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)

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 $30,000 to pay for staffing needs.  As soon as these funds are obtained, the work on Part Two will continue.  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

Advisors

Legal Intern – Summer 2021