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Docket Number

No. 1-91-1358

Attorney(S)

Thomas Konewko, Ltd., of Glen Ellyn (Michael J. Davis, of counsel), for appellants. Lord, Bissell Brook, of Chicago (Robert J. Pugliese, Hugh C. Griffin, and Nancy Shaw, of counsel), for appellees.

Judges

Thomas E. Hoffman

Acts

Bankruptcy — Reorganization — Officers And Administration — Definitions For This Chapter
Bankruptcy — Liquidation — Officers And Administration — Interim Trustee

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Smart Summary

Metrick v. Chatz — Appellate Court of Illinois, First District (Aug. 18, 1994)

Factual and Procedural Background

On January 31, 1990, plaintiffs Lawrence B. Metrick et al. filed suit in the Circuit Court of Cook County against several attorneys and law firms seeking damages for legal representation provided prior to and during a bankruptcy proceeding. After amendments, the plaintiffs filed a 17-count second-amended complaint on September 4, 1990. The counts were allocated among the named defendants: counts I–IV (John Schwartz), V–VIII (Norman B. Newman), IX–XII (James Chatz), XIII–XV (Lord, Bissell Brook), and XVI–XVII (Much, Shelist, Freed, Denenberg, Ament Eiger).

The complaint alleged various theories including negligence for failure to disclose financial consequences of chapter 11 versus chapter 7 relief, negligent advice to continue chapter 11 rather than convert to chapter 7, breach of fiduciary duty, and fraud. All defendants moved to dismiss the complaint under section 2-615 for failure to state causes of action. While those motions were pending, plaintiffs voluntarily dismissed counts I, II, III, IV, VIII, and XII under section 2-1009. On February 6, 1991, the trial court dismissed the remaining counts for failure to state a cause of action, denied reconsideration on March 21, 1991, and the plaintiffs appealed.

The appellate disposition: the court affirmed dismissal of counts V, VII, IX, XI, XIII, XV, and XVII, and reversed the dismissal of counts VI, X, XIV, and XVI, remanding as to the reversed counts.

Legal Issues Presented

Whether, under a section 2-615 motion, the dismissed counts state causes of action upon which relief can be granted (i.e., whether the complaint sufficiently pleaded legal malpractice and related claims).
Whether the "failure to disclose" counts (counts V, IX, and XIII) state causes of action given the existence of an attached, signed disclosure exhibit and the absence of an allegation that plaintiffs would have converted to chapter 7.
Whether the "negligent advice" counts (counts VI, X, XIV, and XVI) sufficiently plead proximate cause and otherwise state causes of action when plaintiffs allege the advice to continue chapter 11 was improper after loss of their farm.
Whether the "breach of fiduciary duty" counts (counts VII, XI, XV, and XVII) state causes of action where the factual allegations largely mirror the negligence counts but do not allege disloyalty, bad faith, conflict, or self-dealing.

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs alleged defendants failed to disclose and explain financial consequences of pursuing chapter 11 (instead of chapter 7), failed to advise conversion to chapter 7 after key collateral (the farm) was lost, breached fiduciary duties, and committed fraud (where alleged).
In negligent advice counts, plaintiffs alleged their objective in chapter 11 was to retain and operate the farm to generate income to pay creditors; once the farm was taken, continuing in chapter 11 defeated that purpose and competent counsel would have advised conversion to chapter 7; plaintiffs alleged but-for damages of approximately $850,000 resulting from defendants' advice to continue chapter 11.
In failure-to-disclose counts, plaintiffs alleged defendants did not disclose specific consequences of chapter 11 versus chapter 7 (several enumerated items), and did not disclose administrative claim options post-conversion.

