Rule 7.1101. Qualifications and continuing education required of counsel appointed by the court in guardianships and conservatorships
As used in this rule, the following terms have the meanings stated below:
(1)"Appointed counsel" or "counsel appointed by the court" are legal counsel appointed by the court under Probate Code sections 1470 or 1471, including counsel in private practice and deputy public defenders directly responsible for the performance of legal services under the court's appointment of a county's public defender.
(2)A "probate guardianship" or "probate conservatorship" is a guardianship or conservatorship proceeding under division 4 of the Probate Code.
(3)"LPS" and "LPS Act" refer to the Lanterman-Petris-Short Act, Welfare and Institutions Code section 5000 et seq.
(4)An "LPS conservatorship" is a conservatorship proceeding for a gravely disabled person under chapter 3 of the LPS Act, Welfare and Institutions Code sections 5350-5371.
(5)A "contested matter" in a probate or LPS conservatorship proceeding is a matter that requires a noticed hearing and in which written objections are filed by any party or made by the conservatee or proposed conservatee orally in open court.
(6)"Counsel in private practice" includes attorneys employed by or performing services under contracts with nonprofit organizations.
(Subd (a) amended effective January 1, 2016; previously amended effective January 1, 2009.)
(b) Qualifications of appointed counsel in private practice
Except as provided in this rule, each counsel in private practice appointed by the court on or after January 1, 2008, must be an active member of the State Bar of California for at least three years immediately before the date of appointment, with no discipline imposed within the 12 months immediately preceding any date of availability for appointment after January 1, 2008; and
(1)Appointments to represent minors in guardianships
For an appointment to represent a minor in a guardianship:
(A)Within the five years immediately before the date of first availability for appointment after January 1, 2008, must have represented at least three wards or proposed wards in probate guardianships, three children in juvenile court dependency or delinquency proceedings, or three children in custody proceedings under the Family Code; or
(B)At the time of appointment, must be qualified:
(i)For appointments to represent children in juvenile dependency proceedings under rule 5.660 and the court's local rules governing court-appointed juvenile court dependency counsel; or
(ii)For appointments to represent children in custody proceedings under the Family Code under rule 5.242, including the alternative experience requirements of rule 5.242(g).
(C)Except as provided in (f)(2), counsel qualified for appointments in guardianships under (B) must satisfy the continuing education requirements of this rule in addition to the education or training requirements of the rules mentioned in (B).
(2)Appointments to represent conservatees or proposed conservatees
For an appointment to represent a conservatee or a proposed conservatee, within the five years immediately before the date of first availability for appointment after January 1, 2008, counsel in private practice must have:
(A)Represented at least three conservatees or proposed conservatees in either probate or LPS conservatorships; or
(B)Completed any three of the following five tasks:
(i)Represented petitioners for the appointment of a conservator at commencement of three probate conservatorship proceedings, from initial contact with the petitioner through the hearing and issuance of Letters of Conservatorship;
(ii)Represented a petitioner, a conservatee or a proposed conservatee, or an interested third party in two contested probate or LPS conservatorship matters. A contested matter that qualifies under this item and also qualifies under (i) may be applied toward satisfaction of both items;
(iii)Represented a party for whom the court could appoint legal counsel in a total of three matters described in Probate Code sections 1470, 1471, 1954, 2356.5, 2357, 2620.2, 3140, or 3205;
(iv)Represented fiduciaries in three separate cases for settlement of a court-filed account and report, through filing, hearing, and settlement, in any combination of probate conservatorships or guardianships, decedent's estates, or trust proceedings under division 9 of the Probate Code; or
(v)Prepared five wills or trusts, five durable powers of attorney for health care, and five durable powers of attorney for asset management.
(3)Except as provided in (e)(2), private counsel qualified under (1) or (2) must also be covered by professional liability insurance satisfactory to the court in the amount of at least $100,000 per claim and $300,000 per year.
(Subd (b) amended effective January 1, 2011; previously amended effective January 1, 2009.)
(c) Qualifications of deputy public defenders performing legal services on court appointments of the public defender
(1)Except as provided in this rule, beginning on January 1, 2008, each county deputy public defender with direct responsibility for the performance of legal services in a particular case on the appointment of the county public defender under Probate Code sections 1470 or 1471 must be an active member of the State Bar of California for at least three years immediately before the date of appointment; and either
(A)Satisfy the experience requirements for private counsel in (b)(1) for appointments in guardianships or (b)(2) for appointments in conservatorships; or
(B)Have a minimum of three years' experience representing minors in juvenile dependency or delinquency proceedings or patients in postcertification judicial proceedings or conservatorships under the LPS Act.
