PROBATE CORNER
Does A Trustee Need To Be Represented By
Counsel In Court Proceedings?
DAVID M. GARTEN
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
PBCBA BAR BULLETIN
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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.
The same rule applies in Florida. See
Torrey v. Leesburg Reg'l Med. Ctr. , 769 So.
1
2d 1040 (Fla. 2000).
Welcome to the Palm Beach County
15th Judicial Circuit family!
On Tuesday, March 3rd the Unified
Family Practice and the Family Law
CLE Committees hosted a great lunch
at the Main Courthouse welcoming
the newly appointed Judge Renatha
Francis and Magistrate Stokes.