Tuesday, December 12, 2017

7th Circuit Court of Appeals strikes blow against Plaintiff’s Experts in Asbestos Ruling


Plaintiff Charles Krik, a life-long cigarette smoker, alleged that his lung cancer was caused, in part, by exposure to asbestos attributable to his work as a pipe fitter at an Exxon Mobil refinery. At the trial level, the judge barred plaintiff’s expert Dr. Arthur Frank and his opinion that “any exposure” to a given substance adds to one’s cumulative dose, and that the cumulative dose is the alleged cause of the claimed injury. (Charles Krik v. Exxon Mobil Oil Corp., et al., No. 15-3112, 7th Cir., 2017 U.S. App. LEXIS 16795).
On appeal, the Seventh Circuit upheld the trial court’s ruling. They found that the principle behind the “each and every exposure” theory and the cumulative exposure theory is the same - that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness. In other words, just like “each and every exposure,” the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose. Ultimately Dr. Frank’s opinions did not meet the standards required under Federal Rule 702 and Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 US 579, 589 (1993).
   
   
The court was troubled by Dr. Frank’s theory that exposure is either zero or substantial. The theory essentially ignores that the amount of fibers exposed to or length of exposure. The law requires plaintiff to demonstrate that his exposure to defendant’s specific product was a substantial cause of his disease. The burden of proof must be on the plaintiff, not the defendant.
It is unclear what, if any, impact the Krik ruling will have in Illinois state courts hearing asbestos toxic tort cases. The State of Illinois does not follow Daubertbut relies on the Frye test as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002). The Frye standard relies on “general acceptance” of an expert’s methods and techniques. It is clear that general acceptance does not concern the expert’s ultimate conclusion. Instead, the focus is entirely upon the underlying methodology used to generate the opinion. Therefore, even if a novel conclusion is reached, the opinion is still admissible if based on generally accepted methodology. In order to obtain a finding of general acceptance for a methodology used by an expert, universal acceptance in the field is not required. When determining whether a scientific procedure is generally accepted in the scientific community, the issue is consensus versus controversy over a particular technique. However, the existence of a dispute within the field does not preclude a finding that a procedure is generally accepted.
The more widely used Daubert standard takes a more scientific knowledge approach to determining the reliability of an expert’s testimony. The Federal Rules of Evidence 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Due to the fact that the threshold for the admissibility of expert opinions is less rigorous under the Frye standard, applying the Krik holding in Illinois state court asbestos cases is going to be extremely difficult.
McKenna Storer has a track record of success in mass tort litigation. Our attorneys have successfully defended hundreds of cases battling environmental personal injury, illness and property damage lawsuits. For questions about this topic or any mass tort or asbestos concerns, contact attorney Paul Steinhoferor Gregory Cochran at McKenna Storer.
If you enjoyed this topic, you may like to peruse other articles on Asbestos Law.
This post was originally published at https://www.mckenna-law.com/blog/toxic-tort-appeals-court-strikes-asbestos-experts/

Tuesday, December 5, 2017

The ADA Does Not Entitle Employees To Long Term Leave


A long-term leave of absence is not a reasonable accommodation under the Americans With Disabilities Act (“ADA”) , at least according to the Seventh Circuit. On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that an employee who needs a long term leave is not a qualified individual with a disability under the ADA.

The Severson v. Heartland Woodcraft, Inc. Employment Litigation Case

The Seventh Circuit reasoned that the ADA is an antidiscrimination statute, not a medical-leave entitlement. The ADA forbids discrimination against a "qualified individual” on the basis of disability. Id. § 12112(a). A "qualified individual" with a disability is a person who, with or without “reasonable accommodation,” can perform the essential functions of the employment position. Id. § 12111(8). So defined, the term "reasonable accommodation" is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and, thus, is not a "qualified individual" under the ADA.
   
