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Elder Law Fiasco Does Not State A Claim For Legal Malpractice

Harris v. Vitale, Ill: Appellate Court, 1st Dist., 2nd Div. 2014 – Google Scholar.

This case was brought by Robert Harris, the Public Guardian of Cook County. Harris was appointed the plenary guardian of the person for Andrea Molloy, a disabled person. The Illinois Appellate Court, First District, has affirmed a decision dismissing a legal malpractice case against a lawyer, who became involved in the guardianship case.

Molloy had dementia and chronic obstructive pulmonary disease. In February 2009, Harris filed a petition to be appointed temporary guardian of Ms. Molloy and a petition for the appointment of a guardian for a disabled person.

Thomas Molloy, Andrea Molloy’s son, also sought to be appointed guardian of the person of his mother. He retained Michael Vitale to represent him. The court sets forth the facts:

“¶ 6 On March 9, 2009, Thomas filed a cross-petition for appointment of a guardian of a disabled person. Mr. Vitale filed an appearance on Thomas’s behalf. Ms. Molloy opposed the appointment of Thomas as guardian and indicated that she preferred the appointment of petitioner. While the petitions were pending, Thomas attempted to change ownership of Ms. Molloy’s Symetra annuity policy to himself. As the citation to recover alleges, Symetra denied two previous attempts to change ownership of the annuity “because Arlene Molloy’s signature on the form did not match the signature on file and the signature was not notarized.”

¶ 7 In his deposition Thomas stated that he consulted with Mr. Vitale on June 13, 2009, for the purpose of notarizing the change-of-ownership document. He stated that he wanted Mr. Vitale to notarize only his signature. In his affidavit attached to his motion to dismiss, Mr. Vitale stated that Thomas asked him to notarize his signature on the Symetra form, and that he did not notarize Ms. Molloy’s signature. Symetra eventually changed ownership to Thomas after Mr. Vitale notarized the form. This change allowed Thomas to withdraw more than $95,000 from the Symetra annuity.

¶ 8 Thomas subsequently changed ownership of Ms. Molloy’s Protective annuity, worth approximately $240,000, and attempted to withdraw funds from the annuity. Petitioner filed a petition for preliminary injunction to freeze all of Thomas’s accounts on February 11, 2010, and an emergency petition for temporary restraining order to freeze Thomas’s accounts on March 2, 2010, which the court granted. Thomas did not access these funds due to the court’s protective order. On March 11, 2010, Mr. Vitale withdrew his appearance as counsel for Thomas, citing his client’s withholding of information regarding the funds at issue.”

On February 23, 2009, the trial court appointed Harris temporary guardian of Ms. Molloy’s estate and person.

Harris then sought to bring a citation to discover assets against Vitale. He alleged that Vitale did not personally witness the signature of Ms. Molloy.

Harris alleged that Vitale owed Ms. Molloy a duty, even though he was retained to represent her son.

The trial court treated the citation to discover assets as a legal malpractice claim and dismissed the claim on the ground that Vitale had no duty to Andrea Molloy. The Appellate Court affirmed on this basis as well. Specifically, the court held that Andrea Molloy was not the intended beneficiary of the attorney-client relationship between Thomas Molloy and Vitale. This holding is consistent with settled law in this area. It seems rather obvious that Vitale was retained to fight the effort of the Public Guardian to assert a temporary guardianship. It seems that Vitale had no duty to Andrea Molloy in those circumstances. The Public Guardian should have understood that Vitale was his adversary and that the they were not working towards a common purpose.

In preparing his arguments, the Public Guardian relied heavily on a recently decided case, Estate of Powell v. Wunsch, 996 N.E.2d 23 (2013). The Wunsch case was also filed by the Public Guardian. Wunsch will be heard by the Illinois Supreme Court this year. My blog post discussing the Wunsch case is here http://www.legalmalpracticeillinois.com/2013/04/next-of-kin-has-standing-to-sue-for.html.

The Public Guardian often becomes involved in cases where it appears that an elderly person does not have the capacity to consent to a transfer of property, even to one of her own children. These are often troubling issues of elder law and can be dangerous for lawyers. When the elderly person’s money disappears, it is often easiest to blame the lawyer.

Edward X. Clinton, Jr.

www.clintonlaw.net