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Standing

A Plaintiff not Prosecuted or Threatened with Prosecution Lacks Standing to Contest the Prosecution or Nonprosecution of Another

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Attorney Louis Fasullo (“Fasullo”) was arrested and Assistant Public Defender Rojelio Garza (“Garza”) was assigned to represent him.  Fasullo complained to the Attorney Registration and Disciplinary Commission (“ARDC”) that Garza was not communicating with him.  The ARDC investigated Fasullo’s complaint, but concluded that it “would be unable to show […] that Mr. Garza neglected [Fasullo’s] defense or that he failed to communicate with [Fasullo] in a reasonable manner.”  Id. at ¶11.  Nevertheless, Fasullo was late to a hearing, which resulted in him being jailed for 18 days.  Among other things, Fasullo blamed his tardiness on “failure of his public defender to adequately and timely communicate the court date to him.”  Id. at ¶10.  Fasullo filed a pro se action for a declaratory judgment against the ARDC for its failure to discipline Garza.  Id.  The ARDC moved successfully to dismiss for lack of standing and failure to state a claim.

On appeal, Fasullo argued that the circuit court erred because “the judge did not declare Rights just, and fair, and denied [Fasullo] the cause of action which recovery might be had” and “did not allow discovery, and dismissed the complaint […].”  Id. at ¶19.  The Appellate Court of Illinois, First District, responded that “Fasullo misunderstood the purpose of a declaratory judgment and wanted the trial court to tell him what cause of action he might have, as opposed to arguing one himself.”  Id. at ¶30.

The court also quoted the Supreme Court of the United States, which said “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another…[and therefore] lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”  Id. at ¶26, (citation omitted).  Here, Fasullo’s brief contained facts “that may have been relevant to a timely claim for legal malpractice or ineffective assistance of counsel, but these are not the claims Fasullo made.”  Id. at ¶27. The court concluded that “the sole authority to impose disciplinary sanctions on attorneys is with the supreme court, and the appropriate forum to investigate the conduct of an attorney and conduct hearings is the Attorney Registration and Disciplinary Commission.”  Id. at ¶28, (citation omitted).

Fasullo v. Attorney Registration and Disciplinary Commission, 2020 IL App (1st) 190670-U

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

Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP

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The First District affirmed the dismissal of conversion and breach of fiduciary duty claims against a lawyer and law firm that allegedly closed a real estate sale the day after their client died. The court held that the executor of the estate of the client was the proper party to bring the claim and that the plaintiffs, who were beneficiaries of trusts that were to receive the sale proceeds, did not have standing to bring suit. The court also held that the plaintiffs were not the lawyer’s clients and were not owed a duty by the lawyer because the primary purpose for the lawyer’s retention was not to benefit plaintiffs.

Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP

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

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)

Recent Illinois Case: Barry v. Galloni

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The district court affirmed the bankruptcy court’s determination that a judgment in favor of an intended beneficiary against a lawyer who forged a witness’s signature on a will — resulting in the intended beneficiary losing the benefit of the will – could not be discharged in the lawyer’s Chapter 7 bankruptcy proceeding.

Barry v. Galloni, 2016 WL 245912

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

Recent Illinois Case: Johnson v. Komie

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In this unpublished opinion, the First District held that the sole shareholder of a corporation who retained an attorney to represent him as an individual did not have standing to assert a malpractice claim where only the corporation suffered an injury. The court also held that, even if the individual did have standing, summary judgment still was proper because the attorney did not owe a duty to the corporation.

2015 IL App (1st) 14-3300-U

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

Recent Illinois Case: Stevens v. McGuireWoods LLP

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The Illinois Supreme Court affirmed the Appellate Court’s holding that individual malpractice claims were barred because plaintiff-minority shareholders were not directly injured by malpractice suffered by a corporation. The court reversed the Appellate Court’s holding that the case be remanded for consideration of whether a derivative claim was barred because the plaintiffs no longer held stock in the corporation at issue and, therefore, did not have standing to bring a derivative claim.

Stevens v. McGuireWoods LLP, 2015 IL 118652

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