Metropolitan News-Enterprise


Friday, August 25, 2009


Page 11


The Legal Community:

Trusts and Estates: Becerra Discusses Rules of Conduct and Sanctions





 (The writer is a member of the law firm of Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP. He practices in the areas of probate and trust administration, litigation, conservatorships and estate planning. Oldman has served as chair of the State Bar’s Trust and Estates Section, chair of the Los Angeles County Bar Association’s Probate Section, and as president of the San Fernando Valley Legal Foundation. He has written extensively on probate and trust law. Oldman is currently a public member of the California Board of Accountancy.)


In the Conservatorship of Becerra (July 28, 2009) 175 Cal.App.4th 1474, the Fourth District discussed the interaction between the Rules of Professional Conduct and the ability of a court to award sanctions on the basis of a violation of the rules.

A petition for appointment of a conservator was filed in the matter of Bibianna Becerra by Vida Negrete, a professional conservator. The court appointed Parisa P. Farokhi as an attorney to represent the conservatee as court appointed counsel. After her appointment, Ms. Farokhi requested that no counsel contact the conservatee except through her. Linda Paquette, who represented Vida Negrete, eventually met with the conservatee without first obtaining permission from Ms. Farokhi. 

During the conservatorship proceedings, the primary point of dispute was who would be the conservator.  Family members appeared and petitioned for appointment in lieu of Ms. Negrete. Eventually, Ms. Negrete withdrew her petition and the court-appointed counsel indicated that a Mr. Donnelly should be appointed for Mrs. Becerra. Prior to Ms. Negrete’s withdrawal, Linda Paquette filed a motion for appointment of a Evidence Code 730 expert to examine the conservatee to determine his capacity to express a preference concerning who ought to be her conservator. Ms. Farokhi opposed the motion and disclosed to the court that Ms. Paquette had had contacts with the conservatee after Ms. Farokhi’s request that no attorney contact the conservatee without her permission. The court ultimately denied the motion for the appointment of an expert.

Thereafter, Ms. Farokhi requested that the court issue an order to show cause for sanctions and attorney fees because of Ms. Paquette’s contact with the conservatee. The court issued orders to show cause in two departments and without any description of the conduct for which the sanctions would be sought. In due course, Ms. Paquette filed opposition to the sanctions and attorneys fees requests. A hearing was held before  San Diego Superior Court Judge David G. Brown, who ordered that both sanctions and attorneys be paid by Ms. Paquette. At the same time, Ms. Paquette appeared before Judge Cline, who told her that Judge Brown would hear the sanctions and attorney fees requests even though all matters had been consolidated in his court for the conservatorship. Judge Brown reconsidered his own orders and reaffirmed them. Subsequently, Linda Paquette appealed the orders; the appeal was kept separate from other appeals pending in the conservatorship.

Abuse of Discretion

On examination of the issues raised by OSC and the opposition, the Court of Appeal determined that the court issuing the sanctions and attorneys fees had abused its discretion since no legal basis for them existed. The OSC was not based on attorney misconduct in litigation for the filing of frivolous matters under CCP 128.5. If the OSC was based on anything, it was based on either Sections 177.5 and/or 575.2 of the Code of Civil Procedure. These sections focus on the violation of court orders in a case or the failure to follow court rules.  However, these sections do not support an award of sanctions and attorneys fees for the violation of the Rules of Professional Conduct issued by the Supreme Court and administered as a matter of discipline by the State Bar. Since no legal basis for the sanctions and attorney fees existed, the trial court abused its discretion since it had acted in excess of its legal jurisdiction.  Since the Court of Appeal could dispose of the matter on the basis of a point of law, it did not consider the further arguments raised by Ms. Paquette regarding the adequacy of notice and her attempts to disqualify Judge Brown under Section 170.1 of the Code of Civil Procedure. Ms. Farokhi attempted to have the matter returned to the trial court for further hearing. However, the Court of Appeal declined, since no legal basis for the OSC existed.

While the matter was sufficiently important to the appellant to pursue it, the matter seems of relatively little importance outside of its holding that the Rules of Professional Conduct cannot by themselves be the basis of sanctions and attorney fees in a court proceeding. If the court had first enjoined Ms. Paquette from contacting the proposed conservatee, the court would clearly have had the power to punish Ms. Paquette for any subsequent violation. Such a result would be unremarkable and would not have been published.

Continuing Problem

However, beyond the specific problem raised by the case, the decision is important for illustrating the continuing problem of the role of court-appointed counsel in a conservatorship proceeding where other counsel are attempting to speak for the conservatee. In this instance, Ms. Paquette, who was representing a petitioner, spoke with the conservatee so as to support the conservatee’s desire that someone other than the person suggested by Ms. Farokhi be appointed as conservator. While the relationship between Ms. Paquette and her client as a petitioner is unusual, what is common is the appearance of purported counsel for the conservatee who have views that differ from court-appointed counsel.

Assuming that a proposed conservatee retains counsel to oppose the conservatorship and the court has appointed other counsel to represent the conservatee, the court must decide who should speak for the conservatee.  Very often, this depends on the ability of a proposed conservatee to state strong and intelligent preferences in favor of privately retained counsel. The court must be persuaded that the conservatee is able to retain and instruct counsel for that attorney to act on the proposed conservatee’s behalf. 

Very often, court-appointed counsel takes the position that the proposed conservatee lacks the capacity to instruct counsel and that retained counsel should be ignored. On occasion, the court will hold a hearing on the capacity of a conservatee to instruct her own attorney without the benefit of one appointed by the court.  Sometimes, this will require testimony by geriatric psychiatrists and possibly a 730 expert to assist the court.  Depending on the outcome of the hearing, private counsel may or may not be allowed to stay in the proceedings.

Conservatee’s Best Interests

Assuming that the court determines that the proposed conservatee lacks the ability to instruct counsel, only court-appointed counsel will remain. However, such counsel will at times be confronted by the wishes of a conservatee for the appointment of someone other than the person who is thought by court appointed counsel to be in the best interests of the conservatee.  Whether or not the court appointed counsel for the conservatee will represent the desires of the conservatee in such circumstances is a difficult question for the attorney to answer. 

The courts in Los Angeles will suggest that the court-appointed counsel should represent the desires of the client and that an attorney should resign if unable to do so. However, a strong belief continues in the courts that court-appointed counsel is also to act in the best interests of the proposed conservatee and not necessarily follow the conservatee’s desires if they are not in the mind of counsel as in the conservatee’s best interests. In such an instance, counsel abandons the role of an advocate and becomes a type of guardian ad litem. The Probate Code makes no provision of court-appointed counsel to act in the role of a protector. At some point, a serious challenge will arise over the actions of a court-appointed attorney who acts protectively but contrary to the wishes of his client. Ultimately, a court will need to decide how counsel should act in such a circumstance.


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