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Insurer’s Legal Malpractice Action Against Defense Counsel Dismissed

WEST BEND MUTUAL INSURANCE COMPANY v. RODDY, LEAHY, GUILL & ZIEMA, LTD., Dist. Court, ND Illinois 2014 – Google Scholar.

This is a legal malpractice case arising out of a defense of a workers compensation claim. West Bend alleged that the defense counsel retained to handle the workers compensation claim did not meet their professional duties because they conceded liability and failed to prepare an adequate defense, including failing to adequately depose the treating physician and failing to develop a causation defense.

Judge Guzman dismissed the complaint pursuant to Rule 12(b)(6) on the grounds that the record demonstrated that the lawyer defendants did not concede liability and failed to plead causation. The opinion explains:

“Plaintiff fares no better with its assertion that it was damaged by defendants’ failure to depose the IME. As discussed above, this lapse did not cause plaintiff to stipulate to liability. Therefore, defendants’ failure to depose the IME during its tenure as plaintiff’s counsel satisfies the cause element of the malpractice claim only if plaintiff’s new counsel was unable to take the deposition between April 2007, when he was retained, and January 2010, when plaintiff signed the settlement agreement. Plaintiff makes no such allegation. Thus, even if defendant’s failure to depose the IME breached a duty to plaintiff, there is no basis for inferring that it caused plaintiff any harm.”

The opinion relies upon an old defense doctrine – if the lawyer was discharged before the matter was completed and his successor had the ability to complete the work (take the deposition), there is no legal malpractice. The lawyer’s failure to take the deposition did not cause any harm because successor counsel could have done so. Some cases describe the successor counsel as “breaking the chain of causation.”

It appears from the opinion that plaintiff’s counsel failed to do adequate legal research before bringing the claim. Some critics have argued that lawyers are the only defendants to get this defense. In other words, other tort defendants are not released when another actor is involved after them. In an accident if there are two negligent parties, both will be held liable. The reason lawyers are treated differently than other defendants is that a new lawyer often has a clean slate to write upon which will allow him to remedy past errors (take discovery, file a claim, amend a will, etc.).  Few other tort defendants get a clean slate.

Edward X. Clinton, Jr.

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