Conservatorship of Karen Lea Holmes

Case Number

22PR00530

Case Type

Hearing Date / Time

Tue, 05/28/2024 - 09:00

Nature of Proceedings

Motion to be Relieved as Counsel

Tentative Ruling

Probate Notes:

Appearances required.  The following is noted for the Court at the hearing:

Denial Recommended.  The Public Defender seeks to withdraw from representation of the conservatee, citing Government Code section 27706, and Brown v. Superior Court (1981) 119 Cal.App.3d 189, for the proposition that the Public Defender is not required to represent a conservatee who appears “financially able to employ counsel” from the documents on file in the conservatorship proceeding.  This, now boilerplate, argument was already rejected in Department 1, on an identical motion in case no. 20PR00095.  The Court should take judicial notice of that case, and again rule that the Public Defender is incorrect, and deny withdrawal in this case.

Although Government Code section 27706(d) contains an express qualifier that the Public Defender “shall represent any person who is not financially able to employ counsel” when ordered to do so by this Court, that section does not contain any authority governing (nor prohibiting) the Public Defender from being appointed by this Court pursuant to Probate Code section 1471, when a person/conservatee does have the financial ability to employ private counsel.

Stated more simply, that statute, nor any other, prohibits this Court from appointing the Public Defender to represent a conservatee with the means to pay the Public Defender, nor does any statute prohibit the Public Defender from being paid from that estate. Public Defender in this case presumed the financial ability determination is both its own to make, and inseparably connected with appointment.  Both presumptions are false.

Probate Code section 1471 gives this Court authority to appoint the Public Defender in cases where the conservatee appears to have the resources to finance private counsel, and that section is not qualified or hindered by the financial ability limitation in Government Code section 27706.  In fact,  Probate Code section 1472 allows the Public Defender to be paid by a conservatee with means, the same as if a private counsel was representing the conservatee.  This raises the obvious question of why such authority would exist if the Public Defender could not be appointed in the first place under an adequate financial means scenario. 

Neither those sections of the Probate and Government Codes, nor any other authority cited by the Public Defender, give the Public Defender any right to refuse an appointment by this Court, when this Court appoints the Public Defender pursuant to section 1471. 

Public Defender’s citation to Brown v. Superior Court (1981) 119 Cal.App.3d 189, is not only unpersuasive, it has the appearance of being purposely misleading.  In that proceeding, the Public Guardian had not been appointed to represent a conservatee in a proceeding pursuant to Probate Code section 1471, but had been appointed to represent the conservatee in what appears to have been a civil (or quasi civil) action for “recovery of personal property.”  The Court in Brown clearly stated in its holding that:

Section 1471, subdivision (a) does not encompass a proceeding by a conservatee to recover personal property. The proceeding with which we are concerned is not a proceeding pursuant to section 1471, subdivision (a), nor is it a proceeding pursuant to subdivisions (b) or (c).

(Brown, supra, 119 Cal.App.3d, at p. 191 [emphasis added].)

Since the Public Defender was appointed in this case pursuant to Probate Code section 1471(a)(1), Brown is completely inapplicable, and citation to that case by the Public Defender as carte blanche authority to refuse to represent non-indigent persons in conservatorship cases was misleading, at the very least.  The court should dismiss that argument out of hand, and admonish counsel to be more careful in the future with their citations.

Secondly problematic and unpersuasive is the fact that the Public Defender is not the finder of fact on the “not financially able to employ counsel” standard in Government Code section 27706, because this Court is the final finder of that fact. (Gov. Code, §27707 [“The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender.”].)  This was, ironically, confirmed in Conservatorship of Berry (1989) 210 Cal.App.3d 706, cited by the Public Defender here.  In that case, the Court held “enactment of section 27707 thus provides for the judicial review of the public defender's determination of indigence.” (id. at p. 715.)

Further, Probate Code section 1470(c)(3) demands “The Judicial Council shall adopt guidelines to assist in determining financial eligibility for county payment of counsel appointed by the court pursuant to this chapter.” (Emphasis added.) Those guidelines were developed and placed in Appendix E to the California Rules of Court, which state:

If the court finds that the responsible person, including a responsible person described in paragraph 4, can pay all or a portion of the cost of appointed counsel, can pay those costs in installments, or can pay those costs under some other equitable arrangement without using money that normally would pay for the common necessaries of life for the responsible person and the responsible person’s family, the court may order the responsible person to pay appointed counsel directly, reimburse the county for the costs of appointed counsel paid by the county, or both, in part or on such other terms as the court determines are fair and reasonable under the circumstances.

(CRC, Appendix E, ¶5 [emphasis added].)

Public Defender’s citation to Conservatorship of Berry (1989) 210 Cal.App.3d 706 is, thus, also similarly misleading and inapplicable here. 

Additionally, the Court in Berry firmly held “there is no basis in the Probate Code for an award of fees to the public defender when the public defender has been appointed to represent a conservatee or proposed conservatee in a proceeding not specified in Probate Code sections 1471, 1852 or 3205.” (Id. at p. 724 [emphasis added].)  The Court in that case made this emphasis, because the appointment in one of the four consolidated cases on appeal was under the discretionary provisions of 1470, not the mandatory provisions of 1471; and the rest were appointments under the LPS statutory scheme not applicable here.  Making citation to Berry equally inapplicable to both arguments above.

Therefore, the Court should confidently deny the Public Defender’s request to withdraw, and encourage the Public Defender to petition for its fees in the manner allowed under the Probate Code, because the Public Defender is entitled to be compensated for its services pursuant to Probate Code section 1472, giving it an avenue to provide itself apparently much needed funding. (“Public defenders slam Newsom for slashing budget, prioritizing theft prosecution.” https://www.courthousenews.com/public-defenders-slam-newsom-for-slashin….)

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334