Roberta A. Schmitz will haunt Peoria attorney Thomas E. Leiter for the rest of his professional life. In 1992 Schmitz hired Leiter to transfer two irrevocable trusts from one bank to another. The case exploded into one involving charges of elder abuse and claims of diminished capacity.

Leiter now stands accused of overbilling the 85-year-old grandmother, who has been diagnosed with Alzheimer's disease, to the tune of $ 40,000.

The case against Leiter, 53, appears strong. Incriminating evidence includes years of unitemized bills and charges for phantom phone calls. On the surface, the most noteworthy aspect of the lawsuit involves the plaintiff's attempt to bring charges against Leiter under the Illinois Consumer Fraud Act. In May the Illinois Supreme Court heard oral arguments on the issue.

But beneath the veneer of a high-profile appeal lies a family torn apart by accusations of greed, manipulation and abuse. One side of the family declares Leiter a thief who stole from a woman unable to protect herself, while the other says the lawsuit is simply a smokescreen for the fraudulent acts of the other.

The conflict raises nebulous questions about when and how a person should be declared mentally incompetent and illustrates how difficult competency is to determine when the distractions of money and the emotions of family color the issue.

The Family

August H. Schmitz owned a church decorating company. A German immigrant, he painted murals in churches across the Midwest, lying on his back like Michelangelo. He and Roberta, his wife of almost 65 years, had seven children and lived in East Peoria. On Nov. 15, 1991, he created two irrevocable trusts. When he died at 79 on Jan. 6, 1992, the trusts went to Roberta. At the time they valued $ 588,000.

Roberta Schmitz hired Leiter just weeks after her husband died. His first bill on the file was dated Feb. 12. She fired John C. Brady, her personal and trust attorney and the one who drafted the trust agreements.

According to one son, Karl Schmitz, Roberta Schmitz fired Brady because he had cut her spending allowance and made restrictions on how she used her money. She hired Leiter on the recommendation of a friend, says Karl. Soon after, she had Leiter move the two trust funds from First National Bank of Peoria to South Side Trust and Savings Bank of Peoria.

The decision to fire Brady, the Schmitz's family attorney for 18 years, and decision to move the trusts concerned Roberta L. Cripe, Schmitz's daughter. Cripe says she tried to contact both her mother and Leiter, but was unsuccessful. Cripe says she had heard from another family member that her mother had lost weight and appeared anxious.

On March 12, 1992, Cripe filed a Petition for Appointment of Guardian for a Disabled Person in Tazewell County, Ill. The petition sought to have Matilda Preston, Roberta Schmitz's sister, named guardian. Two doctors concluded Mrs. Schmitz was competent and the petition failed.

After the guardianship hearing Schmitz moved to Bradenton, Fla., where she owned a condominium. Karl Schmitz says his mother moved in order to get away from the family bickering. Another daughter, Joan Kain, lived with her. Though her mother may have needed some assistance, she was capable of handling her own affairs, says Kain.

While she was in Florida, Mrs. Schmitz hired attorney Gregory Meissner to handle some matters with her will and was a patient of Dr. Bruce Hudson. In a deposition testimony both testified Schmitz was competent to manage her affairs, says David R. Sinn of Heyl, Royster, Voelker & Allen, the attorney defending Leiter. Leiter did not return phone calls for this story.

Kain says she was not able to be her mother's constant companion because of her work schedule and issues in her personal life. Kain offered to hire a home companion for her mother, but her mother did not want someone else in her home because she feared being taken advantage of by a stranger. Roberta Schmitz moved back to Illinois in October 1992.

In Peoria again, she lived with her son Karl until she moved to Independence Village, a retirement community where she lived alone.

Then, in late December 1992, Roberta Cripe came to Peoria to take her mother to Michigan for a short visit. The visit was supposed to last only a couple of weeks, but Roberta Schmitz has never returned.

After the turmoil of the previous year, Cripe says her mother wanted to stay in Midland, Mich., where she and August had come every summer to stay with Cripe and her family. In February 1993, two doctors evaluated Schmitz in Michigan and strongly recommended a guardianship for her, says Cripe. The doctors performed numerous tests to determine what caused her mother's forgetfulness and determined it was dementia, she says.

In March 1993, a Michigan court appointed Virginia Melchi as Roberta Schmitz's public guardian. But as Cripe learned more of her mother's financial affairs, and of Leiter's billing, it became apparent that a great deal of time would be needed to sort through the information, she says. Cripe says she felt she would have more time to deal with those issues than a public guardian. In November 1993, Melchi resigned as guardian and Cripe took over.

