In re Bingham ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-PR-368
IN RE: WILFORD E. BINGHAM, III;
KILOLO KIJAKAZI, APPELLANT,
V.
JENNIFER J. BINGHAM,
APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(INT-84-19)
(Hon. Jonathan H. Pittman, Trial Judge)
(Submitted March 25, 2021 Decided March 24, 2022)
Robert S. Bullock and Allison M. Mazzei were on the brief, for appellant.
Jennifer J. Bingham, pro se.
Before GLICKMAN and MCLEESE, Associate Judges, and WASHINGTON, Senior
Judge.
GLICKMAN, Associate Judge: With the assistance of counsel, Dr. Kilolo
Kijakazi successfully petitioned the Superior Court to appoint a guardian and
conservator for her brother, Mr. Wilford E. Bingham. In doing so, Dr. Kijakazi
incurred and paid her attorneys’ fees and other costs of the proceeding. The Superior
2
Court ruled, however, that Dr. Kijakazi was not entitled to any reimbursement of
those expenditures from Mr. Bingham’s estate or the District’s Guardianship Fund.
Dr. Kijakazi appeals that ruling. We reverse and remand for the Superior Court to
consider her application for reimbursement.
I. The Intervention Proceeding and Petition for Compensation
In January 2019, Dr. Kijakazi retained counsel with The Elder & Disability
Law Center to petition for a general intervention proceeding and the appointment of
a guardian and conservator for her 66-year-old brother, Mr. Bingham. As the
petition recited, Mr. Bingham had resided with Dr. Kijakazi in her home since
October 2016, when he was discharged from a hospital directly into her care. She
decided to file the petition after determining that she was no longer able to fulfill the
responsibilities of managing her brother’s care and his finances. According to
appellant’s brief, her counsel informed her at the beginning of their engagement that
she might be entitled to reimbursement of legal fees and other costs from Mr.
Bingham’s assets at the conclusion of the case, though there was no guarantee the
court would grant a request for such reimbursement.
Upon the filing of the petition, the court appointed counsel for Mr. Bingham
and an examiner. On April 2, 2019, after the examiner filed her report finding that
3
Mr. Bingham was incapacitated and recommending appointment of a guardian, the
court held a hearing on the petition. The hearing was attended in person by Dr.
Kijakazi, Mr. Bingham, and their sister, Jennifer Bingham. Each of them appeared
with counsel. The examiner also attended the hearing. At its conclusion, the court
found Mr. Bingham to be incapacitated. It appointed Jennifer Bingham and Matthew
Hertz, an attorney, to serve as his co-guardians, and Mr. Hertz to serve also as
conservator.
Thereafter, Dr. Kijakazi, by counsel, sought reimbursement of the attorney’s
fees and costs she had incurred in connection with the intervention proceeding,
pursuant to D.C. Code § 21-2060 1 and Superior Court Probate Rule 308. 2 Those
expenses, which Dr. Kijakazi had paid out of her own pocket, amounted to
$5,807.91. The court denied her initial reimbursement petition without prejudice to
“an amended petition for fees accompanied by a statement of services performed
that would permit the Court to [determine] whether the fees sought were
1
2012 Repl. & 2021 Supp.
2
Pursuant to D.C. Code § 11-946 (2012 Repl.), the Board of Judges of the
Superior Court has issued Rule Promulgation Order 22-03 approving amendments
revising and reorganizing the Superior Court Rules of the Probate Division. The
effective date of the amendments is August 22, 2022. In the amended Probate Rules,
Rule 322 will replace what is now Rule 308.
4
reasonable.” Dr. Kijakazi, still represented by her counsel and with their assistance,
then filed an amended petition providing the requested detail.
On April 22, 2020, the court denied Dr. Kijakazi’s amended petition in toto.
The court ruled that Dr. Kijakazi was not entitled to any reimbursement for the
following reasons: First, the court stated, D.C. Code § 21-2060 and Probate Rule
308 do not contemplate that a person who retains an attorney to petition for
appointment of a guardian or conservator may seek reimbursement of the attorney’s
fees and costs from the ward’s estate or the Fund. Second, Dr. Kijakazi had not
complied with what the court said was “the practice of the Probate Division that in
any case where petitioner’s attorney will be seeking fees from either the
Guardianship Fund or the ward’s funds, the attorney must file a notification of his
or her intention to seek such fees.” Third, the court said, Probate Rule 308(b)(1)(I)
requires an attorney’s petition for compensation to state whether the attorney “has
been or has an agreement to be compensated from a source other than the estate or
the Guardianship Fund.” Dr. Kijakazi had furnished this information. But because
the attorneys who filed the guardianship petition for Mr. Bingham had been paid by
her, the court stated, they “cannot make the certification required by Rule
308(b)(1)(I).” Finally, the court observed that petitioners “routinely file petitions
for appointment of a guardian for a family member pro se, i.e., without the assistance
5
of counsel,” and it opined that “[w]hile counsel can provide assistance and guidance
to a petitioner, counsel is not necessary” in such cases.
