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Trusts and Estates

Ca. Trs. & Estates Quarterly 2019, Volume 25, Issue 1

A LAWYER IS A LAWYER IS A LAWYER

By Anne M. Rudolph, Esq.* and Ralph E. Hughes, Esq.*

I. SYNOPSIS

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 control of property and other freedoms. 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 or 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.4 The contents of those reports often violate the attorneys’ duty to be a zealous advocate. 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 patriae 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.

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