Towne v. Hubbard

Towne v. Hubbard
2000 OK 30
3 P.3d 154
71 OBJ 960
Case Number: 92412
Decided: 04/18/2000
Mandate Issued: 05/15/2000
Supreme Court of Oklahoma

Fern Alice Towne, Petitioner-Appellant,
v.
Carol Ann Hubbard, Honorable Judge of the District Court,
Oklahoma County, 7th Judicial District, Respondent
v.
Cindy Munkres and Gerald E. Kelley, Appellees
In the Matter of the Guardianship of FERN ALICE TOWNE

ON APPEAL FROM THE DISTRICT COURT, OKLAHOMA COUNTY;
CAROL ANN HUBBARD, TRIAL JUDGE.

¶0 Cindy Munkres brought in the district court a proceeding for the appointment of a guardian for her aunt, Fern Alice Towne. The trial court, on the authority of 30 O. S. 1991 §3-107(G),

TRIAL COURT'S ORDER REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE CONDUCTED IN ACCORDANCE WITH THIS PRONOUNCEMENT

Harley E. Venters, Venters & Venters, Oklahoma City, Oklahoma, and Val R. Miller, Oklahoma City, Oklahoma, for Appellant, Fern Alice Towne.
Joe S. Rolston, III, Rolston & Hamill, Oklahoma City, Oklahoma, for Appellee, Cindy Munkres.
Gerald E. Kelley, Kelley & Kelley, P.C., Oklahoma City, Oklahoma, Court-Appointed Counsel for Fern Alice Towne.

OPALA, J.

¶1 The dispositive question on this appeal is whether the trial court's inquiry, which resulted in the removal of Towne's retained counsel and his replacement by a court-appointed legal practitioner, complied with the requirements of due process of law. We answer in the negative.

I

ANATOMY OF LITIGATION

¶2 Cindy Munkres ("Munkres") filed a petition in the District Court, Oklahoma County, for the appointment of a guardian for her aunt, Fern Alice Towne ("Towne"), an 87 year old, childless widow. Munkres alleged that her aunt suffered from dementia, impairing her ability to receive and evaluate information, to provide adequately for her own physical health and safety, and to manage prudently her financial resources. It was also alleged that Towne's dementia made her susceptible to the influence of non-family members.

¶3 Towne admitted in her answer that she required assistance in managing her financial resources, but insisted that she had already arranged for whatever aid was necessary to enable her to remain living independently and managing her own personal and business affairs. She denied she was incapable of making informed, reasonable decisions regarding her own welfare and denied that she was in need of a guardian.

¶4 At a hearing on the guardianship petition, set for 29 December 1998, Towne appeared in person and through her retained attorney, Harley E. Venters ("Venters"). Despite notice stating that the guardianship petition would be addressed, the hearing was confined to an inquiry - pursuant to the terms of 30 O. S. 1991 §3-107 (G) ("§3-107 (G)")

¶5 Under questioning by the court on the record, Towne was unable to state with specificity the reason for her appearance in court, other than to say that she was involved in a dispute with her relatives. She acknowledged that she had earlier, off the record, told the court that she was not aware a guardianship petition had been filed. She appeared confused about who had brought the action and in which county the petition had been filed. She also seemed confused by the discussion of her right to a court-appointed attorney, apparently concerned about the financial obligation that would involve. When asked whether she was paying an attorney to represent her that day, she answered in the affirmative, but pronounced Venters' name incorrectly. She displayed little or no recollection of the various legal arrangements which she claimed in her answer to the guardianship petition to have entered into for the purpose of obtaining assistance in handling her financial affairs.

¶6 On the other hand, Towne knew generally that a disagreement with her niece and other relatives had brought her into court, appeared to understand the nature of a guardianship and insisted that she did not need a guardian, recalled that she had asked Harold Sinclair ("Sinclair")

THE COURT: And how did you get Mr. Venters?

MS. TOWNE: Well, I got him when this first arose.

THE COURT: And who got him for you?

MS. TOWNE: Mr. Sinclair.

THE COURT: Mr. Sinclair got him for you. . . .

¶7 After completing her questioning of Towne, the court turned her attention [3 P.3d 158] to Venters, briefly and informally questioning him regarding his initial contacts with Towne. This exchange revealed that Sinclair had contacted Venters on Towne's behalf on 28 November 1998, and that Venters had gone immediately to meet with Towne and Sinclair. Venters told the court that he ascertained at that meeting that Towne needed help, that she was being pressured about a house, and that she wanted a durable power of attorney given to Sinclair. Venters then stated that he returned to his office and prepared a durable power of attorney in accordance with Towne's wishes, which Towne executed the next day, 29 November 1998. The trial judge rejected Venters' attempts to expand upon these bare facts and ignored Venters' request to present witnesses to testify regarding his independence.

