A state appeals panel won’t end a lawsuit from the family of a Johnsburg man with Parkinson’s disease who claims a Missouri law firm mishandled his legal claims against the companies he sought to hold liable for chemical exposure linked to the condition.
Bryan Dick-Ipsen and his wife, Karen, who live near the Wisconsin border, retained Andrew Smith, of Humphrey, Farrington & McClain, in Independence, Mo., because they said the firm is experienced in handling cases for clients exposed to the chemicals perchloroethylene and trichloroethylene, as Dick-Ipsen allegedly was during his dry cleaning career.
The family said the firm touted a jury verdict of $20 million for as similarly situated client, but lodged a malpractice suit because they say the lawyers were too slow to identify the relevant chemical manufacturers, instead focusing on recovery only from suppliers.
Humphrey, Farrington & McClain invoked an arbitration clause in a retainer agreement with the Dick-Ipsens, and while Cook County Circuit Court Judge Catherine Schneider determined that clause wasn’t “substantively unconscionable,” she did determine it was “procedurally unconscionable” because Dick-Ipsen wasn’t “fully informed” of the clause’s scope and effects.
After Schneider ruled the dispute should proceed to trial, the firm challenged that ruling before the Illinois First District Appellate Court. Justice Nathaniel Howse wrote the panel’s opinion, filed Aug. 30; Justice Margaret Stanton-McBride and David Ellis concurred.
The panel explained state and federal law favor resolving disputes through arbitration when such agreements exist, but examined limitations on compelled arbitration for legal malpractice lawsuits when a client doesn’t have a third-party lawyer providing advice on the matter before signing.
Howse said “the uncontested evidence” showed the firm never discussed its arbitration provision with Dick-Ipsen, who alleged “he did not know what the terms meant, did not know what he was giving up by agreeing to submit to arbitration, and overall was not fully informed about the effect of the arbitration provision.”
Humphrey, Farrington & McClain argued “state law ethical rules cannot invalidate an arbitration provision” and noted no Illinois court has addressed whether the Illinois Rules of Professional Conduct inform the dispute. But the panel said those rules “provide guidance on the existing standards for attorney conduct in Illinois and serve as a lens through which we can review the circumstances of the contract formation to decide whether enforcing an arbitration provision would be unconscionable.”
The panel framed Dick-Ipsen as someone with a worsening brain disease who had been a dry cleaner since high school, whereas the “defendants are sophisticated attorneys who have earned multi-million-dollar settlements and verdicts in high-profile litigation. Although (Dick-Ipsen) was only a prospective client at the time of executing the retainer agreement, defendants were nonetheless in a position of trust under which they owed plaintiff certain ethical duties.”
Notably, the law firm “presented no evidence” to show it explained the terms to Dick-Ipsen or that he knew he was agreeing to things like having to drive 500 miles and pay half the cost to participate in arbitration proceedings. While acknowledging different federal appeals panels have conflicting rulings on similar issues, the panel remanded the complaint for further proceedings.
“We are presented with an individual client who has not been shown to have any sophistication with regard to legal matters,” Howse wrote. “Defendants opted not to provide plaintiff with any information about what the terms of the contract meant and, instead, simply sent the agreement to plaintiff for his signature. … Defendants’ failure to inform plaintiff about any of the potential effects of the arbitration provision constitutes an infirmity during the process of contract formation, such that plaintiff lacked the requisite knowledge to make a meaningful choice.”
The law firm is represented by Konicek & Dillon, of Geneva. Humphrey, Farrington & McClain did not respond to a request for comment.
The Dick-Ipsens are represented by Lane Brown, of Chicago, and Carey Danis & Lowe, of St. Louis.