Lamet v. Levin, 39 N.E.3d 136

Background

In 1994 Jerome Lamet retained attorney Ellis Levin to defend a landlord suit seeking roughly $34,000 in unpaid rent; Lamet paid primarily by allowing Levin free office rent. Levin represented Lamet through two related actions (1993 dismissed; refiled 2002).
Levin asserted defenses and counterclaims (including alleged overbilling of square footage and duplicate billing for another suite) that were factually unsupported; an architect’s May 23, 1994 letter (to Lamet’s prior counsel) showed square footage figures contrary to Levin’s assertion.
The 1993 action was dismissed for want of prosecution; after refiling in 2002, Levin obtained a dismissal for lack of service (later reversed), and continued to defend aggressively; Lamet settled the 2002 action for $150,000 on December 9, 2011.
In December 2011 Lamet sued Levin for legal malpractice, alleging Levin knew or should have known in 1994 that the defenses/counterclaims were meritless and that his conduct caused decades of unnecessary litigation and eventual damages.
Levin moved to dismiss under Ill. Code Civ. Proc. §2-619 asserting the malpractice claims were time-barred by the 2-year statute of limitations and the 6-year statute of repose for legal malpractice; the trial court granted dismissal and Lamet appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does the 6-year statute of repose start for malpractice arising from litigation conduct?	Repose begins on the last date Levin performed negligent acts (June 10, 2011).	Repose begins when the initial negligent act occurred (1994), because plaintiff’s claim is premised on that initial failure to advise.	Repose began in 1994; suit is barred by the 6-year repose.
When does the 2-year statute of limitations begin (discovery rule)?	Limitations began in 2011 when Lamet’s new counsel discovered the meritlessness of defenses.	Lamet knew or reasonably should have known of the defect in 1994 (May 23, 1994 architect letter).	Court did not need to decide because repose bars suit; but found Lamet knew or should have known in 1994, so limitations would also bar the claim.
Does the attorney-client relationship alone toll repose/limitations (fraudulent concealment)?	Levin had an affirmative duty as fiduciary to disclose his malpractice; thus tolling applies though no concealment alleged.	Tolling requires affirmative acts of concealment; absent allegations of material-fact concealment, tolling doesn’t apply.	Fiduciary duty to disclose does not extend to advising a client of grounds to sue for malpractice; no fraudulent concealment alleged, so tolling not available.
Should appellate sanctions be imposed for bringing the appeal?	(Lamet pursued appeal)	Levin requested sanctions under Ill. S. Ct. R. 375(b) for frivolous appeal.	No sanctions imposed; court declines given facts and equities.

Key Cases Cited

Mauer v. Rubin, 401 Ill. App. 3d 630 (Ill. App. Ct.) (statute of repose runs from the event giving rise to malpractice even if injury realized later)
Hester v. Diaz, 346 Ill. App. 3d 550 (Ill. App. Ct.) (repose began when case was dismissed despite later negligent acts)
Feltmeier v. Feltmeier, 207 Ill. 2d 263 (Ill. 2003) (recognizing single overt act can trigger repose despite continuing injury)
Fricka v. Bauer, 309 Ill. App. 3d 82 (Ill. App. Ct.) (ongoing duty to correct past mistakes does not toll repose)
Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540 (Ill. App. Ct.) (continuation of attorney-client relationship does not toll repose)
Snyder v. Heidelberger, 2011 IL 111052 (Ill.) (period of repose can begin when final negligent work product was delivered in transactional contexts)
DeLuna v. Burciaga, 223 Ill. 2d 49 (Ill. 2006) (attorney’s affirmative misrepresentations can constitute fraudulent concealment)
Butler v. Mayer, Brown & Platt, 301 Ill. App. 3d 919 (Ill. App. Ct.) (attorney-plaintiff’s sophistication affects when he should have recognized malpractice)