   
The Severson case involved a straightforward fact scenario. For seven years, Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures. The work was physically demanding. In 2013, Severson took a 12-week medical leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off of work for another two or three months.
Severson asked Heartland to continue his medical leave for an additional three months, but by then he had exhausted his 12-week FMLA entitlement. The company denied his request and terminated his employment, but the company invited him to reapply when he was medically cleared to work.
About three months later, Severson's doctor lifted all restrictions and cleared him to return to work, but Severson did not reapply. Instead, he sued Heartland alleging that it had discriminated against him in violation of the ADA by failing to provide a reasonable accommodation—namely, a three-month leave of absence after his FMLA leave expired.
There is no dispute that Severson had a disability or that at the time he was terminated, his disability made it impossible for him to lift heavy weights, which was an essential function of his job. The only issue in that case was whether the employer violated the ADA by failing to reasonably accommodate his disability.

The Seventh Circuit found no ADA violation

The ADA makes it unlawful for an employer to discriminate against a "qualified individual” on the basis of disability. § 12112(a). A "qualified individual" is "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8).
The ADA contains a definition of "reasonable accommodation," but it states what the term may include: The term "reasonable accommodation" may include—
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9).
The Seventh Circuit found that the use of the permissive phrase "may include"—rather than "must include" or "includes"—means that the concept of "reasonable accommodation" is flexible and the listed examples are illustrative. But, the baseline requirement found in the definition of "qualified individual" is concrete: A "reasonable accommodation" is one that allows the disabled employee to "perform the essential functions of the employment position." § 12111(8). If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a "qualified individual" as that term is defined in the ADA.
The terms “reasonable accommodation” and “qualified individual” are interlocking terms. Putting these terms together, the Seventh Circuit reasoned that a long-term leave of absence cannot be a reasonable accommodation. The Court cited to an earlier case wherein it had held, "[n]ot working is not a means to perform the job's essential functions" and stated “[s]imply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working… [a]n inability to do the job's essential tasks means that one is not 'qualified'; it does not mean that the employer must excuse the inability."
The Severson decision left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, for example time off to accommodate an intermittent condition,. The Seventh Circuit stated “Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in § 12111(9).” The Court distinguished this from a leave of absence:
“ … a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the "[i]nability to work for a multi-month period removes a person from the class protected by the ADA."
In distinguishing the ADA from the FLMA, the Court stated that long-term medical leave is the domain of the FMLA, which entitles covered employees to a total of 12 work-weeks of leave during any 12-month period because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. The FMLA protects up to 12 weeks of medical leave, recognizing that employees will sometimes be unable to perform their job duties due to a serious health condition. In contrast, "the ADA applies only to those who can .do the job."
The EEOC was not a party to this lawsuit, but filed an amicus curiae brief in support of its position that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions when he returns. The Seventh Circuit reasoned that under this argument, the duration of the leave is irrelevant as long as it is likely to enable the employee to do his job when he returns, which thereby equates "reasonable accommodation" with "effective accommodation," an interpretation that the Supreme Court has rejected. In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516 (2002), the Supreme Court stated:
In ordinary English the word "reasonable" does not mean "effective." It is the word "accommodation," not the word "reasonable," that conveys the need for effectiveness. An ineffective "modification" or "adjustment" will not accommodate a disabled individual's limitations. ... Yet a demand for an effective accommodation could prove unreasonable.
Thus, the effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.
The Seventh Circuit also took issue with the EEOC's interpretation that the length of the leave does not matter. It determined that if, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA, which is an untenable interpretation of the term "reasonable accommodation."
Employers should still take caution before applying the Seventh Circuit’s decision as a blanket protection for terming employees who request medical leave exceeding twelve weeks.
The EEOC will undoubtedly continue to assert its position that long-term medical leave of absence qualifies as a reasonable accommodation provided certain conditions are met. While the Seventh Circuit is persuasive on a national level in the employment law arena, other courts may follow the EEOC’s argument, or at least find ways in which to hold that the leave of absence was a reasonable accommodation on a fact-based case by case inquiry.
Please contact Kristin Tauras at McKenna Storer for questions about this case or any other employment law litigation questions or concerns.
If you liked this blog, you may value other employment law articles by our attorneys.
This post was originally published at https://www.mckenna-law.com/blog/ada-does-not-entitle-employees-to-long-term-leave

