Freeman dissents in legal malpractice decision: Justices may be viewed as 'protecting' their own

Steve Korris Jun. 24, 2011, 12:30am


SPRINGFIELD – Cynical readers of an Illinois Supreme Court decision dismissing a legal malpractice suit may wonder if the Justices are protecting their own, according to Justice Charles Freeman.

"The result is a decision that protects negligent attorneys," Freeman wrote on June 16.

He wrote that the decision makes programs like mandatory continuing legal education "appear as mere window dressing."

Six Justices applied a six year statute of repose against widow Judith Snyder, who lost her house due to a mistake her husband's lawyer, Elliot Heidelberger, made in 1997.

She discovered the mistake in 2008, after husband Wilbert Snyder died.

She sued Heidelberger, and a Du Page County judge dismissed the suit.

First District appellate judges in Chicago reversed the decision, two to one.

The Supreme Court reversed the reversal and threw out Snyder's claim.

"The period of repose in a legal malpractice case begins to run on the last date on which the attorney performs the work involved in the alleged negligence," Justice Rita Garman wrote.

"Here, the record shows the last act of defendant's representation of Wilbert in the matter took place on June 25, 1997, when defendant mailed the original recorded quit claim deed to Wilbert," she wrote.

She wrote that a statute of limitations on legal malpractice incorporates the discovery rule, which tolls the period to the time when a plaintiff knows of an injury.

She wrote that a statute of repose curtails the long tail of liability that may result from the discovery rule.

"A statute of repose begins to run when a specific event occurs, regardless of whether an action has accrued," she wrote.

"Thus, a statute of repose is not tied to the existence of any injury, but rather it extinguishes liability after a fixed period of time," she wrote.

"To accept plaintiff's construction of the legal malpractice statute would mean that the limitations period would not begin to run in any case until the client died and the error could no longer be corrected," she wrote.

"This would eviscerate the statute of repose," she wrote.

Everyone agreed except Freeman.

"The court's analysis of this issue gets off track when it fails to acknowledge that the injury in a legal malpractice action is a pecuniary injury to an intangible property interest caused by the lawyer's negligent act or omission," he wrote.

Judith suffered no such injury in 1997, he wrote.

In 2003, he wrote, Wilbert was still alive and able to bring his own malpractice claim.

"On the other hand, Judith, on that date, would have suffered no pecuniary injury and would not have even been able to state a cause of action for legal malpractice," he wrote.

He wondered how Judith or Wilbert could have discovered Heidelberger's negligence.

He wrote that they could have done a title search or hired a second lawyer to look over
Heidelberger's work.

"But lay people seeking legal advice from Illinois lawyers should not have to do this in order to protect themselves from malpractice," he wrote.

He wrote that in estate cases "it is almost certain that any negligence on the part of the attorney will only be discovered after the client's death, when the injury becomes apparent and, more importantly, can no longer be remedied by the client."

He wrote that the majority failed to define injury consistent with case law, apply the discovery rule according to settled principles, or give effect to the law.

"These shortcomings, unfortunately, may cause the cynical reader to wonder if the court, made up as it is of lawyers, is merely protecting its own, he wrote.

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