(2)A deputy public defender qualified under (1) must also be covered by professional liability insurance satisfactory to the court in the amount of at least $100,000 per claim and $300,000 per year, or be covered for professional liability at an equivalent level by a self-insurance program for the professional employees of his or her county.
(3)A deputy public defender who is not qualified under this rule may periodically substitute for a qualified deputy public defender with direct responsibility for the performance of legal services in a particular case. In that event, the county public defender or his or her designee, who may be the qualified supervisor, must certify to the court that the substitute deputy is working under the direct supervision of a deputy public defender who is qualified under this rule.
(d) Transitional provisions on qualifications
(1)Counsel appointed before January 1, 2008, may continue to represent their clients through March 2008, whether or not they are qualified under (b) or (c). After March 2008, through conclusion of these matters, the court may retain or replace appointed counsel who are not qualified under (b) or (c) or may appoint qualified co-counsel to assist them.
(2)In January, February, and March 2008, the court may appoint counsel in new matters who have not filed the certification of qualifications required under (h) at the time of appointment but must replace counsel appointed under this paragraph who have not filed the certificate before April 1, 2008.
(e) Exemption for small courts
(1) Except as provided in (2) and (3), the qualifications required under (b) or (c) may be waived by a court with four or fewer authorized judges if it cannot find qualified counsel or for other grounds of hardship.
(2)A court described in (1) may, without a waiver, appoint counsel in private practice who do not satisfy the insurance requirements of (b)(3) if counsel demonstrate to the court that they are adequately self-insured.
(3)A court may not waive or disregard the self-insurance requirements of (c)(2) applicable to deputy public defenders.
(4)A court waiving the qualifications required under (b) or (c) must make express written findings showing the circumstances supporting the waiver and disclosing all alternatives considered, including appointment of qualified counsel from adjacent counties and other alternatives not selected.
(Subd (e) amended effective January 1, 2009.)
(f) Continuing education of appointed counsel
(1)Except as provided in (2), beginning on January 1, 2008, counsel appointed by the court must complete three hours of education each calendar year that qualifies for Minimum Continuing Legal Education credit for State Bar-certified specialists in estate planning, trust, and probate law.
(2)Counsel qualified to represent minors in guardianships under (b)(1)(B) and who are appointed to represent minors in guardianships of the person only may satisfy the continuing education requirements of this rule by satisfying the annual education and training required under rule 5.242(d) or the continuing education required under rule 5.660(d)(3).
(Subd (f) amended effective January 1, 2011; previously amended effective January 1, 2009.)
(g) Additional court-imposed qualifications, education, and other requirements
The qualifications in (b) and (c) and the continuing education requirement in (f) are minimums. A court may establish higher qualification or continuing education requirements, including insurance requirements; require initial education or training; and impose other requirements, including an application by private counsel.
(h) Initial certification of qualifications; annual post-qualification reports and certifications
(1)Each counsel appointed or eligible for appointment by the court before January 1, 2008, including deputy public defenders, must certify to the court in writing before April 1, 2008, that he or she satisfies the qualifications under (b) or (c) to be eligible for a new appointment on or after that date.
(2)After March 2008, each counsel must certify to the court that he or she is qualified under (b) or (c) before becoming eligible for an appointment under this rule.
(3)Each counsel appointed or eligible for appointment by the court under this rule must immediately advise the court of the imposition of any State Bar discipline.
(4)Beginning in 2009, each appointed counsel must certify to the court before the end of March of each year that:
(A)His or her history of State Bar discipline and professional liability insurance coverage or, if appointed by a court with four or fewer authorized judges under (e)(2), the adequacy of his or her self-insurance, either has or has not changed since the date of his or her qualification certification or last annual certification; and
(B)He or she has completed the continuing education required for the preceding calendar year.
(5)Annual certifications required under this subdivision showing changes in State Bar disciplinary history, professional liability insurance coverage, or adequacy of self-insurance must include descriptions of the changes.
(6)Certifications required under this subdivision must be submitted to the court but are not to be filed or lodged in a case file.
(Subd (h) amended effective January 1, 2009.)
The Judicial Council may require courts to report appointed counsel's qualifications and completion of continuing education required by this rule to ensure compliance with Probate Code section 1456.
(Subd (i) amended effective January 1, 2016.)
Rule 7.1101 amended effective January 1, 2016; adopted effective January 1, 2008; previously amended effective January 1, 2009, and January 1, 2011.