Attorney Fee Review Team

Attorney Fee Review Team to Examine Flaws and Abuses in Probate Conservatorship Cases

Spectrum Institute has convened a workgroup to review policies and practices involving the
authorization and payment of fees to attorneys in probate conservatorship cases in California. The
findings of the review team will be used in a report to be sent by Spectrum Institute in 2021 to the chief
justice, governor, and legislature.

Two types of fee awards are being examined. One involves a probe into fees to attorneys who
represent conservatees and proposed conservatees and the reimbursement to counties for legal services
provided by public defenders to litigants. The other involves an analysis of fee awards to attorneys
representing petitioners, conservators, and other parties to these cases when the payments are taken
from the assets of conservatees or proposed conservatees.

Conservatorship proceedings are supposed to be protective proceedings where judges are responsible
for conserving the finances of the seniors and people with disabilities whose liberties and assets are in
jeopardy. A preliminary review of fee awards in conservatorships indicates that the practices of judges
in awarding attorney fees often do not advance this purpose. It also appears that judicial procedures
in setting fees vary widely among probate courts, thereby causing potential violations of the
constitutional requirements of equal protection and uniform operation of the law. The arbitrary manner
in which fee awards are made also may infringe on the right of conservatees to due process of law.

Legal research for the upcoming report – Rethinking Attorney Fee Awards in Conservatorship
Proceedings – has been conducted by Spectrum Institute for more than a year. The report will cite
gaps or ambiguities in the law, provide examples where judicial discretion has been abused, and
highlight inconsistent practices among probate courts throughout the state. It will propose revisions
to statutes and court rules in order to make the legal standards for fee awards advance the goal of
conserving the assets of these vulnerable litigants. Recommendations will suggest changes in policies
and practices to ensure that the procedures used by judges to award attorney fees comply with the
requirements of due process.

Attorney Thomas F. Coleman (Palm Springs), legal director of Spectrum Institute, leads the team consisting of: attorney Brook Changala (Long Beach), probate litigator and member of the board of Spectrum Institute; Rosalind Alexander- Kasparik (San Diego), former conservator who experienced excessive attorney fees; attorney Evan Nelson (Walnut Creek), plaintiff’s attorney in a lawsuit challenging conservatorship abuses in Alameda County; Sharon Holmes (Ahaheim), elder care consultant who witnessed attorney fee abuses; attorney Ben Bartlett (Berkeley), city council member and advocate for conservatorship reform; Susan Sindelar (Santa Barbara), deputy public defender; attorney Cheryl Mitchell (Spokane, WA), author of elder law and guardianship legal practice books by Westlaw; Anthony Chicotel, attorney with California Advocates for Nursing Home Reform; Alameda County Supervisor Nate Miley; Brendon Woods, Alameda County Pubic Defender; and Dr. Gloria Duffy, president and CEO of the Commonwealth Club of California.

Members of the Attorney Fee Review Team

Attorney Brook Changala
challenged the payment of
fees to a court-appointed
attorney who was arguing
against the client’s wishes.
He sees systemic problems
in the fee-award process.

Attorney Evan Nelson saw
Catherine Dubro’s assets
being drained when at one
point the there were five
attorneys being paid from
her estate, while Catherine
herself had no attorney.

Attorney Ben Bartlett is a
member of the Berkeley
City Council. He is
working with constituents
to reform conservatorship
proceedings in the probate
court in Alameda County.

Attorney Cheryl Mitchell
is an academic and legal
educator with a passion for
justice. She would like to
see systemic reforms in the
way that attorney fees are
calculated and awarded.

Alameda County
Supervisor Nate Miley is
an honorary member of the
team. He will participate
through his representative
to identify solutions to the
attorney fee problem.

Roz Alexander-Kasparik
was only allowed to be the
conservator for her fiancé
David Rector after the court
depleted David’s assets with
payments of fees to the
conservator and attorneys.

Sharon Holmes saw
Theresa Jankowski suffer
“legalized extortion” when
lawyers wanted hundreds of
thousands of dollars in fees
in exchange for a dismissal
of her conservatorship case.

Deputy Public Defender
Susan Sindelar has handled
scores of conservatorship
cases. She brings to the fee
study the perspective of a
legal advocate who is paid
from county funds.

Antony Chicotel is a staff
attorney with California
Advocates for Nursing
Home Reform. He is the
author of California
Conservatorship Defense:
A Guide for Advocates.

Alameda County Public
Defender Brendon Woods
(photo) is represented on
the team by John Plaine, the
attorney assigned to the
office’s probate
conservatorship desk.

Update: January 9, 2021
Commonwealth Club CEO Gloria Duffy Joins the Attorney Fee Review Team

Dr. Gloria Duffy has become a member of the Attorney Fee Review Team. She has been the president and CEO of the Commonwealth Club of California since 1996. The organization is the nation’s oldest and largest public affairs forum. Each year, it presents hundreds of forums on a wide range of topics involving politics, culture, society and the economy.

Dr. Duffy has initiated several special projects at the Commonwealth Club, including Voices of Reform (now the independent organization California Forward). These efforts convened experts and stakeholders in various fields to build a consensus for solutions and action.

She recently wrote a commentary titled “Courts should not be a vehicle for elder financial abuse.” It was published on January 6, 2021 in the East Bay Times. In the article, Dr. Duffy explains how she personally witnessed her mother’s assets being depleted by ongoing court authorized attorney fee awards in a conservatorship proceeding. The article calls for major reforms in how attorney fees are calculated and awarded in conservatorship cases. To read the commentary, click here.

New Members

January 28, 2021
Retired California Judge Becomes Advisor to the Attorney Fee Review Study
Retired Superior Court Judge Stephen Lachs has become an advisor to the Attorney Fee Review Study being conducted by Spectrum Institute. The study is examining how public funds as well as the personal assets of seniors and people with disabilities are being used to pay for lawyer’s fees and legal services in probate conservatorship proceedings in California. Preliminary research suggests that public funds are sometimes subsidizing deficient legal services. Anecdotal evidence shows that attorney fee awards being made by judges from the assets of conservatees are sometimes excessive and unreasonable. Judge Lachs, and other team members, will help Spectrum Institute identify problems in both areas of concern and review proposed solutions. Lachs served as a superior court judge for 20 years. His first assignment was in the mental health division of the Los Angeles Superior Court. Prior to his appointment to the bench by Governor Jerry Brown in 1979, Lachs was a supervising attorney in the public defender’s office in Los Angeles County. Lachs lives with his spouse in Rancho Mirage.

January 21, 2021
Research Associate Added to Attorney Fee Review Team
Attorney John Adam Di Pietro has agreed to participate as a research associate on the Attorney Fee Review Team. He will work closely with the project’s legal director to investigate how probate court judges throughout California are currently awarding attorney fees in conservatorship proceedings. His background in municipal law will benefit the study as we examine how county funds are being used to provide legal services to indigents in these cases. John’s legal practice for the past 44 years has involved legal representation for businesses as well as local governments. He received his law degree from the University of Notre Dame. John lives with his spouse in Palm Springs, California.