2026 IL App (1st) 252193-U Order filed: September 9, 2026
FIRST DISTRICT
THIRD DIVISION
No. 1-25-2193
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
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IN THE
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
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LAWRENCE B. ORDOWER and ORDOWER ) Appeal from the & ORDOWER, P.C., ) Circuit Court of ) Cook County
Plaintiffs-Appellants, )
)
v. ) No. 23 L 4117 )
JOHN DALTON, ESTATE OF JEFFREY YOUNG, ) KAUFMAN DOLOWICH VOLUCK, LLP, and ) O’HAGAN MEYER, LLC, ) Honorable ) Daniel J. Kubasiak, Defendants-Appellees. ) Judge, presiding.
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JUSTICE ROCHFORD delivered the judgment of the court.
Justices Lampkin and Martin concurred in the judgment.
ORDER
¶1 Held: We reverse the order granting defendants’ motion for summary judgment on plaintiffs’ legal malpractice action and remand for further proceedings because the court erred in finding that the doctrine of unclean hands defeats plaintiffs’ cause of action.
¶2 Plaintiffs, Lawrence B. Ordower (Ordower) and his law firm of Ordower & Ordower, P.C., were sued in federal court for legal malpractice. Defendants, John Dalton, Jeffrey Young, 1 Kaufman Dolowich Voluck, LLP, and O’Hagan Meyer, LLC, represented plaintiffs in the legal
1 Jeffrey Young died on March 26, 2025.
malpractice action. A jury returned a verdict against plaintiffs in the amount of $10,197,178. Plaintiffs subsequently brought their own legal malpractice action against defendants in state court alleging that defendants were negligent in their representation of plaintiffs in the underlying federal court case. The circuit court granted summary judgment in favor of defendants, finding that plaintiffs were barred from relief under the doctrine of “unclean hands.” Plaintiffs appeal the summary judgment order entered against them. For the reasons that follow, we reverse the order granting summary judgment for defendants and remand for further proceedings.
¶3 The underlying legal malpractice case was brought by Joseph Mizrachi against plaintiffs in federal district court. The following evidence was adduced by Mizrachi at trial.
¶4 In 1997, Mizrachi launched a real estate investment company, Net Lease Management Partners (Net Lease) to invest in the purchase of two warehouses in North Carolina and Colorado. At its inception, Net Lease had three members: United Capital, the JAL Group, and Brentwood Capital. United Capital was owned by Attilio Petrocelli. The JAL Group was owned by Mizrachi. Brentwood Capital had three investors. The Benetti family owned 75% of Brentwood Capital, while the Seymour Holtzman family partnership and the Koffman family split the remaining 25% ownership.
¶5 In 2014, Petrocelli approached the Benetti family to buy out their 75% interest in Brentwood Capital. Mizrachi opposed the sale of Benetti’s interest in Brentwood Capital to Petrocelli, because if the sale went through it would give Petrocelli the majority of members on the Net Lease management committee, meaning that Petrocelli would unilaterally be able to make decisions about Net Lease’s future management and whether and when to sell the warehouses. Mizrachi told the Benetti family not to sell their interest in Brentwood Capital to Petrocelli. Mizrachi asked for time to purchase their interest himself.
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¶6 Mizrachi then approached Holtzman and they agreed to jointly purchase the Benetti family’s interest in Brentwood Capital.
¶7 An attorney named Bob Koen initially represented Mizrachi in connection with the purchase. Holtzman was represented by plaintiffs, with Ordower as the lead attorney. Eventually, Mizrachi also hired plaintiffs (with Ordower as lead attorney) to represent him. During the course of that representation, Holtzman and Mizrachi agreed with Ordower that in lieu of paying him money for his legal services they instead would allow him to purchase a one-third share of the Benetti family’s interest in Brentwood Capital at a price of $1.3 million. Holtzman and Mizrachi would each pay $1.3 million to purchase the remaining shares. The sale was scheduled to close on September 30, 2016.
