Conservatorship of David L and substitute counsel
Conservatorship of David L., 164 Cal. App. 4th 701

In this case we resolve the question of whether a prospective conservatee who requests substitute appointed counsel must be given a full opportunity to state the reasons for his request in accordance with People v. Marsden 


The Superior Court of Shasta County, California, found that appellant prospective conservatee was gravely disabled due to a mental disorder within the meaning of California's Lanterman-Petris-Short Act, Welf. & Inst. Code, § 5000 et seq., appointed respondent public guardian as conservator of his person and estate.

This case determines whether the conservatee is entitled to notice to provide reason to why they want change in counsel/ Marsden proceeding. The conservatee's motion was denied by trial court which had failed to provide an opportunity for the conservatee to provide reason for change upon review.

In accordance to Marsden any criminal defendant who is found indigent by the court and thus appointed court appointed counsel is afforded an opportunity to file a Marsden motion requesting substitute counsel or to address the judge directly. In this case, the petitioner should be afforded an opportunity to present a case as to why their counsel is providing ineffective counsel. See in re Marsden 

​In Marsden, a criminal defendant argued that "he was deprived of his constitutional right to the effective assistance of counsel because the trial court denied his motion to substitute new counsel without giving him an opportunity to state the reasons for his request." (Marsden, supra, 2 Cal.3d at p. 120.) 

In re conservatorship of David, the conservatee contends that he was entitled to the same protection and was not afforded an opportunity to present a cognizable case as to why his counsel failed to provide effective representation. The public conservator argued that the same rights afforded during a Marsden proceeding for a criminal matter do not apply for LPS conservatorship and moved to dismiss the matter citing:

As the public guardian correctly notes, there is no right to counsel in an LPS proceeding arising from the Sixth Amendment because the Sixth Amendment applies only to "criminal prosecutions." (U.S. Const., 6th Amend.; see also Conservatorship of Joel E. (2005) 132 Cal. App. 4th 429, 435 [33 Cal. Rptr. 3d 704].) An LPS "conservatee is not a criminal defendant and the proceedings are civil in nature." (Conservatorship of Ben C. (2007) 40 Cal. 4th 529, 537 [53 Cal. Rptr. 3d 856, 150 P.3d 738].)

Even though this was the case the trial court noted that the conservatee was entitled to the right to effective counsel as laid out in Welf and Inst Code §5365. The court also notes because of the deprivation of civil liberties the conservatee is entitled to due process protection. The court cites how if the conservatee is disabled from expressing his reasoning the court would "disable him from presenting his side of the story before a responsible government official." (in re. People v. Otto, supra, 26 Cal.4th at p. 215.) 

During the court hearing, the following took place in which the trial court did take notice of the conservatee's desire to better represent his reason for substitute counsel. 
"[PUBLIC DEFENDER]: [I] have been in communication with my client all along, and he has told me that he wants the [c]ourt to appoint a new attorney. He does not want my office. His reasons would be in the nature of a Marsden [h]earing.... [¶] His reasons for a Marsden [h]earing and a new attorney are as follows:
"(1) He feels that I let the two psychologists, Dr. Mahoney and Dr. Caruso, commit perjury when they formed their opinion that my client is gravely disabled and needs to be on a conservatorship. He feels that his position, when he testified, was not adequately explained.
"THE COURT: Would you clarify that?
"[PUBLIC DEFENDER]: I can't. He just wants to embellish more as to why he thinks he's not gravely disabled, why a [s]tate hospital would be a terrible, terrible thing, why he feels his family should be the conservator. [¶] I would inquire of my client's mother and sister if there were any other reasons why he wanted another attorney other than what I have already said.
"[DAVID'S MOTHER]: Well, you covered it pretty well. He's just afraid he didn't get everything out.
"[DAVID'S SISTER]: Yeah, he didn't get to speak.
"[PUBLIC DEFENDER]: He did want to embellish more on his testimony. However, I am prepared to argue on what he said."
*708 The court denied David's request for substitute counsel. In doing so, the court explained: David "has declined to appear in court today. And although he has stated these things to you and you have relayed them to the [c]ourt, these are not the kinds of issues that the [c]ourt feels that there's a complete breakdown of the relationship. [¶] 


The appellate court took notice of the matters presented before it yet the court dismissed the case as moot as the conservatorship had terminated by the end of the proceedings. The court does make a reminder to remember the importance of preserving the conservatee's rights even if LPS is a civil proceeding by nature. The court took notice as it considered that this case remains relevant because many times a conservatee will request a Marsden motion and the court needs to ensure that the conservatee's due process rights are not violated.