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"In conservatorships, a delicate balance"

Napa Valley Register

By DAVID RYAN, Register Staff Writer
Saturday, March 25, 2006 1:16 AM PST

Can one lawyer represent the owner of an estate and a potential heir at the same time?

Court filings show that for a month earlier this year, Napa attorney Vincent Spohn represented a 93-year-old woman and her daughter in a conservatorship case where the daughter alleged her mother was mentally incapable of dealing with her financial matters.

California Bar Association ethics rules state an attorney should not represent more than one client on matters where their interests either conflict or could potentially conflict.

Spohn said he has done nothing wrong. Other attorneys say conservatorship cases -- in which courts appoint someone to take legal control over another person's affairs -- are often difficult to navigate. The cases routinely involve elderly or sick people who have been determined to be incapable of looking after their own financial affairs.

"It is inappropriate for attorneys to file for a conservatorship of their own client," said Donna Bashaw, a Laguna Hills attorney who authored a suggested ethics rule change to allow attorneys more leeway in taking actions to protect elder clients. However, Bashaw said state law does not allow attorneys to take such actions.

"The way California law reads right now it's appropriate to refer that out to another attorney," she said.

In a written response to questions, Spohn said there was no conflict when he represented 93-year-old Napa resident Jewel Taylor and her daughter, Lynda Koon. He said Taylor knew Spohn was representing her daughter at the same time he represented her.

"I have personal knowledge that Jewel Taylor had been advised of potential conflicts from such representation; any claims to the contrary are without foundation and false," he wrote, adding he had Taylor sign a document detailing that she understood she was waiving potential conflicts of interest.

But, he added, "During the most recent period of time of my representation of Ms. Taylor, I gradually became concerned about Ms. Taylor's capacity and came to the conclusion that she should be examined by a qualified health care provider to determine her present state of mind and health."

Fire starter

According to court papers, Koon filed for conservatorship of Taylor on Feb. 17. Taylor had already been transferred from her Napa home to an assisted living home after firefighters notified Adult Protective Services that Taylor may have set a fire in her house. In the Feb. 17 conservatorship filing, the court said Spohn needn't notify Taylor about the conservatorship because "she is in a medical facility for patients with dementia and is in unstable medical condition."

In late February Taylor's granddaughter, Leslie Shelton of Wyoming, challenged the arrangement, claiming Taylor told her she was unhappy with it and wanted to find out when she could go home.

Spohn agreed Mar. 17 to allow the court to appoint Charles Morse as Taylor's attorney. Morse later filed court papers stating his belief Spohn's representation of both Taylor and Koon was a violation of ethics rules. At the Mar. 17 court hearing, Spohn said he had a signed waiver from Taylor. No such document has been filed with the court.

No medical report has been filed with the court, either, but feuding family members believe Taylor has some form of dementia, a cognitive disability that can affect seniors.

During the conservatorship, Koon filed papers to block other family members from transferring Taylor, visiting with her or discussing her conservatorship.

According to Elizabeth Mautner, Program coordinator for the Napa County Long-Term Care Ombudsman Program -- a watchdog for the rights of residents of assisted living and nursing homes -- assisted living residents should be allowed to speak and visit with whomever they please as part of their basic civil rights.

"We advocate all the time for people to be able to visit with family and friends," she said.

Morse learned nearly a month into Taylor's conservatorship that she did not wish to stay at the assisted living home and she felt Spohn's representation of both her and Koon was a bad idea.

In a court-filed report, Morse said he discussed Spohn's representation of Koon:

"I asked her if she objected to Mr. Spohn representing Lynda (Koon), and she said 'No.' I asked her if Mr. Spohn could represent both of them and she said, 'Well, that won't work, because Lynda and I might not want the same thing.'"

Most regional bar associations agree with state law and the state bar association on conflict rules. The San Francisco Bar Association issued an ethics opinion that an attorney could take "protective action," including recommending appointment of a conservator, if an attorney believed a client was too unstable to handle his own affairs. However, the regional associations' ethics opinions do not carry the legal weight of the state bar association rules.

Attorney Jerome Fishkin said Taylor's case is one fitting the profile of a case the state bar association would take "a close look at." Fishkin is a San Francisco-based lawyer who represents attorneys facing disciplinary actions by the state bar.

"Sometimes in a conservatorship the conservatee is sufficiently lucid to say that they need a conservator," he said. "But I would be sufficiently wary of a case like that ... It certainly requires questions and answers."

Fishkin said it's the court's job to make sure the conservatee is protected, and that the conservatorship is not in place to make it easy for someone to take money from the conservatee.

Spohn emphasized that when dealing with frail people, taking the proper steps is not a simple task.

"You don't know everything going into these things," he said. "You try to do the best thing. ... In this case I decided once Chuck (Morse) became the attorney I wasn't going to approach (Taylor) to get an informed consent."