A New York appeals court allowed a case for legal malpractice and breach of fiduciary duty to proceed against an attorney who charged more than $44,000 for Medicaid planning work to protect a net estate valued at about $130,000. Sobel v. Ansanelli, (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2011-11418, Sept. 19, 2012).

In August 2005, Mary Ellen Malone hired attorney Vincent W. Ansanelli to perform estate planning services, including asset protection, the preparation and filing of an application for Medicaid benefits, and the transfer of Ms. Malone’s cooperative apartment to her daughter, Christina Sobel. At the time Ms. Moore retained attorney Ansanelli, the total value of her assets was approximately $190,000, and she had debts of approximately $60,000.

Ms. Malone died in April 2008 and was retroactively found eligible for Medicaid in July 2008. Mr. Ansanelli sent a final invoice for the Medicaid planning work in February 2008. In total, Mr. Ansanelli charged legal fees of more than $44,000 for his services.

In February 2011, Ms. Sobel sued Mr. Ansanelli on her deceased mother’s behalf, alleging legal malpractice and breach of fiduciary duty for charging excessive fees, among other things. Mr. Ansanelli filed a motion to dismiss, arguing that the fee invoices had been approved the and claiming the three-year statute of limitations had run on the legal malpractice claim. In response, Ms. Sobel said that the fee invoices presented to the court were different from the fee invoices submitted to her mother. She also argued that her claims were not time-barred because Mr. Ansanelli’s representation continued until February 2008 when he issued his final invoice. As a result, the trial court dismissed the legal malpractice claim, but permitted the breach of fiduciary duty claim to proceed to trial.

Mr. Ansanelli appealed. The New York Supreme Court, Appellate Division, affirmed in part, denying the motion to dismiss on both the legal malpractice claim and the breach of fiduciary duty claim. Because the invoices submitted by Mr. Ansanelli to the court were of disputed authenticity, the court ruled that they did not establish a defense to the breach of fiduciary duty claim. The court also ruled that the legal malpractice claim could not be dismissed because an issue of fact existed as to whether Mr. Ansanelli failed to protect the value of estate assets through February 2008, the date he submitted his final invoice.

The Sobel v. Ansanelli case is annexed here – Sobel v. Ansanelli

(Courtesy of ElderLawAnswers, a website supplying “the best information on the Internet about crucial legal issues facing seniors.”)