PROFESSIONAL LIABILITY CLIENT ALERT: Application of Judgmental Immunity in Illinois
Like other professional malpractice lawsuits, an Illinois plaintiff claiming legal malpractice against a former attorney must allege and prove that the former attorney owed the plaintiff a legal duty of care, that the former attorney breached that duty of care, that the plaintiff suffered an injury in the form of damages, and finally, that the former attorney’s breach of that duty proximately caused plaintiff’s claimed damages. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122, ¶ 27. However, unlike other professionals, attorneys sued in legal malpractice lawsuits can assert an additional defense to shield themselves from liability—the Judgmental Immunity doctrine. Due to this common law doctrine, an attorney can seek the early dismissal of any legal malpractice claim where an unsatisfactory outcome/damages were allegedly caused by the former attorney’s good faith error in judgment in the underlying matter.
A complaint against an attorney for malpractice may be couched in either contract or tort. Majumdar v. Lurie, 274 Ill. App. 3d 267, 270 (1st Dist. 1995). But even when grounded in tort, the attorney’s duty is generally limited by the scope of the contract or engagement. Majumdar, 274 Ill. App. 3d at 270. This rule is not absolute, however, as the requirement of competence is a duty traditionally imposed in the attorney-client relationship without regard to the terms of a contract. Keef v. Widuch, 321 Ill. App. 3d 571, 577 (1st Dist. 2001). Attorneys also owe the duty to advise their client of available legal remedies and courses of action, as well as the duty to inform a client about the scope of the attorney’s representation. Keef, 321 Ill. App. 3d at 577.
Whether an attorney owed a duty is a question of law to be determined by the court based on the above-mentioned traditional duties and the scope of engagement. Id. Consequently, a defendant attorney can obtain the dismissal of a former client’s frivolous complaint when the allegations fail to show that the attorney owed the former client a certain, specific duty of care.
If a plaintiff proves that the former attorney owed them a duty, the next question of “whether an attorney breached a duty of care owed to a client is a question of fact.” Id. As a result, obtaining the early dismissal of such a claim is difficult if it is supported by qualified expert testimony. Gelsomino v. Gorov, 149 Ill. App. 3d 809, 814 (1st Dist. 1986).
There is, however, a useful defense available for attorneys to obtain the early dismissal of a legal malpractice claim in this scenario: the doctrine of judgmental immunity. The doctrine (also known in other jurisdictions as the attorney-judgment rule) provides that “an attorney will generally be immune from liability, as a matter of law, for acts or omissions during the conduct of litigation, which are the result of an honest exercise of professional judgment.” Nelson, 2013 IL App (1st) 123122, ¶ 31. Consequently, “an attorney is liable to his client only when he failed to exercise a reasonable degree of care and skill…[and not for] mere errors of judgment.” Id. (quoting Smiley v. Manchester Ins. & Indemnity Co., 71 Ill. 2d 306, 313 (1978)).
In other words, attorneys are insulated when making “informed, good-faith tactical decisions.” Id. Defendant attorneys can therefore move for summary disposition of a claim when the pleadings or subsequently discovered evidence identifies that the alleged legal malpractice can be characterized as a good-faith error in judgment and not a failure by the attorney to exercise a reasonable degree of skill and care in representing the former client.
The distinction between failing to exercise a reasonable degree of skill (which can lead to liability) and a simple error in judgment (which cannot) is subjective and open to case-by-case interpretation. In Illinois, courts have applied the judgement immunity doctrine in two situations: (1) where the law is unsettled; or (2) the allegedly negligent decision was tactical. Nelson, 2013 IL App (1st) 123122, ¶ 35.
The first scenario is clear cut; when the law is unclear (such as a split in the appellate courts or a novel issue of law), an attorney cannot be found to have breached their duty for exercising their reasoned judgment when interpreting an unresolved question of law.
The second scenario does not lend itself to a bright-line rule because what is considered tactical or an attorney’s judgment is arguably subjective. While the classic example of a tactical decision is whether to call a certain witness at trial, there are numerous other decisions, such as whether to assert certain affirmative defenses, that could rightly be considered tactical.
For example, in Navar v. Tribler, Orpett and Meyer, P.C., the plaintiff sued his former attorney for failing to accurately assess the merits and predict the outcome of how the court would rule on the summary judgment motion filed against him in his underlying litigation, and for failing to apprise him on the advisability of settling. 2015 IL App (1st) 142641-U, ¶¶ 60–61. In affirming the dismissal of the plaintiff’s legal malpractice claims, the court noted that the “assessment of the probabilities of success that turn out to be erroneous constitute ‘mere errors in judgment,’” and that “[a]ttorneys are not guarantors of success.” Navar, 2015 IL App (1st) 142641-U, ¶ 60. Additionally, in O’Brien & Associates, P.C. v. Tim Thompson, Inc., the court upheld the trial court’s grant of summary judgment in favor of the attorney, holding that allegedly failing to join certain entities as third-party defendants in the underlying litigation was within the attorney’s judgment and did not subject the attorney to legal malpractice liability even if that erroneous, good-faith judgment led to an unfavorable outcome for the client. 274 Ill. App. 3d 472, 480 (2d Dist. 1995).
In the end, the judgmental immunity doctrine will turn on the facts and evidence of each individual case. If the attorney’s alleged legal malpractice can be fairly characterized as occurring due to a good faith tactical or strategic decision that went bad, the attorney should raise the judgmental immunity doctrine to request the early summarily dismissal of any such claim.
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