Lawyers who filed Danieal suit rise to own defense

A LAWYER retained by an attorney who has filed a civil suit against the city, the Department of Human Services and others in the case of 14-year-old Danieal Kelly, yesterday told reporters that his client and another attorney "deserve our applause, not our criticism, not our vitriol."

George Bochetto, a prominent city attorney, also asked Mayor Nutter and District Attorney Lynne Abraham to apologize to his client, Brian Mildenberg, and to Eric Zajac, co-counsel in the suit, for their comments last week following publicity and outrage over the lawsuit, first reported by the Daily News.

"They [the mayor and the D.A.] have gone too far when they blame these two fine young lawyers as being part of the problem; they are part of the solution," Bochetto said at a news conference at his Center City office, with Mildenberg at his side, and Zajac and public-relations specialist Frank Keel standing nearby.

Bochetto also insisted yesterday that the lawsuit, which they stress was filed on behalf of the estate of Danieal Kelly, was done to serve the parents' other children, not to benefit the parents.

Bochetto and Mildenberg said that they convened the news conference to correct inaccurate statements in the media.

Mildenberg also told reporters that he has received death threats via phone calls to his office and through Internet blogs.

With regard to an apology, Doug Oliver, Nutter's spokesman, said : "There's not going to be one. This entire legal circus deserves no further attention or comment. [The mayor] said what he said. He meant what he said."

The D.A.'s office, in response, sent out a statement saying it "is preparing for trial in the very serious criminal case against those arrested as a result of the District Attorney's grand jury investigation. We have no further comment about the civil case."

Danieal, who had cerebral palsy, was found dehydrated and starved to death Aug. 4, 2006, in her mother's Parkside home, lying in her own feces, with maggot-infested bedsores. Following the grand-jury investigation, her mother was charged with murder July 31. Her father, who was not living with Danieal at the time, was charged with endangering his daughter's welfare.

Last September the father, Daniel Kelly, retained Mildenberg as his civil attorney; the mother, Andrea Kelly, then retained Zajac.

The lawyers have criticized the media for portraying the parents as the ones who were suing (as opposed to the estate), and for saying that the parents wanted money.

The wrongful-death suit filed in Common Pleas Court Aug. 1 lists as plaintiff: "The estate of Danieal Kelly by and through the administrators of the estate, Daniel Kelly and Andrea Kelly."

Mildenberg first filed a wrongful-death suit Oct. 8 of last year on behalf of the father in federal court. Then, on Oct. 29, he withdrew the suitand notified Common Pleas Court that he would be filing the lawsuit there.

Since the Aug. 1 filing, the suit has been moved to federal court by defendants in the case.

Bochetto yesterday said that Mildenberg had "guts" to stand up for Danieal's 11 siblings.

"If there's a manner of obtaining for them compensation, some benefits to make their lives a little bit better, to help get them some schooling, some education, a decent home, then it is incumbent upon any lawyer to attempt to get that for them," Bochetto said.

He added: "How are we going to get those children compensation? It doesn't happen automatically. If some lawyer doesn't step forward and bring the action that benefits these children, it doesn't happen."

Orphans' Court, Bochetto said, will ultimately decide who, if anyone, will get proceeds from the suit, and will decide if Mildenberg and Zajac "will be compensated, and if so, in what amounts."

In light of the parents' criminal charges, Mildenberg and Zajac last Tuesday filed a petition in Orphans' Court asking the court to appoint retired Judge Abraham Gafni as trustee to the estate.

In the petition, they also asked the court to approve a settlement agreement, in which, if one parent were disqualified from any proceeds, the other, as sole beneficiary would put one-third of "all net benefits" into a trust to serve the children of the parent who was disqualified from the proceeds. The parents had signed off on the agreement July 24, according to a a document Mildenberg and Zajac first provided to the media last Tuesday.

In that document, the lawyers agreed that they "will seek to share an attorney fee subject to court approval" of 33.3 percent of the proceeds resulting from the suit.

The city's register of wills on Wednesday vacated Andrea Kelly as an administrator of the estate, leaving the father as sole administrator.

The register did so based on the Slayers Act, which says that anyone who intentionally and unlawfully kills someone cannot benefit from that person's death. *