estate the administrator in this case to whom he owes his first and only and primary allegiance does that change when there is a wrongful death case which is an asset of the estate and which the attorney proceeds on our contention is it does not change the duty remains owed entirely to the administrate freaks of the estate to say that the duty stretches  and the skopec stance to any and all beneficiaries in the wrongful death case would expand the duty that illinois attorneys all not only in a state cases but p i cases and he wrongful death case to any unnamed possibly on identified plaintiffs and would impose a duty that the state of illinois has never imposed on attorneys and in fact the majority of jurisdictions in the united states do not impose and the authorized representative is the only one who can bring them however we have situations we have case cases in illinois where if a dispute arises between the beneficiaries the beneficiaries have a right of action they retain separate counsel and they have a right to go against the administrate tricks of the estate the executor of the estate the cases that we've cited in our briefs including the miller versus the myers a case johnson v father claimed that he got a less of a percentage of dependency than he should've gotten the killing case third district where the fourth wife was challenged by the biologic daughters their right of a option is to retain their own counsel and to pursue the claim that they got less than what they should have unfortunately our state puts us in a position in the wrongful death case where there's a question of of percentage  potential conflict between the beneficiaries when there is no argument that the beneficiaries are agreeing with with whatever the percentages are within the discretion of the trial court that there's not an issue the problem comes up and it and it was present in this case where there's at least the potential if not the actual conflict that one beneficiaries percentage of dependency is going to challenge another beneficiaries in this case emma smith elected to waive her percentage of one of the settlements the plaintiff in this case arguably that would have benefited them doesn't causing a duty on the attorney for the estate impose a duty for him to go to emma smith and then vice or it's against her interests to waive her percentage does that then put him in a conflict with gary cole jr theory smith that he has now advising a beneficiary don't waive your percentage because they have put him in a conflict with gary cole jr that he's going to get lost so this whole situation is exactly what imposing their kind of a duty on the estate attorney would impose and the duty in a wrongful death case for they have attorney is to obtain the greatest and best benefit that he or she can possibly obtain for the benefit of the general a state if there is no diff discrepant between the beneficiaries not a problem if there is even the potential of a just happen see between the beneficiaries and a state a state's attorney cannot be held to be representing individual beneficiaries the question does he have a duty to see that the person receiving the payment can him for no good and and so he can pay it up they can pay it out to anybody no matter what well we have a court order here from judge egan who ordered the distribution and again that gets back to the duty question we have a duty to make sure we are complying with the distribution order which was done in this case if you want to say there is a further duty beyond that what is the other person the recipient going to do with that that goes to exactly to the question of duty and our position is once you recover your best and highest recovery in the wrongful death case once you present it to the court and obtain a court order for distribution once you comply with distribution to impose a duty beyond that now imposes a duty to protect the beneficiaries and we are it time then we say it didn't been diluted it really fine the attorney to the next of kin now and i think that the duty to the beneficiaries was not it alone or apply to luna addressed primarily the statute of repose and whether the statute of repose must hold or how it was affected it never addressed the question conflict is irrelevant to its determination so it's our position that in this particular case those cases that reasoning does not apply we certainly want to go back to my first question the usual response to the case was in the statute  their client to extend the debt argument to extend the duty beyond that may not raise an issue may not raise a problem but if it does raise a problem for this court to impose a duty on all such attorneys that's owed to all actual and potential beneficiaries creates a situation for us attorneys in illinois that's on top of because they have places navigation on us to locate to find to investigate to advise every beneficiary and in this case although it did not reach that point there is the there is the real potential of having to advise emma as far as her decision regarding waiving her interest in the proceeds of that settlement vs carry pauwels interests well that's exactly what it should be but it shouldn't be a duty imposed over all on any attorney who's representing an estate automatically has the duty that he also he or she also always the same duties to any and all beneficiaries and that's what the plaintiff is nothing said before this court that the plaintiff would have been in any different situation had the alleged negligence not occurred that he actually was good morning my name is daniel kahn a second i represent a philips law firm and miss webb just astronomer can i respond to your question about you said can you simply pay the money out and the manner in  wrongful death act was set up where you have to appoint the administrator that would prohibit it in that circumstance and i think the carter case that was relied on by the appellate court in this instance talks based on the statute and the case law interpretating the wrongful that back all say that the trust that the person who is the administrator of the estate for purposes of pursuing the wrongful death action stands in the position as trustee your example if the lawyer did go out and give it to some third party on the street his cousin his mother his