Page 2 - John Hundley 2012

Supreme Court’s Ellis Decision Is Restrictively Interpreted

In re Estate of Ellis, 236 Ill.2d 45 (2009), seeming to hold that suits claiming a defendant wrongfully
interfered with an inheritance are not bound by Illinois’ six-month deadline for filing will contests (see
Sharp Thinking No. 26 (November 2009), has been restrictively interpreted by a panel of the Appellate
Court. In Bjork v. O’Meara, 2012 IL App (1st) 111617 (Jan. 11, 2012), the First District interpreted Ellis as
applying only where the will-contest remedy was not “available” to the objector because of ignorance of
the expectancy under a prior will. Though the appellate panel was unanimous, look for the plaintiff to ask
the Supreme Court to review its decision.

Appeal Leave Granted in Center Partners Case

The Illinois Supreme Court has granted leave to appeal in Center Partners, Ltd. v. Growth Head GP,
LLC, 2011 IL App (1st) 110381 (Aug. 30, 2011). As discussed in Sharp Thinking No. 52 (September
2011), the Appellate Court decision held that business transaction lawyers have no “work product”
privilege analogous to their litigator counterparts, and it liberally found waiver of the attorney-client
privilege through information-sharing among parties that seemed to have a common interest.

Judgment Entered Against Victim Lawyer in Internet Scam Case

The lawyer who found himself unable to implead the purported issuer of a counterfeit cashier’s check
has had judgment entered against him on the claim made by the bank where his lawyer’s trust account
was located and into which he deposited the bogus check received in an internet-related scam (see Fifth
Third Bank v. Hirsch, 2011 WL 2470643 (N.D. Ill. 2011); Sharp Thinking No. 54 (November 2011)). In
Fifth Third Bank v. Hirsch, 2011 WL 5403600 (N.D. Ill. 2011), the court held the lawyer liable to his bank
for the $269,500 loss on the counterfeit check, plus attorneys’ fees and costs imposed under bank rules
incorporated into the account agreement.

Amendment Appears to Clarify Certain Citation Lien Questions

In Sharp Thinking No. 13 (October 2008), we noted a series of looming questions as to the lien effect
on personal property of citations to discover assets served under 735 ILCS 5/2-1402. Effective January 1,
2012, the legislature has amended that statute in ways that appear to answer some of those questions.

In P.A. 97-0350, the legislature inserts into § 2-1402 a subsection (k-10) which provides that when a
creditor discovers personal property subject to the lien of a citation, it may have the court impress a lien
against a specific item of personal property, which lien shall survive termination of the citation proceeding.
That language seems necessarily to imply that if the creditor does not have such a lien impressed, the lien
expires with the termination of the supplementary proceeding (which event may itself be ambiguous – see
No. 13). As new § 2-1402(k-10) applies only “[i]f a creditor discovers personal property” in the citation
proceeding, it would appear to leave open the lien effect on property which is not disclosed in response to
the citation. Accordingly, creditors may wish to wear both belts and suspenders – and have the lien on
personal property perfected under 735 ILCS 5/12-111 as well as proceeding under § 2-1402.

-- John T. Hundley, 618-242-0246, Jhundley@lotsharp.com

John\Sharp Thinking\#56.doc.
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