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 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

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

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



Nixon Peabody Faces $8.8 Million Legal Malpractice Lawsuit Brought by New York County's Sewer District

Nixon Peabody recently was hit with a legal malpractice suit arising from its handling of eminent domain litigation while representing New York’s Rockford County Sewer District.

In the underlying case, Nixon Peabody represented Rockford County’s Sewer District against a group called the Split Rock Partnership in a valuation case with respect to land that was seized.  Split Rock previously owned a piece of property that was steep and rocky.  Nevertheless, a portion of the property was deemed suitable for commercial construction and Split Rock found a development company that entered into a contract with it for $10 million for the sale of the property for development purposes.  However, the contract contained a contingency clause that stated the contract would be deemed void in the event the county (for its Sewer District) asserted eminent domain for the property. 

After the contract was executed, the county asserted eminent domain and the development group backed out of the $10 million contract.  Eventually, the land was acquired by the county for $250,000 which led to the underlying case brought by Split Rock against the Sewer District (which was defended by Nixon Peabody) that resulted in a loss to the Sewer District.

The subsequent legal malpractice suit was brought against Nixon Peabody for its negligent handling of the eminent domain case.    For example, the Sewer District asserts that Nixon Peabody failed to obtain evidence relating to the true value of the property to rebut Split Rock. It also asserts that Nixon Peabody failed to adhere to the rules of civil procedure which led to an expert witness in the fields of engineering and site planning to be barred from testifying.  Lastly, the firm failed to disclose environmental reports during discovery which led the trial judge to make a negative inference against the Sewer District.

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 may reach him at (312) 750-1820 or



Receiver's Accounting Malpractice Claim Not Barred by in Pari Delicto Doctrine

The in pari delicto doctrine is a rather rare defense to see asserted in a case.  The doctrine bars a plaintiff from recovering damages when they are a participant in the wrongdoing that creates the damages.  In Nicholson v. Shapiro & Associates, LLC, the First District Appellate Court examined whether the doctrine should be applied to bar claims brought by a court-appointed receiver of a company (that was appointed because of illegal acts by the company’s owner) against the company’s outside auditor for failing to detect the fraudulent and illegal acts.  2017 IL App (1st) 162551 (2017).

In this case, the Illinois Stock Transfer Co. (“IST”) hired Shapiro & Associates, LLC (“Shapiro”) to assist it with its tax returns and annual audits as required by the SEC Act.  However, the SEC discovered that IST’s sole-owner was converting client funds.  After this discovery, the SEC filed an action in the Northern District of Illinois and a court-appointed receiver was appointed for IST’s and the sole-owner’s estates.

After her appointment, the receiver filed an accounting malpractice action against Shapiro for failing to detect the fraudulent and illegal acts.  In response, Shapiro filed a motion to dismiss arguing, in part, that the doctrine of in pari delicto should be imputed to the receiver by arguing that the sole-owner’s actions are what caused the damages.

But, the Court disagreed reasoning that any award to the estate of the company would benefit the investors and creditors of IST rather than the actual wrongdoer – the owner – who had been removed.  (citing Albers v. Continental Illinois Bank & Trust Co., 296 Ill. App. 592 (1938); McRaith v. BDO Seidman, LLP, 391 Ill. App. 3d 565 (2009)). Therefore, the doctrine was inapplicable.

Nicholson v. Shapiro & Associates, LLC, 2017 IL App (1st) 162551 (2017).

Alex Passo and the Patterson Law Firm, LLC handle accounting 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

Investors' Amended Legal Malpractice Complaint Seeks $764 Million in Damages from Duane Morris

The stakes have been raised in the ongoing 2-year battle between a group of oil and gas investors of American Energy-Utica (“AEU”) and the company’s former counsel, Duane Morris.  The Investors filed their complaint in Texas principally due to the actions of Chesapeake’s (and later AEU’s) past CEO, Aubrey McClendon.  In 2016, McClendon was indicted for bid-rigging and died the subsequent day in a one-vehicle accident.