grandpa or grandma in that instance yeah i think the attorney would have some trouble but in this case the money went to the administrator of the trustee leona and who with the added fact here was appointed plenary guardian over the person of character so she  not only by virtue or in virtue of her position her appointment by the court in one nine hundred ninety seven when she was made plenary guardian but when the court allowed the wrongful death action to proceed she also stood as administrator of the estate which is somewhat confusing based on that the case law you discussed justice thomas optima but she stood in the position as trustee there so the money in this isn't didn't go out to a third party  misled the clients and the court said in that instance we look to did the attorney have an affirmative obligation to report something the status of the case and the court said well in that instance the attorney would have a fiduciary duty to the  beneficiary of the wrongful backpack and i don't think the decision i say this but it was not wrong i mean right so if we're communicating with somebody in the status that we're supposed to be representing their interests and i don't want to give up that point yet at because i don't think they found a third party beneficiary under the case law but they do have a duty in that instance to communicate in a truthful manner so if we can say that that's a fiduciary duty then i think in that instance yes the court reached the right decision but certainly we as lawyers in the instance of representing the estate in a wrongful that does have an obligation an absolute to speak truthfully to people about the status of the case which extend the third party beneficiary doctrine because of the conflicting relationships that you might end up having and impel him there was an interesting case because there there was a ten thousand dollars insurance policy and the mother was a was divorced from the husband and the kids were supposed to be on the policy and they want it went to the new wife and the kid said well the attorney representing the mother should have made sure that the designation beneficiary form should have been changed and certainly one would say yeah that should have happened but the court said if we go down the line of saying that the attorney owed the kids a duty in that instance what happens if the mother want to be insurance policy and didn't want to go to the kids there be a conflict there's no way the attorney can protect over the interests of the mother and the children and just the psalmist i think that's why in this case although beneficiaries of the estate certainly are intended to benefit from the attorney's work i don't think under pell whom we can say that they were for a duty is owed to them because in this instance you could have the potential for conflicting interests one of the beneficiaries in a case may be contributory negligence let's say there's ten kids and what the person who dies is in the car with one of the kids was driving and that kid is out drinking and driving smashes into a tree and kills the dad the nine other children don't sit in the same shoes as the one who killed the dad because he's driving and drinking but he's under the wrongful best actually isn't title to recover but certainly his interests because the lawyer representing the estate is not going to let the other nine or the bundle of money that he's collecting be disturbed by the conduct of one and the courts have recognized that that if that creates a conflict least you didn't say there was a conflict that concerned justice thomas is that there could be a conflict and that's where if with the what we do and how we tell clients and report the clients and what we say to clients it's never an easy thing to do because of all the conflicting interests that come into play so i think the courts have always said justice is that it's not just when a conflict arises frankly that's where most lawyers get in trouble because they wait until the conflict arises when they should have recognized that years before and said i better not even be in a position and justice that's in lease you fall of the kirk decision and  you said no we talk about an actual conflict you talk about potential conflicts and that's the way we're trained is we have to see in the future could there be a conflict in this instance the johnson case i think at best does it i understand and let me get my thought together here i understand what the statute says in i can't remember which case spoke about it but there are of the beneficiaries the wrongful death statute i mean it is the money for them but how is that any different than in the action of an estate let's say this were both a wrongful death case and are surviving and let's say a portion of this money came under the survival way and the same thing happened here the money goes out and it goes to the onin allegedly she doesn't spend it for the benefit of caring if we follow the line of police and if we follow the line of her well then in this instance the mortar didn't breach of duty because it's the survival act which goes under the probate act and if we follow the line of decisions he did nothing wrong but if we look at the wrongful death act and we say under here because it's for the benefit of the beneficiaries that for their direct benefit we're going to say he did something wrong you can't it's got it must be uniform the bundle of money comes in and it goes to the trustee it goes to the administrator and the only way it will ever work ever and if the johnson court points this out is the first part of collecting and the second part is distributing once it goes to the administrator it's the responsibility of that person and it's a hard pill to swallow in this case because we say what kerry got nothing supposedly but that doesn't leave perry without a remedy so it's not too hard of a pill to swallow you haven't the remedy is against the person who supposedly spent the real money wrongfully and if she was misguided justice if she was misguided then that's what the law protects because the attorney had a duty to her and frankly the cause of action doesn't belong to perry it belongs to the administrators so in the end nobody's getting away with anything here defendants didn't feel there was a conflict or potential