Applebaum v. Rush University Medical Center

• Decision Date: 20 November 2008
• Docket Number: No. 105905.,105905.
• Citation: 231 Ill.2d 429,899 N.E.2d 262
• Parties: Michael APPLEBAUM, Special Adm'r of the Estate of Joseph Applebaum, Deceased, Appellant, v. RUSH UNIVERSITY MEDICAL CENTER et al., Appellees.
• Court: Illinois Supreme Court

899 N.E.2d 262

231 Ill.2d 429

Michael APPLEBAUM, Special Adm'r of the Estate of Joseph Applebaum, Deceased, Appellant, v. RUSH UNIVERSITY MEDICAL CENTER et al., Appellees.

No. 105905.

Supreme Court of Illinois.

November 20, 2008.

Michael I. Applebaum, Skokie, for appellant.

Anderson, Rasor & Partners, LLP, Chicago (Patricia J. Foltz, Diane I. Jennings and Aaron P. Ryan, of counsel), for appellees.

Michael D. Carter, Jr., and Thomas A. Kelliher, of Horwitz, Horwitz & Associates, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion:

The circuit court of Cook County certified the following question of law for interlocutory appeal, pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)):

"Whether the nullity rule should be applied in a wrongful death action where the plaintiff is an attorney who has passed the bar and was on inactive status at the time of the filing of the complaint, was the special administrator, sole beneficiary and son of the decedent and prior to the hearing on the motion whose license was reinstated."

The appellate court answered this question in the affirmative. 376 Ill.App.3d 993, 315 Ill.Dec. 593, 877 N.E.2d 80. We granted leave to appeal (210 Ill.2d R. 315). For the reasons that follow, we answer the certified question in the negative. Accordingly, we reverse the judgment of the appellate court and remand this cause to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

This interlocutory appeal has its genesis in a medical malpractice complaint filed on December 1, 2005, in the circuit court of Cook County. Plaintiff, Michael Applebaum, filed suit as special administrator of the estate of Joseph Applebaum, against Rush University Medical Center and other defendants,¹ seeking damages for the estate pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2004)) and the Survival Act (755 ILCS 5/27-6 (West 2004)), stemming from defendants' alleged misconduct in treating decedent. Plaintiff is decedent's only child and the sole beneficiary of his estate, which had no creditors and was not opened to probate. Plaintiff's complaint and the damages it sought, however, were solely in the name of the estate and not pled individually for plaintiff.

Plaintiff signed the complaint as "Attorney for Plaintiff." The record reveals that plaintiff is a physician who received an Illinois license to practice law in 1988. The Attorney Registration and Disciplinary Commission (ARDC) has no record of plaintiff ever having been disciplined or being the subject of a public disciplinary proceeding. Plaintiff remained on "active" status with the ARDC until January 6, 2005, when, pursuant to our Rule 756(a)(5) (188 Ill.2d R. 756(a)(5)), he voluntarily changed his registration to that of an "inactive status attorney." This change in status occurred nearly one year prior to the filing of the medical malpractice complaint.

On April 4, 2006, plaintiff filed a first amended complaint in the medical malpractice action, adding additional counts. Plaintiff, however, signed this document as "Plaintiff Pro Se." Defendants thereafter filed, on May 31, 2006, a pleading styled "Motion to Dismiss Based on the Plaintiff's Unlicensed Practice of Law," resulting from their discovery that plaintiff—although an attorney—was on inactive status at the time he filed the initial complaint. Defendants maintained that "one not duly authorized to practice law may not represent another in a court of law" and argued that, because plaintiff was on inactive status with the ARDC, he was "not legally permitted to bring this litigation in a representative capacity on behalf of the estate of [decedent]." Defendants concluded, therefore, that "this matter must be declared a nullity and dismissed with prejudice."

The record reflects the parties' agreement that, sometime subsequent to the filing of defendants' dismissal motion—yet prior to the trial court's hearing of this matter on August 17, 2006—plaintiff returned to "active" status with the ARDC.

Upon conclusion of the August 17 hearing, the trial court denied defendants' motion to dismiss. The court agreed with defendants that plaintiff's inactive status precluded him from representing the estate and that, generally, legal proceedings brought by a nonlawyer on behalf of another may be voided under the nullity rule. The trial court, however, disagreed with defendants that this case required application of the nullity rule. Noting that the purpose of the nullity rule is to protect the public against unskilled and unscrupulous persons representing them in legal proceedings, the trial court found that the instant medical malpractice action filed by plaintiff—who has a law degree, who has been duly licensed in Illinois and never disciplined, who had resumed active status with the ARDC prior to the dismissal hearing, and who sought redress through this suit for alleged harm suffered by his father—did not present any of the concerns intended to be remedied by application of that rule. In addition, the court was troubled by the fact that applying the nullity rule and dismissing the action would foreclose any possibility of recourse for decedent's alleged injuries. Accordingly, the trial court refused to apply the nullity rule and denied defendants' motion to dismiss. The court did direct plaintiff, however, to file an amended complaint reflecting his current status as an active attorney. Plaintiff complied by filing a second amended complaint on August 28, 2006.

