Diversity Considerations in the Appointment of Counsel for Conservatees: Unintentional Implicit Bias

California Probate Code Section 1471 provides that the court may appoint private counsel for a conservatee or proposed conservatee if “it would be helpful to the resolution of the matter or is necessary to the protection of the person’s interest.” Throughout the state of California, attorneys are appointed to provide unbiased representation of elders in conservatorship cases. In Contra Costa County attorneys are either appointed from the bench or from the Contra Costa County Conflict Program also known as Independent Counsel, Inc. It is an honor to be a court-appointed attorney since the court entrusts certain attorneys to protect the wellbeing and financial assets of its senior population. The court also relies on the court-appointed attorneys’ recommendations when making critical decisions in probate matters.

However, even with the best intentions it is common that attorneys project their own bias on the clients. It is known as unintentional implicit bias. The beliefs we hold are often shaped from our world view and cultural and developmental experiences. Unintentional implicit bias can be as simple as thinking your client is a hoarder when, really, they hold on to things based on the scarcity he or she faced at some point in his or her life. An attorney may also feel it is unsafe to visit a client because the people in the home look different or have different religious views. These biases may get in the way of zealous advocacy.

A movie which was released in July 2019 displays how one can project their own bias on another person. The movie, titled “The Farewell,” stars actress Awkwafina who plays Billi. Billi, who is Chinese American, learns that her grandmother is dying of cancer and wants to tell her of her diagnosis. Billi felt that if her grandmother knew she was dying she could prepare herself for death. Billi was extremely disappointed when her family decided not to tell her grandmother. At times, Billi formed extremely negative opinions of her family and her grandmother’s medical providers who supported keeping the diagnosis a secret. Billi’s judgment caused dissention and stress for herself and her family members. Contrary to Billi’s Western views, her family’s cultural belief was that the lie allowed the family to carry the burden of the diagnosis so that her grandmother did not have to carry it and could die in peace. Billi soon realized that her grandmother preferred the family’s decision as it aligned more closely with her belief system. Court-appointed attorneys also struggle with the same paradigm shift. They struggle with projecting their own cultural norms on the client with the expectation that the client must accept the attorney’s norms.

It is difficult to abandon our views, our pride, our egos and experience a paradigm shift. Here are a few tips on how to minimize unintentional implicit bias towards all clients, especially the elderly, disabled and/or vulnerable.

Pay attention to your implicit bias

You should be aware how many times you recognize differences between yourself and your client. Pay close attention to how you show up and what may trigger certain negative feelings. Sometimes meeting with parties when you are tired, stressed, hungry or even angry may affect your perception of your client.

Do your due diligence

Learn more about your client’s culture, traditions, family values and beliefs. This may require you to spend more time with your client, your client’s key family members and friends. What may be red flags to you may be cultural etiquette. For example, a client may purchase an expensive wedding gift for his or her grandchild; however this act which you may consider as elder financial abuse may simply be the cultural norm in your client’s community. In another situation, when finding the least restrictive housing option for your client, remaining at home may be in his or her best interest even if it does not meet your personal standards for cleanliness.

Remain open  and question your bias

Remaining open may include allowing your client to speak more than yourself. You should pay attention to instances when you think your client’s way of doing or being is wrong or unacceptable. It is recommended that you enroll in MCLE courses on the elimination of bias. California Rule of Court Section 7.1103 lists the educational requirements that attorneys must complete in order to receive court appointments. They include taking courses on the ethical duties owed to the client under the California Rules of Professional Conduct, less restrictive alternatives for the client, supportive decision making and communicating with older, disabled or vulnerable clients.

Eliminate cultural stereotypes

Utilize what you have learned about your client to challenge stereotypes and champion change.

Be your client’s advocate, not your own

It is easy to protect your own views and beliefs to the detriment of effective representation of a client. We can learn and benefit from expanding our world view and trying to see things from our client’s perspective. As court-appointed attorneys, it is sometimes a difficult task. We are charged with doing what is in the best interest of our clients. Sometimes this requires us to make recommendations to the court that are contrary to our client’s wishes. It is possible to achieve this goal and respect our clients at the same time. Writer C.S. Lewis once said, “A proud man is always looking down on things and people; and, of course, as long as you are looking down, you cannot see something that is above you.”

MCLE Self Study

Earn one hour of general MCLE credit by answering the questions on the Self Study MCLE test available here. 
Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within 2 weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540.