Funding and Fees Review Project

Project Examines Use of Public Funds and Seizure of Private Assets to Pay for Legal Services in Conservatorships.

Press Release: (September 7, 2021) Link Coming Soon…

In December 2020, Spectrum Institute launched a project and convened a panel of advisors to review the funding of legal services in probate conservatorship proceedings.  The study has two components.

Part One of the study has reviewed public funding of legal services for indigent conservatees and proposed conservatees that are provided by public defenders and appointed counsel.  This will include an evaluation of the source and adequacy of public funding as well as the quality of legal services that are being provided.

Part Two will examine the assessment of fees from the assets of conservatees and proposed conservatees to pay for lawyers representing various parties, including the conservatees and proposed conservatees themselves, petitioners, temporary conservators, permanent conservators, and guardians ad litem.  It will look at legal standards for fee awards, methods for assessing fee payments, conflicts of interest, quality of legal representation, auditing of fee claims, methods of challenging fee awards, and alternatives to the current “fee for all” ad hoc assessment process.

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.

The manner of funding legal services for indigents in conservatorship proceedings varies from county to county.  In some places, county supervisors fund the public defender to provide such services.  Caseloads and quality of representation by public defenders are not monitored.  In other locations, supervisors allow the judges to manage a court-appointed-counsel program and the county pays the attorneys as ordered by the court.  Quality of representation is not monitored.  Performance standards do not exist for either method of indigent representation.

Phases of Project

Part One Was Released:  A report with findings and recommendations from the first phase — Public Funding of Legal Services in Conservatorship Proceedings – is being released on September 7, 2021.  For a press release, click here.  For an executive summary, click here.  For the full report, click here.  The report is being distributed to the officials and agencies to whom recommendations are directed.

Donations Needed for Part Two:  Research into the seizure of assets of conservatees and proposed conservatees to pay for the fees of a variety of lawyers in these cases began more than a year ago.  The next phase of research will involve a review of the policies and practices by superior court judges throughout the state.  This is a massive undertaking.  This factual investigation, additional legal research, and writing a report for Part Two will require us to raise $20,000 to pay for staffing needs.  As soon as these funds are obtained, the work on Part Two will continue.  We will also enlist the assistance of two legal interns for the winter semester (January 2022) to help complete this phase of the project.  Donations to Spectrum Institute can be designated to be used for this specific project.  To make a donation to help us complete this important work, click here. 

Members of the Attorney Fee Review Team

Staff

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.

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.

Advisors

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.

Dr. Gloria Duffy, CEO of the Commonwealth Club of California, published “Courts should not be a vehicle for elder financial abuse” in the East Bay Times.

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.

Retired Superior Court Judge Stephen Lachs served as a superior court judge for 20 years. His first assignment was in the court’s mental health division.

Legal Intern – Summer 2021

Ben Dishchyan (Loyola): After earning a B.B.A. in finance from Loyola Marymount University, Ben Dishchyan made the decision to attend law school. He currently is a second-year law student graduating in May 2023 from Loyola Law School in Los Angeles.  Prior to attending law school, Ben worked in the elder care industry, placing elders in affordable board and care facilities that met their medical and personal demands. Being a licensed insurance broker, he also has knowledge in the sales and consulting of the insurance market. After law school, Ben’s goal is to serve the public need and be a successful public interest attorney. During the summer of 2021, he used his work experience and knowledge to provide legal research and advocacy to do research for Part One of the study focusing on public funding of indigent legal defense services.