Connecticut Law Tribune Monday, April 02, 2012 Copyright 2012, ALM Properties, Inc.
Standing Up For Elderly And Infirm: Court says probate lawyers can be held liable if they disregard clients
By THOMAS B. SCHEFFEY
Old age is sometimes described as a “second childhood,” but lawyers for the elderly got a loud and clear warning their clients are not children in the eyes of the law.
That's the message the Connecticut Supreme Court sent in Daniel Gross v. M. Jodi Rell, a decision emphasizing that attorneys in probate proceedings must heed the wishes of their elderly or infirm clients and not substitute their own judgment about what's in the client's best interests.
Lawyers for the elderly who act on their own, the Supreme Court warned, do not enjoy absolute immunity and can be held personally liable for their actions.
In this case, the Supreme Court recognized that placing a person in a conservatorship --- as a ward of the Probate Court --- “is one of the most serious infringements on personal liberty and autonomy authorized by law.” In this situation, the individual's life is mightily affected by people in two roles.
One is the probate court-appointed attorney, who represents the person at competency and other types of hearings. The second is a court-appointed conservator --- often, but not necessarily, a lawyer --- who under court supervision oversees the elderly or infirm person's economic and physical well-being. In this case, the justices stated clearly, for the first time, how much legal insulation from civil lawsuit liability people in the two roles deserve.
“People have a lot clearer lines than they had a month ago. It's pretty clear that nobody can say, any more, that a court-appointed lawyer in a conservancy proceeding is the same as a guardian ad litem in family court,” said attorney Sally R. Zanger, who argued for the plaintiffs.
A guardian ad litem's role is to advocate for the best interests of the child in divorce and custody proceedings, and not necessarily heed the child's stated preference. But in Gross, said Zanger, the justices “say very clearly, ‘adults are not children.'”
She continued: “It's a very thoughtful decision, [and] they're trying to make it really clear that there's no situation where the lawyer can throw the client under the bus in a conservatorship proceeding. They have to represent what the client is asking for. Deciding the ‘best interests' is not their problem,” it's the judge's problem.
The Supreme Court decided that conservators are immune from civil liability only when their conduct is authorized or approved by the Probate Court. The high court also held that appointed attorneys lack any special immunity. And, in such proceedings, nursing homes have no immunity at all.
The court was filling in unwritten gaps in Connecticut case law at the request of the U.S. Court of Appeals for the Second Circuit. The underlying case dates to 2005, when Long Island resident Daniel Gross was visiting his daughter, Carolyn Dee King, in Waterbury.
Gross, a retired furnace technician, thought he was just briefly passing through Connecticut. He didn't know he was about to become the poster boy for the legal rights of Connecticut's elderly. When a leg infection landed him in a Waterbury hospital, a nurse asked for Probate Court help in having Gross moved to a nursing home. Probate Judge Thomas Brunnock appointed Waterbury lawyer Jonathan Newman to visit Gross in late August 2005.
Attorney Newman reported that Gross seemed alert and intelligent, and opposed having a conservator. But Newman said he saw no reason to oppose the hospital's recommendation that Gross become a ward of probate. On Sept. 1, 2005, Brunnock appointed Naugatuck lawyer Kathleen Donovan to be the conservator of Gross' person and affairs. A week or two later, according to court pleadings, Donovan placed Gross in the locked ward of Grove Manor Nursing Home in Waterbury, where his roommate was a once-infamous robber who allegedly assaulted him.
At one point, Gross was authorized to take a one-day visit to his hometown in New York. During the trip, Gross was hospitalized briefly, and attorney Donovan went to Long Island with an ambulance and returned him to Grove Manor against his and his doctor's wishes, the court records state.
Gross requested a habeus hearing, which was held before Waterbury Superior Court Judge Trial Referee Joseph T. Gormley Jr. Gormley would later write that the case “completely blows my mind” because Gross was so poorly represented. He set Gross free, ruling that because Gross was a non-resident, the Connecticut probate system had no jurisdiction.
Gross sued then-Governor M. Jodi Rell, the lawyers and the nursing home under federal civil rights law, and under state law for negligent and intentional infliction of emotional distress, breach of fiduciary duty, false arrest, assault and false imprisonment.