On appeal, Dr. Kijakazi argues that each reason given by the trial court for
denying her petition for reimbursement was erroneous as a matter of law. For the
following reasons, we agree with her. 3
II. The Threshold Question of Eligibility for Reimbursement
“Generally, we review the grant or denial of attorney’s fees for abuse of
discretion. However, we review de novo the Superior Court’s statutory authority to
3
Appellee, Ms. Bingham, does not respond to Dr. Kijakazi’s legal arguments
on appeal or defend the trial court’s reasons for denying the reimbursement petition.
Ms. Bingham opposes any reimbursement for Dr. Kijakazi on other grounds, relating
mainly to her dissatisfaction with the care her brother received after the co-guardian
placed him in a facility located in Baltimore County, Maryland. The issues Ms.
Bingham raises are outside the scope of this appeal and it would be inappropriate for
us to address them at this time. We express no view as to the merits of Ms.
Bingham’s objections or their relevance to the court’s consideration of the
reimbursement petition on remand.
6
award particular fees and costs.” 4 Our review of the trial court’s interpretation of
both the Guardianship Act and Probate Rule 308 is likewise de novo. 5
The Guardianship Act states that “any person interested in the welfare of [an]
incapacitated individual may petition for appointment of a guardian” 6 or a
conservator. 7 The filing of such a petition begins a legal proceeding. The Act
provides for the court to hold an evidentiary hearing on the issue of incapacity and
other issues, at which the allegedly incapacitated individual “shall be represented by
counsel and [be] entitled to present evidence and to cross-examine witnesses.” 8 The
petitioner is a party to this proceeding 9 and bears the burden of proving incapacity
and the need for a guardian or conservator by clear and convincing evidence. 10 The
4
In re Weaks, 224 A.3d 1028, 1031 (D.C. 2020) (citations omitted).
5
In re Grealis, 902 A.2d 821, 824 n.5 (D.C. 2006).
6
D.C. Code § 21-2041(a) (2012 Repl. & 2021 Supp.).
7
See id. § 21-2052 (2012 Repl.).
8
See id. §§ 21-2041(d)-(h), -2054 (2012 Repl. & 2021 Supp.)
9
Super. Ct. Prob. R. 303(a).
10
See D.C. Code § 21-2003 (2012 Repl. & 2021 Supp.) (“[T]he petitioner or
moving party shall present clear and convincing evidence that [appointment of a
guardian or conservator] is warranted.”).
7
court may permit other interested parties to participate in the proceeding “upon
determining that the best interest of the alleged incapacitated individual will be
served.” 11 After the hearing, the court “may appoint a guardian as requested if it is
satisfied that the individual for whom a guardian is sought is incapacitated and that
the appointment is necessary as a means of providing continuing care and
supervision of the person of the incarcerated individual.” 12 In that event, the court
“shall appoint the type of guardianship that is least restrictive to the incapacitated
individual in duration and scope, taking into account the incapacitated individual’s
current mental and adaptive limitations, the incapacitated individual’s ability to
improve his or her condition, or other conditions warranting the appointment.” 13 On
“appropriate findings,” the court also may appoint a conservator, enter “any other
appropriate order,” or dismiss the petition. 14
The compensation provision of the Guardianship Act, D.C. Code § 21-
2060(a), provides that
11
D.C. Code. §§ 21-2041(i), -2054(f).
12
D.C. Code § 21-2044(b) (2012 Repl. & 2021 Supp.).
13
Id. § 21-2044(a).
14
Id. §§ 21-2044(b), -2054(g).
8
[a]s approved by order of the court, any case reviewer,
visitor, attorney, examiner, conservator, special
conservator, guardian ad litem, or guardian is entitled to
compensation for services rendered either in a
guardianship proceeding, protective proceeding, or in
connection with a guardianship or protective arrangement.