¶8 Stating that she was "not persuaded that . . .[Towne] has the capacity to contract," and expressing her concern "that [Towne's] rights and her rights alone be independently represented," the trial court removed Venters as Towne's attorney, suggested Venters might want to represent Sinclair as the holder of the power under the durable power of attorney, and announced that she would appoint independent counsel for Towne.

¶9 The trial judge and the attorneys then entered into further discussion in which the court was informed that Venters had prepared estate planning documents for Towne in addition to the durable power of attorney. Venters informed the court that Towne had appointed herself and Sinclair as co-trustees of a living trust, and Munkres' attorney informed the court that Towne had appointed Sinclair, Venters, and a nephew by marriage, Norman Wright, to a trust committee, which was to provide advice to the co-trustees. Munkres' attorney also advised the court that Towne had executed a new will, which named Sinclair as her personal representative.

¶10 In her order of 5 January 1999, the trial judge found that it was Sinclair and not Towne who had selected Venters and that Venters had previously represented Sinclair.

¶11 Venters, on behalf of Towne, filed with this court an application to assume original jurisdiction and a petition for a writ of prohibition to bar the trial court from removing him as Towne's attorney and replacing him with a court-appointed legal practitioner. This court recast the quest for a prerogative writ into a timely appeal from an interlocutory order in guardianship and sua sponte retained the cause for disposition.

II

THE RIGHT OF A PROSPECTIVE WARD IN A GUARDIANSHIP
PROCEEDING TO BE REPRESENTED BY A LEGAL PRACTITIONER
OF HIS (OR HER) OWN CHOOSING CANNOT BE ABRIDGED
BY MEANS INCONSISTENT WITH DUE PROCESS OF LAW

¶12 A guardianship proceeding poses the risk to the prospective ward of a massive curtailment of liberty as well as of the infliction of adverse social consequences.

¶13 The United States Supreme Court and this court have both held that the state's participation in any proceeding, the result of which may be the significant restriction of a person's liberty, requires that the person be afforded the protections of due process.

¶14 The right to the assistance of legal counsel includes the right to be represented by a legal practitioner of one's own choosing.

[3 P.3d 161] ¶15 Notwithstanding its constitutional status, the right to select one's own counsel is not absolute.

¶16 The statute relied upon here to disqualify Venters removes - from the attorney and client in the guardianship context - their joint responsibility of resolving the ethical concern for independence embodied in Rule 1.7 of the Oklahoma Rules of Professional Conduct.

¶17 The Oklahoma Guardianship and Conservatorship Act

¶18 Although Towne received no notice in this case that the question of her attorney's independence could be or would be raised at the hearing, we decline to reverse the trial court's order on the basis of a defect in notice. This is so because Towne did not timely object to the lack of notice or request a continuance for further argument or for briefing. By failing timely to object and by taking part in the proceeding, Towne waived her objection to lack of notice.

¶19 The trial court's order must nonetheless be reversed for another reason. "A party's opportunity to present its case is an essential element of due process."

¶20 Because we reverse the trial court's order removing Venters as Towne's attorney on due process grounds, we need not consider here whether the record contains evidence sufficient to warrant his removal.

III

SUMMARY

¶21 When in the course of a guardianship proceeding, the trial court engages in a statutory inquiry into the independence of a prospective ward's retained counsel, the examination must be conducted in compliance with the requirements of due process so as to safeguard the prospective ward's fundamental right to counsel of one's choice. "The right to counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice."

¶22 TRIAL COURT'S ORDER REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE CONDUCTED IN ACCORDANCE WITH THIS PRONOUNCEMENT

¶23 ALL JUSTICES CONCUR.

FOOTNOTES

1The provisions of 30 O. S. 1991, §3-107 (G) state:

"In all cases where independent counsel is retained by or on behalf of the subject of the proceeding, the court shall make independent inquiry to determine whether counsel is independent and whether any conflict of interest exists which would preclude proper representation of the subject of the proceeding or which would be detrimental to the best interest of the subject of the proceeding. The court shall appoint other counsel where retained counsel is found not to be independent."

2See supra note 1 for the text of §3-107 (G).

3Towne's estate planning documents, which were the subject of the court's questioning at the hearing, were not admitted into evidence at that time and were not submitted to this court as part of the original record on appeal. They were subsequently offered as part of a supplemental record on appeal in connection with Towne's motion to stay prior orders of the trial court pending this appeal. In Towne's answer to the guardianship petition, she described the general content of these documents, stating that practically all of her assets are held in a trust known as the Fern A. Stewart Revocable Trust dated June 1, 1976, that she and Harold Sinclair are co-trustees of that trust, and that she has executed a durable power of attorney in favor of Harold Sinclair. Faced with the court's questions at the hearing, Towne was unable to recall this information. She thought she had a trust and remembered that her brother had been the trustee until his death, which, she believed, had occurred just three weeks earlier. [There is no evidence in the record of the date of her brother's death, but the parties' briefs state that he died approximately a year before the hearing.] She thought that she had not yet named a new trustee to replace her brother. She hoped or guessed that she was a trustee and she was unsure whether Mr. Sinclair was a trustee as well. Asked what a durable power of attorney was, she could not say, but after the court provided a partial explanation of the term, she stated that she did not have one.

