Clients in Illinois have two years from the date they suffer damages as a result of mistakes made by their past lawyers to sue those attorneys for legal malpractice, the Illinois Supreme Court has ruled.
The high court rejected arguments that the clock on the statute of limitations may have started ticking years earlier, when the alleged malpractice occurred.
The Jan. 21 decision was penned by Illinois Supreme Court Justice Mary Jane Theis, with concurrence from Chief Justice Anne Burke and justices P. Scott Neville Jr., Rita Garman, Michael Burke, Robert Carter and David Overstreet.
The ruling favored Suburban Real Estates Services Inc., of Naperville, in its dispute with lawyer William Roger Carlson Jr. and his firm, Carlson Partners Ltd., of Lombard. Suburban is owned by Bryan Barus.
Carlson's attorney, John J. D'Atomo, of Nisen & Elliott, of Chicago, told the High Court the issue in play was significant to the legal community.
"This case presents an issue of considerable importance to attorneys throughout the state of Illinois, legal clients, as well as judges on the lower courts that must adjudicate claims of legal malpractice," D'Atomo said during oral arguments Nov. 10.
In 2006, Suburban and another company, ROC, which was owned by Michael Siurek, formed ROC/Suburban as a 50-50 collaboration, according to court documents. The new company provided commercial property management services to Suburban. In 2010, Barus obtained advice from Carlson as to how to dissolve ROC/Suburban. Based on this advice, Barus then notified Siurek they were splitting, court papers said.
Siurek sued Suburban in August 2010 in DuPage County Circuit Court. The following October, Suburban hired Gaspero & Gaspero, of Downers Grove, to fight the suit.
After a bench trial in June 2015, Suburban was determined to have breached its fiduciary duty to ROC/Suburban, with Suburban ordered to pay $336,652 to ROC/Suburban.
Suburban turned around in May 2016 and sued Carlson in Cook County Circuit Court for legal malpractice, alleging Carlson furnished bum advice. Suburban sought more than $600,000 in damages.
Carlson claimed Suburban sued after the two-year statute of limitation expired. Carlson argued Suburban first suffered alleged harm from Carlson when Suburban started paying fees to its new counsel in November 2010. Carlson further contended Suburban should have known of any alleged harm by April 2013 at the latest, when the judge in the fiduciary duty case stated a legal malpractice action was certain, and Suburban inquired as to whether such an action could be undertaken.
Circuit Judge Diane Shelley, who handled the malpractice suit, agreed the two-year statute began running no later than April 2013, which was three years before the suit was lodged. She dismissed the case. However, Illinois First District Appellate Court overturned Shelley, saying the clock began ticking in June 2015 when Suburban was found at fault in the suit with ROC/Suburban.
At the Illinois Supreme Court, Justice Theis confirmed the appeals court ruling.
"This is not a case where, prior to any adverse ruling, plaintiffs knew or should have known they had suffered a monetary loss caused by defendants’ negligent advice. Merely hiring new counsel to defend against a lawsuit challenging the attorney’s legal advice and incurring fees does not, standing alone, trigger a cause of action for malpractice," Theis said.
Theis added: "By providing legal representation, an attorney is not guaranteeing the client he or she represents that the client will never be sued or agreeing to indemnify the client if it is sued."
Theis noted Suburban's damages were “entirely speculative" until it lost the trial. The justice pointed out that to require a client to bring a provisional malpractice suit, before damages were incurred, would "undermine judicial economy and the attorney-client relationship."
In the view of Theis, who quoted a 1995 Second District opinion, it is "the realized injury to the client, not the attorney’s misapplication of expertise, [which] marks the point in time for measuring compliance with a statute of limitations period.”
The suit was returned to circuit court for further proceedings.
Suburban has been represented by John W. Moynihan, of Cooney Corso & Moynihan, of Downers Grove.