and one day was “more than a reasonable time” for Plaintiff to file his claim. Id. at ¶ 30.

Harold Crowe v. Randall Taradash & The Taradash Law Offices, 2021 IL App (2d) 200316-U.

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