The plaintiffs, who are investors in American Energy-Utica (“AEU”), claim that Duane Morris committed malpractice due to a conflict of interest between them and McClendon, and also failing to advise them about claims Chesapeake was going to bring against them.  The investors claim that they were represented by Duane Morris at the same time as the firm represented McClendon; but, failed to disclose that their interests were materially adverse. 

The investors allege that Chesapeake issued a demand letter to McClendon in January 2015 claiming that the investors and McClendon stole its trade secrets.  Duane Morris allegedly never informed the investors and attempted to negotiate on McClendon’s and their behalf.  Their efforts failed however and Chesapeake ultimately filed a lawsuit which was eventually settled.

The investors are seeking the recovery of the settlement amount.  But, now claim that they have lost profits and business as a result of Chesapeake’s allegations in the underlying suit which should have been prevented. 

The case is styled Ascent Resources – Utica, LLC, et. al v. Duane Morris, LLP, No. 2015-46550 and is pending in the District Court of Harris County, Texas.

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

Attorney Escapes Legal Malpractice Claim Due to No Actual Knowledge that his Partner Stole Funds from Client

The Court of Appeals of Indiana recently affirmed a trial court’s order granting summary judgment for a defendant attorney in a legal malpractice case. The basis for the summary judgment order was that there was no question of fact of whether the attorney deviated from the standard of care.  The case was an offshoot of a progeny of cases that arose from the theft and deceit committed by former Indianapolis attorney, William Conour (“Conour”).  In this instance, one of Conour’s clients sued his former colleague, Timothy Devereux (“Devereux”), for failing to notify her that there were potentially red flags of the handling of her personal injury settlement proceeds by Conour.

In the case, Rene DiBenedetto v. Devereux, DiBenedetto was involved in a head-on collision in 2010. 2017 Ind. App. LEXIS 274 (Ind. App. 2017).  She subsequently engaged Conour to handled the claims. Early in the following year, Conour settled DiBenedetto’s claim against the tortfeasor and their insurance company for $50,000.  However, the release preserved DiBenedetto’s right to bring a claim under her insurance policy for Underinsured Motorist (UIM) coverage.

In 2011, when Conour was out of the office, DiBenedetto and her father visited the law office on an unscheduled visit and inquired about the status of the case.  Devereux had not been handling the matter; but, checked the on the status of the case with a paralegal and reviewed the entries on firm’s case management program.  He then became aware that a check was cut for $50,000 by the tortfeasor’s insurance company and that DiBenedetto’s medical liens were just shy of $35,000.  He then explained that despite the check being over the medical liens, it was typical in cases such as this one that there not be a disbursement until all of the liens were settled.  He then instructed DiBenedetto to follow-up with Conour about the status of the case.

Later in 2011, DiBenedetto’s UIM claim was settled; but, once again, she never received any of the proceeds.  Devereux resigned from the law firm during this time period due to his concerns about Conour’s actions.  In 2012, Conour was charged with stealing millions of dollars from his clients, including DiBenedetto, and ultimately plead guilty in 2013.

DiBenedetto subsequently brought a legal malpractice claim against Devereux alleging that he breached his duty to her by not providing accurate information relating to her settlement proceeds.  Devereux argued that it was common practice for personal injury attorneys to hold money in trust while settling underinsurance claims.  Therefore, he had no reason to suspect at the time that there was any misdoing by Conour. The trial court was persuaded by this explanation and granted summary judgment.

Thereafter, DiBenedetto appealed, arguing that there was a question of fact, because she introduced an affidavit from an attorney that Devereux deviated from the standard of care.  In the affidavit, the attorney stated Devereux “should have taken some actions to protect [her] by investigating further” since he knew that the funds had not been disbursed for several months.  However, a split appellate court affirmed summary judgment, holding that Devereux had a duty to provide accurate information, and he provided it in this instance.  Therefore, there was no deviation, and summary judgment was appropriate.