The Michigan guardianship and all the moves confused the bank and Leiter, according to Sinn. In February 1993, Leiter filed a complaint for Equitable Relief for Instructions and Order of Protection on behalf of the Trustee, South Side Bank. The complaint stated that disagreements among the Schmitz children made it impossible to allocate the trust assets and that it appeared her children were keeping Mrs. Schmitz from exercising her own free will regarding her property and personal care. Attached to the complaint was Leiter's affidavit stating his belief that Mrs. Schmitz was being abused by her children and that she needed the protection of the court.

South Side Bank later moved to dismiss the complaint after it learned Michigan had assumed jurisdiction over Mrs. Schmitz. However, a counter-complaint had already been filed by Roberta Cripe against the bank for honoring the invoices presented by Leiter, says the statement of facts in Leiter's Supreme Court appellant brief. In 1996, South Side Bank and the guardian settled.

On Oct. 24, 1994, Cripe filed the overbilling complaint against Leiter. The complaint states that the Leiter Group billed Roberta Schmitz a total of $ 65,933.50 for work done between February 1992 and June 1994. The complaint says Leiter overbilled Schmitz by $ 40,000. The multi-part complaint brings charges of fraud, legal malpractice, breach of fiduciary duty and violation of the Consumer Fraud Act. In July 1997, the 3rd District Appellate Court allowed the Consumer Fraud Act claim to be brought against an attorney. Leiter appealed and the Illinois Supreme Court heard oral arguments in May 1998.

Roberta Schmitz's trust pays for attorneys fees and the cost of the suit, because it is being brought to return assets fraudulently taken from the trust, says Cripe. Cripe's attorneys, Brad McMillan and Jeremy Heiple of the Heiple Law Offices in Peoria, are charging $ 70 an hour to represent Schmitz, Heiple says.

According to Cripe, Schmitz is now at the end stages of Alzheimer's disease. She can no longer speak coherently nor can she recognize her own children. She lives at the Stratford Pines, a nursing home in Midland, in a private room with her own bath.

The Allegations

The questions surrounding Roberta Schmitz's competency have divided the family, as have allegations that the five children who support the suit, in particular Roberta Cripe and Mary Ann Neuhaus, have taken advantage of their mother for their own financial gain. Doctors and social service agencies in Illinois, Florida and Michigan have come to different conclusions on whether Roberta Schmitz was capable of handling her own affairs.

The disagreement over Schmitz's competency clouds the issue of whether her children took property from her without permission. Although Schmitz has an irrevocable trust, she possessed jewelry, gold and silver coins, paintings and other personal property that her children wanted, says Karl Schmitz. Several of the items were taken without their mother's permission and have been distributed among the five children supporting the suit, he says.

Roberta Schmitz filed a police report of a burglary in Florida soon after her husband's death in 1992. A Bradenton detective investigated whether any of the children had taken the property, but no charges were filed against them. Later that year, on Roberta's behalf, Leiter sent a letter to all the children asking them to return property that belonged to her, says Schmitz

"It's black-and-white. Mrs. Schmitz did not want Mrs. Cripe or Mrs. Neuhaus to be her caregivers," says Kain. "She took steps to put things in order to make certain that did not happen, like having a durable power of attorney, a living will and a healthcare surrogate. Her statements were consistent. She felt they only wanted her money and what she had."

Schmitz had given her son Karl, who lives in Metamora, Ill., durable power of attorney and a healthcare power of attorney. However, when Roberta Schmitz went to Michigan she also gave a POA to Mr. and Mrs. Cripe, says Sinn.

Under Illinois law the durable power of attorney trumps the power of a guardian and a guardianship may not be appointed without notice given to the holder of a DPOA. In Michigan a guardianship will trump a power of attorney, says Josh Ard, an elder law practitioner at 60 Plus in Lansing, Mich. Generally, a person who has a durable power of attorney may not need a guardian, because the guardianship process is expensive and the court generally presumes the DPOA would have been chosen guardian as well, Ard says.

Karl Schmitz says he informed Michigan social services that he had the DPOA and the living will but they ignored him, he says. He also told his mother's doctors and healthcare providers in Michigan that he had the DPOA. The conflicting powers of attorneys confused the doctors and interfered with Roberta's care, says Cripe.

A Michigan court asked Karl Schmitz to surrender the DPOA and the living will. He didn't and in response, the court entered a bench warrant for contempt of court against him, he says.

Neuhaus and Cripe have tried to control their mother by regulating what visitors she may receive, what phone calls she can take and what topics visitors may discuss with her, say Karl and Joan.

