by Anne M. Rudolph
A Lawyer Is a Lawyer Is a Lawyer
An Examination of the Role to be Played by an Appointed Attorney in a Probate Code Conservatorship Case, with a few Comments on the Role to be Played by a Guardian ad Litem
Attorneys appointed to represent conservatees and proposed conservatees in California’s courts are knee-deep in important personal and constitutional issues. Every day across the state, private citizens use the courts to deprive other private citizens of their freedom and control of their property. Although a conservatorship proceeding is classified as a “Protective Proceeding,”1 a conservatorship case is fundamentally adversarial, and a court’s imposition of a conservatorship of the person and estate on an individual has been described as, “in one short sentence, the most punitive civil penalty that can be levied against an American citizen . . . .” 2
Although attorneys have a general obligation to be zealous advocates for their clients,3 attorneys appointed to represent (proposed) conservatees in probate courts are routinely encouraged and even required to provide the courts with reports regarding their clients, the contents of which often violate the attorneys’ duty to be a zealous advocate.4 The practice of requiring the appointed attorney to report to the court exists in part, because a conservatorship proceeding can be seen as grounded in the state’s historical “most beneficent function” to act as parens patrice of its disabled citizens.5 With this background of protection and assistance, the adversarial nature of the “Protective Proceeding” has been minimized or ignored even though the proceeding is designed to deprive a citizen of liberty and property.
The practice of requiring or encouraging appointed attorneys to report to the court about what the attorney believes is in the best interests of the (proposed) conservatee should be terminated, and California should instead follow uniform procedures effective throughout the state that encourage appointed attorneys to fulfill their duty to act solely and only as zealous advocates for their clients.
The conclusion that a California attorney appointed to represent a (proposed) conservatee must act as a zealous advocate for the client and not as a reporter to the court lies at the intersection of the two most basic rules governing California attorneys. The first of these rules, Business and Professions Code section 6068, subdivision (e)(1), requires the attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The second of these rules is the attorney’s duty of absolute fidelity to the client. In Flatt v. Superior Court, the California Supreme Court instructed attorneys that,
It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts and circumstances. By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests. Nor does it matter that the intention and motives of the attorney are honest. The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.” 6
The attorney who files a report with the court regarding his or her interactions with a client, describing his or her conclusions about the case (which might differ from the client’s), or describing communications with the client, violates both the duty of confidentiality and the duty of fidelity.
The duties of confidentiality and fidelity are particularly strict in California. Every other state has adopted a form of American Bar Association Model Rule 1.14, which allows attorneys to take limited actions to protect their clients with diminished capacity, actions that can range from seeking the appointment of a guardian ad litem to seeking the appointment of a conservator.7 A California attorney dealing with a client with diminished capacity cannot take the same actions, because the California Supreme Court has refused to adopt any version of Model Rule 1.14, a position it ratified in May, 2018.8 In the eight years preceding 2018, the Board of Trustees of the State Bar of California worked with interested parties on the “herculean task” of amending the California Rules of Professional Conduct.9 Ultimately, the State Bar submitted 70 proposed new or amended rules to the Supreme Court. One of the proposed new rules was a version of Model Rule 1.14.10 The Supreme Court approved 69 of the proposed rules, with some amendments.11 The only proposed rule that the Supreme Court rejected completely was the proposal to adopt a version of Model Rule 1.14 in California.
There can now be no doubt that confidentiality and fidelity are central to an attorney’s practice in California, regardless of whether the client may have diminished capacity. The legislature and the Supreme Court have spoken, and probate practitioners should take them at their word. The rules they have imposed do not have exceptions for historical practices in the probate courts. Attorneys must be loyal only to their clients. Attorneys cannot reveal the confidences of their clients under any circumstances whatsoever. Attorneys must be zealous advocates and are not permitted to resolve their client’s interests contrary to the client’s wishes. There is no room for maneuver.
II. Two Cases Illustrate the Problems Inherent in Requiring an Appointed Attorney to Report to the Court
Two cases, Conservatorship of Schaeffer12 and Conservatorship of Cornelius,13 illustrate the dangers of a system that requires attorneys to stray from their roles as loyal, confidential and zealous advocates and to, instead, function as reporters to the court. In both Schaeffer and Cornelius, appointed attorneys openly acknowledged that they were pursuing courses of action that directly contradicted the stated desires of their clients. In both cases, the attorneys reported on conversations with their clients, and conceded major issues, including the attorney’s opinion regarding the need to impose a conservatorship in the first place. In both cases, the filed reports ran afoul of the dictates of Business and Professions Code section 6068, subdivision (e)(1), and Flatt v. Superior Court, but the trial and appellate courts treated the reports as business-as-usual.
This article does not criticize the attorney who filed the report in either case but, instead, criticizes the system that required the reports. That system should be changed so that appointed attorneys can function as attorneys for their clients, as required by law. That the appellate courts in Schaeffer and Cornelius quoted so extensively from the reports and expressed no shock or surprise at their content illustrates how far the appointed attorney’s role in conservatorship practice has deviated from fundamental California law.
A. Conservatorship of Schaeffer
Conservatorship of Schaeffer reveals the dangers of a system requiring an appointed attorney to report to the court, not only because of the problematic content of the attorney’s report itself, but also because the failure to present the case as an adversary proceeding blinded the parties and the courts to the due process rights of the (proposed) conservatee.14 In Schaeffer, a woman petitioned for appointment as her husband’s conservator. The court appointed an attorney to represent the proposed conservatee. The appointed attorney filed a report that was placed in the file and was available to all parties, but he did not serve the report on the parties’ attorneys. In the report, the attorney gave his opinions about the state of the marriage, and “reported that Mr. Schaeffer needed a conservator, but that he had said that he did not want Mrs. Schaeffer or any member of his family to be appointed.”15 The court appointed a professional conservator.
Shortly thereafter, Mrs. Schaeffer petitioned to remove the professional conservator and for her own appointment as conservator. The appointed attorney again reported to the court. This time, he reported that he believed that Mrs. Schaeffer had improperly closed her husband’s IRA. He also reported his conclusion that Mr. Schaeffer had told his associate that, “he [Mr. Schaeffer] wanted Mrs. Schaeffer to be the conservator, but only because she had pressured him.”16 The attorney then – contrary to his client’s stated desire — recommended that Mrs. Schaeffer not be appointed as successor conservator, due to the appointed attorney’s conclusions that she had acted inappropriately with respect to his finances.
The appointed attorney asked the court to review his second report report in camera, and not to disclose it to the parties’ attorneys. The court reviewed the report privately and, over the opposing attorney’s objections, sealed it, ruling that the report, “is to be reviewed by the court only. That’s what we usually do, and it will not be available.”17
The appellate court reversed, holding that the trial court’s decision to withhold the report from the other parties violated Mrs. Schaeffer’s rights to due process. The report contained the attorney’s conclusions about Mrs. Schaeffer’s financial dealings with her husband’s IRA and included hearsay allegations about her relationship with her husband. Since Mrs. Schaeffer could not contest this unfavorable evidence, the court concluded that her due process rights had been violated, and reversed the trial court’s judgment.
The appointed attorney’s reports violated the requirements of Business and Professions Code section 6068, subdivision (e)(1), and Flatt, supra. The reports: (i) conceded the main issue, i.e., that a conservatorship was required; (ii) revealed confidential communications between the client and the attorney’s associate; and (iii) took a position regarding the identity of the proper conservator that directly contradicted his client’s instructions. Both the trial court and the appellate court relied on the reports and treated them as evidence. Neither court, though, considered the propriety of the attorney’s reports themselves, and their impact on the (proposed) conservatee’s rights. The case was decided on the basis that the trial court’s “private investigation”18 using the attorney’s sealed report violated the due process rights of the petitioner – Mrs. Schaeffer. The appellate court gave no consideration whatsoever to the due process rights of Mr. Schaeffer, the proposed conservatee, although his freedom and his right to control his property were the central issues, and his due process rights, too, had been violated.
