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

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

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



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

Legal Malpractice Claim against Corporate Law Firm of Commodity Pool Operator and Trading Firm Survives Motion to Dismiss

In 2013, the U.S. Commodity Futures Trading Commission initiated an action against Alphametrix, LLC (AML), a CFTC registered commodity pool operator and trading advisor, along with its parent company, for injunctive relief, disgorgement of misappropriated funds, and penalties.  This action was due to AML failing to reinvest $2.8 million in rebates back into commodity pools in accordance with rebate agreements.  Rather than reinvesting the funds, AML had transferred the funds into accounts held by its parent company which had never been registered with the CFTC.  Due to the lawsuit, a receiver was appointed for AML and its parent.  Eventually, the lawsuit against the officers was settled.

The receiver then brought a legal malpractice claim against the corporate law firm of AML for its failure to properly advise it of risks relating to amendments of promissory notes between the corporation and its managing member.  From 2006 to 2012, the managing member of AML made numerous undocumented loans to himself which totaled over $1,000,000.00.  However, in 2012, AML’s auditor became concerned over the amount of the receivable and that it was undocumented.  To accommodate the auditor, the managing member had AML’s corporate attorney prepare a promissory note which required him to pay monthly installments of over $7,000 on the loan with a balloon payment in 2015.


Despite the loan repayments, the auditor became increasingly concerned with AML’s cash flow problems in subsequent audits and made the officers aware.  The problems did not dissipate though and in February 2013, AML’s primary lender claimed it was in violation of certain loan covenants and it therefore received additional guaranties from AMG and its other related entities.  AML’s corporate attorney was aware of the auditor’s apprehension to the situation as well as the re-negotiated financial terms with the primary lender.  Nevertheless, when AML’s managing member requested that the law firm amend the promissory note terms, he obliged him.  Critically, the amended notes eliminated the monthly payments to AML and also extended the due dates for the balloon payment to 2023.  Furthermore, the amended notes also eliminated AML’s protection against default in the event that the managing member was subject to bankruptcy proceedings.


After the receiver was appointed, he brought a legal malpractice action against the corporate attorney for preparing the amended notes without first advising AML that the amendments would eliminate its ability to immediately demand payment of the loans in the event of a default.  The corporate law firm then filed a motion to dismiss with its best arguments being standing and duty. 

First, the firm argued that the receiver lacked standing because in the CFTC Action an order was entered stating that the primary lender’s security interest had priority over other general unsecured creditors.  However, this argument was disposed of by the Court which noted that the order only related to the CFTC action and not the claims in the instant case.  Further, it acknowledged that the primary lender entered into a settlement agreement with the primary lender which set out terms of what the primary lender would recover in the event the instant suit had a successful recovery.  Lastly, it recognized that the claim could not be assigned to the creditor because it is well-established in Illinois that legal malpractice claims are unassignable.

With respect to lack of duty, the Court also swiftly struck down the law firm’s arguments.  The Court noted that the law firm represented AMG and its subsidiaries from 2005 through 2013, and thus owed a duty to the entities and not the managing member.  Citing Peterson v. Katten Muchin Rosenman, LLP, 792 F.3d 789, 790 (7th Cir. 2015), the Court further noted that the law firm had a duty to advise the corporation of the various risks in amending the notes. 

The case is styled Driscoll v. Kins, 16-c-9359, (N.D. Ill. Sept. 18, 2017).

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