¶8 During the weeks leading up to the September 30 closing, Mizrachi learned that Ordower and Holtzman had met with Petrocelli, who was still interested in purchasing the Benetti family’s interest in Brentwood Capital. Mizrachi was upset that he had not been informed about this meeting and he left a voicemail on September 28 with Ordower expressing his anger and frustration. In pertinent part, the voicemail said:
“I cannot do this transaction unless we have a unanimous decision-making process with the three of us. And if it’s not, you guys can do it yourself. *** I’m not interested in doing a deal that doesn’t have voting together that nobody can do whatever they want and go and discuss stuff without their consent [sic]. *** I prefer to lose it all than do it. Ok. Bye.
Thanks.”
¶9 After receiving the voicemail, Ordower and Holtzman decided to each pay 50% of the purchase price and exclude Mizrachi. Ordower spoke by phone with Mizrachi several times over the following days leading up to the closing, but he never informed Mizrachi that he and Holtzman
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were going to purchase the Benetti family’s interest in Brentwood Capital without him. On September 29, Mizrachi wired his one-third share of the purchase price ($1.3 million) to the appropriate financial account from which the funds for the purchase were to be drawn. However, Ordower and Holtzman successfully closed on the purchase only with their own funds and excluded Mizrachi, leaving him without any interest in Brentwood Capital.
¶ 10 Robert Hirshon, a former president of the American Bar Association (ABA) and a member of the ABA’s Standing Committee for Legal Ethics and Professional Responsibility, testified as Mizrachi’s standard-of-care and legal ethics expert. Hirshon testified that Ordower simply assumed, based upon Mizrachi’s September 28 voicemail, that he was reneging on his agreement to purchase a one-third share of the Benetti family’s interest in Brentwood Capital. Ordower never actually consulted Mizrachi about whether he was reneging on the agreement. Ordower’s failure to consult with Mizrachi about his change of objectives violated Rule 1.4 of the Illinois Rules of Professional Conduct, which requires an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Ill. R. Prof’l Conduct (2010) R. 1.4 (eff. Jan. 1, 2010).
¶ 11 Hirshon also testified that Ordower’s participation in the purchase of the Benetti family’s interest in Brentwood Capital put him in conflict with Mizrachi, because Ordower was incentivized to exclude Mizrachi from the purchase so as to increase his own share of the interest from one- third to one-half. Ordower thereby violated Rule 1.7 of the Illinois Rules of Professional Conduct, which provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Id. R. 1.7.
¶ 12 Hirshon testified that Ordower’s participation in the purchase of the Benetti family’s interest in Brentwood Capital violated Rule 1.8 of the Illinois Rules of Professional Conduct. Rule
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1.8 provides that an attorney shall not enter into a business transaction with a client unless the transaction is fair and reasonable to the client; the terms of the transaction are fully disclosed in writing; the client is informed in writing that he may seek the advice of independent legal counsel on the transaction; and the client gives informed consent to the essential terms of the transaction and to the attorney’s role in the transaction. Id. R. 1.8. Hirshon testified that in violation of Rule 1.8, Ordower failed to fully disclose, in writing, the terms by which he would acquire a one-third share of the Benetti family’s interest in Brentwood Capital and he never advised Mizrachi to seek advice from independent counsel.
¶ 13 Finally, Hirshon testified that Ordower’s conduct toward Mizrachi was deceitful and, as such, that he violated Rule 8.4, which prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id. R. 8.4.
¶ 14 Plaintiffs’ theory at trial was that Ordower never actually represented Mizrachi in connection with the purchase of the Benetti family’s interest in Brentwood Capital and therefore owed him no duties of care under any of the professional conduct rules. Ordower testified:
“Q. And did you represent Mr. Mizrachi individually?
A. No.
Q. Did you—what was your relationship then with Mr. Mizrachi?
A. Well, we were going to be business partners in the purchase of the Benetti interest.
Q. Did you ever think you were Mr. Mizrachi’s lawyer with regard to this transaction?
A. No. Mr. Mizrachi never asked me to be his lawyer. I never agreed to be his lawyer, and I never consented to be his lawyer in this transaction.”
