Appellate Court Reverses Grant of Summary Judgment

Ordower v. Dalton, 2026 IL App (1st) 252193-U

This is an appeal from a legal malpractice case where the trial court granted the law firm summary judgment. The claim of malpractice arose when the defendant lawyers defended the plaintiff in the underlying case and that case ended with an unfavorable verdict. Plaintiff then sued the lawyers for legal malpractice alleging that if the lawyers had done their job he would have won the underlying case. Defendants moved for summary judgment and the Circuit Court granted the defendants motion on the ground that the plaintiff had unclean hands.

The First District reversed summary judgment for the defendant-attorneys and remands, holding the circuit court erred in applying the doctrine of unclean hands to bar plaintiffs’ legal malpractice claim. Essentially, the court held that unclean hands was not a proper defense for the law firm because the unclean hands did not occur in the malpractice case.

Chronological Facts

The facts are complicated.

1997 — Joseph Mizrachi launches Net Lease Management Partners to invest in two warehouses (North Carolina and Colorado), with three members: United Capital (Attilio Petrocelli), the JAL Group (Mizrachi), and Brentwood Capital (owned 75% by the Benetti family, with the Holtzman family and Koffman family splitting the remaining 25%).
2014 — Petrocelli approaches the Benetti family to buy their 75% interest in Brentwood Capital. Mizrachi opposes the sale (fearing it would give Petrocelli unilateral control of Net Lease) and asks for time to arrange his own purchase.
Mizrachi and Holtzman agree to jointly buy the Benetti interest. Bob Koen initially represents Mizrachi; Ordower (of plaintiff firm Ordower & Ordower, P.C.) represents Holtzman. Mizrachi later also retains Ordower.
During the representation, Holtzman and Mizrachi agree to let Ordower take a one-third share of the Benetti interest (at $1.3 million) in lieu of legal fees, with Holtzman and Mizrachi each paying $1.3 million for the remaining shares. Closing is set for September 30, 2016.
Weeks before closing, Mizrachi learns Ordower and Holtzman met with Petrocelli (who remained a potential buyer) without telling him.
September 28, 2016 — Angered, Mizrachi leaves a voicemail insisting on unanimous decision-making among the three and stating he’d “prefer to lose it all” than proceed without consensus.
After the voicemail, Ordower and Holtzman decide to split the purchase 50/50 and exclude Mizrachi — but Ordower never tells Mizrachi this during their subsequent calls.
September 29, 2016 — Mizrachi wires his $1.3 million share to the closing account, unaware he’s been cut out.
September 30, 2016 — Ordower and Holtzman close the purchase using only their own funds, excluding Mizrachi entirely from any interest in Brentwood Capital.
Mizrachi sues Ordower and his firm for legal malpractice in federal court. His expert, Robert Hirshon (former ABA president), testifies that Ordower violated Illinois Rules of Professional Conduct 1.4 (failure to consult), 1.7 (conflict of interest), 1.8 (improper business transaction with a client), and 8.4 (dishonesty/deceit). Plaintiffs’ expert, Michael Flaherty, testifies to the contrary, and Ordower himself testifies he never represented Mizrachi in the transaction at all.
The federal jury returns a verdict for Mizrachi: $10,197,178.
Post-verdict, plaintiffs (Ordower) settle with Mizrachi; the federal judge vacates the jury verdict and dismisses the case with prejudice pursuant to the settlement.
Plaintiffs then sue their own defense counsel (Dalton, the late Jeffrey Young, Kaufman Dolowich Voluck, and O’Hagan Meyer) for legal malpractice in Cook County, alleging deficient summary judgment practice, inadequate discovery, a weak/inexperienced expert, failure to disclose a conflict, poor cross-examination of Mizrachi, and failure to object to evidence at trial.
Both parties retain experts. Plaintiff’s expert testifies that Ordower violated several rules of professional conduct when he entered into a business when he entered into the business arrangement with Mizrachi to purchase a share of the Benetti family’s interest in Brentwood Capital. Defendant retains Michael Flaherty, who disagrees.
Both sides move for summary judgment. The circuit court denies plaintiffs’ motion and grants defendants’ motion, holding plaintiffs’ hands were “unclean” based on the Hirshon trial testimony and the vacated $10 million verdict.

