The #FreeBritney Edition

Episode Notes

Transcript

[Music]

Jonathan Amarilio:  Hello, everyone and welcome to CBS @theBar where we have unscripted conversations with our guests about legal news, topics, stories and whatever else strikes our fancy. I’m your host Jonathan Amarilio of Taft Law and joining me as co-host today is Jen Byrne of the Chicago Bar Association. Hey, Jen.

Jennifer Byrne:  Hey, Jon.  How are you doing?

Jonathan Amarilio:  I’m well, thanks. We have a topic today. It’s your brain child. It is sensational, it is delicate, it is concerning, and it is certainly much in the news. The Conservatorship of Britney Spears. The saga of Spears Conservatorship is well over a decade old and the details are too many to get into today. But we have someone with us here who can explain how the conservatorship system is supposed to work, its pros, its cons, how it, at least according to press accounts, seems to have failed Britney Spears in this instance and more.

Our guest is Justin Gold at Oldman, Cooley, Sallus, Birnberg, Coleman & Gold, LLP in California. Justin focuses his practice in litigation concerning probated estates, trusts, guardianships and conservatorships. He’s authored pieces and lectures on this subject frequently, and he’s here to help us understand and hopefully untangle the flood of information and just as importantly misinformation that we’ve seen surrounding this topic, especially in the last year. Justin, welcome to @theBar.

Justin Gold: Thank you for having me.

Jonathan Amarilio: So, Justin, as I just mentioned, the story of Britney Spears conservatorship is long and complicated. Ronan Farrow and Jia Tolentino recently did a long foreign piece and The New Yorker describing it in significant detail. There’s been no shortage of other press coverage. Other podcasts have taken a deep dive into the facts. We’re not here to take conversation in that direction today. We don’t want to repeat all those discussions. Our purpose, rather, is to get a better idea of the legal framework, because there’s been a lot of frankly misunderstanding about that in the news and in the public discourse.

Of course, having said that, we’d be remised if we didn’t frame the conversation very briefly with some of the background on Spears’ story. But just as I understand it, and Jen and I promise will correct me throughout the podcast today, is that in the late oaths, Britney had a series of incidents that some described as mental health breaks. Others might say she was just going through a difficult time and her celebrity combined with the white-hot spotlight that celebrity placed on her 24 hours a day, exacerbated or exaggerated difficulties that are common to many people.

The conservatorship was put in place, she says, against her will that essentially gave her father as conservator and the attorney appointed to the conservatorship total or near-total control of her life, including everything from financial decision-making power to access to her person, and according to her most recent allegations in court, even control over her own body in the form of forced contraceptives. She describes conservatorship essentially, as living in a prison of her father’s making. She says that she’s tried and failed on several occasions to escape the conservatorship for years. She wants out and that no matter how much she screams and shouts about it, her father and his lawyers are determined to keep the conservatorship in place until the world ends, regardless of her capabilities and wishes.

But before we get into her options moving forward, Justin, let’s start at the beginning. Can you explain to us and our audience the type of conservatorship she’s under and why perhaps it’s an ill fit for the situation?

Justin Gold: Yeah. It’s actually a really interesting, unique situation. She’s in what’s called a probate conservatorship, which in our world is typically appropriate for people who have Alzheimer’s or dementia. That is the most likely scenario for every conservatorship filed in California. Typically, that condition is irreversible. So, you don’t deal with situations where people get better. You don’t deal with situations where people are able to articulate what they want in a lot of situations, sometimes their borderline, and they certainly can. But she’s in a probate conservatorship. To establish a probate conservatorship, the court needs to find that she is unable to resist fraud or undue influence and is unable to take care of her personal needs. It’s a pretty rigorous standard that she’s even entitled to a jury trial on.

In California, there is a separate court, a mental health court, and the standard is quite different. For a probate conservatorship, we’re talking about a permanent conservatorship. So, when somebody gets appointed as a conservator for somebody under probate conservatorship, they’re there for life until or unless a petition for termination of conservatorship is filed and the court grants that petition for termination.

Jonathan Amarilio: And that’s because as you said before the underlying assumption is that, it’s a terminal or permanent condition. There’s no hope of getting better.

Justin Gold: Correct.  That’s the most likely — that’s where it typically comes up. You will see conservatorships in other areas, a missing person, for example, when they have assets and someone needs to manage those assets.

00:05:07

Justin Gold: A conservatorship can be established there, and then a termination might happen. But typically, we’re dealing with an elderly person who has Alzheimer’s or dementia or some other form of debilitating disease that prevents them from acting in their own best interest.

Jonathan Amarilio: But you said there is also a mental health court and a mental health type of conservatorship in California?

Justin Gold: So, this is what’s really fascinating to me about this whole case, is there is a whole separate court for what are called LPS conservatorships. Effectively, what we’re talking about are people who are mentally ill. These are people typically who have schizophrenia or some other mental disease where the police or some other government agency has been involved to sort of solve a problem, and the government typically initiates a conservatorship. I’ve been contacted over the years, many times on some high-profile type cases like this, and my advice always is, I’m sorry, there’s really not much I can do about it because there’s a mental health court To establish a conservatorship in the mental health court, you actually have to have the governmentist initiate the proceedings.

The mental health court is vastly different than the probate court. The reason for it is that you can recover from mental health, from these types of diseases, or at least in theory, you are rehabbed from them, or at least you can improve. In a mental health court, they actually do a new trial every single year to determine whether a conservatorship is necessary or not. It’s a different standard. The court has to find that the proposed conservatee is gravely disabled, but nevertheless it’s an annual process to determine if a conservatorship is needed. So, to me, in this case with Britney, it’s unique.

It’s a very strange scenario where we have somebody who doesn’t fit the categories of Alzheimer’s or dementia or a missing person. There could be other categories, but typically, that’s what we see, and they end up in probate conservatorships. Certainly, the criteria could be met, meaning at the time in 2008, based on what I’ve seen, which is only public reports, I don’t have any inside information on this. But she was likely unable to resist fraud or undue influence and she was probably having trouble making decisions that were in her own best interest in the late 2008 or 2009. And I could see how she would fit within that category to make a finding that she needs a conservatorship. But to me, that’s what a mental health court is for and it makes a lot more sense to have proceeded down that path. In a mental health court, they can actually establish a conservator of the estate and handle someone’s finances as well. So, it’s a very strange situation to see someone who’s young in the probate court, in a probate conservatorship. There are other forms of conservatorship but to me, when I first saw this, what jumped out to me was, why is this in probate.