A. Conservatorship of Cornelius
Conservatorship of Schaeffer was published in 2002. Conservatorship of Cornelius,19 published in 2011, again illustrates how an attorney who is called upon to report to the court concerning his or her client’s situation can run afoul of the dictates of both Business and Professions Code section 6068, subdivision (e)(1), and Flatt.
In Cornelius,20 a trial court in Sonoma County established a temporary conservatorship of the person of a man at his daughter’s request. At the first hearing on the permanent conservatorship, the court appointed an attorney for the proposed conservatee, and continued the trial. The court expressly directed the attorney to file a detailed report and, a few weeks before trial, the appointed attorney “filed an extensive report with the court.”21 The appellate court noted that, “[a]s the court directed, the report included background facts, factual and legal analysis and recommendations ‘to assist the court in making a determination as to the course of action that would best serve the interests of the proposed conservatee.’” 22
The appointed attorney’s report reflected numerous interviews the attorney had conducted. It “confirmed that Cornelius associated with people who lived in his house rent-free, ‘obtained money and credit cards from him,’ and operated a marijuana farm.”23 The attorney “dismissed [her client’s] claim that the events giving rise to the conservatorship were isolated and that a conservatorship was no longer necessary.”24 The report admitted the conservatee’s deficits and pointed out that his situation had improved during the six months of the temporary conservatorship. Quoting from the report itself, the Court of Appeal observed that the appointed attorney had reported:
[T]hat [her client] was “unable to manage his own financial resources or resist fraud or undue influence, and a conservatorship of the estate would be appropriate and necessary,” and recommended appointment of a professional fiduciary as conservator of his person and estate. The attorney noted: “Many of my recommendations are contrary to many of Mr. Cornelius’s stated wishes to me, but the majority of Mr. Cornelius’s objections and the course of action he suggests are inappropriate.” 25
Mr. Cornelius did not agree with the appointed attorney. His position was that the people seeking and implementing the conservatorship had been an “assemblage of busy-bodies.”26 After several hearings and proceedings, the daughter dismissed her petition. The court then ordered that the man’s estate was to pay “the temporary conservator, attorneys, and providers.”27 The man appealed.
The appellate court, determined that, “[t]he deciding factor in awarding reimbursement in a conservatorship proceeding is not whether a permanent conservatorship is established but whether expenses were incurred in good faith and in the best interests of the proposed conservatee.”28 The court referred extensively to the factual details and admissions contained in the appointed attorney’s report as evidence showing that the petition had been filed, and the expenses had been incurred, in good faith.
The Cornelius court treated the appointed attorney’s report as evidence to support its conclusion that the man’s estate had to pay the fees. However, it did not analyze whether the trial court properly should have required the report in the first place, and did not consider the ethical questions raised by the content of the report. As in Schaeffer, the attorney’s report was a clear breach of her duty of loyalty to her client under Business and Professions Code section 6068, subdivision (e)(1), and Flatt. She openly dismissed his asserted positions in favor of her own conclusions. The report revealed confidential communications that she was forbidden to reveal. She concluded that her client should be subjected to a conservatorship, citing some actions, including that he let people live with him rent-free and let other people use his credit cards, that are not against the law and that a free and competent adult can undertake if he or she wishes. Those facts could and should have been presented by the people seeking to impose the conservatorship, not by the attorney who was supposed to be advocating on behalf of the proposed conservatee. To add insult to injury, the appointed attorney’s report in the end served as important evidence supporting the court’s conclusion that the petition for conservatorship was filed in good faith; evidence that cost her client money.
III. The Problems This Article Deals With
The authors have written this article because different counties in California (and even different judges within the same county) have different approaches regarding the role of an attorney appointed to represent a (proposed) conservatee in a Probate Code conservatorship case. The different practices place attorneys at risk regarding their duties and obligations to their clients under Business and Professions Code section 6068, subdivision (e)(1), and Flatt. They also raise due process and equal protection constitutional concerns.
The current CEB Practice Guide, California Conservatorship Practice, takes note of the varied practices around the state, observing that attorneys and judges have differing views on the attorney’s duties when the “client wishes to take a position that the attorney believes is antithetical to the client’s own interests.”29 According to the Guide, “[o]ne school of thought considers the attorney – even one appointed by the court – to be a zealous advocate for the client’s wishes.”30 The other school of thought, “gives the court-appointed attorney the professional discretion to conclude that the course of action selected by the partially impaired client is not appropriate [and to] make recommendations contrary to the client’s stated wishes.”31 The Guide concludes, “[u]nless a reported decision or new legislation offers further guidance in this area, ultimately local custom and the preferences of each court will point toward the approach to be taken by counsel.”32
This article argues that the “further guidance” has already been provided. An attorney who maintains the client’s confidences and who is completely loyal to the client as required by existing California law cannot act as a reporter to the court. The attorney cannot tell the court what the client has said without consent, cannot ignore the client’s stated desires and goals, and cannot advocate something that the client does not want. Only the court can determine the capacity of a (proposed) conservatee, and the attorney has no business ignoring instructions from a client who is presumed to have capacity. Even after the establishment of a conservatorship, “[a] person . . . may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.”33 Whether the individual has these capacities is to be determined by the court, not by his or her attorney, appointed or not.
The California attorney is required to be a loyal, confidential and zealous advocate for the client regardless of the client’s mental condition. Local customs and judicial preferences have no place in the analysis of the appointed attorney’s fundamental role.
IV. The Approach Taken by this Article
This article will begin by exploring the important historical role of the parens patriae doctrine in the development of rules of practice in conservatorship cases. It will then examine the relatively-recent history of efforts to focus courts and attorneys more specifically on the rights of the (proposed) conservatee.
After this historical discussion, the article will examine the two ways an attorney can be appointed to assist the court in a conservatorship case. First, the court can appoint an attorney to represent the (proposed) conservatee.34 Second, the court can appoint an attorney to act as guardian ad litem.35 The article will compare and contrast the roles and powers of appointed attorneys with the roles and powers of guardians ad litem. It will also discuss the restrictive wording of Probate Code section 1003,36 and the limits it places on probate courts when appointing guardians ad litem for proposed conservatees.
The article will examine the current state of California’s law governing the role to be played by an appointed attorney. It will discuss the ways different states have approached the role to be taken by a (proposed) conservatee’s attorney. It will examine the various sources of law governing the attorney’s role, ranging from the common law, to statutory law, to constitutional law. It will discuss the appointed attorney’s appropriate role in a conservatorship proceeding, and the various interests at play in determining the appointed attorney’s role. It will compare the appointed attorney’s role to the role of a guardian ad litem. It will survey various recommended uniform practices, and will conclude by recommending that California’s probate courts uniformly acknowledge that California law requires the appointed attorney to act as a zealous advocate for his or her client’s interests as expressed and obtained from the client – the (proposed) conservatee – with no duty to act as a reporter or an advisor to the court.
Since the article focuses on the role of the attorney, it will not discuss the role of the court investigator. However, given the article’s emphasis on the role of the guardian ad litem and its conclusion that the appointed attorney should be an advocate and should not be a reporter to the court, it appears that it would be helpful if investigators were sensitized to the potential need to report to the court, not just regarding the potential appointment of an attorney,37 but also regarding the potential need to appoint a guardian ad litem.