Defendants' Arguments

Defendants moved to dismiss under section 2-615, asserting the complaint failed to state causes of action.
With respect to the failure-to-disclose counts, the defendants relied on the incorporated "Disclosure Statement, As Modified" exhibit (signed by plaintiffs) which expressly contained the facts plaintiffs alleged were not disclosed, thereby negating those allegations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 565 N.E.2d 654	Standard that when a case is disposed by motion to dismiss, the issue of whether a cause of action is stated is a question of law.	Supported the proposition that review of a dismissal under section 2-615 is de novo.
Janes v. First Federal Savings Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605	Same as above—authority on review of pleadings/dismissal as a legal question.	Used with Burdinie to justify de novo review of the dismissal.
T S Signs, Inc. Village of Wadsworth (1994), 261 Ill. App.3d 1080, 634 N.E.2d 306	Authority for de novo review language in appellate context.	Reinforced that appellate review is independent of trial court reasoning on the 2-615 dismissal question.
Claire Associates v. Pontikes (1986), 151 Ill. App.3d 116, 502 N.E.2d 1186	Elements required to plead an attorney malpractice claim (attorney/client relationship; duty; breach; proximate causation; damages).	Set the pleading elements the court applied to determine whether the malpractice counts were sufficiently pled.
Shanley v. Barnett (1988), 168 Ill. App.3d 799, 523 N.E.2d 60	Distinction that breach of duty is a factual question for the trier of fact.	Supported the court's statement that breach is a question of fact, not resolved on the pleadings when facts are alleged.
Goldstein v. Lustig (1987), 154 Ill. App.3d 595, 507 N.E.2d 164	Rule that an exhibit attached to a complaint is part of the complaint and may negate inconsistent allegations in the complaint body.	Applied to hold the signed Disclosure Statement exhibit negated plaintiffs' failure-to-disclose allegations.
Village of Wheeling v. Stavros (1980), 89 Ill. App.3d 450, 411 N.E.2d 1067	Same exhibits-as-part-of-complaint principle.	Used with Goldstein to support treating the attached disclosure document as negating inconsistent allegations.
Sharkey v. Snow (1973), 13 Ill. App.3d 448, 300 N.E.2d 279	Same exhibits principle.	Reinforced the rule that exhibits attached to a complaint are part of the complaint.
Dickinson v. Dickinson (1922), 305 Ill. 521, 137 N.E. 468	Rule that a person who signs a document is charged with knowledge of its contents absent an explanation in the pleadings.	Applied to charge plaintiffs with knowledge of the disclosure statement they signed, absent contrary allegations.
Green v. Hussey (1970), 127 Ill. App.2d 174, 262 N.E.2d 156	Principle drawn from informed-consent medical negligence doctrine regarding the duty to disclose foreseeable risks to enable an informed decision.	Analogized to attorney duties to inform clients of alternatives and foreseeable risks so clients can make informed choices.
Sheetz v. Morgan (1981), 98 Ill. App.3d 794, 424 N.E.2d 867	Damages in negligence actions are not presumed; plaintiff must plead proximate causation between negligence and damages.	Used to explain that plaintiffs must plead facts showing proximate cause, not merely negligence alone.
Chicago Red Top Cab Association, Inc. v. Gaines (1977), 49 Ill. App.3d 332, 364 N.E.2d 328	Same proximate-cause/damages principle.	Supported the requirement that plaintiffs plead proximate causation between attorney negligence and damages.
Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban Fuller (1979), 75 Ill. App.3d 516, 394 N.E.2d 559	Statement that whether plaintiffs can prove negligence allegations is a question for the trier of fact.	Supported denial of dismissal for negligent advice counts where factual allegations could support malpractice.
Your Style Publications, Inc. v. Mid Town Bank Trust Co. (1986), 150 Ill. App.3d 421, 501 N.E.2d 805	Plaintiff is entitled to all reasonable inferences that can be drawn from the facts alleged in the complaint.	Applied to find reasonable inferences supported plaintiffs' proximate-cause allegations in negligent advice counts.
Miner v. Gillette Co. (1981), 87 Ill.2d 7, 428 N.E.2d 478	On motion to dismiss, courts must take well-pled facts as true.	Used to frame the appellate court's evaluation of the negligent advice counts under section 2-615.
Meyers v. Kissner (1992), 149 Ill.2d 1, 594 N.E.2d 336	Issues not raised or argued before an appellate court are deemed waived.	Applied to affirm dismissal of fiduciary-counts because plaintiffs did not address them on appeal.
Christison v. Jones (1980), 83 Ill. App.3d 334, 405 N.E.2d 8	Definition of an attorney's fiduciary duty (fidelity, honesty, good faith).	Used to explain what factual allegations are required to plead breach of fiduciary duty.
Schmidt v. Landfield (1959), 23 Ill. App.2d 55, 161 N.E.2d 702, aff'd (1960), 20 Ill.2d 89, 169 N.E.2d 229	Further authority on the fiduciary obligations of attorneys and the distinction between negligence and breach of fiduciary duty.	Applied to conclude the breach-of-fiduciary counts failed because they alleged only negligence without facts showing disloyalty or bad faith.

Court's Reasoning and Analysis

The court framed the appeal as a question of law because the trial court dismissed the claims under section 2-615; therefore the appellate court reviewed de novo whether the remaining counts stated causes of action.

