Robert F. Merlo

Kimberly Blair (Partner-Chicago, IL) and Chicago associates Robert Merlo and Thomas Duff represented the attorney for the wife in a very contentious divorce case; specifically, representing her in post-decree proceedings stemming from the husband’s refusal to turn over significant sums of money, over which he was held in indirect civil contempt and jailed. Subsequently, the husband filed suit against his ex-wife, his former business partner, and his wife’s attorneys (including our client) on allegations of aiding and abetting, intentional and negligent infliction of emotional distress, and civil conspiracy – suggesting that our client’s conduct was part of a nefarious legal strategy. Kim, Robert, and Thomas were successful at having the matter dismissed with prejudice at the trial court level based on the absolute litigation privilege. An impressive brief written on appeal by Robert and Thomas convinced the Appellate Court of Illinois, First District to affirm the trial court’s decision in an extensive opinion that further solidified the litigation privilege in the State of Illinois. 

A Chicago office team comprising partners Kimberly Blair and Joseph Stafford and associates Robert Merlo and Thomas Duff secured the First District Court of Appeals’ affirmance of a dismissal with prejudice of the plaintiffs’ third amended complaint for legal malpractice against our law firm client. A the circuit court level, the team brought in our client’s predecessor counsel as a third party, alleging that because discovery in the underlying case closed on their watch, there was nothing our client could have done to remedy the alleged malpractice. The predecessor counsel filed a motion for summary judgment on our third-party complaint based on the successor counsel (viability) doctrine, and the court denied it, holding that by the time it appeared in the underlying case, nothing our client could have done would have prevented the unfavorable outcome for the plaintiffs in the underlying action. After that ruling, the plaintiffs were given one more chance to state a claim, but they would have had to wholly shift their theory of malpractice. The court then dismissed that complaint (with prejudice) because the plaintiffs’ allegations about what they would have done were contradicted by what they actually did in response to the underlying judgment, through yet another successor attorney.

On appeal, the plaintiffs argued, among other things, that the district court judge was incorrect to hold, as a matter of law, that no arguments could have defeated the underlying dispositive motions and improperly took judicial notice of post-judgment proceedings from the underlying case in dismissing the plaintiffs’ “last-ditch” third amended complaint. The First District affirmed, and comprehensively laid out why it agreed with our many arguments in the Response Brief. Notably, the First District’s conclusion in its published opinion essentially mirrored our conclusion in our Response Brief.