Articles Posted in Successor Counsel

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Illinois has a rule that allows a plaintiff to dismiss a case once. The plaintiff can then refile the case. The rule does not allow multiple dismissals. In Webster Bank v. Pierce & Associates, P.C., No. 16 C 2522 (N.D. IL March 14, 2019), the court denied a defendant law firm’s motion for summary judgment because the law firm had violated the refiling rule.

The Illinois single refiling rule provides that if:

the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, * * * the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after * * * the action is voluntarily dismissed by the plaintiff.735 Ill. Comp. Stat. Ann. 5/13-217. This provision is understood to “permit[] one, and only one, refiling of a claim.” Flesner v. Youngs Development Co., 145 Ill.2d 252, 254 (1991). The single refiling rule is considered to be an extension of res judicata. Carr v. Tillery, 591 F.3d 909, 915 (7th Cir. 2010) (“The one-refiling rule is thus the extension of the doctrine of res judicata to a class of cases in which the decision deemed to be res judicata is a dismissal without prejudice.”)

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Sometimes things get missed or lost in the shuffle when clients change lawyers. It is often difficult to get the new lawyer up to speed in time to get a case ready for dispositive motions or trial.  When I see that the client had numerous lawyers involved in a case, that is usually a good signal that the case cannot be won. Each lawyer will blame another lawyer and its tough for the plaintiff to recover. You can sue everybody, but you will be subject to motions to dismiss and separate defenses.

This is a legal malpractice case recognizing the successor counsel defense. Ryan was represented by the Simmons firm in certain litigation. It was undisputed that they withdrew before the statute of limitations on some of Ryan’s claims ran. Successor counsel appeared 13 weeks before the pleadings closed in the litigation. The court quotes the law, which is well-settled:

Our supreme court has acknowledged the rule that “[a]n attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and was replaced by other counsel before the statute ran on the client’s action.” Ruden v. Jenk, 543 N.W.2d 605, 612 (Iowa 1996) (quoting Steketee v. Lintz, Williams & Rothberg, 694 P.2d 1153, 1159 (Cal. 1985)). Other courts have further explained the effect of successor counsel in legal malpractice claims. See Norton v. Sperling Law Office, P.C., 437 F. Supp. 2d 398, 402-03 (D. Md. 2006). The actions of successor counsel may create “an intervening cause that breaks the chain of causation arising from the prior attorney’s negligence.” Id. at 402. In order to rely on this rule, the prior attorney must show “a sufficiently long time gap between the severing of the attorney-client relationship and the lapse of the statute of limitations.” Id. at 403. “Courts have not set a minimum baseline for what constitutes `sufficient time,’ although one court has deemed as little as thirty days sufficient.” Id. (citing Sherotov v. Capoccia, 555 N.Y.S.2d 918 (App. Div. 1990)); but see id. at 403 (finding ten weeks was not sufficient time for successor counsel to bring a personal injury case where the proper forum was not clear); Villarreal v. Cooper, 673 S.W.2d 631 (Tex. App. 1984)(finding seventy-seven days was not sufficient time for successor counsel to bring a tort case when prior counsel had the case for sixteen months and evidence and witnesses could no longer be located).