As inheritors of English common law, we find the basis of our conservatorship laws in the doctrine of parens patriae, the doctrine that made the King of England his country’s parent, with the duty to protect his disabled citizens.38
Although states in post-Revolutionary America were reluctant to retain the traditional powers of the King, state legislatures accepted the doctrine of parens patriae and used it to justify the jurisdiction they assumed to care for their incapacitated citizens.39 “Although courts did not want American democracy to retain the traditional powers of the King, parens patriae authority was seen as benevolent and consistent with the duty of the state to protect those who could not protect themselves.” 40 California’s courts affirmed the doctrine of “parens patrice,” as early as 1876.41 The state’s authority and power under the doctrine of parens patriae are extensive. The United States Supreme Court has explained that the powers of both King and Parliament passed to the people of the United States, and “here, the legislature is the parens patrice and, unless restrained by constitutional limitations, possesses all the powers in this regard which the sovereign possesses in England.”42
In the nineteenth and early twentieth centuries, different states implemented protective proceedings for incapacitated adults without uniformity. In 1987, the Associated Press undertook a nationwide study of protective proceedings for adults and published a series of articles criticizing the treatment of disabled adults.43 The United States House Select Committee on Aging studied protective proceedings in response to the articles.
The AP articles and the congressional inquiry “precipitated a rush to reform state guardianship laws,” with various improvements, emphasizing “enhanced due process in the appointment of a [conservator], including provisions for a hearing, notice, presence of the respondent, and representation by counsel . . . . “44 The development of the right to counsel has been inconsistent, and not all states implemented a right to counsel.45 The development of the role that an appointed attorney is to play in conservatorship proceedings has also been inconsistent, and there is debate over the role properly to be played by an attorney appointed to represent a (proposed) conservatee.46 Most states, though, have more flexibility in defining the appointed attorney’s role than does California, because most states have adopted a version of ABA Model Rule 1.14 (discussed below).
VI. The Distinctions Between the Role of the Appointed Attorney and The Guardian Ad Litem
Since the court can appoint either an attorney or a guardian ad litem, or both, it makes sense to ensure that the powers and duties of both the attorney and the guardian ad litem are understood. A focus on just one of the court’s tools risks an over-emphasis on that particular tool as a solution. If a carpenter has just a hammer, every problem looks like a nail. We have to understand the role of the guardian ad litem in order to understand the role of the appointed attorney.
A. The Guardian ad Litem Derives His or Her Authority From the Court; The Appointed Attorney Derives His or Her Authority From His or Her Client
A key to understanding the difference between the roles of the appointed attorney and the guardian ad litem is to understand that their sources of authority are different.
The guardian ad litem is a special agent of the court directly responsible to the court and the source of the guardian ad litem’s authority is the court’s authority under parens patriae. “The court is, in effect, the guardian — the person named as guardian ad litem being but the agent to whom the court, in appointing him (thus exercising the power of the sovereign State as parens patrice) has delegated the execution of the trust; and through such agent the court performs its duty of protecting the rights of the infant or incompetent person.”47 Stated in a slightly different manner: “[t]he guardian ad litem, therefore, when representing an adult deemed incapable of representing himself or herself, is in a similar role to a conservator, who derives his or her authority from the power of the state to protect incompetent persons.”48 The guardian ad litem investigates the situation, determines the (proposed) conservatee’s interests in the guardian’s opinion, and reports the guardian’s determination of those interests (or advocates those interests through an attorney) to the court.
An appointed attorney is an officer of the court, but is not a direct agent of the court. Attorneys are agents of the client, and the attorney’s authority flows from the client under the laws of agency.49 The appointed attorney’s duty of loyalty is only to the client.50 The appointed attorney’s role is to investigate the situation and work with the client to determine the client’s interests as articulated by the client and represent the client’s interests in court.
B. The Guardian ad Litem is More Than an Attorney and Less Than a Party
Courts have said that the “guardian ad litem’s role is more than an attorney’s but less than a party’s.”51 Thus, for example, “[t]hough an attorney must zealously advocate for her client, she cannot unilaterally appeal …. or bring a motion to dismiss. . . . A motion to dismiss requires the authorization of the [client] or, if the [client] is incapable of giving authorization, the authorization of a guardian ad litem acting on the [client’s] behalf and in the [client’s] best interests.”52 The attorney can only act if the attorney is acting as the agent of an authorized decision-maker; either the client or a guardian ad litem. The attorney is not a decision-maker.
C. A Guardian ad Litem Is Not an Advocate
While an attorney is an advocate for the client’s wishes, a guardian ad litem determines the best interests of the (proposed) conservatee and represents those interests, but is not an advocate.53 If the guardian ad litem is to advocate for the (proposed) conservatee’s interests, he or she properly retains an attorney.
D. The Attorney is Not a Witness. The Guardian ad Litem Reports to the Court and May be a Witness
Although, a guardian ad litem is “less than a party,” because the court can overrule decisions made by a guardian ad litem, a guardian ad litem is a party for discovery purposes, and is not exempt from the rules of discovery. 54 As a party required to follow the rules of civil discovery a guardian ad litem is presumably subject to deposition.
In both Schaeffer and Cornelius, the appointed attorney’s report to the court was considered as evidence by both the trial court and the appellate court.55 An attorney who acts as a reporter or advisor to the court and who, for example, submits a sworn report, is a witness who could be deposed or cross-examined, and runs a significant risk that he or she will violate the attorney-client privilege in the process.
An attorney who limits his or her role to that of a zealous advocate for the client, on the other hand, presents evidence, but his or her statements are not evidence.
E. A Guardian ad Litem is Entitled to Quasi-Judicial Immunity for Actions Within the Scope of His or Her Authority
A guardian ad litem is constantly subject to review and removal by the court that appointed him or her. The guardian ad litem is, therefore, within the judicial process and is entitled to quasi-judicial immunity.56 Judicial immunity is available because, if a guardian ad litem who is tasked with determining the best interests of an incapacitated person were to be subject to the risk of a suit from that person, the risk could inhibit his or her decision-making. “[T]he guardian ad litem does not advocate for her ward in the way an attorney does—her job is acting in the ward’s best interests, and the ward might not always agree with the guardian ad litem’s decisions. Her ability to act would be compromised if the threat of future liability encouraged a guardian ad litem to put a ward’s wishes above his interests.”57 A guardian ad litem must be free to determine the ward’s interests differently than the ward determines those interests, a freedom not possessed by the attorney.
F. No Quasi-Judicial Immunity for an Attorney
While no California case has yet addressed the issue, the Connecticut Supreme Court has determined that an appointed attorney is not entitled to quasi-judicial immunity.58 It reasoned that because the attorney is required to be loyal to the client, and is not free to make an independent determination of the client’s interests, the attorney does not need quasi-judicial immunity to protect the attorney’s decision-making process.59
G. The Appointed Attorney is Responsible to Protect the Attorney-Client Privilege
The appointed attorney must protect the attorney-client privilege. No such rule applies to a guardian ad litem who is not acting as an advocate for a client, who may not be an attorney, and who has no client.
H. An Appointed Attorney in California Cannot Seek the Appointment of a Guardian ad Litem
The appointed attorney must protect the attorney-client privilege. No such rule applies to a guardian ad litem who is not acting as an advocate for a client, who may not be an attorney, and who has no client.
When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.61
As discussed above, Model Rule 1.14 is not the law in California. The California Supreme Court’s refusal to adopt a version of Model Rule 1.14 emphasizes that an appointed attorney cannot take even limited protective action on behalf of a client. An attorney cannot advise a court of his or her opinion regarding what is “best” for his or her client, cannot report to the court that a conservatorship is necessary for his or her client, and cannot even seek the appointment of a guardian ad litem.
VII. Key California Statutes and Rules Regarding the Appointment of Attorneys ad Litem Do Not Authorize Attorneys to Act as Reporters to the Court
California’s Probate Code sections providing for the appointment of attorneys and guardians ad litem in conservatorship cases do not specify the roles to be played by an appointed attorney or by a guardian ad litem. For example, in a case involving a comatose individual, the court noted, “Probate Code 1470 authorized appointment of counsel in this case but does not specify counsel’s role.”62
A. Probate Code Section 1470
Section 1470 is discretionary. Under it, a court “may appoint private legal counsel” when there is no attorney and, “appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.”
B. Probate Code Section 1471
Section 1471, subdivisions (a) and (b), are mandatory.
Section 1471, subdivision (a), mandates appointment of an attorney in several listed sorts of cases on request of the (proposed) conservatee, and provides that the attorney is “to represent the interest of that person” in the listed cases.
Section 1471, subdivision (b), requires the court to appoint an attorney for a (proposed) conservatee when the (proposed) conservatee “does not plan to retain legal counsel and has not requested the court to appoint legal counsel” when the court determines “that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee.”
C. Probate Code Section 1003
Section 1003, subdivision (a)(2), authorizes the court to “appoint a guardian ad litem at any stage of a proceeding under this code to represent the interest of . . . [an incapacitated person] if the court determines that the representation of that interest otherwise would be inadequate. . ..”
Since the Probate Code authorizes appointment of a guardian ad litem for “an incapacitated person,” there is some question whether the probate court has the power to appoint a guardian ad litem for an adult who has not yet been conserved, and so has not yet been determined to have an incapacity. This is particularly problematic in a proceeding to establish a conservatorship in which the need for a guardian ad litem may be obvious, but the court has not yet determined that the (proposed) conservatee requires a conservator, and might never conserve the proposed conservatee.
The common law regarding guardians ad litem appointed under the Code of Civil Procedure is that a court can appoint a guardian ad litem even for a person who has not been conserved, although the procedure for making that determination is unclear.63 “Incompetency may exist independently of any judicial determination thereof.”64 While it appears that this common law certainly should apply in conservatorship cases, and a judge in such a case has the authority to appoint a guardian ad litem before granting a conservatorship petition, the Law Revision Commission Comment to Section 1003 could limit the application of that common law in conservatorship cases. The Comment provides, “[t]he general provisions for appointment of a guardian ad litem in Code of Civil Procedure Sections 372-373.5 do not apply to the appointment of a guardian ad litem under this code.”
Whether the court can appoint a guardian ad litem for a proposed conservatee does not affect this article’s analysis of the role of the appointed attorney. It is best if the court can employ two tools – appointed attorney and guardian ad litem – to assist it in making its determinations. However, even if the current state of the Probate Code prevents the appointment of a guardian ad litem prior to the determination of incapacity, the role of the appointed attorney remains the same. The appointed attorney must be a zealous advocate for his or her client. In no event should procedural difficulties regarding the appointment of a guardian ad litem cause the attorney to be pushed out of his or her role as a zealous advocate and into the role akin to a guardian ad litem, reporting what he or she believes is in the best interests of the proposed conservatee.
If section 1003 needs to be amended to clarify or expand the probate court’s power to appoint a guardian ad litem for a proposed conservatee, then it should be amended.
D. California Rule of Court 7.1101
Rule of Court 7.1101 specifies the experience and education requirements for appointed attorneys, and specifies certain continuing education for appointed attorneys. It does not provide guidance on the role to be taken by an appointed attorney.
E. Potential Confusion Caused by the Wording of Sections 1470 and 1471
1. A Duty to be “Helpful” to the Court?
Section 1470 and section 1471, subdivisions (a) and (b), call for the appointed attorney to represent the “interest(s)” of the (proposed) conservatee. However only section 1470 and section 1471, subdivision (b), the sections giving the court discretion to appoint an attorney, call for appointment of an attorney when it would be “helpful to the resolution of the matter.” Given this difference in wording, it is possible to argue that the appointed attorney under the discretionary authority of section 1470 or section 1471, subdivision (b), has a duty to be “helpful” to the court that the attorney appointed under the mandatory appointment required by section 1470, subdivision (a), does not.
This is the approach taken in the current CEB Practice Guide. That Guide takes the position that, “the attorney appointed in the court’s discretion under [Section 1470(a)] has a dual role: not only to ‘protect the interests’ of the subject person but also to assist the court in ‘the resolution of the matter.’” 65 Similarly, the Guide states, “[a]s with Probate Code section 1470(a) discretionary appointments, counsel appointed under Probate Code section 1471(b) has the additional role of being ’helpful to the resolution of the matter.’”66 On the other hand, according to the Guide, the distinction in the wording of the sections “suggests that [counsel appointed under Section 1471(a)] has the single role of advocating the client’s interests without regard to assisting the court in resolving the dispute.”67
This article advocates a different conclusion from the wording of the sections. Our conclusion is that the language in section 1470 and in section 1471, subdivision (b), authorizing the court to appoint an attorney if, “the appointment would be helpful to the resolution of the matter. . . ” identifies a factor the court must consider when appointing a guardian ad litem. However the language cannot be read as an instruction directing the appointed attorney to assist the court in the resolution of the matter by acting as a reporter to the court.
The “helpful” language is directed to the court, not the attorney. The attorney’s duties to be a confidential, loyal and zealous advocate are fundamental. A statute designed to override those fundamental duties would need to be specific. The statutory references to “helpful” are not specific enough to support a conclusion that the legislature intended to change the appointed attorney’s fundamental duties as an attorney.
2. Does the Appointed Attorney Represent “Interests” or a Client?
The statutes authorizing the probate court to appoint an attorney or a guardian ad litem all refer in one way or another to representation of an “interest.” Section 1003 regarding guardians ad litem refers to “representation of an interest.” Section 1470 refers to representation “necessary to represent the person’s interests.” Section 1471, subdivision (a), refers to appointing counsel “to represent the interest of that person.” Section 1471, subdivision (b), refers to appointment that “is necessary to protect the interests of the conservatee or proposed conservatee.”
The CEB Practice Guide concludes that this language, “makes it clear that the court-appointed attorney is to represent ‘the interests’ of the client rather than merely the client.”68 Again, we respectfully disagree with this conclusion. An attorney must represent a client, who identifies the interests that the client wants the attorney to represent. A client is the most important thing, and is not “merely a client.” “Interests” are not a client. The “interests” represented by an attorney have to be determined by someone. If the “interests” are determined by the attorney, then the attorney has no client.
The notion that an attorney represents “interests” and not a client leads to the next step, that the attorney can independently determine the client’s interests even if the attorney’s determination conflicts with the client’s. Thus, the CEB Guide states that the line of thought suggesting that the attorney “has the professional discretion” to make recommendations contrary to the direction of the client derives from the “statutory mandate to represent the client’s ‘interests’ rather than merely the client.”69 In addition, according to the Guide, the notion that the attorney can make recommendations contrary to the instructions of the attorney’s client derives from the “longstanding rule . . . that a client must at least possess the capacity to contract or the attorney-client relationship is terminated.”70
This longstanding rule, though, does not support the idea that an attorney can advocate the attorney’s own determination of the client’s interests. If the appointed attorney is faced with a client who has no capacity at all, so that the relationship is terminated, then he or she should resign. A guardian ad litem can then be appointed. No attorney has the professional training to exercise “professional discretion” to advocate courses of action contrary to the client’s decisions or instructions. Appointment of a guardian ad litem expressly authorized to exercise the court’s parens patriae authority over an incapacitated person is a better course of action than causing the attorney to overstep the bounds of his or her duties.
