November 30, 2003
Dear Friends And Colleagues:
To deny the oppressed access to the courts, we need only starve their champions, i.e., professional conservators, professional trustees, and the lawyers . . . without whom the conservators and trustees cannot protect the victims. The California Second District Court of Appeal’s 1991 decision in Conservatorship of Levitt changed the law in California, such that only the very affluent now have meaningful access to the Probate Court's protective umbrella against elder abuse. Lawyers and professional conservators ("Champions") are unlikely to come to the aid of abused elders, who are not affluent, because the Champions know that they are unlikely to be paid for their time, or even to recover all the costs they advance to protect the abused elder.
[Conservatorship of Levitt was my case, and I lost. But we must continue to fight to create meaningful access to the Probate Court's protective umbrella against elder abuse. Abused elders who are less-than-affluent do not have meaningful access. I unsuccessfully petitioned the California Supreme Court for certiorari to review the Levitt decision. The California Supreme Court denied review. If you are a legal scholar, the briefs might be interesting to you.]
The California Legislature enacted a public policy of protecting the frail elderly, by promising Champions that they would be paid for their work, if appropriately done and successful. The Legislature affirmed that public public policy by enacting the Elder and Dependent Adult Civil Protection Act ("EADACPA") in 1992, and reaffirmed that public policy a few years later by enacting EADACPA's companion legislation: The Due Process in Competency Determinations Act ("DPCDA"). In those Acts, the Legislature directed Probate Courts to provide sufficient financial fee incentives to enable lawyers and conservators to "take up the cause of abused elderly persons". The Legislature announced that protecting a victimized elder was no longer to be a financially ruinous proposition for the Champion.
Two of EADACPA’s and DPCDA’s explicit purposes were to encourage lawyers and conservators (1) to bring into the Probate Court cases of flagrant elder abuse, involving small amounts in controversy; and (2) to prosecute those cases to conclusion, rather than reward flagrant misconduct by settling with litigious perpetrators. But EADACPA’s promise of fees failed to attract professional conservators, professional trustees, or their lawyers, and these cases are rarely handled pro bono or pro per. This failure recently led the Los Angeles County Board of Supervisors to make an official finding (i.e., determination of fact) that modest means elders are effectively denied the protection of the Courts.
But the Court of Appeal’s 1991 decision in Conservatorship of Levitt fundamentally undermined those public policies. Levitt also mocks the L.A. County Supervisors’ finding, and undermines EADACPA’s purposes in several ways. Under Levitt, a Court can award a lawyer fees substantially lower than the $200 hourly rate paid to its Volunteer Panel attorneys, which is recognized as beneath the overhead required for conservatorship litigation. Under Levitt, a Court can do the same thing to professional conservators or professional trustees.
Levitt says that even after the victim’s death, a judge can limit fees to 1/3 the estate, regardless how much time was consumed by crucial, successful, efficient and high quality services that preserved the victim's life or assets, . . . so that 2/3 of the estate are preserved for the heirs. But saving a life should be valued more highly than the idea of limiting fees to 1/3 of the estate (remaining when the rescued victim has eventually died).
If you were a conservatorship lawyer (or conservator), would you risk your money and time taking a case involving:
A high functioning demented elder, who can seem competent at first blush;
[Will you need psychiatric expert testimony? How much will it cost you?]
Several victimizers who will testify in support of each other;
A contested jury trial on the conservatorship;
[How much will this (1st) trial (on the appointment of conservator) cost you in:
(1) overhead, and (2) lost earning?]
Litigation after the conservatorship to recover the victim's life savings of $100,000 from the victimizers . . . if they still have it. Assume that the Judge appoints your client as conservator, instead of someone else, whom the victim and the victimizer propose as conservator.
[How much will this (2d) trial (to recover the property) cost you in:
(1) overhead, and (2) lost earning?]
Only $70,000 is believed to be remaining in the victim's bank account, when you are asked to take the case. In other words, the victim will need the $70,000 for living expenses, and there will be no money to pay your fees unless you win both of the trials described above.
