Opinion
No. 97 C 570
August 24, 2000
MEMORANDUM OPINION AND ORDER
This case will be part of the new docket for Judge Darrah. Before it is transferred, however, we need to clear up a matter occasioned by this court's error.
On June 18, 1997, this court authorized plaintiff's counsel to advance medical and living expenses to plaintiff. We relied upon Local General Rule 39, as presented to the court by plaintiff's counsel. The motion includes a certificate of service, but defendant's counsel represents that he never received it. In any event, he was not in court when the motion was granted. The granting of the motion was in error. Plaintiff's counsel and the court relied upon a version of Local General Rule 39 that had been abrogated three and-a-half months before, a version in conflict with rules governing professional responsibilities. Defendant now seeks an order terminating support payments, permission to elicit testimony about the payments at trial, a ruling that such payments will be a setoff against any verdict, and a ruling as to whether or not defendant's counsel has an obligation to report the payments as professional misconduct.
Although plaintiff's counsel represents that he was not aware of the payments until May 2000, when they ceased, the matter was the subject of deposition testimony on October 21, 1998. We believe that defendant's concern has escalated as its counsel has increasingly come to conclude that plaintiff is malingering. It is entitled, at trial, to bring out the amount and duration of payments as a reason why plaintiff has not returned to work. Those payments ceased in May of this year, and they will not be resumed. We do not rule on the effect such payments might have on any damages recovery. And we credit plaintiff's counsel's explanation that his reliance on an abrogated rule was inadvertent and that he acted in good faith. The motion and ruling are on the docket record and plaintiff testified about the payments at his deposition. We see no reporting obligation in those circumstances.