Justia Legal Ethics Opinion Summaries

In 2010, the Foundations and their insurance broker, Gallagher, discussed the renewal of the Foundations’ $25 million directors and officers (D&O) insurance coverage. The Foundations wanted to obtain the same coverage with a reduced premium. Gallagher offered renewal of the existing Chubb policy or the purchase of a $25 million Chartis policy, stating that the Chartis policy provided the same coverage with a premium that was $3400 lower. Unbeknownst to the Foundations, the Chartis policy contained a broad exclusion of claims related to securities transactions; the Chubb policy contained a narrower exclusion. In 2007, the Foundations sold their Tribune stock for $2 billion during a leveraged buyout. A year later, the Tribune filed for bankruptcy. The Foundations were named in suits filed by aggrieved shareholders, alleging fraud. The Foundations tendered the litigation to Chartis, which denied coverage. The Foundations, asserting that Chubb would have defended and indemnified them, sued Gallagher for breach of contract and professional negligence. Gallagher’s defenses asserted that the Foundations’ conduct was fraudulent and uninsurable and that the Foundations knew of “an ongoing, progressive loss” before changing insurers. Gallagher subpoenaed the Foundations and their attorneys, seeking communications related to the Tribune bankruptcy and the litigation. The Foundations asserted attorney-client privilege. The circuit court applied an exception, finding that Gallagher had a “common interest” with the Foundations because it was “standing in the insurer’s shoes for the purposes of this malpractice issue and may bear the ultimate burden of payment of the underlying claims and defense costs.”The Illinois Supreme Court reversed. The common-interest exception to the attorney-client privilege does not extend to these circumstances, where there is no insured-insurer relationship between the parties and the party claiming the privilege is bringing suit based on the defendant’s negligence in failing to procure appropriate insurance as a broker. View "Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc." on Justia Law

Plaintiff sued Defendant for tortious interference with Plaintiff’s share of the trust by making false statements and presenting misleading evidence against Plaintiff in earlier litigation. Both parties were licensed attorneys, acting pro se. The complaint was dismissed. The Cook County circuit court entered an order imposing Rule 137 sanctions against Plaintiff. The appellate court affirmed the dismissal of Plaintiff’s tortious interference claim and the finding that Plaintiff violated Rule 137 in filing that frivolous claim but reversed a finding that Defendant was entitled to attorney fees. The Illinois Supreme Court reversed in part and remanded with directions to reinstate Defendant’s attorney fee award View "McCarthy v. Taylor" on Justia Law

In 2008, Defendant was charged with the sexual assault of his 10-year-old daughter, J.G. The indictment alleged that defendant inserted his fingers in J.G.’s vagina, licked her vagina, and touched her buttocks. After his conviction, Defendant filed multiple pro se collateral challenges to his convictions and at various times was represented by different attorneys. In 2015, Defendant filed a pro se motion seeking DNA testing under the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3). The state argued that the controversy at trial was not whether another individual had committed the crime but whether the alleged assault occurred at all. At a hearing, Defendant appeared pro se but was accompanied by attorney Brodsky, who sought to file a Supreme Court Rule 13 limited scope appearance. The court denied Brodsky’s oral request, stating that allowing the motion would mean that attorney Caplan, Brodsky, and the defendant were all working on the case. Defendant later argued extensively in support of his DNA motion. Brodsky was not present. The appellate court vacated the denial of the motion, citing the U.S. Supreme Court’s "Powell: decision concerning a court's refusal to hear chosen counsel. The Illinois Supreme Court reversed, finding no “Powell” violation. A section 116-3 action is civil in nature and independent from any other collateral post-conviction action and Brodsky’s request failed completely to comply with the requirements of that rule. View "People v. Gawlak" on Justia Law

The Diamond law firm filed a qui tam action against My Pillow, under the Illinois False Claims Act, 740 ILCS 175/1, asserting that My Pillow had failed to collect and remit taxes due under the Retailers’ Occupation Tax Act (ROT) and the Use Tax Act (UTA), and had knowingly made false statements, kept false records and avoided obligations under the statutes. The cause was brought in the name of the state but the state elected not to proceed, yielding the litigation to Diamond. At trial, Diamond, who had made the purchases at issue, served as lead trial counsel and testified as a witness. While an outside law firm also appeared as counsel of record for Diamond, its involvement was extremely small. Diamond essentially represented itself. The court ruled in favor of My Pillow on Diamond’s ROT claims, but in favor of Diamond on Diamond’s UTA claims; ordered My Pillow to pay $782,667; and recognized that the litigation had resulted in My Pillow paying an additional $106,970 in use taxes. A private party bringing a successful claim under the Act is entitled to receive 25%-30% of the proceeds. The court held that My Pillow should pay $266,891, to Diamond; found that Diamond was entitled to reasonable attorney fees, costs, and expenses, and awarded Diamond $600,960. The Illinois Supreme Court affirmed the damage award but held that Diamond could not recover attorney fees for work performed by the firm’s own lawyers. To the extent that Diamond prosecuted its own claim using its own lawyers, the law firm was proceeding pro se. View "Schad, Diamond and Shedden, P.C. v. My Pillow, Inc." on Justia Law