Monday, November 20, 2017

Tis the Season for Insurance Year-end Settlements


When the holiday season rolls around, most people think of thanksgiving dinners, Christmas shopping and spending time with family and friends. As folks prepare for the holiday season, insurance defense counsel prepare for the increased potential for year-end insurance settlements.  Both the plaintiffs and the defendants have incentives for settling cases before the beginning of the new year.  Plaintiff’s would enjoy some extra shopping money for the holidays.  From a tax perspective, money received in the current year is better than turning the tax calendar year over, since taxes are usually only going up.   This is an incentive for individual plaintiffs and their attorneys to receive the settlement money and fees before the next tax year.
From the defense perspective, some carriers want to try and clean out old claims that are filling up their books.  The type of claims that could be a target for year-end settlements will vary.  The majority of the case that are good candidates for year-end settlements are newer, lower value cases.  Small value claims are always a good candidate for settlement to decrease costs and legal fees.  The end of the year provides a great incentive for plaintiff’s attorneys to settle these cases in the current year, before taking them over into the new year, when they are smaller value.  
Older, larger value claims are also good candidates for potential year end settlements.  The end of the year provides an incentive to try to settle the old claims before taking them on for another calendar year.  One good way to move an older claim is through mediation or pre-trial settlement conference.  Mediators and Judges are heavily booked during the October through December months.  They are booked due to adjusters and plaintiff’s attorneys trying to close out smaller and older files before dragging them into the new year.  
The end of the year settlement months are not for every case.  The insurance defense attorney should not try and settle cases just because it’s the end of the year.  The management of each case dictates appropriate times to settlement.  If the case needs further discovery, then that discovery takes a priority over settlement.  The defense attorney should never initiate settlement talks without first speaking with his insured and the adjuster.  But, something about the holidays makes attorneys on all sides pick a few cases to see if a settlement can be reached before the new year.
Please contact Alex Sweis at McKenna Storer or questions about this topic or other Insurance Defense matters.
If you found this article helpful, you may value other insurance litigation defense articles by our attorneys.
This post was originally published at https://www.mckenna-law.com/Insurance-defense-counsel-prepare-for-increased-year-end-insurance-settlements

Monday, November 13, 2017

Bankruptcy Frequently Asked Questions


We compiled this practical blog to answer some of the most Frequently Asked Questions about brankruptcy.

Should I file for bankruptcy?

This is a difficult question with no easy answer. You may want to file bankruptcy if you answer “yes” to any of the following questions:  

  • Have you been paying on creditor card for years without lowering the balances?

  • Would it take you more than five years to pay all your creditors in full?

  • Do you have a high-interest car loan, and your car is more than two years old?

  • Is your house underwater?

  • Have you received notice of a lawsuit?

  • Are your wages being garnished?

You also may file to stop creditors from harassing you, taking you to court or garnishing your wages.

Will I lose my house and/or car if I file for bankruptcy?

No, individuals do not automatically lose their home, car, or other property just because they file for bankruptcy.   The federal bankruptcy laws and state property exemption laws offer protection for consumers’ most important assets.

What chapter should I file?

The decision to file a Chapter 7 bankruptcy to wipe out your debts or to file a Chapter 13 to consolidate your debt in a structured repayment plan should be made in consultation with a knowledgeable bankruptcy attorney.  There multiple reasons to file a chapter 7 vs. a chapter 13.
What are the pros to filing for bankruptcy relief?

  • A fresh financial start
  • Stopping creditor harassment
  • Ability to rebuild your credit
  • Ability to start saving

Can I be denied bankruptcy?

Individuals will only be denied a bankruptcy after allegations of fraud, misrepresentation or perjury are proven true.

What should I expect when I file bankruptcy?

  1. You will need to compile these documents:
List of creditors Proof of income
Creditor reports Tax returns
Recent billing statements Bank statements

  1. You will need to complete required courses:
Credit counseling before filing
Debtor education (also called financial management)
  1. You will need to review and sign bankruptcy documents
  2. You will need to attend a hearing with the trustee assigned to your case

Can I file for bankruptcy if I am not a U.S. citizen?

Yes, Legal Permanent Residents may take advantage of the bankruptcy laws just like naturalized citizens.

