Kehoe v. Saltarelli, 337 Ill. App. 3d 669 (2003)
IL: Legal Malpractice, Breach of Fiduciary Duty, Tortious Interference
Student Contributor: Rachel Vincent
Facts: Plaintiff was a partner at the Wildman firm. On March 5, 1998 two former clients sued plaintiff and the Wildman fIrm for legal services rendered while plaintiff worked at Wildman (Songer suit). Wildman retained Saltarelli and the Butler firm (defendants) to represent both Wildman and plaintiff in the Songer suit. Plaintiff initially rejected the joint representation. Subsequently, he agreed to being jointly represented subject to defendant’s recognition of certain conflicts of interest. Defendant’s did not agree to plaintiff’s request and recommended that he seek independent counsel. Plaintiff represented himself pro se and got a dismissal of all the claims against him. Plaintiff filed a complaint against defendant alleging: legal malpractice/breach of fiduciary duty; tortious interference; participation in Wildman’s breach of fiduciary duty; and attorney fees for breach of contract. The Circuit Court dismissed the complaint and plaintiff appealed.
Issues:
(1) Did defendant’s actions constitute legal malpractice/breach of fiduciary duty?
(2) Did defendant tortuously interfere with contract?
(3) Did defendant participate in alleged breach of fiduciary duty by former law firm?
(4) Is plaintiff is entitled to attorney fees for his pro se representation?
Ruling:
(1) No. Plaintiff failed to make out a cause of action for malpractice because there was no attorney-client privity. “The attorney-client relationship is consensual and arises only where both the attorney and the client have consented to the retention….the record shows that plaintiff merely established conditional consent to representation by defendants”, and the defendant’s refused.
(2) No. Plaintiff failed to adequately allege how defendant’s decision not to represent him pursuant to his conditions interfered with plaintiff’s agreement with Wildman that Wildman would provide him with legal counsel
(3) No.
“A third party who colludes with a fiduciary in committing a breach of duty, induces or participates in such breach, and obtains the benefits therefrom is directly liable to the aggrieved party.”
Plaintiff failed to show either that Wildman or defendants breached a fiduciary duty, that defendants participated in such a breach, or that defendants benefitted from such purported breach.
(4) No. Pro se attorney’s are not entitled to recover attorney fees because this would be a disincentive to engage counsel and undermine the policy of furthering successful prosecution of meritorious claims.
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Posted in: Illinois