Jennifer Byrne: I mean, to me, that’s the million dollar question in this case, because I think a lot of the problems and misconceptions and just the conflict of the fairness issues is kind of hinging on this choice that was made in filing the matter as a probate conservatorship. What’s your theory as to why it was done this way in this case?

Justin Gold: That’s an interesting question. So, I don’t know. Well, I do know that the only way to initiate a conservatorship if the government won’t do it, is to do it this way. So, it’s entirely possible that whoever filed the initial petition, and I’m going to assume it was her father. But assuming it was her father who filed the initial petition, it may be because he tried to go through the government and the government, the County was unwilling or unable to initiate a conservatorship, and maybe he had no recourse and felt this was the right way to go. That’s entirely possible that that’s what happened. But I think ultimately my speculation is that somebody said we have to do something because she’s in peril and we need to find a way to get control over her mind and her money too. I’m sure she was giving money away pretty liberally. But I think that’s what triggered is that somebody decided to file it and the government wouldn’t or didn’t. I’m not sure. I don’t know what the circumstances were with — I don’t even know if there were interactions with any county agencies to do anything about it. But that’s my suspicion is that her father said, we’ve got to do something, let’s file wherever we can file.

Jennifer Byrne: So assuming there was some attempt to file through the mental health court, which I would imagine there may have been because she was under two 5150 holds in California in the period of months leading up to the filing of this conservatorship. What standards would have been considered and what would have been looked at by the government when deciding whether to proceed?

00:10:00

Justin Gold:  That’s a good question.  I really don’t know.  I’ve never really had the experience of where you have someone with two 5150 holds and the government choosing not to proceed towards a conservatorship if that truly was necessary.  But then again, I’m not usually involved in those kinds of cases, because they’re sort of their own discrete little world where the government is the petitioner and the public defender or I guess, in theory, private counsel will come in to defend the conservatee in its own little insulate world in the mental health court.  So, we actually don’t see that very often.  But it is surprising to me that the government, if they believe that she met the standard for gravely disabled, wouldn’t pursue that action at that time.

Jonathan Amarilio:  If I may, just for our audience, we have mentioned the term 5150 holds a few times. Justin, do you want to explain that really quickly?

Justin Gold:  Yeah. A 5150 hold is a statutory procedure by which the government — I use the government loosely, but it’s usually the county or even the police — can come in.  I don’t want to use the word incarcerate, but they effectively incarcerate somebody who’s acting for lack of better word bonkers, and potentially dangerous to others.  They will hold them for I believe up to 48 hours before they have to be released.  It might be 72 hours.  If they’re in such bad condition, the county will often initiate conservatorship proceedings to make sure that that person isn’t released back into the general population to go wreak havoc again.

That’s often what happens as a result of 5150, not every time.  Sometimes people are picked up on a 5150 hold for family disputes and it’s used offensively and they shouldn’t be under a 5150 hold.  To the credit of the government, they often make those findings.  They seem to do a decent job of assessing it, but like any other government agency, there are limited resources and I’m sure that there are some assessments that someone should be brought in, but there’s limited resources.  I’m not sure that every mentally ill person is turned into a conservatee at some point, nor should they be.

Jennifer Byrne:  Having come from a divorced background, I’m certainly familiar with how in a contentious custody dispute like the one taking place between Britney and Kevin Federline at the time, it’s possible that it was viewed as sort of a result of the contentious custody matter at play.  I don’t know enough of the details of what happened with Britney in the hospital and none of us know.  None of us know what her medical diagnosis is and what the doctor’s findings were at the time.  But as it relates to the probate proceeding, what type of consideration or fact finding would be done in the probate court with respect to any attempts to pursue a mental health conservatorship.  Would they not have questioned or the judge have asked what took place following the 5150?  Would they not have considered the fact that the government chose not to proceed with a mental health conservatorship?  Would that not have had some weight in the probate proceeding?

Justin Gold:  There’s a lot to unpack in your question, because there are a bunch of layers.

Jennifer Byrne:  It’s like three questions.

Justin Gold:  Absolutely.  But there’s a lot of information there, and absolutely it’s probative.  In fact, I’ve never seen the pleadings in this case, but I suspect that the 5150 holds were referenced in the petition to establish the conservatorship.  I mean, the job of the petitioner is to let the court know, hey, this person is in serious peril, we need to jump in and help.  So, I am sure that it was referenced or if the actual 5150 holds were not referenced, the underlying acts certainly were.

So, it would be surprising to me if that was not raised.  It would also be surprising to me if the court didn’t consider it.  For background, there are a lot of documents that get filed with the court on initial filing for a conservatorship.  There are the public filings, which in Britney’s case, there aren’t very many of those because they’re under seal.  But typically, we have a petition which simply states the grounds for the conservatorship.  But there are confidential forms. They get filed in every single proceeding which are designed to go to the court and all relevant parties to the case, the family members, but they’re not for public review and they inform a lot of the facts that are sort of underlying the entire conservatorship.

There are Social Security numbers, there’s dates of birth, phone numbers for everybody involved in the person’s life.  What happens with that information is, besides everybody who’s interested in the family, the family members who are interested in the conservatorship being able to review it. The probate investigator reviews it, and the probate investigator is a county employee who does exactly what their name implies, which is investigates the need for a conservatorship.  Will go interview, in this case, Britney; would interview the petitioner, presumably her father; interview the rest of the family; interview other people who may object, because there were people who were purporting to object to the conservatorship.

00:15:10

That report would be presented to the court before the filing — before the first hearing.  In addition, there is immediately almost upon the filing of a conservatorship, a lawyer appointed for the proposed conservatee.  In this case, I believe Sam Ingham was appointed immediately.  I think he was the first one and the only lawyer for Britney.  That lawyer’s job is to do something very similar to the investigator, which is go talk to people, go find out what are the facts, what’s true, what’s not.  But more important than what the probate investigator does, the lawyer has the job of what does my client want, and then to advised and counsel the client as well, like any lawyer in any case, no matter how impaired that client is, the job is to counsel and advise.

