Blogs

Professional responsibility pitfalls from recent Illinois decisions

9/17/26

By: Patrick Eckler

Lawyers defending legal malpractice claims often discover that the real dispute is not about an unfavorable result, but whether counsel complied with fundamental professional obligations. Three recent decisions, Ordower v. Dalton, 2026 IL App (1st) 252193-U, Steven J. Morton & Associates, Ltd. v. Stohr, 2026 IL App (1st) 250895-U, and Sima v. Benesch, Friedlander, Coplan & Aronoff LLP, No. 25-1729, 2026 WL 2546600 (7th Cir. Aug. 28, 2026), demonstrate how communication failures, conflicts of interest, fee-sharing disputes, and attorney mobility can create significant malpractice exposure.

Communication matters: Rule 1.4

In Ordower v. Dalton, the underlying malpractice allegations stemmed from an attorney’s interpretation of a client’s voicemail as a withdrawal from a business transaction. The claimant argued that the attorney proceeded without adequately consulting the client regarding the client’s actual objectives. An ethics expert opined that such conduct violated Rule 1.4, which requires lawyers to reasonably consult with clients concerning the means by which their objectives are to be accomplished.

Although the First District ultimately held that competing expert opinions created questions of fact that could not be resolved on summary judgment, the case serves as a reminder that malpractice claims frequently arise from communication failures rather than legal errors. Lawyers should document significant discussions concerning strategy, settlement authority, and changing client objectives. A simple confirming email can become critical evidence years later.

Conflicts and business transactions with clients: Rules 1.7 and 1.8

The same decision also addressed allegations involving an attorney’s acquisition of an ownership interest in a transaction involving a client. The claimant asserted that the attorney’s personal financial interests conflicted with the client’s interests and that the transaction failed to satisfy the disclosure and informed consent requirements governing business transactions with clients.

Rules 1.7 and 1.8 present recurring malpractice risks because they seek to protect clients from divided loyalties. Plaintiffs’ experts often focus heavily on whether disclosures were adequately documented and whether informed consent was obtained. Even transactions that appear beneficial to all participants can become fertile ground for malpractice allegations when the required safeguards are not strictly followed.

For lawyers and law firms, compliance with these rules should never be treated as a technical exercise. Thorough written disclosures and documented client consent remain the best protection against later claims that personal interests compromised professional judgment.

Allegations of dishonesty: Rule 8.4

The allegations in Ordower v. Dalton also advanced claims that the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation under Rule 8.4. While those allegations remained disputed, the case illustrates how quickly a communication or conflict dispute can evolve into accusations of unethical conduct.

From a malpractice defense perspective, allegations of deceit can significantly increase litigation risk. Juries often react more strongly to claims involving honesty than to claims involving negligence alone. Transparency, documentation, and candid communication remain the most effective defenses to such allegations.

Fee-sharing agreements must strictly comply with rule 1.5

In Steven J. Morton & Associates, Ltd. v. Stohr, the First District addressed a dispute between lawyers over an alleged referral-fee arrangement arising from a wrongful death case. One attorney claimed entitlement to half of a contingency fee after being discharged by the client.

The court rejected the claim because the written retainer agreement did not identify the arrangement as a referral relationship. Although the agreement allocated fees between attorneys, it failed to satisfy Rule 1.5(f)’s requirement that the client agree in writing to the referral arrangement and fee division. As a result, the alleged agreement was unenforceable as a matter of public policy.

The lesson is clear. Referral-fee agreements cannot rely on informal understandings, side conversations, or professional courtesies. When lawyers intend to share fees based upon a referral relationship, strict compliance with Rule 1.5 is essential.

Conflicts during lateral moves

The Seventh Circuit’s decision in Sima v. Benesch, Friedlander, Coplan & Aronoff LLP highlights another increasingly common risk. The plaintiff alleged that her attorney was negotiating a move to the law firm representing the opposing party while continuing to represent her interests. The court acknowledged concerns about the alleged conflict but nevertheless affirmed dismissal because the plaintiff failed to establish causation and damages.

Even where malpractice liability cannot be established, attorney transitions between firms can create substantial ethics issues and invite litigation. Lawyers contemplating lateral moves should carefully evaluate active matters involving future employers and ensure appropriate conflict analysis, screening procedures, and disclosures are implemented.

Conclusion

These three decisions underscore a common reality in modern legal malpractice litigation: professional responsibility issues remain at the heart of many claims. Whether the alleged violation involves Rule 1.4’s communication obligations, Rules 1.7 and 1.8’s conflict requirements, Rule 1.5’s fee-sharing provisions, or Rule 8.4’s prohibition against dishonest conduct, the best malpractice defense still begins long before a lawsuit is filed. Careful documentation, thorough conflict analysis, informed client consent, and strict adherence to the Rules of Professional Conduct remain the profession’s most effective risk-management tools.

For more information, please contact Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG Law attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.