How much does it cost to file for bankruptcy?

You will need to pay attorney fees, a filing fee, and fees to complete required courses.   Attorneys charge different fees but can provide you with an estimate on -costs after a consultation. Keep in mind the phrase “you get what you pay for”.  An attorney with the lowest fee may provide with the least amount of face time and direct your calls to an assistant.  An attorney that charges a fair fee will answer your questions, be available to respond to emails and calls, and meet with you when needed.

What should I look for in an attorney?

An attorney that has significant experience with filing bankruptcy cases.  McKenna Storer has over 20 years of experience in representing clients in bankruptcy courts.
Download your complimentary Bankruptcy Checklist for more detailed information and helpful free resources.
Contact Jaime Dowell at McKenna Storer for more information about this guide or any other bankruptcy questions.  
This post was originally published at https://www.mckenna-law.com/blog/bankruptcy-frequently-asked-questions/

Tuesday, October 31, 2017

Three Laws Every Internet User Should Know


References to the internet as a vast, ungoverned and ungovernable territory as might have existed in the Wild West are simply not true, but you hear them all the time. The truth is that laws governing internet security and other matters related to how it is used and what can be distributed over it do exist. Here are three laws you might have heard about, but you might not have realized the effect they have on your use of the internet.

Electronic Communications Privacy Act of 1986

The Electronic Communications Privacy Act of 1986 contained in 18 U.S.C. §§2510-2522 protects electronic, wire and oral communications from unauthorized interception while in transit or where they are stored. It goes beyond the 1968 Federal Wiretap Act, which applied primarily to conversations over traditional telephone lines, to include digital, computer and electronic communications as protected unauthorized interception or seizure. ECPA provides for criminal sanctions for individuals violating it, including imprisonment for up to five years and up to $250,000 in fines. The criminal penalties are in addition to actual and punitive damages awarded to victims in a civil lawsuit. Efforts to amend the ECPA have been underway to close what some see as a loophole in the protection it affords. Under the act, law enforcement agencies must obtain a search warrant to access your emails from Google, Yahoo and other providers; however, once the email records exist for more than 180 days, they are subject to government seizure using only a subpoena.

Digital Millennium Copyright Act

If you have ever watched a video posted on YouTube and wondered why there was no sound, it might have run afoul of the Digital Millennium Copyright Act. Enacted in 1998 to strengthen the protection of intellectually property rights in light technological advances, including the internet, the law targets internet service providers and makes them liable for the unauthorized use of copyright protected materials by users of their services unless they did not have knowledge of it residing on their site. Once a provider receives notice of a violation, it must remove the material or disable the ability of users of the site from accessing it. This process usually occurs immediately and without notice to the user who posted it. As the owner of copyrighted material used without your permission, the DMCA provides a method for getting it removed. However, it also protects the service provider by preventing damages claims against them if they follow the law’s requirements.

Section 230 of the Communications Decency Act

Although its provisions against indecency on the internet were ruled unconstitutional by the U.S. Supreme Court, the Communications Decency Act of 1996 continues to have a major impact on internet providers and users. Section 230 of the CDA, 47 U.S.C. §230, offers you immunity against defamation lawsuits if you are a provider of internet services and interactive computer services. For instance, 47 U.S.C. §230 would protect you and Facebook if someone posts offensive material on your Facebook page. It would also offer protection if you are the owner of a website and solicit guest blogs or other material to post on your site.

Getting legal advice and guidance

Businesses and individuals should find out how these and other laws affect their websites and other internet presence. For more information about internet security and privacy laws that could you contact the attorneys at McKenna Storer.

Tuesday, October 17, 2017

How Much Underinsured Coverage Is An Insurance Company Required To Pay When There Are Multiple Tortfeasors?