Would you take that case, knowing that Levitt allows the Judge to limit your fees to 1/3 the estate which remains, after all the litigation is over and the victim has died? Would you take that case, if you knew that many Probate Judge resent those less-than-affluent-victim Elder Abuse cases "because they tie up [the judge's] calendar"?
Courts are underfunded and overloaded with cases that judges do not have the time to handle properly. The Courts' calendars are overloaded. To reduce the workload, the Levitt case excludes from the Probate Court those victims who have resources less than 3 times the minimum cost of conservatorship litigation. Levitt says that the heirs’ inheritance supersedes the elder’s right to protection from financial and sometimes fatal abuse.
By ensuring that these cases will be financially unsound, Levitt clears the Court's calendar so that the judge can spend time on the big "juicy" cases involving lots of money, and a chance to impress lawyers who will pay big bucks for private judging, when the Judge retires. Levitt tells the the less-than-affluent victims that they have little hope for protection. Levitt tells private lawyers (professional conservators and trustees) to handle on a pro bono basis, the contentious and costly litigation required to fend off victimizers if the victim has a net worth lower than about a quarter of a million dollars. Levitt tells the less-than-affluent victims that their hope for rescue is likely to be in vain, because of the tremendous litigation overhead and costs that the would-be champions must bear.
Many members of the probate judiciary (but luckily not all of them) contend that elder abuse cases involving small amounts should not be brought in the Probate Court because those cases tie up the Court’s calendar (e.g., the Honorable District Court Judge Gary Klausner, former presiding Judge of L.A. County). But excluding the less-than-affluent from the Probate Court is a reprehensible form of calendar management. One of EADCPA’s explicit goals was to encourage lawyers to bring those very cases in the Probate Court.
Modest means elders (worth less than about a quarter of a million dollars) "fall between the cracks" because legal aid organizations usually are not permitted to help them. Nor will understaffed police agencies even investigate until after a crime was committed. Intimidated by the need for specialized expertise, which they almost never have, police tend to call the case a "civil matter." Frustrated doctors and nurses may only report alarming cases to police, the Public Guardian, or overloaded short-term intervention agencies, such as Adult Protective Services.
If the elder qualifies for legal aid, or if the grotesquely underfunded 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. Conversely, the taxpayers subsidize the victim’s care in a nursing home, if  no champions take the case, and  the victim is fortunate enough to survive long enough be dumped into a nursing home when the assets are exhausted.
Case law prior to Levitt required the Court to take the present value of a delayed future fee into account, in setting fees after the work was concluded. In order to entice lawyers and conservators to file and persevere in lengthy cases, case law said that fees had to be adjusted upward to compensate for lengthy delays in payment (and for the high risk in this type of litigation). But Levitt makes that case law irrelevant by holding that fees could be awarded, after more than three year's of relentless frenzied litigation, at an hourly rate of $193.81, which was lower than the $200 the Los Angeles Probate Court paid Volunteer Panel attorneys. Volunteer Panel Attorneys get paid promptly, along the way, typically at each hearing, as services are rendered.
The present value of a $200 per hour fee award, under the Levitt decision, three years after the services were provided, would be less than $162. Of course, the present value would be much lower if one were to factor in the high risk contingent on a many factors outside of the control of the professional conservators, professional trustees and their lawyers. By approving an award of fees this low, the Levitt case slammed the door on less-than-affluent elders who might otherwise have been rescued by private lawyers, conservators and professional trustees. The knowledge that courts can award a fee so low that it is beneath overhead, for high risk work that has saved a victim's life and assets, will deter any lawyers, professional conservator or trustees from taking these cases. Impractical fee awards also constrict the outreach of Public Guardians and legal aid organizations.
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.
There are now no meaningful limits on a judge's discretion in awarding fees. Why should lawyers take small estate elder abuse cases now? My campaign to make the Probate Court a haven of protection for victims has been eviscerated by the Levitt decision.
Levitt also undermines the freedom of lawyers to assist the Court in improving its operation, by speaking out when the lawyers see something that needs correction. Assume that the lawyer has offended a judge, by suggesting that the Court is not fulfilling its responsibilities to elder abuse victims. Although some judges have shared my worry about the quality of justice available to the less-than-affluent, some judges have become resentful and vindictive.
