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Table of Contents
-
List of Forms by Chapter - Chapter 1 — Introduction — The Lawyer as a Professional: How Our Professional Responsibilities Shape Our Practice
- Chapter 2 — Duties to the Client: Defining the Standards of Care
- Chapter 3 — Attorney Liability to Non-Clients
- I. [3.1] Introduction
-
II. Common-Law Liability to Non-Clients - [3.2] The Historical Debate
- [3.3] The Rise of the Third-Party Beneficiary
- [3.4] Illinois’ Adherence to the Intended Third-Party Beneficiary Rule
- [3.5] Minority or Disability as Tolling the Statute of Repose
- [3.6] Wrongful-Death Litigation
- [3.7] Fraudulent Concealment as Tolling the Statute of Repose
- [3.8] Exception to Statutes of Limitation and Repose: When Injury Occurs After Death
- [3.9] No Duty To Advise of Lawyer’s Own Malpractice
- [3.10] Liability to Client’s Creditors
- [3.11] Business Entities
- [3.12] Agent of Undisclosed Principal
- [3.13] Successors in Interest
- [3.14] Effect of Death
- [3.15] Fraud
- [3.16] Aiding and Abetting Client Fraud or Fiduciary Breaches; Lawyer Participation in Civil Conspiracy
- [3.17] Interference with an Advantageous Relationship
- [3.18] Conversion
- [3.19] Abuse of Process
- [3.20] Malicious Prosecution
- [3.21] Negligent Misrepresentation
- III. Statutory Liability to Non-Clients
- IV. Defenses and Privileges Applicable to Actions by Non-Clients
- Chapter 4 — Attorney Liability to Adversaries and Other Third Parties
- I. Malicious Prosecution
- II. Abuse of Process
- III. Unauthorized Filing
- IV. Defamation
- [4.11] Defamation Per Se
- [4.12] The Innocent-Construction Rule
- [4.13] Constitutionally Protected Opinions
- [4.14] Truth
- [4.15] Defamation Per Quod
- [4.16] Privileges
- [4.17] Absolute Privilege
- [4.18] Conditional Privilege
- [4.19] Attorneys’ Conditional Privilege
- [4.20] The Uniform Single Publication Act
- [4.21] Statute of Limitations
- V. [4.22] Tortious Interference with Contract
- VI. [4.23] Tortious Interference with Business Relationship and Expectancy
- VII. [4.26] Aiding and Abetting a Breach of a Client’s Fiduciary Duty to Another
- Chapter 5 — Legal Malpractice
- I. [5.1] Introduction
- II. [5.8] Pleading Requirements
- III. [5.18] Third-Party Proceedings
- IV. [5.22] Defenses
- V. Limitations
- [5.28] Statute of Limitations
- [5.29] Statute of Repose
- Exceptions to the Statutes of Limitations and Repose
- [5.30] Disability or Minority
- [5.31] Death or Probate Contests
- [5.32] Reversal or Dismissal
- [5.33] Equitable Estoppel
- [5.34] Judicial Estoppel
- [5.35] Collateral Estoppel
- [5.36] Fraudulent Concealment
- [5.37] Economic Duress
- [5.38] Indemnity and Contribution Actions
- [5.39] Counterclaims
- [5.40] Tolling Agreements
- [5.41] Immunity
- [5.42] Liens and Setoffs
- [5.43] Res Judicata and Collateral Estoppel
- [5.44] Releases
- VI. [5.45] Summary
- VII. Sample Forms
- Chapter 6 — Litigating the Legal Malpractice Case
- I. [6.1] Introduction
- II. Commencing the Legal Malpractice Case
- [6.2] Plaintiff’s Pretrial Investigation
- [6.3] Existence of the Attorney-Client Relationship
- [6.4] The Underlying Matter
- [6.5] Considerations of Limitations and Prematurity
