There may be a double “whammy” in being a legal malpractice defendant. In addition to being a defendant, the plaintiff may be obligated to report you to the Attorney Registration & Disciplinary Commission (ARDC) if the alleged malpractice misconduct violates Rules 8.3(a), 8.4(b) or (c) of the Illinois Rules of Professional Conduct (“Rules”). This mandatory reporting heightens the stakes of any malpractice claim and may complicate the defense of the case.
In Evanston Insurance Co. v. Riseborough, the Illinois Supreme Court, in a divided opinion, declared that the six year statute of repose for attorneys in Illinois applies to anyone seeking to sue an attorney on any basis arising out of the attorney’s professional work. 5 N.E. 3d 158, 166-67 (Ill. 2014). This ruling cut a wide swath in circumscribing the rights of non-clients to sue attorneys for mistakes.
Almost all women attorneys I know have been mistaken for the court reporter or the client. Once, opposing counsel asked if I was the court reporter, even though I had deposed his client several months earlier. Another time, opposing counsel kept me waiting in the lobby for the deposition of my client and kept walking by, finally telling me we were waiting for my attorney to arrive. We had previously made arrangements to depose my client over the phone. Even worse, when attending a pre-trial conference several years ago, a sitting Judge made a kissy face at me in front of my opposing counsel.
A subpoena hit your door and you’re staring down the barrel of a lawsuit. Malpractice attorneys know all too well that when you’re facing this sort of legal action, it’s critical to say and do the right things. You may be asked to give testimony in a deposition, where the plaintiff’s attorney will ask questions about what happened to your patient. You might also go to trial, where you’ll take the stand to give testimony about the case. In each of these settings, you’ll be under pressure and required to tell the truth. Knowing the difference and how to act can help you manage a potentially uncomfortable situation.