"It's been a constant effort to put my mother in a position where she could not do what she chose to do about living her life," says Karl. "She told them in a family meeting on Nov. 17, 1992, that she wanted to get on with her life and that she wanted those who had taken things from her to return them."

Her mother may not have been able to live alone, says Kain, but she knew what she wanted and could handle her own affairs.

"Mom's doctor in Florida said we needed to keep the pressure off of her, because she was in an early stage of a dementia, but that does not mean you cannot function. The huge diagnosis of Alzheimer's at that point was ludicrous," says Kain. "I work with people on a daily basis who I swear have dementia and they function just fine. They are forgetful, but big deal."

Their mother would have been fine if not for the constant pressure on her, say Karl and Joan.

"Look at the timing for the petition for guardianship in Illinois. [The petition was filed in March 1992. August had died in January.] This was a woman who just lost her husband. For no other reason than that, you back off and leave her alone," says Kain. "Let her live her life and have time to grieve."

Cripe, who lived in Michigan at the time, filed the Illinois guardianship petition out of her mother's best interest, she says. Neuhaus says the doctors who examined their mother at the time of the hearing only examined her briefly.

Their mother had been showing signs of dementia while her husband was still alive, say Cripe and Neuhaus. She would forget where she left things, forget even how to do simple housekeeping chores like washing dishes and doing laundry. She relied on her husband to compensate for her failing mental health, they say.

"This is the face of Alzheimer's. It's Everyman. You meet people every day who are suffering from different degrees of it. There is no mole or abnormal bump. There is no rash -- no outward sign, but yet these people are hanging on by their fingernails," Cripe says. "They are trying so hard to cope with their fears."

Cripe says nothing was taken from their mother, but that she had forgotten she left some of the things mentioned in Illinois.

According to Neuhaus, her mother often forgot where she left things and then accused people of stealing. She also says her mother was more than forgetful, she was vulnerable to those who might want to take advantage of her.

"Any time there is a crisis in a family -- a loss of a parent or a terminal diagnosis -- we all know the first response is denial," Cripe says. "Two people in our family, one person in particular, could not deal with the facts showing that Mom was losing the ability to manage her own affairs. Her fearfulness came not because anybody was trying to do anything inappropriate, but it was her way of coping with her disease."

Roberta Schmitz is well provided for and approximately $ 400,000 remains in the trust, says Cripe. Her mother cannot talk on the phone any longer and letters to her mother come to her first, because family members have sent insensitive letters that troubled her mother in the past, she says.

"When a parent becomes elderly and frail it is the most devastating thing besides the loss of a child any family can go through," Cripe says. "I understand Karl's angst and pain at watching this happen to his mother, and maybe eventually he will come to understand the disease his mother is suffering from."

Karl has contacted the FBI, the Illinois State's Attorney and social service agencies in Michigan and Illinois, but they have not listened to him, he says. Kain says she wishes she could do more. "They are using the funds from the trust to pay for all of their legal endeavors and that is wrong," she says. "I am embarrassed that I don't have the funds to make all of this right."

The Lawsuit

After the Michigan court appointed a guardianship over Schmitz, Cripe looked at the bills Leiter charged her mother's trust and knew something had to be wrong, she says. The bills were too high for work done for one woman with two irrevocable trusts, she says. Whatever complications family disagreements may have caused Leiter in representing Schmitz, he cannot prove he did the work he claims, says Cripe.

Leiter did not itemize his bills. Invoices sent from the Leiter Group show total monthly charges for legal services, but no information on what services the bills covered, according to Cripe's complaint. More than a year after beginning to do work for Roberta Schmitz, and upon the request of then-guardian Virginia Melchi, Leiter wrote in specific time entries and fees charged by hand.

Mary Ann Neuhaus went through phone records and records of meeting times to determine where the bills came from. In Cripe's complaint she lists numerous instances where Leiter billed several hours for telephone calls that according to telephone records only lasted a few minutes or for ones that never took place at all. In addition, he charged approximately three times more for defending Schmitz in the Tazewell County guardianship hearing than Cripe's attorney charged her for bringing the claim.

Their parents were hard-working frugal people who would never have spent this kind of money, say Neuhaus and Cripe.

"This is about the billing, not anything else. I am a registered nurse in an emergency room. I deal with the nuts and bolts issues of life. It is just common sense that the bills were too high," Cripe says. "My mom and dad worked very hard to raise a family and to always do the right thing. Mom can't stand and speak for herself, but she never would have stood for this for 15 minutes."

Leiter is a general practitioner who does personal injury, probate and matrimonial cases and he does not specialize to any degree, Sinn says. The Schmitz case presented complicated questions on elder abuse and a considerable amount of time was spent on legal research, as well as time spent hand-holding family members, Sinn says.