So, we have all these layers of people coming in and you have a hearing and the judge is certainly going to ask questions.  The court appointed counsel is certainly going to give a report.  The investigator is going to give a report, and there is going to be a back and forth.  To suggest that — well, I don’t know if you can suggest it, but the fact that the court would not consider the mental health court as a possibility would surprise me.  I think that that would be something that would have been discussed at the initial hearing.  I don’t think there is a law that prohibits the filing of a probate conservatorship for someone in this situation, but it is more common and frankly, it fits better.  So I suspect that there may have been a discussion about this at the initial hearing and it was determined to do it this way.  But why I went that route, I don’t know.  I would love to see a transcript.  It’s something that I have been curious about for 13 years now.

Jonathan Amarilio:  Justin, you mentioned Sam Ingham.  I want to go there.  One of the issues that’s come up in the press a lot is the allegation that Britney has not had until very recently an opportunity to select her own lawyer to speak for her in this process and allegations that Ingham, and I’m paraphrasing here, but the gist of it is that he was working more for Britney’s father than he was for Britney’s interests.  Talk to us a little bit about how those lawyers are selected for the conservatorships, whether the conservatee’s have a right or say in the selection of those lawyers and ultimately, where the loyalty of those lawyers lays?

Justin Gold:  It’s a good question.  So I’m going to preface this answer.  I’m going to give you a full answer, but I’m going to preface it with, there is currently legislation pending in California right now which would give a proposed conservatee the right to select their own counsel.  I happen to have some thoughts about it.  I think it’s pretty dangerous in a lot of situations, but we can talk about that at a later time.  But in specific reference to your question, the court appointed counsel generally come from a list of lawyers who have applied to the court to be on this panel. You have to meet certain requirements. You have to have filed a certain number of conservatorships.  You have to have litigated a certain number of conservatorships, and you have to have a general expertise to be on this.  You have to carry malpractice insurance.  You have to have attended a mandatory training program to get on this panel.

Now, in the case of Britney, I highly doubt that this was a random selection.  It would be selected — the judge would have selected one of the more qualified people from this list. The list ranges in terms of people who are just becoming lawyers.  Yeah, I think you have to be five years out, but people who have not handled many conservatorships to people who’ve been doing it forever and who have a great reputation.  I am very confident that Sam Ingham was specially selected among the select list of qualified court appointed counsel, who would be somebody the court would trust to give adequate and good representation to somebody in this high profile case.

Jonathan Amarilio:  You’re saying he’s a known quantity to the court?

Justin Gold:  Very much so.  He is appointed on a lot of cases.  So, he is well known to all the judges and to the lawyers in the Los Angeles Probate Bar.  The larger question of what are the duties of this court appointed counsel. It’s a really interesting question, and it’s been the subject of debate over the years about whether a court appointed lawyer has to act in their client’s best interests or to represent their wishes expressly.

It is no longer a debate and really has not been a debate for the past ten years anymore in California.  There are statutes and all the judges have been given guidance for the past five to ten years saying, you’re a lawyer, you’re there to represent your clients and to do what they say.  Obviously, behind the scenes, we counsel the clients and say, it’s probably not a good idea to seek to have this person be your conservator.  That person is taking advantage of you.  But at the end of the day, our job is to represent our clients like any other client, whether they’re impaired or not, because typically they have not been adjudicated to lack capacity.

00:20:00

Jonathan Amarilio:  The client is the conservative. In this case, Britney, and not the conservator, the father.

Justin Gold:  Correct.  Now, back in the mid-2000’s, early 2000’s, there was a school of thought of people who said, I’m going to represent my client, but I’m also going to advise the court as to what’s in my clients best interest.  That is no longer really the way it’s done in California or at least certainly not in Los Angeles and it hasn’t been that way for a long time, many years. But Sam’s always been the type of person who will say what his client wants, at least in my experience, and try to look out for in the big picture what the person is — what’s the goal here.  So Sam’s duty of loyalty undoubtedly is to Britney.  He certainly would not have spoken for the conservator.  The conservator has their own counsel.

Jonathan Amarilio:  So hearing that, it sounds like there’s a lot of distance between what you just told us and Britney’s allegations that she’s been saying for years that she wants out and that Sam Ingham wasn’t doing anything to help her get in that direction.

Justin Gold:  Again, I don’t have any inside information on this, but what I would say is I find it unfathomable.  That if a client of any court appointed counsel says to their lawyer, I want out of this conservatorship that the lawyer wouldn’t say you have that right.  We can file a petition to terminate the conservatorship and it would be more surprising coming from someone like Sam, who knows the process.  Now, a petition for termination of conservatorship is pretty unique.  It doesn’t happen very often for the reasons I mentioned before that we’re talking about people who are typically in irreversible conditions, like dementia and Alzheimer’s.  But it happens.  I have filed them.  I’ve filed at least one I can recall.  So it happens, and so perhaps he mentioned what she’d have to go through in order to establish that she doesn’t need a conservatorship.  It would include, for example, an evaluation and we know based on the reported statements that she made to the judge, that she did not want an evaluation.

Jonathan Amarilio:  An evaluation by a medical professional or —

Justin Gold:  By a medical professional is what it seemed like from the reported statements.  So if that was something that — let me add in this. I saw that Sam resigned as court appointed  counsel, and from reports, not from anything I’ve heard directly, that it’s because she said was something that he disagreed with. When she mentioned that she had never been told that she could terminate a conservatorship, he apparently, from news reports, was outraged and filed his resignation based on that.  That makes sense to me.  It makes sense to me that he would be outraged by something like that, because it seems very hard to believe that she isn’t told, you could get out of this conservatorship.

What else she was told with this, what the consequences of getting out of it were, I don’t know.  I don’t know all the details of the case, but it seems like the most basic form of advice that one would give to their clients is, yeah, you can get out if you want to.  So that’s the most surprising thing to me about her statement. It actually makes sense to me that Sam resigned, because I would have resigned too if my client said something that was the opposite of what had happened.  If that’s what Sam things happened, if Sam knows he gave her advice and she’s doing the opposite or saying the opposite, I think there’s obviously a breakdown in that relationship and makes sense for him to resign.

