Discussions About Powers of Attorney – Responsibilities and Rights (Part 1)

I am writing a couple of posts discussing powers of attorney under the California Probate Code. One of my current cases involves responsibilities and rights under financial and healthcare powers of attorney. A prior case in litigation involved whether or not to disconnect mom from medical equipment that was believed to be keeping her alive. Some of the discussion in these posts will be from a talk that I presented for the Professional Fiduciary Association of California.

Responsibilities and rights under a power of attorney are determined by the wording of the power of attorney itself, statutes, case law, and the facts and circumstances of the situation. These can be complicated issues. Although the wording of the power of attorney is extremely important, and that wording should be where the determination of responsibilities and rights starts, as you will see in these posts, the wording of the power of attorney does not give the complete answer. There are lengthy chapters and books written on these topics – in this and a couple of following posts I will be discussing some of the statutory provisions that govern responsibilities and rights under powers of attorneys under the California Probate Code.

Under the California Probate Code powers of attorney are discussed at Probate Code §§4000-4545.

Thus, for example, California Probate Code §§4050 and 4051 provide as follows:

Probate Section 4050:

(a) This division applies to the following:

(1) Durable powers of attorney, other than powers of attorney for health care governed by Division 4.7 (commencing with Section 4600).

(2) Statutory form powers of attorney under Part 3 (commencing with Section 4400).

(3) Any other power of attorney that incorporates or refers to this division or the provisions of this division.

(b) This division does not apply to the following:

(1) A power of attorney to the extent that the authority of the attorney-in-fact is coupled with an interest in the subject of the power of attorney.

(2) Reciprocal or interinsurance exchanges and their contracts, subscribers, attorneys-in-fact, agents, and representatives.

(3) A proxy given by an attorney-in-fact to another person to exercise voting rights.

(c) This division is not intended to affect the validity of any instrument or arrangement that is not described in subdivision (a).

Probate Section 4051:

Except where this division provides a specific rule, the general law of agency, including Article 2 (commencing with Section 2019) of Chapter 2 of Title 6 of, and Title 9 (commencing with Section 2295) of, Part 4 of Division 3 of the Civil Code, applies to powers of attorney.

In relevant part, California Civil Code Sections 2019, 2020 and 2022 provide:

Civil Code Section 2019 – an agent must not exceed the limits of his actual authority.

Civil Code Section 2020 – an agent must use ordinary diligence and keep his or her principal informed of his or her acts.

Civil Code Section 2022 – a mere agent of an agent is not responsible as such to the principal of the latter.

Thus, whereas the power of attorney might appear to say or suggest that the attorney-in-fact has absolute authority at least in the circumstances that are listed, you can see that, nevertheless, the attorney-in-fact cannot exceed his or her actual authority, he or she has to use at least ordinary diligence unless the power of attorney states otherwise, and the attorney-in-fact must keep his or her principal informed of his or her acts. And these are themes and requirements that run throughout the statutes that more specifically discuss responsibilities and rights, and that will be discussed in future posts.

Every case and situation is different. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this website. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only. I am also the new Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

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New California case – California lacks personal jurisdiction over a Utah resident on a cross-complaint against her individually as a third party for intentional interference with prospective economic advantage, although the real property was located in California, and the Utah resident was appointed guardian ad litem for her mother in California

Keri Jensen v. Trine Jensen (Court of Appeal, Second Appellate District, B2896111, January 24, 2019), is very fact specific, so its value is mostly in the court’s legal evaluation as applied to this specific case. Frankly, I am a bit surprised by the court’s holding. Daughter Trine came to California and moved her mother back to Utah to stay with Trine. Trine was also appointed as guardian ad litem for her mother in California. Mother sued other daughter Keri in California relating to a parcel of real property that had been co-owned by mother and daughter Keri. In that lawsuit Keri then cross-complained against Trine personally and individually, not as guardian ad litem, for intentional interference with prospective economic advantage claiming that Trine took advantage of mom’s advancing dementia and coerced mom to sever the joint tenancy in the California real property.