4Harold Sinclair is identified in Towne's answer as a long-time personal friend of Towne and her deceased husband and as a person of substantial means and business experience.

5She responded affirmatively to the court's inquiry as to whether she had given Harold Sinclair the power to handle her financial affairs, but thought that she had only verbally asked him to do so. When pressed to describe what she had asked Sinclair to do, she responded that he was to help her if she received some advertising and did not know what to do with it "and just anything like that that came up."

6No evidence appears in support of this finding in the transcript of the December 29 hearing nor anywhere else in the record on appeal. In a brief, Venters states only that he has known Sinclair for a number of years and had probated Sinclair's mother's estate.

7In the order recasting the original proceeding into an appeal from an interlocutory order in guardianship, we designated Towne as the appellant. Towne v. Hubbard, 1999 OK 10, 977 P.2d 1084. She promptly filed a petition in error by and through Venters, her retained counsel. Meanwhile, Towne's court-appointed counsel, identifying Towne as an appellee, filed a response to the petition in error, opposing the position advocated by Venters on Towne's behalf. This cause hence stands in the paradoxical posture of having the same party labeled by different attorneys as both appellant and appellee.

8In re Guardianship of Deere, 1985 OK 86, ¶ 6, 708 P.2d 1123, 1125.

9Id.

10Id. at ¶ 6, at 1125-1126.

11Seee.g.,5 O.S.1991 Ch.1, App 1-A, Rule 10 (Suspension for Personal Incapacity to Practice Law); 59 O. S. 1991 §637 (A) (14) (osteopathic physicians); 59 O. S. 1991 §887.13 (8) (physical therapists).

12See, 43 O. S. 1991 §1.

13See, 21 O. S. Supp. 1999 §1289.10 (making it a crime to sell or transfer a firearm to one who has been adjudicated incompetent).

14See, 47 O.S. Supp. 1999 §6-119.

15See, 38 O.S. Supp. 1999 §28.

17Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); In re Guardianship of Deere, 1985 OK 86,708 P.2d 1123; In re D.B.W., 1980 OK 125, 616 P.2d 1149; In re Adams, 1972 OK 85, 497 P.2d 1080.

18The right to representation by counsel in judicial proceedings is grounded in both the federal and state constitutions. The right is expressly conferred upon defendants in criminal cases by the Sixth Amendment to the United States Constitution and by Art. 2, §20 of the Oklahoma Constitution. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall have the right . . . to have the Assistance of Counsel for his defense." See, Johnson v. Zerbst, 304 U.S. 458, 585 S. Ct. 1019, 82 L. Ed. 1461 (1938), in which the Supreme Court stated that the Sixth Amendment "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, . . ."). Id. at 462, 585 S. Ct. at 1022. The provisions of Article 2, §20 of the Oklahoma Constitution differ slightly from those of the Sixth Amendment. Article 2, §20 provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be heard by himself and counsel." Although no explicit right to counsel is set forth in the United States Constitution outside the criminal defense context, the United States Supreme Court has held that the assistance of a legal practitioner is fundamental to due process in certain types of civil litigation, aspects of which are analogous to criminal proceedings. U.S. Constitution, Fifth and Fourteenth Amendments; Okla. Const. Art. 2, §7. See, e.g., Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L.Ed2d 84 (1966) (due process entitles child to assistance of counsel in juvenile court waiver proceeding, calling the right to representation by counsel "the essence of justice"); In re Gault, 387 U.S. 1, 36, 87 S. Ct. 1428, 1448,18 L. Ed. 2d 527 (1967) (due process right to counsel by minor in determination of delinquency where the prospect of incarceration exists); Sprecht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967) (individual convicted under a Sex Offenders Act for an indeterminate term with no notice of a full hearing); McNeil v. Director Patuxent Institution, 407 U.S. 245, 92 S. Ct. 2083, 32 L. Ed. 2d 719 (1972) (individual sent to a juvenile home for an indeterminate term on the basis of an ex parte order committing him for examination). See also, Heyford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968) (in habeas corpus proceeding brought on behalf of a mentally deficient person who was not afforded legal counsel at a hearing which resulted in his involuntary commitment to state institution, the court said, "Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, and this necessarily includes the duty to see that a subject of an involuntary commitment proceedings (sic) is afforded the opportunity to the guiding hand of legal counsel at every step of the proceeding, unless effectively waived by one authorized to act in his behalf."); Lessard v. Schmidt, 379 F. Supp 1376 (E.D. Wis. 1974) (state civil commitment statutes denied due process by failing to guarantee, inter alia, the right to be represented by adversary counsel), vacated on other grounds, Schmidt v. Lessard, 421 U.S. 957, 95 S. Ct. 1943, 44 L.Ed2d 445 (1975), prior judgment reinstated on remand, Lessard v. Schmidt, 413 F. Supp. 1318 ( E.D. Wis. 1976). These cases all involved quasi-criminal hearings, and the United States Supreme Court (or lower federal court) concluded that the deprivation of the fundamental right to liberty was so great that due process requirements had to be met. See also, In re D.B.W., 1980 OK 125, 616 P.2d 1149, n.5 ("The United States Supreme Court has made it clear that a proceeding does not have to be criminal in order for due process guarantees to apply."); Tetro v. Tetro, 544 P.2d 17,19 (Wash. 1975)(right to appointed counsel in contempt proceeding where incarceration may occur regardless of whether proceeding is labeled civil or criminal. "In proceeding civil in form, but criminal in nature - such as juvenile delinquency or mental commitment hearings - representation is clearly part of due process.").