Christine, represented by Goldstine, sought dissolution of marriage from Andrew. Andrew was represented by Boback. Holwell later became Andrew’s counsel. Before withdrawing, Boback successfully moved to disqualify Goldstine for improperly ordering Christine to provide Andrew’s mail that arrived at the marital home, opening and viewing the mail. Holwell billed Andrew $37,094.49 for the disqualification matter. Later, Jaquays appeared for Christine. LeVine appeared for Andrew. Christine sought interim attorney fees, arguing that she had paid Jaquays a retainer of $5000 and had an outstanding balance of $27,142.60 and that if the court determined that Andrew lacked the ability to pay her fees, it should order disgorgement from the money that Andrew had paid to Holwell. Andrew also sought attorney fees, owing $17,500.38 to Holwell and $26,000 to LeVine; Holwell testified that she was holding $13,000 that Andrew had paid to Boback because of a dispute as to who owned the money. The court found that both parties lacked an ability to pay reasonable attorney fees. Andrew had paid $66,382.28 to Holwell, $10,000 to LeVine, and $23,639.99 to Boback. Christine had paid $5000 to Jaquays and $13,117.04 to Goldstine. The court held that to “level the playing field,” each party should have $59,069.65 for attorney fees. The court ordered Holwell to disgorge $40,952.61 for payment to Jaquays. Holwell was held in contempt. The Illinois Supreme Court affirmed reversal of the disgorgement order. Fees that have already been earned by an attorney in a dissolution of marriage proceeding are not considered “available funds,” such that they may be disgorged under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501(c-1)(3). View "In re Marriage of Goesel" on Justia Law

Cook County public defender Campanelli refused an appointment to defend Cole, accused of armed robbery, arson, and murder, citing potential conflicts of interests with co-defendants. The court nonetheless appointed the public defender’s office. Campanelli file notice of intent to refuse appointment, citing Rule 1.7 of the Illinois Rules of Professional Conduct, noting that the Counties Code (55 ILCS 5/3-4006) allows a court to appoint counsel other than the public defender if the appointment of the public defender would prejudice the defendant. The court responded that it had not made a finding that appointment of the public defender would prejudice the defendant. There were 518 Cook County public defender attorneys; they did not all share the same supervisors. There is a multiple defender division for multiple offender cases but Campanelli contended that she was in conflict even in those cases and continued to refuse appointment, arguing that she was the attorney for every client assigned to her office. Campanelli also asserted that her office was a law firm and should be treated like any other law firm. The circuit court of Cook County entered an adjudication of direct civil contempt against Campanelli and sanctioned Campanelli $250 per day. The appellate court stayed the fines. On direct appeal, the Illinois Supreme Court agreed that Campanelli was in contempt, but vacated the order and sanction. “At best, Campanelli’s claims of conflict are based upon mere speculation that joint representation of codefendants by assistant public defenders will, at some point, result in conflict.” View "People v. Cole" on Justia Law

Nelson, and her codefendants, Hall, Cox, and Ball, were tried simultaneously but in severed bench trials for the armed robbery and stabbing death of Wilson. The prosecution produced five eyewitnesses, who gave generally consistent testimony. Police had followed a blood trail to the four defendants. There was DNA evidence linking defendants to the crime. All were found guilty. The appellate court rejected Nelson's argument that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented her and codefendant Hall and that the attorneys, in making their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. The Illinois Supreme Court affirmed, finding that Nelson had not demonstrated an actual conflict. In light of the evidence, Nelson could not show that an innocence defense based on a lack of accountability was a plausible alternative defense. View "People v. Nelson" on Justia Law

Fee-sharing provisions in otherwise valid retainer agreements between clients and two separate law firms are not unenforceable simply because the primary service performed by one firm is the referral of the clients to the other and the agreements fail to specifically notify clients that each firm has assumed joint financial responsibility for the representation.In 2007-2010, Plaintiff, a Gurnee law firm, was retained by 10 clients for representation under the Workers’ Compensation Act. Plaintiff contracted with attorney Esposito for assistance in representing the clients before the Workers’ Compensation Commission. A letter of understanding was drafted by defendant, confirming that the cases had been referred to defendant by plaintiff, outlining the parties’ respective responsibilities regarding representation of the clients, and specifying that the attorney fees obtained in each case would be split between Plaintiff and Esposito. The agreements did not specifically notify the clients that the lawyers in each firm had assumed joint financial responsibility for the representation. Plaintiff’s breach of contract suit against Esposito was dismissed. The Illinois Supreme Court affirmed the appellate court’s reversal, rejecting an argument that the agreements’ lack of an express statement that the attorneys assumed joint financial responsibility violated Rule 1.5(e) of the Illinois Rules of Professional Conduct and thereby rendered the agreements invalid. View "Ferris, Thompson & Zweig, Ltd. v. Esposito" on Justia Law

In 2008, defendant was convicted of armed robbery and sentenced, as a habitual criminal, to natural life imprisonment. The appellate court affirmed. In 2011, defendant, through privately retained counsel, filed a postconviction petition, claiming due process violations and ineffective assistance of trial and appellate counsel on multiple grounds. The trial court advanced defendant’s petition to second-stage proceedings. The state moved to dismiss, arguing that the petition was not timely filed; that defendant failed to allege the untimely filing was not due to his culpable negligence; that defendant’s substantive claims were barred by res judicata and waiver and consisted primarily of unsupported, conclusory allegations; and that none of the claims made a substantial showing of a constitutional violation. Defendant’s postconviction counsel filed a response, arguing that the petition was untimely filed because trial counsel failed to inform defendant about the appellate court’s June 3, 2009, decision. In support, defendant attached evidence that the notice of appeal was mailed to his mother, not to defendant. The court dismissed, finding that the record did not substantiate defendant’s claim that his trial counsel suborned perjury and that counsel’s decisions did not rise to the level of deprivation of a constitutional right. The court did not reference timeliness. On appeal, defendant unsuccessfully argued only that his privately retained postconviction counsel did not provide the requisite “reasonable level of assistance” during second-stage proceedings because counsel failed to contest the assertion that defendant’s petition was untimely based on culpable negligence. The Illinois Supreme Court affirmed, stating the reasonable level of assistance standard applies to both retained and appointed postconviction counsel and that counsel met the standard. View "People v. Cotto" on Justia Law