http://www.iardc.org/HB_RB_Disp_Html.asp?id=12328
The ARDC has recently filed several elder abuse cases. This is one of those cases. According to the Review Board, the facts were as follows:
Respondent graduated from law school in 1989. He has a solo practice at Milwaukee and Devon in Chicago. He handles mostly residential real estate work and most of his clients are Polish. Respondent’s first language is Polish.
On April 1, 2011, Stanislaw Zabielski, whom Respondent had never before met, walked into Respondent’s office without an appointment. Mr. Zabielski told Respondent that his childhood friend, Jan Muskala, was in the hospital and wanted to give Mr. Zabielski his home and power of attorney over his property. Mr. Zabielski told Respondent that he wanted Respondent to draft a quitclaim deed and power of attorney, with the power of attorney specifically allowing Mr. Zabielski to withdraw all of the funds from Mr. Muskala’s account at PNC Bank.
The meeting lasted about 15 minutes. Mr. Zabielski paid Respondent between $200 and $300, and Respondent drafted a quitclaim deed transferring Mr. Muskala’s home to Mr. Zabielski and a power of attorney making Mr. Zabielski Mr. Muskala’s agent for property. Respondent used the Illinois statutory short form for power of attorney but added a clause allowing Mr. Zabielski, as agent, to withdraw all funds and close all accounts belonging to Mr. Muskala at PNC Bank and any other bank.
Respondent did not notarize the quitclaim deed or witness or notarize the power of attorney. He told Mr. Zabielski that the hospital would likely have a notary who could notarize the documents. On April 1, 2011, the power of attorney was notarized by Mark Stawiarski. On April 11, 2011, Mr. Zabielski brought the executed documents back to Respondent, and Respondent recorded the quitclaim deed at the Cook County Recorder’s Office.
At his hearing, Respondent testified that Mr. Zabielski did not tell him why Mr. Muskala was in the hospital, and Respondent did not ask. Respondent also did not ask why Mr. Muskala wanted a quitclaim deed and power of attorney. Respondent did not communicate with Mr. Muskala about his purported desire to transfer his home to Mr. Zabielski, to have Mr. Zabielski act as his agent under a power of attorney, or to allow Mr. Zabielski to withdraw funds from his bank accounts. Respondent did not meet or speak with Mr. Muskala or take any other action to determine his competency to enter into a contract or sign a power of attorney form.
Respondent testified that, at the time, he was somewhat concerned about Mr. Muskala’s competency to execute the documents, but believed that a notary would have a duty to confirm that Mr. Muskala was of sound mind and understood what he was signing. (He now understands that a notary has no such responsibility.) Respondent also said he did not view Mr. Muskala as his client and did not believe it would have been proper for him to go to the hospital to speak with Mr. Muskala.
In early 2012, one of Mr. Muskala’s caregivers contacted the Cook County Public Guardian’s Office (“PGO”) and reported that Mr. Muskala was being physically abused and financially exploited by Mr. Zabielski. The caregiver reported that Mr. Zabielski had broken into the home where Mr. Muskala was living – and which Mr. Zabielski now owned – and threatened the caregiver and Mr. Muskala, and locked Mr. Muskala in a bathroom for hours.
Mr. Muskala was 75 years old, had suffered a stroke, and was hospitalized as a result of the stroke and dementia at the time Respondent drafted the quitclaim deed and power of attorney at Mr. Zabielski’s behest. A physician who examined Mr. Muskala in February 2012 opined that Mr. Muskala would not have been competent to execute the power of attorney and
quitclaim deed in April 2011. 1 Mr. Muskala told the physician that he was forced to sign the documents at the hospital.
The PGO filed an emergency petition to become Mr. Muskala’s temporary guardian on the grounds that Mr. Muskala was being physically abused and financially exploited by Mr. Zabielski. It obtained an order of protection against Mr. Zabielski and arranged for Mr. Muskala to move into a nursing home. After conducting an inventory of Mr. Muskala’s possessions, the PGO learned that Mr. Muskala’s only asset had been the PNC Bank account, but Mr. Zabielski had withdrawn all of the $133,000 that was in the account, using the power of attorney form that Respondent had prepared, and transferred the funds to his own account. He then spent all of the money, which was never recovered.
The PGO filed litigation to recover Mr. Muskala’s home, and eventually did. It also filed a malpractice suit against Respondent, and obtained an $80,000 settlement from Respondent’s malpractice insurer.
The ARDC Hearing Board voted to dismiss the charges, but the Review Board reversed and issued a reprimand. The Review Board reasoned that Mr. Muskala was the intended beneficiary of the attorney-client relationship.
One member of the Panel dissented. He argued that the attorney owed no duty to Mr. Muskala because he did not represent him. He further argued that the opinion will foist an unreasonable burden on lawyers.
I believe my colleagues’ opinion will have negative and far-reaching ramifications beyond this matter. If a client asks a lawyer to prepare a power of attorney for the client’s mother or father, must the lawyer investigate and determine whether the client’s parent is competent to give power of attorney? When asked to prepare a power of attorney, must a lawyer anticipate all potential problems that could arise before preparing the power of attorney? Are we requiring a lawyer to both predict and prevent fault, even criminal conduct, by the client? Must the lawyer continually monitor to see that the third party is competent at some undetermined future date when the power of attorney is executed? Must the lawyer convince caregivers to provide information about the health of the third party without any evidence of the relationship between the lawyer and the third party? Under my colleagues’ reasoning, the answer to these questions would be yes. The duties placed on lawyers by the majority’s opinion are onerous and unreasonable. Pages 17-18.
Comment: I would have signed the majority opinion. This is a recurring problem – a “friend” obtains a power of attorney for a disabled person and steals that person’s money and causes great harm. Lawyers have to be held to a higher standard when they issue such a power of attorney. The lawyer, at a minimum, needs to ask questions and, perhaps, visit the elderly person.
If the dissent’s view was upheld, Illinois would have to change the Rules of Professional Conduct to address this type of situation.
Edward X. Clinton, Jr.