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¶ 15 In the alternative, plaintiffs contended that even if an attorney-client relationship existed, Ordower complied with the applicable rules. In support of this argument, Michael Flaherty, a past president of the Chicago Bar Association and a liaison to the ABA standing committee on professional regulation, testified as plaintiffs’ expert. Asked to assume that Ordower represented Mizrachi in connection with the purchase of the Benetti family’s interest in Brentwood Capital, Flaherty concluded that Ordower did not violate any rules of professional conduct. First, Flaherty testified that the voicemail left by Mizrachi on September 28 indicated his clear intent to withdraw from the purchase agreement, alleviating any obligation under Rule 1.4 for Ordower to discern Mizrachi’s objectives. Second, Flaherty testified that since Mizrachi’s personal attorney, Bob Koen, was aware of and made no objections to Ordower participating in the purchase of the Benetti family’s interest in Brentwood Capital, any disclosure requirements under Rules 1.7 and 1.8 were satisfied and there was no conflict of interest or improper business transaction of any kind. Finally, Flaherty testified that Ordower did not violate Rule 8.4 because he did not engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation.
¶ 16 Following all the evidence, the jury returned a verdict in favor of Mizrachi and awarded him $10,197,178 in damages. After the federal district judge entered judgment on the verdict, plaintiffs reached a settlement with Mizrachi. As a result of the settlement, the judge entered an order vacating the jury’s verdict and dismissing the case with prejudice.
¶ 17 Plaintiffs subsequently brought their own amended legal malpractice action against defendants in state court, alleging that defendants were negligent in their representation of them in the underlying federal court action. Plaintiffs alleged that defendants did not prepare a proper summary judgment motion in a timely manner; conducted improper and insufficient discovery; hired an inexperienced expert who offered incomplete opinions; failed to disclose a conflict of
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interest; failed to effectively cross-examine Mizrachi; and failed to make proper and timely objections throughout trial to inadmissible evidence.
¶ 18 The parties filed cross-motions for summary judgment. The circuit court denied plaintiffs’ motion for summary judgment and granted defendants’ motion on the basis that the equitable doctrine of “unclean hands” prevented plaintiffs from recovering here, stating:
“The Court finds that the evidence and testimony presented at trial in Mizrachi are *** definitive and crucial to this matter. Those facts including the fact that a jury found in favor of Mizrachi in the amount of $10 million against the Plaintiffs in that matter.
Plaintiffs’ misconduct affected Defendants’ representation of them in Mizrachi. The Court has reviewed the trial transcripts that are provided by Defendants in support of their motion.
The Court specifically points to the testimony provided by Robert Hirshon (‘Hirshon’), Mizrachi’s expert in the underlying federal matter. Hirshon testified that Ordower simply assumed, based upon the voicemail from September 28, 2016, that Mizrachi was pulling out of the deal, but that assumption was made without first consulting Mizrachi which is in violation of the Illinois Rules of Professional Conduct. Hirshon further testified that Ordower had a personal interest and received a personal benefit from the real estate transaction where he represented Mizrachi, which is in violation of Rule 1.7 of the Illinois Rules of Professional Conduct. Hirshon further testified that Rule 1.8 of the Illinois Rules of Professional Conduct bars attorneys from entering business transactions with clients, which is what Ordower did in the underlying matter. The Court finds that this testimony as well as testimony from Mizrachi and other witnesses provides a sufficient basis for the Court to determine the existence of unclean hands on the part of Plaintiffs.”
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¶ 19 Plaintiffs appeal only the grant of summary judgment in favor of defendants. Plaintiffs make no argument for reversal of the order denying their cross-motion for summary judgment and accordingly has forfeited review thereof. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).
¶ 20 Summary judgment is appropriate when the pleadings, depositions, admissions and affidavits on file, when viewed in the light most favorable to the non-movant, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pielet v. Pielet, 2012 IL 112064, ¶ 29. Review is de novo. Id. ¶ 30.
