Jim Birnberg's Annual Updates

By John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Jim Birnberg’s Annual Updates

Jim Birnberg gave us his annual updates on California Legislation affecting Probate, Estates, Trusts, Guardianships and Conservatorships for 2011. These take effect January 1, 2012.

There wasn’t as much this year as a result of all the time spent on the State Budget. Still, there are a number of things to be aware of.

An item from last year to be clear on is the Certificate of Independent Review. What is clear is that if you are the Testator/Settlor’s attorney and not the caregiver’s attorney, you may, now, if the facts support it, execute the Certificate as the independent attorney.

What is also clear, but we would like to see changed, is that all Certificates of Independent Review that were not done under the new law probably need to be re-done due to the language of the new law, since P.C. § 21392 (a) says the law applies to all instruments that become irrevocable on or after January 1, 2011 or, if revocable or amendable but the person is incapacitated on or after January 1, 2011. See P.C. § 21370, § 21380, § 21384.  

As to new legislation:

Jim had a 17 page handout. I am going to highlight just a few matters from that:

1.    SB 507 (DeSauinier) has to do with filing requirements with the Assessor’s office. It extends the 45 day date for filing without penalty to 90 days for PCOR and BOE 100-b forms (entities). Increases the cap on penalties for non-willful failures to file to $5,000 (if the property is eligible for the homeowner’s property tax exemption or a $20,000 cap for all other property).

2.    SB 599 (Kehoe) requires a clear explanation and prominent disclosure of payment of insurance benefits. So you have a choice and don’t just receive a checkbook to write from on life insurance benefits.

3.    SB 495 (Fuller) requires that the State Controller’s office hold on to property with no apparent commercial value for not less than seven years (up from 18 months).

4.    AB 1305 (Huber) increases the aggregate amount of assets otherwise subject to probate which can be obtained under Affidavit (P.C. 13100) from $100,00 to $150,000, regardless of the date of death. The value of real property under 13200 is increased from $20,000 to $50,000.

5.    SB 78, among, other things, relieves counties from complying with the requirement of laws enacted the past couple of years related to investigations in Conservatorships and Guardianships, until monetary appropriations are made to pay for them.

6.    AB 458 (Atkins) affects Guardianships and prohibits the appointment of a minor’s parent as guardian in certain situations. More particularly, it prohibits forum shopping in multi-jurisdictional matters. Judge Paul has experience in these matters with his background in Family Law. It came in handy recently with a man in his court insisting Judge Paul grant his Guardianship petition and give him immediate custody of a minor who was out-of-state in a youth facility. At least Nebraska and Kansas (if my memory is correct) had contact with the case. Judge Paul knew to contact the other judges. Between them, more of the facts were available to all of them than would have been available to any one of them, and they could agree on who/where jurisdiction was (it was not in California).

7.    SB 647 (Committee on Judiciary) adds to the list of persons who have the right to contest disposition of the remains of a decedent.

8.    AB 354 (Silva) restricts the right of an elder abuser to share in a portion of recovery of assets involved in the abuse.

9.    AB 1082 (Gatto) makes some changes to the law pertaining to Powers of Attorney including sections pertaining to the modification, revocation or termination of a Trust in whole or in part, only as provided in the Trust document; as well as to reject, disclaim, etc. a share in an estate, trust or other fund.

This is just a summary of a greater list of changes. See the complete list and better yet, read the California Legislative Analyst’s review; and, best yet, read the code.


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

Copyright © 2011 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2011.12.30 Jim Birnberg's Annual Updates.docx

The Ethics of Pro Bono

The Ethics of Pro Bono
Toby Rothschild, General Counsel
Legal Aid Foundation, LA

Direct delivery of legal services without expectation of compensation.  Indigent/non-profit.  Increase of services to indigent.  Serving the poor or agencies which serve the poor.

B&P Code §6068: Duties of Attorney.

Some duties, we know, such as (e) Maintain confidence; but do you know (h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.

The Board of Governors for the State Bar of California 06/22/2002 urged at least 50 hours per year of Pro Bono by each lawyer with no expectation of compensation.

16.1% of the state is below the poverty level (less than $22,113 per year for a family of 4).  30% or more of children are below the poverty level.

Rule 6.1 (07/24/2010 and 09/22/2010) is still awaiting Supreme Court approval.

Ways to serve:

Through organized Pro Bono programs:
1.    They screen clients
2.    They can provide information/support.
3.    They may have malpractice insurance.
4.    Limited scope/unbundling.  You may be able to take a portion of the case without handling the entire case.

SoCalProBono.org provides a broad outline of programs.

Rules of Professional Conduce are the same.  You cannot put paying clients first.  Make sure to avoid conflicts of interest.

Rule 1-650 carves-out an exception regarding a conflict of interest when assisting clinics.  The conflict doesn’t exist unless you are personally aware of it when advising in a short-term matter while serving a qualified entity.

A normal Attorney/Client Agreement may not be enough.  Identify the Scope of Representation.  Cover the outcome (what is possible) and duration.  No limit on liability is permitted.  Clearly spell-out any limitation on the scope or duration of the representation.  There are forms in Court Rules and you must advise the court and opposing counsel of any limit on representation.

Nichols v. Keller.  Keller advised Nichols on a Workers Compensation case.  It later came-up that there may have been a third party liability case.  As a lawyer, this case said, you have better knowledge and should have known and advised the client even if you wouldn’t handle that aspect of the case and, in fact had a contract limiting your services to Worker’s Comp.  You can expressly exclude handling any other issues, but you must advise the client of the other issues or claims.  Nichols sued and recovered against Keller.

You must be able to communicate.  A friend, family member, or child is often not acceptable.  A person competent in the language the client speaks from your office is better and possibly required.

Get alternate contacts so you can reach the client.

Withdrawing from a Pro Bono case is the same as in any case.  Your name is on pleadings or papers.  If you received the case from an organization, contact them; but that does not terminate the case for you.  The rules are the same as any other case.

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

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2011.10.28_Super_Saturday_1_Pro_Bono-1.docx