- [6.6] Tolling Agreements
- [6.7] Use of Expert/Consultant Prior to Filing Suit
- Pleadings
- [6.8] The Complaint
- Responding to the Complaint — Defendant’s Perspective (Motion Practice)
- [6.9] Motion for Extension of Time To Answer or Otherwise Plead
- [6.10] Motions To Dismiss Pursuant to 735 ILCS 5/2-615 — Defects
- [6.11] Failure to state a claim
- [6.12] Duplicative counts or causes of action
- [6.13] Striking prejudicial matters
- [6.14] Dismissal for lack of viable damage theory
- [6.15] Motion for Removal to Federal Court
- [6.16] Motions To Dismiss Pursuant to 735 ILCS 5/2-619 — Affirmative Matters
- [6.17] Jurisdiction
- [6.18] Statute of limitations
- [6.19] Repose
- [6.20] Prematurity
- [6.21] Res judicata — collateral estoppel — judicial estoppel
- [6.22] Unclean hands or actions based on illegal or immoral conduct
- [6.23] Defenses based on interpretation of underlying law
- [6.24] Punitive damages
- [6.25] Judgmental immunity and other legal theories of defense
- [6.26] Other types of immunity
- [6.27] Motion practice malpractice
- [6.28] Defense based on release of legal malpractice claim
- Considerations of the Answer
- [6.29] Insufficient Knowledge
- [6.30] Admissions of Error
- [6.31] Underlying Pleadings Are Not Binding
- [6.32] Affirmative Defenses
- [6.33] Separate defenses
- [6.34] Affirmative matter in the case within a case
- [6.35] Traditional affirmative matter
- Special considerations of comparative negligence and contributory fault
- [6.36] Implication of other counsel
- [6.37] The defendant’s potential third-party claims
- [6.38] Limitations considerations
- [6.39] Causation considerations
- [6.40] Other considerations
- Considerations Regarding the Jury
- [6.41] The Plaintiff’s Perspective
- [6.42] The Defendant’s Perspective
- Questions of Law
- [6.43] In General
- [6.44] Appellate Review
- [6.45] Bankruptcy Malpractice
- [6.46] Matrimonial Malpractice
- [6.47] Countervailing Argument
- [6.48] Underlying Punitive Damages
- III. Discovery
- IV. Trial of the Legal Malpractice Case
- V. [6.61] Arbitration and Mediation of Legal Malpractice Cases
- Chapter 7 — Breach of Fiduciary Duty
- I. [7.1] Introduction
- II. Defining the Relationship
- III. [7.4] Loyalty
- IV. [7.8] Confidentiality
- V. [7.12] Honesty
- VI. [7.16] Causes of Action
- [7.17] Pleading Requirements
- [7.18] Compared to Legal Malpractice
- [7.19] Shifting Burden of Proof
- [7.20] Tort or Contract
- [7.21] Right to Jury Trial
- [7.22] Effect of Rules of Professional Conduct
- [7.23] Aiding and Abetting Breach of Fiduciary Duty
- [7.24] Requirement of Expert Testimony
- [7.25] Non-Assignability
- [7.26] Limitations
- [7.27] Damages Recoverable
- [7.28] Emotional Distress
- [7.29] Forfeiture of Fees
- [7.30] Punitive Damages
- [7.31] Defenses
- VII. Other Recurring Problems
- Chapter 8 — Attorney-Client Privilege and Attorney-Work-Product Doctrine
- Chapter 9 — Client Trust Accounts
- I. [9.1] Introduction
- II. Client Trust Account Rules
- [9.2] General Duties in Holding Funds or Property in Trust: Rule 1.15 of the Rules of Professional Conduct
- [9.3] Required Characteristics of Holding Property in Trust
