Appeal from the Circuit Court of Cook County
Honorable James Heyda, Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
Plaintiff William Kramer appeals the dismissal of his legal malpractice action against defendant Lawrence Dirksen, his attorney in a criminal case in which Kramer was convicted. The issue we address is whether a criminal defendant who has been found guilty is estopped from suing his lawyer for malpractice. The trial court so found and dismissed the malpractice action. We affirm.
In June 1993, plaintiff and Seth Dahm were in a speeding car that crashed. Dahm was killed. Plaintiff was later tried and convicted of reckless homicide. See People v. Kramer, 278 Ill. App. 3d 963, 664 N.E.2d 126 (1996). Plaintiff moved for a new trial, arguing that he was denied effective assistance of counsel. The motion was denied. The appellate court affirmed plaintiff's conviction, finding that defense counsel's representation was not ineffective and that, even if it were, plaintiff was not prejudiced by defense counsel's conduct.
Plaintiff then sued his defense counsel, Lawrence Dirksen, for legal malpractice. Plaintiff alleges that he was "not guilty" of reckless homicide. He claims he was the passenger in the car and that Dahm was the driver. Plaintiff further alleges that defendant negligently failed to impeach a witness. Defendant knew that one of the witnesses who identified plaintiff as the driver had earlier said he could not actually see who was driving the car. Plaintiff also claims that defendant negligently refused to call an expert hired by plaintiff's family. The expert would have testified that the eyewitnesses could not have identified plaintiff as the driver. Plaintiff contends that as a result of defendant's negligence, he was convicted.
Defendant moved to dismiss plaintiff's complaint under sections 2- 619(a)(4) and (a)(9) of the Code of Civil Procedure. 735 ILCS 5/2- 619(a)(4), (a)(9) (West 1996). Defendant argued that plaintiff's cause of action was collaterally estopped because the issues of plaintiff's guilt, defendant's ineffective assistance (and so malpractice), and the proximate cause of plaintiff's conviction were decided in People v. Kramer, 278 Ill. App. 3d 963. The trial court granted defendant's motion.
Plaintiff first raises a procedural argument on appeal that the trial court "improperly treated defendant's motion to dismiss *** like a motion for summary judgment." Plaintiff notes that, under a section 2- 619 motion to dismiss, all well-pleaded facts in the complaint and reasonable inferences drawn from them are taken as true. See Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85, 651 N.E.2d 1132 (1995). But plaintiff's reading of the scope of a section 2-619 motion is too narrow. Plaintiff contends that the court erred by relying on facts decided in the criminal case and reviewed in People v. Kramer, 278 Ill. App. 3d 963. But the court did not "rely" on the facts in People v. Kramer. Under section 2-619(a)(4), the court relied on the finding of guilty and resulting judgment that effectively "froze" the facts that control this case. If plaintiff is estopped by a prior judgment from alleging certain facts in his complaint, those facts are not "well- pleaded" and need not be presumed to be true. Cf. Nagy v. Beckley, 218 Ill. App. 3d 875, 883, 578 N.E.2d 1134 (1991). We take judicial notice of the Kramer criminal case, not because it disposed of "evidence" that refutes plaintiff's allegations, but because it is a judgment that precludes certain allegations in subsequent litigation. The motion to dismiss under section 2-619(a)(4) was properly brought and ruled on.
We next address whether plaintiff's malpractice suit was properly dismissed. We review a trial court's dismissal under section 2-619 of the Code of Civil Procedure de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).
The elements of legal malpractice are: (1) the existence of an attorney/client relationship which establishes a duty on the part of the attorney; (2) breach of that duty; (3) proximate cause; and (4) damages. Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982). In a usual legal malpractice case, a plaintiff must prove that he would have successfully prosecuted or defended the underlying suit if the defendant had not been negligent. Ignarski v. Norbut, 271 Ill. App. 3d 522, 525- 26, 648 N.E.2d 285 (1995). A plaintiff who was a defendant in a civil case could recover for his attorney's malpractice if the plaintiff showed that absent defendant's malpractice, he would have escaped liability. See Bucci v. Rustin, 227 Ill. App. 3d 779, 784-85, 592 N.E.2d 297 (1992). If we apply that standard here, plaintiff would be allowed to recover if he proved that absent defendant's malpractice, he would have been acquitted. But we agree with defendant that policy reasons require a different analysis in a criminal case.
The majority of states require an additional element in legal malpractice cases where the underlying case is criminal. It is possible that a plaintiff who has been found guilty of a crime would profit from his criminal activity. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). To avoid this result, most states require a legal malpractice plaintiff to prove, not that he would have been acquitted but for the attorney's negligence, but that he is innocent of the crime charged. See, e.g., Glenn v. Aiken, 409 Mass. 699, 702, 569 N.E.2d 783, 785-86 (1991); Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607 (1987); State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. App. 1985); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).
In Levine, the seventh circuit concluded that Illinois courts would follow the majority and elaborated on the burden faced by a legal malpractice plaintiff who sues his yer. Levine, 123 F.3d at 582. See also Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973). The court reasoned:
"Tort law provides damages only for harms to the plaintiff's legally protected interests, Restatement (Second) of Torts, §1 comment d, §7(1) (1965), and the liberty of a guilty criminal is not one of them. The guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result ***, and the law provides no relief if the 'right' is denied him." Levine, 123 F.2d at 582.
The court held that a plaintiff suing his former criminal defense counsel must prove his own innocence and that a plaintiff was precluded from doing so if his conviction has ...