Proximate Cause: A Legal Malpractice Case's Hardest Element

Legal malpractice cases are difficult to litigate.  Not only are you facing a defendant that understands how litigation works; but, you also must establish that the attorney’s negligence caused the damages the plaintiff sustained.  This is particularly difficult if the legal malpractice claim is based on the mishandling of litigation because you must litigate two cases within one: 1. the legal malpractice claim; and 2. the underlying case.  Therefore, it is critical to review whether the underlying case has merit before filing a legal malpractice action regardless of whether the handling attorney breached their duty of care.  Simply put, you can have great breach of duty facts against an attorney – i.e. blown statute – but, if the underlying case has no merit, then there is no legal malpractice case.

Brummel v. Grossman, provides an example of how proximate cause issues may arise in prosecuting a legal malpractice claim based upon the handling of prior litigation.  2018 IL App (1st) 170516 (1st Dist. 2018).  There, in 2001, Bruce Brummel had been employed by Nicor Gas (“Nicor”) and had complained to it that he and some of his co-workers had felt ill with symptoms of vomiting, diarrhea, abdominal pain, and fatigue.  Due to his symptoms, Brummel visited a physician who opined that his symptoms were caused by the ingestion of chemicals.  From 2001 through 2003, Brummel and several of his colleagues voiced their concerns to Nicor that the drinking water was contaminated at the facility they worked at, but Nicor took no corrective action. Later in 2003, a City of Aurora inspector visited the site and concluded that the drinking water was contaminated with methylene chloride and/or dichloro methane. Which cause the symptoms Brummel complained he and his co-workers were experiencing.

Brummel went on medical leave around this time, and Nicor placed him on short-term disability, as well.  However, Brummel was required to provide evidence of his disability to Nicore to remain at the company.  Nicor sent Brummel several letters requesting medical documentation for his leave of absence, but he failed to comply with them on a timely basis.  As a result, after his right to a leave of absence under the Family and Medical Leave Act had expired, Nicor terminated Brummel in 2004.

Later in 2004, Brummel applied for disability from the Social Security Administration representing that he was disabled.  He was successful in the disability proceedings.  In 2006, Brummel filed a workers’ compensation claim against Nicor arguing that he became disabled as a result of the exposure to the contaminated water at Nicor’s facility.  That claim was inevitably settled for $125,000, and the settlement order stated that Brummel claimed that he was unable to work because of an injury to his whole body, which rendered him permanently and totally disabled.

In 2009, Brummel hired the defendants to bring claims against Nicor for retaliatory discharge and a violation of the Whistleblower Act, alleging that his employment was terminated due to his reporting of the contaminated water to various agencies.  In 2013, Brummel was deposed in the discharge case and he testified that he had not searched for work after his leave of absence in 2003, that he did not provide Nicor medical documentation to support his leave, that during the Social Security proceedings he was adjudicated as disabled, and that he agreed with those findings.

Nicor then proceeded to file a motion for summary judgment arguing that Brummel was unable to prove that Nicor discharged him for his protected activities, and instead Nicor discharged him because he was unable to work due to his disability.  Brummel’s attorneys failed to brief the issue or appear at the hearing.  Unsurprisingly, the motion was granted.

A legal malpractice action then followed, wherein Brummel claimed that the handling attorneys of the whistleblower cased breached their duty by failing to conduct discovery adequately, respond to requests to admit, and failed to brief or argue the motion for summary judgment which led to the case being dismissed.  Some of these omissions are serious enough to give rise to breaches of duty to sustain a valid claim of legal malpractice.  But, the flaw in Brummel’s case was whether these errors were the reason his claim was dismissed. 

The defendant attorneys moved for summary judgment on the basis that Brummel could not prove that his attorney’s negligence was the only reason he lost his case.  Specifically, they argued he lost his case because he had acknowledged that he was disabled in the other proceedings which therefore cut the legs out from his retaliatory discharge and whistleblower case.  Nor was Brummel able to argue that he was not disabled now in his new case under the doctrine of judicial estoppel because such statements would be directly contradictory to the ones he made in his disability and worker’s compensation proceedings. 

