TO: David Long

RE: Project No. 97-06 Authority Of The Judge To Appoint Additional Counsel For A Proposed Conservatee Where The Judge Believes That There Is A Serious Question Whether The Proposed Conservatee Lacks The Capacity To Hire Counsel

Section/Committee: Estate Planning, Trusts and Probate Law Section

Date of Approval (before first introduction in the Legislature as AB 1491 in 1997): 5/31/97

[Approved again by the Incapacity Subcommittee on 1/3/2001]

Author:     Marc B. Hankin

Law Offices of Marc B. Hankin

10680 West Pico Boulevard Suite 315

Los Angeles, California 90064-2223

Tel: 310-204-8989 Fax: 310-204-8985

Email: marc@marchankin.com

Principal Contact: Marc B. Hankin

Digest: Summary of existing law (statutory and/or as interpreted by the courts) and a very brief description of what the bill would do.

The existing statutory law concerning the appointment of an attorney by the court for a proposed conservatee who appears with a lawyer who contends that he or she is the proposed conservatee’s lawyer, is very unclear. Probate Code §§ 1470 and 1471 provides statutory authorization for the court to appoint an attorney to represent a proposed conservatee when the conservatee lacks counsel to represent himself or herself. Neither code section addresses a situation where a lawyer contends that he or she represents a proposed conservatee, but the court has serious doubts about whether the proposed conservatee has the capacity to hire the would-be attorney as the proposed conservatee’s attorney. The right to choose one’s counsel is a right with which courts are reluctant to interfere.

Unfortunately, it is common for the perpetrator of elder fiduciary abuse ("perp") to arrange for a lawyer to represent a proposed conservatee in opposing the appointment of a conservator, or in seeking to have the perp appointed as the conservator. See, e.g., Conservatorship of Chilton, 8 Cal.App.3d 34, 86 Cal. Rptr. 860 (Second Dist. 1970), where (according to the Court of Appeals) Attorney Arditto really was the lawyer for the perp, although he pretended to be the lawyer for the proposed conservatee. Arditto litigation in opposition to the conservatorship, and took other steps that were supportive of the financial abuser, who also entered into a subsequently voided marriage with the incompetent.

As the population ages, there are more and more Ardittos practicing law against the interests of their incompetent clients, deterring prosecutions, objecting to law enforcement and conservatorship discovery practice, and impeding or preventing the rescue of their "clients" from the perps in whose custody the incompetent clients sometimes die. These perps inflict serious harm on the vulnerable incompetent people who need conservatorships. These perps sometimes knowingly get the perp appointed as conservator, and usually drive attorneys fees up to the point that the victim lacks the funds to pay for the care they need. Result: when they survive the abuse, they end up prematurely institutionalized.

The case of Sullivan v. Dunn 198 Cal. 183, 244 p. 343 (1926) indicates that the mere fact that a lawyer shows up and alleges that he or she represents the proposed conservatee does not mean that the proposed conservatee has the capacity to hire the lawyer. It is obvious that a party who cannot exercise any power or waive any right, and who lacks the capacity to contract (Civil Code § 40), cannot prosecute or dismiss an appeal or action on his own. "It is the statutory rule in this state that the power of an agent is terminated as to any person having notice thereof by the incapacity of the principal to contract." Sullivan v. Dunne, supra. "It is also well recognized by the authorities that the law of principal and agent is generally applicable to the relation of attorney and client (1 Weeks on Attorneys, p. 216), and that the insanity or incapacity of the client will therefore operate as a termination of the authority of the attorney [citations omitted.]" Sullivan v. Dunne, supra.

The duty of confidentiality is not absolute. Where there is a question concerning the legal mental capacity of a principal who has signed a durable power of attorney, if the agent needs the information to carry out his or her duties (i.e., because the principal has become incompetent), Probate Code ‘4235 requires the principal’s lawyer to disclose relevant information when requested by an attorney in fact, apparently regardless of the incompetent client’s objections to the disclosure of confidential information. Hence, the often raised contention that the lawyer’s duty of confidentiality is absolute is groundless.

The duty of confidentiality in California is part of the duty of loyalty which, at its core, is a duty to act in the client’s best interests. Case law in the criminal area establishes the proposition that a lawyer must sometimes tell the court that his/her client is incompetent. In People v. Stanley, 10 Cal.4th 764, 806-807, 42 Cal.Rptr.2d 543, 897 P.2d 481 (1995), defense counsel in a capital murder case presented substantial evidence of incompetence.

The lawyer was required by law to notify the court of his suspicion that his client was incompetent, even if the client objected to the disclosure. California Penal Code § 1367, and the 6th Amendment case right to the right to the effective assistance of counsel (e.g., Dusky v. United States (1960) 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (Dusky ); Drope V. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975)), imposed on the lawyer the duty to make those disclosures.