Insurance coverage for underinsured and uninsured motorist coverage lawsare often times confusing. One source of such confusion is the determination of coverage owed when there are multiple tortfeasors. The recent case of Illinois Emcasco Ins. Co. v. Tufano, 2016 IL App (1st) 151196 provides guidance in this circumstance.
A passenger in a car that collided with another car resulting in injuries claimed to be in the millions of dollars. Id. at ¶ 1. The passenger sued both drivers. Id. One driver had a $100,000 insurance policy that was tendered in full. Id. The other driver had a $300,000 policy that was also tendered, resulting in a payment of $295,000 under that policy. Id. The injured passenger had an underinsured motorist policy in the amount of $500,000 with Illinois Emcasco Insurance Company. Id.
The issue in this case was whether Emcasco was required to cover the difference between what was received from the two drivers collectively and the $500,000 underinsured policy, for a total of $105,000. Or, whether the $500,000 underinsured coverage could be applied to each driver separately, for a total of $605,000. Id at ¶2.
The underinsured motorist coverage in the Emcasco Policy provided:
“Underinsured Motorists Coverage”
LIMIT OF LIABILITY
The limit of liability shown in the Schedule or in the Declarations for Underinsured Motorist Coverage is our maximum limit of liability for damages because of ‘bodily injury’ resulting from any one accident. This is the most we will pay regardless of the number of:
  • ‘Insureds’;
  • Claims made;
  • Vehicles or premiums shown in the Declarations; or Vehicles involved in the accident.” Id at ¶10.
The Emcasco policy also contained a “set off” provision, that provided “Except in the event of a ‘settlement agreement,’ the limit of liability for this coverage shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible. Id at ¶11.
Where multiple tortfeasors are involved and the insurer wants to offset the collective payments made by all tortfeasors against the underinsured coverage, the plain language of the policy is not the end of the inquiry. Id at ¶22. The court also considers whether application of the policy language violates the public policy behind the underinsured motorist statute. Id at ¶22.

Outcome of the Illinois Case Illinois Emcasco Ins. Co. v. Tufano

Three principles emerge from the Illinois case law:
  1. Underinsured motorist coverage should place the insured in the same position he or she would have occupied if the tortfeasor had carried insurance in the same amount as the insured;
  2. Underinsured motorist coverage exists to fill the gap between the amount received from the tortfeasor’s insurance and the amount of the insured’s underinsured-motorist policy limit; and
  3. Underinsured-motorist coverage is not intended to allow the insured to recover amounts from the insurer over and above the insured’s underinsured-motorist policy limit. Id at ¶25.
In situations such as Tufano, where there is one claimant and multiple tortfeasors, application of underinsured coverage can be complex when these three principles are taken into account. Id at ¶27. For example, in order to satisfy the second principle, Emcasco would only owe $105,000. Id. However, this would not satisfy the first principle, to put the injured passenger in the same position as if both at fault drivers had $500,000 in insurance coverage, which would entitle the injured passenger to $1,000,000 overall. Id. If the first principle was ranked above the second principle, then the third principle would be violated because Emcasco would be required to pay more than the policy limit. Id.
Ultimately, the Court determined that, where multiple tortfeasors are involved in an accident in which an underinsured motorist policyholder is injured, the policyholder must be placed in the same position as if each tortfeasor carried the same amount of insurance as the policyholder. Id. at ¶41. One tortfeasor’s payment cannot be used to offset the underinsurance gap of another tortfeasor; each instance of underinsurance must be viewed distinctly. Id. However, the amount of coverage the policyholder can receive from the underinsured motorist carrier is capped by the overall limit of the underinsured motorist policy, because the insurer should not be required to pay a policyholder more than was promised or more than the amount for which the policyholder paid in premiums. Id.
While the determination of underinsured insurance coverage involving multiple tortfeasors may be a difficult determination to make, insurers can rest assured that Illinois insurance law will not require a payment over and above the underinsured policy limit.
For information about this topic or any other insurance coverage concerns, contact Kelly Purkey at McKenna Storer.

If you enjoyed this topic you may like to read these other Insurance Coverage articles by our attorneys.
This post was originally published at https://www.mckenna-law.com/blog/Underinsured-Coverage-Payments-Multiple-Tortfeasors

Tuesday, October 10, 2017

When to Report a Legal Malpractice Claim to the ARDC

There may be a double "whammy" in being a legal malpractice defendant. In addition to being a defendant, the plaintiff may be obligated to report you to the Attorney Registration & Disciplinary Commission (ARDC) if the alleged malpractice misconduct violates Rules 8.3(a), 8.4(b) or (c) of the Illinois Rules of Professional Conduct ("Rules"). This mandatory reporting heightens the stakes of any malpractice claim and may complicate the defense of the case.