conflict in this case until they were defendants in this male practice action for the entire pendency of an underlying case in no time did any defendants feel they were in a conflict position did they declare  conflict that they advised anyone that they needed to get separate counsel at no time did they feel there was a conflict it wasn't until this case proceeded that they even came forward and said well actually we don't we don't know do you did anyone in this case  only until this case began and to carry that out the conflict argument there's been raised by councils essentially says that in any wrongful death case that there's an immediate conflict duty of the attorney representing your status to represent that estate during the pendency of the prosecution of a wrongful death action and at the time of distribution should a conflict the riders at the time where the circuit court is going to make  determination on dependency and there is a conflict the point then justice thomas brought this up is the attorney's job to then advise the individual beneficiaries that a conflict has arisen that bill need to seek separate counsel finding do they have a duty to investigate investigate what aspects investigated as to whether there's a conflict among the interests of the beneficiary i think their duty is to once the settlement has been reached is to advise all of the individual beneficiaries as to that amount and then determine in conversation with those individuals whether there's an agreement as to the distribution and if there is not in agreement i think right there the  this and that the invited segments of the council has to be that each individual beneficiary when they need to get their own counsel in print for purposes of the evidentiary hearing police are to court to make a determination dependency if there are minor beneficiaries i believe again i think that i think the problem which goes to an exit point but will go there now is under the wrongful death act as well as in this case the will to rule circuit court of cook county six point four six point five two say a petition needs to be a c s set forth in the probate division a minor state purposes of approving the settlement must be established a guardian appointed and i think if that point the the competent rises individual beneficiaries get their own counsel and there's an adventure hearing at that point to determine dependency and everyone has the opportunity to present their position so i think that's one of the in actual compromises and i think the practical way that the conflict is handled and i think a known well i know regular basis and importantly in this case again i think it's a little bit of a red herring in that there was no conflict here there was no disagreement the the big issue with the case and the allegations of negligence as against defendants the ride from there and it's interesting in that really many many many pages of brief submitted by all the parties especially the defendants they never once t is set forth in the local rules that says this order is you know subject to approval by the probate court and no probate estate was set up this issue in this case and at no time did defendants in any of their briefs talk about the fact that they did not comply with this and that these orders are not involuntary it's the orders of the circuit court to count when you handle your position of the lawyers and  vigorously justice in that the process laid out in the memorandum which is dated march two thousand and seven circuit court of cook county as well as a general order specifically said that an attorney handling the court for the probate courts administration of the proceeds from that case being a player or a guardian prior in the past is not sufficient for the purposes of this process which is again mandated by the  requires that a wrongful death proceeds that a new state with another program or another guardian be appointed to accept the proceeds it could be the same guardian but the court has to oversee the administration of those proceeds from that case it also sets forth importantly and why i say that a separate state has to be set up is that requires that the the guardian either have a post a bond or other security in their role as the guardian for the proceeds of that settlement shall you know be declared guarding it may have no bond which obviously this act requires the posting of security or bond for the overseeing administration of those proceeds from that case think will be addressed the issue and the general sense and i think what we discussed is a practical real life example and process that allows for the wrongful death act as it stands to to work to everyone should have counsel right from the very beginning because it conflicts exist which is actually what the action as you're not supposed to have now is to have independent lawyers advocating the rights of the deceased in the wrongful death action it's a nominal pla security had the money gone missing there had been a binder security to ensure that the disabled person in this case very paul would have had the use of those funds to take care of his his needs as was the original intent under the sun so i  take it based on your comments of argument that he did not have a bond in this fish with that it would not have taken care of the situation and then does the attorney who's making the distribution of an obligation or a duty to determine whether a guardian does have determines that and in most cases that bond is in place and the reasons emplace should something happen like it happened here the bond is utilized to then replenish those funds which were wrongfully we didn't address the conflict because at the time of the provision of legal services it was our impression based on it when i case while there was no conflict we represented the estate there's a long line of cases that deal with the estate situation doesn't attorney who represents the estate represent the beneficiaries and the answer is no it does not the attorney's job is to benefit the entire estate to do what he of all attorneys to all clams here the facts in the complaint seem to allege that the attorneys met with the family including the disabled adult so they were aware of who he was  how does how does the duty of the warrior to pursue the wrongful death