Failed 'Test Case' Results in a Legal Malpractice Claim
A lawyer who used his clients’ wrongful death case to “test” the constitutionality of a section of the Illinois Code of Civil Procedure is now the defendant in a legal malpractice suit. In a recent decision, the Illinois Appellate Court overturned the trial court’s dismissal of a legal malpractice complaint, finding that Illinois’ six-year statute of repose had been tolled and the suit could proceed eight years after the repose period expired. See, DeLuna v. Burciaga, 834 N.E.2d 478, 359 Ill.App.3d 544 (Aug. 5, 2005).
In finding that the repose period was tolled, the Appellate Court held that two exceptions to the six-year repose period applied. See, 735 ILCS 5/13-214.3. First, the court found that the lawyer had fraudulently concealed the discovery of the legal malpractice case by his silence on several important facts regarding the status of the case. Second, the court found that the lawyer was estopped from raising the repose-period defense because the clients had reasonably relied on his representations in forbearing their legal malpractice suit.
The court rejected the lawyer’s argument that fraudulent concealment and equitable estoppel did not apply because the clients could have checked the “wrongful death” case file at the courthouse independently and should not have relied on the lawyer for finding out the status of their case. The court found there was no reason for the clients to have searched the file independent of their lawyer - he timely responded to their questions and from gave them updates on the status of the case, so they had no reason to question how the wrongful death case was proceeding.