What the legal malpractice rules require

Rule 8.4 (b) and (c) describe particular types of lawyer misconduct:
8.4. It is professional misconduct for a lawyer to
  • (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
  • (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
   
   
If any violation of 8.4(b) or (c) is part of a legal malpractice complaint, a report by plaintiff's counsel is mandatory. The 2010 revisions to the Illinois Rules of Professional Conduct state:
Rule 8.3 Reporting Professional Misconduct provides:
  • A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate professional authority.

What triggers a reporting requirement?

The elements giving rise to reporting requires:
  1. Knowledge;
  2. Non-privileged information;
  3. A violation of 8(b) or (c) of the Illinois Rules of Professional Conduct; and
  4. The report must be to the proper authority
Under the rules, "knowledge" is defined in Rule 1.0(f) as knowledge which "may be inferred from the circumstances". As the court in Skolnick noted, knowledge must be more than a "mere suspicion," but it does not require "absolute certainty". Skolnick, supra at 228. Second, the information must not be privileged, or consent to waive the privilege must be given by the client. Rule 8.3(c). Third, only violations of 8.4(b) or (c) must be reported, other violations are not within the scope of the reporting requirement. Garden variety negligence legal malpractice claims will not fall within the disclosure requirements.

Effect of an attorney’s failure to report misconduct of another

In In re Himmel, 125 Ill. 2d 531 (1988), the Supreme Court made clear that the failure of an attorney to report another attorney's misconduct, was, in and of itself, an ethical violation. In 2000, the court added clarity to the requirement. Filing a legal malpractice complaint and thereby advising the trial court of the misconduct does not discharge the ethical duty of the lawyer to report misconduct under Rule 8.3(a). Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 229 (2000).
Rather, the report must be made to a tribunal "empowered to act" on the reported misconduct. Id. The court in Skolnick made clear that a trial court is not the proper authority to enforce the ethical rules, that is not the trial court's role. So merely filing the complaint does not constitute a "report". Id. In Illinois, that authority is exclusively delegated by the Supreme Court to the Attorney Registration & Disciplinary Commission ("ARDC"). Skolnick, supra at 229. In the Rule amended in 2010, the report must be made to the "appropriate professional authority", which almost always is the ARDC.

Obligation of legal malpractice plaintiffs

For the legal malpractice plaintiff, it is important to be attuned to this requirement and make sure you have solid "knowledge" supporting your pleading that at a minimum meets the pleading requirements of Illinois Supreme Court Rule 137. Rule 137 provides in pertinent part:
  • "The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document, that to the best of his knowledge, information and belief, formed after reasonable inquiry it is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law…"
Compliance with Rule 137 intersects with the concept of "knowledge" under Rule 8.3(a).
If your complaint allegations are sufficient under rule 137 and the allegations fall within the parameters of 8.4(b) or (c), you must report. It is important that any legal malpractice complaint be solidly supported by facts, but it is even more important if the complaint filing will trigger this ARDC reporting requirement.

Skills required of legal malpractice defense counsel

For the legal malpractice defendant, it is possible you will be conducting a dual defense: in court and before the ARDC. For the defendant who is in this situation, it might be advisable to ensure your legal malpractice attorney has practiced before the ARDC or that defense counsel is willing to partner with someone who is experienced in appearing before the ARDC. Obtaining this expertise should not come after the ARDC decides to file charges. It is needed when the defendant is initially responding to an ARDC inquiry. In other words, earlier is better.
For all parties a complaint alleging misconduct that falls under Rules 8.4(b) and (c) raises serious ethical issues. At every stage, counsel for each side must be cognizant of the implications of the allegations from both a liability and ethical perspective.
For more information about this topic, contact Sara E. Cook at McKenna Storer.
If you enjoyed this article, you may enjoy other malpractice law articles by our attorneys.
This post was originally published at https://www.mckenna-law.com/blog/legal-malpractice-claim-ardc/