- [9.4] Duty To Keep Trust Property Separate
- [9.5] Duty To Keep Full and Accurate Records
- [9.6] Duty To Maintain Identity of Trust Property
- [9.7] Disciplinary Treatment of Trust Account Violations
- III. Basics of Opening and Maintaining a Client Trust Account
- [9.8] Determining the Kind of Trust Account
- [9.9] Interest on Lawyers Trust Accounts Client Trust Accounts
- Opening the Trust Account
- [9.10] Form
- [9.11] Federal Deposit Insurance Corporation Insurance Coverage
- [9.12] Location
- [9.13] Naming the Trust Account
- [9.14] Opening an Interest on Lawyers Trust Account
- [9.15] Utilize Unique Identifiers to Distinguish Trust Accounts from Office Accounts
- [9.16] Select Signatories with Care
- IV. Operating the Trust Account
- [9.17] Litigation Expenses
- [9.18] Handling Settlement Checks
- [9.19] Real Estate Transactions
- [9.20] Non-Client and Third-Party Claims
- [9.21] Disputed Amounts
- [9.22] Retainers and Advances for Fees
- [9.23] Withdrawing Earned Fees
- [9.24] Handling Credit Card Payments for Legal Fees and Expenses
- [9.25] Handling Court E-Filing Electronic Payments
- [9.26] Dealing with Unclaimed or Unidentified Funds
- [9.27] Unclaimed Funds
- [9.28] Unidentified Funds
- [9.29] Bank Charges and Fees
- V. How To Maintain the Account
- [9.30] Essential Accounting Systems
- [9.31] Client Ledger Book — Rule 1.15A(b)(2) of the Rules of Professional Conduct
- [9.32] Receipt Journal — Rule 1.15A(b)(1) of the Rules of Professional Conduct
- [9.33] Disbursement Journal — Rule 1.15A(b)(1) of the Rules of Professional Conduct
- [9.34] Checkbook Register — Rule 1.15A(b)(4) of the Rules of Professional Conduct
- [9.35] Retention of Records
- [9.36] Depositing and Disbursing Funds in the Trust Account
- [9.37] Reconciling Account Records with Monthly Bank Statements
- [9.38] Interest and Bank Costs
- [9.39] Monthly Trust Account Reconciliation
- [9.40] Disclosure of Trust Accounts Under Supreme Court Rule 756
- VI. Appendix
- Chapter 10 — Conflicts of Interest
- I. [10.1] Introduction and Scope of Chapter
- II. [10.2] Conflicts Resolution
- III. Lawyer Civil Liability
- IV. Fee Forfeitures
- V. Disqualification
- [10.7] Current Client and Direct Adversity
- [10.8] Bankruptcy Proceedings
- [10.9] Banks/Trust Departments
- [10.10] Board Positions
- Changing Firms — Screens
- [10.11] National Situation — Lawyers
- [10.12] National Situation — Nonlawyers
- [10.13] Illinois Situation — Lawyers
- [10.14] Illinois Situation — Nonlawyers
- [10.15] States Other than Illinois
- Client Mergers/Asset Sales
- [10.16] Mergers
- [10.17] Asset Sales
- Cocounsel/Joint Defense
- [10.18] Generally
- [10.19] Cocounsel Disqualification Issues
- [10.20] Common Interest Arrangements (Including Joint Defense Agreements) — Switching Sides
- [10.21] Joint Defense Arrangements — Disqualification
- Corporations
- [10.22] Generally
- [10.23] Close Corporations
- [10.24] Corporate Families
- [10.25] Expert Witnesses
- Former Clients — Substantial Relationship Test
- [10.26] Generally
- [10.27] When Does a Current Client Become a Former Client?
- [10.28] What Is a Substantial Relationship?
- [10.29] What Is an Accommodation Client?