Brummel illustrates why due diligence before bringing a legal malpractice case is critical.  If the case relates to the handling of litigation, prior deposition transcripts, affidavits, pleadings, and sworn testimony must be reviewed.  Otherwise you may be walking into a minefield of proximate cause arguments that the underlying litigation was doomed without the negligent attorney’s involvement anyway.

Alex Passo is an attorney at Latimer LeVay Fyock who handles legal malpractice cases throughout Illinois and Indiana.  If you have a matter you would like to discuss with him, you can reach him at (312) 422-8000 or

Indiana Couple Defeat Summary Judgment in Legal Malpractice Claim Against Former Attorney in Handling of Loan to Former MLB Player

A couple who brought a legal malpractice claim against their former attorney in connection with his drafting of a promissory note executed by a former MLB player will proceed after they defeated a motion for summary judgment.  Here, in 2014, Elizabeth and Robert Bilbija lent $42,500 to their friend, former MLB player Ryan Thompson.  To document the transaction, Thompson was referred to Christopher T. Lane, who was engaged by Thompson to draft a promissory note.  Notably, he was paid $500 for his services, which was paid evenly by both Thompson and the Bilbijas

Lane drafted the promissory note which provided that Thompson would repay the $42,500 and it was secured by his MLB pension of approximately $8,000 a month.  However, Thompson failed to repay the money and later would file bankruptcy.  The Bilbijas thereafter attempted to claw Thompson’s pension payments by way of the Note to satisfy the debt; but, were informed by the pension authorities that it was only subject to execution for child support or similar debts and they would require a judgment.  This option was not available however due to Thompson’s bankruptcy.

Lane was then sued by the couple for legal malpractice for failing to protect their interests in the transaction.  He subsequently moved for summary judgment on the basis that he owed no duty to the Bilbijas because he allegedly never represented them or communicated through words or actions that he represented them in the transaction.  Arguing that the Bilbijas’ unilateral belief that they were his client does not create a duty.  Hacker v. Holland, 570 N.E.2d 951, 955 (Ind. Ct. App.).  However, the Court disagreed with this argument, concluding that the Bilbijas insisted that Lane represented them and designated evidence of conduct that would indicate as such. See In re Anonymous, 655 N.E.2d 67, 70 (Ind. 1995).  Therefore, the Court concluded a question of fact existed to defeat the motion under the principle that the formation of an attorney-client relationship does not need to be express, rather, it may be created by the implied conduct of the parties. 

The Court did grant summary judgment in favor of the attorney on the couples' allegations that Lane breached his duty owed to them due to a conflict of interest.  Indiana has previously held that violations of the rules of ethical conduct alone - including conflicts - cannot create a basis for a claim.  See Rosenbaum v. White, 692 F.3d 593, 604 (7th Cir. 2012).

Alex Passo handles legal malpractice actions throughout Illinois and Indiana.  If you have a matter that you would like to discuss with Alex, you can contact him at or (312) 284-6256.

Indiana Appellate Court Holds Violations of Rules of Professional Conduct Alone Cannot Form the Sole Basis of Legal Malpractice Suit

Barnes & Thornburg (“BT”) recently avoided a legal malpractice lawsuit based on representing two clients simultaneously that were conflicted.  In the case, a company called CRIT purchased a controlling interest in a nationwide staffing business, Peoplelink, from William Wilkinson.  After the sale, Wilkinson remained with Peoplelink as its CEO until 2015, when he hired BT to represent him in connection with his departure.  The agreement which Wilkinson and Peoplelink ultimately executed contained non-compete language.

After the sale, BT remained as Peoplelink’s outside counsel after Wilkinson left the company; but, continued to represent Wilkinson in other unrelated matters.  As an incidental result of this continued representation of both parties, an attorney at BT accidently sent an email intended for Wilkinson to Peoplelink relating to Wilkinon’s purchase of another staffing company only 7 months after his departure – in violation of the restrictive covenants.