Jennifer Byrne:  I’m going into speculation territory here a little bit, but —

Justin Gold:  We all are unfortunately.

Jennifer Byrne:  I know, because we don’t know what we don’t know. But I think, you know, I don’t know this attorney personally, but my first reaction when I was reading about this was the same.  I mean, I’m sympathetic to Britney.  I’m actually a Britney fan, but looking at this with my lawyer hat on and having worked as a divorce attorney for several years before working for the Bar Association, I know what it’s like to represent a client who is going through a difficult personal situation that might impact their understanding of the communications that they’re having with you as the attorney, because what a person who is a non-lawyer understands as reasonable and fair as steps that they may have to take in a core proceeding may differ significantly from what is actually required when you are participating in a contested core proceeding and sometimes it can be very difficult to communicate with a person, not because they have any mental impairment.  That’s not my implication, but simply because what’s fair between you and us having a social interaction or what we think is common sense is not always applicable in the court system.

So that was my first reaction when I heard it.  But I think there’s other factors in play here.  There’s a custody proceeding. Her custodial rights are impacted by the conservatorship remaining in place.  I would also imagine there’s contractual, financial and business interests in play here.

00:24:57

Jennifer Byrne:  I mean, it’s entirely possible that I don’t know what her contract for the Vegas residency stipulated, but perhaps there were other things that she would have been putting at risk by seeking to terminate the conservatorship.  Maybe that was required for her to have her contract in Vegas or maybe it would have created a whole new unwieldy litigation in the custody matter and maybe they had conversations about those things that ultimately resulted in her choosing or not proceeding with filing the petition to terminate the conservatorship.  Again, that’s all just speculation by me.  But that was my first reaction as well.  However, I guess going back to just taking a step back we didn’t touch on this, but the conservatorship here is a voluntary conservatorship. Yes?

Justin Gold:  That seems to be the case, because in California, the proposed conservative, and this was the law when Britney was first put into the conservatorship, is entitled to a jury trial if they oppose or object to the conservatorship.  So, we know that there is no jury trial.  I suppose we know. We’ve never heard of that ever leaking out, and as far as I know, there wasn’t a bench trial.  So my strong suspicion is that this is a voluntary conservatorship, that she agreed to it, and for whatever reason, in 2008, she would have informed her counsel that she agreed to it.  You’re right.  It could be related to a custody.  It could be related to a number of things we can speculate about.  But given the fact that there was no trial, and given the fact that the court took jurisdiction over this and established the conservatorship, it strikes me that this has to be a voluntary conservatorship, that she has been okay with being in this system for at least a little while.  Whether that has changed or not, that remains to be seen.  She has new counsel.  We’ll see what comes of that.  But it is a volunteer conservatorship, as far as I can tell.

Jennifer Byrne:  Well, whether she was okay with it versus submitted to it because she was felt compelled or motivated by other reasons, or because in the moment, she lacked capacity to make reasoned decision about whether it was a good idea to avail herself of this is a different matter.  But it is a voluntary conservatorship. As indicated by Sam Ingham in his correspondence — I mean this was reported in the media with Bessemer Trust, the trust company that was supposed to come in, and that was their reason, apparently, for resigning was that now that this was a contested matter, they no longer wish to participate as the co-conservator.

Justin Gold:  Something you just said was actually pretty interesting, is that the Bessemer Trust aspect of this.  So, yes, they were co-conservator.  But one of the critical steps that a petitioner in establishing a conservatorship must establish is that there is no less restrictive alternative than a conservatorship.  Now, if Britney volunteered or consented to the conservatorship, then the court can set up the conservatorship.  But if there was any opposition, whether it be from Britney or a family member or somebody else, and they wanted to put up the defense to it of there was a less restrictive alternatives.  There are probably were less restrictive alternatives, at least as it pertains to Britney’s money.   There are Bessemer Trust very easily or any other trust company or fiduciary could have easily handled her money in a trust where she wasn’t doling out dollars and controlling all of her millions of dollars.  She would have had an allowance of sorts, and this wouldn’t be under the conservatorship.  This would be a voluntary arrangement but this is how most celebrities and people have wealth handle things anyway.  They have business managers or trustees who are handling their investments.  So that could have been an alternative that if she was adamantly opposed to the conservatorship, she had this alternative available to say, hey, look, I recognize that I’ve had some problems, but I don’t need someone managing my money. I’ve got a trustee for that.

Jennifer Byrne:  I have another question too about the original attorney that she sought to hire at the onset of the case to object to her father being appointed as conservator.  You just mentioned that she would have been entitled to a trial if she in any way contested the conservatorship.  What about the choice of conservator?  It seems to me that she made clear that she was opposed to her father being installed as the conservator at the onset of the case by retaining an attorney to come in and object to his placement.  So what right, if any, does she have to object to the person who’s chosen?  I understand, of course that she was found to be incapable of making the decision to retain her own attorney at that time.  So that probably rendered that objection moot, but wouldn’t that have alerted the court that there was maybe some suggestion and that she wasn’t okay with this situation and motivated them to do additional fact finding.

 

00:30:01

Justin Gold: So, think of a bigger picture. Think about the average conservatee who is being brought into court to get a conservator appointed. Typically, there is a reason for it not just because they’re old but they’re making terrible decisions with their money or they’re being unduly influenced. Oftentimes, and this is one of the reasons with the idea of a conservatee hiring their own counsel has been frowned upon, is the conservatee is not really choosing their own counsel, their undue influencer was actually choosing their counsel, and that there might be a real problem with the loyalty of their counsel. So, the court has always been a little reticent to appoint a lawyer of the conservatee’s choosing as a general matter.

