Chicago Legal Malpractice Lawyer Blog
Don’t Sue The Other Party’s Lawyer
Unfortunately, one of the most common ways for a lawyer to be sued is by an opposing party. As a lawyer, you owe a duty to your client. You do not owe a duty to the opposing party. (There are duties to the Court and duties to comply with professional rules too, but those are not at involved here.) In my career I have been sued twice by opposing parties. Both cases were dismissed.
Cole v. Yanoff, 2025 IL App (1st) 241017-U is a new version of this old story. Yanoff represented a landlord who sued and sought to evict Cole. In the eviction case (the first case) Cole then sued Yanoff for breach of contract, intentional infliction of emotional distress. After he lost the eviction case, Cole filed another case (the second case) against Yanoff. The Circuit Court dismissed the second case on the grounds of the Absolute Litigation privilege and Cole appealed. The absolute litigation privilege prohibits a litigant from suing the other party’s lawyer if the cause of action arises out of the legal work the lawyer did.
The Illinois Appellate Court affirmed the dismissal of the complaint. Cole’s complaint was dismissed with prejudice, finding that all claims were barred by the doctrine of res judicata. Res Judicata is a Latin term for “Once you lose a case on the merits, you cannot refile the same case aginst the same people again.” For res judicata to apply, the prior judgment must fulfill three requirements: (1) a final judgment from a court of competent jurisdiction, (2) an apparent cause of action, and (3) an identity of parties or their privies. During the case’s first proceedings, there was no evidence to defeat the res judicata defense. The eviction judgment was final and on the merits and Cole and Yanoff were parties to both cases.
While there are five specific extenuating circumstances in which res judicata would be fundamentally unfair to apply, none were present in Cole’s case.
As outlined in Rein v. David A. Noyes & Co., 172 I11. 2d 325, 341 (1996), there are exceptions to res judicata when: “(1) the parties have agreed in terms or in effect that the plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiff’s right to maintain the second action; (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involved a continuing or recurrent wrong or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason”.