If Lawyer Forces Client to Have Sex, When Can Law Firm Be Liable for Negligent Supervision?
From Ward v. Kutak Rock, LLP, determined Wednesday by the Appellate Court docket of Illinois (Justice Eileen O’Neill Burke, joined by Justices Margaret Santon-McBride and Jesse Reyes):
Plaintiff’s amended grievance, which is at concern on this attraction, alleged that MacKelvie was an worker of Kutak Rock with “of counsel” standing. In February 2021, plaintiff retained Kutak Rock and MacKelvie to signify her in an appellate probate matter. The events had a contingency payment settlement below which MacKelvie’s “hourly payment can be taken from any quantity recovered by” him, and “no quantity can be due or owing till and except there was a restoration of cash within the probate case.”
Nonetheless, the agency despatched a number of payments to plaintiff, which she indicated that she couldn’t pay, and MacKelvie responded that “there have been different methods to pay for his providers.” MacKelvie then started a sequence of communications with plaintiff wherein he mentioned that he would solely work on the appellate temporary if plaintiff despatched him bare images of herself. Plaintiff “felt strain to ship the bare photographs of herself to [MacKelvie] as she wanted the authorized work to be accomplished in [a] well timed trend.” In December 2021, MacKelvie demanded that plaintiff have intercourse with him at a lodge in Deerfield and mentioned that he wouldn’t work on plaintiff’s case if she refused. Plaintiff alleged that MacKelvie compelled her to have intercourse with him and “engaged in undesirable and inappropriate sexual contact with [her] that amounted to assault and battery,” which induced her to develop despair and post-traumatic stress dysfunction.
Plaintiff sued McKelvie personally and likewise Kutak Rock, on a “negligent supervision” concept:
The negligent supervision declare alleged that Kutak Rock had an obligation “to train an inexpensive diploma of care and supervision in supervising and managing” MacKelvie, and a common obligation to oversee its workers “to guarantee that they have interaction[d] in applicable conduct and comply with the legislation and the employer’s guidelines and procedures.”
No, mentioned the court docket:
“[T]o impose an obligation to oversee, solely common foreseeability is required in an employment context.” “[F]oreseeability signifies that which is objectively cheap to count on, not merely what would possibly conceivably happen.” An employer’s obligation to oversee an worker arises when the employer is aware of or fairly ought to know that the worker is more likely to have interaction in harmful conduct. It isn’t vital that the employer “have prior discover of a selected unfitness.” …
Our supreme court docket’s determination in Doe v. Coe (Unwell. 2019) gives a useful illustration of a correctly pled negligent supervision declare. In that case, the plaintiff alleged that Coe, a church director of youth ministries, sexually assaulted her in a church basement when he was 31 and he or she was 15. The plaintiff alleged a negligent supervision declare towards the church that employed Coe. The circuit court docket dismissed the negligent supervision declare and the appellate court docket reversed. Our supreme court docket affirmed, concluding that the plaintiff adequately pled the church’s obligation to oversee Coe as a result of (1) “it’s typically foreseeable that abuse may happen in applications offering adults with unsupervised entry to youngsters” and (2) the plaintiff alleged that church management typically noticed Coe alone together with her in his workplace and allowed them to stay alone collectively. The plaintiff additionally alleged that the church may have found Coe’s use of kid pornography web sites by a Google search of his web pseudonym, that Coe inappropriately touched church youth group members and confirmed them pornography, and that church members confronted Coe about and reported his inappropriate conduct once they witnessed it.
Coe concerned a relationship that presents an inherently foreseeable hazard of sexual abuse: a relationship between an grownup and a baby in a non secular group. An attorney-client relationship between two adults doesn’t current the identical inherent hazard or foreseeability. Furthermore, plaintiff has not alleged information establishing that Kutak Rock knew, may have identified, or ought to have identified that MacKelvie was behaving in a sexually inappropriate method towards her. Quite the opposite, plaintiff alleges that MacKelvie’s sexual harassment of her consisted of direct communications between her and him, and that the sexual assault occurred at a lodge in Deerfield, apparently with no connection to the agency or its workplaces. The grievance in Coe was way more factual, particular, and concrete than plaintiff’s amended grievance on this case, which is why Coe doesn’t compel reversal of the dismissal of plaintiff’s negligent supervision declare.
