Levine v. Kling
| Decision Date | 23 April 1996 |
| Docket Number | No. 95 C 1998.,95 C 1998. |
| Citation | 922 F. Supp. 127 |
| Parties | Robert M. LEVINE, Plaintiff, v. Richard KLING, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Robert M. Levine, Florence, Colorado, pro se.
Daniel J. Pope, Bell, Boyd & Lloyd, Chicago, Illinois, for Defendant.
Before the court is defendant Richard Kling's ("Kling") motion to dismiss plaintiff Robert M. Levine's ("Levine") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants Kling's motion to dismiss.
As the Seventh Circuit so aptly described the criminal case against Robert Levine:
Not too long after the Seventh Day, two brothers, Cain and Abel, were in a field. Cain attacked Abel — and killed him. Although life today is different than it was a generation removed from Eden, some things remain the same. In this case, Robert Levine hired an assassin to kill his brother, Donald Levine, and to kill Donald's family. The assassin killed Donald and his wife Marsha, and tried to kill Donald's son Mark. Robert Levine was convicted of one count of conspiring to use interstate commerce to effect murder for hire and of four counts of using interstate commerce to effect murder for hire. 18 U.S.C. §§ 371, 1958. Levine appeals his conviction and sentence.
Levine, 5 F.3d at 1102. The court of appeals then rejected Levine's arguments on appeal and affirmed his conviction and sentence. Now Levine, himself a law school graduate, is suing Kling, his appellate counsel, for legal malpractice. Levine's state law action is before this court on the basis of diversity of citizenship.2
Levine asks for at least $3,350,000 in damages because of Kling's allegedly negligent representation of Levine. Levine alleges that Kling failed to abide by Levine's decisions regarding his representation; failed to attend or was late for meetings with Levine; raised an ineffective assistance of counsel claim on appeal, despite Levine's concern about raising that issue; made errors during oral argument before the court of appeals; failed to file a motion for rehearing or rehearing en banc after the court of appeals issued its decision, and to notify Levine that Kling would not be filing such a motion; caused Levine to file his petition for writ of certiorari pro se by failing to notify Levine of his right to request review by the Supreme Court and to render any assistance to Levine; and terminated representation of Levine prior to completing his required duties and responsibilities.
Levine asks for compensatory damages of at least $2,350,000 for the following: $400,000 per year for loss of earnings, based on Levine's pre-imprisonment earnings; $250,000 for the fine imposed by the district court, plus $35,000 in interest and any additional interest that may accrue; $15,000 for the restitution ordered by the district court, plus any interest that may accrue; and at least $750,000 for mental anguish and suffering caused by loss of reputation, loss of family ties, loss of consortium, and enhanced embarrassment suffered by Levine's family as a result of Kling's malpractice. Levine asks for punitive damages of $1,000,000.
Kling moves to dismiss Levine's complaint on the grounds that Levine's complaint is based on violations of the American Bar Association Model Rules of Professional Conduct, which cannot form the basis of an independent tort, and that Levine has failed to allege any facts showing that Kling's alleged malpractice caused the damages Levine now seeks to recover.
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F.Supp. 1283, 1285 (N.D.Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED.R.CIV.P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Furthermore, the court liberally construes allegations in a pro se complaint, and applies less stringent standards than those applied to professionally drafted complaints. Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992), cert. denied, Sceifers v. Vail, 506 U.S. 1062, 113 S.Ct. 1002, 122 L.Ed.2d 152 (1993).3
Levine's complaint is framed in terms of violations of various rules of the American Bar Association's Model Rules of Professional Conduct. For example, Levine claims that Kling violated Rule 1.3, which states: "A lawyer shall act with reasonable diligence and promptness in representing a client." (Am.Complt. ¶ 3.3.0.) Levine then makes numerous allegations supporting why Kling violated that rule. (Am.Complt. ¶¶ 3.3.1 — 3.3.5.) Kling contends that these rules, even if violated, cannot form the basis of a tort action, and therefore that Levine's cause of action should be dismissed.
"Rules of legal ethics, while relevant to the standard of care in a legal malpractice suit, ... do not establish a separate duty or cause of action in tort." Skorek v. Przybylo, 256 Ill.App.3d 288, 291, 195 Ill.Dec. 274, 276, 628 N.E.2d 738, 740 (1st Dist.1993). Thus, Kling is correct that Levine cannot base his cause of action solely on violations of the ABA's Model Rules.