In addition, by constructing the billing records after the fact, Leiter left himself open to a law suit, says Sinn.

"They went back and dug out all their individual time sheets and reconstructed an individualized billing retroactively," Sinn says. "The problem with doing an itemized billing retroactively is that you lose some of the description. The time units are there, but trying to recall what you did four years ago to generate that time unit is difficult."

Cripe sued Leiter for legal malpractice, breach of fiduciary duty, common law fraud, and for violating the Consumer Fraud Act. McMillan says he knew of the Consumer Fraud Act from defending former business clients against it and saw no reason why it shouldn't apply to attorneys.

A plaintiff may recover attorneys fees, costs and punitive damages under the Consumer Fraud Act, unlike a legal malpractice case, which does not allow for punitive damages or attorney fees. In addition, the Consumer Fraud Act requires a lower standard of care then common law fraud or malpractice. A person could be held liable even if no one was deceived by the action and even if the attorney has no deceptive intent.

The Act currently does not apply to attorneys, even though it contains a broad public policy against deceptive commercial practices and does not specifically exempt attorneys. According to one expert, only four states allow consumer fraud actions to be brought against attorneys.

"Our strongest arguments are the language of the statute itself and just common sense," says Cripe's attorney, Bradley S. McMillan. McMillan is also currently district administrative assistant to U.S. Rep. Ray Lahood (R-Peoria).

"Why should an attorney who allegedly sent out a fraudulent invoice be treated any differently from a doctor, accountant or even an auto mechanic who does the same thing? Following good, ethical business practices is completely consistent with the nobility of traditional lawyering. They are not inconsistent whatsoever. If you are a hard-working, honest attorney you don't have to worry about the Illinois Consumer Fraud Act."

The issue of attorney liability under the Consumer Fraud Act has divided Illinois bar associations. The Illinois State Bar Association and the Illinois Council of Defense Trial Lawyers say applying the act to attorneys would erode the Supreme Court's exclusive authority to regulate attorneys.

The Illinois Trial Lawyers Association and the Chicago Council of Lawyers support applying the Fraud Act to attorneys, saying attorneys should abide by the same laws other businesses and professionals do. HALT, a national public interest organization supporting legal reform, also filed an amicus in support of applying the act to attorneys.

Neuhaus says her mother's case has made her an activist. She has written to Illinois Attorney General Jim Ryan about Leiter's representation and has circulated a petition to convince Ryan to write an amicus brief on the case. The attorney general refused, but the office is monitoring the litigation, says a spokeswoman.

In addition, Neuhaus has written to her state senator and spoken with representatives from the Illinois Department on Aging to change the guardianship procedures. Currently the person making the request for guardianship bears the burden of proof. The court requires a report from a physician containing his or her opinion on the person's competency and the doctor's reasons for it. Neuhaus would like to see standard procedures put into place for all guardianship hearings that require more evidence to be presented.

The Effects

The Illinois Supreme Court should rule early this fall on the applicability of the Consumer Fraud Act to attorneys and the case will go to trial soon after that. The case has already left its mark on the practice of law in Illinois. Sinn says he currently is defense counsel for three consumer fraud cases against professionals, two involving divorce attorneys and one involving a dentist.

The turmoil of this litigation goes beyond its effect on attorneys, says Sinn. The family should have resolved its differences over Roberta's care through a family counselor, not litigation. The strong emotional component of this case, like divorce cases, for example, easily opens an attorney to fraud charges by disgruntled clients.

He says allowing a Consumer Fraud Act claim will be an invitation to greed and self-destruction in the legal profession.

"I bet you if Heiple and McMillan tell you their fees, they would run in excess of $ 100,000. What if the jury finds that Tom Leiter overbilled by $ 8,000, or by not at all, then Heiple and McMillan take $ 100,000 out of that trust? Now is that irony or hypocrisy or both?" Sinn says.

Even though the costs of proceeding with the litigation outweigh the amount of money they believe Leiter overbilled their mother, they will continue with the case, says Neuhaus. Unlike others who might be in a similar situation of attorney fraud, they were fortunate to have the funds to finance the litigation, she says.

"We will continue this, even if it takes every penny of our inheritance as long as Mom is cared for," Neuhaus says. "If we can put things in place that will help others, mom and dad would have been proud of us. They would have wanted us to do it and that is what drives us."

Unfortunately, Mrs. Schmitz can no longer articulate what she wants, and even if she could it's questionable whether her children would agree that she is competent to make that request.