Peoplelink thereafter brought a legal malpractice lawsuit against BT and used violations of Rules 1.7 and 1.8 – which govern attorney’s representation of clients with conflicts of interest – to form the basis of their claim that BT breached their duty to Peoplelink.  However, the Indiana Appellate Court held that violations of the rules alone could not establish a legal malpractice claim and that Peoplelink did not allege that the firm’s malpractice caused any actual damages.  It also reasoned that Peoplelink's argument for disgorgement of legal fees as its basis for damages was not enough to maintain the claim.

CRIT v. Wilkinson, et. al, 2018 Ind. App. LEXIS 16 (Ind. Ct. App. 2018)

Alex Passo and the Patterson Law Firm, LLC handle legal malpractice lawsuits throughout Illinois and Indiana.  If you have a matter that you would like to discuss with Alex, you can reach him at (312) 750-1820 or

Iowa Criminal Defense Attorney Prevails against Legal Malpractice Claim Brought by Former Client who Pled Guilty to Failing to Disclose he had HIV to Individual prior to Sexual Contact

A Black Hawk County jury found that a Waterloo attorney did not commit legal malpractice in his handling of a criminal matter in 2009.  In the underlying case, the attorney was retained to defend James Metcalf in a criminal matter where the state alleged he had sexual contact with another man without disclosing that he was HIV positive.  Metcalf would plead guilty in this matter and was sentenced to up to 25 years in prison.  Metcalf would later appeal this plea, which was set aside in a 2014 Iowa Supreme Court decision.

Metcalf then sued his former attorney for failing to investigate his case, and if he had, he should not have advised Metcalf to plead guilty because he would have learned that the transmission of HIV would be improbable in light of the medications he was taking.  However, the attorney argued that transmission was nevertheless possible, which still triggered criminal liability under the statute.  After hearing the testimony and arguments, the Black Hawk jury found that the attorney had not committed malpractice.

This was a rather interesting case from a damages perspective, even though the jury's decision did not trigger such an analysis.  Most states hold that plaintiffs in legal malpractice cases can only recover actual damages, and bars recovery for pain and suffering and emotional distress.  However, there has been some traction in jurisdictions to allow recovery for situations such as this one where a party’s constitutional right is lost.  See Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987).

Alex Passo and the Patterson Law Firm, LLC handle legal malpractice actions throughout Illinois and Indiana.  If you have a legal malpractice case that you would like to discuss with Alex, you can reach him at (312) 750-1820 or

Illinois Attorney Censured for Failing to Keep his Disbarred Wife Out of his Office

In June 2014, Ms. Kathleen Niew pled guilty to 10 counts of fraud relating to the handling of her clients’ funds.   Thereafter, in November 2013, Kathleen Niew was disbarred for this misconduct.  Nevertheless, her husband, Stanley Niew allowed her to come into his law offices 4-5 times a week through June 2014.  While in his offices and disbarred, she participated in at least eight client meetings.  As a result, Mr. Niew was censured on two grounds by the Illinois Supreme Court.  The first was allowing his wife to maintain a presence at his law firm despite being disbarred.  The second was for failing to supervise his associate who assisted Ms. Niew in the unauthorized practice of law.

Alex and the Patterson Law Firm, LLC handle legal malpractice matters throughout Illinois and Indiana.  If you have a case you would like to discuss with Alex and can reach him at (312) 750-1820 or

No Liability Ruling in Favor of Attorney in Legal Malpractice Trial Upheld by Indiana Appellate Court

It’s fairly rare to see cases handled by a pro se plaintiff reach trial if the defendant is represented by counsel.  A plaintiff handling a legal malpractice case pro se and reaching trial is almost unheard of.  While the Plaintiff in Miletic v. O’Brien, was able to survive summary judgment, he wound up short in proving his legal malpractice case at trial.  2017 Ind. App. Unpub. LEXIS 1606 (Ind. App. Ct. 2017).

