Appeal from the Circuit Court of Cook County, Illinois. No. 05 L 62044 Honorable Mary K. Rochford, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
Following denial of their motion to dismiss, defendants*fn1 filed a motion requesting that the trial court certify a question for interlocutory appeal pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)). The trial court granted the motion and certified the following question:
"Whether the nullity rule should be applied in a wrongful death action where the plaintiff is an attorney who has passed the bar and was on inactive status at the time of the filing of the complaint, was the special administrator, sole beneficiary and son of the decedent and prior to the hearing on the motion whose license was reinstated."
On December 18, 2006, this court granted defendants' petition for leave to appeal and this interlocutory appeal followed. For the reasons that follow, we answer the certified question as follows:
Where a plaintiff proceeding pro se was formerly licensed to practice law, but is voluntarily on inactive status pursuant to Illinois Supreme Court Rule 756(a)(5) (Official Reports Advance Sheet No. 20 (September 27, 2006), R. 756(a)(5), eff. September 14, 2006) at the time of the filing of a complaint under the Wrongful Death Act, he or she is not authorized to practice law and the nullity rule applies even though plaintiff returned to active status prior to a hearing on a motion to dismiss the complaint as a nullity.
On December 2, 2003, the decedent, Joseph Applebaum, died following medical treatment at Rush North Shore Medical Center. On December 1, 2005, plaintiff, Michael Applebaum, Special Administrator of the Estate of Joseph Applebaum (estate), filed a complaint at law against defendants. Plaintiff sought damages under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2004)) and the Survival Act (755 ILCS 5/27-6 (West 2004)) for defendants' alleged willful and wanton misconduct in treating decedent. Plaintiff endorsed the complaint as "Attorney at Law." On April 4, 2006, plaintiff filed a first amended complaint, adding additional counts, and changing the complaint's endorsement to read "Plaintiff Pro Se."
Plaintiff is the only child and sole beneficiary of the estate. The estate had no creditors and was not opened to probate. Plaintiff's complaint and damages sought are only in the name of the estate, not individually for plaintiff. Though plaintiff was admitted to the Illinois bar in 1988, he voluntarily assumed inactive status with the Attorney Registration and Disciplinary Commission (ARDC) on January 6, 2005, since he "had not practiced law in any real capacity until his father's death." Plaintiff remained inactive until some time after he filed his complaint and first amended complaint, but before the hearing on defendants' motion to dismiss.
On June 1, 2006, defendants moved to dismiss plaintiff's complaint as a nullity. Defendants asserted that, because plaintiff had assumed inactive status with the ARDC on January 6, 2005, and he was not licensed to practice law. Defendants argued that because plaintiff appeared in a representative capacity that case law required a finding that the complaint was a nullity and must be dismissed.
Plaintiff maintained that his case should fall under an exception to the nullity rule. Plaintiff asserted that he had proper legal training, had been licensed, but just had not paid the ARDC dues to remain active. He claimed these facts, and the lack of any other party who would benefit from the suit, were sufficient to counter the traditional concerns faced in these cases. Therefore, plaintiff concluded, his case fell within an exception to the nullity rule.
The trial court heard argument and denied the motion. The trial court agreed that plaintiff's inactive status precluded him from representing the estate and that his actions also led to similar suits being declared a nullity. The trial court, however, noted the court's reluctance to apply the nullity rule due to its harshness. The trial court concluded that because plaintiff had earned a law degree, was accepted to the bar, had never been disciplined by the ARDC, and had resumed active status, the risks typically associated with representation by a non-attorney did not exist in this case. Accordingly, the trial court found that plaintiff should be excepted from the nullity rule.
Defendants moved to certify the aforementioned issue for interlocutory appeal. The trial court agreed that there were sufficient grounds for a difference of opinion on the issue and that resolution in this court might ultimately terminate the litigation and certified the issue. On ...