This case is extra analogous to Dennis v. Tempo Suburban Bus Service (Unwell. App. Ct. 2014), wherein the plaintiff alleged that she boarded a Tempo bus whereas intoxicated, confused, and slipping out and in of consciousness. As a substitute of calling for assist, the bus driver took the plaintiff to his residence and sexually assaulted her. The circuit court docket dismissed the plaintiff’s negligent supervision declare towards Tempo and this court docket affirmed, explaining that the plaintiff “alleged no information that Tempo had any cause to know and even suspect that [the driver] would one way or the other entice a passenger off of the bus after his shift had ended, take her to his residence and sexually assault her.” This court docket discovered that the plaintiff’s allegation that Tempo had a common obligation to stop drivers from taking passengers residence to sexually assault them was “completely conclusory *** and inadequate to outlive a 2-615 movement to dismiss.” The identical is true of plaintiff’s allegations on this case. Plaintiff’s amended grievance, on its face, presents no information establishing that Kutak Rock had cause to foresee, and even suspect, that MacKelvie would sexually harass and assault plaintiff.
Plaintiff’s amended grievance means that Kutak Rock was on discover that one thing uncommon was occurring in MacKelvie’s illustration of plaintiff as a result of the agency was not receiving fee on her file. Plaintiff alleges that she acquired a number of payments for MacKelvie’s work, which she didn’t pay, as a result of MacKelvie insisted on being compensated with sexual favors as a substitute.
Nonetheless, she additionally alleges that she had a contingency payment settlement with Kutak Rock, below which MacKelvie’s “hourly price can be taken from any quantity recovered by” him on the conclusion of her case. We wrestle to grasp why Kutak Rock would concern and count on fee of normal payments for MacKelvie’s work if the agency was speculated to be paid on contingency. Even accepting these information as true, they don’t create an obligation of supervision. The truth that Kutak Rock was not receiving fee for MacKelvie’s work didn’t make it foreseeable that he would sexually harass and assault plaintiff. We can’t see, and plaintiff’s briefs don’t clarify, the connection between these two issues….
Plaintiff additionally contends that that public coverage helps the imposition of an obligation to oversee on this case as a result of “‘those that make the most of authorized providers place quite a lot of belief of their attorneys; consequently, the attorney-client relationship presents a big potential for abuse.'” As a common precept, we agree, and we strongly encourage legislation companies to do all the things of their energy to guard purchasers from sexual harassment by attorneys.
Nonetheless, that doesn’t change our conclusion. The query is whether or not plaintiff’s amended grievance alleges information that made it foreseeable to Kutak Rock that MacKelvie would sexually harass and assault plaintiff. It doesn’t. Furthermore, plaintiff cites no authority holding that the attorney-client relationship presents an inherent hazard of sexual abuse such that attorneys sexually assaulting purchasers is all the time foreseeable to legislation companies. Quite the opposite, the fee of a critical crime, like sexual assault, is mostly not foreseeable to an employer as a result of an worker shouldn’t be anticipated or employed to commit crimes….
Plaintiff’s quotation to Kling v. Landry (Unwell. App. Ct. 1997), is unpersuasive. We agree with Kling‘s conclusion that “an lawyer breaches his fiduciary obligation to his consumer by exploiting his place as an lawyer to achieve sexual favors.” Nonetheless, negligent supervision declare is a direct declare towards an employer for its personal misconduct, so the truth that MacKelvie breached his fiduciary obligation to plaintiff doesn’t imply that Kutak Rock had or breached an obligation to oversee MacKelvie….
