Quasi-judicial Immunity in Conservatorships: a Guide for Court-appointed Counsel for Conservatees and Proposed Conservatees

• Publication year: 2016
• Author: By Sarah A. Brooks, Esq.,* Michelle L. Barnett, Esq.,* and Charles M. Riffle, Esq.*

QUASI-JUDICIAL IMMUNITY IN CONSERVATORSHIPS: A GUIDE FOR COURT-APPOINTED COUNSEL FOR CONSERVATEES AND PROPOSED CONSERVATEES

By Sarah A. Brooks, Esq.,* Michelle L. Barnett, Esq.,* and Charles M. Riffle, Esq.*

Probate Code sections 1470 and 1471 provide for the appointment of legal counsel for a conservatee or proposed conservatee in a conservatorship proceeding.¹ However, the Probate Code provides little guidance on counsel's role in the conservatorship proceeding. What guidance it does provide could easily create a conflict between the attorney's obligations under the Probate Code and the attorney's ethical obligations to his or her client, the person whose capacity is in question.² Unlike a guardian ad litem, who is tasked with advocating for his or her ward's best interests,³ an attorney is generally a zealous advocate for his or her client ? regardless of whether the client's position is what the attorney perceives to be in the client's best interests.⁴ But what is the practitioner to do when asked by the court to provide an opinion as to the incapacitated or possibly incapacitated client's best interests? And what liability does the court-appointed attorney face if his or her opinion is contrary to the client's wishes?

In McClintock v. West,⁵ the Fourth District Court of Appeal held that a guardian ad litem was immune from liability for professional negligence and breach of fiduciary duty under the doctrine of quasi-judicial immunity in a subsequent tort action initiated by her former ward. The court reasoned that quasi-judicial immunity was appropriate given that the guardian ad litem acted under the supervision of the trial court and in the best interests of her ward, fulfilling a role "intimately related to the judicial process."⁶

Although the Probate Code does not expressly state that independent counsel may be appointed to act in the "best interests" of the conservatee, counsel may be appointed to protect the "interests" of the conservatee or proposed conservatee.⁷ In practice, some California courts expect court-appointed counsel to report to the court the attorney's view of his or her client's "best interests,"⁸ as opposed to strictly following the client's wishes, even if contrary to the client's best interests. In such circumstances, should the attorney, like a guardian ad litem, be immune from subsequent tort liability under the theory of quasi-judicial immunity? In this article, the authors explore the ethical dilemmas independent counsel face when representing an incapacitated client and ask whether quasi-judicial immunity should protect court-appointed counsel from liability for actions the attorney takes in the client's "best interests."

I. COURT-APPOINTED COUNSEL IN CONSERVATORSHIPS

A. The Statutory Framework for Court-Appointed Counsel

In certain specified proceedings and "whether or not such person lacks capacity or appears to lack capacity," Probate Code section 1471 requires the court to appoint legal counsel for a "conservatee, proposed conservatee, or person alleged to lack legal capacity" where that person "is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter. . . ."⁹ The proceedings covered under Probate Code section 1471 include proceedings (1) to establish, transfer or terminate a conservatorship, (2) for the appointment or removal of a conservator, (3) affecting the legal capacity of the conservatee, and (4) to change the place of residence for a temporary conservatee.¹⁰ Even where the conservatee, proposed conservatee, or person alleged to lack legal capacity has not requested an attorney, the court must appoint an attorney in the aforementioned proceedings "if the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee."¹¹

In addition to the mandatory appointment of counsel, the court has broad discretionary authority to appoint counsel for a conservatee or proposed conservatee in any conservatorship proceeding if the court determines the person is not otherwise represented and the appointment "would be helpful to the resolution of the matter or is necessary to protect the person's interests."¹²

The Probate Code is conspicuously silent as to whether court-appointed counsel owes his or her client a duty of zealous advocacy and it provides no guidance where the lawyer's duty of advocacy conflicts with what is in the potentially incapacitated person's best interests. The issue is further complicated by the unique nature of conservatorship proceedings, which are protective in nature but may result in substantial loss of the client's individual rights.¹³ Court-appointed counsel is therefore placed in the difficult position of arguing against the establishment of a conservatorship, when in fact the client may need the conservatorship to protect against suspected undue influence, elder abuse, or other harm resulting from the client's diminished capacity.