The provision further states that such compensation “shall be paid from the estate”
of the incapacitated person or, if that estate “will be depleted by payouts made under
this subsection, from a fund established by the District,” which is known as the
Guardianship Fund. 15
Superior Court Probate Rule 308 details the requirements a petition for
compensation must satisfy. Among other things, the petition must describe the
service rendered, the time spent, and the benefits that accrued therefrom to the estate
or the subject of the proceedings. In addition, the petition must state “whether the
petitioner has been or has an agreement to be compensated from a source other than
the estate or the Guardianship Fund.” 16 The petition must be verified and must be
15
D.C. Code § 21-2060(a)-(b) (2012 Repl. & 2021 Supp.).
16
D.C. Super. Ct. Prob. R. 308(b)(1)(I).
9
served on all parties to the intervention proceeding, along with a notice informing
them of their right to object or consent to the petition. 17
We held in In re Weaks that an attorney who petitions for a guardianship, or
who otherwise renders assistance to the initiation and prosecution of an intervention
proceeding, is eligible under D.C. Code § 21-2060 for reasonable compensation
from the ward’s estate or the Guardianship Fund. Such service, we stated, “squarely
falls within the ambit of the Act.” 18
The trial court distinguished this case from Weaks on the ground that Dr.
Kijakazi “is not seeking compensation for services that she personally rendered as
the petitioner,” but instead “is seeking reimbursement of funds that she paid out of
her own pocket to retain counsel to prepare the petition for appointment of a guardian
and conservator.” The court deemed Dr. Kijakazi ineligible for reimbursement of
such funds in the absence of a statute or rule expressly permitting it.
17
Id. R. 308(d), (f).
18
In re Weaks, 224 A.3d at 1032. We stated that, “[i]n the language of D.C.
Code § 21-2060(a),” such a petitioner is eligible for compensation because she “is
an attorney who has rendered services in a guardianship proceeding.” Id. (quotation
marks, brackets, ellipses, and footnote omitted).
10
It is true that D.C. Code § 21-2060 and Probate Rule 308 allow attorneys who
initiate intervention proceedings to petition for reasonable compensation without
explicitly addressing whether the parties in interest who employ those attorneys and
advance them their fees out of their own pockets may seek compensation in their
stead. But we have considerable reason to construe the statute and Rule to allow
such compensation.
To begin with, the Guardianship Act is to be “liberally construed and applied
to promote” its goals of providing guardianships for incapacitated persons and a
“speedy and efficient system” for protecting their estates. 19 Where attorney
assistance in pursuing intervention proceedings is beneficial to the ward or the
ward’s estate, it furthers those goals to make reimbursement available to laypersons
who pay for that assistance. That is because — as this court has recognized —
attorneys who initiate such proceedings are generally not appointed by the court, 20
and in many cases (especially those involving small estates) they will decline the
19
D.C. Code § 21-2001(a), (b) (2012 Repl.); see Weaks, 224 A.3d at 1034;
In re Smith, 138 A.3d 1181, 1186 (D.C. 2016).
20
See Weaks, 224 A.3d at 1034. There is no requirement that an attorney be
appointed by the Probate Division in order to receive compensation for initiating a
guardianship or other intervention proceeding. Id.
11
engagements if they “would only be entitled to receive payment from the
Guardianship Fund, which involves relatively low rates.” 21
The Guardianship Act also provides that “[u]nless displaced by the particular
provisions of this chapter, the principles of law and equity supplement its
provisions.” 22 Where an attorney would be entitled to apply for and receive
compensation under the Act for beneficial services rendered in connection with an
intervention petition, such principles support extending that entitlement to the client
who pays the attorney instead to perform those services. Such a client stands in the
shoes of the attorney in seeking reimbursement to which the attorney would
otherwise be entitled; the applicable principles are essentially those of equitable
subrogation, the substitution of one person to the position of another, an obligee,
whose claim the person has satisfied. 23 Thus, this situation does not raise a concern
about double compensation being paid from the estate or the Guardianship Fund.
21
Grealis, 902 A.2d at 826.
22
D.C. Code § 21-2002(a) (2012 Repl.); see Weaks, 224 A.3d at 1034; Smith,
138 A.3d at 1187 n.11.
23
See E. Sav. Bank, FSB v. Pappas, 829 A.2d 953, 957-58 (D.C. 2003);
District of Columbia v. Aetna Ins. Co., 462 A.2d 428, 430-31 (D.C. 1983).
