Abuse victims are deprived of the protection of the law by court imposed restrictions on attorney fees,

trustee fees and conservator fees

Conservatorship of Joel Levitt hearing:  Policy of the Honorable Judge Gary Klausner on attorneys fees in elder abuse cases.

An open letter to James Ellis, Esq., Chair of the California State Bar Association's Estate Planning, Trust & Probate Law Section. The letter from Marc Hankin and other attorneys contends that abuse victims of limited means are denied the protection of the law because of restrictive fee policies by the Courts.

Supporting statements by lawyers:

1. From: Bruce Ross, Esq. (Author of the Rutter Group treatise on Probate) and Robert Sacks, Esq. of Ross Sacks & Glazier “Marc – We have read your letter and agree that lawyers generally are unwilling to take meritorious cases involving small estates because lawyers believe, with good reason, that they are unlikely to be paid for substantial amounts of their time and generally thus cannot afford to handle elder abuse matters and heavily contested conservatorships. We believe further that this results in a lack of access to the judicial system for people without substantial resources. This situation should be studied in the hope that a way can be developed to rectify it.”

2. From: Robert Foster, Esq. (Former Chair of the Ethics Committee of the Estate Planning, Trust & Probate Law Section of the California State Bar Association) “Marc, this letter is excellent. We have had a little experience here, but are less and less inclined to do battle just because of the Courts seem to try to force settlement. I really believe that the Judges are more interested in the latter than the fees, but obviously settlement means no fees or at least less. Since most cases can be lost, settlement is the usual. We have never seen a complete open and shut case.”

3. From: Russell Balisok <balisoklaw@worldnet.att.net> (Nationally renowned expert in nursing home abuse litigation, and author of several chapters in CEB and other publications) “I like the letter and the hypothetical. How would I have raised my hand at one of your seminars, had I been in attendance? Hmm.... I think I would have explored standing through a guardian ad litem, rather than conservator, and with an ultimate judgment in hand against Patrick, I believe I would have had no problem with the conservatorship issue afterwards. As for the poa's, could temporary letters of conservatorship be obtained, and on the allegation (supported with some facts) that Patrick had acted improperly, obtain an order revoking the poa's? In the civil action, we still have the problem of the contumacious litigant on the other side, so would I take the case for say 80k if I had to depend on the court for an award of reasonable attorneys fees at the end? Hmm. No. However, I would propose a fee k by which I would obtain a percentage of all sums received, i.e., monetary and non_monetary damages, punitive damages and attorneys fees and ask the court to approve it prior to employment. Then I would probably take the case and take Patrick down in my copious spare time. Otherwise, no.”

4. From Walter Haines, Esq. <wlhaines@pacbell.net> “I have not worked on any of these cases and doubt that I would. I do share your experience with regard to the fees generally allowed by the court even in regular cases. etc.”

5. From Carol Small Jimenez, Esq. <SmallCarol@Aol.com> > (Nationally renowned expert on Medicare, and author of several chapters in CEB and other publications) “I like the letter and the hypothetical. How would I have raised my hand at one of your seminars, had I been in attendance? Hmm.... I think “You can add me to List #1 of attorneys who would not take these cases because of the uncertainty of obtaining adequate fees.”

6. From Mary L. O'Neill, Esq. <Ttfn1957@aol.com> “Marc, Regarding your hypothetical I would only take the case if I knew that it probably would be pro bono. These cases cannot be taken with the expectation that fees will be awarded by the court or collected from the defendant. Unfortunately, this reduces the number of cases an attorney can take. An answer to the problem of the bad guy hiring an attorney for the victim is to seek the appointment of PVP counsel. That reduces, if not eliminates, litigation just to run up fees.”

7. From Ruth A. Phelps, Esq. <rphelps@elderlawyers.com> “I practice in a small firm of four lawyers. Two of the four lawyers are former civil litigators, who now practice in the elder law area, including conservatorships, planning for disability and death and probate. Our conservatorship practice includes several cases of financial abuse. We would not take a case as outlined by Mr. Hankin, involving a long, hard fought battle against a well_financed abuser, for two reasons. First, we are not confident that the court would award us our full fees at the end of the battle, even though we won. Second, we cannot participate in a lengthy fight, over several years, and wait for payment until the end of the case.”

8. From Steven Weber, Esq. [Separate letter from Steven Weber]

9. From Denis O’Neal, Esq., Santa Clara Counsel [Separate letter from Denis O’Neal]

10. From Caren Nielsen, Esq., [Separate letter from Caren Nielsen]

Send us your email. Do you agree or disagree with the contentions made above? Should there be a survey or other study to determine if there is a problem, and how to address it?

Back to Legislative Projects

Back to Home