A lawsuit brought on behalf of an individual for Illinois medical malpractice was found to be a nullity because the supposed lawyer was unlicensed. The so-called nullity rule directly punished the unknowing client in this case.
In Applebaum v. Rush University Medical Center, 2008 WL 4943860 (Nov. 20), the high court of Illinois explained that the nullity rule:
Should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible.
The high court clarified the application of the nullity rule in a case where the plaintiff personally filed a medical malpractice on behalf of his deceased father’s estate. At the time of filing the lawsuit, the plaintiff who was on inactive status with the Attorney Registration and Disciplinary Commission (ARDC).
The defendants invoked the nullity rule arguing that the complaint should be dismissed as void. But by then the statute of limitations had expired so that the plaintiff would not be able to re-filed with another attorney.
Meanwhile, Applebaum was able to automatically switch his law license from inactive to active status. All this required was make a request to the ARDC and pay a fee. Having already been admitted to practice in Illinois, there was no investigation, test, or review imposed on him before he was re-designated as an active Illinois attorney.
The trial judge in Applebaum rejected the defendant’s request to apply the nullity rule under these circumstances, but the Supreme Court certified a question for an interlocutory review. Granting permission for the immediate appeal, the 1st District decided that the nullity rule applied, but the Supreme Court disagreed.
The Illinois Supreme Court held that,
although the nullity rule is well-established in our courts, because the results of its applications are harsh, it should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible. . . [R]ather, it is clear that the essential purpose of this particular rule is to establish an administrative framework for the annual registration of attorney’s licenses in Illinois and to set forth a graduated annual fee collection schedule, based upon the attorney’s ARDC registration status. An attorney wishing to change his/her ARDC registration status from ‘active’ to that of an ‘inactive’ status attorney, must follow the procedures set forth in subsection (a)(5) of Rule 756. . .
In this particular case, the Supreme Court held that the purpose for applying the nullity rule would not be served because the protection of the public and the integrity of the court system from the harm presented by representation by unlicensed individuals were not present here. This case carved out facts that do not make applicable the harsh rule which would result in such a harsh penalty on this plaintiff.
Kreisman Law Offices has been practicing Illinois personal injury law and Cook County medical malpractice law for over 30 years, serving areas such as Elk Grove Village, Oak Park, Chicago, and Naperville.