That body of law requires a lawyer to protect his/her client from being convicted of even the smallest crime, when the client/defendant lacks the capacity to "understand the nature of the proceeding" or effectively assist counsel. The paramount duty of a lawyer is to act in the client’s best interests. Clients are presumed to be competent, in the absence of evidence to the contrary, and a lawyer should resolve reasonable doubts in favor of the assumption that the client is competent. But where the lawyer knows that the client is incompetent, the lawyer may not act contrary to the client’s best interests, relying for authority on the utterances of a person who fails the tests set forth in Probate Code §§ 811 and 812.

People v. Stanley, supra, also stands for the proposition that the court can appoint an additional attorney to represent a person where the Court has serious doubts about that person’s competence. In People v. Stanley, the defendant later contended that he was competent, and so the trial court appointed an additional attorney at a competency hearing to represent defendant’s personal point of view that he was competent.

Upon appeal from a conviction, the California Supreme Court held that since the "defendant has an equally important interest in not being sent to a mental institution with his criminal case unresolved, if he is competent" (1) the defendant was not deprived of due process by the appointment of a second lawyer over his objections, or (2) the effective assistance of counsel, and (3) the court did not create a conflict of interest by appointing counsel to represent the defendant’s personal viewpoint. "In so doing [the trial court] permitted the jury to hear every side of the issue of defendant’s competence, thereby assuring defendant a fair trial."

The Court should have the same authority in a non-criminal proceeding, and lawyers should have the same duty in a non-criminal proceeding.

Why should civil law attorneys be put to any less of a burden to take cognizance of evident incompetence than [1] psychiatrists, who are required to report elder abuse to Adult Protective Services, or [2] criminal defense counsel (under Penal Code §1367 and the 6th Amendment case law cited above), and [3] lawyers for principals who have executed durable powers of attorney?

Respect for the legal system would not be enhanced by a rule allowing or requiring lawyers to inflict harm on a client whom the lawyer knows is incompetent, citing "The defense of civil liberties" to justify paying the lawyer for obeying the incompetent client’s instructions to litigate "to the limits of the law," seeking a harmful result, Sullivan, supra, and consigning an incompetent victim into the maw of the elder abuse beast.

The legal system’s strongest critics’ worst expectations certainly would be fulfilled by a lawyer who is handsomely paid for successfully defeating a conservatorship petition (or unsuccessfully waging a lengthy war of litigation against it), where the lawyer has clear and convincing evidence of his or her client’s incompetence (See, the standards for incapacity/incompetence in Prob. C. §§810-813, DPCDA), and knows of the high probability of physical and financial harm which will result to the client, absent the protection of a conservatorship.

The proposed bill does not address what the court appointed lawyer’s duties would be. The proposed bill merely would allow the court to appoint an attorney for the proposed conservatee, despite the fact that another member of the bar shows us and says s/he is the proposed conservatee’s lawyer and the proposed conservatee says that that is true.

Cf. CCP section 284, limiting the court’s authority to appoint legal counsel.

Cf. The latest version of draft new Rule 1.14 of the ABA Model Rules of Professional Conduct (attached as Exhibit 1).

Current statutory law does not tell the court that it indeed does have the authority to appoint an attorney for a proposed conservatee whose capacity to hire a lawyer is in question. This proposal would provide statutory authorization for the appointment of a lawyer and would provide procedures for the resolution of conflicts between the various lawyers purportedly representing the proposed conservatee.

In an unpublished Second District Court of Appeals decision in connection with the conservatorship of Harry Cassel (a case in which I was involved), the Second District reversed an order appointing conservator. The appellate decision seems to suggest that the L.A. Probate Court lacked the authority to appoint additional counsel for the proposed conservatee, Harry Cassel, because a lawyer showed up at a hearing, and contended that he was Harry Cassel’s lawyer, where Harry was able to identify that man as his lawyer. The opinion of the Court of Appeal suggests that that is enough evidence of the capacity to hire a lawyer.

The Second District’s approach to the issue of standing to represent a client, contradicts the sparse case law on [1] the subject of the legal mental capacity to hire a lawyer, and [2] the authority of the court to appoint another lawyer to represent a person about whose capacity (to hire a lawyer) the court has serious doubts. The law should be clarified concerning both of these topics. This proposal addresses the latter of the two topics.

Proponent is unaware of any studies, reports or statistics which support this proposal, although cases such as Sullivan v. Dunn, and People v. Stanley cited infra, and Conservatorship of Chilton, 8 Cal. App. 3d. 34, 86 Cal. Rptr. 860 (2nd District 1978) suggest that the problem is real . . . and growing, as the population ages.