Trine filed a motion to quash for lack of personal jurisdiction which the trial court granted and the court of appeal upheld. Since the parties apparently agreed that Trine was not subject to general jurisdiction in California, the court evaluated whether Trine purposefully availed herself of the California forum benefits, whether the controversy is related to or arises out of the Trine’s contacts in California, and whether California’s assertion of personal jurisdiction over Trine would comport with fair play and substantial justice.

It seems to me that this case is a close call as the real property is located in California. The court in dicta also made the point that Trine was not sued in California as guardian ad litem. I also note that there would be jurisdiction over Trine in Utah. The case also has other less relevant facts and is interesting reading relating to possible undue influence.

Thanks for reading this post. If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Every case situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

New California case upholds the substantial benefit doctrine for payment and recovery of attorneys’ fees and expert witness fees from the entire trust and the shares of all of the beneficiaries

In Smith v. Szeyller (Court of Appeal, Second Appellate District, B281758, January 16, 2019), the court held that the probate court’s award approving payment of attorneys’ fees and expert witness fees from the trust to the beneficiary who challenged the trustees’ accounting and management of the trust was appropriate under the substantial benefit doctrine. The beneficiary who challenged the trustees’ accounting and management of the trust prevailed, thus benefiting the trust and all beneficiaries of the trust although only the one beneficiary challenged the accounting and management. As the trust and all of its beneficiaries benefited from the successful challenge, it was appropriate that the attorneys’ fees and expert witness fees be paid and reimbursed from the assets of the entire trust and the shares of each of the beneficiaries thereof.

Note: I used this doctrine after a successful week-long trial in one of my cases.

Thanks for reading this post. If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Every trust situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

California Trustee – Some Of The Things That Could Keep You Up At Night

Trustee responsibilities are extensive and they arise from different sources including the wording of the trust itself, statutes, and case law. Of course, you have to cover all areas of your trustee responsibility, but here is my list of primary issues that could keep me up at night as a trustee. If you are a trustee, you want to do it right. If you are a beneficiary, you want to receive that to which you are entitled. And there can be a lot of angst, stress, misunderstanding, and disagreement in these situations. A significant part of my practice includes trust, estate, and elder abuse litigation and disputes – including contentious administrations. This list is not in any particular order. You might also notice that I update and republish this discussion from time to time as it includes important points that can apply to most trust administrations.

  1. Do you understand what the trust says and requires? This might sound basic, but it isn’t always.
  2. Have you marshalled and safeguarded the assets that are in or that are supposed to be in the trust? Are the assets in the trust, and are they under your control?
  3. Do you really understand your legal responsibilities including not only the wording and requirements in the trust, but also what the probate code and case law require of you? As a trustee you are a fiduciary. You have one of the highest standards of care, responsibility, liability and unbiased fairness and good faith required by law.
  4. Do you have a game plan for the steps required to accomplish the administration of the trust, including the time and timing that it will take? Completing the administration typically takes longer than most people would think. And this alone can cause disagreements, stress, and disputes. There is a court case on this issue, and there are court cases on many of these issues – basically, the case held that a trustee needs to conduct the administration process reasonably expeditiously, but the court decided to not to say that the administration must be “fast” or “quick” or completed in the “fastest” manner. In other words, there is a degree of reasonableness here.
  5. Are the trust assets being invested, managed and recorded properly and prudently? You need to evaluate and manage the returns and the risks, in accord with the wording of the trust and your statutory and case law fiduciary duties. So, for example, the stock market goes up and down. If the market goes down, is your approach to the portfolio management designed to help you avoid liability for losses, not just because the market went down, but also because you have implemented a portfolio approach and might allow you to net losses against gains? And are your investments prudently diversified, also taking into consideration possible risks? You will find additional posts on this blog about investment responsibilities.
  6. Do you have and use the proper fiduciary demeanor and decision-making approach required of a trustee?
  7. Is the trust cash flow prudently managed? You might, for example, through no fault of your own have a trust with declining asset values or liquidity issues, or there might simply be expense and distribution timing issues.
  8. Do you know what to do if you have beneficiaries who are disagreeing with your decisions, or who are threatening litigation, or who have initiated litigation?
  9. Do you know what information you must or possibly should provide to the beneficiaries and when to provide it, including, for example, possible accountings and other information? Even if an accounting isn’t required, sometimes I recommend that a trustee prepare an accounting or some form of an accounting anyway. And, of course, under all circumstances you should and usually must keep accurate and complete records. Even if an accounting is not required, or is not required to be prepared to cover a particular period of time, it is not uncommon for courts to require that an accounting be prepared anyway. And, court and probate code compliant accountings include specific and detailed requirements.
  10. Do you understand that you have personal liability exposure for the actions that you take or don’t take as the trustee? You are required to be prudent with risk management. Also consider possible fiduciary insurance coverage although in most situations it isn’t required or necessary.
  11. Do you know what additional planning opportunities exist or might exist, such as for tax purposes? Similarly, are you aware of new or changing tax, probate code, planning, and investment statutes and rules? And have you calendared important planning and compliance dates?
  12. Do you know how to prudently handle distributions and the timing of distributions? Do you know how to wrap things up and conclude the administration?
  13. Do you know what to do if there is a dispute about how the administration is being handled? This is important. As a trustee you can get yourself into even greater difficulty depending on how you handle disputes and disagreements. And for administration attorneys, I have written about changes to the Rules of Professional Conduct that were implemented on November 1, 2018, and that should be considered in appropriate circumstances.
  14. And last on this list, are you represented by the necessary and appropriate professionals to advise you on your fiduciary duties, trust administration management, compliance, taxes, investments, insurance, asset protection and preservation, communicating with beneficiaries, and other important or possibly important issues?

