After years of remaining largely stagnant, the circumstances surrounding Britney Spears’ longstanding conservatorship could rapidly change — and soon.
On Wednesday, Los Angeles Superior Court Judge Brenda Penny is expected to hear arguments on a packed slate of issues, including whether those in Spears’ orbit (like conservator of the person Jodi Montgomery) should receive 24-7 personal security at the artist’s expense because of death threats and what the process should be for allowing Spears to choose her own lawyer. It’s the latter that has sparked national conversations about the right to counsel and caught the attention of the American Civil Liberties Union.
During more than 20 minutes of explosive testimony on June 23, Spears said that even though she’s built a relationship with her court-appointed attorney Samuel D. Ingham III she wants to pick her own counsel. “I haven’t really had the opportunity by my own self to actually handpick my own lawyer,” she said. “I would like to be able to do that.”
Ingham and court-appointed co-counsel from Loeb & Loeb on July 6 told the court they want to resign as soon as a replacement is found. Typically, the court would appoint another attorney. So Spears choosing her own lawyer isn’t as simple as it may sound.
“There is conflict between the protective framework of conservatorship law and the fundamental right for a person being deprived of liberties to retain their own counsel,” says Vatche Zetjian of Jeffer Mangels Butler & Mitchell, an attorney who specializes in estate, trust and probate law. “The right to choose counsel is a hallmark of our judicial system, which I believe should only be deprived in the most exigent circumstances.”
As it stands, Spears is unable to enter into a contract. So Montgomery suggested in a July 7 filing that the court should appoint a guardian ad litem — formally obtain an attorney on her behalf — to help Spears hire the lawyer of her choosing. This would avoid the need for Spears to undergo an evaluation to determine whether she has the capacity to retain an attorney.
Zetjian says it’s a clever move, as long as the guardian agrees with Spears’ choice. “Having a guardian ad litem involved helps mitigate some of the risk of whether Britney has capacity to make that decision,” he says, adding that it allows her to provide “input in her own legal representation while maintaining the protections of the conservatorship until there is just cause to modify or terminate.”
Benny Roshan, chair of Greenberg Glusker’s trusts and probate litigation group, isn’t so sure adding another intermediary to the mix is a good idea. “The Court could have and is free to take testimony from Britney herself and make a determination on the counsel issue,” she says. “It seems odd to me to bring in yet another agent when no one has disputed Britney’s current capacity as evidenced by her court testimony. They want to honor her wishes by adding another person she has to obey? Makes no sense to me.”
The ACLU on Monday submitted an amicus brief to the court arguing just that. The filing, which comes from a group of more than two dozen disability rights organizations, argues that choosing one’s own lawyer is central to the Sixth Amendment right to counsel. “Prospective amici believe that Britney Spears is similarly situated to many other Americans who are entitled to effective counsel in the conservatorship process, and access to supported decision-making in making major decisions such as the choice of an attorney,” states the brief, which is embedded below. “The Court should not interfere with this decision unless Ms. Spears selects a person who is clearly unqualified for the position, is unwilling to serve in this role, or has a significant conflict.”
Reports began circulating over the weekend (first by TMZ and then by New York Times) that Spears has been in touch with Power Lawyer Mathew Rosengart of Greenberg Traurig, who isn’t commenting on the headlines. He’s certainly a seasoned litigator, representing the likes of Sean Penn, Casey Affleck and Winona Ryder, but doesn’t specialize in probate matters. It remains to be seen whether that will be an issue for the court, assuming the reports are true, or if his firm having an established trusts and estates litigation group that could back him up will be enough to stave off any potential concerns on that front.
Now that she’s publicly expressed her desire to end the conservatorship, if Spears chooses her own lawyer instead of having another appointed by the court there’s not much procedurally that is expected to change from here on out. Though, that doesn’t mean it would be an insignificant development.
“Having an attorney who you have selected yourself because you see eye to eye, you feel like they understand what you want and you get along with them and you trust them to carry out your instruction, that’s going to maximize your autonomy,” says Loyola Law School professor Jan Costello, who specializes in the intersection of the law and mental health. “Ethically speaking, any court-appointed attorney should do exactly those same things, but I think it will make a difference to Britney because she will feel this is someone she has selected.”
In the short term, it could create a delay before a petition to terminate the conservatorship is filed as the new counsel gets up to speed. But, in the long run, attorneys say these proceedings move pretty slowly anyway and changing lawyers this late in the process is unlikely to negatively affect Spears.
“Britney definitely needs a fierce litigator in her corner,” says Roshan, noting that anyone who might oppose termination of the conservatorship will likely have sophisticated counsel. “It’s Art of War 101: You need to know your enemy going into battle. This is clearly going to be a battle.”