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November 21, 2001


Court Examines Problem of Attorney Fees in Elder Abuse Cases
   By Marshal A. Oldman and Susan J. Cooley

In Conservatorship of Levitt and Conservatorship of Page, 2001 Cal.App.LEXIS 1170 ( [93 Cal.App.4th 544 (2001)] Cal. App. Oct. 31, 2001), the Court of Appeal considered the problem of attorney fees arising from elder-abuse litigation where the fee award is reduced because of the small size of the estate.

In both matters, which were consolidated for the purposes of appeal, Marc B. Hankin acted as attorney for a well-established professional conservator. The conservator prevailed in cases brought against prior caregivers for elder abuse that not only threatened the estates of the conservatees, but also threatened their lives.

In both matters, the abusers fought lengthy legal battles. For example, in Page, the abuser was found to be a vexatious litigant. Consequently, the total fees of Hankin, the conservator and the court-appointed counsel amounted to a high percentage of the estate of the conservatee. In both matters, the trial court considering the fees applied various factors, including the size of the estate, to grant an award of fees that was less than the amount sought by Hankin and some of the other requesting parties.

Hankin appealed the decisions of the trial court on the basis of abuse of discretion in considering the size of the estate as a factor in determining the total fee to be awarded. The appellate court upheld the trial court in both matters, stating that the trial judge could properly consider a number of factors.

These factors included the size of the estate, the recovery achieved, the improvement of the conservateeís lifestyle, the protection of the conservatee from harm, the difficulty of the litigation and the expertise of the counsel requesting the fees.

The appellate court basically ruled that the trial courtís awards in both matters, which included a statement of the reasons for setting the fee at a particular amount, were sufficient to avoid a finding of an abuse of discretion. In both matters, the appellate court found that the trial judge balanced the factors and determined the fee in a rational manner.

Of greater interest than the decision and its clear statement of the law was its reference to the possible need for legislative action. The court noted that Hankin is one of the leading attorneys who developed the area of elder-abuse law. The court also noted Hankinís reputation and passion for protecting the elderly from those persons who would abuse them.

Hankin argued that people who commit elder abuse are often vexatious litigants who may or may not be represented by counsel. Substantial legal time must be invested in order to force an elder abuser to cede control of the incapacitated person and his or her estate.

Because of conservatorship procedures, counsel battling these persons must await the outcome of the proceedings in order to be paid for the time and costs that are incurred in the litigation. If counsel are not able to rely on full payment of fees when they are successful, counsel will be discouraged from undertaking such litigation. This can be especially true if the litigation results in a judgment against the abuser that is only partially collectible.

At one point, the trial judge mentioned the problem of draining an estate in order to protect it. Sometimes, corporations that are faced with a lawsuit that might be settled for less than the cost of defending it will, as a matter of policy, resist the action at high cost. This results from the perception that a corporation will be sued less often if it is known to fight an action notwithstanding the economics of settlement.

Hankin argued a similar policy in these cases. If elder abusers know that they will be fought to the point of oblivion, even though any potential recovery will be much less than the fees to achieve it, there may be less elder abuse, and people who are at risk will have greater protection.

The Court of Appeals did not necessarily disagree with this policy. However, it stated that the proper forum for this discussion is the Legislature, which can determine whether a law should be changed to meet a policy issue.

The opinion noted a resolution from the Los Angeles County Board of Supervisors ordering county counsel, Adult Protective Services and the public guardian to work to obtain the type of legislation that will result in the creation of a fee structure that will allow the pursuit of those who abuse the elderly.

This still leaves the question of what legislative action should be taken. In a concurring opinion, Justice Marian Vogel stated that she believes that the discretion should remain in the trial judge and that this discretion should include the consideration of a number of factors, including the size of the estate. In effect, she said that the Legislature should leave well enough alone.

In most instances, the reasoned exercise of judicial discretion is adequate for the proper determination of fees in conservatorship and other probate matters.However, the problem with elder-abuse litigation in modest estates is that counsel cannot predict the amount of work that may be required in order to achieve a result.

Because many of the people who engage in elder abuse tend to be poor, have little else to do and are often somewhat disturbed themselves, they often litigate vexatiously and with little regard for cost. They are more than happy to take full advantage of the legal system for their own ends.

Counsel attempting to battle with them cannot depend on the oppositionís financial restraints in order to reach an economical resolution at an early stage. Enormous hours are accumulated by the time that a resolution against the abuser is achieved, and counsel must at that time seek such fees that a court is willing to grant after considering a number of factors that may be outside of counselís control.

Legislation will be needed to make it easier for these matters to reach a resolution. Such changes may include allowing some fees on account of services as the matter proceeds, strengthening the presumptions against persons accused of elder abuse and streamlining procedures so that litigation can be compressed into a shorter time period with a resulting reduction of cost.

Unless the problem of legal fees can be addressed, the protection of the elderly will fall increasingly on the public sector. Parallel criminal statutes exist that can be used for the prosecution of those who abuse the elderly. Organizations, such as Adult Protective Services, could be strengthened to investigate more cases of abuse and determine if prosecution or other procedures are required.

In some ways, the use of public funds will spread the cost of protecting the elderly throughout society. It seems unfair to ask a particular estate to shoulder the cost of disposing of an abuser who may be going from one elderly person to another. The creation of an elder-abuse fund to which private counsel may be able to apply for fees may provide a part of the answer to the dilemma posed in these decisions.


Marshal A. Oldman and Susan J. Cooley specialize in probate matters at Oldman, Cooley, Leighton & Sallus in Encino.

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