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Guest Editorial by Thomas F. Coleman, Esq.
Daily Journal / Nov. 6, 2020
According to Rolling Stone magazine, BritneySpears
is “one of the most successful artists of all time.”
Millions of her fans would agree.
Spears is rich. Super rich. She reported more than
$59 million in assets at the end of 2018. However,
since 2008 when she was involuntarily placed into a
probate conservatorship in California, she has not
been able to control her own assets. A court placed
control of her finances with Britney’s father and a
professional fiduciary.
Many of Britney’s fans believe the conservatorship
order should be lifted. They argue that
the emotional and psychological
problems that prompted judicial
intervention some 12 years ago no
longer exist. They want the restrictions
on her financial and personal life to end.
To bring public attention to their cause
– one that also seeks broad
conservatorship reforms – the

FreeBritney movement is staging a

rally outside of the Stanley Mosk
Courthouse in downtown Los Angeles
on November 10 at 12:30 p.m. Perhaps
as they come and go during the lunch
hour, some of the probate court judges who control
the lives of more than 15,000 conservatees in Los
Angeles County will notice the protest and learn of its
demands.
What injustices do these supporters say their pop star
idol has endured? For starters, the #FreeBritney
movement’s website articulates the incongruity of
Britney’s abilities and work ethic with the harsh
restrictions that have been placed on her freedom.
The website notes: “Since the beginning of the
conservatorship, Britney Spears has recorded 4
albums and performed in 4 world tours in addition to
a 4-year Las Vegas residency.” And yet, despite her
ability to function at such a high level, the website
states: “Under the conservatorship, Britney Spears
has been denied the freedom to make phone calls,
operate a motor vehicle, send and receive mail, and
access her finances.”
In addition to judicially imposed restrictions of
Britney’s freedoms, the website liststhe types of civil
rights violations and injustices that are occurring to
tens of thousands of other conservateesin California.
It is estimated that more than 60,000 adults currently
have open conservatorship casesin the state and more
than 5,000 new cases are filed each year.
The #FreeBritneymovement’swebsite complainsthat
too manyofthese vulnerable adults have been “denied
due process, deprived of property,
deprived of liberty, denied right to
confront accusers, denied right to trial,
denied right to counsel, unlawfully
confined and isolated, and unlawfully
chemically restrained.”
A review of court records in Britney’s
case shows a number of such
violations, especially the violation of
her right to counsel. Had she been
represented by an attorney of her own
choice, perhaps many of the other
violations would not have occurred, or
if they had happened, they would have
been challenged on appeal.
When her conservatorship proceeding wasinitiated in
2008, Britney wanted to be represented by her own
lawyer. The court would have none ofit. Her chosen
lawyer was summarily dismissed and replaced by a
court-appointed lawyer selected by the judge
presiding in her case. This ruling caused the first civil
rights domino to fall, resulting in future violations of
her rights, such as Britney’s court-appointed lawyer
sometimes arguing against her rights.
Forcing a litigant to accept a court-appointed lawyer
in a conservatorship proceeding violatesmanyaspects
of due process. Among them is the right to have an
attorney who does not have a conflict of interest.
The court-appointed attorneyassigned to the case had
dual loyalties. He was supposed to represent Britney
but he also had a duty to assist the court in the
resolution of the matter to be decided. (Local Rule
4.125.) Thislocal court rule creates a potential, if not
actual, conflict of interest because it gives an
appointed attorney two people to satisfy – the client
and the judge. Furthermore, once an attorney is
appointed, no other attorney may represent a
conservatee or proposed conservatee. This
undermines the right of a litigant to be represented by
counsel of choice. (Local Rule 4.126.)
Britney Spears, and other proposed conservateeslike
her, have a right to a lawyer who will advocate for
their stated wishes and defend their constitutional
rights. Having a court-imposed lawyer who is
dependent on a judge for fee authorizations in the
instant case and appointments in future cases
undermines the prospect of zealous advocacy. It is
hard for an attorney to challenge judicial actions when
the attorney is thinking about a stream of income that
depends on the judge in the case at hand.
An attorney has duties “as a zealous advocate and as
protector of his client’s confidences.” California
State Auto Association v. Bales, 221 Cal.App.3d 227
(1990). Case law speaks of “an attorney's duties of
loyalty, confidentiality, and zealous advocacy.” In re
Zamer G, 153 Cal.App.4th 1253, 1267 (2007).
The judge in Britney’s case grounded her decision to
dismiss Britney’s chosen attorney and replace him
with a court-appointed attorney by finding that
Britney lacked the capacity to retain counsel. The
problem with this conclusion is the manner in which
it was reached.
The court did not afford Britney an evidentiary
hearing on her capacity to retain counsel. The matter
was decided behind closed doors, without Britney
being present and without allowing her chosen
attorney to present evidence in Britney’s favor or to
cross-examine the doctor whose declaration the court
relied on for her decision. This procedure was rife
with due process violations.
An individual who is the target of a conservatorship
petition has the right to due process throughout the
proceeding. Conservatorship of Sanderson, 106
Cal.App.3d 611 (1980). The Due Process in
Competence Determinations Act creates a
presumption that every adult hasthe capacity to make
decisions, including the capacity to contract. Probate
Code Section 810. The mere fact that an individual
has a mental disability does not negate this
presumption.
The Legislature has clarified the right of proposed
conservateesto retain private counsel. “The proposed
conservatee has the right to choose and be
represented by legal counsel.” Probate Code Section
1823(b)(iv)(6). (Emphasis added.)
The constitutional right to counsel of one’s choice
was affirmed long ago by the California Supreme
Court. “Although the right to be represented by
retained counsel in civil actions is not expressly
enumerated in the federal or state Constitution, our
cases have long recognized that the constitutional due
process guarantee does embrace such a right.” Roa v.
Lodi Medical Group, Inc., 37 Cal.3d 920, 925
(1985).
“The right to present evidence is, of course, essential
to the fair hearing required by the Due Process
Clause.” Jenkins v. McKeithen (1969) 395 U.S. 411,