Illinois is the only state I know of that has a statute of repose that applies to legal malpractice actions. This means that, as in all statute of repose cases, an injured plaintiff can lose the right to recover against a lawyer before the client finds out he or she has suffered that injury. This, in my humble opinion, is absurd, and what makes it even worse is that the period of time recognized in the statute is only six years. Typically, statutes of repose in other areas of the law are at least ten years - although some have been lowered in response to tort reform efforts.
This summer the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.
The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.
Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.
Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.
Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had no right to sue to begin with.
I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers. You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.