In this case, Miletic was represented by O’Brien in her divorce to Dragan Miletic (“Dragan”).  While the divorce was pending, Miletic was diagnosed with cancer, went on disability, and had no other income.  When completing his financial declaration forms, Dragan indicated that he was also unemployed.  But, he was maintaining health insurance for Miletic through COBRA.

Prior to the parties’ dissolution, Dragan moved to California for employment.  O’Brien filed a Verified Petition for Maintenance Due to Spousal Incapacity requesting that Dragan pay Miletic “a reasonable monthly maintenance, in addition to continuation of the COBRA.”  Thereafter, the court held a final hearing on the dissolution. During the proceedings Miletic and Dragan informed the court that they had reached an agreement on all of the issues.  The parties represented that everything had already been divided and Dragan agreed to continue provide health insurance for Miletic until she was healthy or obtained her own.  However, she would not receive any other form of spousal maintenance.  Miletic represented to the court that she understood the terms of this agreement and would abide by it.

Thereafter, the court requested that O’Brien memorialize the terms of the agreement.  A few months later, the court was informed that O’Brien was subsequently terminated by Miletic and refused to sign an agreement with the terms agreed upon before the trial court earlier.  The trial court would eventually enter an order consistent with those terms.  Miletic subsequently filed a legal malpractice claim against O’Brien where she claimed that he breached his duty of care by failing to obtain monthly spousal support payments from Dragan.  Additionally, Miletic alleged that O’Brien failed to properly conduct discovery and if he had he would have learned that Dragan was “earning over $164,00 per year” and she therefore would have obtained maintenance.

O’Brien filed a motion for summary judgment which the trial court denied and the case proceeded to a bench trial.  After Miletic’s case-in-chief, O’Brien moved for directed verdict which the court granted because Miletic failed to meet her burden of proof by not providing any expert testimony to establish that O’Brien deviated from the standard of care.

An appeal followed where Miletic argued that the common knowledge exception applied in her case and she therefore did not require expert testimony to prove her claim.  The common knowledge exception applies when the attorney’s negligence is so grossly apparent that a non-attorney would have no difficulty in understanding a breach occurred.  Storey v. Leonas, 904 N.E.2d 229, 238 (Ind. App. 2009).  Typically, the exception arises in cases where an attorney fails to file a case within the applicable statute of limitations period and the claim is then barred.  The appellate court was not persuaded by this argument, indicating that the common knowledge exception only applies to obvious cases.  However, at trial and in her briefs Miletic failed to address the fact that she represented to the court that she understood the terms of the settlement and approved it.  Therefore, the common knowledge exception could not apply and an expert was required to explain how O’Brien breached his duty of care.

Alex and the Patterson Law Firm, LLC handle legal malpractice cases throughout Illinois and Indiana.  If you have a matter you would like to discuss with Alex, you can reach him at (312) 750-1820 or

Indiana Attorney Suspended for Lying to Client about Filing Appeal

A Northern Indiana attorney was suspended for 90 days for lying to one of his clients.  The attorney was retained by the client to seek an appeal of the denial of a petition for expungement of a misdemeanor theft conviction.  During the course of representation, the client requested updates on the status of the appeal and the attorney made statements which implied that he had filed the appellate brief.  However, no brief was ever filed by the attorney and the appellate court eventually dismissed the appeal with prejudice.  The attorney never explained to the client of the dismissal or any of the available options, which led to the client filing a grievance.  The Indiana Supreme Court Disciplinary Commission found that the attorney violated several Indiana Professional Conduct Rules – 1.1, 1.3, 1.4(a)(3), 1.4(b), 3.3(a)(1), 8.1(a), and 8.4(c).

