COA reverses trial court's ruling in favor of attorney

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The Indiana Court of Appeals has reversed a trial court’s grant of summary judgment in favor of an attorney who failed to monitor an estate checking account while serving as the estate’s counsel.

In Corrine R. Finnerty, as Successor Personal Representative of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office, No. 39A01-1011-ES-622, Corrine Finnerty appeals a trial court’s ruling in favor of attorney Joseph Colussi, claiming that genuine issues of material fact exist to preclude judgment in favor of Colussi on a legal malpractice claim.

Dora Grace Lee died in 2007, and her designated co-personal representatives – sister Helen Ricketts and granddaughter Christina Mason – hired Colussi as the estate’s counsel.

On February 6, 2007, Colussi mailed Mason and Ricketts their letters testamentary along with the court’s order appointing them as co-personal representatives and letters explaining that either document would allow them to conduct business for the estate. The letter to Mason instructed her to “immediately open up an estate account and handle all expenses and deposit all income in that account” and to forward a check to Colussi to reimburse him for the estate’s filing fee. The letter to Ricketts made no mention of a bank account or filing fee. Colussi had previously advised Mason and Ricketts that either of them could write checks on the estate account, and it was agreed that Mason would retain the estate’s checkbook.

Mason and Ricketts opened an account at Main Source Bank in Madison, Ind., but did not establish an “and” account, which would have required both parties to sign checks. Instead, the two set-up an “or” account, meaning either could write checks independently. Only Mason received a checkbook and monthly account statements from the bank.

Over the next several months, Ricketts and Mason liquidated the estate’s assets and deposited approximately $236,000 into the account. However, unbeknownst to Ricketts and Colussi, Mason began writing checks on the estate account for her personal use, the use of her family and in-laws, and the use of the three other beneficiaries of the will. The majority of the estate funds were depleted by September 11, 2007.

On October 31, 2007, Ricketts contacted Colussi and told him that she suspected problems existed with the account. Ricketts, per Colussi’s instructions, contacted the bank and learned the account was overdrawn. Colussi and Ricketts then reported Mason’s embezzlement to police, and both Ricketts and Mason resigned as co-personal representatives, Colussi withdrew as estate counsel, and Corrine Finnerty was appointed as personal representative.

In February 2009, the estate filed a complaint against Colussi alleging that he had committed legal malpractice by failing “to inform himself as to the status of estate assets or monitor their use.” Colussi filed a counterclaim to recover from the estate unpaid attorney fees. The estate enlisted expert Thomas C. Bigley, Jr., who said Colussi breached the applicable standard of care by failing to control and monitor the checking account. The trial court ruled in favor of Colussi, holding that: “The testimony of Bigley and Finnerty as to their practice as attorneys in monitoring an estate bank account are simply their personal opinions based on their own experiences which renders their opinions as to Colussi’s actions lacking foundation and inadmissible conclusions of law.”

The COA called that conclusion “puzzling,” writing that personal experience is often the source of an expert’s expertise. The appeals court held that in order to prove a breach of duty, the estate needed to prove only that Colussi’s behavior fell below the applicable standard of care.

In his deposition, Bigley testified that the applicable standard of care requires an attorney for an estate to retain the estate’s checkbook, thereby requiring the personal representative to come to the attorney’s office to obtain checks. He also said he would have monitored more carefully the opening of the estate and would have monthly bank statements from the estate sent to his office. Accordingly, the appeals court held that the trial court erred when it ruled in favor of Colussi.

According to the estate, because a genuine issue of material fact exists as to whether Colussi is liable for malpractice, a genuine issue of material fact must necessarily exist with regard to Colussi’s counterclaim for unpaid attorney fees. The appeals court agreed, and remanded for proceedings consistent with its opinion.


  • This opinion makes me shudder
    According to the court of appeals, any attorney in the state can now offer his personal practice and say "I think other attorneys should do that do" and create a standard of care. So, we become guarantors for the actions of our clients, in essence. About the only way to defend yourself from enterprising legal malpractice lawyers is to make sure you have a clearly defined scope of responsibility in your engagement letter. I hope Finnerty loses at trial (since she should stand in the shoes of the PR who embezzled the money in the first place).

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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues