by Anne M. Rudolph and Ralph E. Hughes
The Benefits of Serving as a Court Appointed Attorney in Probate Court
New and newer attorneys are often eager to get in the courtroom. One way to gain invaluable experience — while at the same time assisting clients who may have nobody else advocating for them — is to sign up to serve as a court-appointed attorney in conservatorship cases. In these cases, the role of a court-appointed attorney is critical to ensuring a person’s wishes are heard and considered by a judge who is tasked with making rulings that may result in the loss of the client’s right of free will to make their own decisions.
The statutes governing the appointment of an attorney in a conservatorship case are Probate Code Section 1470 and Probate Code Section 1471. Depending on the circumstances, the appointment may be discretionary for the judge, or it may be mandatory. The standard is that “the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.”
The duties of a court-appointed attorney are determined by statute, case law and local court rules. The primary duty is to be a confidential and zealous advocate for the client. Think of this as a four-sided box.
The first side of the box is Business and Professions Code section 6068, subdivision (e)(1). Section 6068(e) provides a clear mandate which 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 next side of the box is Flatt v. Superior Court (1994) 9 Cal. 4th 275. In Flatt, the California Supreme Court stated as follows:
“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 third side of the box is Rule of Professional Conduct 1.2, which is titled “Scope of Representation and Allocation of Authority.” Rule 1.2, paragraph (a), provides that a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall reasonably consult with the client as to the means by which they are to be pursued. Comment One to Rule 1.2 provides that “Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations.”
The last side of the box is the Conservatorship of John L. (2010) 48 Cal. 4th 131. In John L., the California Supreme Court stated 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.”
In addition, the court stated that an appointed attorney has a duty to “perform in an effective and professional manner.” If a client can communicate their wishes, then the court-appointed attorney must advocate for those interests, even if the client does not appear to be making rational decisions that the attorney believes are in the client’s best interests. Whether a proposed conservatee has diminished capacity, as is often the case in conservatorship cases, does not obviate the obligation to act as a zealous advocate of the client’s interests.
States other than California have adopted ABA Model Rule 1.14, or a version of Model Rule 1.14. Model Rule 1.14 allows an attorney to take action to protect a client who the attorney reasonably believes has diminished capacity and is at risk of physical or financial harm unless action is taken. In appropriate cases, the attorney may even seek the appointment of a guardian ad litem, conservator or guardian.
California attorneys have no similar ability to take protective action for clients with diminished capacity. The California Supreme Court rejected a proposed version of Rule 1.14, primarily because it conflicts with the attorney’s duty of confidentiality under Business and Professions Code section 6068(e).
After meeting a client (a proposed conservatee) and investigating the circumstances, an attorney may come to believe the client really is not capable of managing their own affairs and they do need a conservator. The attorney may believe that the client is incapacitated, is subject to undue influence and/or is being taken advantage of by a friend or family member, or even that the client is the victim of elder abuse.
However, unless the client authorizes the attorney to disclose their confidential communications, the attorney cannot tell the judge what the client has told them. The client is entitled to have the attorney present the client’s stated wishes to the judge.1 Without that, then there is no due process for the client.
Some court-appointed attorneys may worry that if they properly perform their role as an advocate for their client’s stated wishes, and do not tell the judge that the attorney believes the client really does need a conservator, that the attorney may be putting the client in harm’s way. That is not the case. There are other means available for the court to determine whether the client’s wishes are misguided rather than through the client’s own attorney.
There are several players in a conservatorship case:
- The Petitioner, who is the person who has filed the action before the court. That person has the burden to provide evidence to support their request that the court impose a conservatorship.
- The Court Investigator, who is an employee of the court and an agent of the judge tasked with doing an independent investigation and reporting to the judge. The court investigator will interview the proposed conservatee, the petitioner, and any other necessary friends, relatives and medical professionals.
- The Doctor who completes a Capacity Declaration. A conservatorship cannot be ordered without the proposed conservatee being evaluated by a doctor and the filing of a Judicial Council form known as a Capacity Declaration, which sets out the proposed conservatee’s areas of deficit, if any. In many cases, more than one Capacity Declaration is filed.
- The Guardian Ad Litem, in some cases the court will appoint a GAL to assist with determining what is in the best interests of a proposed conservatee. The role of a GAL is to report to the judge what they believe is in their ward’s best interests, despite what the ward may wish.
The Judge is to consider all of this evidence, along with the evidence the court-appointed attorney presents as an advocate for the proposed conservatee. It is the judge who decides whether a conservatorship is necessary.
In conclusion, it can be a rewarding experience to serve as a court-appointed attorney. Judges appreciate such service, and it affords lawyers the opportunity to represent interesting clients and assist them in an important role. Persons in need of a court-appointed attorney may find themselves the subject of involuntary proceedings intended to take away the right to make decisions for themselves about how they live, where they live, and how they handle their money.
The required forms to apply to be on the court-appointed attorney panel are San Diego Superior Court local form PR-150 and Judicial Council form GC-010. Do not be discouraged if you do not meet all of the qualifications listed on the forms. The presiding probate judge (currently Judge Julia C. Kelety) may make exceptions if a candidate is able to demonstrate some experience, a strong interest and/or has necessary language skills needed for the panel, along with letters of recommendation.
1. If a client cannot communicate their wishes — they are in a coma, for instance — the judge may modify the appointment from that of a court appointed attorney to a guardian ad litem in order to allow the attorney to report the client’s best interests to the court.
Anne M. Rudolph
This article was originally published in For the Record, the SDBCA Publication for New Lawyers. – February 16, 2023