A unanimous Illinois Supreme Court added a new complication for plaintiffs’ counsel handling wrongful death cases late last week, unanimously holding in In re Estate of Perry C. Powell that an attorney representing the decedent in a wrongful death action owes a duty of due care akin to the duty owed his direct client – the representative of the estate – to the decedent’s beneficiaries.
The plaintiff in Estate of Powell was adjudicated a disabled adult in 1997. Two years later, his father died as a result of complications following surgery. The plaintiff’s mother retained the defendants to pursue a wrongful death action. Not long after that, the mother was appointed special administratrix of the plaintiff’s estate.
The wrongful death action was settled in two phases in 2005. The first settlement amounted to about $15,000, and was distributed equally between the mother, the plaintiff and the plaintiff’s sister. The sister waived her rights in the second settlement, and as a result, the mother and the plaintiff each received about $118,000. In both cases, the mother placed both her own and the plaintiff’s shares in a joint account. In neither case did the settlement order provide that the plaintiff’s portion was to be administered and distributed under the supervision of the probate court, nor was a guardian of his estate appointed to receive the money. The plaintiffs alleged that the one of the defendants advised that it would be “too much trouble” to go to the probate court to distribute the settlement, and thereafter whenever the plaintiff needed to withdraw funds.
About three years later, the sister became concerned about her brother. She asked the probate court to remove her mother as guardian, and the court did so, appointing the public guardian to supervise the plaintiff’s estate at the same time. It was later discovered that only $26,000 remained in the joint account. The mother has allegedly never provided any accounting of how the money was spent.
The public guardian filed suit on behalf of the disabled son against the wrongful death counsel, alleging that had the attorneys handled the settlements through the Probate Court as purportedly required, he would still have access to the money. The Circuit Court dismissed on the grounds that the defendants owed no duty to the son, but the Appellate Court reversed with respect to the second, larger settlement.
In an opinion by Justice Freeman, the Supreme Court affirmed. The Court noted that although attorneys traditionally owe a duty of care solely to their clients, the law has long recognized an exception where a third party is an intended beneficiary of the relationship between the client and the attorney. That question depends on whether the attorney is acting at the direction of the client to benefit or influence the third party.
Beneficiaries of a wrongful death decedent easily fit that test, the Court found. The personal representative in such an action is merely a “nominal party,” filing suit essentially as a statutory trustee on behalf of the surviving spouse and next of kin, the real parties in interest – who are barred from bringing suit themselves. Since the underlying purpose of a wrongful death action is to compensate the decedent’s beneficiaries for their loss, the Court concluded, the attorney representing the plaintiff in the action owed a duty of due care to the beneficiaries.
One of the major themes at oral argument in Powellwas the risk that extending the attorney’s duty to the beneficiaries might open up the possibility of conflicts among heirs. The Court declined to address the issue, noting that nobody had alleged a specific conflict in the case at hand.
The Court then applied its holding to the plaintiff’s allegations. Since the Probate Act does not require recoveries less than $5,000 to have court supervision, the Court concluded that the plaintiffs could not establish that any negligence by counsel had harmed the plaintiff with respect to the first settlement. However, the second, larger settlement did require the Probate Court’s supervision. Therefore, the Court concluded that the plaintiffs had stated a claim for legal malpractice with respect to that claim. Accordingly, the Court affirmed the Appellate Court in all respects.