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The attorney who is faced with the dilemma of following the incapacitated client's instructions or taking a conflicting position to protect the client's best interests has few tools to navigate what would appear to be an ethical minefield. Independent counsel may look for guidance in California case law, the Business and Professions Code, the Rules of Professional Conduct, or local rules of court, but these legal resources do not fully address the issues facing the attorney for a potentially incapacitated person.¹⁴ Independent counsel also may turn to non-binding advisory ethics opinions issued by state and county bar associations for help.¹⁵ Unfortunately, these sources vary widely when interpreting the role of independent counsel in the conservatorship proceeding and lead to conflicting results.

B. California Case Law

Although its reach is limited, Conservatorship of Drabick¹⁶ is one of the few California cases providing guidance to independent counsel for a conservatee. In Drabick, the conservator sought court authority to remove the feeding tube for the conservatee, who was comatose and in a persistent vegetative state from injuries sustained in a car accident.¹⁷ The court appointed independent counsel for the conservatee under Probate Code section 1470, who determined that the conservatee would have refused life-sustaining treatment and, therefore, removing the feeding tube was in the conservatee's best interests.¹⁸ On appeal, the conservatee's new counsel argued that the conservatee's former counsel had not adequately represented the conservatee's interests when counsel advocated for the removal of life sustaining treatment.¹⁹ The Sixth District Court of Appeal disagreed and determined that independent counsel was not required to advocate for continued treatment if counsel did not believe it was in the conservatee's best interests. The court reasoned, "[w]hen the client is permanently unconscious. . . the attorney must be guided by his [or her] own understanding of the client's best interests. There is simply nothing else the attorney can do."²⁰

However, and most importantly, the Drabick court expressly declined to extend its holding to circumstances where the conservatee could communicate with his or her counsel, noting that "[w]hen an incompetent conservatee is still able to communicate with his attorney it is unclear whether the attorney must advocate the client's stated preferences ? however unreasonable ? or independently determine and advocate the client's best interests."²¹ Although Drabick provides some guidance to independent counsel, the role of court-appointed counsel is less clear in the vast majority of cases, where the client has diminished capacity but is still able to communicate his or her wishes.

C. Court-Appointed Counsel's Ethical Requirements

California attorneys must comply with the Business and Professions Code and the Rules of Professional Conduct in their representation of clients.²² Notably, California is the only state that has not adopted the ABA Model Rules of Professional Conduct,²³ which expressly authorize an attorney to take protective measures on behalf of a client with diminished capacity, including seeking appointment of a conservator, when the lawyer reasonably believes the client cannot adequately act in his or her own best interests.²⁴ Under California's current rules, an attorney may not reveal the client's confidences or assume a position adverse to the client without the client's informed consent.²⁵ There are no exceptions for an attorney representing an incapacitated client, which poses challenging ethical issues, particularly in the context of conservatorships.

1. Duty of Confidentiality

An attorney's duty of confidentiality is sacrosanct. In California, an attorney has a duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."²⁶ A client's "secrets" may include observations by the attorney during the course of the attorney-client relationship.²⁷

The Rules of Professional Conduct provide that an attorney must not reveal his or her client's confidences or secrets "without the informed consent of the client[.]"²⁸ The one exception to this rule is when an attorney reasonably believes disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm. In this limited circumstance, an attorney may make a limited disclosure.²⁹ Disclosure is not permitted to prevent financial harm to the client or to prevent physical harm that does not result from a criminal act.³⁰

In the absence of the "informed consent of the client," there is no authority in either the Business and Professions Code or the Rules of Professional Conduct for independent counsel to disclose the secrets or confidences of a client whose incapacity is in question to anyone ? not even the court. Given that independent counsel is appointed where a person...