I’ve Got a Secret: Confidentiality and the PVP Attorney

Our speaker at the June 8, 2012 meeting of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association was the highly regarded Samuel D. Ingham, III, Esq.  His topic, which qualified for 1 hour of MCLE Ethics credit and Estate Planning and Probate Specialization Credit, was “I’ve Got a Secret: Confidentiality and the PVP Attorney.”  Judge Paul, Darcy Horton, and Ellen Teguh were all present and contributed to the discussion from the court’s viewpoint.


Confidentiality:  Keep the proposed conservatee’s information out of the public’s eye.  The court has to balance interests between the proposed conservatee’s right to privacy and the public’s right to access.


There has been an evolution from the court appointed attorney (PVP or Probate Volunteer Panel attorney) being the “eyes and ears of the court” to being an advocate–kind of a public defender-for the conservatee.


We are kind-of in the middle of these two views at present, but I (your scrivener) would error on the side of being the client’s advocate.


Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159 [119 Cal.Rptr.2d 547]–PVP filed report with the court and did not serve it on anyone.  The Court of Appeals overturned and said the report has to be served on the other parties.  Left unsaid was whether the report had to be made a part of the court file.


P.C. §1051 continues the prohibition on ex parte communications by the PVP.  Once in a blue moon, it might be justified.


On occasion, an ex parte letter from a neighbor or other person comes-up requiring the court to exercise discretion and, for example, send the court investigator out.


Local Rule 4.127(a) requires a PVP Report.  Care must be used regarding what private information (i.e., medical, financial, identification numbers, explosive facts or allegations) goes into the report or should be kept out.


We are first attorneys, and next, court-appointed counsel.  So. E.C.§954, regarding the client precluding disclosure of information and other rules apply.  It may be helpful for the bench officer to speak directly to the proposed conservatee to obtain information that you cannot/should not elicit.


The PVP Attorney could/should assert attorney-client privilege before answering questions concerning conservatee’s private information.


One judicial officer, of the extreme advocacy view, removed a PVP Attorney and suspended a hearing when the PVP was allowing the conservatee to discuss what medication the proposed conservatee was on.


P.C. §1471, under which we are usually appointed, indicates you are appointed to represent the interests of the client.  The client has all rights and remedies under the Constitution and a Conservatorship represents a possible removal of many constitutional rights.  You must act to preserve those rights.


You are not immune from being sued as a court-appointed attorney.  You must carry E&O insurance to protect yourself.


Documents you file are indexed and available to the public at the courthouse. 


Certain forms, labeled “Confidential” by the court go into a separate file and are not, generally, available to the public.  PVP reports are not in that file; they are available in the Public file.


What can you do with information you think the court needs, but the client will not agree to release?


1.    Court testimony.  They could be cited to appear.  Defer questioning to the bench officer.


2.    Lodge a report CRC 8.46(b)(3) temporarily deposited (lodged) but not filed (e.g., financial or medical records).  Do this in the courtroom, NOT AT THE FILING WINDOW, in a sealed envelope marked “Lodged-Not Filed.”  A PVP Report may have attachments you do not want reproduced, indexed, etc.  THEN, have it returned at the close of the hearing.  Lodging puts a burden on the court and the clerk as to how to handle it, and mistakes are made.


3.    Sealing of a file is an option.  Pre-1999, you requested a sealing and the file was completely sealed.  NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178 [86 Cal.Rptr.2d 778, 980 P.2d 337] changed that.  In that case, and CRC 2.550 & 2.551, which track the case, the Supreme Court found that the bench officer must do a balancing act, with five specific findings that the court must rule on in order to seal a matter.  You must, in your moving papers, go through each finding that must be made.  Also, put those specific findings in the Order or another judge may order the matter unsealed. 


4.    Sealing v. Redacting.  Which is the least restrictive method is what a court may consider.


5.    Closing the Courtroom.  There has to be a reason (such as testimony which is extremely damaging or humiliating to an individual).


As an advocate, you have the responsibility to look at all of this.  You have the responsibility to look around the courtroom and consider: are there issues requiring the courtroom to be closed or certain individuals excluded?


Fees:    It is contemplated that a PVP Attorney will get paid at the end of the matter.  However, some circumstances dictate, economically, for payment on an ongoing basis.  The request may be in your report, as a separate Fee Petition, or as an oral request. A large fee request should be by a separate, noticed petition.  A smaller fee request does not warrant a separate petition.  Failure to give proper notice is a basis for denying a fee request.


CRC 7.702, 7.751 sets forth what must be in a fee request.  One is a detailed time bill (some of which may need to be redacted if confidential). 


Not just a bill, but also a narrative as to why you should get paid.  Don’t be humble.  If you have expertise, set it forth.  Spell-out how you benefitted the conservatee.  Sell the judge (in a short, sweet, succinct paragraph) on why you deserve this fee.


Use care with social networking and listserves, guarding what you or your client expose.


JUST A NOTE: We now have authorization to give specialization credit, as well as the usual MCLE credit, for meetings of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association.




                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson
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