Guardians Ad Litem Are Not Independent Professional Advisors; Attorney Matt Bracy Explains

The sale of a structured settlement to a factoring company will involve a court proceeding. It may also involve an independent professional advisor or a guardian ad litem. In this report, attorney Matt Bracy explains the differences between the two.

Matt Bracy

Matt Bracy

The independent professional advisor is envisioned by the Structured Settlement Protection Act. A guardian ad litem, on the other hand, is a court-appointed officer, probably a lawyer. Bracy says that courts are authorized to appoint guardians ad litem whenever they feel one is needed, typically for minors or for people who are incapacitated and not competent to act in their own behalf. GALs “are officers of the court, and they report directly to the court.”

Independent professional advisors, on the other hand, are lawyers or actuaries who provide advice to the seller of a structured settlement. The Settlement Protection Act requires factoring companies to advise prospective sellers to seek advice. As Bracy points out, in the majority of states, the seller of a structured settlement can seek that advice or can waive the right to receive such advice. In either case, a written document must be submitted to the court so that the seller’s choice is clearly documented.

Bracy says that the right to waive receiving the advice is important. Some states require a seller to have the independent advisor. It matters, Bracy feels, because the advice is not free; a structured settlement seller will have to pay the advisor. Whether the payment is made in advance of the hearing or at the time the settlement is sold, there must be a payment by the seller. Requiring the services of an advisor seems to contravene our system of allowing people to make their own choices in litigation.

Bracy adds that, in a lot of cases, it is important for a prospective seller to seek advice. “It’s very important for people to be . . . aware of what their legal rights are.” But, he says, he would never force someone to make that decision. Bracy suggests that a lot of structured settlement sellers know exactly what they are doing and shouldn’t be forced to pay for advice they don’t need.

The independent professional advisor—a lawyer, for example—will have an attorney-client relationship with the seller. The advice given will be privileged. That means that no one would be able to ask about the substance of the conversations between the seller and the advisor. All a seller has to do to satisfy the statute is to affirm that advice was sought and received. Nothing further needs to be disclosed.

On the other hand, a guardian ad litem is an officer of the court, acting on behalf of the judge. That means that the judge who appoints a guardian ad litem will be able to ask the guardian in open court to discuss all conversations with the seller. This is a very big difference from the usual situation.

Matt Bracy is a partner in Scheef & Stone, L.L.P., Dallas, Texas, representing businesses and business owners in the areas of general business law, contract negotiations and drafting, business formation, transactions, collections, commercial litigation and government relations. Over his career he has represented diverse businesses and individuals in private practice, and in-house as General Counsel and Director of Government Relations for multi-million dollar companies. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Society of Jesus Settles Another Sexual Abuse Claim involving Father Donald O’Shaughnessy

A man who alleges he was abused by the late Jesuit priest Father Donald O’Shaughnessy has settled his sexual abuse claim. The Chicago-Detroit Province of the Society of Jesus has paid $950,000 to settle the case. The victim had attended the Loyola Academy in Wilmette. Chicago trial lawyer Eugene Hollander represented the plaintiff. He also represented another victim of Father O’Shaughnessy’s abuse in a case discussed in this earlier LBN report. Hollander explains the latest claim in this report.

Eugene Hollander

Eugene Hollander

Father O’Shaughnessy was a Jesuit priest for over seventy years. He served in Chicago and several other places around the country. Hollander explains that the matter in question was a civil claim that was settled by the Society of Jesus. Hollander maintains that the Society knew or should have known of Father O’Shaughnessy’s sexual predilections before the time of the sexual abuse. While the Society has settled the claim, there is no admission of liability as part of the settlement agreement.

As to changes in Society policy, Hollander says he is not aware of any particular changes that may have been made. The Society has not objected to having Father O’Shaugnessy’s name listed on bishopaccountability.org. The site lists priests who have been accused of sexual molestation. [Note: the name was not listed on the site as of July 3, 2015.]

Hollander says that his client is relieved to have this chapter of his life closed. He wants to move on with his life.

Eugene K. Hollander is a principal in the Law Offices of Eugene K. Hollander, Chicago, Illinois. He has served as a prosecutor with the Cook County State's Attorney's Office, where he successfully prosecuted numerous individuals on the trial and appellate levels. Before opening his own office, Mr. Hollander associated himself with several aggressive litigation firms where he represented a Fortune 500 corporation in the defense of its labor claims, and successfully defended a class action contract claim at trial. He was recently selected as an Illinois Super Lawyer based on a statewide survey of practicing attorneys. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Hillary Clinton’s Campaign Is Exploiting Race to Get Out the Vote

LBN’s Bob Donley opines that Hillary Clinton’s campaign is not attempting to ease racial tensions in the country so much as to exploit them to boost the turnout of African-American voters in November, 2016. He explains his view of the Clinton campaign in this report.

In an earlier LBN report, Donley remarked that Democrats were using racial tensions to boost their campaigns. Not everyone agreed with him, he notes. But recently, Hillary Clinton traveled to Missouri to discuss the topic of race just four miles from where Michael Brown was shot by a police officer. And she has continued to speak about race. As the New York Times said, "Mrs. Clinton has become the presidential candidate at the forefront of [the racial] discussion."

Donley relates that he grew up in the South, in New Orleans. He says that he led and participated in several civil rights demonstrations. He adds, “I even ran away from my home as a teenager when my parents told me a black friend could not come into our house because of the color of his skin.” It was, he says, a time when Americans were working to achieve inclusion. “I do not get that same feeling today.”

Donley feels that, in today’s world, there is increasing pressure to separate people of different ethnicity, not unite us. And heightened racial tension is not a good thing. Donley asks Clinton to “start acting like a real leader.”

The Legal Broadcast Network is a featured network of the Sequence Media Group.