PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Does A Trustee Need To Be Represented By Counsel In Court Proceedings?

Fla. P. R. 5.030(a) reads in relevant part: “Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.” There is no comparable rule or statute in Florida governing trustees.

The only case in Florida discussing this issue is Schneider v. Schneider 732 So. 2d 1147 (Fla. 4th DCA 1999). In Schneider, the lower court judge, John J. Hoy (Case No. 50-1998-CP-001476-TRIB-MB, Palm Beach County) held that the trustee was not allowed to proceed with the case without counsel because of his fiduciary duties as trustee. The appellate court denied the trustee’s request for a writ of certiorari because the trustee had a remedy by final appeal. As a result, there is no appellate decision in Florida clarifying the issue as to whether a trustee must be represented by counsel in court proceedings.

The majority of the out of state appellate decisions on this issue have held that a trustee must be represented by counsel in court proceedings. A trustee may appear in court without licensed legal counsel only to represent his own legal interests in his individual capacity, not to represent the legal interests of the trust or trust beneficiaries in his representative, fiduciary capacity as trustee. See Moss v. Lingley, 27 LCR 60927, 2019 Mass. LCR LEXIS 232, 2019 WL 6049967 (Mass. 2019); Wells Fargo Bank N.A. v. 2611 Land Trust, 2013 WI App 16 (WI. 2013); Aulisio v. Bancroft, 230 Cal. App. 4th 1516 (Cal. App. 2014) (a sole trustee of a revocable living trust, who is also the sole settlor and beneficiary of the trust assets he is charged to protect, who does not appear in court proceedings concerning the trust in a representative capacity, can properly acts in propria persona and does not violate the bar against practicing law without a license).

In Ziegler v. Nickel, 64 Cal. App. 4th 545 (Cal. App. 1998), the court held that one who is not a licensed attorney cannot appear in court for another person. Thus, one holding a special power of attorney cannot act as an attorney for another by virtue of the power of attorney. The court reasoned that it has long been established that a corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney. That is, a corporate officer, who is not an attorney, may not appear on behalf of the corporation.[1] In contrast to a corporation, which is a distinct legal entity separate from its stockholder and from its officers and deemed a person within many legal constructs, a trust is not a person but rather a fiduciary relationship with respect to property. Indeed, an ordinary express trust is not an entity separate from its trustees. The court adopted the holding and reasoning in Back Acres Pure Trust v. Fahnlander 233 Neb. 28, 443 N.W.2d 604 (Neb. 1989) wherein the court held that a trustee’s duties in connection with his or her office do not include the right to present argument in propria persona in courts of the state, because in this capacity such trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law. Stated otherwise, a trustee must always act solely in the beneficiaries’ interest. The actions of the trustee affect the trust estate and therefore affect the interest of the beneficiaries. The court held that 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.”

In Finkbeiner v. Gavid, 136 Cal. App. 4th 1417 (Cal. App. 2006), Finkbeiner, in his capacity as trustee of the irrevocable trust, filed an in propria persona petition in the superior court to modify and terminate the trust, for approval of the accounting, and for $4,500 in trustee’s fees. The lower court, citing Ziegler, held that Finkbeiner could not appear as trustee without counsel because she was presenting “arguments on behalf of the beneficiaries”. In Ziegler, the trustee of a trust filed an in propria persona lawsuit against the sellers of a mobile home. The appellate court, in reversing the lower court, distinguished Ziegler because Finkbeiner is not suing a third party; she merely filed her petition as part of her fiduciary responsibility to the court. The court reasoned that Finkbeiner was appointed by the court for the purpose of selling trust 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, Finkbeiner was simply fulfilling her duties as trustee and she was not engaged in the unauthorized practice of law.

[1] The same rule applies in Florida. See Torrey v. Leesburg Reg’l Med. Ctr., 769 So. 2d 1040 (Fla. 2000).