Illinois Supreme Court Has Lots to Say About the Leal Malpractice Statute of Repose (the DeLuna Opinion)
Illinois currently has a statute of repose that bars plaintiffs from bringing a legal malpractice action more than six years after the date on which their attorney’s act or omission occurred. (Section 13-214.3 of the Illinois Code of Civil Procedure). Yesterday, the Illinois Supreme Court made some new law relating to that statute of repose in DeLuna v. Burciaga, a case we discussed previously on this blog - Part I & Part II.
Oscar DeLuna hired on behalf of himself and his children attorney Eloy Burciaga in April 1986 to pursue a medical malpractice action arising out of his wife’s death. Burciaga decided (without DeLuna’s knowledge) to use his case as a test case by deliberately refusing to attach an affidavit from a reviewing health-care professional as was required under Illinois law. Though the case was dismissed for that reason in the spring of 1992 (around the same time that the deadline on the legal malpractice statute of repose was approaching), Burciaga told DeLuna that his case was “going very well.” Burciaga and another attorney filed the medical malpractice action a second time with the proper affidavit, but ultimately the claim against the treating physician was dismissed. The DeLunas subsequently filed a legal malpractice claim that made its way up to the Illinois Supreme Court, which had a lot to say regarding the six year statute of repose and its related provisions.
First, the Court ruled that the statute of limitations and repose was tolled during the time the plaintiffs were minors. The Court next tackled the issue of whether the fraudulent concealment statute, which provides for a five year discovery statute of limitations when a person fraudulently conceals a cause of action against himself, is an exception to the legal malpractice statute of repose. The Court ruled in the affirmative, finding that “there would be an obvious and gross injustice in a rule that allows a defendant—particularly a defendant who stands in a fiduciary relationship to the plaintiff—to conceal the plaintiff’s cause of action and then benefit from a statute of repose.” (p.9). The Court further explained that silence by an attorney can equal fraudulent concealment stating, “a fiduciary who is silent, and thus fails to fulfill his duty to disclose material facts concerning the existence of a cause of action, has fraudulently concealed that action, even without affirmative acts or representations.” (p.12, emphasis in original). The Court also stated that its decision would be no different under the principles of equitable estoppel but that it was unnecessary to deal with that issue in light of its ruling on fraudulent concealment. The Court concluded that Burciaga’s comment about the case “going very well” though it had been dismissed, and his failure to inform the DeLunas about the status of their case, were sufficient to establish fraudulent concealment.
It appears that lawyers can no longer hope to avoid responsibility for their malpractice by silently hiding in their offices until the six year repose period runs.
Hat Tip to my colleague Jerry Menge who wrote this post.
Very well written, would you please comment on the following;An Attorney assures his Illinois client that they should appeal a conviction, he quotes a high 5 figure fee for all the work and is promptly paid in full up front. However the attorney failed to file the appeal, contending that he had forgotten the deadline date. He actually showed up at the court clerks office to plead for an extra bit of time after the deadline date had already past, the client ask for a refund and the request was denied by the attorney. There is 4 months remaining to file this case, the individual who lost the case and thought he was filing an appeal received a sentence of 25 years.