Now, there are exceptions to that, and there always have been. There are cases where a proposed conservatee will come into court and be able to articulate what they want, and the court will appoint private counsel. As I mentioned, there is legislation that actually allows for that. Now, as I just mentioned, you can imagine what the problems would be if we have an undue influence situation and you put the fox in charge of the hen house, but they’re representing the conservatee. That’s one of the reasons against it. But she did come into court, or at least some lawyer, or maybe multiple lawyers tried to come in and represent her and I think I saw in a news report that there was an assessment from a medical doctor that said that she was incapable of hiring counsel. So, I think the judge was uncomfortable with having anybody speaking on her behalf if she couldn’t be sure that that lawyer was actually speaking on her behalf and not some of her more, I don’t know the word I want to use, but there were hangers on in the situation at that time who may or may not have been manipulating her or calling around to other lawyers.  I think that was the judge’s concern here is who’s really speaking on behalf of Britney. You appointed court appointed counsel.  You at least know that the duty of loyalty goes to that conservatee and not to the others who are calling for lawyers.

Jonathan Amarilio: I mean, there does seem to be somewhat of a, I don’t know, maybe like an ironic disconnect between the conclusion that she’s sufficiently mentally aware and capable to voluntarily enter into this kind of arrangement, but not sufficiently capable to select her own lawyer. But before we get into that, we’re past due for a break. We’ll be right back.

[Music]

Do you have a legal matter that you need resolve but want to avoid the expense of going to court? The litigation process can be stressful and costly, but there’s another solution, mediation. The Chicago Bar Association Mediation Service enables you to choose a qualified attorney mediator to help resolve your business or legal dispute efficiently and for a reasonable fee. All participating attorneys have been fully vetted by the Chicago Bar Association. They have undergone an extensive training process to ensure that they provide the highest quality service and can guide you to an amicable resolution of your dispute. Call (312) 554-2040 or email [email protected] to get started with The Chicago Bar Association Mediation Service today.

This episode of @theBar is brought to you by CourtFiling.net, your solution for filing in over 100 courts in the state of Illinois. CourtFiling.net provides a better e-filing experience focusing on speed and ease of use in the e-filing process. CourtFiling.net is affordable and offers 24/7 phone, email and chat support. Visit us at CourtFiling.net to receive 30 days unlimited free electronic filings and see why it’s the best solution for your firm. Let CourtFiling.net worry about your e-filing so you can get back to taking care of your clients.

[Music]

Jennifer Byrne: All right, we’re back from our break. Just to follow up on the question that I had asked prior to us taking a little break there. What ability does the conservatee have to help in selecting their own conservator, or if they voice an objection like in the case — it seems like Britney was not okay with her dad being involved from the onset. What voice do they have in the selection process of choosing the conservator?

Justin Gold: So typically, in conservatorships when they’re contested, there’s two forms of ways to contest it. One, there’s the establishment of the conservatorship. I don’t need a conservatorship. Let’s fight that. But the other form is, I don’t like this person to be my conservator. I don’t want my father or my friend or whoever it is to be my conservator and the conservatee has the right to object, as does every other interested person. An interested person here is, let’s just limit it to the family, but it could go beyond that to friends under the code. So, everybody has the right to object to the conservator, including Britney in this situation. I don’t know if she did or didn’t actually do that in court and I don’t know what the conversations that led up to her father’s appointments, although I do know that there was a professional, he was a lawyer, but there was a professional fiduciary/lawyer appointed as coconservator with her father, at least initially.

00:35:11

So maybe that was some form of compromise that was reached. I don’t know what the initial request was for the conservatorship, but yes, absolutely. A conservatee has the right to object to the conservator.

Jonathan Amarilio: So, let’s talk a little bit about the conservator. You have a relationship here between Britney and her father that by all accounts is toxic and you have press coverage that is constantly questioning his competence and his motives. How is that assessed by the court? How often is it assessed by the court? Is it just at the beginning or it is a court periodically revisit and say, in this case that Britney’s father is doing a good job or not doing a good job. He needs to be replaced. What does that relationship and that assessment look like?

Justin Gold: So, at the establishment of the conservatorship, absolutely the judge is looking to make sure that the person is qualified to act as conservator. Is there a relationship between them? Are there bankruptcies? Is there a criminal history? Things like that that could be disqualifiers. So, at the outset, the proposed conservator has to be approved and be of a sufficient quality such that the judge could trust that person to act as a fiduciary. On an ongoing basis, a conservator of the estate and I’ll distinguish that between conservator of the person.

The conservator of the estate is the person who handles the money. They will render accountings. Typically, I believe it’s every two years for an ongoing conservatorship, and that accounting will cover every financial transaction that occurs. Typically, that does not include attorney’s fees, because a conservator, unless there’s a prior court order, is not allowed to pay their lawyers out of conservatorship funds without a prior court order. So typically, in these conservatorship accountings, there is a request for compensation for both a lawyer and the conservator in the accounting, and they’re reviewed by the judge. They’re reviewed by the probate attorney. So, every probate judge, there’s a probate attorney, sort of a staff lawyer, who reviews these filings, provides notes to the judge about potential defects. Maybe the fees are too high, maybe certain things weren’t in the best interest of the conservatee, and then it also gets served on the rest of the family.

So, the family who is reviewing this petition, this accounting petition has the right to object also. If they see something’s gone wrong, they have a right to object. So, it is reviewed constantly and a probate investigator stays on, and they still go and reach out to the conservatee, they reach out to the conservator, and they ask questions and everybody is reviewing these accountings. In my experience, the judges have been pretty stingy at times with legal fees that they find to be excessive. If there was a breach of fiduciary duty, if there was a misappropriation, self-dealing, those often get caught and certainly there would be a family member who’s looking to replace a conservator who’s breaching their fiduciary duty. So, it’s scrutinized.

Jonathan Amarilio: What do you do with a situation like this where there’s allegations of, at the very least, emotional abuse by the father, allegations that he fell off the bandwagon and his own substance abuse problems? How would Britney bring those problems to the court’s attention?

Justin Gold: So assuming that’s true, Britney would tell her lawyer who would bring it to the court’s attention and say that my father is no longer fit to be the conservator, is really how that would come to the court’s attention. It also would come to the court’s attention through other people who have standing in the conservatorship action. Britney has siblings. Her mother is involved in this. I’m not sure that she’s not actively involved, but I know she has a lawyer. If her father had a substance abuse problem, or if there was some other reason he couldn’t serve as conservator, then I can’t imagine that somebody wouldn’t bring this to the court’s attention, particularly if that substance abuse problem impacted his ability to be conservator. So, the question is, is there any truth to that, and if there is any truth to it, is it enough to make a difference so that somebody is willing to make a petition on those grounds to try and remove him as conservator. It might just be that they don’t get along. We don’t know the source of the information that’s the problem or how truthful it is.

