Disability Disclosure — What is an Attorney’s Duty?

Novack and Macey LLP

Novack and Macey LLP

Attorneys may have a duty to inform the Probate Division of the Circuit Court of Cook County of a client’s potential mental disability or diminished capacity according to a recent decision by the Illinois Appellate Court. Estate of Barbara Rose Christo v. The Law Offices of Thomas Leahy, et al., 2021 IL App (1st) 200575-U. The legal malpractice case stemmed from a 1998 wrongful death case in which the Law Office of Thomas Leahy (“Leahy & Hoste”) represented Barbara Rose Christo and her two siblings.  In 2002, Leahy & Hoste obtained approximately $550,000 in damages for each client.  Six years later, in 2008, Barbara Rose was adjudicated to be a disabled person and the Cook County Public Guardian was appointed to serve as her guardian.  At that time, the Public Guardian discovered that Barbara Rose’s brother had been stealing her damages award.  In 2010, the Public Guardian sued Leahy & Hoste and several of its attorneys alleging professional negligence for failing to seek a guardianship for Barbara Rose prior to releasing the damages award.  The trial court concluded that Leahy & Hoste did not commit legal malpractice, but on July 16, 2021, an Illinois Appellate Court reversed the lower court’s decision.

Citing to the trial record, the opinion describes Barbara Rose as having “mild mental retardation … an IQ of 51, [and] a second-grade reading level…” Id. at ¶ 5.  Further, Barbara Rose’s guardian stated that she was “unable to tell time or make telephone calls.”  Id. at ¶ 9.  Evidence was also presented that  Barbara Rose collected Supplemental Security Income for “mental retardation with an onset date of September 13, 1984.”  Id. at ¶ 14.  Dr. Jaffe, a clinical and forensic psychologist, testified that Barbara Rose’s handicap “would be observable to the untrained person within just a couple of minutes of interacting with her.  Id. at ¶ 23.  Relying on these facts, and others, the Public Guardian asserted that Leahy & Hoste should have notified the court of their client’s disability before handing her over half a million dollars.  In response, Leahy & Hoste claimed it was ignorant of Barbara Rose’s disability.  One Leahy & Hoste attorney testified that he “didn’t have the impression that she had a diagnosed disability.”  Id. at ¶18.  But, the wrongful death trial paints a different story.  While Barbara Rose was on the witness stand, her attorney asked her if she had a disability and she answered, no. That attorney then described Barbara Rose as a “special person” adding, “We could tell… from the witness stand… She denied it, and good for her, but I think we can tell…” during his closing argument.  Id. at ¶ 13. 

While the trial court granted Leahy & Hoste’s motion for a partial directed finding and ultimately entered judgment in its favor, on appeal, the Court remanded the case and stated, “evidence plausibly shows that the Leahy defendants knew the extent of Barbara’s disability and yet still failed to notify the court.”

Estate of Barbara Rose Christo v. The Law Offices of Thomas Leahy, et al., 2021 IL App (1st) 200575-U  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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