For analytic clarity the court grouped the remaining counts into three categories: (1) "failure to disclose" counts (V, IX, XIII); (2) "negligent advice" counts (VI, X, XIV, XVI); and (3) "breach of fiduciary" counts (VII, XI, XV, XVII), and analyzed each group separately.

Failure-to-disclose counts: plaintiffs alleged defendants failed to disclose specific financial consequences of chapter 11 versus chapter 7. The complaint incorporated as an exhibit a document titled "Disclosure Statement, As Modified," signed by both plaintiffs and filed in the bankruptcy proceeding. The court applied the rule that exhibits attached to a complaint are part of the complaint and will negate inconsistent allegations absent explanation. Because the signed exhibit expressly contained the facts the plaintiffs said were undisclosed and the complaint contained no allegation explaining why plaintiffs did not or could not have known the disclosures, the plaintiffs were charged with knowledge of the document's contents. Therefore, the exhibit belied the failure-to-disclose allegations and rendered those counts duplicative of the negligent advice counts. Separately, the court observed that the failure-to-disclose counts lacked any allegation that plaintiffs would have converted to chapter 7 if informed; without such an allegation plaintiffs failed to plead proximate cause necessary to recover.

Negligent-advice counts: plaintiffs alleged their original purpose in chapter 11 was to retain and operate a farm to generate income to pay creditors, and that after the secured creditor took the farm the purpose was defeated; at that point, competent counsel should have advised conversion to chapter 7. The court explained the legal distinction between an attorney's duty to disclose foreseeable risks (informed decision) and attorney malpractice predicated on erroneous advice. If an attorney's recommendation itself falls below the standard of reasonable legal services, damages proximately flowing from the client's acceptance of that advice are recoverable. The court found the gist of these counts was that no competent attorney would have advised continuing chapter 11 after the farm was lost; thus, reasonable inferences from the pleaded facts supported proximate causation (i.e., that plaintiffs would not have followed the improper advice). Taking well-pled facts as true and drawing all reasonable favorable inferences, the court held the negligent-advice counts sufficiently pleaded causes of action and the trial court erred in dismissing counts VI, X, XIV, and XVI.

Breach-of-fiduciary counts: plaintiffs' fiduciary counts largely mirrored their negligence allegations without alleging facts showing disloyalty, dishonesty, bad faith, conflict of interest, or self-dealing. The court explained that while some fiduciary breaches will amount to malpractice, not all negligence by an attorney rises to a breach of fiduciary duty. Because the fiduciary counts contained no allegations suggesting a breach of the fiduciary obligations of fidelity, honesty, and good faith, those counts failed to state causes of action. Additionally, the court noted that plaintiffs failed to address these counts on appeal and, under applicable rules, had waived appellate review of that portion of the judgment. On either ground, the dismissal of counts VII, XI, XV, and XVII was affirmed.

Holding and Implications

Affirmed in part; reversed in part and remanded.

Holding specifics:

The appellate court affirmed the trial court's dismissal of counts V, VII, IX, XI, XIII, XV, and XVII.
The appellate court reversed the trial court's dismissal of counts VI, X, XIV, and XVI and remanded those counts for further proceedings consistent with the opinion.

Implications:

The failure-to-disclose counts were dismissed because the signed disclosure exhibit incorporated into the complaint contained the disclosures plaintiffs alleged were omitted and because plaintiffs did not plead that they would have converted to chapter 7 if informed—thereby failing to plead proximate cause.
The negligent-advice counts survived dismissal and were reinstated for further factual development because the pleaded facts and reasonable inferences supported a malpractice theory that defendants' advice fell below the standard of reasonable legal services and proximately caused damages.
The breach-of-fiduciary counts were affirmed dismissed because the complaint did not allege the kinds of factual circumstances (e.g., disloyalty, bad faith, conflict, self-dealing) necessary to state a fiduciary-breach claim, and plaintiffs waived appellate argument on that issue.
The opinion resolves only the pleading sufficiency under section 2-615 for the specified counts; it does not purport to establish a novel rule of law beyond applying existing precedents to the pleadings at issue.

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LAWRENCE B. METRICK et al., Plaintiffs-Appellants, v. JAMES CHATZ et al., Defendants-Appellees.