Jennifer Byrne: Well, she did file a petition to remove her father, and I don’t know if those pleadings are sealed or unsealed, and I’m not sure what factual allegations were included in those pleadings, but when The New York Times released its most recent investigation, they obtained some court documents. I don’t know if they were transcripts or what was exactly referenced in the article, but they pointed to documents that indicated she was objecting to the conservatorship as early as 2014, and she had raised concerns about her father’s conduct at least as recently as 2019 when she last appeared. Well, I shouldn’t say last appeared in court. I don’t know how many times she’s physically appeared or virtually appeared personally, but she did at that point appear.

00:40:09

Jennifer Byrne:  I believe that’s when her mom filed the motion to be added as an interested party in the matter. So again, this is speculation but I do wonder if some of these things were going on behind the scenes, which is why her mother inserted herself into the situation at that time, but that being said, you mentioned a probate investigator. If complaints are being raised by the conservatee and in this case, Britney has even called 911 and alleged that there is conservatorship abuse going on here. Certainly, there must be some or maybe there’s not, you tell us. Is there some emergency process where these matters can be investigated because if your only recourse is to file a petition with the court, we know how long those matters can take to be resolved in a protracted litigation, especially if there’s opposing views. So, what happens in those situations?  Does the investigator go out and look into the allegations?

Justin Gold: The investigator really just raises general issues for the court and lodges it with the judge and the judge may or may not follow up on it. If it’s something that is serious, the judge will almost certainly either appoint counsel or ask counsel to go investigate something. Typically, what we’re dealing with here is if there is a reason, if there is an emergency, somebody is not fit to serve as conservator. Maybe they’re abusive. Maybe they’ve got a substance abuse problem. Maybe the relationship is just frayed, any interested party whether it’s the mother, whether it’s the sister, whether it’s the court-appointed counsel, can go into court and say ex parte that day and say, there is an emergency, I need this person out and we need a new person in.  It is hard to get someone suspended as a conservator on an ex parte basis. It requires some pretty serious facts, but if it’s true that in 2019 such allegations were made, a petition would’ve been filed, and granted the court was slow or shut down during the pandemic and that did delay a lot of things, not because of the court’s fault but just simply, we all handled it differently and the court has been backed up, but if something was filed in 2019 and it related to a conservatorship, it would absolutely have received the hearing by now, especially if it was a high-profile case and especially if there was urgency.

So I suspect that some of these things that we’re hearing about her father are rumors. Maybe they’re coming from her, maybe they’re not as scary as they sound, maybe it’s just not reliable, is perhaps the way to look at it. I could be wrong. It’s pure speculation, but it strikes me is odd to say the least that a judge would just ignore serious allegations. I don’t see any reason why Mr. Ingham wouldn’t have done that, why he wouldn’t have brought it up. If he saw some of these things and Britney was raising these issues and there was truth to it, I can’t imagine he wouldn’t have filed something that was consistent with those allegations and then screamed it from the mountaintops if there was a true urgency.

Jennifer Byrne: Well, let’s put a pin in some of the wilder claims that she made about her father’s conduct and just point out for a second that notably in the custody proceeding, Kevin Federline did file for a TRO against Jamie Spears in relation to abuse allegations that one of her children had made, which he claimed occurred during a visitation while the children were in Britney’s care. The permanent restraining order was granted and that resulted in Britney having reduced visitation and custodial time with her kids. So let’s say, for example, you were representing Britney Spears in this matter and that was brought to your attention, would that be a sufficient factual basis to petition for an emergency removal of father as conservator? If you bring in an order from the custody judge that is a finding that there has been a restraining order in place against Jamie Spears to protect my sons, there’s been a fact finder who has found that this person has abused my kids, would that be sufficient grounds to petition to remove the father from the role as conservator, in your opinion?

Justin Gold: It would certainly be sufficient grounds to file a petition. The question is whether it was an actual evidentiary hearing that the order resulted from. Was that TRO obtained via an ex parte proceeding or was there an actual trial that led to that finding? That would be of interest to me. But if there were findings that he was a danger to Britney’s children, yeah, that would be something that would be highly probative, I think, about his fitness to serve as conservator for Britney. I mean, if he’s Britney’s conservator, how can he be around her kids if he’s been deemed to be a danger to the children. So, certainly, that’s relevant.

00:45:00

Whether that’s enough for a court to suspend him immediately? Probably not by itself. I mean what the court needs to see for a conservator being suspended is peril to the conservatee in some form, emotional, financial, whatever it is, and we’re talking pretty urgent perils, something that’s going to rise the level of the court needs to act immediately. Otherwise, they’ll set it for trial, six months, eight months, nine months down the road but in 2019, that could’ve been done and we’d be having a trial right now. It’s taken a different turn. So that’s what’s interesting to me about some of those allegations but certainly, findings that a conservator has any restraining order against any conservator, whether it’s related to kids or otherwise, is probably troubling to a judge. They want to know that they’re appointing a fiduciary who’s going to be responsible.

Jennifer Byrne: But ultimately, it would be up to the conservatee or some interested party to bring those facts to the attention of the judge, in that case.

Justin Gold: Absolutely

Jennifer Byrne: So that would be Britney’s attorney, her mother’s attorney, another family member could ex parte walk into the court and present this TRO and say, XYZ has taken place.

Justin Gold: Absolutely. In theory, I mean, I haven’t thought this through. I’m just thinking it off the top of my head but in theory, a guardian ad litem for the children would have standing to come in and say, this is crazy. Why is he involved? Some family member would be coming in and aggressively pursuing this if they thought that there was a basis for doing so. Now, maybe they don’t have the funds to do it, that’s possible. That’s always a deterrent in litigation, but you would think that there is a lawyer out there who would happily get involved in the Britney Spears conservatorship if a family member wanted to pursue this with actually good evidence. That is my feeling on this.

