A state appeals panel has agreed a woman can’t proceed with a lawsuit seeking to hold a law firm liable for sexual harassment and assault one of its lawyers allegedly perpetrated.
Karen Ward sued Kutak Rock, a Chicago firm, and one of its attorneys, the late Charles MacKelvie, whom she retained in an appellate probate matter in February 2021 through a contingency fee agreement. When the firm billed Ward, she alleged MacKelvie responded that “there were other ways to pay for his services.” She further alleged MacKelvie began a series of communications in which he said he would only work on Ward’s brief if she sent him naked photographs.
Ward said she “felt pressure to send the naked photos” and alleged details of a December 2021 incident in which MacKelvie demanded Ward have sex with him in a Deerfield hotel or he would stop working on her case. She said the encounter caused her to develop depression and post-traumatic stress disorder.
The complaint alleged battery and a Gender Violence Act claim against MacKelvie and negligent supervision against the law firm. Although MacKelvie has since died, those claims against his estate are pending in circuit court.
Kutak Rock asked Cook County Circuit Court Judge Gerald Cleary to dismiss it from Ward’s lawsuit. He did so, with prejudice, a ruling Ward challenged before the Illinois First District Appellate Court.
Justice Eileen Burke wrote the panel’s order, issued May 31; Justices Margaret Stanton-McBride and Jesse Reyes concurred. The order was issued under Supreme Court Rule 23, which may limit its use as precedent.
Burke said claims for negligent supervision must establish first that an employer has a duty to supervise an employer, then that the employer was negligent in doing so and that the negligence caused a legal harm. She further explained the first element is the issue on appeal.
Ward’s complaint, Burke wrote, “contains no facts suggesting that it was foreseeable to Kutak Rock that MacKelvie posed a risk of sexually harassing or assaulting female clients. Illinois is a fact-pleading jurisdiction, and it is not sufficient for plaintiff to simply recite that Kutak Rock had a duty of supervision without facts to support that claim.”
Unlike other instances where relationship dynamics or an employee’s professional conduct establish predictable danger, the panel said, “an attorney-client relationship between two adults does not present the same inherent danger or foreseeability.” Ward’s complaint failed because it lacked allegations of “facts establishing that Kutak Rock knew, could have known, or should have known that MacKelvie was behaving in a sexually inappropriate manner toward her. On the contrary, plaintiff alleges that MacKelvie’s sexual harassment of her consisted of direct communications between her and him, and that the sexual assault occurred at a hotel in Deerfield, apparently with no connection to the firm or its offices.”
The lone indicator in Ward’s complaint to suggest what the firm could or should have known was that she wasn’t making payments on her account. However, Ward also alleged her retainer was on a contingency basis, with MacKelvie to be paid from any proceeds Ward collected if her litigation succeeded.
“We struggle to understand why Kutak Rock would issue and expect payment of regular bills for MacKelvie’s work if the firm was supposed to be paid on contingency,” Burke wrote. “Even accepting these facts as true, they do not create a duty of supervision. The fact that Kutak Rock was not receiving payment for MacKelvie’s work did not make it foreseeable that he would sexually harass and assault plaintiff. We cannot see, and plaintiff’s briefs do not explain, the connection between these two things.”
Ward further attempted to invoke the Illinois Rules of Professional Conduct, which stipulate lawyers’ roles in supervising other attorneys. But the panel noted the preamble to those rules specifically state “violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”
Although the panel expressed general agreement with Ward’s contention law firms should have a duty to supervise lawyers, it said the complaint nonetheless lacks allegations Kutak Rock could’ve predicted MacKelvie’s alleged conduct and also “cites no authority holding that the attorney-client relationship presents an inherent danger of sexual abuse such that attorneys sexually assaulting clients is always foreseeable to law firms.”
The panel affirmed Judge Cleary’s ruling.