Fiduciary Self-Representation — New California Case

A topic of recent interest, here, here, and here, has been whether an executor, trustee, or other fiduciary must hire an attorney or else be guilty of practicing law without a license.

In Finkbeiner v. Gavid, a California Appellate Court (Second District, Division Six, 2d Civil No. B180104) held that “a trustee of an inter vivos trust may appear in court in propria persona to modify and terminate the trust.”  Here is an excerpt from the opinion:

In ruling that Finkbeiner could not proceed without counsel, the trial court relied on Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 549. There the Court of Appeal said “[a] non-attorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law. [Citation.]” (Ibid.)

But Ziegler is distinguishable. There a trustee of a trust brought an affirmative lawsuit against the sellers of a mobile home. He alleged they had intentionally failed to disclose material defects to the trust about the vehicle. He was representing the trust and was not represented by counsel. The Court of Appeal affirmed the trial court’s order requiring him to withdraw from the case and ordering him to “retain an attorney to represent the Trust.” (Ziegler v. Nickel, supra, 64 Cal.App.4th at p. 547.)

Here by contrast Finkbeiner is not suing a third party. She filed the petition as part of her fiduciary responsibility to the court. Finkbeiner correctly notes that trustees have various statutory duties. She was appointed by the court for the purpose of selling the property. She had a duty to account for trust assets, a right to seek her fees and a responsibility to notify the court if she felt maintaining an ineffective trust was wasteful to the trust estate. By filing her petition to modify and terminate the trust, she was simply fulfilling her duties as trustee. (See Prob. Code § 17200 et seq.) She was not engaged in the unauthorized practice of law.

Special thanks to Alexandra Laboutin Bannon (Anglea & Bannon, A Professional Corporation Pasadena, California) for bringing this case to my attention.