Legal Malpractice Case: Who is the Target
The Rules of Professional Conduct do not create a cause of action. Owens v. McDermott, Will & Emery, 316 Ill. App.3d 340 (2000) . The Rules however are relevant to establish a standard of care in an action for legal malpractice. Nagy v. Beckley 218 Ill. App. 3d 340 (2000).
- As a general rule, there must be an attorney client relationship. Both the attorney and the client have to consent to the retention. An agreement to pay the spouse's counsel in a divorce settlement created no duty since the paying spouse did not manifest his authorization for an attorney to act on his behalf and the attorney did not impliedly or expressly accept to represent the paying spouse=s interests. Zimmerman Properties, Inc. v. Grund, 2007 WL 433533 (N.D. Ill. 2007)
- Another example of a non-duty arises where an attorney is retained for a corporation. Absent some other conduct, the attorney does not owe a duty to anyone other than the corporate entity. That is, he does not owe a duty to the individual shareholders, officers or directors. However, it was opined that a cause of action may lie at least in a closely held corporation where the interests of the shareholders are often times adverse, if a single attorney attempts to represent all incorporators as that duty would create an "unacceptably wide range" of conflicts. Hefferman v. Bass, 2005 WL 936900
- One exception that does arise is where the attorney is hired to benefit a third party. Thus, an attorney retained by a special administrator to pursue a Wrongful Death Act claim also owes a duty to the next of kin since the action may only be brought by the personal representative for the benefit of the next of kin. DeLuna v. Burciaga 223 Ill.2d 49, 857 N.E.2d 229, 306 Ill. Dec. 136 (2006).
- A more significant exception that is now fairly well recognized in Illinois is where an attorney is aiding and abetting his client=s fraudulent activities to the detriment of the non-client. Thornwood, Inc. v. Jenner & Block, 344 Ill. App.3d 15 (2003). Thornwood has spawned other decisions including where an attorney in a dual representation role purportedly knew that his client was committing a wrongful act and substantially assisted in carrying out the act. Hefferman v. Bass 467 F.3d 596 (7th Cir. 2006)