Defendants thereafter filed a "Motion for Rule 308 Finding," requesting that the trial court certify a question of law for immediate interlocutory appeal pursuant to our Rule 308. The trial court agreed with defendants that its prior order denying their dismissal motion involved a question of law as to which there is a substantial ground of difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation. Accordingly, the trial court certified its question for interlocutory appeal.

In applying the nullity rule and reversing the actions of the circuit court, the appellate court held:

"Where a plaintiff proceeding pro se was formerly licensed to practice law, but is voluntarily on inactive status pursuant to Illinois Supreme Court Rule 756(a)(5) [citation] at the time of the filing of a complaint under the Wrongful Death Act, he or she is not authorized to practice law and the nullity rule applies even though plaintiff returned to active status prior to a hearing on a motion to dismiss the complaint as a nullity." 376 Ill. App.3d at 993, 315 Ill.Dec. 593, 877 N.E.2d 80.

In arriving at this conclusion, the appellate court relied principally upon Fruin v. Northwestern Medical Faculty Foundation, Inc., 194 Ill.App.3d 1061, 141 Ill.Dec. 667, 551 N.E.2d 1010 (1990), which upheld the dismissal of a medical malpractice complaint based upon the nullity rule, where that complaint was signed and filed by an attorney located and licensed only in Wisconsin. The appellate court held that Fruin was factually analogous to the instant matter, as plaintiff "was not licensed" in Illinois, yet, nevertheless, filed a complaint "in violation of the plain letter of the law." 376 Ill.App.3d at 999, 315 Ill.Dec. 593, 877 N.E.2d 80. Although the court acknowledged that "[t]here is no doubt that the nullity rule is harsh," it noted that "the law is clear that only a licensed attorney may represent another party" (376 Ill.App.3d at 999, 315 Ill.Dec. 593, 877 N.E.2d 80), and held that "there are no unique circumstances present to justify a deviation from the rule" (376 Ill. App.3d at 1000, 315 Ill.Dec. 593, 877 N.E.2d 80).

This court allowed plaintiff's petition for leave to appeal. 210 Ill.2d R. 315. We also allowed the Illinois Trial Lawyers Association leave to file a brief amicus curiae. 210 Ill.2d R. 345.

ANALYSIS

The certified question requires us to determine whether the application of the nullity rule is appropriate under the facts presented in this case. In Ford Motor Credit Co. v. Sperry, 214 Ill.2d 371, 292 Ill.Dec. 893, 827 N.E.2d 422 (2005), we recently explained that the nullity—or voidness—rule

"is grounded in the fact that there are risks to individual clients and to the integrity of the legal system inherent in representation by an unlicensed person: The purpose of the nullity `rule is * * * to protect litigants against the mistakes of the ignorant and the schemes of the unscrupulous and to protect the court itself in the administration of its proceedings from those lacking requisite skills.'" Sperry, 214 Ill.2d at 389-90, 292 Ill.Dec. 893, 827 N.E.2d 422, quoting Janiczek v. Dover Management Co., 134 Ill.App.3d 543, 546, 89 Ill.Dec. 673, 481 N.E.2d 25 (1985).

Accordingly, where a person who is not licensed to practice law in Illinois attempts to represent another party in legal proceedings, this rule permits dismissal of the cause, thereby treating the particular actions taken by that person as a nullity. Sperry, 214 Ill.2d at 390, 292 Ill.Dec. 893, 827 N.E.2d 422. Although the nullity rule is well established in our courts, because the results of its application are harsh it should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible. See Sperry, 214 Ill.2d at 380, 390-91, 292 Ill. Dec. 893, 827 N.E.2d 422; see also, e.g., Pratt-Holdampf v. Trinity Medical Center, 338 Ill.App.3d 1079, 1085, 273 Ill.Dec. 708, 789 N.E.2d 882 (2003) (complaint improperly dismissed under the nullity rule where "risks to individual clients and to the integrity of the legal system inherent in representation by a person who has never qualified to practice law" not present); Ratcliffe v. Apantaku, 318 Ill.App.3d 621, 626,...