Also, In Contested Probate Proceedings, An Evidentiary Hearing Is Required Unless Parties Stipulate To Using Affidavits Or Declarations.
Maldonado v. Giblin, Case No. H041417 (6th Dist. Dec. 27, 2017) (unpublished) is a prime example showing how appellate jurists are attuned to gender equality issues and legislative changes aimed at promoting such equality in the family law/probate context.
What happened in this case was that husband became incapacitated following a personal injury accident, leading wife to engage an initial attorney to represent husband and with the retainer agreement containing an attorney’s lien provision. Initial attorney did some work and obtained a preliminary settlement offer from the tortfeasor defendant’s insurance carrier. Later, wife retained discharged first attorney and engaged a second attorney filing litigation which resulted in a $1 million settlement with the insurance carrier. However, in a contested probate proceeding arising out of wife’s appointment as temporary co-conservator with husband’s son, the lower court approved the settlement (including fees to the second attorney) but denied first attorney’s request for fees based on the attorney’s lien and quantum meruit recovery. The primary basis for rejecting first attorney’s claims was that the wife did not have agency authority for husband to enter into a retainer agreement with first attorney.
The trial court’s conclusions were reversed on appeal so that first attorney gets another shot at compensation for his prior services.
First attorney did have a reasonable expectation of compensation because wife, just like husband, had equal management powers when another spouse becomes incapacitated as far as entering into a client-attorney relationship to redress personal injuries to the other spouse. It found that 1975 family legislative amendments gave husband and wives equal management abilities, such that older cases only recognizing male supremacy were antiquated in nature, establishing the basis for an attorney’s lien by first attorney.
There also was a procedural issue addressed by the appellate court in order to provide assistance on remand. First of all, the attorney’s lien dispute could be raised in the probate proceeding (unlike the situation where a separate action is necessary in a civil litigation context) because of the lower court’s unique position to approve a settlement entered into by a guardian or a conservator (the situation here). Next, it was error for the lower court to decide the contested probate dispute on the basis of just declarations, without an evidentiary hearing under Probate Code section 1022 unless the parties stipulate otherwise.