State Supreme Court Holds Lawyers, Conservators Accountable In Probate Cases

March 23, 2012
by Rick Green

The state Supreme Court stood up Friday for a simple right that matters deeply for all, but especially to the old, sick and disabled.

The job of a lawyer appointed by probate court is to fight for the client, whether he is healthyor a stubborn 86-year-old man.

In a unanimous ruling in the long-running civil rights case of Daniel Gross, the justices ruled that court-appointed lawyers do not have immunity from lawsuits if they abuse their clients. The court also ruled, in a divided opinion, that conservators appointed by probate have limited immunity. The justices also ruled that a nursing home does not have immunity from lawsuits in probate cases.

The ruling has far-reaching implications for our troubled probate court system. It means that a court-appointed lawyer, and to a lesser extent the conservator — who is appointed by probate when a person can no longer live independently — cannot ignore the wishes of a client. The message to probate court is clear: Lawyers and conservators must be held accountable.

For probate courts, this has huge implications because many of the unsettling and outrageous cases I have been writing about for the past six years stem from abuse by conservators and court-appointed lawyers and judges who don’t pay enough attention.

Although Gross died in 2007, his civil rights case lived on. The lasting lesson is that the old or disabled — even if they are unwell and cranky — have the same rights as the rest of us.

“It means that if you get a court-appointed lawyer, that lawyer cannot have any doubt that the lawyer’s job is to listen to you,” said Sally Zanger, the Connecticut Legal Rights Project lawyer who represented Carolyn Dee King, Gross’ daughter. “It’s what the lawyer is supposed to be doing.”

Amazingly, that’s been the problem in the probate cases I’ve been telling you about since 2006. Gross’ was the first and most heartbreaking case I stumbled upon, when a Legal Aid lawyer told me an unbelievable tale of an old man from Long Island being held against his will in a Waterbury nursing home.

Elderly but still independent, Gross became ill while visiting his daughter in Waterbury. He was hospitalized, and while his children fought over his care and who should control his finances, Waterbury Probate Judge Thomas Brunnock approved his involuntary conservatorship.

Gross wanted to go home to Long Island. He wasn’t told of the hearing where he was ordered conserved. His court-appointed lawyer, Jonathan Newman, failed to object to the conservatorship, even though Gross just wanted to leave Connecticut. His conservator, Kathleen Donovan, had him placed in a locked, restricted ward at Grove Manor Nursing Home in Waterbury. His roommate was violent.

Later, when Gross was on a day visit to his Long Island home, he was hospitalized. Donovan brought him back to Connecticut in an ambulance against the wishes of Gross’ New York doctor.

In June 2006, Superior Court Judge Joseph Gormley, at a dramatic writ of habeas corpus hearing, ordered Gross freed, declaring that “a terrible miscarriage of justice” had taken place and that the man had been “deprived of his liberty.”
Source:
Hartford Courant article by Rick Green

Special THANKS to the Hartford Courant’s Rick Green for following the Daniel Gross story from the beginning and keeping the spotlight on conservatorship abuse in the CT probate courts.

An Elderly Man’s Lawsuit Could Bring Probate Reform
State Supreme Court To Consider The Quasi-Judicial Immunity Of Conservators And Probate Lawyers

10/16/2011
by Rick Green

Daniel Gross, an old man infamously abused at the hands of probate court before he died in 2007, might yet force far-reaching reform in a system that once robbed him of his freedom.

Next week, the state Supreme Court will take up a key question from Gross’ federal civil rights lawsuit and consider whether the people appointed to look after him — the lawyers and conservators who are supposed to represent the best interests of the elderly and infirm in probate court — are immune from lawsuits.

Whether lawyers and conservators deserve what is known as “quasi-judicial immunity” is a volatile question. Reformers say this case represents the ultimate recourse for folks abused by the probate courts. Probate judges — and attorneys for Gross’ lawyer and conservator — say that denying immunity would bring the courts to “a screeching halt” because it would be impossible to find individuals willing to serve as conservators or lawyers in difficult cases for fear they could be sued.

