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Ethics & Professional Responsibility FLASHPOINTS June 2022

Terrence P. McAvoy, Matthew L. Pagano & Katherine G. Schnake
Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago
312-704-3000 | E-mail Terrence P. McAvoy | E-mail Matthew L. Pagano | E-mail Katherine G. Schnake

Lawyer Unsuccessfully Invokes Statute-of-Limitations Defense in Malpractice Claim Alleging Missed Statute of Limitations on Underlying Claims

Plaintiff Michael Koumjian claimed he was harassed on the job for his ethnicity and fired when he complained to his employer. Koumjian v. Mudd Law Offices P.C., Case No. 21-cv-3455, 2022 WL 345080 (N.D.Ill. Feb. 4, 2022). When he hired an attorney (the defendant) to represent him in a lawsuit against his former employer, the defendant took little action in pursuit of the plaintiff’s rights. Ultimately, the defendant never filed a complaint, and the statute of limitations for the plaintiff’s potential claims lapsed. The defendant then dropped the plaintiff as a client, and the plaintiff subsequently sued him for legal malpractice. The defendant moved to dismiss, arguing that the plaintiff waited too long to sue him. The court noted: “[t]he lawyer who botched the statute of limitations invokes the statute of limitations to dismiss a claim about botching the statute of limitations.” 2022 WL 345080 at *1. The defendant’s motion was denied.

Complete Summary

The plaintiff worked as a pilot for an airline. During his training in early 2018, he allegedly experienced ethnic discrimination and harassment from a fellow pilot. After the plaintiff complained, the airline fired him. The plaintiff sought legal assistance from the defendant, asking for advice on bringing a wrongful discharge claim in federal court. The defendant advised against a wrongful discharge claim, and suggested a defamation claim instead. The statute of limitations had not yet expired on either claim.

After the plaintiff formally retained the defendant, months passed without any progress in the case. “By April 2019, [the defendant] had done nothing,” and the statute of limitations for both defamation and filing a charge of discrimination with the EEOC had expired. Id. The defendant never told the plaintiff about this, instead suggesting that the plaintiff bring a claim for tortious interference and providing a rough draft of a complaint. For almost a year and a half thereafter, the defendant “did little or nothing except evidently, evaluate the claims.” 2022 WL 345080 at *2. Eventually, the defendant withdrew because the plaintiff could not pay him more.

The plaintiff then sued the defendant for malpractice in state court, and the defendant removed the case to federal court. The plaintiff asserted that the defendant breached the retainer agreement and violated the standard of care in multiple ways, including missing the statute of limitations for the discrimination and defamation claims. The defendant moved to dismiss on the basis that the statute of limitations on the plaintiff’s claim for legal malpractice had expired, and — because Illinois does not recognize a claim for tortious interference (according to the defendant) — the plaintiff could not sue him for failure to bring that claim.

In denying the defendant’s motion, the court explained that the discovery rule applies to Illinois’ two-year statute of limitations for legal malpractice. Thus, the limitations period begins to run “once an injured party has a reasonable belief that the injury was caused by wrongful conduct thereby creating an obligation to inquire further on that issue” and not at the moment of “the attorney’s misapplication of his legal expertise.” 2022 WL 345080 at *3. Moreover, “there is nothing inherently obvious about the lapse of a statute of limitations, especially for a layperson.” 2022 WL 345080 at *4. In this case, the plaintiff did not allege any facts showing that he knew or should have known of the injury more than two years before he filed suit against defendant. Thus, the statute of limitations could not have lapsed.

As to the defendant’s assertion that he could not be faulted for failing to bring a claim for tortious interference because no such claim exists in Illinois, the court rejected the defendant’s argument because such a claim does in fact exist in Illinois. If such a claim did not exist, “one wonders why [the defendant] sent [the plaintiff] a draft complaint with a tortious interference claim” in the first place. Whether or not the claim was sustainable, the plaintiff did not sue the defendant for failing to file it, but for “fixating on tortious interference when the facts didn’t support it, and when other claims were more promising.” 2022 WL 345080 at *7. The court therefore denied the defendant’s motion.

Significance of Decision

When analyzing the statute of limitations governing claims against attorneys, one must always consider the discovery rule. A legal malpractice action generally accrues when the plaintiff knew or reasonably should have known he or she suffered wrongfully caused injuries.

For more information about ethics and professional responsibility, see ATTORNEYS’ LEGAL LIABILITY (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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