Connecticut High Court Considers Immunity for Attorney Malpractice

Suit Over Elderly Man's Care May Lead to New Standards
The Connecticut Law Tribune by Thomas B. Scheffey  -  October 31, 2011

Richard Roberts, of Cheshire’s Nuzzo & Roberts, made a vigorous case for extending broad judge-like immunity to probate court conservators, if acting within their statutory job description.  Carolyn Dee King is the plaintiff in her late father’s suit against the probate system. Sally Zanger, of the Connecticut Legal Rights Project, argued the case, and co-counsel Tom Behrendt worked on the briefs.
Supreme Court Weighs Lawyer Immunity Limits

Should court-appointed attorneys for society’s most vulnerable enjoy immunity from liability for their actions, and, if so, how much?  That was the question facing the Connecticut Supreme Court last week in the aftermath of a lawsuit filed by the estate of Daniel Gross, a New York resident whose visit to Connecticut ended in a 10-month stay in a locked nursing home when he became a ward of the state.  “Immunity is strong medicine,” argued the legal aid attorney representing the estate of Daniel Gross. “It should be used sparingly.”  Sally R. Zanger, of the Connecticut Legal Rights Project, contended that probate court-appointed lawyers for the elderly shouldn’t have, and don’t need, any more protection from malpractice suits than other lawyers have.  Advocates for Gross’s conservator and his court-appointed lawyer countered that, without judge-like immunity from suits for money damages, no one would want to represent the elderly and disabled, and the probate system’s oversight of 16,000 dependent people would simply break down.  Gross died in 2007, and his federal case against the system seeks redress for alleged elder abuse at the hands of the probate system. Connecticut’s highest court was asked, by the U.S. Court of Appeals for the Second Circuit, to clarify murky Connecticut case law. The Supreme Court is tasked with explaining just how much immunity from civil lawsuits that law gives these lawyers and conservators.  Starting in the summer of 2005, Gross was kept in a locked ward of Waterbury’s Grove Manor Nursing Home for 10 months, at the request of conservator Kathleen Donovan of Naugatuck, his probate court-appointed conservator. She obtained orders from Waterbury Probate Judge Thomas Brunnock to handle Gross’s personal and financial affairs, after Gross and his family disagreed over his care. Brunnock’s orders limited his daughter Carolyn’s visitation to one hour a day, and prohibited her from bringing a tape recorder or camera.

Daughter Files Suit

That hardly kept Gross’s situation silent, or in the dark. The columns of a crusading Hartford Courant writer, Rick Green, stirred up volunteer lawyers John Peters of West Hartford and Veronica Halpern, of Greater Hartford Legal Aid. They used a writ of habeas corpus to spring Gross, after Waterbury Superior Court Judge Joseph Gormley found Brunnock didn’t even have jurisdiction over Gross, a New York resident.  After his death, Gross’ daughter Carolyn Dee King, of Waterbury, sued a host of state officials and court officers, as administrator of her father’s estate. Sovereign immunity and judicial immunity narrowed the defendants to Gross’s probate-court-appointed lawyer Jonathan Newman, conservator Donovan, and the nursing home. When all three claimed court-like “quasi-judicial” immunity, the U.S. Court of Appeals for the Second Circuit certified some pure questions of law to the state Supreme Court, for guidance. Are probate lawyers and conservators entitled to this judicial immunity under Connecticut law?  The leading Connecticut case on this topic actually arose from a divorce custody case in 2005. West Hartford lawyer Emily J. Moskowitz was sued by an angry father, Paul Carruba, for alleged malpractice in her role as a court-appointed lawyer for Carruba’s minor child. The Supreme Court concluded Moskowitz exercised a dual role, both as a guardian seeking the best interests of the child, and partly as an advocate for the child. The older the child is, the more the lawyer’s role becomes like adult representation.

