Successor Defense

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