VIII. Local Rules Take Various Positions on the Duties of the Appointed Attorney
A review of the local rules of the courts in California shows that the courts have taken different positions regarding the appointed attorney’s role. Although the authors are not experts in the law of equal protection, it seems possible that rules that make an incapacitated person’s rights different in one county than in another could run afoul of equal protection dictates. In any event, regardless of equal protection requirements, it does not make sense that an appointed attorney has a different role in Los Angeles than in San Francisco, or in San Diego.
A. Los Angeles County
Local Rule 4.125 of the Los Angeles Local Rules, effective July 1, 2011 (Ethical Guidelines for PVP counsel), emphasizes that the appointed attorney is to “represent the interests of his or her client in accordance with applicable laws and ethical standards.” However, in addition, “[t]he PVP attorney’s secondary duty is to assist the court in the resolution of the matter to be decided.”71
B. San Diego County
San Diego Local Rule 4.18.10 states simply that, “[t]he court will appoint counsel for the person who is the subject of a conservatorship petition as required by law or for good cause.”72 Anecdotal information from practitioners in San Diego suggests that it is not uncommon for the appointed attorney to file a report with the court, giving his or her views on the substance of the case, including whether a conservatorship should be established.
San Diego Local Rule 4.18.5, subdivision F, provides that an attorney will always be appointed for a proposed conservatee “in any case where dementia authority is requested.” n these cases, “a written report from that attorney must be filed five court days in advance of the hearing before the court acts on the dementia request.”73 The rule makes no specification of the items to be included in the appointed attorney’s report.
C. San Francisco County
San Francisco’s Local Rules contain extensive provisions regarding the role of appointed attorneys. Appointed attorneys are expected to “remain in close communication with the Court Investigator,”74 are “expected to personally visit the person they have been appointed to represent,”75 and are not permitted to undertake representation outside the specific case without a court order.76
San Francisco’s Local Rules go on to specify the “Role of the Court-Appointed Attorney.”77 Under the rules, ”Court appointed attorneys are expected to inform the Court of the wishes, desires, concerns, and objections of the (proposed) conservatee.”78 In addition, “[i]f asked by the Court, the attorney may give his or her opinion as to the best interests of the (proposed) conservatee and whether a conservatorship is necessary.”79
Finally, San Francisco’s Rules provide that, “[n]o written report is required or necessary unless requested by the Court.”80
IX. Reasons Apparently Underlying the Traditional View of the Appointed Attorney as a Reporter of the Court
An examination of the reasons apparently underlying the courts’ traditional willingness to treat appointed attorneys in conservatorship cases as reporters rather than as advocates is worthwhile, especially since we are recommending that this traditional willingness is incorrect, and should be left on the trash heap of history.
A. The Appointed Attorney As the Court’s Agent, Assisting the Court in Fulfilling its Benevolent Duties Under Parens Patriae
Under the doctrine of parens patriae, the court’s actions in protecting an individual from harm due to his or her own incapacity can be viewed as beneficial to the individual, because the court proceeds with “the altruistic purpose of insulating the adult from choices that may endanger him and to ensure his ‘best interest’ is protected.”81
It is understandable that a court could lean on input from a report of observations and conclusions from an attorney who is a known and responsible officer of the court. However, if the court needs someone to act as its agent in asserting the state’s power of parens patriae, the court should appoint a guardian ad litem.
B. Lack of Resources
An observer of the probate courts in action can see that the courts are crowded and that many conservatorships are established without trial. If the number of conservatorship trials were to increase substantially, then the courts’ resources would be stretched. This lack of resources is almost certainly a reason that courts have treated the appointed attorney as a reporter and advisor for the court rather than as advocate for the client.82 If the cases seem simple, if resources are limited, and if the court is acting to protect the proposed conservatee, the steps of zealous advocacy can seem unnecessary.83
Although not as obvious, the appointed attorney, too, lacks resources. To the authors’ knowledge, the courts in California do not uniformly provide appointed attorneys in conservatorship cases with the resources to pay the expenses of conducting a trial on a current basis. The appointed attorney faced with a potentially complicated case might be required to use his or her own money to finance it. If the appointed attorney conducts the litigation with his or her own time and funds, payment is always delayed, and is dependent on a hearing “upon conclusion of the matter.”84 The attorney risks objections to his or her fees, expenses and costs and a judge’s decision that he or she charged too much or incurred unnecessary expenses or costs. “[I]n the end, the attorney often winds up with compensation at a reduced rate or even no compensation at all.”85 The appointed attorney can minimize personal financial risk by reporting to the court his or her own opinions and conclusions and facilitating a quick resolution of the petition.
While a lack of resources is not a reason for the courts and appointed attorneys to shift the attorney’s role from zealous advocate to reporter, it is a basis for understanding why that shift happened.
X. California Cases in which the Appointed Attorney Was Authorized to Advocate for His or Her Independent Judgment when Representing Permanently Unconscious Conservatees
The courts in Schaeffer and Cornelius, supra, both noted that attorneys had filed reports. Neither considered the propriety of contents of the filings themselves, and neither wrestled with the question whether the appointed attorney could properly advocate positions contrary to the positions of the client. However, in cases involving permanently unconscious conservatees, who cannot communicate, California courts have issued holdings authorizing appointed attorneys to advocate the attorney’s own conclusions. The logic of these decisions is not compelling, and, if the decisions are not changed, they should be limited to their context.
A. Conservatorship of Drabick
In the first of these cases, Conservatorship of Drabick,86 the court dealt with the issue of withdrawing life support from a permanently unconscious conservatee. An attorney was appointed to represent the conservatee. Since the attorney could not communicate with the client, the attorney investigated the case and, after that investigation, “came to agree with the conservator that [the conservatee] would have refused life sustaining treatment.”87
Appellate counsel argued that the appointed attorney had a duty to advocate for the conservatee’s life. The court disagreed. Citing the 1983 CEB publication Cal. Conservatorships 2d, it noted, “[w]hen an incompetent conservatee is still able to communicate with his attorney it is unclear whether the attorney must advocate the client’s states preferences – however unreasonable – or independently determine and advocate the client’s best interest.”88 It then concluded, “[w]hen the client is permanently unconscious, however, the attorney must be guided by his own understanding of the client’s best interests. There is simply nothing else the attorney can do.”89
B. Conservatorship of Wendland
In a second case, Conservatorship of Wendland,90 another case involving a permanently unconscious conservatee and issues of withdrawal of life support, the Supreme Court approved this approach. In Wendland, the court noted that the appointed attorney for Mr. Wendland had supported withdrawing life support, “exercising his independent judgment.”91 The Wendland court did not analyze the propriety of this exercise of the appointed attorney’s independent judgment; it simply cited Drabick.
XI. Reasons to Question Drabick and Wendlend
A. The Flawed Drabick Analysis
The Drabick court analyzed the role of the appointed attorney in a conservatorship incorrectly, and the Wendland court’s reliance on Drabick was misplaced.
