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.