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TJ, Esq.
TJ, Esq., Attorney
Category: Legal
Satisfied Customers: 11875
Experience:  JD, MBA
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I have a question concerning civil procedure after appeal and

Customer Question

I have a question concerning civil procedure after appeal and legal malpractice. In 2007, my company filed a five count complaint against our landlord for: (1) breach of contract, (2) fraud, (3) interference with prospective contractual relations, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotion distress. Conflicting personalities between myself and counsel led to his withdrawal. I hired another attorney a few months afterwards. In early 2008, my new attorney amended the complaint to only one count: breach of contract. He did so without my explicit knowledge or permission. Because the landlord filed a similar suit against my company, and because my suit fell second in priority, I never thought to check or ask any questions concerning the complaint itself. It was always my understanding the complaint remained as it was originally filed. Nevertheless, I fired this other attorney after feeling cheated and proceeded to hire someone else. Unfortunately, my case was dismissed in 2012 because of the defendant's application of the equitable doctrine of res judicata (I lost in their case). We're proceeding in an appeal right now; if we were to win and the case would be remanded: (1) will we be able to amend our complaint once more to include the counts that were lost? (2) If not, would I be able to bring action against the second attorney for amending the complaint without my knowledge and losing my ability to gain relief on those counts?
Submitted: 3 years ago.
Category: Legal
Expert:  TJ, Esq. replied 3 years ago.
Hello and thank you for allowing me the opportunity to assist you.

Q: (1) will we be able to amend our complaint once more to include the counts that were lost?
A: Probably not. You certainly would have no automatic right to amend the complaint since so much time has passed. You'd have to seek leave of court (i.e., the judge's permission), but I can't see the judge allowing where so much time has passed because the other party can claim that it would be prejudiced by the delay (e.g., possible lost evidence, possible different legal strategies would have been employed, etc.). I really don't think the judge will allow it.

Q: (2) If not, would I be able to bring action against the second attorney for amending the complaint without my knowledge and losing my ability to gain relief on those counts?
A: Yes, you probably would have a viable claim against the attorney for legal malpractice. It's actually outrageous that the attorney would unilaterally amend the complaint without your consent. To win a case for malpractice, however, you'd have to be able to show that you would have likely prevailed on the counts that were removed. The reason you'd have to prove that is because the alternative is that you were not harmed by the fact that the counts were removed. The way to prove harm, is to prove that you would have likely won.

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Customer: replied 3 years ago.

Is there any statute of limitation concerning the legal malpractice issue? Also, is there a particular way a court would find that I would have most likely won my case if the counts remained? Or would I simply have to be creative in proving the issue?

Expert:  TJ, Esq. replied 3 years ago.
Hello again.

The statute of limitations for legal malpractice is 2 years from when you discovered (or reasonably should have discovered) the negligence, with a maximum of 6 years after the act. If you did not discover what occurred until 2012, then you probably still have a case against the attorney.

As for proving that you would have won, that generally means a mini-trial within the malpractice trial in which you prove your case with regard to the missing counts.
Customer: replied 3 years ago.

Would it help to file a complaint with the Illinois Attorney Registration & Disciplinary Commission? Or would that just be a waste of time?

Expert:  TJ, Esq. replied 3 years ago.
Hi again.

Filing a complaint with the disciplinary board probably wouldn't help. What you describe is negligence (i.e., poor lawyering), but I don't believe that it's an ethical issue (i.e., dishonesty, etc.), which is what the disciplinary board is concerned with. You may want to file the complaint just to see what happens, but I wouldn't expect the outcome to help in the lawsuit.

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