- [10.30] The Playbook View of the Substantial Relationship Test
- [10.31] Hot Potato Doctrine
- [10.32] Initial Interview — Hearing Too Much
- [10.33] Joint and Multiple Representations
- [10.34] Intentional Joint Representations
- [10.35] Unintentional Joint Representations
- Litigation
- [10.36] Generally
- [10.37] Insurance Defense
- [10.38] Of Counsel
- [10.39] Opposing Lawyers Negotiating Firm Merger
- Partnerships
- [10.40] Generally
- [10.41] Limited Partnerships
- [10.42] Underlying Work Issues
- Waivers
- [10.43] Advance Waivers
- [10.44] Waiver by Passage of Time
- [10.45] Nonwaivable Conflicts
- [10.46] Witnesses — Client as Adverse Witness
- [10.47] Current Clients
- [10.48] Former Clients
- [10.49] Zero-Sum Games
- VI. [10.50] Attorney Disciplinary Matters
- Chapter 11 — Duty to the Courts — Sanctions
- I. [11.1] Introduction
- II. Pleadings, Motions, and Other Papers: Duties and Sanctions
- [11.2] Federal Rule of Civil Procedure 11
- [11.3] Federal Rule of Civil Procedure 11: The “Frivolousness Clause”
- [11.4] Reasonable Inquiry — The Facts
- [11.5] Reasonable Inquiry — The Law
- [11.6] Federal Rule of Civil Procedure 11: The “Improper Purpose Clause”
- [11.7] Procedural Requirements
- [11.8] Imposing Sanctions
- [11.9] Standard of Review
- [11.10] Illinois Supreme Court Rule 137
- [11.11] Procedural Requirements
- [11.12] Imposing Sanctions
- [11.13] Standard of Review
- III. [11.14] 28 U.S.C. §1927: Statutory Liability for Unreasonable and Vexatious Litigation
- IV. [11.18] The Court’s Inherent Authority
- V. Discovery Obligations and Compliance with Court Orders
- VI. [11.29] Contempt
- [11.30] Contempt in Illinois Courts
- [11.31] Civil Contempt
- [11.32] Criminal Contempt
- [11.33] Contempt Orders Immediately Appealable: Illinois Supreme Court Rule 304(b)
- [11.34] “Friendly Contempt”
- [11.35] Standard of Review
- [11.36] Contempt in Federal Courts
- [11.37] Civil Contempt
- [11.38] Criminal Contempt
- [11.39] Time to Appeal: The “Final Judgment Rule”
- VII. [11.40] Ethical Duties Owed to the Court
- VIII. Sanctions in the Reviewing Courts
- Chapter 12 — Statutes Affecting Lawyer Liability
- I. [12.1] Consumer Fraud and Deceptive Business Practices Act
- [12.2] Scope of the Consumer Fraud and Deceptive Business Practices Act
- [12.3] Elements of a Cause of Action
- [12.4] Statute of Limitations
- [12.5] Claims Involving Attorneys
- [12.6] Cripe v. Leiter
- [12.7] Additional Illinois Caselaw Involving Attorneys and the Consumer Fraud and Deceptive Business Practices Act
- [12.8] Circumstances in Which the Consumer Fraud and Deceptive Business Practices Act May Apply to Attorneys
- [12.9] Summary
- II. [12.10] Illinois Punitive Damage Statute
- III. [12.14] Fair Debt Collection Practices Act
- [12.15] Scope of the Fair Debt Collection Practices Act
- [12.16] Summary of 2006 Amendments to the Fair Debt Collection Practices Act and Regulation F
- [12.17] Application to Attorneys
- [12.18] Regularly Collecting Debts
- [12.19] Law Firms and Partners
- [12.20] Owners and Shareholders
- [12.21] Form of the Entity
- [12.22] Damages
- Class Action
- [12.23] Generally
- [12.24] Maximum Recovery in a Class Action
- [12.25] Attorney Involvement in Debt Collection
- [12.26] Meaningful Involvement
- [12.27] False Threats
- [12.28] Overshadowing
- [12.29] Statute of Limitations
- [12.30] Defenses
- [12.31] Article III Standing
- IV. [12.32] Racketeer Influenced and Corrupt Organizations Act
- [12.33] Elements of a Cause of Action
- Statute of Limitations
- [12.34] Generally
- [12.35] Accrual of the Statute of Limitations
- [12.36] Damages
- Racketeer Influenced and Corrupt Organizations Act Claims Based on Securities Issues
- [12.37] Supreme Court
- [12.38] Seventh Circuit Court of Appeals
- [12.39] District Court
