Lawyer Taken to Task for Seeking to Represent Both Conservatee and Would-Be Conservator

The lawyer on appeal for a woman who wants to be appointed as her husband’s conservator, in place of his daughter by a first marriage, has been derided by Div. Three of the Fourth District Court of Appeal based on his effort to become, additionally, lawyer for the conservatee.

Justice William W. Bedsworth wrote the unpublished opinion in each of two cases, filed Tuesday, dealing with the conservatorship of Edward Raymond who, since January 2016, has been in need of care.

In Conservatorship of Raymond, G056805, Orange Superior Court Judge Jacki C. Brown’s order appointing Raymond’s daughter, Darlene Azar, as the conservator was affirmed. In that case, Laguna Beach attorney James G. LeBloch contested the appointment of Azar over his client, Dawna Ludwig—and also argued that he, not then-Deputy Public Defender Jon Feldon (now a private practitioner), should have been appointed by Brown as attorney for Raymond.

At the May 3, 2016 hearing at which Feldon was designated as the attorney for Raymond, LeBloch represented that he had drafted Raymond’s estate plan and, accordingly, was still his attorney.

In Azar v. Ludwig, G057920, the appeals court affirmed Orange Superior Court Judge Ronald L. Bauer’s order disqualifying LeBloch from representing Ludwig in an action brought against her by Azar, in part on behalf of her father and his estate, alleging elder abuse and fraud. The complaint accuses Ludwig, 69, of fraudulently inducing Raymond, 84, into marrying her.

No Standing

Bedsworth wrote in Conservatorship of Raymond: 

“To the extent LeBloch is appealing on his own behalf—which appears to be the case—the appeal is dismissed. LeBloch is not a party to this proceeding, and he has no standing to appeal on his own behalf. He also does not represent the conservatee, Raymond, so he has no authority to speak for Raymond. The obvious conflict of interest represented by his current representation of one of the adversarial parties—Ludwig—would also militate against his appointment as Raymond’s attorney, even if we could consider such a thing.”

His purported appeal was dismissed.

Evidentiary Support

The decision to appoint Azar as conservator for her father, who is in a nursing home, was found to be supported by the evidence. The justice said:

“In this case, the court had plenty of evidence to support its choice of Azar over Ludwig as Raymond’s conservator. The court alluded to this evidence in the statement of decision: Ludwig’s refusal to listen to healthcare providers, her obvious financial motivation for seeking to care for Raymond at home, her disregard of others’ needs and her self-absorption. Even if Raymond could have been safely cared for at home, Ludwig was not the person to be entrusted with this task.”

Bedsworth remarked in a footnote:

“Ludwig rather unwisely characterizes the epic as a ‘Cinderella type story,’ a conflict between a stepmother and a stepdaughter. Apparently Ludwig has forgotten that in the Cinderella story, the stepmother is the villain.”

Incongruous Positions

Addressing the disqualification order, appealed in Azar v. Ludwig, Bedsworth declared: 

“Attorney LeBloch appears not to appreciate the incongruity of his position in each of the two appeals decided today. If he had prevailed in the conservatorship appeal, he would be representing the conservatee, Raymond. If he had prevailed in this appeal, he would be representing Ludwig, who is being sued by, among others, Raymond’s person and estate. His inability to see the conflict in these two positions is perhaps the best reason of all for refusing to allow him to participate in either proceeding.”

Although barred from representing Ludwig in the Superior Court, LeBloch was her attorney in both appeals decided on Thursday. Azar made no appearance in the case in which her appointment was challenged; she was represented by Jonathan L. Gerber and Nicole M. Peterson of the Irvine firm of Miller Miller Gerber in the appeal from the order disqualifying LeBloch.

Full Article & Source: 
Lawyer Taken to Task forSeeking to Represent Both Conservatee and Would-Be Conservator

Conservator Appeal Dies When Client Does, Neb. Justices Say

Law360, New York (March 6, 2016, 4:42 PM ET) -- An attorney has no standing to continue to represent a client a conservatorship case after the client’s death, the Nebraska Supreme Court said in a decision Friday.

In an analysis of a family dispute arising over the appointment of conservator order of an elderly mother, the court said that even if a legal right is not abated by the death of a protected party, state abatement laws require a suspension of an action or proceeding until an appropriate representative is substituted by a court.

Any appeal after the person’s death “could be continued only by someone statutorily authorized to represent [the deceased’s] interests,” the court said. “Because [the deceased's] attorney has not shown any interest in the litigation or authorization to continue her appeal, he lacks standing to seek any relief on her behalf.”

In the case under review, the daughter of Genevieve Franke sought conservatorship after her mother agreed to sell her farmland to her son at a below-market price, according to the order.

Franke also appealed the court’s previous appointment of a permanent conservator, and the son also appealed. But before the parties filed briefs, Genevieve Franke’s attorney filed a notice that Franke had died, the court said.

In response to a call from the Court of Appeals for the parties to show why the appeals should not be dismissed as moot, Franke’s daughter, Laurie Berggren, argued her appeal was not moot because a conservator has continuing duties for the estate even after a protected person dies, according to the order. Moreover, the children still had an interest in a decision on her competency and the appropriateness of the county conservator order, Berggren said.

The son, John Franke, also sought an order that his appeal to overturn the permanent conservator order was abated, though not mooted, by her death. The high court overruled those motions without prejudice and granted John Franke’s petition to bypass the Court of Appeals.

Genevieve Franke’s longtime attorney argued that Genevieve’s appeal be dismissed, while also petitioning the Supreme Court to vacate the county court’s conservatorship order, according to the order.

In his pleading, the attorney argued that some courts have decided that when people adjudicated as mentally incompetent die during an appeal, the abatement of the appeal requires a lower court’s orders to be vacated, the court said.

The high court noted that state law anticipates the substitution of a legal representative or successor in interest when a party dies. But without some express court authorization for the lawyer to take that role, the deceased’s attorney has no standing to carry on a pending appeal.

“Although an attorney of a deceased client may have a duty to protect the client’s interests by alerting a legal representative of his or her pending claim, absent a contractual agreement to the contrary, an attorney’s representation of a client generally ends upon the death of that client,” the court said in dismissing the Genevieve Franke appeal.

The court concluded that John Franke had standing to appeal the conservator order, although his standing should be limited to challenging the finding that Genevieve Franke needed a conservator at all.

“That issue is abated by Genevieve’s death. But Genevieve’s death abates only John’s appeal. It does not abate the cause of action or affect the validity of the county court’s orders appointing a conservator,” the court said, with issues of competency mooted by her death.

Jordan W. Adam of Fraser Stryker PC represents the appellant. Berggren is represented by Susan M. Koenig of Mayer Burns Koenig & Janulewicz. John Franke is represented by Robert Mooney of Gross & Welch PC.

The case is In re Conservatorship of Genevieve Franke, deceased. Laurie Berggren, appellee, v. Genevieve Franke, deceased, appellant, and John Franke, appellee, case number S-14-959 in the Nebraska Supreme Court.

Full Article & Source:
Conservator Appeal Dies When Client Does, Neb. Justices Say