"It's not a matter of what my father wanted. It's not a matter of what Mary Ann Neuhaus or Roberta Cripe think that my father wanted. My mother was an adult. She made choices," Kain says.

Schmitz's declining capacity, the death of her husband and her children's inability to agree on her care have cost her family years of personal anguish and strife. Upon the recommendation of Schmitz's old friend, Leiter became embroiled in center of this family's conflict. Whether through avarice or careless billing practices, he now stands accused of defrauding an elderly woman in a precedent setting case.

An Everyday Tragedy That Confounds Attorneys

Whether or not Tom Leiter overbilled his client for hours not worked, he probably took on more than he bargained for when he accepted Roberta Schmitz's file. Elder law practitioners say disagreement among family members about the care for an elderly client are common and that no clear rule exists to determine when the client can no longer manage her own legal affairs.

"If the family does not agree or does not trust each other, each member of the family wants their own personal explanation from the attorney. Every one of them questions what you do," says Janna Dutton, a certified elder law attorney at Janna Dutton & Associates in Chicago.

"Where you have an elderly person who is somewhat impaired, maybe not to the extent where a guardian is appointed, they are easily influenced. The client wants you to talk to everyone in the family, because they don't want to deal with pressures from the family members," she says.

As the client's advocate, the rules of professional conduct advise practitioners that they should treat their clients as though they are competent to handle their own affairs, as much as possible, says Steven C. Perlis, an attorney at the Family Center for Elder Law in Arlington Heights.

The question of capacity turns on a subtle and difficult analysis of the facts presented by each individual case, and on what activities are in question, says Barbara N. Fox, an elder law practitioner at Ray, Fleischer and Fox in Chicago. Being able to watch over an attorney's billing requires a different level of competency than being able to sign a will, she says. Presenting medical testimony along with witnesses who know the allegedly disabled person on a daily basis at trial is the only way of finding the answer, she says.

"It's a philosophical problem. People with early Alzheimer's can do all sorts of things and you don't want to restrict their rights to life, liberty and the pursuit of happiness and representation by an attorney. So we favor autonomy," says Fox.

"But at some point we get protective and say to hell with freedom and autonomy. It's a continuum, we have the tug and pull of those two concepts and which one takes precedence depends on the facts," she says.

If the client favors one child over another in estate planning or begins to give money away to churches or next-door neighbors, she will examine her client's action more closely, says Dutton. If she becomes concerned she will advise her client to undergo a cognitive assessment at an Alzheimer's clinic for example, she says. In deciding competency, Dutton follows the Illinois guardianship standards, which require a doctor's report containing an explained opinion on whether the person can handle her affairs, she says.

"The problem with attorney's fees is that you have the attorney deciding competence, so it is an inherent conflict of interest," says Fox. "If it's an Alzheimer's patient, I send a copy of the bills to a child. I bill the client, but I let somebody else see them so they can question the billing. That eliminates my conflict."

The Schmitz case with warring family members demonstrates that attorneys, acting as litigators, should not resolve these disputes, says David Sinn, Leiter's attorney.

"It's a mini-tragedy that plays itself out tens of thousands of times every day in this country. The lesson that this case teaches all of us as a nation is that family disputes are not efficiently handled in our court system," he says. "These people would have done much better to spend their time in pastoral counseling or in a psychology clinic getting professional counseling. Litigation is expensive and this family learned that."

The History of Cripe v. Leider

Jan. 6, 1992 August H. Schmitz dies in East Peoria.

Feb. 12, 1992 Leiter's first recorded bill for Roberta Schmitz from Leiter's Peoria office.

March 12, 1992, Cripe filed a Petition for Appointment of Guardian for a Disabled Person in Tazewell County, Illinois.

April 21, 1992 guardianship petition denied.

After the guardianship hearing Schmitz moved to Bradenton, Fla.

October 1992 Roberta Schmitz moved back to Illinois.

Late December 1992, Roberta Cripe came to Peoria to take Mrs. Schmitz to Michigan for a short visit

February 1993 Mrs. Schmitz was evaluated by Michigan doctors.

In March 1993, a Michigan court appointed Virginia Melchi as Roberta Schmitz's public guardian.

In November 1993, Melchi resigned as guardian and Cripe took over.

On Oct. 24, 1994, Cripe filed the complaint against Leiter. The complaint states that the Leiter Group billed Roberta Schmitz a total of $ 65,933.50 for work done between February 1992 and June 1994. The complaint says Leiter overbilled Schmitz by $ 40,000.

In July 1997, the Third District Appellate Court allowed the Consumer Fraud Act claim to be brought against an attorney. Leiter appealed and the Illinois Supreme Court heard oral arguments in May 1998.