Cook County Record

Saturday, April 4, 2020

Union members cannot sue for malpractice if legal counsel is hired through the union, appeals court rules

Lawsuits

By John Breslin | Feb 25, 2020

Bilandic building
Illinois First District Appellate Court

Members of a union cannot sue the attorney that represented them if the legal counsel was provided by the union, under a ruling from a state appeals panel.

Former police officer Russell Zander sued his lawyer and the Fraternal Order of Police after he lost his unlawful termination case against the Village of Fox Lake.

The Illinois First District Appellate Court affirmed the decision of Cook County Judge Martin S. Agran, who found the attorney, Roy Carlson, was immune from individual liability and that any claim against the FOP must be heard before the Illinois Labor Relations Board.


Illinois First District Justice Bertina Lampkin | Illinoiscourts.gov

In the judgment, issued last November, the justices ruled the ILRB has jurisdiction if there is an allegation that a union violated its duty to a member. When an attorney is hired by the union, it is part of the collective bargaining process and therefore is responsible to the organization, not the individual, the panel stated.

Zander argued he had a direct attorney-client relationship with the lawyer. The underlying suit alleged legal malpractice after Zander, on advice, waived his right to a hearing before the local police board and challenge his termination through arbitration.

Tim Miller, a legal malpractice defense attorney with the firm of Novack and Macey in Chicago, said the appellate court decision was somewhat surprising as the standard is that if a lawyer is providing services, they normally have a duty to the client.

Neither Miller nor the Novack and Macey firm represented any parties in the dispute.

"The interesting thing is that there was a dispute that the police officer was the lawyer's client," Miller told the Cook County Record. He said he did not know of any other similar cases.

The attorney did note that the author of the ruling, Justice Bertina Lampkin, said the court did not want to set a different standard and “hold certain agents or employees of the union to a far higher standard of care than the union itself."

In order to be able to sue an attorney, the union member has to prove that the attorney agreed to provide representation as an individual rather than “acting pursuant to his obligation to provide representation for or on behalf of the union.”

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Organizations in this Story

Novack and Macey LLPIllinois First District Appellate CourtVillage of Fox LakeFraternal Order of Police UnionCircuit Court of Cook County