Davidson v. Gurewitz, NO. 2-15-0171: Illinois Appellate Court Affirms Dismissal of Legal Malpractice Claim

The Appellate Court of Illinois, Second District, recently affirmed the decision of a lower court, dismissing a legal malpractice action. In Davidson v. Gurewitz, a father sued an attorney, who had served as a Court appointed child representative in the father’s custody battle with the child’s mother.

The mother was ultimately awarded custody, and the father brought a malpractice action against the attorney. The father alleged that the attorney was not disinterested and had been acting as an advocate for the mother, which resulted in his loss of custody.

The attorney successfully moved to dismiss the malpractice case on the basis that as court-appointed child representative, he was immune from liability, under Section 2-619(a)(9) of the Illinois Code of Civil Procedure. The father appealed the decision, alleging that the attorney had breached a fiduciary duty to him and deviated from the standard of care for a child’s representative.

The Appeals Court upheld the dismissal, reasoning that the law provides immunity to child representatives, so that they may serve without worrying that they will be sued by disgruntled parents. The Court also stated that in a child custody proceeding, a dissatisfied party may alert the court of any perceived misconduct of the child representative. Therefore, the appropriate forum to raise any issues with the attorney’s impartiality was in the custody proceedings, not in a civil malpractice action. However, in this case, the father never objected to the appointment of the attorney or notified the court of any alleged misconduct. Thus, dismissal was appropriate.