JUDGES BREAK THE LAW DURING GUARDIANSHIP PROCEEDINGS, PART 1, 2, 3 and 4

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JUDGES BREAK THE LAW DURING GUARDIANSHIP PROCEEDINGS, PART 1

3.5:300 Improper Ex Parte Communication

� Primary Illinois References: IL Rule 3.5

� Background References: ABA Model Rule 3.5(b), Other Jurisdictions

� Commentary: ABA/BNA � 61:801, 61:903, ALI-LGL � 172, Wolfram � 11.3.3

In ISBA 94-07 (September, 1994), 1994 WL 904190, the ISBA concluded that it is improper for a lawyer to engage in or respond to an ex parte communication from a judge concerning the drafting of an order or judgment without giving proper notice to opposing counsel. �[I]f a lawyer were to receive an ex parte request from a judge to prepare an order or judgment...the lawyer should suggest that the judge either include other interested counsel in the conversation by means of a telephone conference call or send all counsel a brief letter or other appropriate written notice advising of the judge�s ruling and directing the appropriate lawyer to draft and submit a proposed order or judgment to the court and other interested counsel. At a minimum, a lawyer receiving such a request must give timely notice to counsel for all interested parties of the fact and substance of the ex parte communication and also promptly deliver to all counsel copies of any draft orders or other written material submitted to the court.�


Illinois courts have held that orders entered without notice to opposing counsel are void and the failure to notify other counsel of ex parte contacts may also result in professional discipline for attorneys involved. See City of Chicago v. American Nat�l Bank & Trust Co., 525 N.E.2d 915 (Ill. App. 1st Dist. 1988) (�The relaxation of these ethical standards is not to be countenanced even in high volume courtrooms....Future compliance with these rules is essential if serious disciplinary action is to be avoided.�).

See also ISBA 93-12 (March, 1994), 1994 WL 904184 (ISBA concluded that it was improper for a state�s attorney to communicate with a judge to obtain an emergency stay of a bail reduction order unless such communication was permitted by statute); ISBA 92-21 (March 26, 1993), 1993 WL 836954 (a judge may communicate with his or her spouse�s attorney provided the judge has no official relationship to the spouse�s legal proceedings and there is no impropriety in the actions of the spouse�s attorney in conferring with the judge).

Editor's note: We have received reports of guardianship cases in our corrupt Cook County Probate Court in which the judge has participated in ex-parte communications which resulted in petitions and/or orders which drastically affected the course of the court proceedings, thereby depleting the disabled wards' estates through ongoing legal fees.
 
 
JUDGES BREAK THE LAW DURING GUARDIANSHIP PROCEEDINGS, PART 2



RULE 5.3. Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) The lawyer, and, in a law firm, each partner, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer and the firm;

(b) each lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for a nonlawyer's conduct that would be a violation of these Rules if engaged in by a lawyer if:


(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer's conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Editor's note: We have had reports of cases wherein the attorney retained nonlawyers who have violated the rights of the disabled wards through deceptive practices in order to gain the ward as a client for the services the nonlawyer provides (guardianship services). The judge was aware that these deceptive practices occurred, and not only allowed fees to be paid to the lawyer retaining the non-lawyer, but allowed the fees of the deceptive non-lawyer (potential guardian) be paid out of the wards' estate as well.


JUDGES BREAK THE LAW DURING GUARDIANSHIP PROCEEDINGS, PART 3



HIPAA Laws broken frequently during Cook County Probate Court proceedings:

HIPAA laws state that doctors and hospitals may not disclose personal health information without the consent of the patient, or without court order. However, in the Cook County Probate Court proceedings, members of the court frequently obtain personal health information which is shared with the judge, WITHOUT proper court order to obtain that information. This is in violation of federal laws!

A covered entity may use or disclose protected health information as permitted or required by the Privacy Rule, see 45 CFR 164.502(a) (PDF); and, subject to certain conditions the Rule typically permits uses and disclosures for litigation, whether for judicial or administrative proceedings, under particular provisions for judicial and administrative proceedings set forth at 45 CFR 164.512(e) (GPO), or as part of the covered entity’s health care operations, 45 CFR 164.506(a) (PDF). Depending on the context, a covered entity’s use or disclosure of protected health information in the course of litigation also may be permitted under a number of other provisions of the Rule, including uses or disclosures that are:

required by law (as when the court has ordered certain disclosures),

for a proceeding before a health oversight agency (as in a contested licensing revocation),

for payment purposes (as in a collection action on an unpaid claim), or

with the individual’s written authorization.

Where a covered entity is a party to a legal proceeding, such as a plaintiff or defendant, the covered entity may use or disclose protected health information for purposes of the litigation as part of its health care operations. The definition of “health care operations” at 45 CFR 164.501 (GPO) includes a covered entity’s activities of conducting or arranging for legal services to the extent such activities are related to the covered entity’s covered functions (i.e., those functions that make the entity a health plan, health care provider, or health care clearinghouse), including legal services related to an entity’s treatment or payment functions. Thus, for example, a covered entity that is a defendant in a malpractice action or a plaintiff in a suit to obtain payment may use or disclose protected health information for such litigation as part of its health care operations. The covered entity, however, must make reasonable efforts to limit such uses and disclosures to the minimum necessary to accomplish the intended purpose. See 45 CFR 164.502(b) (PDF), 164.514(d).

Where the covered entity (i.e., physician, hospital) is not a party to the proceeding, the covered entity may disclose protected health information for the litigation in response to a court order, subpoena, discovery request, or other lawful process, provided the applicable requirements of 45 CFR 164.512(e) (GPO) for disclosures for judicial and administrative proceedings are met. The physician and/or hospital is not, by law, permitted to release the information without proper court order or permission of the patient.

Editor's note: We have identified numerous cases in which members of the court have obtained personal health information from physicians and hospitals in an illegal manner, without proper court order. This information is then submitted into court record, with the judge's knowledge that the information was obtained illegally, as the judge never wrote an order allowing the information to be obtained. We hope these illegal tactics are investigated by federal and state authorities. 
 
JUDGES BREAK THE LAW DURING GUARDIANSHIP PROCEEDINGS, PART 4



Financial Exploitation of the Elderly (IL State Law)

AGING

(320 ILCS 20/) Elder Abuse and Neglect Act.

(320 ILCS 20/1) (from Ch. 23, par. 6601)

Sec. 1. Short title. This Act shall be known and may be cited as the "Elder Abuse and Neglect Act".

(Source: P.A. 85‑1184.)

(320 ILCS 20/2) (from Ch. 23, par. 6602)

Sec. 2. Definitions. As used in this Act, unless the context requires otherwise:

(a) "Abuse" means causing any physical, mental or sexual injury to an eligible adult, including exploitation of such adult's financial resources.

Editor's note: We see financial exploitation of the elderly in the majority of guardianship cases that we have examined in the Cook County Probate Courts. The judges rubber stamp endless attorneys' fees and guardians' fees, until the estate is completely depleted and the ward in placed on public aid. We have witnessed situations where double billing of the ward's estate is allowed as well.