CBA Record November 2017

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Locating Your Client: The Benefit of Due
Diligence and the Price of Oversight
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ETHICS EXTRA
BY KASIM CARBIDE
Zealous representation of a client is
a fundamental aspect of life as an
attorney. But, does that zeal include
locating a client? A recent case tells the tale
of an attorney who failed to exercise due
diligence in locating a client to assure the
client’s appearance at a legal proceeding.
American Access Casualty Co. v. Alcauter,
2017 IL App (1st) 160775. American
Access Casualty Company (“AACC”) sold a
policy to Jose Alcauter which provided that
“AACC could deny Alcauter coverage in the
event that he failed to cooperate with AACC
in any legal proceeding.” When Alcauter
and Kimberly Krebs had an auto accident,
Krebs sought arbitration of the matter and
was awarded $10,000 on the basis that “no
evidence was presented” at the hearing and
that Alcauter did not appear “despite having
received a Rule 237 notice to appear.” The
trial court confirmed the award.
AACC then filed a declaratory action
on the basis that it was not required to pay
the $10,000 judgment because Alcauter
“was given notice of the mandatory arbi-
tration date and time” and that Alcauter’s
failure to appear constituted a material
breach of the cooperation clause. AACC
filed a motion for summary judgment in
the declaratory action, which alleged:
“[A]t least two letters . . .were sent
to Alcauter’s verified address by his
counsel, and at least one letter was
sent to Alcauter by AACC. ***Nota-
bly, none of the letters were returned
by the post office. ***Furthermore,
Alcauter’s counsel called [his] client
approximately 24 hours prior to
the arbitration to remind him to
attend***Still, Alcauter failed to
appear for the mandatory arbitration
[and] counsel was unable to present
Alcauter’s version of the events….”
AACC’s coverage counsel, James
Newman, signed the motion.
At the hearing on AACC’s motion for
summary judgment, Newman asserted that
Alcauter “received a phone call approxi-
mately 24 hours before the arbitration
in which he confirmed his attendance.”
Newman argued that “there [was] no dis-
pute ***that [Alcauter] was aware of the
arbitration and he didn’t attend.”The court
denied the motion for summary judgment,
noting that it had “some unanswered
questions***that raise issues of fact as to
the notice,” particularly the telephone call.
The declaratory action proceeded to
trial. Cliff Panek, an attorney at the law
firm retained to represent Alcauter at the
arbitration, identified letters sent to Alcau-
ter to inform him of the arbitration date.
Panek also testified that it was his firm’s
practice to call a client 24 hours in advance
of an arbitration to confirm the client’s
attendance. Since there was no motion in
the file for a continuance, Panek concluded
that the client had been contacted and
would be present at the arbitration. Panek
also attested he was aware he could check
certain websites to determine whether a
client was incarcerated, but testified there
was “no reason to” check in this manner.
Of utmost importance was Krebs’s
counsel’s introduction of several docu-
ments corroborating Alcauter’s incarcera-
tion, including the information listing the
arrest, Illinois Department of Correction
(IDOC) records showing Alcauter being
taken into custody, and the same informa-
tion available on the IDOC website. The
trial court held that AACC owed Alcauter
coverage since he could not have been at
the hearing, and ruled that AACC’s evi-
dence “just flat out [did not] hold water
against the evidence that [Alcauter] was
in jail.”
Thereafter, Krebs, the opposing party
involved in the crash, filed a motion for
sanctions pursuant to Illinois Supreme
Court Rule 137 against AACC and
Newman. The motion stated both parties
“failed to conduct a reasonable inquiry
into Alcauter’s whereabouts because, if
it had, it would have found out that he
was incarcerated.” At the hearing for the
motion on sanctions, Newman “conceded
that he did not believe that anyone made
a phone call to Alcauter in jail about the
arbitration.”The trial court imposed sanc-
tions against AACC and Newman for
$12,678.75 in attorney fees and $865.96
in costs because AACC presented “zero
competent evidence that Alcauter willingly
refused to cooperate.”
AACC and Newman appealed the
imposition of sanctions to the Illinois
Appellate Court for the First District. The
court examined llinois Supreme Court
Rule 137 requiring that a party’s attorney
of record sign every pleading, motion,
or other document filed by the party. Ill.
S. Ct. R. 137(a)(eff. July 1, 2013). The
court reasoned that when an attorney
signs a pleading it, in effect, constitutes a
Kasim Carbide, a Francis D.
Morrissey Scholar at the John
Marshall Law School, will
received his J.D. in the spring
of 2018 continued on page 49
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