12
We are aware of no other valid objection to allowing the client to petition for
reimbursement in lieu of the attorney.
Furthermore, there is support for it in our case law and that of the Superior
Court. In the three appeals consolidated in Grealis, “the petitioners had retained an
attorney and paid him with their own funds to help prepare and submit a petition for
a guardianship and/or conservatorship, subsequently granted.” 24 The Superior Court
deemed the attorneys’ receipt of those payments improper because they were made
without prior court approval. It denied the clients’ applications to the court for
reimbursement from the ward’s estate or the Guardianship Fund of their legal fees
and costs, and instead ordered the attorneys to give their clients full refunds. We
reversed, holding that when attorney’s fees are not paid from the estate of a protected
individual or from the Fund, but rather are paid from private funds, “no statutory
basis exists for requiring court approval.” 25 In so holding, we strongly indicated that
the clients themselves are eligible to seek reimbursement for the retainers they paid
the attorneys to petition for a guardianship or conservatorship. We perceived that
the underlying concern in such cases was “not with depletion of the ward’s estate or
24
902 A.2d at 822.
25
Id.13
the Guardianship Fund, but with overreaching or deception by attorneys who are
paid retainers while falsely assuring the client that reimbursement will be available
— as a matter of course, and without court inquiry into the reasonableness of the
fees — from the estate or the Fund.” 26 But that concern does not mean clients are
barred from obtaining reimbursement. On the contrary, we saw “no evidence” of
overreaching in the record before us in Grealis, and we expressed our approval of
the attorney who “merely informed the client, correctly, that reimbursement of the
fees she had paid out of pocket would be possible or ‘permissib[le].’” 27 Such
reimbursement from the ward’s estate or the Fund would be permissible precisely
because, as we emphasized, “court approval is required before compensation may
be paid from estate funds. . . . [R]egardless of the agreements between clients . . .
and their attorneys about fee payments, no reimbursement for such payments may
be sought except by petition to the court and its review of the propriety and
reasonableness of the fees requested.” 28
26
Id. at 826.
27
Id. at 826 n.9 (emphasis added; brackets in the opinion).
28
Id. at 826 (emphasis added). Accordingly, we said, “the interest that is
unique to these cases — protecting incapacitated individuals and their estates —
suffers no diminution from preclusion of court intervention in the private
arrangements at issue here.” Id.14
We are aware that, in the years since this court decided Grealis, judges on the
Superior Court have disagreed or expressed uncertainty over their authority under
the Guardianship Act to award reimbursement from the ward’s estate or the
Guardianship Fund to a petitioner who has paid an attorney in advance to initiate
and litigate an intervention proceeding. Even so, the Superior Court’s website
informs the public that petitioners can be reimbursed for those legal fees if the court
finds the petition for intervention meritorious and approves the request. 29
If the question is unsettled, it should not remain so. Based on the preceding
discussion, we hold that subject to D.C. Code § 21-2060 and court approval, persons
who expend their own funds to hire and compensate an attorney for services rendered
in a guardianship or other protective proceeding, or in connection with a
29
See Intervention Proceedings (INT/IDD) FAQs, Fees – Can a Petitioner be
Reimbursed for Legal Fees Paid to File a Petition for a General Proceeding?,
DISTRICT OF COLUMBIA COURTS, (last visited March 2, 2022 12:05 PM),
https://www.dccourts.gov/services/faqs/filtered?location[0]=intiddlegal&location[
1]=int&location=intervention; https://perma.cc/54GT-6H2R. (“Yes, if the Court
finds the Petition for a General Proceeding to be meritorious and approves the
request. The request must be approved by the Court before the fees are reimbursed.
Failure to obtain prior Court approval could result in removal. It is recommended
that a petition for compensation completed by counsel accompany any petition for
approval of such an expenditure. In re Randolph Brevard, Sr., 2011 INT 44, 8-5-11
order; In re Leon M. Stanard, 2011 INT 20, May 26, 2011 order.”). (The two
citations are to Superior Court orders in two intervention cases.)
15
guardianship or other protective arrangement, are eligible for reimbursement from
the estate of the ward or from the Guardianship Fund.
