Standard of Care

A Plaintiff’s Responsibilities: Keeping Appointments, Presenting Expert Testimony, and Providing Records

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Loxley Johnson (“Johnson”), the sole proprietor of L.A. Transportation (“LAT”), stood accused of vendor fraud and theft.  He hired Stephen Komie (“Komie”) to represent him during the corresponding investigation by the Illinois Attorney General; paying Komie $5,000 in advance and signing a retainer agreement.  On Komie’s advice, Johnson agreed to extend the statute of limitations on the claims against him so a more thorough investigation could be conducted.  When a grand jury finally issued an indictment, Johnson signed a second retainer agreement to include the indictment within the scope of Komie’s representation.  The state later notified Johnson that there would be an administrative hearing at which LAT could be heard, but neither Johnson nor Komie appeared.  With that, LAT was defaulted, monetary damages were imposed, and both LAT and Johnson were excluded from certain state programs.  Komie then withdrew as Johnson’s counsel due to “irreconcilable differences.”  Id. at ¶13.  Johnson sued Komie for legal malpractice, accusing him of negligent representation and breaching their retainer contract when Komie failed to appear at the administrative hearing.  Id. at ¶1.  Komie filed a counterclaim for outstanding legal fees.  After a bench trial, the trial court found in favor of Komie on the malpractice claim and on his fee claim.

Appearing pro se, Johnson made multiple unsuccessful arguments.  First, he asserted that the trial court erred in granting summary judgment regarding Komie’s negligent recommendation that Johnson extend the statute of limitations and Komie’s allegedly bad-faith withdrawal.  The appellate court disagreed, holding that “absent an expert opinion” that Johnson never provided, “it is impossible for plaintiff to establish the applicable standard of care and whether defendant deviated from that standard.”  Id. at ¶39.  Next, Johnson argued that Komie’s victory on his counterclaim was against the manifest weight of the evidence.  Here, the appellate court was not able to properly examine the issue because Johnson had not provided a report of the relevant trial proceedings.  Johnson’s last argument as to Komie’s ineffective representation in the form of failing to appear at the administrative hearing was similarly flawed.  Moreover, the appellate court pointed out that “it is every litigant’s duty to follow the progress of his case, rather than to merely assume that counsel is doing all that is necessary and proper.”  Id. at ¶48.

Johnson v. Komie , 2019 IL App (1st) 171189-U

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

 

McLeod v. Pignatelli, 2017

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The District Court for the Northern District of Illinois denied a plaintiff’s motion for partial summary judgment in a legal malpractice case.  The plaintiff argued that a Last Will and Testament drafted by his attorneys was ambiguous.  The court held that it whether drafting an ambiguous will was a breach of the standard of care was a question for the jury.

McLeod v. Pignatelli

 

Recent Illinois Case: Fox v. Seiden

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The First District held that summary judgment was improperly entered in favor of a malpractice plaintiff. In the underlying case, the malpractice plaintiff was found liable for attorneys’ fees even though she was not a defendant in the only count under which fees could be awarded. The malpractice defendants failed to make this argument in the underlying case.

The First District reversed the trial court’s summary judgment decision because the malpractice plaintiff: (a) failed to offer expert evidence that the malpractice defendants did not meet the standard of care; and (b) possibly was contributorily negligent.

The First District also rejected the malpractice defendants’ argument that summary judgment should have been entered in their favor. The court held that whether the malpractice plaintiff could have appealed the attorneys’ fee award was a question of fact not appropriate for summary judgment. The court similarly held that other proximate cause arguments raised issues of fact.

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

Fox v. Seiden, 2016 IL App (1st) 141984

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)

Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984)

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Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984) (judgment)

Smith v. Kurtzman, 106 Ill. App. 3d 712, 436 N.E.2d 1 (1st Dist. 1982)

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Smith v. Kurtzman, 106 Ill. App. 3d 712, 436 N.E.2d 1 (1st Dist. 1982)

DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997)

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DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997) (consider at time of breach; lawyer need not advise of remote possibilities)