Dana Herra Jun. 19, 2015, 9:07am

A lawyer who chairs his firm’s advertising, marketing and privacy law practice should not be held accountable for allegedly failing to install legal safeguards to keep a client, a Latin American concert promotions company, from losing out on a payday it believes was owed for a concert at an American Indian casino, a state appeals panel has ruled.

A three-justice panel of the Illinois First District Appellate Court issued an unpublished order June 12 upholding the Cook County Circuit Court’s dismissal of a legal malpractice action brought by Cardenas Marketing Network Inc. against its attorney, Brian Heidelberger, and Winston & Strawn LLP, the Chicago firm in which Heidelberger is a partner.

The order, authored by Justice Bertina Lampkin, with justices Thomas E. Hoffman and Shelvin Louise Marie Hall concurring, held that Cardenas had failed to establish proximate causation in its suit against Winston & Strawn.

Cardenas, an event marketing agency that also promotes Latin music concerts, first retained Winston & Strawn in 2008 to represent it in matters related to the entertainment industry. The lawsuit stemmed from a 2009 incident in which Cardenas claimed Heidelberger did not provide adequate advice or take sufficient protective measures to prevent it from being swindled on a concert it co-produced at a Connecticut casino.

In October 2009, court documents state, Cardenas entered into an oral agreement with music producer Artie Pabon to co-produce a January 2010 concert at the casino, which had an exclusive contract with Pabon. According to the order, Pabon had a history of breaking such agreements and owed Cardenas a significant amount of money, so Cardenas asked Heidelberger to write a letter to the casino directing it to pay concert proceeds directly to Cardenas. Pabon delivered the letter in November 2009, but the casino refused to be bound by it, holding to its exclusive contract with Pabon instead.

Pabon allegedly breached the October agreement at the end of November, when he failed to make a required payment, court records state. Cardenas and Pabon then entered into a new oral agreement stating that the casino would pay all of the gate proceeds directly to Cardenas.

The day of the concert, Cardenas served Pabon with a summons in a previous lawsuit. After receiving the summons, Pabon told the casino he was to receive all the gate proceeds, and the casino paid him. Cardenas demanded payment from the casino, which held that it had no obligation to Cardenas and, as an arm of a sovereign American Indian nation, was immune from a lawsuit. Cardenas sued Pabon, but that suit was dismissed.

Cardenas then sued Heidelberger and his firm, claiming they breached their duty by failing to establish a mechanism that would force the casino to pay Cardenas and by failing to advise the company that without such safeguards in place, its efforts to collect the money would be futile.

The lawsuit did not indicate that Winston & Strawn was involved in either of the oral agreements. The suit also did not indicate that the attorneys knew about Pabon’s breach of the initial agreement or that they knew Cardenas planned to serve him with a lawsuit while he still had the ability to revoke the letter to the casino.

The order notes that a string of emails between Heidelberger and Cardenas, which were entered into evidence in the trial, gave no assurances that the letter to the casino could be enforced, though Heidelberger did say he believed the situation was “pretty low risk.”

Cardenas knew about Pabon’s history and that the casino refused to be bound by its letter, but decided to co-produce the concert anyway. The trial court found, and the appellate court upheld, that Cardenas failed to show how different advice from Heidelberger would have caused it to behave any differently.

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