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

On January 31, 1990, the plaintiffs filed the instant action in the circuit court of Cook County against various attorneys and law firms seeking to recover damages allegedly sustained as a consequence of the legal representation afforded to them prior to and during a bankruptcy proceeding. After amending their complaint, the plaintiffs' filed a 17-count second-amended complaint on September 4, 1990. Counts I through IV of the complaint alleged actions against the defendant John Schwartz, counts V through VIII alleged actions against the defendant Norman B. Newman, counts IX through XII alleged actions against the defendant James Chatz, counts XIII through XV alleged actions against the defendant Lord, Bissell Brook, and counts XVI and XVII alleged actions against the defendant Much, Shelist, Freed, Denenberg, Ament Eiger.

Although prolix, the complaint can be divided according to the legal theories upon which the plaintiffs sought recovery. Counts I, V, IX, and XIII alleged negligence for the defendants' failure to disclose certain information to the plaintiffs relating to the financial consequences of seeking relief from their creditors under chapter 11 of the Bankruptcy Code ( 11 U.S.C. § 1101 et seq. (1988)), as opposed to chapter 7 of the Code ( 11 U.S.C. § 701 et seq. (1988)). Counts II, IV, X, XIV, and XVI charge that the defendants were negligent in advising the plaintiffs to continue seeking relief under chapter 11 instead of converting their bankruptcy to a chapter 7 proceeding. Counts III, VII, XI, XV, and XVII charge that the defendants breached their fiduciary duties to the plaintiffs by failing to disclose information relating to the consequences of a chapter 11 proceeding and failing to advise the plaintiffs to convert their bankruptcy to a chapter 7 proceeding. Counts IV, VIII, and XII alleged fraud.

All of the defendants moved to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992)), for failing to state causes of action against them. While the defendants' motions to dismiss were pending, the plaintiffs voluntarily dismissed counts I, II, III, IV, VIII, and XII under section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1009 (now 735 ILCS 5/2-1009 (West 1992))). On February 6, 1991, upon hearing the defendants' motions as directed to the remaining 11 counts of the complaint, the trial court entered an order dismissing each remaining count for failure to state a cause of action. On March 21, 1991, the trial court denied the plaintiffs' motion to reconsider and the plaintiffs filed this appeal.

For the reasons which follow, we affirm the dismissal of counts V, VII, IX, XI, XIII, XV, and XVII, and reverse the dismissal of counts VI, X, XIV, and XVI.

Because this matter was disposed of at the trial level upon the defendants' motions to dismiss pursuant to section 2-615, the only question before this court is whether the dismissed counts state causes of action upon which relief can be granted. ( Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 565 N.E.2d 654; Janes v. First Federal Savings Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605.) The issue presented is one of law; consequently, our review is de novo, which is independent of the reasoning of the trial court on the question. T S Signs, Inc. Village of Wadsworth (1994), 261 Ill. App.3d 1080, 634 N.E.2d 306.

For ease of analysis, we have grouped the dismissed counts according to their legal theories: counts V, IX, and XIII will be referred to as the "failure to disclose" counts; counts VI, X, XIV, and XVI will be referred to as the "negligent advice" counts; and counts VII, XI, XV, and XVII will be referred to as the "breach of fiduciary" counts. We will address the propriety of the dismissal of each group separately.

To plead a good and sufficient cause of action against an attorney for legal malpractice, a plaintiff must allege facts, which establish (1) an attorney/client relationship, (2) a duty owed by the defendant to the plaintiff arising out of that relationship, (3) a breach of that duty on the part of the defendant, (4) a proximate causal relationship between the defendant's breach of duty and the damages sustained by the plaintiff, and (5) damages. ( Claire Associates v. Pontikes (1986), 151 Ill. App.3d 116, 502 N.E.2d 1186.) As stated earlier, the question of whether a good and sufficient cause of action has been pled is one of law; but the question of whether an attorney-defendant has breached a duty of care owed to the client-plaintiff is a question of fact for the trier of fact to resolve. Shanley v. Barnett (1988), 168 Ill. App.3d 799, 523 N.E.2d 60.