The three-part test set out in Carruba asks whether the role has historically required immunity, and whether it is a magnet for harassing litigation. Third, it asks whether procedural safeguards exist to protect against improper conduct, if the officer can’t be sued for money damages. Prosecutors, with the dual role of assuring justice for the accused and the state, qualify. Public defenders, on the other hand, as true legal advocates, don’t get quasi-judicial immunity.  Before Zanger began arguing, she shared an observation from her intensive research. She conceded lawsuit immunity is needed for judges, who might otherwise be constantly sued by those they rule against. But for probate court- appointed lawyers? In reading every relevant Connecticut case, she said, “There were maybe a couple dozen in the past couple hundreds of years. I just don’t see the lightning rod here.”  Justice C. Ian McLachlan was eager to dive in. He knew that Connecticut’s legislature, prompted by Daniel Gross’s case, enacted reforms in 2007. These gave a “conserved person” in a nursing facility a right to a hearing three times a year, and to seek habeas corpus relief. Were these the type of “procedural safeguards” that might justify immunity for the defendant lawyers, under Carruba?  Zanger didn’t think so. Her view was that the lawyer for an adult, like Newman, had to be a true advocate for his client. If the client opposed having a conservator, the lawyer had to keep silent about incompetent answers in client interviews, and put on the best case for the client, letting the probate judge decide what’s best.  Conservators are not like a guardians ad litem, performing a court-mandated role to help reach a judicial decision, Zanger said. Instead, they were more like the winner in a custody battle, looking after the child once the court battle ended. Neither role, she said, deserved quasi-judicial immunity.  Chief Justice Chase T. Rogers wanted to know what alleged acts by conservator Donovan were done without a probate court order, and without subsequent court approval. Zanger answered, “taking Mr. Gross against medical advice out of the hospital in New York to bring him back to the nursing home in Connecticut, and limiting his access to courts and counsel.”  Rogers asked the same question of Donovan’s lawyer, Richard Roberts, of Nuzzo & Roberts in Cheshire. “Several things — placing the plaintiff in the locked ward of a nursing facility — there’s no order per se for that. There was an allegation about having a violent person in the room.”

Violent Roommate

(The “violent person” who was Gross’s roommate, according to Gross’s daughter Carolyn King, was Paul LeBlanc, a co-defendant in a notorious 1978 case in which two Woodbury men, Bruce Gilbert and Henry Kulesza, were stabbed to death in their antique shop home. LeBlanc allegedly tormented and assaulted Gross, a claim Donovan disputes.)  Rogers replied to Roberts that the main unauthorized act alleged was placing Gross in the locked ward for 10 months.  Roberts replied, “Sure. But that’s exactly what we should have immunity for. It’s a judgment call, to place him in a facility like that.”  Roberts conceded that conservators are fiduciaries, and in a line of cases, have been successfully sued for misdeeds. They can be required to post bond — another argument against immunity. “Let’s put that out there; let’s look the elephant in the eye,” he said. “But the issue of immunity was never raised in that whole line of cases. And you really don’t have to overturn those cases to find what we’re suggesting: that conservators should enjoy immunity for all of their statutory duties.”  Justices Lubbie Harper, Dennis Eveleigh and McLachlan wanted to know whether immunity should attach for acts where the conservator or lawyer is discharging a direct order of the court, or had been authorized afterwards on review, or simply done tasks listed in the conservator statute. Roberts argued for the broadest immunity, with liability only arising when the conservator acted completely outside his or her authority. That, arguably, squared with past cases awarding damages from conservators engaged in unauthorized gift-giving, embezzlement, making risky investments, and failing to pay nursing home bills.  “We’re not saying they shouldn’t be liable,” if acting beyond their legal powers, Roberts said.

Louis Blumenfeld, of Cooney, Scully & Dowling, argued for the probate court-appointed lawyer, Jonathan Newman. Unlike Roberts, he argued his client had a dual role, of both advocacy for client wishes and pursuing results in his best interests. Blumenfeld found his argument in the rules of professional conduct:  “When you get an attorney, you get someone who has to follow the rules of professional conduct, and has to answer to the court,” he said. “Those rules require that the attorney expressly treat any client that is impaired in a manner that is as close to normal ‘as is reasonably possible.’ That phrase acknowledges that an attorney may not be able to.”  McLachlan asked whether Blumenfeld thought a lawyer for allegedly incapable people can’t commit malpractice.  No, he replied, they can — they just don’t have to pay for it. “In point of fact, immunity, quasi-judicial immunity, says that if you commit malpractice, if you breach your duties, you’re immune from civil liability,” said Blumenfeld.  But where’s the redress for the malpractice victim? McLachlan asked. “I think the simple answer to that is, it does not provide redress,” Blumenfeld replied.  Zanger argued that the lack of redress would leave the state’s most vulnerable people powerless: “Conservatorships happen to frail, elderly people who have a harder time getting to court, contacting lawyers, and that’s the policy part of it. It’s important under judicial immunity that judges not have people looking over their shoulders and thinking every person who doesn’t win is going to sue them. But conservators, court appointed lawyers and nursing homes — the citizens of Connecticut should want them to be worried that they’re causing harm to someone.”