2021 IL App (2d) 200191
Ill. App. Ct.2021Background
- In May 2014 Rojo retained Tunick, paid $10,000 (receipt shows $6,670 retainer), to represent him on drug and weapons charges; two counts were dismissed while Tunick represented him.
- Tunick moved to withdraw in September 2015; the trial court granted the motion on September 16, 2015; the transcript shows Tunick described the fee as a flat fee and did not promise a refund at the hearing.
- Rojo then hired new counsel, proceeded to jury trial, was convicted of a remaining drug offense and sentenced to 16 years.
- In October 2018 Rojo filed a pro se malpractice suit alleging two breaches: (1) deficient representation that caused his conviction, and (2) wrongful/untimely withdrawal and refusal to refund fees, causing him to pay new counsel $16,000–$18,000.
- The trial court denied Rojo’s request for appointed counsel and dismissed his amended complaint (order did not specify grounds); Rojo appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to appointed counsel in malpractice suit | Rojo asked the court to appoint counsel for his civil malpractice action | No entitlement — civil litigants have no constitutional or statutory right to appointed counsel | Denied: no right to appointed counsel in civil malpractice case (constitutional right attaches only in criminal cases) |
| Whether a criminal-malpractice plaintiff must allege actual innocence | Rojo argued he need not plead actual innocence because Tunick willfully breached fiduciary duty (citing Morris) | Tunick argued Rojo must allege actual innocence for malpractice claims that allege deficient representation leading to conviction | Split rule: actual-innocence required for malpractice claims alleging deficient performance that caused conviction; not required for claims based on fee/refund dispute |
| Accrual/statute of limitations for malpractice claim based on fees/refund | Rojo argued his claim was timely under the 6-year repose or otherwise accrued later when he incurred damages | Tunick argued the malpractice claim accrued at withdrawal (Sept 16, 2015) and was time-barred under the 2-year limitations when filed Oct 23, 2018 | Reversed dismissal as to fee/refund claim: accrual depends on when plaintiff knew or should have known of injury (i.e., when actual compensable damages were incurred); material factual question exists about when Rojo paid new counsel, so dismissal on statute grounds improper |
Key Cases Cited
- Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005) (distinguishes malpractice claims for deficient criminal representation from contract/fee claims and holds actual-innocence rule bars negligence claim tied to conviction but not a fee/refund claim)
- Paulsen v. Cochran, 356 Ill. App. 3d 354 (Ill. App. Ct. 2005) (elements of legal-malpractice claim)
- Kramer v. Dirksen, 296 Ill. App. 3d 819 (Ill. App. Ct. 1998) (recognizes actual-innocence requirement for criminal-malpractice claims)
- Morris v. Margulis, 197 Ill. 2d 28 (Ill. 2001) (discussed exception for willful/intentional attorney misconduct; appellate Morris differed from supreme court ruling and is distinguished on its facts)
- Goran v. Glieberman, 276 Ill. App. 3d 590 (Ill. App. Ct. 1995) (malpractice claim accrues when client knows or should know of wrongful injury; fees incurred that are not actionable until they become compensable damages)
- Profit Mgmt. Dev., Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill. App. 3d 289 (Ill. App. Ct. 1999) (actual damages are essential to accrual of legal-malpractice claim)