The failure to disclose counts in the plaintiffs' complaint allege that the defendants never disclosed, advised of, or mentioned the following facts: (1) that if the plaintiffs pursued remedies under chapter 7 of the Bankruptcy Code instead of chapter 11, they would not be required to pay their unsecured creditors the amounts proposed in the chapter 11 reorganization plan; (2) that under a chapter 7 liquidation, any deficit owed to the secured creditors after foreclosure on their collateral would become unsecured debt limited to being paid from the bankruptcy estate without additional contribution from the plaintiffs; (3) that the creditors would be unlikely to pursue a liquidation of the plaintiffs' home and commercial building due to a lack of equity; (4) that under a chapter 11 proceeding, the unsecured creditors would be paid 50 cents on a dollar, whereas under a chapter 7 liquidation, the unsecured creditors would receive much less and the plaintiffs would not be required to make any payments to them; and (5) that if their bankruptcy were converted into a chapter 7 liquidation, the plaintiffs could file an administrative claim for all post-petition advances made by them. However, attached as an exhibit to the complaint and incorporated into each count thereof is a document entitled "Disclosure Statement, As Modified" which bears the signature of both of the plaintiffs. This document was filed in the plaintiffs' bankruptcy proceeding. Suffice it to say that each fact the plaintiffs claim was not disclosed to them, discussed with them, or mentioned to them is set forth with painstaking detail in that exhibit which they signed.

Exhibits are a part of the complaint to which they are attached and, absent some explanation, the factual matters contained within an exhibit serve to negate inconsistent allegations of fact contained within the body of the complaint. ( Goldstein v. Lustig (1987), 154 Ill. App.3d 595, 507 N.E.2d 164; Village of Wheeling v. Stavros (1980), 89 Ill. App.3d 450, 411 N.E.2d 1067; Sharkey v. Snow (1973), 13 Ill. App.3d 448, 300 N.E.2d 279.) Both of the plaintiffs signed the document which is attached to their complaint as an exhibit and the complaint is devoid of any allegation explaining why the plaintiffs did not or could not have known of the disclosures contained therein. Therefore, absent some explanation in their complaint to the contrary, the plaintiffs must be charged with knowledge of the contents of a document which they signed. (See Dickinson v. Dickinson (1922), 305 Ill. 521, 137 N.E. 468.) Because the exhibit attached to the complaint belies the allegations upon which the plaintiffs' failure to disclose counts are premised rendering those counts duplicative of the plaintiffs' negligent advice counts, the trial court properly dismissed counts V, IX, and XIII of the plaintiffs' second-amended complaint.

An additional basis for affirming the dismissal of the failure to disclose counts is the total absence of any allegation that the plaintiffs would have chosen to convert their bankruptcy into a chapter 7 liquidation if they had been informed of the financial consequences of continuing to pursue relief under a chapter 11 reorganization. It is the duty of every attorney to inform a client of the available options for alternative legal solutions, as well as to explain the foreseeable risks and benefits of each. The purpose of such a rule is to enable the client to make an informed decision as to whether the foreseeable risks of a proposed legal course of action are justified by its potential benefits when compared to other alternative courses of action. If a client suffers damage because of the happening of a foreseeable risk of which he or she was not informed, the attorney may be liable. In such a case, the attorney's liability is not predicated upon the impropriety of the chosen course of action, but rather upon the failure to inform the client sufficiently to enable him or her to voluntarily accept the risk attendant thereto. This proposition is nothing more than an application of the long-standing rule pertinent to a cause of action for medical negligence premised upon a lack of informed consent. See Green v. Hussey (1970), 127 Ill. App.2d 174, 262 N.E.2d 156.

However, damages in a legal negligence action are never presumed. Even if negligence on the part of the attorney is established, no action will lie against the attorney unless that negligence proximately causes damage to the client. ( Sheetz v. Morgan (1981), 98 Ill. App.3d 794, 424 N.E.2d 867; Chicago Red Top Cab Association, Inc. v. Gaines (1977), 49 Ill. App.3d 332, 364 N.E.2d 328.) It is the plaintiff's burden to plead facts which, if true, establish a proximate causal relationship between the negligence of the attorney and the damages alleged to have been suffered as a consequence thereof. If the plaintiffs in this case would have chosen to continue their chapter 11 reorganization and not convert to a chapter 7 liquidation even after being informed of the financial consequences, the alleged failure on the part of the defendants to disclose those financial consequences would have no proximate causal relationship to any damages suffered by the plaintiffs. Because counts V, IX, and XIII lack any allegation that the plaintiffs would have elected to convert their bankruptcy to a chapter 7 liquidation had they been informed of the financial consequences of continuing their chapter 11 proceeding, the counts fail to plead facts supporting the element of proximate cause, and, as such, fail to state causes of action.