Drabick’s first error was that it drew a false analogy between the role of an appointed attorney in a child custody dispute and the role of an appointed attorney in a conservatorship case. The false analogy grew from an over-reading of the Law Revision Commission Comment to Section 1470. The Drabick court began its analysis by acknowledging that section 1470 “does not specify counsel’s role,” in a conservatorship case.92 Its second step was to note that the Law Revision Commission’s Comment provided that, “the court’s discretionary authority to appoint counsel in conservatorship proceedings ‘is comparable to the court’s authority to appoint private counsel to represent the minor’s interests in connection with a child custody issue arising in a proceeding under the Family Law Act.’”93 In its third step, it analogized the role of an attorney in a child custody dispute to the role of an attorney in a conservatorship case. The analogy seemed to flow from the Law Revision Commission’s analogy regarding the court’s power to appoint an attorney in the two cases, but the logic does not hold.
The Drabick court was able to follow this false analogy because it focused only on section 1470, and it failed to consider the body of California law that does frame counsel’s role, especially Flatt and Business and Professions Code section 6068, subdivision (e)(1). Without this context, the Law Revision Commission’s analogy of the court’s power to appoint an attorney in the two types of cases put the Drabick court on a slippery slope which led the court to mistakenly analogize the roles of the appointed attorneys in the two different types of cases.
The second problem with the Drabick analysis is that it imported the attorney-client conflict rules from child custody and dependency cases into the adult world of conservatorship law. Historically, the courts and the legislature have treated child custody cases as unique and have authorized and required attorneys to assume conflicts of interest that attorneys cannot assume in other civil and criminal cases.94 Whether the rules that allow attorneys to assume conflicts in custody and dependency cases is a proper approach is a matter of debate in family law circles. Nevertheless, the roles to be taken by appointed attorneys in dependency and custody cases is not a matter to be debated in a probate forum. The point of this article is that even if the rules governing attorney-client conflicts make sense in a custody/dependency setting – and they may not – the rules never should have been imported into the conservatorship setting involving adults.
The final problem with the Drabick decision is that the court also rested its conclusion on the notion that an appointed attorney with a non-communicative client could do nothing other than rely on his or her own conclusions, stating: “[t]here is simply nothing else the attorney can do.”95 But an attorney who relies on his or her own conclusions is an attorney without a client, which is a dangerous and lonely place for an attorney to be. Besides, there is something else that the attorney can do – the attorney can ask the court to rescind his or her appointment.
The appointed attorney who cannot communicate with the client cannot ask the court to appoint a guardian ad litem because, as discussed above, California does not have any rule similar to Model Rule 1.14 and does not permit the appointed attorney that leeway. However, the appointed attorney can still resign. When the attorney takes this action, he or she is not revealing a client confidence. The analogy is to an attorney who seeks removal from a civil case under California Rule of Court 3-700 (New Rule 1.16), and whose declaration cannot reveal client confidences. If the appointed attorney’s resignation were to be accepted, the court could appoint a guardian ad litem, and a properly-authorized officer of the court could determine the interests of the non-communicative (proposed) conservatee and could, if necessary, retain an attorney to advocate those interests.
The court in Wendland did not review the Drabick analysis; it simply adopted it. The weaknesses of the Drabick opinion are, therefore, reflected in Wendland.
XII. Sources of Law Suggesting that the Appointed Attorney Should Serve as Advocate for the Proposed Conservatee
Both the common law and sister state statutes support the notion that the proper role for an appointed attorney is to act as advocate for the client, not as reporter to the court.
B. The Common Law
In Conservatorship of John L.,96 an LPS proceeding, the Supreme Court made the sweeping statement that, “[l]ike all lawyers, the court-appointed attorney is obligated to keep her client fully informed about the proceedings at hand, to advise the client of his rights, and to vigorously advocate on his behalf.”97 In addition, the appointed attorney has a duty to “perform in an effective and professional manner.”98
Thus, it is clear in LPS conservatorship matters, the attorney’s role is as advocate.
2. New Jersey
In 1994, not long after the publication of the AP articles noted above, the New Jersey Supreme Court decided ln re M.R.99 In M.R., the divorced parents of a developmentally-disabled adult woman litigated whether she should live with her father or with her mother.
The trial court appointed an attorney to represent the woman. At the time, New Jersey law required the appointed attorney, “to file, in lieu of filing an Answer, a written report of findings and recommendations to the court at least three days prior to the hearing.”100 M.R.’s appointed attorney had reported that M.R. had expressed a preference to live with her father, but he ultimately took the position that either household could be approved. Given the appointed attorney’s change of position, and noting “substantial confusion over the role of attorneys appointed on behalf of children” in analogous cases,101 the court determined that it needed to analyze the appointed attorney’s proper role in a contested proceeding.
The court focused on the difference between an appointed attorney and a guardian ad litem. The key distinction between the roles, it noted, is that an attorney’s services are to the client, and a guardian ad litem’s services are to the court. The attorney, “takes an active part in the hearing. . . .”102 On the other hand, the guardian ad litem acts as an “independent fact finder and evaluator,” who “submits a written report and is available to testify.”103
The M.R. court pointed out several reasons underlying its decision distinguishing appointed attorneys from guardians ad litem. First, the two appointees could take different positions, with the attorney advocating the client’s stated desires and the guardian ad litem urging his or her analysis of the client’s best interests.104 Second, the appointed attorney would be required to work through the attorneys for other parties in the case, while the guardian ad litem could interview parties directly.105 “Finally, a guardian may merely file a report with the court, but the attorney should zealously advocate the client’s cause.”106
Urging that an attorney should be first and always an advocate, the M.R. court concluded:
Advocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system. An attorney proceeds without well-defined standards if he or she forsakes a client’s instructions for the attorney’s perception of the client’s best interests. [Internal citation omitted.] Further, “if counsel has already concluded that his client needs ‘help,’ he is more likely to provide only procedural formality, rather than vigorous representation. [Internal citation omitted, stating “[i]f the attorney is directed to consider the client’s ability to make a considered judgment on his or her own behalf, the attorney essentially abdicates his or her advocate’s role and leaves the client unprotected from the petitioner’s allegations”.]
Finally, the attorney who undertakes to act according to a best-interest standard may be forced to make decisions concerning the client’s mental capacity that the attorney is unqualified to make. [Internal citation omitted.]107
Although the M.R. court was dealing with a case involving a developmentally-disabled individual, it did not limit its analysis to just that sort of case, and it concluded with general guidelines “to assist the attorney for an incompetent.”108
In Gross v. Rell,109 a case dealing with an attorney’s assertion of quasi-judicial immunity, the court dealt carefully with the appointed attorney’s functions in a conservatorship case.
The court began its analysis with the proposition that, in a conservatorship case, the appointed attorney should maintain a normal client-lawyer relationship as far as possible. This reflects the common law rule and ABA Model Rule 1.14, that:
When a client’s capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, physical illness, mental disability, or other cause, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client and act in the best interests of the client as [the client would define them].110
The court then noted that others had observed that:
Even though this choice [between advocating for the client’s wishes and protecting the client’s best interests] may be difficult to make personally, its resolution among courts and writers has been rather uniform. Most favor advocacy. The most significant reason is the belief that a lawyer using a more selective approach usurps the function of the judge or jury by deciding her client’s fate.111
Although the law in Connecticut is not the same as the law in California, the fundamental thinking of the Gross v. Rell court is solid. That reasoning could, and should, be imported into California.
4. Restatement Third of the Law Governing Lawyers
The Restatement Third of the Law Governing Lawyers requires an attorney representing a client with diminished capacity to “as far as reasonably possible, maintain a normal client-lawyer relationship with the client and act in the best interests of the client . . . . “112 It then defines the attorney’s pursuit of “the best interests of the client,” as pursuing, “the lawyer’s reasonable view of the client’s objectives or interests as the client would define them. . . . .”113 The attorney is to represent the client’s objectives, as the client would define them, not as the attorney or someone else would define them.