- Racketeer Influenced and Corrupt Organizations Act Claims Based on Other Conduct Involving Attorneys
- [12.40] Seventh Circuit Court of Appeals
- [12.41] District Court
- [12.42] Illinois Appellate Court
- [12.43] Other Jurisdictions
- V. Securities Violations
- VI. Employee Retirement Income Security Act
- VII. [12.57] Sarbanes-Oxley Act
- Chapter 13 — Disciplinary Liability
- I. [13.1] Introduction
- II. [13.2] Illinois Rules of Professional Conduct of 2010
- III. Disciplinary Process and Procedure
- [13.3] Attorney Registration and Disciplinary Commission
- [13.4] Commissioners
- [13.5] Administrator
- [13.6] Initial Investigation
- [13.7] Proceedings Before the Inquiry Board
- [13.8] Proceedings Before the Hearing Board
- [13.9] Complaint and Answer
- [13.10] Pretrial
- [13.11] Hearing
- [13.12] Burden of Proof
- [13.13] Admissibility of Evidence
- [13.14] Assertion of the Fifth Amendment Privilege
- [13.15] Hearing Board’s Report and Recommendation
- Avoiding a Hearing
- [13.16] By Default
- [13.17] Petition for Discipline on Consent
- [13.18] Disbarment on Consent
- [13.19] Permanent Retirement Status
- Appellate Process in a Disciplinary Case
- [13.20] Appealing the Hearing Board’s Report Before the Review Board
- [13.21] Appealing the Review Board’s Decision to the Court
- IV. Conduct Subject to Discipline
- V. Duty To Report Misconduct
- VI. [13.33] Disciplinary Sanctions
- VII. [13.45] Conclusion
- Chapter 14 — Attorney Liability Insurance
- I. [14.1] Scope of Chapter
- II. [14.2] Legal Malpractice Marketplace
- III. [14.3] Named Insured — Who Is Covered
- IV. [14.4] Professional Services
- V. [14.5] Duty To Defend
- VI. [14.6] Damages
- VII. [14.7] Deductible/Policy Limit Issues
- VIII. [14.8] Notice to the Insurer
- IX. [14.9] Timing Issues
- X. Exclusions and Other Provisions
- Chapter 15 — The Limitation of Liability Through Business Forms
- I. [15.1] Introduction
- II. [15.2] Business Forms in Illinois
- III. Illinois Supreme Court Rules 721 and 722
- IV. [15.17] Individual Liability
- V. [15.18] Supervisory Responsibility Under Illinois Rule of Professional Conduct 5.1
- VI. [15.19] American Bar Association Formal Opinion on the Practice of Law as a Limited Liability Partnership
- VII. [15.20] Vicarious Liability Under RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
- VIII. Malpractice Insurance
- IX. [15.23] Conclusion
- Chapter 16 — Attorney Liability Risk Management
- I. [16.1] Scope of Chapter
- II. [16.2] New Business Screening and Intake
- [16.3] Identification of Ethical Issues
- [16.4] Screening New Clients
- [16.5] Prior Relationships with Other Attorneys
- [16.6] An Evasive Commitment to Pay Attorneys’ Fees
- [16.7] Unreasonable Expectations
- [16.8] Evidence of Dishonesty or Lack of Integrity
- [16.9] Personal Characteristics
- [16.10] Screening New Matters
- [16.11] Refusing the Case
- [16.12] Referring the Case
- [16.13] Associating with Competent Counsel
- [16.14] Becoming Competent
- [16.15] New Matter/Existing Client
- [16.16] Continuous Risk Assessment
- [16.17] Accepting a Risky Client
- [16.18] New Client/Matter Intake Procedure
- III. Accepting/Declining Representation — Engagement Agreements and Nonengagement Letters
- [16.19] Engagement Agreements
- [16.20] Identity of the Client
- [16.21] Scope of Services
- [16.22] Staffing
- [16.23] Responsibilities
- [16.24] Fees, Disbursements, and Other Charges
- [16.25] Arbitration/Attorneys’ Fees
- [16.26] Conflicts
- [16.27] Agreement Confirmation
- [16.28] Retainers and Fee Agreements
- [16.29] Rejecting Potential Clients and Nonengagement Letters
- IV. [16.30] Terminating the Attorney-Client Relationship (Including Disengagement Letters)
- V. [16.31] Referrals
- VI. Conflicts of Interest
- VII. [16.39] Confidentiality
- VIII. [16.43] Client Communications