None known to proponent except AB 1491 of 1999, which was effectively dropped by the Section due to mostly unfounded objections by the Committee Analyst.

None known.

Proponent anticipates that possibly some mental health patient’s-rights advocate groups might oppose this, contending that, no matter how grievously mentally impaired a person is, he or she has the "right" to select an attorney (who can vigorously take advantage of, and abuse his or her position as the incompetent’s lawyer, litigating to the limits of the law, to the great financial and frequently physical detriment of an aging frail client).

This would possibly avoid unnecessary trials where certain lawyers, who avariciously act in bad faith, in effect expropriate an incompetent person, and use that person’s position (as a proposed conservatee) as a vehicle for full employment for the lawyer to litigate all the way through to a jury trial, running up outrageous bills, and causing harm to many people, and facilitating losses of funds while the litigation goes on.

The subject matter is directly related to the practice of the members of the Estate Planning, Trust and Probate Law Section. The Section has the particular expertise pertaining to the management of the affairs of incompetent persons.

ABA Standards for Criminal Justice 7-4.1 (2d ed. 1986)

American Bar Association

Standards for Criminal Justice

(a) No defendant shall be tried while mentally incompetent to stand trial.

(b) The test for determining mental competence to stand trial should be whether the defendant has sufficient present ability to consult with defendant’s lawyer with a reasonable degree of rational understanding and otherwise to assist in the defense, and whether the defendant has a rational as well as factual understanding of the proceedings.

(c) The terms competence and incompetence as used within Part IV of this chapter refer to mental competence or mental incompetence. A finding of mental incompetence to stand trial may arise from mental illness, physical illness, or disability; mental retardation or other developmental disability; or other etiology so long as it results in a defendant’s inability to consult with defense counsel or to understand the proceedings.

COMMENTARY * * *

A review and analysis of precedent and commentary from legal and mental health or mental retardation professionals reveals a general trend toward certain categories of analysis to determine competence. Most commentators feel that criteria to determine competency under the general Dusky formulation should be ‘functional,’ in that they require an evaluation of a particular defendant’s skills rather than a general determination of that defendant’s mental condition. [FN25] An evaluation should touch on at least five different areas:

1. Defendants should have a perception of the process not distorted by mental illness or disability. Whether phrased in terms of (a) an ability to perceive rationally and without distortion, [FN26] (b) an ‘understanding’ of the process, [FN27] or (c) an ‘awareness’ of the charge and possible verdicts, [FN28] or (d) couched in a codified requirement that defendants understand that there is a judge on the bench, a prosecutor who will try to convict, and defense counsel who will defend against criminal charges, the thrust of the requirement is that defendants understand the nature of the process and their functions as participants within that process free from undue perceptual distortion.

2. Defendants require a capacity to maintain the attorney-client relationship, embracing an ability to discuss the facts of a case with counsel ‘without paranoid distrust,’ [FN29] to advise and accept advice from counsel, to elect an appropriate plea, and to approve the legal strategy of the trial. The relationship requires an ability to consult rationally about a pending case which is something more than a superficial capacity to converse with others. [FN30]

3. A third requirement, somewhat akin to the second, bears on the ability to recall and relate factual information. If a primary purpose of the prohibition against trying incompetent defendants is to preserve accuracy in fact finding, then defendants must be able to recall and relate factual occurrences. If they are not, they cannot reveal exonerating circumstances to their attorneys. [FN31] This requirement has been variously phrased: that a defendant have ‘sufficient memory to relate answers to questions posed’ to him or her, that ‘he [or she] can follow the testimony reasonably well,’ and that there be a ‘capacity to realistically challenge prosecution witnesses.’ Without that capacity, defendants realistically are unable to exercise the rights to consult with counsel, testify in personal defense, and confront accusers. [FN32]

4. Defendants should be capable of testifying in personal defense if that should prove appropriate. [FN33]

5. A final factor is a defendant’s abilities to meet the competency criteria in the setting of the particular charges, the extent of the defendant’s needed participation in trial proceedings, and the complexity of the case. Therefore, an evaluator should consider a defendant’s mental ability in relation to the severity of the charge and the complexity of the case. [FN34]

Standard 7-4.1(c) establishes a clear dichotomy between mental health or mental retardation concepts and legal principles governing present mental competency. If defendants are capable of meeting the articulated requirements for competence, the presence or absence of mental illness is irrelevant.

SECTION 1. Probate Code section 1471.2 is enacted to read as follows:

(1) To understand free from undue perceptual distortion that there is a trier of fact, a petitioner who will try to prove the need for conservatorship, and an attorney who will oppose the conservatorship, the nature of the process, and their functions as participants within that process.