Thanks for reading this post. Every trust situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see above), and connect with me on LinkedIn or Twitter.

Deaths From Opioids Now Exceed Vehicle Deaths (Forwarding) – But Where Are The Numbers For Seniors And People In Care Facilities?

The following is a link to a short article discussing deaths from opioids now exceeding vehicle deaths. You have already been hearing a lot about opioids and deaths and addictions. Click Here

My issue with the discussion is that information and numbers aren’t given for seniors and people in care facilities. More is needed.

Best to you, David Tate, Esq. (and inactive California CPA)

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see above), and connect with me on LinkedIn or Twitter.

From CANHR – California’s Broken Long Term Care System (November 2018); Care Requirements; Applied to ERM and Risk Management

I am forwarding a paper prepared by California Advocates for Nursing Home Reform (CANHR). The paper is only 11 pages, but it is packed with point by point information. Here is the link to the paper: http://www.canhr.org/reports/2018/White_Paper/White_Paper_LTC_In_California.pdf

I have represented clients in serious injury and wrongful death cases against nursing homes, including, for example, unlawful restraints, beatings, improper staffing, and grossly negligent drops resulting in death. I must say, however, that I was surprised by the chilling information presented by CANHR. I also note that an increase in funding is requested to help remedy the situation – but as far as I am aware this is not a priority in the governor’s proposed new California budget.  

CANHR’s paper covers the following topics:

California’s Broken Long Term Care System:
• Nursing Homes
• Residential Care
• Home and Community Based Services
• Elder Abuse
What’s Wrong & What Needs to Be Done

Nursing homes are heavily regulated. Below, at the bottom on this post, I have copied and pasted two federal laws regulating nursing home quality of life and quality of care requirements. For example, a nursing home is required to provide care and services to enable each resident to attain his or her highest physical, mental, and psychosocial well-being. I ask that you read through to the bottom of this blog post including the two statutes that are included.

So . . . after reading CANHR’s paper and the recommendations provided, it would be appropriate to ask what, if anything, the governor, legislature, regulators, and nursing home owners, operators, executive officers, boards of directors, and others including the nursing director and medical director, are going to do to fix the problems?  I also refer you to my other blog discussing executive officer, director, audit committee, risk management, governance and other topics, http://auditcommitteeupdate.com. These types of issues involve and require (1) from a personal perspective – a feeling of personal humanity and care for people who truly are dependent on others, and (2) from the business perspective – enterprise risk management (COSO ERM 2017) and internal controls (COSO Internal Control 2013), and personal risk management for each and every resident of the nursing home.