Assume hypothetically that a lawyer litigates for several years successfully in a conservatorship context, saving the life and estate of a conservatee from a criminal. Assume that the lawyer petitions for fees after the Conservatee has died, and presumably no longer needs the funds. Under the Conservatorship of Levitt case, a vindictive judge may award to lawyer a fee which is well beneath the minimum overhead for a conservatorship litigation practice. The judge need only say "I considered the size of the estate."
Why should lawyers (and conservators and trustees) take elder abuse cases involving the less-than-affluent now? Why should they speak out when they see injustice in the courts where they appear? They no longer are entitled to a fee, after winning the litigation, that at least covers their:  overhead +  some compensation.
The Court can award the lawyer (or a conservator or trustee) a fee beneath well recognized overhead, . . . even if the court makes a determination that the lawyer's services were necessary, efficient, and the minimum services required to save the victim's life and the remaining assets, as was the case in Levitt. Why should lawyers take elder abuse cases involving the less-than-affluent elder abuse victim now, if a judge can:
 Award the lawyer no compensation at all for years of efficient time and stressful work, that saved a less-than-affluent victim's life and remaining assets?
 Award a fee beneath well recognized overhead, thereby in effect making the lawyer pay $25-$100 (or more, depending how low the fee award is, and how high the overhead is) for each hour of stressful work devoted to the case?
What are the chances now that a lawyer (or professional conservator or trustee) will take the case of a less-than-affluent elder abuse victim?
Under Levitt, the "size of the estate", and the heirs' right to an inheritance outweigh the social policy of financial incentives for lawyers to protect an elder abuse victim's life. The Levitt decision was significant because, among other things,  the rescued victim Peggy Page was dead when fees were finally requested, and therefore no longer needed money for her care, and  there would have been no estate from which to pay fees, if the lawyer (and the conservator/trustee) had not taken the case.
The paramount issues are  the denial of equal protection of the law to elders who are not wealthy, and  freedom of lawyer, professional conservators and trustees to speak out about problems in the court system, without fear of having their fees cut by those judges who resent being bothered. Without advocates to prosecute these cases, EADACPA and DPCDA will become empty promises to disenfranchised elders.
In handing down the Conservatorship of Levitt decision, the Second District Court of Appeal commended me to pursue legislation to address the problem of elder abuse victims being locked out of the courthouse by judicial manipulation of attorney fee awards.
"Unlike the courts, the Legislature has the capacity to conduct the kind of fact finding required to determine the degree to which fee awards throughout state may have undermined the representation of less-than-affluent elders. And it is only through the legislative process that the policy determinations derived from such fact finding may ultimately be implemented. We expect that Hankin and other members of the elder abuse bar have coordinated efforts with offices of county counsel, public guardian, and adult protective services to work on specific legislative proposals to improve access to the justice system for victims of elder abuse, as suggested in the order of the Los Angeles County Board of Supervisors that we have quoted above. (Ante, fn. 2.) We commend their efforts."
I have drafted legislation to address the problems exacerbated by the Conservatorship of Levitt decision, since the judicial system has turned its back on the elderly. Click here to view my proposal for the California Legislature.
As the Bible says (in Ecclesiastes) "Those who were oppressed were weeping with tears, but no one was comforting them; no one delivers them from the power of their oppressors."
Those of us who know what is happening must act, because we have the skills and knowledge required to make the necessary changes happen. If we do nothing, the abuses will continue. As the English philosopher Edmund Burke said, "The only thing necessary for the triumph [of evil] is for good men [and women] to do nothing."
Pastor Martin Niemoller, writing in 1945 on his release from a World War II Nazi concentration camp "First, they came for the labor unions but I wasn't a labor unionist, so I didn't speak up. Then they came for the Communists but I wasn't a Communist, so I didn't speak up. Then they came for the Jews; but I wasn't a Jew, so I didn't speak up. Then they came for the Catholics, but I wasn't a Catholic, so I didn't speak up. Then they came for me-and there was no one left to speak up."
One day, you too will be old and feeble.
Marc B. Hankin