LEGAL MALPRACTICE
A. ATTORNEYS - GENERALLY
735 ILCS 5/13-214.3: Limitation
An action brought against an attorney or against a non-attorney employee of an attorney arising out of an act or omission in the performance of professional services must be commenced within 2 years from the time the person bringing action knew, or reasonably should have known, of the injury for which the action is being brought. However, except for occasions when the injury does not occur until the death of the person for whom the professional services were rendered, such action may not be commenced in any event more than 6 years after the date on which the act or omission occurred.
A statute of repose limits the time within which an action may be brought and is not related to the accrual of any cause of action, and the injury need not have occurred, much less have been discovered. The 6-year statute of repose in section 13-214.3(c) is paramount and may bar an action that is otherwise timely under the 2-year limit of section 13-214.3(b). Griffin v. Goldenhersh, 323 Ill. App. 3d 398, 752 N.E.2d 1232, 257 Ill. Dec. 52 (5th Dist. 2001). In Griffin, the alleged malpractice occurred in June 1981, at trial. Even though the plaintiff's conviction was overturned in 1996, and he therefore ostensibly had 2 years to file his action pursuant to section 13-214.3(b), the statute of repose began to run at the end of the trial in June 1981, and expired 6 years later in June 1987, thereby barring plaintiff's claim before it accrued.
The statute of repose begins to run on the date of the last act of representation with regard to the omission upon which the malpractice claim is founded. O'Brien v. Scovil, 332 Ill. App. 3d 1088, 774 N.E.2d 466, 266 Ill. Dec. 360 (3d Dist. 2002). The continued existence of the attorney-client relationship after the acts or omissions alleged to have caused injury does not toll the repose period. Sorenson v. Law Offices of Theodore Poehlmann, 327 Ill. App. 3d 706, 764 N.E.2d 1227, 262 Ill. Dec. 110 (2d Dist. 2002). In Mauer v. Rubin, 401 Ill. App. 3d 630, 926 N.E.2d 947, 339 Ill. Dec. 472 (1st Dist. 2010), the court declined to recognize a continuous course of the negligent representation doctrine to extend the statute of repose. However, even if the statute of repose has expired, a plaintiff who timely filed his original action will be allowed to refile it pursuant to 735 ILCS 5/13-217. Jain v. Johnson, 398 Ill. App. 3d 135, 922 N.E.2d 1188, 337 Ill. Dec. 611 (2d Dist. 2010). Furthermore, where work involves tangible documents, the statute begins to run when the attorney delivers his or her final work product to the client regardless of continuing duty to correct any defect or omission related to work product. For example, period of repose for malpractice action associated with unsigned deed commence on the date that the bank sent it to plaintiff's ex-wife for signature by her and plaintiff. Fricka v. Bauer, 309 Ill. App. 3d 82, 722 N.E.2d 718, 242 Ill. Dec. 934 (1st Dist. 1999) (also holding that discovery rule does not apply to statute of repose). Trogi v. Diabri & Vicari, PC, 362 Ill. App. 3d 93, 839 N.E.2d 553, 298 Ill. Dec. 230 (1st Dist. 2005). Where an attorney told his clients he would record two deeds but failed to do so, absent any further representations by the attorney, both the statute of limitations and the statute of repose started to run when the attorney made the promise to record them, and not when the clients discovered his error. Koczor v. Melnyk, 407 Ill. App. 3d 994, 944 N.E.2d 345, 348 Ill. Dec. 392 (1st Dist. 2011).
In addition, discovery rule does not prevent the running of the statute of limitations when plaintiff learned of alleged improper conduct on part of attorneys more than two years before filing complaint; and realized consequences of conduct shortly thereafter. Morris v. Margulis, 197 Ill. 2d 28, 754 N.E.2d 314, 257 Ill. Dec. 656 (2001). However, the second district applied the discovery rule to extend the period of limitations in a claim alleging malpractice for failing to properly demand arbitration of an insurance claim because the first time that plaintiff was charged with notice of her attorney's omission was when she received a letter informing her that insurance company was denying coverage because of limitations; and not when her new attorney received file and noticed that it contained no letter demanding arbitration. Romano v. Morrisroe, 326 Ill. App. 3d 26, 759 N.E.2d 611, 259 Ill. Dec. 831 (2d Dist. 2001). It based its determination primarily on the presumption that lay people are unable to discern on their own any misapplication of legal expertise. Goodman v. Harbor Market, Ltd, 278 Ill. App. 3d 684, 688, 663 N.E.2d 13, 215 Ill. Dec. 263 (1st Dist. 1995); Racquet v. Grant, 318 Ill. App. 3d 831, 741 N.E.2d 1008, 251 Ill. Dec. 830 (2d Dist. 2000). However, the filing of an ARDC complaint has...
