Supreme Court Summaries

Opinions filed June 19, 2014




Estate of Powell v. John C. Wunsch, P.C. 2014 IL 115997


Appellate citation: 2013 IL App (1st) 121854.


      JUSTICE FREEMAN delivered the judgment of the court, with opinion.

            Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.


      This legal malpractice action came before the Illinois Supreme Court at the pleading stage. No trial has occurred.

      Perry C. Powell, on whose behalf this suit was brought, is a disabled adult due to severe mental disabilities, and was so adjudicated in 1997. In 2008, the public guardian was appointed plenary guardian of Powell’s estate, while his sister is currently plenary guardian of his person.

      The public guardian filed this suit in the circuit court of Cook County against several attorneys and law firms who had been involved in various aspects of a wrongful death action arising from the 1999 demise of Powell’s father after complications from surgery. The father died intestate and his estate’s only asset was the wrongful death action. The decedent was survived by Powell and his sister and mother, with the latter being appointed special administratrix of her husband’s estate. A complaint was filed in 2001 on her behalf individually and as special administratrix of the estate, and an initial settlement was negotiated which was too low to be subject to court supervision. However, a larger settlement was later negotiated as to which the sister waived any claim and Powell and his mother each received about $118,000 by means of a joint check. Defendant attorneys failed to notify the court of the larger settlement and of the fact that the mother was accepting Powell’s settlement monies on his behalf. The mother, who at that time was guardian of Powell’s person, placed both awards in a joint checking account. It later came to light that the mother had removed all but $26,000 from the joint deposit without ever providing any accounting. Her guardianship of Powell’s person was terminated, the public guardian was appointed as to Powell’s estate, and the sister took over as guardian of the person.

      This legal malpractice action was brought by the public guardian on behalf of Powell, claiming that defendant attorneys had failed to protect Powell’s interest because the settlement documents which they drafted did not provide, as required by statute, that Powell’s larger award was to be administered and distributed under court supervision. No guardian of Powell’s estate was at that time appointed to receive his share.

      Defendant attorneys sought dismissal of the legal malpractice action on the theory that they owed no duty to Powell, rather than the administratrix, and also that proximate cause had not been alleged. The circuit court granted a dismissal, but the appellate court reversed, ordering a remand for further proceedings.

      The appellate court found that the complaint sufficiently alleged that an attorney retained by a special administrator of an estate to bring a wrongful death action for the benefit of the surviving spouse and next of kin owes a fiduciary duty to those beneficiaries at the phase of the action at which funds are distributed. This is despite the absence of a direct attorney-client relationship with those beneficiaries. That reviewing body also found that, because of the amount of the award, statute required court supervision to administer and distribute the settlement proceeds allocated to Powell, and allegations of failure to arrange for this sufficiently alleged causation.

      In this decision, the supreme court agreed with the appellate court, explaining that the Wrongful Death Act provides for the bringing of an action by and in the names of the personal representatives of the deceased, but that the amount recovered is for the exclusive benefit of the surviving spouse and next of kin. A personal representative is merely a nominal party, while the surviving spouse and next of kin are the true parties in interest. Thus, the primary purpose and intent of an attorney-client relationship between the personal representative and the attorney bringing a wrongful death action is to benefit the decedent’s beneficiaries.

      Defendant attorneys complained on appeal of potential conflicts of interest between various beneficiaries, but the supreme court did not address that issue here for lack of specific allegations concerning this in the pleadings. Because a guardian for Powell’s estate had not been appointed and the larger settlement was not distributed under court supervision, proximate cause was adequately alleged in the complaint.

      The appellate court was affirmed.