U.S. District Judge Vanessa Bryant dismissed most of the claims after making unusually broad findings of quasi-judicial immunity -- a doctrine that protects from civil liability people like prosecutors and others who are integral to the judicial process. Bryant then found the remaining claims didn't add up to the $75,000 federal court jurisdictional minimum and dismissed the case.
The matter was appealed to the Second Circuit, which found Connecticut's laws lack sufficient guidance on the issue of quasi-judicial immunity for conservators, court-appointed lawyers for the elderly and the nursing home defendant. It asked the state's top court to explain.
Gross's daughter, King, continued the case after her father's death in 2007. She was represented by Zanger and Thomas Behrendt, of the Connecticut Legal Rights Project in Middletown. Behrendt called the recent Supreme Court ruling “a great decision. It really hammers on the fact that lawyers are accountable, [and] sends a really clear message about the dignity and respect to which our elder clients are entitled.”
Chief Justice Chase T. Rogers authored the lengthy decision, which explored case law and the rules of professional responsibility. The closest precedent is the 2005 family law case of Carubba v. Moskowitz, in which a divorcing father sued the guardian ad litem of his children for alleged misfeasance.
The court decided West Hartford attorney Emily Moskowitz, as a guardian ad litem in the high hazard zone of divorce custody litigation, was entitled to quasi-judicial immunity because her “lightning rod” role was similar to that of judges and prosecutors, both of whom enjoy full immunity from lawsuits stemming from their official acts.
But then the Carubba court started to draw distinctions. “We decline to extend immunity to public defenders [whose] role is that of an adversary and [whose] function does not differ from that of a privately retained attorney.” Like public defenders, the Gross court found-appointed lawyers for the elderly are advocates.
The test for being entitled to absolute judicial immunity, Rogers noted, asks three things: First, does the official in question perform duties similar to those who have such immunity? Second, is there a strong likelihood of harassment or intimidation on the job? And third, are there procedural safeguards to protect against improper conduct?
The court concluded that a conservator, carrying out the orders of a Probate Court, is entitled to absolute immunity as an agent of the court. But when conservators don't have direct court approval for a specific action, they are acting as the fiduciary of the elderly client “and as such, may be held personally liable.”
Lack Of Accountability
When it comes to a conservator of a person's financial affairs, regular court accounting is required by statute. In contrast, conservators of the person --- the physical well-being of the elderly or infirm person --- can act without prior approval or authorization.
Whether there's a statutory accounting requirement or not, the court wrote, “we can perceive no reason why conservators of the person should not be liable for actions taken without the authorization or approval of the Probate Court.”
Zanger commented, “If this means they get probate court approval before doing something controversial, I say great!”
Attorney Donovan, the conservator for Daniel Gross, was represented by Richard Roberts, of Cheshire's Nuzzo & Roberts, at oral argument last October. Roberts, who was not available for comment last week, contended during oral arguments that conservators need absolute judicial immunity to properly perform their jobs, just like guardians ad litem.
But the Supreme Court drew distinctions between the roles. In divorce cases, the guardian ad litem is almost inevitably acting as a “litigation lightning rod,” exposed to one or the other parent's animosity. Conservators don't inherently have tense relations with the person they represent, because even a court-appointed conservator, Rogers noted, “could well be a family member or friend.”
In the alternative, Roberts argued, the conservators should at least be immune when carrying out a function authorized or approved by probate court. The court agreed with the second argument.
Attorney Newman, represented by Louis B. Blumenfeld, of Hartford's Cooney, Scully & Dowling, took the position that the role of the conservator is to assist the Probate Court in serving the best interests of his client. If the appointed lawyer's role is basically just helping the judge, it would follow that quasi-judicial immunity is appropriate. This argument got no traction. Opposing counsel Zanger successfully countered that the lawyer must vigorously advocate the client's wishes, even if the lawyer would personally advise otherwise.
Unlike a minor child, whose age creates legal incompetence, an elderly client has the constitutional rights of any other adult to be independent, Zanger argued, until a proper authority says otherwise through due process of law.
“The justices made a very clear statement that lawyers for respondents have an absolutely crystal clear obligation to do what the client wants them to,” she said. “It's the judge's job, not the lawyer's job, to be deciding whether or not the person's competent.” •