- IX. [16.44] Docket and Calendar
- X. [16.45] Work Control and Supervision
- XI. [16.46] Information Management
- XII. [16.47] Trust Accounts
- XIII. [16.48] Billing and Collections
- XIV. [16.49] Outside Activities and Investments with Clients
- XV. [16.53] Professional Development
- XVI. [16.54] Malpractice Insurance/Claims Management
- XVII. [16.55] Disaster Planning
- [16.56] Identifying Potential Causes of a Disaster
- [16.57] Obtaining Adequate Insurance Coverage
- [16.58] Designating and Training an Emergency Response Person or Team
- [16.59] Establishing a System of Communications
- [16.60] Ensuring the Personal Safety of Staff and Visitors to the Office
- [16.61] Preserving Files and Records
- [16.62] Providing Space and Facilities
- [16.63] Ensuring Post-Disaster Well-Being of Staff
- [16.64] Responding to Data Breaches
- XVIII. [16.65] Alcohol, Drug, and Stress-Related Problems
- XIX. [16.66] When a Lawyer Needs a Lawyer
- XX. [16.67] Law Firm Names and Sharing Office Space
- [16.68] Partnership by Estoppel
- Office Sharing
- [16.69] Indicia of Partnership
- [16.70] Of Counsel
- [16.71] Liability for Intentional Torts
- [16.72] Reliance on the “Holding Out”
- [16.73] Basis for Assertion of Long-Arm Jurisdiction
- [16.74] Partnership Dissolution
- [16.75] Notice to Clients
- [16.76] Continued Indicia of Partnership
- [16.77] Withdraw or Substitute Counsel in Pending Cases
- [16.78] Reliance
- [16.79] Firm Dissolution Checklist
- [16.80] Misleading Firm Name
- [16.81] Succession Planning
- [16.82] Confidentiality and Conflicts of Interest
- [16.83] Liability Insurance
- [16.84] Indicia of Partnership Considerations
- XXI. [16.85] When Mistakes Happen
- XXII. Appendix
- Chapter 17 — Lawyers in Transition: Liability Issues Relating to Lawyer Mobility
- I. [17.1] Introduction
- II. Departing a Law Firm
- [17.2] Issues Relating to Firm’s Decision to Remove a Partner
- [17.3] Liability for Professional Malpractice of Law Firm
- [17.4] Liability for Conduct in Connection with Departure
- Covenants Not To Compete and Retirement Benefits
- [17.5] Unenforceable Contract Provisions
- [17.6] Enforceable Restrictive Covenants Concerning Retirement Benefits
- [17.7] Notifying Clients of Departure
- [17.8] Traditional Employment Law Issues
- III. [17.9] Checklists/Practice Tips
- IV. Right to Compensation for Case That Goes with Leaving Attorney or That a Client Otherwise Moves to Another Firm or Lawyer
- V. [17.15] Joining a Law Firm
- Conflicts of Interest
- [17.16] Screening New Hires
- [17.17] Prehire Conflicts Check
- [17.18] Adding Of Counsel Attorney
- [17.19] Adding Non-Attorney Staff or Retaining Consultants
- [17.20] Former Government Lawyers
- [17.21] Former Judges, Arbitrators, Mediators, and Law Clerks
- Liabilities Relating to the Attorney’s Position
- [17.22] Associate
- [17.23] Partner/Member/Shareholder
- [17.24] Of Counsel
- [17.25] Contract Attorneys
- [17.26] Law Firm’s Insurance Coverage
- VI. Dissolution of a Law Firm
- [17.27] Issues Relating to Dissolution
- [17.28] Notifying Clients of Dissolution
- [17.29] Handling of Files
- [17.30] Motions to Withdraw/Change Counsel
- [17.31] Allocating Fees and Costs upon Dissolution or Termination by Client
- [17.32] Quantum Meruit Recovery Generally Available for Contingency-Fee Cases upon Dissolution of a Law Firm
- [17.33] Allocation of Fees Following Dissolution of the Firm and Former Partners Completing Representation
- [17.34] Decisions Holding that Hourly Fee Cases Are Not to Be Treated as Unfinished Business of Dissolved Law Firm
- [17.35] Possible Effect of the Newer Cases on Illinois Law
- VII. Sale of a Law Practice/Retirement
Authors
Attorneys' Legal Liability 2025 Edition (COMING SOON)
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