Categories of Legal Malpractice Cases

Legal Malpractice Cases

This is a review of some of the general categories of negligence claims against attorneys.  It is not exhaustive.

A. Failure To File A Case Within The Limitations Period

Illinois has always held that a lawyer who accepts a representation before the statute of limitations has run is negligent if he fails to file the case on time.  See House v. Maddox, 46 Ill. App. 3d 68 (Ill. App. 1977).  See also Kohler v. Woolen, Brown & Hawkins, 15 Ill. App. 3d 455, 304 N.E.2d 677 (Ill. App. 4th Dist. 1973).  The plaintiff must prove that but for the lawyer’s negligence he would have won the underlying lawsuit.  This is known as the case within a case requirement.

The lawyer may escape liability where he withdrew before the statute of limitations on the particular claim expired.  See Dolce v. Gamberdino, 376 N.E.2d 273 (Ill. App. 1st. Dist. 1978).  This is an old case in which the client filed a legal malpractice lawsuit against the lawyer alleging that the lawyer had failed to prosecute a worker’s compensation claim.  Later, she learned that the claim was barred by the statute of limitations.  The appellate court affirmed the dismissal of the claim.  It stated: “The plaintiff discharged him as her attorney on January 6, 1971, several weeks prior to the time the workmen’s compensation filing period ended.  After this discharge Gamberdino had no authority to act in the plaintiff’s behalf. … He, therefore, had no further duty to the plaintiff.”

This is an important case because it recognizes the obvious – the lawyer could not act for the client after he was terminated.  It also encourages the practicing lawyer to make a written record when the client terminates him.  The written record of termination need not be argumentative or lengthy.  It simply needs to explain that the lawyer was terminated and will no longer be handling the matter.  There is no question that the lawyer defendant was exonerated because he kept written records of the client’s instructions.

B. Failure to Prosecute A Case.

A lawyer who accepts a representation, but fails to diligently prosecute the client’s case is liable to the client.  The leading case is Stevens v. Walker, 55 Ill. 151 (1870).  In Stevens, the defendant attorneys failed to diligently prosecute the client’s lawsuit, which was ultimately dismissed by the court for want of prosecution.  The court explained: “the defendants accepted the retainer, and undertook the collection of the claim, but did not prosecute the same in a proper, skillful and diligent manner, whereby the claim became wholly lost to plaintiff.”  The court described the omission as “an act of unreasonable neglect, or perhaps, to speak more accurately, of culpable forgetfulness on their part.”  Id.  Thus, under Illinois common law the lawyer has had a duty to diligently prosecute claims on behalf of clients since 1870.  The failure to prosecute can also apply to a defense case – where a lawyer is hired to defend a case.  The failure to assert a winning defense can be sufficient for legal malpractice liability.

C. Failure To Convey A Settlement Offer To The Client

In First National Bank of LaGrange v. Lowrey, 872 N.E.2d 447, 375 Ill. App. 3d 181 (1st Dist. 2007), the appellate court affirmed a judgment of $1.0 million against a medical malpractice attorney who failed to tender a settlement offer of $1.0 million to his client.  Lowrey represented the plaintiffs in a medical malpractice case.  Prior to the trial the defendants offered $1.0 million to settle the case.  Lowrey rejected the offer in the judge’s chambers and, according to plaintiff, did not communicate the offer to his client.  The trial resulted in a not guilty verdict for the defendants.  When plaintiff learned of the rejected offer, she sued for legal malpractice.  Thus, it is advisable to keep a written record that a settlement offer was made and that it was conveyed to the client.

D. Charging Excessive Fees

In Coughlin v. SeRine, 154 Ill. App. 3d 410, the Illinois Appellate Court held that the client can allege legal malpractice by alleging that the lawyer charged “exorbitant, excessive or fraudulent fees.” Rule 1.5 also prohibits the lawyer from charging excessive fees.

Comment: remember that legal malpractice is often difficult to define.  There are always new types of cases emerging.