December 17, 2001

Dear Friends And Colleagues:

To deny the oppressed access to the courts, we need only starve their champions.

The Second District Court of Appeal’s recent decision in Conservatorship of Levitt fundamentally undermines public policies the Legislature adopted in 1992 by enacting the Elder and Dependent Adult Civil Protection Act ("EADACPA") and its companion Due Process in Competency Determinations Act ("DPCDA"). 

Two of EADACPA’s and DPCDA’s explicit purposes were to encourage lawyers (1) to bring into the Probate Court cases of flagrant elder abuse, involving small amounts in controversy; and (2) to litigate those cases to conclusion, rather than settle with perpetrators, thereby rewarding flagrant misconduct. But EADACPA’s promise of fees failed to attract lawyers, and these cases are rarely handled for free.  This recently led the Los Angeles County Board of Supervisors to officially determine that modest means elders are effectively denied the protection of the Courts.

Levitt mocks the Supervisors’ finding, and emasculates EADACPA’s purposes in several ways.  Under Levitt, a trial judge can award a private lawyer a fee substantially lower than the $200 per hour rate the Court pays its Volunteer Panel attorneys, an amount recognized by the judiciary as beneath the overhead required for conservatorship litigation.  Under Levitt, a judge can limit attorney fees to 1/3 the estate, regardless of how much time was consumed by crucial lifesaving or asset preserving services that were efficient and of high quality.  Snubbing elder abuse victims lacking resources more than 3 times the minimum cost of conservatorship litigation, Levitt emphasizes the heirs’ inheritance, and deprecates the right of the elderly to protection from abuse and sometimes fatal neglect.

By ensuring that these cases will be financially unsound, Levitt tells the doubly disenfranchised that they must hope, albeit in vain, for a lawyer to handle on a pro bono basis, the contentious litigation required to fend off victimizers.  Modest means elders "fall between the cracks" because legal aid organizations usually are not permitted to help them, police do not act until after a crime was committed, and doctors can only make reports to police, the overloaded Public Guardian, or short-term intervention agencies, such as Adult Protective Services.

If the elder does qualify for legal aid, or if the Public Guardian takes the case, the agency must wait until the successful conclusion of the case, often several years, to petition for fees, like any private lawyer or professional conservator.  During the litigation, these champions subsidize the case by paying for office space, staff, insurance, and the high overhead of a conservatorship litigation practice.

Case law prior to Levitt took the present value of a delayed future fee into account.  In order to entice lawyers and conservators to file and persevere in lengthy cases, fees had to be adjusted upward to compensate for lengthy delays in payment. But Levitt makes those cases irrelevant by holding that fees may be awarded, after more than a three year delay, at an hourly rate lower than what the court pays Volunteer Panel attorneys. The effective present value of such a low fee (approximately 25% below the dollar amount awarded) slams the door on modest means elders who might otherwise have been rescued by private lawyers and conservators.  Impracticable fee awards also constrict the outreach of Public Guardians and legal aid organizations.

The judiciary contends that elder abuse cases involving small amounts should not be brought in the Probate Court because they tie up the Court’s calendar. But excluding modest means cases from the Probate Court is a reprehensible form of calendar management. One of EADCPA’s explicit goals is to encourage lawyers to bring those very cases in the Probate Court.

As you may know, I am the principal drafter of both EADACPA and DPCDA. I am now on a campaign to prevent the gradual erosion of those Acts.  I am committed to devoting to this project as many hours and as much money as I am able, and I have petitioned the California Supreme Court for certiorari to review the Levitt decision. The paramount issue is the denial of equal protection of the law to elders who are not wealthy. Without advocates to prosecute these cases, EADACPA and DPCDA will become empty promises to disenfranchised elders.

In determining whether it will accept the case, the Supreme Court will look to several factors, including public support for the issue. I request that you support this cause by sending a letter to the Supreme Court stating that you believe that the issues I have discussed in this letter are important, and worthy of the Court’s attention. Letters should be addressed as follows:

Honorable Chief Justice
Ronald George
    and Associate Justices
Supreme Court of California
300 South Spring Street, Second Floor North
Los Angeles, California  90013

Model letters and additional information related to this matter are available on our website, www.marchankin.com. Click here for more information.

Marc B. Hankin and

Kathryn J. Black