by Christopher J. Graham and Joseph P. Kelly

Scanlan v. Marshall Eisenberg, et al, Case No. 09 C 5026 (N.D. Ill Nov. 15, 2012)

Trust beneficiary sued law firm and lawyers for legal malpractice and breach of fiduciary duty. Defendants allegedly represented both the plaintiff beneficiary and the trustee; and caused the Trust to purchase stock and make loans for the benefits of others. Defendants unsuccessfully argued plaintiff didn’t allege an attorney-client relationship. While there was no express representation of plaintiff by defendants, plaintiff alleged an implied-in-fact contract through allegations regarding plaintiff’s interactions with defendants over the years, including numerous examples where defendants advised plaintiff on legal matters. Defendants also unsuccessfully argued the fiduciary duty count was duplicative of the legal malpractice count but the court allowed the fiduciary duty count to proceed because it was based on different conduct than alleged in the legal malpractice count.