Alex Passo and Patterson Law Firm, LLC handle legal malpractice claims throughout Illinois and Indiana.  If you have a matter that you would like to discuss with Alex you can reach him at (312) 750-1820 or

Law Firm Can’t Dodge Legal Malpractice Claim on Blown Statute Despite Withdrawal Before its Lapse

A common misconception by attorneys is that there is no potential liability in the event they terminate representation before filing a complaint on the behalf of a client when the applicable statute of limitations has not yet run and the complaint is never subsequently filed.  But, this is not true.  If an attorney terminates their representation before a statute of limitations lapses, and the former client fails to file on time, the former attorney can nevertheless may face defending themselves in a suit in the event the attorney terminates the representation without providing the former client sufficient time to investigate and file a claim within the appropriate time period.  Wall v. Domnick, Cunningham, Whalen, PLLC, is illustrative of this point. 17-cv-5372, 2017 U.S. Dist. LEXIS 195235 (N.D. Ill. Nov. 28, 2017).

In Wall, an administrator of an estate retained Domnick, Cunningham, Whalen, PLLC (DCW) to file a lawsuit against two nursing homes that caused the death of an elderly individual.  The nursing homes neglected the elderly individual in 2012, which caused her to experience significant health issues that eventually resulted in her death on April 16, 2014.  After her death, in July 2014, Wall retained DCW to pursue any claims that estate possessed relating to the elder abuse and neglect in addition to any claims relating to her death.  However, DCW did not file an action by December 2014 – or ever.

Instead, on February 18, 2016, DCW sent Wall a termination letter notifying him that it would no longer be filing a complaint in the matter relating to the death of the individual.  The letter did not advise Wall that statute of limitations on this claim would expire on April 16, 2016.  After DCW’s withdrawal, Wall failed to file the complaint on time on the behalf of the estate. A legal malpractice complaint soon followed brought by Wall against DCW.

After filing his legal malpractice complaint against DCW for its failure to investigate and bring the estate’s claim in a timely manner, DCW argued that Wall could not establish the third element of legal malpractice actions – proximate cause – because Wall had 59 days to file the action (a superseding cause defense). However, the Court was not persuaded with this argument, and explained that an attorney terminating representation in this instance when their acts or omissions leave a question of whether the claim is viable.  Id. at ¶¶8-10 (quoting Mitchell v. Schain, Fursel, & Burney, Ltd., 332 Ill. App. 3d 618, 1194-95 (1st Dist. 2002).

Alex Passo and the Patterson Law Firm, LLC handle legal malpractice actions throughout Illinois and Indiana. If you have a matter that you would like to discuss with Alex, you can reach him at (312) 750-1820 or



Reformation of Settlement Agreement Terms Improper Equitable Remedy Regardless of Breach

It is well established in Indiana that the reformation of terms of a contract as an equitable remedy for a breach is an extreme remedy.  Courts may only reform a written contract if (1) there has been a mutual mistake by the parties in the formation; or (2) one party makes a mistake while the other party commits fraud or inequitable conduct.  See Meyer v. Marine Builders, Inc., 797 N.E. 760, 722 (Ind. Ct. App. 2003); see also New Life Cmty. Church of God v. Admomatis, 672 N.E.2d 433, 438 (Ind. Ct. App. 1996).  Misconduct by a party that amounts to a breach does trigger a court’s ability to reform a contract.

For example, in Wagner v. Wagner, a court attempted to modify a settlement agreement provision that was in breach by one of the parties, but was reversed because the facts did not trigger the availability of the equitable remedy of reformation.  Here, a father and son were general partners of numerous partnerships that owned apartment buildings.  A business dispute arose between them which resulted in litigation.  The father alleged during this litigation that funds had been misappropriated from the business.  Ultimately the matter was settled, and one provision that was incorporated in the settlement agreement was that the father would prepare all partnership tax returns.

A subsequent suit was filed by the son because the father failed to prepare partnership tax returns as required by the settlement agreement.  After a bench trial, the court concluded that the father breached the agreement because he refused to prepare the tax returns, which was an obligation he agreed to undertake under the settlement agreement.  As a result of this breach, the trial court entered an order stating that the son was entitled to use a different account for future tax returns.  However, the Court reversed this equitable remedy imposed by the trial court because there was no basis to support rescission or modification of the contract as there was no fraud, illegality, mutual mistake, or a contract provision providing for rescission in the event of breach. 

Wagner v. Wagner, 02A03-1610-PL-2473 (Ind. Ct. App. 2017).