Access to the Court for People
Who Cannot Afford a Lawyer
(Business & Professions Code § 6125 Amendment)
Digest: Under current law, neither a trustee nor a conservator nor the personal representative of an estate, nor an attorney in fact under a durable power of attorney, can handle a case in propria persona.
Purpose: This legislation would overrule the (Mighty Oak Trust) case, Ziegler v. Nickel, 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 (Second Dist. 1998), in a limited way. This legislation would prevent the loss, due to a lack of funds to hire an attorney, of a meritorious cause of action by a fiduciary, such as a Trustee, or a Conservator, or an attorney-in-fact.
Application: Assume that the incompetent Settlor of a Revocable Living Trust is swindled out of $40,000. Assume also that the Settlor's friend and Successor Trustee is unable to hire counsel to handle the litigation because  the amount in controversy, $40,000.00, is relatively small, and  the defendant has a reputation for being very litigious. The incompetent Settlor has no money left with which to hire an attorney.
The Trustee is an experienced litigation paralegal, who wishes to sue the contractor before the statute of limitations runs out. Under existing law, the Trustee would have to let the statute of limitations run, because the Trustee is unable to find an attorney to handle the case. Under this proposal, the Trustee instead would have the right to petition a Court for the authority to file the action, and a Court would have the jurisdiction to authorize the Trustee to handle the lawsuit without counsel, if the Court determines that the cause of action otherwise would be lost.
Illustration: In the case of Ziegler v. Nickel, supra, a Trustee's cause of action lapsed because the Trustee was unable to find an attorney to handle the case, because there were no funds in the Trust with which to pay the attorney. The Trustee made one or more procedural errors which harmed the Trust's case. This type of problem would probably recur, if Courts were authorized to empower Trustees and attorneys-in-fact to file actions without counsel. On the other hand, cases falling within the ambit of this proposed legislation are cases in which the cause of action would be lost anyway. But if this proposal is enacted into law, some causes of action, which would otherwise be lost, will instead be prosecuted and appropriate remedies granted.
TEXT OF CHANGES (Proposed text is underlined)
Business & Professions code section 6125.
(a) No person shall practice law in California unless the person is an active member of the State Bar.
(b) Notwithstanding subdivision (a), a court may authorize a fiduciary to appear in propria persona if the court determines that:
(1) Due to a lack of funds, the fiduciary is unlikely to be able to obtain counsel to represent the fiduciary in his or her fiduciary capacity,
(2) It is unlikely that the interests represented by the fiduciary will be represented adequately, unless the fiduciary is permitted to appear in propria persona as a fiduciary,
(3) The most practical way of preventing the loss of the interests represented by the fiduciary, is to allow the fiduciary to appear in propria persona,
(4) The claim made by the fiduciary is not frivolous, and appears to have reasonable merit, and
(5) The court believes that permitting the fiduciary to represent the relevant interests adequately in propria persona, is in the best interests of the represented person or estate.
(c) The term “fiduciary” means and includes a trustee or a conservator or the personal representative of an estate, or an attorney in fact under a durable power of attorney.
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