That conclusion also serves to dispose of one of the trial court’s other reasons
for denying Dr. Kijakazi’s petition for reimbursement – that her previous
compensation of her attorneys precluded them from applying to the court for
compensation from the ward’s estate or the Guardianship Fund. Probate Rule
308(b)(1)(I) requires a petitioner seeking compensation from the estate or the Fund
to state “whether the petitioner has been or has an agreement to be compensated
from a source other than the estate or the Guardianship Fund.” The obvious purposes
of this disclosure requirement are to ensure that attorneys or other petitioners are not
compensated more than once for the same work and do not receive excessive
compensation from wards’ estates or the Fund for the services rendered.
But the petitioner here was Dr. Kijakazi herself, and she had not been
reimbursed from any source for the attorneys’ fees and costs she had paid in
connection with the guardianship proceeding. There was nothing improper in her
payment of those expenses. Accordingly, as this opinion now makes clear, Dr.
Kijakazi is eligible for reimbursement from the ward’s estate or the Guardianship
16
Fund. Her payment of the attorneys’ charges is the basis for her eligibility, not a bar
to it.
III. The Remaining Grounds for Denial of Reimbursement
As an additional reason for denying Dr. Kijakazi’s petition for reimbursement,
the trial court cited her failure to comply with “the practice of the Probate Division
that in any case where petitioner’s attorney will be seeking fees from either the
Guardianship Fund or the ward’s funds, the attorney must file a notification of his
or her intention to seek such fees.” Dr. Kijakazi and her counsel contend, without
contradiction, that they were not informed of any such notification requirement or
“practice” and therefore cannot be penalized for not complying with it.
We have not been directed to any statute or Rule imposing the notification
requirement described by the court, and we are aware of none. Nor does the record
on appeal indicate that Dr. Kijakazi or her counsel were informed of that
requirement. The trial court’s order does not state they were.
17
As support for the existence of such a requirement or “practice,” the order
denying Dr. Kijakazi’s petition cites only a Memorandum and Order Regarding Fee
Petition of Counsel for Petitioner that was entered in another, unrelated Superior
Court intervention proceeding, In re Nugent. 30 So far as appears, neither Dr.
Kijakazi nor her counsel were involved in Nugent; their names are not on the list of
persons to whom the order in that case was sent.
In his Nugent order, Associate Judge Gerald I. Fisher explained that, in
intervention proceedings over which he presided, he had held that “when a
petitioner’s attorney will be seeking payment from either the ward or the
Guardianship Fund and not from the client, s/he must promptly notify the court of
that intention.” 31 Judge Fisher went on to say that, in order to address the recurring
issue, “the judges currently presiding over calendars within the Probate Division
have conferred and are in agreement that as of this date [i.e., November 2, 2018], in
30
2018 INT 000187 (D.C. Super. Ct., Nov. 2, 2018).
31
Id. at 7. Judge Fisher explained that “[t]his requirement enables the court
to take the cost of the petitioning counsel’s fees into consideration when deciding
what additional appointments it will make and what actions it may take in the case,”
and “enables the ward and his/her counsel to weigh the potential cost to the ward in
deciding how to proceed in cases where the ward may be responsible for payment.”
Id.18
any case in which the petitioner’s counsel will be seeking payment for his/her
services from either the Guardianship Fund or the ward, he/she must file a
notification of such intent along with the intervention petition. . . . The failure to
inform the court of the intention to seek payment from the Guardianship Fund or the
ward may result in disallowance of all or part of the fee petition.” 32
We express no view as to the appropriateness of the notification requirement
announced in Nugent; this appeal does not present us with that question. Given that
the requirement appears to be little more than an informal practice adopted by judges
in the Probate Division without incorporation in the Probate Rules or other formal
public announcement, and in the absence of any indication that Dr. Kijakazi or her
counsel were informed of the requirement by the judge in this case (or otherwise),
we do not see how the requirement can be applied to them retroactively to deprive
Dr. Kijakazi of her eligibility for reimbursement of her attorneys’ fees and costs.
Finally, the trial court expressed the view that petitioners seeking the
appointment of a guardian for a family member typically do not need the guidance
and assistance of counsel in intervention proceedings. We are skeptical of that view,
32
Id. at 9-10.
19
especially given that most laypersons are unfamiliar with the process and ill-
equipped to navigate it by themselves. But whatever the validity of the court’s
generalization, it is not a justification for denying a petitioner’s proper application
for reimbursement of attorney’s fees and costs without considering that application
on its individual merits under the accepted standards of reasonableness, benefit to
the ward or estate, and so forth.
IV.
For the foregoing reasons, we reverse and remand this case to the Superior
Court for further proceedings consistent with this opinion.