Law School Case Brief
Harris v. Wunsch (In re Estate of Powell) - 2014 IL 115997, 382 Ill. Dec. 14, 12 N.E.3d 14
In a legal malpractice action, a court first considers whether the attorney owed the plaintiff a duty. Whether a legal duty exists is a question of law to be determined by the court. The starting point is the traditional, general rule that an attorney is liable only to his client, not to third persons. However, if a non-client is an intended third-party beneficiary of the relationship between the client and the attorney, the attorney's duty to the client may extend to the non-client as well. The key consideration is whether the attorney is acting at the direction of or on behalf of the client to benefit or influence a third party. For a non-client to succeed in a negligence action against an attorney, he must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party. This is referred to as the "intent to directly benefit" test.
Plaintiff, the estate of Perry C. Powell, filed claims for legal malpractice against several attorneys and their law firms as a result of the attorneys' conduct in handling a wrongful death action in which Powell was a beneficiary. The Circuit Court of Cook County dismissed the legal malpractice counts of plaintiff's complaint, finding that defendants did not owe Powell a duty. The appellate court reversed in part and remanded for further proceedings, finding inter alia that defendants owed Powell a duty.
Did the lawyers who instituted a wrongful death action owe a legal duty to the decedent's beneficiaries at the distribution of funds phase of the action?
The court's prior decisions in DeLuna, 223 Ill. 2d at 79 and Carter, 2012 IL 113204, 33, addressed the determination of the scope of an attorney's duty in a wrongful death action. In DeLuna, although primarily concerned with the application of the legal malpractice statute of repose, it was determined that an attorney who was hired to bring a medical malpractice and wrongful death action owed plaintiffs, the decedent's children, a fiduciary duty, since the wrongful death action was "indisputably brought for children’s benefit". The issue in Carter concerned the enforceability of an arbitration agreement rather than the scope of an attorney's duty. The court examined of the provisions of the Act (Illinois Wrongful Death Act, 740 ILCS 180/2.1) and recognized that the decedent's spouse and next of kin are the true parties in interest in a wrongful death action, rather than the personal representative who is merely a nominal party. Further, the legislature did not treat a wrongful death action like other assets of the deceased's estate. Rather, amounts recovered in a wrongful death action are not subject to the provisions of the Probate Act of 1975 but are distributed to the decedent's surviving spouse and next of kin per their degree of dependency. An attorney who brings a wrongful death action owes a legal duty to the decedent's beneficiaries at the distribution of funds phase of the action.
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