Appeals court denies constitutional challenge to Illinois repose statute in estate legal malpractice case

By Mike Helenthal | Jun 5, 2017

CHICAGO — The Illinois First District Appellate Court has upheld a lower court's decision that a plaintiff couldn’t sue the lawyers who handled his father’s estate because he didn’t file the malpractice suit in time, ruling Illinois' repose statute was constitutionally sound in placing "reasonable" time limits on the ability of heirs to sue over the handling of estates.

The decision was delivered May 23 as an unpublished order issued under a Supreme Court Rule 23, which limits the order’s use as a legal precedent.

Both issues were challenged in an appeal by plaintiff David Shutack of a Cook County Judge’s decision dismissing his lawsuit against attorney Susan Bart and the firm of Sidley Austin LLP, of Chicago. 

In his legal action, Shutack claimed Bart had persuaded his father, John Shutack, to not alter his estate plan as the plaintiff claimed his father had wished, to give him half of the estate, and his siblings each 12.5 percent. Instead, Shutack claimed, Bart prevailed upon his father to keep the estate equally divided among the siblings, giving each 20 percent. Also, Shutack claimed, at no point did Bart disclose Sidley Austin had represented plaintiff Shutack's step-sister in estate planning, as well, creating a conflict of interest.

Shutack had filed an attorney malpractice claim on July 8, 2015, more than six months after the period for filing claims against the estate of his father had expired. Shutack’s father died on July 28, 2013.

The lower court had ruled that, under Illinois law, Shutack would have had to file his probate claim and his constitutional claim under the equal protection clause by March 11, 2014.

“Where an injury caused by an attorney’s act or omission does not occur until the death of the person for whom professional services were rendered, suit may be filed within two years of the client’s death, except where letters of office issue or the person’s will (are) admitted to probate,” the appellate court said. “The attorney negligence claim must be filed within the time for filing a will contest or within the time for filing a claim against the estate, whichever is later.”

The appeals justices said Shutack's arguments against the statute of repose gained no traction on appeal, noting the law "is rationally related to the legitimate state interests of providing a reasonable time after a decedent’s death to pursue a cause of action for legal malpractice against attorneys who represented the decedent in estate planning matters, balancing an attorney’s right to be free of stale claims, and the need for closure with respect to matters related to a decedent’s estate."

Justices also brushed aside Shutack's arguments the law violated his rights of equal protection, saying that argument couldn’t be raised because it wasn’t even mentioned in the initial lower court case.

“Plaintiff’s failure to raise his federal constitutional argument in the circuit court results in forfeiture, and we decline to address it,” the appellate court said. They noted Shutack had not followed established rules of notifying the Illinois Attorney General of the constitutional argument prior to trial.

The decision was authored by Justice Daniel J. Pierce, with justices Michael B. Hyman and P. Scott Neville Jr., concurring.

According to Cook County court records, Shutack was represented by attorney Edward X. Clinton, of Chicago. 

Sidley Austin was defended by attorney Richard J. Prendergast, of Chicago. 

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Organizations in this Story

Illinois Attorney General Illinois First District Appellate Court Richard J. Prendergast, Ltd. Sidley Austin LLP

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