The following are the broad components and principles in the COSO 2017 enterprise risk management framework:

And the following is an overview of a risk management process that you can use:

Best to you, David Tate, Esq. (and inactive California CPA)

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see above), and connect with me on LinkedIn or Twitter.

david-tate-picture-large-cropped

The following are the two federal regulations to which I referred above:

42 CFR §483.24 Quality of life

Quality of life is a fundamental principle that applies to all care and services provided to facility residents. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.

(a) Based on the comprehensive assessment of a resident and consistent with the resident’s needs and choices, the facility must provide the necessary care and services to ensure that a resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that such diminution was unavoidable. This includes the facility ensuring that:

(1) A resident is given the appropriate treatment and services to maintain or improve his or her ability to carry out the activities of daily living, including those specified in paragraph (b) of this section,

(2) A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene, and

(3) Personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival ofemergency medical personnel and subject to related physician orders and the resident’s advance directives.

(b)Activities of daily living. The facility must provide care and services in accordance with paragraph (a) of this section for the following activities of daily living:

(1) Hygiene – bathing, dressing, grooming, and oral care,

(2) Mobility – transfer and ambulation, including walking,

(3) Elimination – toileting,

(4) Dining – eating, including meals and snacks,

(5) Communication, including

(i) Speech,

(ii) Language,

(iii) Other functional communication systems.

(c)Activities.

(1) The facility must provide, based on the comprehensive assessment and care plan and the preferences of each resident, an ongoing program to support residents in their choice of activities, both facility-sponsored group and individual activities and independent activities, designed to meet the interests of and support the physical, mental, and psychosocial well-being of each resident, encouraging both independence and interaction in the community.

(2) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who –

(i) Is licensed or registered, if applicable, by the State in which practicing; and

(ii) Is:

(A) Eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body on or after October 1, 1990; or

(B) Has 2 years of experience in a social or recreational program within the last 5 years, one of which was full-time in a therapeutic activities program; or

(C) Is a qualified occupational therapist or occupational therapy assistant; or

(D) Has completed a training course approved by the State.

42 CFR §483.25 Quality of care

Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices, including but not limited to the following:

(a)Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident –

(1) In making appointments, and

(2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.

(b)Skin integrity –

(1)Pressure ulcers. Based on the comprehensive assessment of a resident, the facility must ensure that –

(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable; and

(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.

(2)Foot care. To ensure that residents receive proper treatment and care to maintain mobility and good foot health, the facility must –

(i) Provide foot care and treatment, in accordance with professional standards of practice, including to prevent complications from the resident’s medical condition(s) and

(ii) If necessary, assist the resident in making appointments with a qualified person, and arranging for transportation to and from such appointments.

(c)Mobility.

(1) The facility must ensure that a resident who enters the facility without limited range of motion does not experience reduction in range of motion unless the resident’s clinical condition demonstrates that a reduction in range of motion is unavoidable; and

(2) A resident with limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.

(3) A resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility with the maximum practicable independence unless a reduction in mobility is demonstrably unavoidable.

(d)Accidents.The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

(e)Incontinence.

(1) The facility must ensure that a resident who is continent of bladder and bowel on admission receives services and assistance to maintain continence unless his or her clinical condition is or becomes such that continence is not possible to maintain.

(2) For a resident with urinary incontinence, based on the resident’s comprehensive assessment, the facility must ensure that –

(i) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization was necessary;

(ii) A resident who enters the facility with an indwelling catheter or subsequently receives one is assessed for removal of the catheter as soon as possible unless the resident’s clinical condition demonstrates that catheterization is necessary, and

(iii) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore continence to the extent possible.

(3) For a resident with fecal incontinence, based on the resident’s comprehensive assessment, the facility must ensure that a resident who is incontinent of bowel receives appropriate treatment and services to restore as much normal bowel function as possible.

(f)Colostomy, urostomy, or ileostomy care. The facility must ensure that residents who require colostomy, urostomy, or ileostomy services, receive such care consistent with professional standards of practice, the comprehensive person-centered careplan, and the residents’ goals and preferences.