It’s hard to imagine a court system where those who abuse, neglect and exploit aren’t held accountable. Granting lawyers and conservators immunity would do just that.

For years, I’ve watched rogue conservators and ill-informed probate judges abuse the rights of citizens. These might be isolated instances, but the cases keep coming in a court system that lacks proper oversight and that ought to be part of Superior Court.

The way to force reform in probate is to make sure there’s accountability, not immunity. Our probate courts remain a separate world in which judges are elected and too often a good-old-boy network permeates appointment and supervision of conservators and lawyers.

No case illustrates this better than what happened when the elderly Gross ended up in Judge Thomas Brunnock’s Waterbury probate court during the summer of 2005.

Gross had come from his Long Island home to visit his daughter in Waterbury. He became sick and was hospitalized as his children fought over his care — and over who should control his finances. After the hospital asked probate court to step in, Judge Brunnock ordered Gross involuntarily conserved, taking away all of his rights.

Brunnock didn’t bother to give the old man a chance to speak up: Gross wasn’t even at the hearing at which he was ordered conserved. His court-appointed lawyer, Jonathan Newman, failed to object to the conservatorship, despite knowing Gross’ opposition. His conservator, Kathleen Donovan, placed him in a locked, restricted ward at Grove Manor Nursing Home in Waterbury.

Few moments in journalism stand out more for me than the day in July 2006 when I watched Superior Court Judge Joseph Gormley acknowledge “a terrible miscarriage of justice” and order 86-year-old Daniel Gross freed from his imprisonment in a Waterbury nursing home. Were it not for the work of Legal Aid attorneys and John Peters, a volunteer lawyer from West Hartford, Gross might never have emerged from probate hell.

As he shuffled out of the courthouse, Gross told me that he was “overwhelmed with happiness.” I saw what freedom, dignity and civil rights mean for an old man abused by a probate court that was supposed to protect him.

Gross died a year later, a free man, but not before he and his daughter filed a civil rights lawsuit. In 2009, the U.S. 2nd Circuit Court of Appeals affirmed a lower court’s dismissal of most claims. The courts affirmed Brunnock’s judicial immunity (federal and state laws are clear on this issue), but whether Newman and Donovan were entitled to quasi-judicial immunity wasn’t so obvious.

The court sent a burning question — whether conservators and court-appointed lawyers also deserve immunity from lawsuits — back to the Connecticut Supreme Court for a decision. The court also asked the state court to determine whether the nursing home where Gross was placed also can claim immunity from lawsuits.

A “troubled” appeals court said there was “credence to Gross’s allegation that there was a conspiracy to deprive him of his rights.” The ruling went on to state that under Connecticut law, “conservators may be liable.”

In her brief, Donovan argues that conservators can’t be sued because they “serve as the court’s agent in delivering compassionate support to help those who cannot help themselves … this court should hold that a conservator has absolute immunity for all actions taken in the fulfillment of his or her statutory duties.”

Newman’s court brief likens his role as court-appointed attorney for Gross to that of a lawyer for a child: “He is serving as an assistant to the court in securing the child’s best interests.”

These arguments are both absurd and frightening. A conservator must act to represent the best wishes of her ward — which might be in conflict with the court. A lawyer is an advocate, not “an arm of the court.”

A friend of the court brief filed by the National Disability Rights Network makes clear the problem:

Connecticut “lacks the procedural safeguards that would adequately protect wards from improper conduct and abuse by conservators. … A conservator may go as long as three years without a court review.”

“Many day-to-day decisions by conservators are never reviewed by the probate court or the public and are known only to the wards, who are often powerless to voice objection to those decisions.”

Whether there are a handful or dozens of Dan Grosses out there doesn’t matter. The Supreme Court has a chance to bring new accountability to probate court and, most of all, to stand for the rights of some of our most vulnerable citizens.

