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.
A. Standard for motion to dismiss
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).
B. Model Rules of Professional Conduct
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. P 3.3.0.) Levine then makes numerous allegations supporting why Kling violated that rule. (Am. Complt. PP 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, 628 N.E.2d 738, 740, 195 Ill. Dec. 274 (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.
C. Legal malpractice
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, 639 N.E.2d 198, 200, 203 Ill. Dec. 159 (1st Dist. 1994) (citing Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 502 N.E.2d 1186, 104 Ill. Dec. 526 (1st Dist. 1986)); Sheppard v. Krol, 218 Ill. App. 3d 254, 256-57, 578 N.E.2d 212, 214, 161 Ill. Dec. 85 (1st Dist. 1991) (citing Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96, 64 Ill. Dec. 544 (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, 578 N.E.2d at 214 (citing Clair Associates, 151 Ill. App. 3d at 122, 502 N.E.2d at 1190). That is, the plaintiff is required to prove a "case-within-a-case." Sheppard, 218 Ill. App. 3d at 257, 578 N.E.2d at 214 (citing Claire Associates, 151 Ill. App. 3d at 122, 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, 406 N.E.2d 70, 75, 40 Ill. Dec. 369 (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.