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Editorial: Quite simply, probate court can be a racket

July 1, 1993

Editorial: Quite simply, probate court can be a racket

By Frank Schier

Quite simply, probate court can be a racket

By Frank Schier

Editor and Publisher

Everyone is entitled to make a good living, including lawyers and judges. Education and social burden are acquired so an individual may earn or charge more for one’s efforts and enjoy a higher standard of living in our society. However, that education and social burden supposedly entails ethics and social responsibility.

In the process of covering the Licari case and after reviewing other probate cases and receiving input from other sources, The Rock River Times has found that many times ethics and social responsibility are poorly served in Winnebago County’s 17th Judicial Circuit probate court. Probate court and its “public guardianship” supposedly exist to protect the mentally or physically disadvantaged, children, little old ladies and men, individuals who are handicapped in one way or another.

The duty of the judges of the probate court and their “legal” guardians supposedly dictates all possible means of the society are exercised under the rule of law to make sure no one takes advantage of the individual who is made a “ward” of the court.

That’s a “ward” of the court, not an “award” of the court. Too often, however, the latter is true in our local probate courts. Too large a portion of the assets of the wards of the court are given to the attorneys that act as guardians.

Routinely, judges approve attorneys’ motions for fees with little more than a glance. A judge might reply, “I’m a judge, not an accountant.” Sorry, your honors, but you have a responsibility to be accountants, and you should be held accountable when you fail to question and reduce excessive billing by attorneys.

Routinely, attorneys bill these estates on an average basis of $125 per hour—the infirm, the handicapped, the children, the little old ladies and men. For the attorneys who bill ethically, “God bless you;” for the attorneys who gouge their wards, “Shame on you all.”

But the wards still have to pay, just as we have to pay whatever price is dictated at the gas pump, for our heating and cooling costs, or we do without. People who are assigned a guardian (because of the petitions of family members, the Visiting Nurses Association or other concerned parties) are deprived

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of the option to do without guardianship if the judge so rules.

However, if their estate is drained by attorneys’ fees, they indeed will do without. They may lose their homes, personal assets, pets and end up on public aid in a nursing home. That’s a great way to end one’s life, after working for years for assets that can be dissipated in as little as a year or two years in probate court.

Billing the infirm, the handicapped, the children, the little old ladies and men at $125 an hour may be the accepted practice, but that practice needs to be reformed.

An attorney, just like any other business person, has overhead: office rent or mortgage, utilities, equipment, furniture, advertising, insurance, payroll and taxes. School loans for bachelor degrees and law school may take five to 10 years to pay off. The Law is a learned and tough business.

Social responsibility would seem to dictate that such attorneys, being more aware than most of the fix someone is in to be assigned a public guardian, would charge less. Half price seems reasonable. At $75 an hour, one could still make a good living and take care of the overhead.

In fact, most attorneys charge for their paralegal and secretarial duties anyway at an average of $50 to $70 an hour. Surely, those employees fail to see that amount on their paychecks. Most legal secretaries and paralegals make $9 to $20 an hour, according to local academic sources.

Accordingly, the attorneys make a profit on their staff as well. They supervise the employees and are entitled to a profit. However, in probate cases, an average charge of $40 an hour for secretarial and paralegal service would be more seemly.

Seemliness supposedly rests in the realm of judicial oversight. Oversight seems to rule with judges who just glance at motions for fees and rubberstamp them. To the layman, that practice seems to be pretty seamy, like the good ol’ boys and gals’ club greasing each other’s palms on the backs of the disadvantaged.

Those bills should be gone over with the proverbial fine-toothed comb. Judges were lawyers once; that’s why they’re there; they’re supposedly the best. They know it doesn’t take an hour to fill out a boilerplate motion, which the majority of probate motions are. Judges know the validity of the details of those legal fees before them, and they should question and reduce them from the bench. Judges know what can be handled by a secretary or paralegal, rather than at the attorney’s higher cost. Judges rule. That’s that.

In contested cases, like the Licari saga, the judges should ride herd on the herd of lawyers and say, “Cut the crap. I will not tolerate prolonged litigation draining the estate of a ward of the court.”

With the Licari saga, Judge Prochaska had a regular sewer of delays and family squabbling in his courtroom, and he let the attorneys prolong the flow rather than flushing out the rigmarole.