Source:
Hartford Courant article by Rick Green

Supreme Court Hears Case
Of Man Committed Against His Will
Man’s Daughter Can’t Sue Probate Court, But Why Can’t She Sue His Lawyer, Conservator?

10/24/2011
by
Rick Green

I wanted to shout out, sitting in the dignified, ornate chambers of the state Supreme Court Monday morning, as a string of lawyers debated what should be a basic right.

If somebody you have hired absolutely ruins your life — shouldn’t you be able to sue them?

And yet, the Supreme Court is being asked to grant immunity to lawyers and conservators appointed by the probate court, no matter what devastation they create.

The court Monday began considering this fundamental question because of the abuse that Daniel Gross, an elderly New York man, suffered during 2005 and 2006 at the hands of a Waterbury probate court after he became sick while visiting his daughter.

The long-running Gross case has become a battleground for probate court, Connecticut’s separate judicial system that handles wills, estates, adoptions, name changes — but also very delicate and controversial questions such as whether an elderly or sick person can live independently.

After he was hospitalized and his children fought over his care, Gross was conserved by probate court in Waterbury, which meant all his rights were taken away. A lawyer, Jonathan Newman, was appointed to advocate for him. A conservator, Kathleen Donovan, was appointed to represent him.

Newman failed to object to the conservatorship, despite knowing Gross’ opposition. Donovan made sure Gross was placed in a locked ward of a local nursing home for 10 months.

Remember that for these two people representing Gross wasn’t some act of mercy. They were hired and charged the old man for their work — the same way other lawyers and conservators do when they are appointed by a probate judge. That’s how the system works, for better or worse.

Donovan and Newman (supported by the state’s probate judges, by the way) are looking for special treatment for the lawyers and conservators who make a living off the courts. We all know that if a physician seriously injures a patient, that person can sue. Yet in this case, the Supreme Court is being asked to protect the people who are appointed to work for the elderly and frail — even if they royally screw up.

Gross finally got out of his imprisonment in 2006 when a Superior Court judge ruled that probate court had no jurisdiction over the 86-year-old New York man.

Before his death in 2007, Gross and his daughter sued and the U.S. 2nd Circuit Court of Appeals, while agreeing that Waterbury Probate Judge Thomas Brunnock deserves immunity, referred a key question to the Connecticut Supreme Court: Should lawyers and conservators also be granted immunity from lawsuits?

“What you are really suggesting is immunity from malpractice,” Justice Ian McClachlan said at one point to an attorney for Gross’s court-appointed lawyer during Monday’s arguments.

Unbelievably, that’s precisely what lawyers for Newman and Donovan want.

A lawyer for Gross, Sally Zanger, reminded the justices that “people lose their freedom” when a conservator is appointed. “We really need to be concerned about frail and elderly people who are conserved,” Zanger said.

Richard Roberts, a lawyer for Donovan, argued that a conservator “is but an agent of the court,” merely carrying out the court’s wishes. “You shouldn’t have to look over your shoulder when you are making these judgment calls.”

These judgment calls left Gross, a man who lived independently in his own home on Long Island, locked in a Waterbury nursing home for nearly a year.

These judgment calls meant that even when Gross fled home to New York at one point, his conservator pulled him out of a Long Island hospital and brought him back to Connecticut.

These judgment calls can destroy someone’s life.

Attorneys for Donovan and Newman say it will be nearly impossible to find people willing to become court-appointed conservators or lawyers if people are allowed to sue. This is doubtful, since lawyers, like physicians, have malpractice insurance. Among the thousands of conservators who are appointed every year in Connecticut, only a relative handful end up in lawsuits.

“We are not talking about the system grinding to a halt if is conservators are not immune,” Zanger told the justices Monday.

The real issue is fairness and whether old folks and sick people deserve the right to fight back when they are abused by people who are making money off them.