¶ 21 The equitable doctrine of “unclean hands” bars judicial relief when the party seeking that relief is guilty of misconduct rising to the level of fraud or bad faith in connection with the subject matter of the litigation. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 60 (2009). The doctrine has been applied in the context of legal malpractice actions to prevent a plaintiff from recovering damages for legal malpractice based on bad advice, when the advice was sought to perpetrate fraud on a third party. See e.g., Makela v. Roach, 142 Ill. App. 3d 827 (1986); Mettes v. Quinn, 89 Ill. App. 3d 77 (1980).
¶ 22 First, plaintiffs argue that the circuit court erred by granting summary judgment for defendants because the court improperly based its ruling on Hirshon’s trial testimony in the underlying federal court case brought by Mizrachi. The circuit court found from Mizrachi’s testimony that Ordower had violated several professional conduct rules in connection with his representation of Mizrachi and thus had unclean hands. Plaintiffs point out, though, that the jury verdict for Mizrachi was subsequently vacated. Plaintiffs contend that by vacating the judgment in the federal case, the district court judge rendered the judgment and the testimony given at that trial as a legal nullity and as such, that the circuit court judge in the state case should not have considered Hirshon’s testimony when ruling on the summary judgment motion.
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¶ 23 Plaintiffs are correct that well-established case law holds that the vacatur of a judgment nullifies the judgment itself, rendering it void and effectively restoring the parties to their prior status, as though the judgment had never been entered. See e.g., New York Life Insurance Co. v. Sogol, 311 Ill. App. 3d 156, 158 (1999). The vacatur of a judgment also nullifies the findings of fact underlying that judgment, depriving them of any collateral estoppel effect. Pontarelli Limousine, Inc. v. City of Chicago, 929 F. 2d 339, 340 (7th Cir. 1991) (citing Matchett v. Rose, 36 Ill. App. 3d 638, 649 (1976)). However, plaintiffs cite no case law holding that the vacatur of a judgment similarly nullifies and voids the testimony given at that trial. In fact, the Illinois Rules of Evidence indicate to the contrary, as they provide for the admission of former testimony without any exception or exclusion for testimony given in proceedings where the verdict later was vacated. See Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011). Accordingly, we find no basis for concluding that the district court judge’s vacatur of the judgment in the underlying federal court case erased the historical reality of the sworn testimony given during that trial or otherwise prevented the circuit court judge in the state court case from considering such testimony when ruling on defendants’ motion for summary judgment.
¶ 24 The circuit court erred, though, when it made a credibility determination in favor of defendants’ expert witness, Hirshon, who testified that Ordower violated several rules of professional conduct when he entered into the business arrangement with Mizrachi to purchase a share of the Benetti family’s interest in Brentwood Capital. Hirshon explained that such a business arrangement constituted a conflict of interest in violation of Rule 1.7 and was made without the requisite full written disclosure of the terms of the transaction in violation of Rule 1.8. Hirshon also testified that Ordower violated Rule 1.4 when he failed to adequately consult with Mizrachi about his objectives after the receipt of the September 28 voicemail. Finally, Hirshon concluded
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that Ordower’s conduct was deceitful in violation of Rule 8.4. Hirshon’s testimony was directly contradicted by plaintiffs’ expert, Flaherty, who testified that Ordower adequately satisfied his disclosure requirements under Rules 1.7 and 1.8 such that there was no conflict of interest or improper business transaction of any kind. Flaherty further testified, in contrast to Hirshon, that the September 28 voicemail clearly indicated Mizrachi’s intent to withdraw from the purchase agreement, thereby alleviating Ordower’s obligation under Rule 1.4 to discern his objectives. Finally, Flaherty concluded that Ordower did not engage in any deceitful behavior that would violate Rule 8.4.