(2) To maintain the attorney-client relationship, including an ability to discuss the facts of a case with counsel without paranoid distrust, to advise and accept advice from counsel, to elect an appropriate plea, and to approve the legal strategy of the trial, including an ability to consult rationally about a pending case, which entails more than a superficial capacity to converse with others.

(3) To recall, understand and relate factual information and factual occurrences, to a sufficient extent to be able to reveal exonerating circumstances to their counsel. This includes sufficient memory to relate answers to questions posed to him or her, to follow testimony reasonably well, and to realistically challenge witnesses’ testimony.

(4) To testify, if that should prove appropriate.

(5) To meet the competency criteria in the setting of the proposed conservatee’s collaboration with counsel outside the courtroom. The court should consider the extent of the proposed conservatee’s needed participation in trial proceedings, and the complexity of the case, a proposed conservatee’s mental ability in relation to the size of the estate, the risks facing the proposed conservatee’s estate or person, and the complexity of the case.

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY

(a) When a client's capacity to make adequately considered decisions in connection with the 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.

Comment

[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

[3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client's behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.

[6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

[7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

Disclosure of the Client's Condition

[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.

ABA Standards for Criminal Justice 7-4.1 (2d ed. 1986)

American Bar Association

Standards for Criminal Justice

(a) No defendant shall be tried while mentally incompetent to stand trial.

(b) The test for determining mental competence to stand trial should be whether the defendant has sufficient present ability to consult with defendant’s lawyer with a reasonable degree of rational understanding and otherwise to assist in the defense, and whether the defendant has a rational as well as factual understanding of the proceedings.

(c) The terms competence and incompetence as used within Part IV of this chapter refer to mental competence or mental incompetence. A finding of mental incompetence to stand trial may arise from mental illness, physical illness, or disability; mental retardation or other developmental disability; or other etiology so long as it results in a defendant’s inability to consult with defense counsel or to understand the proceedings.

COMMENTARY * * *

A review and analysis of precedent and commentary from legal and mental health or mental retardation professionals reveals a general trend toward certain categories of analysis to determine competence. Most commentators feel that criteria to determine competency under the general Dusky formulation should be ‘functional,’ in that they require an evaluation of a particular defendant’s skills rather than a general determination of that defendant’s mental condition. [FN25] An evaluation should touch on at least five different areas:

1. Defendants should have a perception of the process not distorted by mental illness or disability. Whether phrased in terms of (a) an ability to perceive rationally and without distortion, [FN26] (b) an ‘understanding’ of the process, [FN27] or (c) an ‘awareness’ of the charge and possible verdicts, [FN28] or (d) couched in a codified requirement that defendants understand that there is a judge on the bench, a prosecutor who will try to convict, and defense counsel who will defend against criminal charges, the thrust of the requirement is that defendants understand the nature of the process and their functions as participants within that process free from undue perceptual distortion.

2. Defendants require a capacity to maintain the attorney-client relationship, embracing an ability to discuss the facts of a case with counsel ‘without paranoid distrust,’ [FN29] to advise and accept advice from counsel, to elect an appropriate plea, and to approve the legal strategy of the trial. The relationship requires an ability to consult rationally about a pending case which is something more than a superficial capacity to converse with others. [FN30]

3. A third requirement, somewhat akin to the second, bears on the ability to recall and relate factual information. If a primary purpose of the prohibition against trying incompetent defendants is to preserve accuracy in fact finding, then defendants must be able to recall and relate factual occurrences. If they are not, they cannot reveal exonerating circumstances to their attorneys. [FN31] This requirement has been variously phrased: that a defendant have ‘sufficient memory to relate answers to questions posed’ to him or her, that ‘he [or she] can follow the testimony reasonably well,’ and that there be a ‘capacity to realistically challenge prosecution witnesses.’ Without that capacity, defendants realistically are unable to exercise the rights to consult with counsel, testify in personal defense, and confront accusers. [FN32]

4. Defendants should be capable of testifying in personal defense if that should prove appropriate. [FN33]

5. A final factor is a defendant’s abilities to meet the competency criteria in the setting of the particular charges, the extent of the defendant’s needed participation in trial proceedings, and the complexity of the case. Therefore, an evaluator should consider a defendant’s mental ability in relation to the severity of the charge and the complexity of the case. [FN34]

Standard 7-4.1(c) establishes a clear dichotomy between mental health or mental retardation concepts and legal principles governing present mental competency. If defendants are capable of meeting the articulated requirements for competence, the presence or absence of mental illness is irrelevant.