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Arbitration Clause Applies to Legal Malpractice Complaint

Davis v. Fenton, Dist. Court, ND Illinois 2014 – Google Scholar.

Chief Judge Castillo has stayed an unusual legal malpractice case pending the outcome of arbitration. The case is highly unusual because it was filed by Kelli Dudley a lawyer who defends against foreclosures.  In this case her client alleges that her former foreclosure defense attorney, Ernest Fenton, engaged in violations of the Fair Housing Act, 42 U.S.C. Section 3601 and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982, as well as common law legal malpractice.

The district court followed well-settled law in enforcing an arbitration clause in the engagement letter and staying the case in favor of arbitration, pursuant to the Federal Arbitration Act. The district court also rejected claims that the Defendant had waived the arbitration clause.

It is noteworthy that this case began an ugly feud between Ms. Dudley and Mr. Fenton. The court explains:

“Also on July 3, 2013, Fenton and the Law Office filed a lawsuit in the Circuit Court of Cook County against Plaintiff’s attorneys, Kelli Dudley and Andrew Sidea, alleging conversion, tortious interference with a business relationship, and defamation and slander. Fenton v. Dudley, No. 13 L 066047. Dudley and Sidea removed the case to this District on July 14, 2013. On August 27, 2013, Plaintiff filed a motion, asking the Court to consolidate this case with Fenton v. Dudley, which was then pending before Judge Rebecca Pallmeyer. (R. 20, Pl.’s Mot. Consolidate.) On January 3, 2014, Judge Pallmeyer granted Fenton’s motion to remand Fenton v. Dudley back to the Circuit Court of Cook County. See Fenton v. Dudley, No. 13 C 5019, 2014 WL 144676 (N.D. III. Jan. 3, 2014).”

Plaintiff’s theories that deficient lawyer work can rise to the level of a violation of the Fair Housing Act and the Civil Rights Act of 1866 are unusual and untested. Ms. Dudley deserves credit for bringing a new cause of action to the somewhat staid world of legal malpractice. Whether these causes of action will be successful is still open to debate.

Edward X. Clinton, Jr.

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