The Illinois Bar Journal has published an article by Timothy J. Miller, a partner at Novack and Macey LLP, entitled “Should Derivative Legal Malpractice Be Allowed in Illinois.” Mr. Miller concludes it should not. The article is in the February 2013 issue. Read more.
“[A] derivative suit allows a shareholder to bring suit on behalf of a corporation for injuries done to a corporation,” Mr. Miller writes. “[I]f derivative malpractice actions are allowed, a shareholder who had no relationship with a lawyer may be allowed to pursue a malpractice case against him or her.”
“[D]erivative malpractice actions are problematic,” Mr. Miller asserts. “They could (a) leave lawyers unable to defend themselves if they may not reveal privileged information and communications with the actual client or (b) allow lawyers to reveal privileged conversations to defend themselves though the actual client has not waived the privilege.”
“Illinois courts have not yet carefully considered derivative legal malpractice cases,” Mr. Miller explains. “Instead, they have assumed they’re appropriate without recognizing the unique issues they raise.” Mr. Miller concludes, “the attorney-client privilege is too important to be set aside by a stranger to the attorney-client relationship–even if the stranger is a corporation’s shareholder–unless there is a compelling reason. There is none. Derivative legal malpractice actions should not be allowed.”
Mr. Miller focuses his practice on representing lawyers and other professionals. For more information, contact him at (312) 419-6900 or firstname.lastname@example.org.