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

A Quick Lesson on the Importance of Disclosing Experts Properly

Failing to properly disclose experts can produce a devastating result. In most complex cases, an expert is necessary in order to establish all of the elements of a claim.  By failing to adequately disclose an expert, you risk having expert testimony or opinions barred at trial or in opposition to dispositive motions.

For example, in Cripe v. Henkel Corp., the 7th Circuit recently affirmed a summary judgment ruling in a product liability action where the plaintiff failed to produce expert proof of causation.  2017 U.S. App. LEXIS 10103 (7th Cir. 2017).  In the case, the Plaintiff alleged that he suffered neurological issues due to inhaling glue fumes that contained methylene diphenyl diisocyanate (“MDI”), which was manufactured by his employer.  After three years of discovery, the defendants moved for summary judgment and argued that the MDI could not cause the Plaintiff’s health issues.  Therefore, they should be entitled to summary judgment because the Plaintiff failed to establish any proximate cause from the chemical to the illness.

Judge Simon of the U.S. District Court for the Northern District of Indiana granted the motion for summary judgment finding that the Plaintiff did not produce any expert proof of causation linking MDI to the symptoms the Plaintiff experienced.  In opposition, the Plaintiff only pointed to his treating physicians that he disclosed in his Rule 26 initial disclosures.  However, the 7th Circuit rejected this argument because the Plaintiff failed to disclose the physicians as experts under 26(a)(2)(A), and, more importantly, failed to provide the items listed under the Rule.  The 7th Circuit explained that “[l]itigants should not have to guess who will offer expert testimony; they need knowledge to conduct their own discovery and proffer responsive experts.  That’s why the failure to comply with Rule 26(a)(2)(A) leads to the exclusion of expert testimony by a witness not identified as an expert. 

Indiana Court of Appeals Reinstates Missed Statute of Limitations Legal Malpractice Claim

One reason legal malpractice cases are difficult to prosecute is due to having to prove the underlying case on top of the attorney’s negligence.  Defendants commonly argue that despite their negligence, they did not cause the plaintiff any injury because the plaintiff would not have prevailed in their underlying case anyway.  Essentially attacking the third element of professional negligence actions – proximate cause.  This type of defense strategy was employed in Roumbos v. Vazanellis. 2017 Ind. App. LEXIS 83 (Ind. App. Ct. 2017).

There, the plaintiff in 2011 was visiting her husband at a hospital and tripped over wires that ran flush along the floor, which resulted in a severe injury.  She hired defendants to file a negligence claim against the hospital; but, they failed to file the claim within the applicable statute of limitations period.  Afterwards, the plaintiff filed a legal malpractice action against the Defendants due to their failure to file within the required period of time.

Defendants moved for summary judgment in 2016 based upon the supposed inability to win the underlying case.  During her deposition, the plaintiff acknowledged that she knew of the wires existence and consciously avoided them because she knew if she stepped on them there was the possibility that she could have fallen.  Additionally, she testified that the day that she fell, she had not looked down at where the wires were located and, if she had done so, she probably would have seen the wires and avoided them.  Based on these statements, the trial court granted summary judgment reasoning that the plaintiff was aware of the dangerous condition. 

But, the Indiana Court of Appeals reversed this decision because the trial court did not consider the entirety of Section 343 Restatement (Second) of Torts when reaching its decision.  Rather, qualifying circumstances exist under Section 343(a)(1) where a landowner may be liable for an invitee’s injury despite their knowledge or the obviousness of a dangerous condition. In such cases, the landowner is not relieved of the duty of reasonable care that it owes to the invitee for their protection.  The Court relied upon an illustration in the Restatement to reach its conclusion.  In the illustration, an invitee was aware of an open and obvious condition but forgets about and it and is injured.  Despite being aware of the condition, under this illustration the landlord was nevertheless still liable because the it could reasonably anticipate the event.  Consequently, the Indiana Court of Appeals reversed and remanded for further proceedings.

Alex Passo and the Patterson Law Firm, LLC handle legal malpractice actions throughout Illinois and Indiana.  Alex can be reached at (312) 750-1820 or