As to Prochaska’s courtroom remarks about never seeing a probate case covered by a newspaper in his three years of adjudicating such cases—too bad the public spotlight wasn’t on his courtroom sooner.

If the media had been shining their lights into this darkness, perhaps many of the infirm, the handicapped, the children, the little old ladies and men would be better off financially today.

More importantly, perhaps the emotional and psychological toll paid would be much less in the lives of the infirm, the handicapped, the children, and the little old ladies and men who passed before his bench.

On June 29, during a recess, a bailiff approached me in the courtroom gallery and said Judge Prochaska would like to see me. She brought me past the bar, through the courtroom and down the hallway to his chambers.

Any remarks Judge Prochaska made in chambers are off the record, as he requested.

However, as a journalist, I was very surprised to be called into chambers, in the first place. The conversation was cordial. Anything said in the courtroom was a matter of public record and could be quoted. Obviously, the exposé prompted Prochaska’s on-the-record remarks about this paper’s coverage of this case.

This paper also printed Prochaska’s critical remarks about the coverage. Fair is fair.

Likewise, the “family tragedy” Prochaska bemoaned coming to light in open court, was exacerbated by his actions or lack of them, in the opinion of this observer and editorial writer.

From February to August, this writer attended all 10 court dates this year concerning this case. Sadly, this case began under Judge Kennedy in 1996.

As to Dr. Nicolosi’s testimony that he was “crucified,” only circumstances as well as they could be ascertained were printed. Nicolosi and his attorney, Ted Liebovich, were repeatedly called for comment, but were unavailable. As to Nicolosi’s assertion that Prochaska had been misquoted in regard to his critical comments towards Nicolosi’s failure to appear in court, Prochaska has never made such assertion in his public remarks. Check the record. After the last court date, Nicolosi was asked for comment, but he declined.

The record will also show that Prochaska did rule that Nicolosi must pay Attorney Joe Bruce’s fees for his work to recover money owed Nicolosi’s grandmother, Frances Licari. That was a strong ruling protecting the court’s ward, Frances Licari, and showed Prochaska’s disapproval.

As to other parties’ feelings that the whole truth did not come out—this paper’s address and phone number is readily available to anyone. Either those parties did not call or visit, or they did not return messages left through their attorneys or on their answering machines. Anonymous assertions cannot be attributed. Every effort was made to present the facts according to journalistic standards in good taste and with decorum, despite the acrimony among family members. No one was a winner in this case.

As to Prochaska’s weak rulings, from the sealing of financial records, to the same of letters involving a possible false claim of bankruptcy, to apparent bias to some parties, to the lack of firmness with family members on the care plan, to rubberstamping of attorney’s fees, to allowing personal attacks, to allowing obvious strategies of delay to occur, to vacating the Rule to Show Cause, all were less than impressive.

Adding all the above to the central issue of a Constructive Trust, concerning which the evidence was classic, Prochaska’s judgment certainly and unfortunately warrants appeal. If this case is appealed, obviously more legal costs and family acrimony will multiply.

More unhappiness is not worth the trouble. Just make sure Frances Licari’s half ownership of the parking lot at Winnebago and Green streets is sold at appropriate market value. The purveyors of the real estate market in that area are drooling over the $42 million U.S. Representative Don Manzullo has brought home for the new federal courthouse.

To the Licari, Nicolosi and Zammuto families, everyone is sorry your disputes and plight became public. However, when any dispute is carried out in open court, that dispute is part of the public record and subject to coverage, especially when the case is indicative of a larger problem. Hopefully, your experiences will point out to others the pitfalls of public guardianship. How much solace that provides remains unknown. Hopefully again, anyone who read about your struggles will try to avoid ending up in the same scenario.

Anyone should recommend a public guardian as only an extreme, last resort. If such a choice is made, get out your wallet, and say goodbye to free will.

I have met Mrs. Frances Licari. She has suffered, but she is blessed with a good family. Despite her continuing challenges, her 94 years have made her a very graceful and lovely lady, and the honor was mine to make her acquaintance. The fact that she has or will have paid more than $32,000 in legal fees since 1996 is atrocious. The honor is also mine to fight for her well-being—that is any journalist’s duty, any decent human being’s duty.

How many other people like Frances Licari are out there? Will they continue to be treated this way? Will probate judges examine attorneys’ fees? Will attorneys reform their billing practices, or must reform come from outside the court? We will see how those involved perform their fiduciary and ethical duty—under the rule of law.

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