Source:
Hartford Courant Article by Rick Green

Forced nursing home stay called ‘miscarriage of justice“

10/24/2011
by Thomas B. Scheffey

The disturbing case of New York resident Daniel Gross, whose visit to Connecticut ended in a 10-month stay in a locked Waterbury nursing home ward, is coming before the state Supreme Court to determine just how much immunity from suit his lawyers deserve.

To advocacy groups like the American Association of Retired Persons, which filed an amicus brief in the case, Gross’s case exemplifies why conservators, lawyers for wards and nursing homes should not be shielded by quasi-judicial immunity. The storm of outrage and controversy in this compelling situation, say advocates for the defendant attorneys, is exactly the reason such protections are needed.

Connecticut case law is so unclear on this immunity question that the U.S. Court of Appeals for the Second Circuit sent the matter to the state Supreme Court with a request to fill in the blanks of what legal protections conservators and lawyers for wards of the probate courts can legally expect.

In 2006, on a writ of habeas corpus, Gross was freed from Grove Manor nursing home by Superior Court Judge Joseph Gormley, who called the case a gross miscarriage of justice. The elderly man had been visiting one of his daughters in Waterbury when a leg infection landed him in the nursing home.

When his children couldn’t agree on his care, a hospital employee asked the probate court to review Gross. It sent Waterbury lawyer Jonathan Newman, who visited Gross and found him alert and even “profound” in his communication. He had a home on Long Island with a reverse mortgage, and expressed a desire to return and live independently.

In his report to Waterbury probate Judge Thomas Brunnock, Newman wrote that he “cannot find any legal basis on which to object to the appointment of a conservator for Daniel Gross’ person and estate.”

By statute, Gross was entitled to seven days notice of the hearing to appoint a conservator, and if he couldn’t get to the hearing, the judge was supposed to go to him. Instead, according to the court record, Brunnock on Aug. 25 wrote an order that Gross was to be notified on Aug. 24 of an upcoming Sept. 1 hearing – a legal act the Second Circuit described as “facially impossible.”

Naugatuck solo Kathleen Donovan became Gross’s conservator for nearly a year, ultimately billing $27,000 for her services while he was in the locked ward. In Gross’s original complaint, he alleged his roommate was a confessed robber who threatened and assaulted him. Once, it adds, when Gross returned on a day pass to Long Island, he was hospitalized there, and Donovan arrived with an ambulance to return him to Connecticut, against the New York doctors’ advice.

On July 12, 2006, when the habeas writ came to Waterbury Superior Court Judge Joseph Gormley, he was critical of probate Judge Brunnock’s failure to discern that he might lack jurisdiction over the New York resident, and said Newman mis-served and underserved his client. The judge commented, “This case has disturbed me from day one. I kept looking for evidence to support what was done, but I find none.”

Gross, deeply relieved, was freed from the locked ward and the attentions of Newman and Donovan, returned home and died about a year later. His executrix, one of his daughters, filed a federal civil rights case against Gov. M. Jodi Rell, the state elder care ombudsman, the nursing home, the probate judge and the court-appointed lawyers.

Cases against the state employees were dismissed by U.S. District Judge Vanessa Bryant on sovereign immunity grounds, and the probate judge invoked judicial immunity. The cases against Newman and Donovan were dismissed on the grounds of quasi-judicial immunity.

On appeal to the Second Circuit, Bryant’s dismissals were affirmed for all parties, except for the outstanding question of quasi-judicial immunity for the conservator, the lawyer for the ward, and the nursing home. In expanded oral arguments Oct 24, plaintiff’s counsel, Sally R. Zanger of the Connecticut Legal Rights Project in Middletown is scheduled for 35 minutes. Donovan’s lawyer, Richard “Rick” Roberts of Cheshire’s Nuzzo & Roberts, is to have 16 minutes. Newman’s lawyer, Louis Blumenfeld, of Hartford’s Cooney, Scully & Dowling, gets 12 minutes, and Wiggin & Dana advocate Jeffrey Babbin, for Grove Manor nursing home, has seven minutes of argument.

