The opinion of the court was delivered by: Justice Cousins
Bruce Golden, the appellant, filed suit against the appellees, law firm McDermott, Will & Emery, as well as certain partners in their individual capacities. Golden alleged that the appellees breached the partnership agreement by expelling him in contravention of specified procedures, breached their fiduciary duty as co-partners and committed fraud in misrepresenting and withholding information from him while his severance agreement was being negotiated, and breached the severance agreement by not paying him the full amount due under it.
Upon a section 2-619 (735 5/2--619 (West 1994)) motion by appellees, the judge dismissed the complaint on the basis of various defenses, including the statute of limitations and a release signed by Golden as part of the severance agreement. Golden appeals, claiming that the trial court erred in granting the motion to dismiss his complaint. The plaintiff's complaint alleged, inter alia, (1) breach of contract, (2) breach of fiduciary duty, and (3) duress. The plaintiff also contends that the trial court erred in not allowing him leave to amend his complaint a third time.
The appellant, Bruce Golden, is a securities lawyer who worked for the appellee law firm McDermott, Will & Emery (MWE) for 21 years. He joined the firm in 1970, was made an income partner in 1976 and was made a capital partner in 1981. Among the clients he brought to MWE were a public real estate syndicator known as Avanti Associates (Avanti), and its promoter, Timothy Sasak.
In 1989, a class action suit (the Avanti suit) was brought against Sasak and Avanti for, among other things, violation of securities laws in the sale of its partnership assets. MWE was also named as a defendant. The plaintiffs sought to recover $120 million from MWE.
Golden alleges that shortly prior to the Avanti suit, MWE obtained a malpractice insurance policy with Attorney's Liability Assurance Society, Ltd. (ALAS). The claims from the Avanti suit were the first that ALAS had to pay out for MWE, and ALAS said that those claims were the largest it had ever been required to cover for any firm.
Golden also alleges that ALAS was hesitant to renew MWE's insurance policy as a result of the Avanti suit and that MWE had talks with ALAS in order to save its coverage. ALAS, he alleges, wanted him removed from the firm, and MWE acceded. MWE postponed his termination, Golden claims, because it needed his cooperation in the Avanti litigation.
Golden further alleges that from the time of the Avanti suit MWE began to limit his participation in partnership business and reduced his partnership interest. In particular, he alleges the following: (1) around the beginning of 1990, he was told that John McDermott, a partner of MWE and a named defendant in this suit, had directed that he not be given any more work for United Airlines, a major MWE client for which Golden had been doing much work; (2) from that time he was not given any "meaningful assignments" with United or any other MWE client; (3) John McDermott told him that he should not bring in any new business and McDermott also took over his contact list, purportedly in order to ease his workload; and (4) late in 1990, partner Robert McDermott suggested that he look into non-legal careers.
In January 1991, the firm reduced Golden's partnership units by a third. Golden's compensation was based upon these units, as was the amount he would receive in a severance package.
The Avanti litigation settled on July 18, 1991. The next day, partners Stanley Meadows and James Roche, also defendants in this action, informed Golden that he was being fired but that the firm would give him the opportunity to resign first. At that meeting Golden was told that the reason for his firing was "lack of production," although he says that Meadows later informed him in confidence that pressure from ALAS was the real reason.
Over the next few months Golden and the firm worked out a severance agreement to settle his accounts. The severance agreement contained the following release clause:
"Golden *** releases *** the Firm *** from any and allclaims *** whether now known or unknown *** including,but not limited to, any and all claims *** relating to orarising out of Golden's partnership, tenure or separationfrom the firm *** provided, however, that this releaseand discharge shall not bar Golden from bringing any actionto *** enforce this agreement."
In consideration for the release, MWE gave Golden a one-time payment of $225,000 minus the amount of his draw subsequent to October 31, 1991. Golden claims that MWE deducted more than this amount from the $225,000, although he did not specify the amount of the excess deduction. At Golden's behest, a provision was also included in the agreement that would allow him to sue ALAS for getting him fired.
Golden claims that in the negotiations MWE falsely told him that his severance payment was the largest given to any terminated partner and was the same amount that he would have gotten had he resigned voluntarily. He also claims that MWE concealed the fact that no vote had been taken on his expulsion, as was mandated by the partnership agreement.
Around the time that Golden signed the severance agreement, he was having personal problems. He had just lost a lawsuit concerning a major defect in a house he had bought. His wife's employer had died, and, as a result, she also was out of work. Golden sought counseling. He says that the mental health professional reported that the termination had left Golden "paranoid," "fragmented," having "major depression, recurrent" and as "dysfunctional" with "chaos reigning supreme."
On November 7, 1991, Meadows told Golden that the management committee had not taken a vote on his expulsion. He told Golden that he would have difficulty finding new legal employment, because ALAS had "blacklisted" him. Golden says that Meadows also told him at some time during negotiations that "he was personally embarrassed by [the proposed settlement agreement's] ...