Jennifer Byrne: Well, Britney has taken to her Instagram to say that her family has kind of left her high and dry these days, so perhaps that’s the case but in any case, I always think about this stuff because — hey, we’re all Britney’s lawyers, like the armchair experts, so.

Justin Gold: Absolutely.

Jennifer Byrne: But not really.

Justin Gold:  we’re all sympathetic. Yeah.

Jennifer Byrne: None of us actually — let’s make that clear. None of us actually represent Britney Spears.

Justin Gold: That’s correct. I would honestly say that I’m also very sympathetic to what she’s going through. I know some of the comments I’ve made on this podcast make it sound like I’m defending the system, which I do happen to believe the system works in the vast majority of cases, but I have a lot of sympathy for Britney in this situation, because she strikes me as somebody who has less restrictive alternatives. If she really doesn’t want her father in the picture, it would make a lot of sense to get her father out of the picture from the court. So, I have a lot of sympathy for her whether it means she doesn’t need a conservatorship or she just wants a different conservator.

To me, those are sensible things that I think reading the tea leaves from some of the news reports and just, I think that’s in the cards. I think that’s going to happen. I think there’s going to be some form of termination or change of conservator in the future. I don’t know how there won’t be. If she’s this unhappy and she’s articulating it, and presumably, she’s articulating it to her new counsel, there’s going to be some follow through on that and a judge is going to see some evidence of things and that’s — I just got to figure, it’s going to come out and we’re going to see what she really wants and I think there will be changes. I hope there are, if she’s really that unhappy.

Jennifer Byrne: I do have one more follow-up question in relation to that which is the duty of the conservator to rehabilitate the conservatee. I think that was one more thing we wanted to touch on briefly, Jon, is I mean, does the conservator actually have a duty to help the conservatee be restored to a greater sense of independence and fitness?

Justin Gold: So, of course, in the sense that the conservator has a job to make sure to provide the medical care and right now, it’s conserver of the person. So that would be the profession fiduciary who’s making healthcare decisions for her. They’re absolutely in charge of finding doctors who are there to facilitate an improvement to make her life better and make her happier. That is precisely what the conservator of the person should be doing, making healthcare decisions in her best interest. With that said, rehabilitation is typically not a common goal in a probate conservatorship, because there’s no rehabbing dementia or Alzheimer’s. There is some psychotropic medications that can reduce things but ultimately, it’s a unique process that we’re dealing with in this situation with Britney, because she probably, with therapy or whatever, maybe there are drugs, maybe there are things that can be done to improve it but that is absolutely the conservator of the person’s job.

It would not be Jamie Spears’ job in this situation. He’s handling the money and so, the conservator of the person has to make medical decisions in Britney’s best interest, and often consulting with Britney herself as well as other people who might be looking out for her best interest. It’s very common for a conservator in a more generic situation where there is a mother who has children and the mother is in the conservatorship. A conservator of the person will consult the family, the children, the spouse, grandchildren about whether certain medical visits are appropriate or what kind of care needed.

00:50:06

This is a very common — it’s an interactive process that is done. It’s not a sort of a feat where the conservator says, my way or the highway. Now, it can be. They’re given that authority, but it’s not typically done that way, and professional conservators particularly like to involve the family, generally speaking.

Jonathan Amarilio: Justin, you mentioned that before that it may sound like you were defending the system. There was a criticism in The New Yorker’s article of California’s conservatorship system that was put forward. This may be a little unfair because, as you’ve pointed out, the kind of conservatorship that’s in place here seems ill fitting for this situation. So, the criticism may simply be a result of that, but the criticism was this. Farrow said, if a conservatee functions well under conservatorship, it can be framed as proof of the arrangements necessity. If a conservatee struggles under the conservative ship, the same conclusion can be drawn. I think what he was getting at there is, once this is in place, if it’s not actually voluntary, if the person isn’t — it feels trapped. There’s no way out.  It’s a catch 22 for them here for Britney. What do you make of that criticism?

Justin Gold: I think it is drawing a conclusion at best from a unique case, which is really what this is, because again, we’re talking about a conservatorship system that generally deals with Alzheimer’s and dementia, not somebody who’s in their 30s who may or may not be able to improve and get better and escape the conservatorship system. Now, with that said, when you talk about this sort of being trapped in the system here, if Britney had articulated under the way the rules are written, the laws are written in California. If she articulated to her lawyer, get me out of this conservatorship. I want it terminated ASAP. In my opinion, it is her lawyer’s job to file for a termination of conservatorship, and there will be a hearing on that.

There is no limitation on the amount of termination petitions that can be filed. It would have to have different grounds, of course. You can’t file the same thing every week or every year, but she could have filed a petition to terminate the conservatorship. It’s one thing if there was a petition for termination of the conservatorship filed and the court just ignored it and dismissed it, then that criticism might be in place, or if there was a finding saying, look how great the conservatorship is working for her, we’re not going to let her out, but that’s never happened. So, that criticism is unfair. It would strike me that because, as I mentioned earlier on, the less restrictive alternative is a defense to a conservatorship. If there is a termination petition filed and Britney can establish, and it’s her burden of proof, and this is an unfortunate situation as compared to the mental health court, because in mental health, it’s the government’s burden of proof every single year to establish the need for a conservatorship.

But in a probate conservatorship to terminate it, Britney would have the burden of proof of establishing that she doesn’t need a conservatorship and that there’s less restrictive alternatives. She’s never tried that, in court she hasn’t. What the reason for that is, we can all speculate, but that has never been brought up, and I am confident that at the very least, there would be a hearing. There would be effective cross-examination on anybody who tried to say, well, look at the evidence of the conservator and the conservatorship works. She’s doing so great, because if I’m on the other side of that, I’m immediately saying, well, I’m glad you admit that she’s doing so great. Let’s talk about how great she is right now, whether she now meets the standard to establish a conservatorship or to maintain a conservatorship.

Jonathan Amarilio: So, is that what’s next? If Britney really wants out of this, she can come forward, file a petition and say, I’m stronger. I’m not crazy. I no longer want my father to have this piece of me. This is a circus. She can do that. Is that the next step?