(g)Assisted nutrition and hydration. (Includes naso-gastric and gastrostomy tubes, both percutaneous endoscopic gastrostomy and percutaneous endoscopic jejunostomy, and enteral fluids). Based on a resident’s comprehensive assessment, the facility must ensure that a resident –

(1) Maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise;

(2) Is offered sufficient fluid intake to maintain proper hydration and health; and

(3) Is offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet.

(4) A resident who has been able to eat enough alone or with assistance is not fed by enteral methods unless the resident’s clinical condition demonstrates that enteral feeding was clinically indicated and consented to by the resident; and

(5) A resident who is fed by enteral means receives the appropriate treatment and services to restore, if possible, oral eating skills and to prevent complications of enteral feeding including but not limited to aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers.

(h)Parenteral fluids. Parenteral fluids must be administered consistent with professional standards of practice and in accordance with physician orders, the comprehensive person-centered care plan, and the resident’s goals and preferences.

(i)Respiratory care, including tracheostomy care and tracheal suctioning. The facility must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive person-centered care plan, the residents’ goals and preferences, and § 483.65 of this subpart.

(j)Prostheses. The facility must ensure that a resident who has a prosthesis is provided care and assistance, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences, to wear and be able to use the prosthetic device.

(k)Pain management. The facility must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.

(l) Dialysis. The facility must ensure that residents who require dialysis receive such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.

(m)Trauma-informed care. The facility must ensure that residents who are trauma survivors receive culturally-competent, trauma-informed care in accordance with professional standards of practice and accounting for residents’ experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident.

(n)Bed rails. The facility must attempt to use appropriate alternatives prior to installing a side or bed rail. If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including but not limited to the following elements.

(1) Assess the resident for risk of entrapment from bed rails prior to installation.

(2) Review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent prior to installation.

(3) Ensure that the bed’s dimensions are appropriate for the resident’s size and weight.

(4) Follow the manufacturers’ recommendations and specifications for installing and maintaining bed rails.

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New California Rule of Professional Conduct 3.7 – Lawyer as Witness – As Applied to Estate Planning and Trust and Estate Administration Lawyers

On November 1, 2018, California enacted new rules of professional conduct for lawyers. The new rules make many changes, one of which is Rule 3.7 (lawyer as witness). The prior rule (Rule 5-210) applied only to a lawyer as a witness at trial in jury trial proceedings. New Rule 3.7 does not make that distinction – new Rule 3.7 applies to both jury trial and bench or judge trial proceedings. The following is an essentially verbatim summary of new Rule 3.7:

Rule 3.7(a)(lawyer as witness):

  1. Is the lawyer acting as an advocate (i.e., in my view, is the lawyer representing a client) in a trial or an evidentiary hearing?
  2. If the answer is yes to number 1, is the lawyer likely to be a witness?
  3. If the answers are yes to numbers 1 and 2, does the lawyer’s testimony relate to a contested issue or matter?
  4. If the answers are yes to numbers 1, 2, and 3, does the lawyer’s testimony relate to other than the nature and value of legal services rendered in the case?
  5. If the answers are yes to numbers 1, 2, 3, and 4, has the lawyer obtained informed written consent from the client?

Rule 3.7(b): A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.

The following is a more detailed discussion that reflects more of the practicalities of the lawyer being involved in or possibly becoming involved in a probate court proceeding in which the lawyer is a witness or might become a witness who will provide testimony or might provide testimony relating to a contested issue or matter or relating to an issue or matter that might become contested? I have stated the Rule in this manner because (1) there are situations in which the Rule is not triggered, and (2) there are situations in which the Rule is triggered, and (3) there are situations in which the Rule might be triggered or might become triggered. In situations (2) and (3) consideration should be given to obtaining informed written consent and the wording and timing of such, whether informed written consent is even an option under the Rule, and whether informed written consent or some other action such as disengagement is best under the situation, and the timing of such.

As probate court proceedings are bench or judge proceedings, for which, with limited exceptions, jury trials usually are not available, it is now important to consider the possible applicability of new Rule 3.7 in all probate court proceedings including those proceedings which have not yet reached the trial stage. New Rule 3.7 already has been a potential issue in some of my cases – Rule 3.7 will or may apply in some probate court proceedings, whereas in others it will not.