The Appellate Court’s Reasoning

Vacatur point (partial win for defendants): The court agrees the vacatur of the federal judgment nullified the judgment and its collateral-estoppel effect, but rejected plaintiffs’ argument that vacatur also erased the testimony itself — under Illinois Rule of Evidence 804(b)(1), former testimony remains admissible regardless of the underlying judgment’s later vacatur.
Improper credibility determination: The circuit court nonetheless erred by crediting Hirshon’s testimony over Flaherty’s conflicting expert testimony at the summary judgment stage. Weighing conflicting expert testimony and resolving credibility disputes is impermissible on summary judgment (Gulino); that’s a jury function.
Improper reliance on the vacated verdict: The court separately erred by relying on the $10 million jury verdict itself, since a vacated judgment is treated as though it never existed (New York Life Insurance Co. v. Sogol).
Unclean hands misapplied doctrinally: Most fundamentally, under Korziuk, Baal, Jaffe Commercial Finance, and Zahl v. Krupa, the misconduct barring relief under unclean hands must be directed at the defendant in the very transaction at issue — here, the defendant law firms that represented plaintiffs in the Mizrachi litigation. Ordower’s alleged misconduct was directed at Mizrachi, not at the defendant-attorneys, who were retained only afterward to defend him. The court also distinguished Makela and Mettes (unclean hands applied where a plaintiff sought attorney advice to perpetrate fraud on a third party) — here, defendants were hired to defend plaintiffs in litigation, not to help perpetrate any fraud.
The court explains its reasoning as follows:
¶24 The circuit court erred, though, when it made a credibility determination in favor of defendants’ expert witness, Hirshon, who testified that Ordower violated several rules of professional conduct when he entered into the business arrangement with Mizrachi to purchase a share of the Benetti family’s interest in Brentwood Capital. Hirshon explained that such a business arrangement constituted a conflict of interest in violation of Rule 1.7 and was made without the requisite full written disclosure of the terms of the transaction in violation of Rule 1.8. Hirshon also testified that Ordower violated Rule 1.4 when he failed to adequately consult with Mizrachi about his objectives after the receipt of the September 28 voicemail. Finally, Robert Hirshon concluded that Ordower’s conduct was deceitful in violation of Rule 8.4. Hirshon’s testimony was directly contradicted by plaintiffs’ expert, Michael Flaherty, who testified that Ordower adequately satisfied his disclosure requirements under Rules 1.7 and 1.8 such that there was no conflict of interest or improper business transaction of any kind. Flaherty further testified, in contrast to Hirshon, that the September 28 voicemail clearly indicated Mizrachi’s intent to withdraw from the purchase agreement, thereby alleviating Ordower’s obligation under Rule 1.4 to discern his objectives. Finally, Flaherty concluded that Ordower did not engage in any deceitful behavior that would violate Rule 8.4.

¶ 25 The circuit court found that Hirshon’s testimony “provides a sufficient basis for the Court to determine the existence of unclean hands” on the part of Ordower. In so finding, the court made an implicit determination that Hirshon’s testimony criticizing Ordower for his alleged violations of Rules 1.4, 1.7, 1.8 and 8.4 was more credible than Flaherty’s testimony that Ordower complied with all of his responsibilities under the professional conduct rules. However, the purpose of a summary judgment motion is to determine whether a triable question of material fact exists, not to try such a question of fact. Gulino v. Economy Fire and Casualty Co., 2012 IL App (1st) 102429, ¶ 25. The trial court may not make credibility determinations or weigh the evidence at the summary judgment stage. Id. In the present case, the circuit court erred by weighing the conflicting testimony, determining that defendants’ expert was more credible than plaintiffs’ expert, and granting defendants’ motion for summary judgment based on that credibility finding.

Bottom line: Unclean hands requires misconduct directed at the defendant in the malpractice suit itself; misconduct toward a third party (even egregious, even underlying a $10M verdict) that only led to the malpractice suit doesn’t qualify — and a vacated verdict can’t be weighed as evidence of that misconduct, though testimony from the vacated proceeding remains admissible. The opinion is well-written and thoughtful.