19The burden of proof is set by the provisions of 30 O. S. 1991, §3-111.

20Id. Most of these rights have been codified at 30 O. S. 1991, §§3-106.

21The Latin phrase "delectus personae" ("choice of the person") is usually used in connection with general partnerships and employment relationships. Black's Law dictionary, p. 512 (Revised Fourth Ed. 1968). See, e.g., Ferguson v. Nagle, 159 Okla. 219, 15 P.2d 1 (1932) (delectus personae refers to the right of one partner to determine whether a new partner shall be admitted to a partnership); Howard v. Harwood's Restaurant Co., 43 N. J. Super. 301, 128 A.2d 727 (1957) and Cummings v. United Resort Hotels, Inc., 85 Nev. 23, 449 P.2d 245 (1969) (employer has the right of delectus personae.). The phrase also applies to the attorney-client relationship where trust and confidence in a particular individual is central to the relationship.

22 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).

23287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L.Ed 158 (1932). See also, Harling v. United States, 387 A.2d 1101, 1104 (D.C. App. 1978).

24Douglas v. United States, 488 A.2d 121, 141 (D.C. App. 1985). See also, In re Mandell, 69 F.2d 830, 831 (2nd Cir. 1934) ("The relationship between attorney and client is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously.").

25Douglas, supra, note 24 at 141.

26United States v. Laura, 607 F.2d 52, 55-56 (3rd Cir. 1979) (right of criminal defendant to choose particular legal practitioner protected by Sixth Amendment to the United States Constitution which prohibits arbitrary interference with individual's choice).

27Id. at 56.

28See, e.g., People v. Speedee Oil Change Systems, Inc., 980 P.2d 371 (Cal.1999).

29See the provisions of 30 O. S., 1991 §3-107 (G), supra, note 1.

30That rule, found at 5 O. S. 1991, Ch. 1, App. 3-A. Rule 1.7, Oklahoma Rules of Professional Conduct, states in pertinent part:

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. . . ."

31Id.

32The Oklahoma Guardianship and Conservatorship Act is codified at 30 O. S. 1991, §1-101 et. seq.

33See the provisions of 30 O. S. 1991, §3-110.

34While the provisions of 30 O. S. 1991, §3-106 require that notice be given of all hearings conducted pursuant to Article III of the Oklahoma Guardianship and Conservatorship Act, they tie the requisite notice to the provisions of §3-110, which do not include any reference to notice of the statutory inquiry into retained counsel's independence.

35Carlton v. Quint, 91 Cal. Rptr. 2d 844, 847-48 (Cal. App.2000); P.B. and B.B. v. Dep't. of Children and Family Services, 709 So. 2d 590, 591 (Fla. App. 1998).

36Okl. Const. Art. II, §7; Crussel v. Kirk, 1995 OK 41, ¶ 15, 894 P.2d 1116, 1120.

37Malone v. Malone, 1979 OK 21, ¶ 4, 591 P.2d 296, 298.

38Kent v. United States, 383 U.S. 541, 561, 86 S. Ct. 1045, 1057, 16 L. Ed. 2d 84 (1966).

39Id.

40Piette v. Bradley & Leseberg, 1996 OK 124, ¶ 2, 930 P.2d 183, 183.

41While we do not review the sufficiency of the evidence in this case, we note that the trial court's order of 5 January 1999 contains several statements of fact not reflected in the record on appeal. We surmise that this information came to the trial judge's attention during her first, off-the-record interview of Towne. For one to enjoy the opportunity of meaningful appellate review, another stage of proceedings protected by due process, it is essential that the facts relied upon by the trial court appear in a record that is available in one's quest for corrective relief.