|Advisory Board Member|
| Litigator: Yes|
| Practice Description: |
Thomas P. McGarry is an experienced trial and appellate lawyer. His civil litigation practice emphasizes the defense of professional liability related matters in federal and state courts.
For the past 20 years, Mr. McGarry has focused almost exclusively on representing lawyers and lawyers' professional liability insurers. During that period he has represented and counseled hundreds of lawyers and law firms in actions for civil liability, in professional ethics and responsibility, and in risk management. He has also counseled professional liability carriers on lawyers' malpractice insurance coverage and has acted as national claims counsel overseeing defense activities nationwide.
His extensive experience as a trial lawyer combined with his concentration in the law governing the liabilities and responsibilities of lawyers has enabled him to both counsel and protect his lawyer clients in the challenging environment of legal practice.
Notable Cases and Results: Doe v. RoeII, 289 Ill.App.3d 116, 681 N.E.2d 640 (1997). This Illinois case again limited the right of a plaintiff to sue a lawyer for breach of fiduciary duty arising out of sexual misconduct and infliction of emotional distress. This case decided that sexual relationships between attorneys and clients are not per se actionable but only give rise to a fiduciary breach if the lawyer takes advantage of special knowledge of the client's vulnerability.
Doe v. Roe, 958 F.2d 763 (7 Cir.1992). This U.S. Federal Court of Appeals decision considered a situation similar to Suppressed v. Suppressed and it concluded that federal RICO liability could not arise from the malpractice or sexual misconduct of a matrimonial attorney.
Suppressed v. Suppressed, 206 Ill.App.3d 918, 565 N.E.2d 101 (1990). This case was the first to establish the rule that a matrimonial lawyer is not liable to his client for engaging in a sexual relationship unless sex was a quid pro quo for the legal services or unless it harmed the representation. This case established a practical limitation to the fiduciary obligations that lawyers owe to clients.
Renovitch v. Stewardship Concepts, 905 F.2d 1040 (7 Cir.1990). This Federal Circuit Court of Appeals decision limited an issuer's attorney's liability to third persons for securities fraud and RICO.
Roberts v. Heilgiest, 124 Ill.App.3d 1082, 465 N.E.2d 658 (1984). This was the first Illinois case to discuss the public policy which prohibited an attorney representing a client to be made a third party defendant in the client's case. This opinion gave the attorney-client relationship precedence over a lawyer's potential liability.
Mr. McGarry has also acted as trial counsel in nationally reported attorney disciplinary and administrative law cases, including:
In Re Rinella, 175 Ill.2d 504, 677 N.E.2d 909 (1997). This was the first Illinois case to decide the ethical responsibility of a divorce lawyer to avoid sexual relationships with clients during the course of representation.
Fentress v. Eli Lilly, 90-CI-06033 (Jefferson County). This nationally publicized case in Louisville, Kentucky, involved multiple shooting deaths attributed to the effects of Prozac. The confidential high/low settlement agreement was challenged by the court as unethical. Mr. McGarry represented one of the plaintiffs' attorneys to successfully obtain a judgment discharging the attorney from court sanctions and discipline.
William R. Hogan, Jr. v. Department of Justice, C4-0752-96-0621-I-2. In this highly publicized case, Mr. McGarry represented the Assistant United States Attorney who successfully prosecuted the El Rukn organized crime gang. Mr. McGarry successfully represented the prosecutor against charges of prosecutorial misconduct at the United States Merit Systems Protection Board. This was the first case of a federal prosecutor bringing an action against the U. S. Department of Justice to fight his termination.
U.S. District Court, Northern District of Illinois (1980)
U.S. Seventh Circuit Court of Appeals (1991)
Year of Birth: 1951
Law School: DePaul University College of Law, J.D., 1980
Law School Honors/Involvement: Member, DePaul Law Review
Undergraduate School: Marquette University, B.A., 1973
Published Legal Writing:
Mr. McGarry is General Editor of the treatise, Illinois Attorney Legal Liability, published by Illinois Institute of Continuing Legal Education (IICLE) in 2002, and is co-author of two of the book's chapters: "Litigating the Legal Malpractice Case," and "The Limitation of Liability Through Business Forms." He is co-editor of the book, Attorney Disciplinary Proceedings: Illinois Practice and Procedure, Law Bulletin Publishing Co., 2002.
Mr. McGarry also wrote a chapter on attorney communications published in the Defense Counsel Practice Management Manual of the International Association of Defense Counsel, as well as a chapter on limited liability entities in the 2002 edition of Legal Malpractice: The Law Office Guide to Purchasing Legal Malpractice Insurance, published by West Group.
Mr. McGarry has written dozens of published articles, and is a co-author of the Ethics column published monthly in Chicago Lawyer magazine. He has written articles on professional responsibility and professional liability issues, including:
"Rules Give Some Guidance on Access to Ex-Clients' File," July 2004.
"Practice Caution When Venturing into Law Out of State," June 2004.
"Who Owns What Part of the File?," May 2004.
"Rules Cover Firm's Using Outside Counsel," May 2004.
"ARDC Has Come a Long Way in 30 Years," July 2003.
"Know What to Do if You Make a Mistake," October 2003.
Mr. McGarry frequently speaks before bar associations and at law schools on issues of attorney malpractice and ethics. He has presented to the National Association of Bar Counsel and has been an invited speaker at the Professional Liability Underwriting Society International Conference. His recent presentations include:
Panelist, "Avoiding Professional Malpractice," Chicago Bar Association Seminar, Chicago, Illinois, June 2004.
"Malpractice Avoidance for Real Estate Litigators," Illinois State Bar Association (Real Estate Practice Section), Lombard, Illinois, May 2004.
"Professional Liability Insurance and Risk Management for Law Firms," PLUS Midwest Chapter, December 2003.
"Litigating the Legal Malpractice Course of Action," Legal Malpractice & Risk Management Conference, March 2004.
"Avoiding Malpractice in Real Estate Litigation," ISBA Real Estate Litigation Section, May 2004.
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