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The ARDC brought an unauthorized practice of law complaint against an attorney who allegedly failed to register to practice law. That, by itself, would not be interesting. The fact that the lawyer failed to register at any time after 1995 and handled numerous matters for clients during the next ten years is astonishing. The allegations, if true, are astonishing:

At all times alleged in this complaint, Supreme Court Rule 756(a) required that, on or before the first day of January of each year, attorneys admitted to practice law in Illinois (subject to certain exceptions that do not apply to Respondent in this matter) register and pay to the Attorney Registration and Disciplinary Commission (“the Commission”), any registration fee due according to the provisions of the Rule.

2. At all times set forth in this complaint, Supreme Court Rule 756(h) required the Administrator, on or after February 1 of each year, to remove from the roll of attorneys authorized to practice law in Illinois the name of any attorney who had not registered for that year as required by the Supreme Court Rules.

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Julia Williams and I represented David Goodson, an Illinois attorney, who was sued by First American Bank when a check he deposited turned out to be a fraudulent check. Goodson did not know that the check was fraudulent. Instead, he believed that the check was a payment of past due spousal support. We obtained a dismissal of the complaint in the District Court and the Seventh Circuit affirmed the dismissal. Julia Williams handled the oral argument and signed the briefs on appeal.

I won’t attempt to summarize the excellent opinion of Judge Posner.

Edward X. Clinton, Jr.

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This case, Fox v. Seiden, has already made two trips to the Illinois Appellate Court. It is interesting because it is the rare case in which the court granted summary judgment in favor of the plaintiff.

The underlying case was captioned Multiut Corp. v. Draiman. The current case was brought on behalf of Miriam Draiman, one of the defendants in the Multiut case. In 2001, the court found that Draiman’s husband had engaged in deceptive trade practices and assessed attorney fees against “the defendants.” Plaintiff sought fees of $1,317,026.85. There was a big problem with this finding in that Miriam Draiman was not found liable on the consumer fraud act count. Thus, the judge erred in awarding attorney fees against “the defendants.”

Seiden appeared for Miriam Draiman in the post-trial proceedings. The Appellate Court describes the alleged error as follows:

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There appears to be near 100% enforcement for lawyers who wrongfully notarize or witness documents that where the lawyer did not personally witness the signature. This case illustrates that trend. It also shows that the ARDC Hearing Board can be merciful where the error did not cause harm to anyone.

Count I – Failing to Consult with the client in violation of Rule 1.4(a)(2).

The ARDC Hearing Board voted to censure an attorney for a series of deceptive actions regarding estate planning documents. The lawyer originally met with a William Theobald in December 2013 concerning his estate plan. The lawyer agreed to prepare the estate plan, but, apparently little or nothing was done for some time.

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This case illustrates an important difference in the law. In Pennsylvania, a party cannot sue for legal malpractice if that same party settled the underlying case, unless that party can prove that it was fraudulently induced into entering the settlement agreement.

In Kachmar, the plaintiff sued his former matrimonial lawyer on the ground that the lawyer failed to include a waiver of spousal support in a prenuptial agreement. Unfortunately, Kachmar settled the underlying divorce case, which meant that he could not bring a legal malpractice case.

Illinois does not follow this rule. In Illinois, a party which has settled the underlying case can sue for legal malpractice. Where a case is settled, it is often difficult to prove that but for the lawyer’s negligence, the party could have obtained a better result.

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This case and the opinions it has spawned proves that truth is stranger than fiction. The most recent opinion details the results of two trials and two appeals. The Appellate Court twice reversed trial court judgments that were incredibly lawyer friendly, that allowed the estate of a lawyer to retain funds that never belonged to the lawyer.

In 2006, Catherine Gombach deposited $504,889.29 in the trust account of her lawyer. Gombach was apparently attempting to protect some of her funds from creditor claims.

In 2010, Laurie began spending Gombach’s money and made improper withdrawals from the trust account. Gombach sued Laurie, who passed apparently passed away while the case was pending.

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This is a lawsuit between an attorney and his malpractice carrier. The lawyer, Thomas Edwards, handled a personal injury lawsuit on behalf of a commercial diver against the diver’s former employer, Cal Dive. He obtained a multi-million dollar settlement. The victory was short-lived as one year later Cal Dive filed suit against the diver and Edwards alleging that the diver had exaggerated his injuries. Cal Dive sued Edwards for restitution and unjust enrichment.

Edwards requested that his insurance company defend him, but they declined. Edwards filed suit. While he obtained summary judgment in the trial court, the Fifth Circuit reversed that ruling and entered judgment for the insurance company.

The Fifth Circuit held that claims for unjust enrichment and restitution were not legal malpractice claims because they asserted no breach of the standard of care. Therefore, the policy did not provide a duty to defend or require any other coverage. The pertinent reasoning is as follows:

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This case discusses the discovery rule in legal malpractice cases. Specifically, when should the plaintiff know that he had a claim against his employment lawyer?

The Facts:

In 2011, Nelson hired Padgitt, Padgitt & Peppey to negotiate an employment agreement with his new employer Launch Creative Marketing. Nelson signed the agreement in June 2011. Six months later, Launch terminated Nelson’s employment on the ground that the revenue collected from Nelson’s clients totaled less than $250,000 over the first six months of employment. The employment agreement permitted Launch to terminate Nelson for cause if the revenue collected from his old clients did not total $250,000 during the first six months of employment.

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The case is an important one for lawyers who are faced with an ethical issue. The New York Appellate Division held that the attorneys may communicate with their law firm’s general counsel to seek ethical advice and those communications are privileged and are not subject to discovery. In Stock, the lawyers were representing Stock in an arbitration hearing when one of the lawyers was called as a witness. The lawyers communicated with the firm’s general counsel and sought legal advice.

Stock later sued the law firm, claiming that the law firm gave negligence advice concerning his termination by MasterCard. In particular, Stock alleged that the firm failed to advise him that termination would accelerate the expiration of vested stock options.

In the lawsuit, Stock served discovery and sought disclosure of the communications between the lawyers who were representing him and the law firm’s general counsel. The court held that the attorney-client privilege applied and that the law firm was not required to disclose the communications.

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Sometimes, for reasons that are obscure, the ARDC takes a set of facts that appear to prove negligence and makes a disciplinary complaint out of them. In the case of Barbara Ann Susman, the ARDC charged an immigration lawyer with: (a) failing to act with reasonable diligence, failing to promptly inform the client of an adverse decision, failing to keep the client reasonably informed, making a false statement to the ARDC, conduct involving dishonesty, failing to respond to the ARDC’s demands for information and engaging in conduct prejudicial to the administration of justice.

The facts demonstrated that Susman was hired by David Yonan to file an appeal in an immigration matter. On September 1, 2010, the Immigration Service denied his petition for permanent residence based on his status as an alien of extraordinary ability. Yonan had until October 4, 2010, to appeal. Yonan met with Susman but did not promptly pay the retainer she requested. On Saturday, October 2, 2010, Yonan made a deposit of the amount of the filing fee. Susman then took the appeal to Federal Express and believed that Federal Express would deliver the appellate papers by Monday, October 4. Some months later, the USCIS rejected the appeal on the ground that the notice of appeal was not received until October 5, 2010. Yonan declined to appeal that decision. Later, he retained another lawyer and moved to reopen his appeal.

The Panel ruled that the ARDC failed to prove a lack of diligence because Yonan did not pay the filing fee until the last minute. The Panel noted that the evidence showed that Susman acted with diligence: