## Facts

- An attorney represented a corporate client in patent infringement litigation and filed a counterclaim.
- The attorney introduced the client’s president to another attorney, and the client retained the second attorney to handle the counterclaim.
- The second attorney failed to comply with court orders, and the counterclaim was dismissed.
- The client sued both attorneys for legal malpractice based on the dismissal of the counterclaim.
- In the malpractice action, the first attorney asserted counterclaims against the second attorney and the law firm for (i) statutory contribution and (ii) common-law implied indemnity.
- The first attorney settled the client’s entire malpractice claim; the settlement released claims against both attorneys, although the second attorney did not participate.
- The first attorney alleged he paid more than his pro rata share and that any liability he had was wholly vicarious, caused by the second attorney’s acts and omissions.
- The dismissed counterclaim sought economic damages, including lost profits, increased expenses (including attorney’s fees), and treble damages.

## Issues

1. Whether a settling defendant-attorney in a legal malpractice action may seek contribution under the Illinois Joint Tortfeasor Contribution Act from a released, nonsettling co-defendant attorney when the alleged injury is purely economic.
2. Whether a settling defendant-attorney may pursue common-law implied indemnity against a released, nonsettling co-defendant attorney based on allegations that the settling attorney’s liability is purely vicarious and the nonsettling attorney was the active wrongdoer.

## Decision

- The Illinois Supreme Court answered both certified questions “yes.”
- The court held that a settling attorney may pursue statutory contribution against a released, nonsettling attorney in a malpractice case alleging only economic loss.
- The court held that a settling attorney may maintain a common-law implied indemnity claim where the attorney pleads true vicarious liability (purely derivative responsibility) for the other attorney’s misconduct.
- The court affirmed the denial of the motion to dismiss the contribution and indemnity counterclaims and remanded for further proceedings.

## Legal Principles

- Legal malpractice causing purely economic damages may support tort liability; attorneys can be “subject to liability in tort” for purposes of contribution.
- The Illinois Joint Tortfeasor Contribution Act permits a settling defendant who alleges payment exceeding a pro rata share to seek contribution from another tortfeasor whose liability to the plaintiff has been extinguished by the settlement and release.
- Economic loss tied to the loss or impairment of a legal claim may qualify as an injury to “property” within the Contribution Act’s scope.
- Although the Contribution Act displaced many forms of noncontractual indemnity, common-law implied indemnity survives in the narrow circumstance of true vicarious liability, where the indemnitee’s fault is purely derivative of the indemnitor’s conduct.
- A vicarious-liability implied indemnity claim should not be dismissed at the pleading stage when the claimant alleges wholly derivative liability and identifies the other defendant as the active wrongdoer.

## Conclusion

The court permitted a settling attorney-defendant in a malpractice case based on economic loss to pursue both statutory contribution and vicarious-liability implied indemnity against a released, nonsettling co-attorney, and it allowed those claims to proceed beyond dismissal.


Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384, 609 N.E.2d 315 (Ill. 1993)