However, Levine also alleges that Kling engaged in "negligent and indifferent conduct in the representation of" Levine, and committed "general malpractice of the law in direct contravention of his oath of office before the Illinois Supreme Court." (Am. Complt. at 1.) Furthermore, Levine's complaint contains many factual allegations that arguably could support a malpractice action.
Thus, viewing Levine's complaint in the light most favorable to Levine, as the court is bound to do, the court finds that Levine's complaint is not based solely on violations of rules of ethics, and should not be dismissed on that ground.
Kling contends that Levine has not sufficiently alleged, and cannot prove, that Kling's alleged negligence proximately caused the damages that Levine seeks to recover. Therefore, because Levine has not alleged and cannot allege a necessary element of legal malpractice, his case should be dismissed with prejudice. The court agrees.
To state a claim for legal malpractice under Illinois law, the plaintiff must allege facts that establish (1) the existence of an attorney-client relationship; (2) a duty on the part of the attorney arising out of that relationship; (3) a negligent act or omission that breached that duty; (4) proximate cause that shows that but for the attorney's negligence, the plaintiff would not have suffered an injury; and (5) damages. Metrick v. Chatz, 266 Ill.App.3d 649, 652, 203 Ill.Dec. 159, 161, 639 N.E.2d 198, 200 (1st Dist.1994) (citing Claire Associates v. Pontikes, 151 Ill.App.3d 116, 104 Ill.Dec. 526, 502 N.E.2d 1186 (1st Dist. 1986)); Sheppard v. Krol, 218 Ill.App.3d 254, 256-57, 161 Ill.Dec. 85, 87, 578 N.E.2d 212, 214 (1st Dist.1991) (citing Pelham v. Griesheimer, 92 Ill.2d 13, 64 Ill.Dec. 544, 440 N.E.2d 96 (1982)).
In any legal malpractice action, the plaintiff must plead the existence of a valid underlying cause of action, since no malpractice exists if counsel's negligence caused no damage to the plaintiff. Sheppard, 218 Ill. App.3d at 256-57, 161 Ill.Dec. at 87, 578 N.E.2d at 214 (citing Claire Associates, 151 Ill.App.3d at 122, 104 Ill.Dec. at 530, 502 N.E.2d at 1190). That is, the plaintiff is required to prove a Sheppard, 218 Ill.App.3d at 257, 161 Ill.Dec. at 87, 578 N.E.2d at 214 (citing Claire Associates, 151 Ill.App.3d at 122, 104 Ill.Dec. at 530, 502 N.E.2d at 1190).
Where the underlying lawsuit was a civil action, the plaintiff must prove that but for his attorney's negligence, the plaintiff would have prevailed in the underlying action. Zych v. Jones, 84 Ill.App.3d 647, 652, 40 Ill.Dec. 369, 374, 406 N.E.2d 70, 75 (1st Dist.1980). However, most courts have adopted a different — and more stringent — standard where the underlying action was a criminal one:
The courts that have directly addressed the issue have held that the proximate cause inquiry is not limited to whether or not an adequate defense would have altered the result. Rather, due to the constitutional protections and public policy concerns unique to the criminal context, the plaintiff must also establish his factual innocence of the charges made against him in the underlying prosecution.
Sullivan v. Wiener, No. 88 C 6813, 1989 WL 65163, *1 (N.D.Ill. June 5, 1989) (emphasis added) (citing numerous cases in various jurisdictions so holding).
Illinois courts apparently have not yet addressed the issue. However, federal courts sitting in Illinois have predicted that Illinois courts would follow the prevailing view. In Walker v. Kruse, 484 F.2d 802 (7th Cir.1973), the Seventh Circuit affirmed the dismissal of plaintiff's malpractice action against his former defense counsel on the ground that the Illinois Supreme Court had rejected plaintiff's ineffective assistance claim on appeal in the underlying criminal case. Id. at 803. However, it also noted that an Illinois court "might well hold, as a matter of law, that a criminal defendant cannot support a malpractice claim unless the plaintiff is able to establish his actual innocence." Id.
The court in Sullivan held what the Walker court noted. The Sullivan court stated: ...
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Levine v. Kling
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