¶ 25 The circuit court found that Hirshon’s testimony “provides a sufficient basis for the Court to determine the existence of unclean hands” on the part of Ordower. In so finding, the court made an implicit determination that Hirshon’s testimony criticizing Ordower for his alleged violations of Rules 1.4, 1.7, 1.8 and 8.4 was more credible than Flaherty’s testimony that Ordower complied with all of his responsibilities under the professional conduct rules. However, the purpose of a summary judgment motion is to determine whether a triable question of material fact exists, not to try such a question of fact. Gulino v. Economy Fire and Casualty Co., 2012 IL App (1st) 102429,
¶ 25. The trial court may not make credibility determinations or weigh the evidence at the summary judgment stage. Id. In the present case, the circuit court erred by weighing the conflicting testimony, determining that defendants’ expert was more credible than plaintiffs’ expert, and granting defendants’ motion for summary judgment based on that credibility finding.
¶ 26 The circuit court further erred by stating that it was also basing its summary judgment order in part on “the fact that a jury found in favor of Mizrachi in the amount of $10 million” in the underlying federal court case against plaintiffs. As we discussed earlier in this order, the federal district court judge’s vacatur of the jury verdict had the effect of nullifying that verdict and
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rendering it void, effectively restoring the parties to their prior status as though the judgment had never been entered. New York Life Insurance Co., 311 Ill. App. 3d at 158. Because the voided judgment no longer has any legal effect and is treated as if it was never entered, the circuit court erred to the extent it relied on the jury verdict when entering summary judgment for defendants.
¶ 27 Finally, the circuit court erred by finding that Ordower’s alleged legal malpractice against Mizrachi gave him unclean hands preventing him from filing his own legal malpractice action against defendants. Our supreme court has held:
“The maxim of coming into court with clean hands does not go so far as to prohibit a court of equity from giving its aid to a bad or faithless man or a criminal. The misconduct must be in the transaction complained of. If one is not guilty of inequitable conduct toward the defendant in the transaction in litigation his hands are as clean as the court can require.”
Korziuk v. Korziuk, 13 Ill. 2d 238, 243 (1958).
¶ 28 In line with Korziuk, more recent case law continues to hold that the misconduct on the part of a plaintiff which will defeat recovery under the doctrine of unclean hands “must have been conduct in connection with the very transaction being considered or complained of, and must have been misconduct, fraud or bad faith toward the defendant making the contention.” Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 501 (1981). In Jaffe Commercial Finance Co. v. Harris, 119 Ill. App. 3d 136, 140 (1983), we similarly stated that the misconduct defeating recovery under the doctrine of unclean hands “must have been fraud or bad faith directed toward the defendant in the very transaction being considered.” In Zahl v. Krupa, 365 Ill. App. 3d 653, 658 (2006), we held that the unclean hands doctrine applies where the party seeking relief “is guilty of misconduct, fraud, or bad faith toward the party against whom relief is sought.”
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¶ 29 In the instant case, the circuit court granted summary judgment for defendants on plaintiffs’ claim of legal malpractice because the court found that Ordower had unclean hands due to his violation of several professional conduct rules while representing Mizrachi. However, to defeat recovery against defendants under the doctrine of unclean hands, Ordower’s alleged misconduct, fraud or bad faith must have been directed against defendants (id.). Defendants admitted in their summary judgment motion that “Ordower’s conduct had nothing to do with Defendants’ legal work. They were hired only after Ordower orchestrated his scheme and after Mizrachi sued him because of his dishonesty and fraud.” (Emphasis in the original.) As the misconduct underlying Ordower’s alleged rules violations was directed only against Mizrachi and was not directed against defendants, the doctrine of unclean hands is inapplicable here to defeat plaintiffs’ legal malpractice claim.
¶ 30 Also, as we discussed earlier in this order, several cases have applied the doctrine of unclean hands to prevent a plaintiff from recovering damages for legal malpractice based on bad advice given to him by his attorney, when the advice was sought to perpetrate fraud on a third party. See Makela, 142 Ill. App. 3d at 832; Mettes, 89 Ill. App. 3d at 80. Those cases are inapposite because plaintiffs here hired defendants to represent them in the underlying legal malpractice action brought by Mizrachi, not to perpetrate a fraud on any third parties.
¶ 31 For all the foregoing reasons, we reverse the grant of summary judgment for defendants on plaintiffs’ legal malpractice action and remand for further proceedings.
¶ 32 Reversed and remanded.