In their negligent advice counts, the plaintiffs allege that their purpose in seeking relief under chapter 11 in the first instance was to retain ownership of a certain farm and generate income therefrom to pay their creditors. The plaintiffs contend that when the farm was taken by a secured creditor, the entire purpose for seeking relief under chapter 11 was defeated and it was at this point that the defendants should have advised them to convert to a chapter 7 liquidation. In failing to so advise them, the plaintiffs contend that the defendants failed to exercise the reasonable degree of care and skill required of an attorney representing a client pursuing relief in bankruptcy. The plaintiffs further allege that but for the defendants' advice to continue in a chapter 11 proceeding they would not have suffered some $850,000 in damages. We view these counts differently than the plaintiffs' failure to disclose counts on the sufficiency of their proximate cause allegations.

As stated earlier, an attorney's liability for failing to advise a client of the foreseeable risks attendant to a given course of legal action is not predicated upon the impropriety of the recommended course of action; rather, it is predicated upon the client's exposure to a risk that the client did not knowingly and voluntarily assume. Consequently, to establish the element of proximate cause, it is necessary for the client to both plead and prove that had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action. Such is not the case, however, when the course of action the attorney recommends is in itself improper under the circumstances presented. If an attorney's advice falls below the standard of reasonable legal services, any damages which proximately flow from the client's acceptance of that advice are recoverable in a negligence action against the attorney.

The gist of the plaintiffs' negligent advice counts is not that the defendants failed to disclose the financial consequences of continuing to pursue relief under chapter 11, but rather, that no competent attorney would have advised them to continue in a chapter 11 proceeding after their farm was taken by a secured creditor. Whether the plaintiffs can prove these allegations is a question of fact for the trier of fact to decide. ( Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban Fuller (1979), 75 Ill. App.3d 516, 394 N.E.2d 559.) But to require the plaintiffs to additionally plead that they would not have followed their attorneys' advice had they known that it was erroneous and would subject them to financial damage would be to require the pleading of the only inference that can reasonably be drawn from the facts already pled. Because the plaintiffs were entitled to all reasonable inferences that could be drawn from the facts alleged in their complaint ( Your Style Publications, Inc. v. Mid Town Bank Trust Co. (1986), 150 Ill. App.3d 421, 501 N.E.2d 805), we believe that they pled sufficient facts to satisfy the proximate cause element of their negligent advice counts. After examining counts VI, X, XIV, and XVI of the plaintiffs' complaint, taking all well-pled facts as true ( Miner v. Gillette Co. (1981), 87 Ill.2d 7, 428 N.E.2d 478), and drawing all reasonable inferences from those facts which are favorable to the plaintiffs, we believe that each of these counts states a good and sufficient cause of action upon which relief can be granted and that the trial court erred in ordering their dismissal.

Although the plaintiffs' notice of appeal encompasses the dismissal of their breach of fiduciary counts, they have not addressed the propriety of this portion of the trial court's order in their briefs on appeal. For this reason alone, the dismissal of these counts should be affirmed because issues not raised or argued before the appellate court are deemed waived. (134 Ill. 2d R. 341(e)(7); Meyers v. Kissner (1992), 149 Ill.2d 1, 594 N.E.2d 336.) However, even if the issue were not waived, we would still affirm the dismissal of counts VII, XI, XV, and XVII.

The factual allegations in the plaintiffs' breach of fiduciary counts do nothing more than mirror the allegations of their negligence counts. No facts are alleged which imply that the defendants were unfaithful to the plaintiffs, that they were dishonest, that they acted in bad faith, that they had a conflict of interest, or that they engaged in self-dealing. The fiduciary duty owed by an attorney to a client encompasses the obligations of fidelity, honesty, and good faith. ( Christison v. Jones (1980), 83 Ill. App.3d 334, 405 N.E.2d 8; Schmidt v. Landfield (1959), 23 Ill. App.2d 55, 161 N.E.2d 702, aff'd (1960), 20 Ill.2d 89, 169 N.E.2d 229.) While it can be argued that all breaches of fiduciary duty on the part of an attorney amount to legal malpractice, we are unwilling to concede that all negligence on the part of an attorney in the rendition of legal services rises to the level of a breach of fiduciary duty. Attorneys, like all other professionals, are cursed with the mortal attribute of fallibility and at times they will make errors which render them liable to their clients for the resulting damages, but mere negligence is a far cry from a breach of fiduciary duty. Because there are no allegations in the plaintiffs' breach of fiduciary counts which even remotely suggest that the defendants breached their fiduciary duties to the plaintiffs, counts VII, XI, XV, and XVII fail to state causes of action and were properly dismissed.

Affirmed in part; reversed in part and remanded.

JOHNSON and THEIS, JJ., concur.

METRICK v. CHATZ