act interplay with the probate act and specifically the rules include first of all we deny that the actual allegation that the attorney made the comment that it was too much trouble that was not the issue the issue was what duty did he have to the administrator acts and by the way that trial court judge even was advised of the disability of the adult and that there was a guardianship in place she was fully aware of the out when she entered her distribution orders as far as the interplay between the he acts that's the problem right here who does the attorney over duty two and it's our contention that the primary duty is all to the administrator of the representative and that if the court if this court extends their duty to the beneficiaries whether they met with them whether they didn't meet with them with or they extend their duty it is a potentially on and it does does yes there is a duty to do that and i believe it was complied with here there was there had been a guardian appointed she was the guardian she had a joint role here joint responsibilities there was a guardianship that he had been  i would agree with that and that's somewhat confusing because you see in some places in regard to the person you see other places in regard guardian but even as clean regarding the person she's responsible for taking care of his needs his his rights but not to not be a state period at the end and the court trial court allowed her to be the recipient of those funds and we get back to ok what's our duty when it's an embezzlement and even if even if a probate court case had been started that doesn't prevent embezzlement it doesn't prevent misuse of the funds and to say that it was misuse of the funds would not give a curt there's no facts pleaded in this matter as it appears before this court that's pure speculation in fact it's our position on the proximate cause argument that there's been nothing set before the court other than the conclusion that hearing would have been in a different position had the alleged negligence not taken place nowhere in the in the i thought it was talking about leona smith and what her appointment was at the time that my clients provided the legal services and if they had time leona the administrator it was also the guardian but not a estate as you said  to if there was a problem here if the local rule six point two and six point five and if section two of the wrongful death act of regarding the distribution was not follow then it's the administrator who has the cause of action who has the relationship with the attorney so there's that duty so that the real person that should be bringing the cause of action if there was a mistake in that process if we're going to stay consistent with the line of cases of police and kirk is the administrator it's leona not not the beneficiaries because you run into the potential conflicts that lease was concerned with that kirk was concerned with than all the other cases that are cited in those decisions and that your position counsel the there was no duty to open up a probate estate subsequent to the settlement because his yes and that would that's where you fall into the line of cases that say there's a potential for conflict and you avoid all of it by just at that point in the distribution process mysteries are contrary to rule and people would just as  because the rule doesn't create a duty the rule doesn't create a duty to rule says what what should happen affecting the if you look at the role it actually puts the obligation just like in a state member when they want to became the administrator of the state she signed  oath she's just governed by the court so she was the person responsible and if the attorney was supposed to drive her and assist her through that and it didn't go right then the cause of action is  probate the civil the criminal and everything else right so it's the cook county is the only one that has that little wrinkle to it i don't know if i responded your question but yes the states are able to deal with cook county since they were where th would be ok so the states are open justice are they open by the lawyer representing the administrate takes they can be they can be but the question is if something goes sour if something goes bad to the beneficiaries have a cause of action against the it is there or is there a duty of the law firm to indicate you better open up a program to stay in this case if it is it's to the administrators and if it were i don't want to throw in your sure that's what i mean here and that's why in the in the appellate court decision here when they're trying they stop they stop the analysis and say well this is a wrongful death it's for the benefit of the beneficiaries but does that ignores the reality is that you have an administrator that's running the show up and the johnson case really really started out the second district case and says it's a two step process the first step the lawyer would never really be in conflict because he wants or she wants to get as much money into the estate once the money's there and you get to the distribution part that's where you have to follow if we're going to be consistent but least line of case that her line of taste and that's where it falls more into the area the attorneys representing the estate and the potential for conflict is astronomical in we can't quit but lawyer in a position where he or she is making those decisions it has to be uniform it can't it can't be say well in perry's case it's different but it has to be a uniform duty otherwise you have lawyers out there that are that don't know how to go about handling the situation and that we're not doing what any kind of conflict we're talking specifically about the issue where a disabled adult or minor and there is a statute that deals with how settlements are supposed to help with the distributed in terms of disabled adults for money and that's not open the conflict in concerns but every kind of case we're just talking about what happened in this case but let's say there's a dispute let's mistake in the distribution and the football wasn't followed that's the administrators cause of action and i want to help anybody out here but if we use the wrong parties here it's the wrong part thank you from your excuse at this time thank you for your arguments today