In the commentary, the Restatement emphasizes that a client’s disagreement with his or her attorney is not evidence of incapacity, and that clients with diminished capacity should be permitted to make their own decisions as much as possible.114
C. Statutes in Other States
Several states have adopted statutes clarifying the role of the appointed attorney.
Alaska’s statutes require the appointed attorney to be an advocate and not a reporter, and also make a clear delineation between the duties of the attorney and the duties of the guardian ad litem.
Defining the duties of the appointed attorney as an advocate, the Alaska code provides, “[t]he principal duty of an attorney representing a ward or respondent is to represent the ward or respondent zealously.”115 The statute then defines “zealous representation” to include “at least” “personal interviews with the ward or respondent,” explaining the nature of the case, “if possible to the ward or respondent in terms that the ward or respondent can understand,” and “securing and presenting evidence and testimony and offering arguments that would tend to protect the ward’s or respondent’s rights. . . .”116
The Alaska law specifies that the (proposed) conservatee is responsible for determining his or her interests.117 The attorney in Alaska has no authority to determine the client’s interests. If the ward or respondent is incapable of effectively determining and communicating his or her interests, then the court is to appoint a guardian ad litem for the ward or respondent.118 The guardian ad litem can then determine the ward or respondent’s interests, after considering the circumstances that the ward or respondent would consider and after encouraging the ward or respondent to participate in the decision as much as possible.119 Again separating the role of the attorney from the role of the guardian ad litem, the statute authorizes the court to appoint the attorney as guardian ad litem but, if it does, the person’s authority as attorney terminates.120
Washington, too, specifies that the attorney for a proposed conservatee is to act as an advocate for the client’s interests, without authority to determine those interests.121 The statute provides, “[c]ounsel for an alleged incapacitated individual shall act as an advocate for the client and shall not substitute counsel’s own judgment for that of the client on the subject of what may be in the client’s best interests.”122
Like Alaska, Washington draws a clear distinction between the role of the attorney and the role of a guardian ad litem. “Counsel’s role shall be distinct from that of the guardian ad litem, who is expected to promote the best interest of the alleged incapacitated individual, rather than the alleged incapacitated individual’s expressed preferences.”123
Turning to the East Coast, Vermont’s code requires the appointment of an attorney for a proposed protected person “when an initial petition for guardianship is filed.” The decision to appoint an attorney is not in the court’s discretion.124 The attorney is required to explain the case to the proposed ward “to the maximum extent possible.”125
As in Alaska and in Washington, Vermont’s code then requires the appointed attorney to act as an advocate, and distinguishes the attorney’s role from the role of a guardian ad litem:
Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent. Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.
California law requires appointed attorneys to be confidential, loyal and zealous advocates for their clients. There is no exception for traditional practices in the probate court.
Given the strictness of the rules of confidentiality and fidelity in California, it is not stretching things to say that court rules encouraging or requiring appointed attorneys to file reports with the court or otherwise to assist in the resolution of conservatorship cases are contrary to an attorney’s legal duties. There is little doubt that many if not most of the reports that are filed around the state could subject their authors to discipline, possibly to malpractice liability and maybe even to a suit for depriving the client of constitutional rights.
Like Alaska, Vermont, and Washington, California must recognize that appointed attorneys have a duty to act as zealous advocates for the interests articulated by their clients. Attorneys should not be required or permitted to put their determination of a client’s interests ahead of the client’s own articulation of his or her own interests. To the extent that attorneys cannot effectively represent the interests of a client who is completely unable to communicate, the interests should be determined, and represented to the court, by a guardian ad litem. Rules requiring or authorizing an appointed attorney to report to the court should be eliminated.
Anne Rudolph and Ralph Hughes
A version of this article was published in the California Trusts and Estates Quarterly, Volume 25, Issue 1, 2019, copyright Trusts and Estates Section of the California Lawyers Association, printed with permission.
1. Division 4 of the Probate Code is titled, “Guardianship, Conservatorship, and Other Protective Proceedings.”
2. Gottlich, Vicki (2000) Maryland Code Revisions, 7 Md. J. Contemp. L. Issues, 191, 198.
3. In re Josiah Z. (2005) 36 cal.4th 664, 680; Cal State Auto Ass’n Inter-Ins. Bureau v. Bales (1990) 221 Cal.App.3rd 227, 231.
4. This article will refer to conservatees and proposed conservatees, together, as (proposed) conservatees.
5. Late Corp. of Church of Jesus Christ v. United States (1889) 136 U.S. 1, at pp. 56-58. (Some courts refer to parens patrice and other to parens patriae. The authors make no distinction, except to generally understand that one is plural and the other is singular.)
6. Id. at 289 (quoting Anderson v. Eaton (1930) 211 Cal. 113, 116; citations omitted; emphasis added.)
7. American Bar Association Model Rule 1.14 provides:
Rule 1.14: Client with Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Rule 1.14, Client with Diminished Capacity. (2018). In American Bar Association, Center for Professional Responsibility. Model Rules of Professional Conduct. Retrieved from American Bar Association Professional Responsibility Publications.
8. Administrative Order 2018-05-09 filed in the Supreme Court May 10, 2018.
9. California Bar Journal, (2018) MCLE Self-Assessment Test.
11. Administrative Order 2018-05-09 filed in the Supreme Court May 10, 2018.
12. Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159.
13. Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198.
14. Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159.
15. Id. at 161.
16. Id. at 162.
18. Conservatorship of Schaeffer, supra, at 164.
19. Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198.
21. Ibid. at 1202.
25. Conservatorship of Cornelius, supra, 200 Cal.App.4th 1198, 1203.
26. Id. at 1207.
27. Id. at 1203.
28. Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198, 1205.
29. CEB California Conservatorship Practice (2018), Section 7.27.
32. Ibid. at section 7.28.
33. Probate Code section 810, subd. (b).
34. Probate Code sections 1470, 1471.
35. Probate Code section 1003.
36. All references to “Section” are references to the California Probate Code.
37. Probate Code section 1826, subd. (a)(11)(A).
38. Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, (2002) 31 Stetson Law Review 686, at 689.
39. Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, supra, at p. 691
40. See Id. Bliss v. Bliss, 104 A. 467, 471 (Md. 1918)
41. Ex parte Ah Peen (1876) 51 Cal. 280 (1876)
42. Late Corp. of Church of Jesus Christ v. United States (1889) 136 U.S. 1, 56-57. Some courts use “parens patriae.” Others use “parens patrice.” The authors have no preference and have chosen to use parens patriae for convenience, except in quotes.
43. Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, supra, 31 Stetson Law Review 686, at p. 694.
44. Pamela B. Teaster, Erica F. Wood, Susan A. Lawrence, and Winsor C. Schmidt, Wards of the State: A National Study of Public Guardianship, (2007) 37 Stetson L. Rev. 193, at p. 197; Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, (2002) 31 Stetson Law Review 686, at p. 694. Many states use the terms “guardian” and “guardianship” to describe the protective proceeding that we, in California, call “conservator” or “conservatorship.” The article uses all of the terms to refer to protective proceedings for incapacitated and allegedly-incapacitated adults.
45. Desiree C. Hensley, Due Process Is Not Optional: Mississippi Conservatorship Proceedings Fall Short On Basic Due Process Protections For Elderly And Disabled Adults (2017) 86 Miss. L.J. 715, pp. 748 et seq.
46. CEB California Conservatorship Practice (2018) Sections 7.26, 7.27. (This article refers to a (proposed) conservatee because a California court can appoint an attorney for a proposed conservatee and also for an adult who has already been conserved. Prob C. Sections 1470. 1471.)