Justin Gold: Absolutely. There will be a filing. Undoubtedly, she didn’t hire a counsel for the sake of going through the process and just showing up in court. She hired a counsel because obviously she has a goal in mind. She’s not going to hire a counsel and just say, oops! I did it again. She is going to say, let’s do something here. Let’s either terminate this conservatorship. Let’s get rid of my father as conservator. Whatever her real goal is, that’s coming out and we’ll find out in due course what the goal is. I mean, given what she said in court, it sounds like she doesn’t want the conservatorship, but that remains to be seen what the lawyers file, because I suspect there are direct — I know there would be direct communication. I can’t imagine a lawyer wouldn’t speak with her client directly about what she wants. So we’re going to find out very soon what actually she wanted, what her primary objective is.

Jonathan Amarilio: Jen, anything else on that?

Jennifer Byrne: No, but don’t think that those song references were lost on me, Jon, because I heard yours, and I heard at least two from you too, Justin.

Jonathan Amarilio: I think Justin gave the game away with oops! I did it again reference. But that is a place for us to take a break. We’ll be right back.

[Music]

Getting legal malpractice insurance doesn’t have to be complicated.

00:55:02

Let CBA Insurance Agency do the heavy lifting for you. We shop to the top carriers to find the best rates. Get a free quote by visiting cbainsurance.org.

[Music]

Jonathan Amarilio: And we’re back. So, before we leave you Justin, we are going to play a game called Stranger and Legal Fiction. Our audience knows it well. The rules are very simple. Jen and I have both done a little research on the inner webs. We found a law that is real on the book somewhere, but probably shouldn’t be. We’ve made another one up and we’re going to quiz you and each other to see if we can distinguish Strange Legal Fact from fiction. Justin, are you ready?

Justin Gold: I’m ready. Let’s do this.

Jonathan Amarilio: Jen, are you ready?

Jennifer Byrne: Well, I gave you for warning, Jon. But now I’m going to let Justin know that I changed the game up a little bit this time and it’s going to be a Britney themed quiz. We’re not going to be doing a law from me. I’m going to be quizzing you on some Britney law, as we like to call it in the Britney fan verse. So I don’t know who should go first. Maybe, Jon, if you’ve got a law, get the boring stuff out of the way first.

Jonathan Amarilio: Okay. Sure.

Jennifer Byrne:  then we’ll close it out with my trivia.

Jonathan Amarilio: Right. Let’s finish strong. Okay. I won’t hold it again.

Jennifer Byrne: Finish stronger than yesterday, perhaps.

Jonathan Amarilio: Right. All right. Option number one, Justin, you’re up first. In Texas, it’s legal to marry by proxy. Option number two, in South Carolina, it is illegal to possess more than 30 balloons inflated with helium at once without a permit?

Justin Gold: I got to figure the ban on balloons without a permit seems more plausible than marriage by proxy.

Jonathan Amarilio: Jen, what do you think?

Jennifer Byrne: Gosh! That’s a hard one. I’m just going to be the devil’s advocate and say it’s marriage by proxy in Texas, because, I don’t know, maybe parents can enter into a marriage for their arranged marriages. I don’t know. I’m going to just guess that one. It doesn’t seem right, but that’s what I’m going with, with that one.

Jonathan Amarilio: And you would be right. In the revival of a medieval tradition, section 2.203 of the Texas Family Code allows marriage by proxy. Now, in their defense, the law is meant to allow military service members who are serving abroad to marrying someone stead. Still I think I would feel really weird if my brother was subbing in for me at the wedding. I don’t know how Thanksgiving could ever be the same after that. But that is the real law. Well, done Jen.

Jennifer Byrne: Well, after talking about the Britney series conservatorship and some of the more medieval claims that she made, it seems like really creepy to be talking about that lie afterwards. But okay, I’ll lighten the mood with my quiz. So, the question is, what is Britney’s most streamed song? Instead of two choices, I’m going to give you four choices. Is it, Baby One More Time, Oops, I did it Again, Toxic, or Give Me More? What is Britney’s most dream song?

Jonathan Amarilio: Justin, what do you think?

Justin Gold: I think we got to go with the original. It’s going to be Baby One More Time.

Jennifer Byrne: What about you, Jon?

Jonathan Amarilio: I’m going to say, Oops, I did it Again.

Jennifer Byrne: Eh, you’re both wrong. It’s actually Toxic. Her most sold song or I guess, like, the highest selling single, highest grossing single is Baby One More Time. But Toxic is actually her most streamed song, although I think that’s always shifting and changing because for a while there.

Jonathan Amarilio: Don’t you get a cut of the royal — I’m not an IP lawyer, but I thought you get like a small cut every time it streamed as the artist.

Jennifer Byrne: I think when I was looking up this information, I think, like the billboard charts still assess Baby One More Time as the highest selling single, which could mean somebody actually — like the amount of money when you buy a single as an album versus when you stream it perhaps is so much more or something. I don’t really know, but that did create some doubt and confusion. However, Toxic was listed as the most streamed song. So, there you have it.

Justin Gold: Surprising, interesting.

Jennifer Byrne: Both classics though.

Justin Gold: Absolutely.

Jonathan Amarilio: And that’s going to be our show for today. Justin, this has been a fascinating and illuminating conversation. Thank you so much for joining us. I hope you won’t hold it against me if I say that, I do hope the saga ends soon for Britney’s sake, for her children’s sake, for Jen’s sake and for the sake of anyone attached to it. The whole thing just seems, as we said before, like a Toxic circus. I think we’re now up to 15 song references there, if I’m counting correctly, little Easter eggs for the audience.

00:59:57

I also want to thank our executive producer and my co-host today, Jen Byrne, as well as Adam Lockwood on sound and everyone at the Legal Talk Network family. Remember, you can follow us and send us your comments, questions, episode ideas, or just troll us on Facebook, Instagram, and Twitter @ CBA @theBar. Please also rate and leave us your feedback on Apple Podcasts, Google Play Stitch, or Spotify, wherever you download your podcast. It helps us get the word out. Until next time, for everyone here at the CBA, thank you for joining us, and we will see you soon @theBar.

Jennifer Byrne: And FreeBritney.

[Music]

Outro: The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.