According to the defense, a careful examination of the facts makes Newman’s and Donovan’s work more understandable and the type of actions that should be protected by quasi-judicial immunity.

The statute for creating conservatorships speaks of “residents or domiciliaries” of the probate court’s jurisdiction. Newman’s lawyers note that Gross had been domiciled at his daughter’s, and in Connecticut hospitals, for two months before he was made a ward of the state.

In their brief for Newman, Blumenfeld and Lorinda S. Coon agree Connecticut’s case law is all over the map on quasi-judicial immunity. The cases “essentially define a spectrum where, at one end, a government or court-appointed attorney acts impartially in furtherance of an objective goal [as an arm of the court] and, at the other end, an attorney acts entirely as an advocate for a client” like any private lawyer not entitled to court immunity.

A key precedent is the post-divorce case of Carubba v. Moskowitz, which recognized a dual role for appointed counsel for children in a divorce, “to both safeguard the child’s best interest and to act as an advocate for the child.”

Newman’s brief said lawyers in his role should have leeway. “[W]hen time is of the essence to make a medical decision or take steps to protect assets, is the attorney really duty-bound to delay a hearing due to some technical, easily correctable procedural flaw? Imagine the harm that could be done while the attorney blindly obeys the instructions of his client, forbidden to recognize that the client’s instructions are the product of dementia, paranoia or depression.” Both logic and the Rules of Professional conduct obliged Newman to impose a higher degree of objectivity about his client’s best interest, as in the case of a minor child, his lawyers argue.

Immunity Test

The Supreme Court was asked to nail down the nature of Connecticut’s quasi-judicial immunity for conservators, and lawyers for probate wards, in light of existing state and federal formulas. The federal test was set out in the 1985 U.S. Supreme Court case of Cleavinger v. Saxner. It’s purpose is to determine how much the action in question needs the protection of court-like immunity from lawsuits.

Does the activity need to be performed without harassment or intimidation? Are there other safeguards besides lawsuit damages that would control unconstitutional conduct? Is the task insulated from political influence? Can error be protected on appeal?

Lawyers for Newman and Donovan contend that absolute or at least quasi-judicial immunity is necessary to aid the probate courts in supervision and care of wards and conservatees, and the acrimonious nature of the work requires a barrier against lawsuits.

In a long and clearly written 2009 opinion, a three-judge Second Circuit panel explained how powerful the protection of judicial immunity is. Under established U.S. Supreme Court precedents, judges are protected from lawsuits even when their conduct arises from legal mistakes, malice or overstepping the bounds of their jurisdiction.

It is only when a judge operates with a complete absence of any jurisdiction that the immunity does not apply. Thus, if a criminal judge convicts someone of a crime that does not exist, there is immunity. If a probate judge, with no criminal jurisdiction does so, there would be no immunity.

Lawyers unconnected to the case are following the progress of Gross with interest. For example, Eliot Gersten, of the Hartford offices of Pullman & Comley, represents Sam Manzo, a farmhand who was disinherited through the shenanigans of a now-retired probate judge and court-appointed lawyers for the aging Southington farm owner, Josephine Smorron. The defendants in that litigation are raising claims of quasi-judicial immunity, even though a probate court authorized Manzo to sue.

Gersten said the Gross case will be significant, however it is decided. “I think the case may make conservators remember they are a trustee, and I think they can be reminded they can’t neglect the ward, and that there are serious consequences for the ward if the conservator acts inappropriately. So the conservator should be held accountable for it.”

The defendants in Gross are saying, “if you allow us to be sued, no one’s going to want to take on the conservatorship role,” Gersten continued. “The problem with that argument, of course, is that it overlooks the fact that only irresponsible people are going to refuse to take on the conservator role. This case is not about those people who do their job responsibly and follow the rules, and do what a conservator’s supposed to do.”

Source:
Connecticut Law Tribune Article By Thomas Scheffey