47. Cole v. Superior Court of San Francisco, supra, 63 Cal. 86, 89; See also Conservatorship of Wendland (2001) 26 Cal. 4th 519, 535.
48. McClintock v. West (2013) 219 Cal.App.4th 540, 549-550.
49. Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 446.
50. Flatt v. Superior Court (1994) 9 Cal.4th 275
51. In re Christina B. (1993) 19 Cal.App.4th 1441, 1454; See Golin v. Allenby (2010) 190 Cal.App.4th 616, 644.
52. In re Josiah Z. (2005) 36 Cal.4th 664, 681 (citations omitted.)
53. McClintock v. West (2013) 219 Cal.App.4th 540, 549.
54. Regency Health Servs. v. Superior Court (1998) 64 Cal. App. 4th 1496, 1503-1504.
55. Conservatorship of Schaeffer, supra, 98 Cal. App. 4th 160; Conservatorship of Cornelius, supra, 200 Cal. App. 4th 1198.
56. McClintock v. West, supra, 219 Cal.App.4th 540 at p. 551. See also Bergeron v. Boyd (2014) 223 Cal.App.4th 877 (child custody evaluator entitled to quasi-judicial immunity.)
57. Ibid. at pp. 551-552 (original emphasis; citations omitted.)
58. Gross v. Rell (2012) 304 Conn. 234, 259-273 [40 A.3d 240, 257-265].)
59. The authors have not located a published California case that deals with the issue whether an appointed attorney is entitled to quasi-judicial immunity. However, using an analysis similar to that in Gross v. Rell, supra, the court in Webb v. Louw (2003) Cal.App.Unpub Lexis 8175 determined that an appointed attorney was not entitled to quasi-judicial immunity.
60. ABA Model Rule of Professional Conduct, Rule 1.14(a).
61. Rule 1.14, Client with Diminished Capacity. (2018). In American Bar Association, Center for Professional Responsibility. Model Rules of Professional Conduct. Retrieved from American Bar Association Professional Responsibility Publications.
62. Conservatorship of Drabick (1988) 200 Cal. App. 3rd 185, 213 (disapproved on other grounds in Conservatorship of Wendland (2001) 26 Cal. 4th 519.)
63. In re Sara D. (2001) 87 Cal. App. 4th 661, 667 [“We know of no case law addressing the procedure for appointment of a guardian ad litem for an allegedly incompetent adult.”]
64. Sarracino v. Superior Court (1974) 13 Cal. 3rd 1, 11-13; See also In re Sara D. (2001) 87 cal. App. 4th 661, 667.
65. California CEB (2018) California Conservatorship Practice, Section 7.2.
66. Ibid. at Section 7.4.
67. Ibid. at Section 7.3.
68. CEB (2018) California Conservatorship Practice, Section 7.25.
69. CEB California Conservatorship Practice, Section 7.27.
70. CEB California Conservatorship Practice, Section 7.27 (citing Sullivan v. Dunne (1926) 198 Cal. 183.)
71. Superior Court of Los Angeles Local Rules, Ethical Guideline 4.125. The notion that the appointed attorney must not act only as an attorney, but as an agent to “assist in the resolution of the matter to be decided,” suggests that the appointed attorney is not just an attorney with a client, but also has a separate duty to the court, a duty that extends beyond representing the client. Business and Professions Code section 6068(1) and Flatt provide that an attorney has duties solely to the client. There is no room for a “secondary duty” to assist the court.
72. Superior Court of San Diego Local Rule 4.18.10
73. Superior Court of San Diego Local Rule 4.18.5
74. Superior Court of San Francisco, Local Rule 14, subdivision Q 2.
75. Ibid, Local Rule 14, subdivision Q 3.
76. Ibid., Local Rule 4, subdivision Q 4.
77. Superior Court of San Francisco, supra, Local Rule 14, subdivision Q 5. The rules require the attorney to report on matters that are subject to the attorney-client privilege, and suggest that the attorney might give an opinion regarding the necessity of conservatorship that would differ from the client’s opinion.
81. Desiree C. Hensley, Due Process Is Not Optional: Mississippi Conservatorship Proceedings Fall Short On Basic Due Process Protections For Elderly And Disabled Adults (2017) 86 Miss. L.J. 715, 727.
82. “Opponents of the advocacy role for the defendant’s attorney cite examples of unnecessary and protracted litigation that increases costs for all parties and that results in the imposition of a guardianship.” Vicki Gottlich, The Role Of The Attorney For The Defendant In Adult Guardianship Cases: An Advocate’s Perspective (1995/1996 7 Md. J. Contemp. L. Issues 191, 215. A reader of this article and Ms. Gottlich’s article will see that her article inspired many of the thoughts and much of the organization of this article. Credit to her for a thoughtful and informative piece of writing.
83. The courts’ ongoing lack of resources to properly supervise conservatorships was noted in this Journal in 2007. Edward J. Corey, Jr., Margaret G. Lodise, and Peter S. Stern, Crisis in Conservatorships (2007) 12 California Trusts and Estates Quarterly, Issue 4, p. 44.
84. Probate Code section 1472, subd. (a)(1).
85. CEB California Conservatorship Practice (2018), Section 7.10.
86. Conservatorship of Drabick (1988) 200 Cal.App.3rd 185 (criticized on other grounds in Conservatorship of Wendland (2001) 26 Cal. 4th 519).
87. Conservatorship of Drabick, supra, at 212.
88. Conservatorship of Drabick, supra, 200 Cal.App.3rd at 212.
90. Conservatorship of Wendland (2001) 26 Cal. 4th 519.
91. Ibid. at 526.
92. Conservatorship of Drabick, supra, at 213.
93. Conservatorship of Drabick (1988) 200 Cal. App. 3rd 185, 213 (italics added.)(criticized on other grounds in Conservatorship of Wendland (2001) 26 Cal. 4th 519).
94. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases (1996) 64 Fordham L. Rev. 1857, 1860-1862.)
95. Conservatorship of Drabick, supra, 200 Cal.App.3rd at 212.
96. Conservatorship of John L. (2010) 48 Cal.4th 131.
97. Ibid. at 151 (emphasis added).
98. Ibid. at 152 (quoting Conservatorship of Benvenuto (1986) 180 Cal. App. 3rd 1030, 1037 fn. 6.)
99. In re M.R. (1994) 135 N.J. 155.
100. In re M.R., supra, at pp. 172-173.
101. Ibid. at p 174.
102. Ibid. at p. 173.
104. Ibid. at p, 175.
107. Ibid. at 176 (internal citations omitted.)
108. Ibid. at 177.
109. Gross v. Rell (2012) 304 Conn. 234, 259-273.
110. Restatement Third of the Law Governing Lawyers (2000) Sections 24A (1) and (2).
111. Gross v. Rell, supra, 304 Conn. 234 at p. 260 (quoting P. Tremblay, “On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client,” 1987 Utah L. Rev. 515, 548-49 (1987)
112. Restatement Third of the Law Governing Lawyers (2000), Section 24A(1).
113. Ibid. at Section 24A(2).
114. Ibid. Comment c “Maintaining a normal client-lawyer relationship so far as possible.”
115. Alaska Statutes Section 13.26.246(a).
117. Alaska Statutes Section 13.25.246(b)
118. Id.; See also Alaska Statutes Section 13.26.041(a)
119. Alaska Statutes Section 13.26.041(b).
120. Alaska Statutes Section 13.26.041(c).
121. Washington Statutes Section 11.88.045.
122. Washington Statutes Section 11.88.045(b).
124. Vermont Code Section 3065(a)(1)(A).
125. Vermont Code Section 3065(b).