Every probate court proceeding and case is different – whether or not Rule 3.7 applies will need to be evaluated on a proceeding by proceeding and case by case basis and might need to be considered at various different times in the course of a proceeding or case as the situation could be fluid and changing.

Note that I am differentiating between a probate court proceeding and a probate court case although the two might be considered the same – many probate court proceedings are never formally scheduled for trial or evidentiary hearing – nevertheless, even when a trial or evidentiary hearing has not been formally scheduled, a reading of Rule 3.7 suggests that the possible applicability of the Rule should still be considered and an evaluation made whether the lawyer is or might be or become an advocate at a trial or evidentiary hearing or proceeding, and whether the lawyer is or might likely be a witness.

Repeating myself somewhat, because this is a situation or question that could arise more often, you will also note that Rule 3.7 can bring into consideration the possibility of conflict waiver, which raises a host of other issues to consider including, for example, the possible timing of a discussion about that possibility (such as possible discussion in an engagement letter), whether an actual conflict waiver should be considered and the timing of such, and, if a conflict waiver is required or desired, whether such a waiver is actually allowable under the circumstances of the proceeding or case, and whether such a waiver is the best or most prudent course of action compared to other possible options including possible disengagement.

New Rule of Professional Conduct 3.7 states as follows:

Rule 3.7 Lawyer as Witness

(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:

(1) the lawyer’s testimony relates to an uncontested issue or matter;

(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or

(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.

You should also read the discussions and comments, and the cited case, provided under Rule 3.7 to understand and to get a feel for whether the Rule 3.7 applies in your proceeding or case, and, if so, how to approach the possible client written consent option under the facts of your proceeding or case, and possible other options and situations, including disengagement and court discretionary authority to disqualify an attorney even if written consent is obtained (see, e.g., Lyle v. Superior Court).

It is not uncommon for the estate planning attorney or firm to also be involved in subsequent post-death administration which also can be or can become a probate court proceeding. Thus, if the proceeding is a probate court proceeding, pursuant to new Rule 3.7, you must first evaluate whether the lawyer is or might be or become acting as “an advocate” representative, and whether the lawyer is or might likely become a witness providing testimony (declaration?) relating to a contested issue or matter at trial or at an evidentiary hearing or proceeding?

These questions should be carefully evaluated on a proceeding by proceeding or case by case basis. Depending on your evaluation of these issues, next evaluate on a proceeding by proceeding or case by case basis: (1) does the lawyer’s testimony relate to a contested or possibly contested matter or to an uncontested matter; (2) does the lawyer’s testimony relate (solely relate?) to the nature and value of legal services rendered in the case; and (3) has or will or should the client provide written consent (see also the discussion above)? And, if client written consent is an option, you will also need to consider the wording of the (informed) written consent.

Will the impact of new Rule 3.7 be earthshaking? Rule 3.7 needs to be considered on a proceeding by proceeding and case by case basis. New Rule 3.7 already is or could be applicable in many probate court proceedings and cases. The overall impact will need to be determined over time, and on a county by county and probate judge by probate judge basis. However, in probate court proceedings or cases in which the lawyer is likely or could become likely to be a witness (for example, such as in will and trust contests or possible contests, and possibly in other proceedings or cases in which there is an objection or opposition, or possibly a likely objection or opposition) Rule 3.7 might apply or at least should be considered as possibly applying including the options available.

In appropriate cases you should also consider Rule 3.7(b) which states “A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.”

I will be writing subsequent posts on these issues as they can be important to estate planning and administration attorneys, and in proceedings and cases, and these are and will continue to be developing areas. Please also note that I will also be discussing other rules, cases, decisions, and issues, including possible client duties, that can or might apply in a particular situation, including, for example, Rules 1.6, 1.7, 1.9, and 1.10, which pertain to client confidential information, possible conflicts between current clients, possible conflicts between a former client and a current client, and new Rule 1.10 pursuant to which conflicts can be imputed between different attorneys in the same law firm.

Thanks for reading this post. Every trust situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

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