Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. This season we're exploring power, power in
Speaker 1: the legal system, power in the media, the power of personality,
Speaker 1: you name it. This is not very usual kind of episode.
Speaker 1: It's still about power, but in an unusual way. This
Speaker 1: past February, the New York Times released a documentary called
Speaker 1: Framing Britney Spears, a film about Britney's rise to stardom
Speaker 1: and the conservatorship, a legal form of guardianship she's been
Speaker 1: in since two thousand and eight. The film brought renewed
Speaker 1: scrutiny to Britney's conservatorship and also to conservatorship more broadly.
Speaker 1: In a remarkable twist, some House Republicans are now calling
Speaker 1: for national conservatorship reform. Here to help us understand conservatorship
Speaker 1: law and what happened to Britney Spears is Adam Streisand
Speaker 1: he's a trial attorney and really in truth, an attorney
Speaker 1: to the stars. He's always involved in high profile litigation
Speaker 1: and private wealth disputes of large magnitude. If you saw
Speaker 1: the documentary, you will know who he is. In the
Speaker 1: run up to the conservatorship application, Britney Spears met with
Speaker 1: Adam and she hired Adam. That means, in legal terms,
Speaker 1: he was her lawyer. He then went into court where
Speaker 1: the judge determined that Britney Spears was unable in legal terms,
Speaker 1: to hire her own attorney and to pick her own attorney,
Speaker 1: and therefore gave her a court appointed attorney who represents
Speaker 1: her to this day. Adam is going to walk us
Speaker 1: through conservatorship. He's going to discuss whether reform is needed
Speaker 1: and if so, how, and he's also going to talk
Speaker 1: about his experiences with Britney's case and what it means
Speaker 1: at the bigger level. Adam hasn't given any interviews to
Speaker 1: any other media source that I know of since appearing
Speaker 1: in the documentary, so we're particularly lucky that he agreed
Speaker 1: to appear here on deep background to take us behind
Speaker 1: the story of Britney spears conservatorship. Adam, I'm so grateful
Speaker 1: to you for being here on deep background. I'll tell
Speaker 1: you the backstory from my perspective, which is that since
Speaker 1: the documentary about Britney's conservatorship, I can't even count how
Speaker 1: many people professional and unprofessional have said to me, you know, Noah,
Speaker 1: you know, to tell us what we should think about conservatorship.
Speaker 1: And I said to them, look, I'm not an expert
Speaker 1: on conservatorship. I barely remember what I learned about it
Speaker 1: in law school. I don't even play an expert on
Speaker 1: deep Let's talk to a real expert. And I sort
Speaker 1: of realized at some point that the public interest in
Speaker 1: this is so fundamental and the issues behind it are
Speaker 1: so significant that it's really worth having a conversation with
Speaker 1: someone who genuinely is an expert and who has first
Speaker 1: hand knowledge of the situation. So that's the backstory of
Speaker 1: how you're here, And so I wonder if we could
Speaker 1: start by just walking the folks through, and that includes
Speaker 1: me the one on one of conservatorship, what it's for,
Speaker 1: how it's established, and when it's well functioning, whether it's
Speaker 1: a good idea. Right. So, the most important thing to
Speaker 1: know about conservatorships is that it's a process that's designed
Speaker 1: to protect people who are vulnerable. And they may be
Speaker 1: vulnerable because of mental illness, dementia, other conditions which cause
Speaker 1: them to be either unable to manage their own lives,
Speaker 1: their own daily activities of living, getting appropriate healthcare, feeding themselves,
Speaker 1: taining shelter, and also making finance hual decisions, and very
Speaker 1: importantly resisting the influence of people who might want to
Speaker 1: take advantage of them. And let's be clear, there is
Speaker 1: a lot of that going on, especially as our population
Speaker 1: continues to age. Healthcare is better and better, people are
Speaker 1: living longer lives. But it's sort of the Ronald Reagan syndrome.
Speaker 1: They're healthy physically, but not necessarily mentally. They become more
Speaker 1: and more vulnerable and susceptible to influence of others or
Speaker 1: simply unable to really manage their own lives, you know,
Speaker 1: make sure they're paying taxes on time. Yeah, seen from
Speaker 1: that perspective, it sounds like we need conservatorship in our
Speaker 1: system because there are people who are aging or people
Speaker 1: who have other underlying disease and they really do need
Speaker 1: to be taken care of. So what are the safeguards
Speaker 1: that are in place presently, and then we can talk
Speaker 1: about whether they're good enough so that not just anyone
Speaker 1: is placed in a conservatorship. Sure, so, conservatives ship are
Speaker 1: actually really really tough to obtain. You have to be
Speaker 1: able to approve to a court at a trial by
Speaker 1: clear and convincing evidence right, So that means not just
Speaker 1: your normal civil standard of more probable than not, and
Speaker 1: not your criminal standard of beyond a reasonable doubt, but
Speaker 1: somewhere in between, a clear and convincing evidence standard that
Speaker 1: the person needs a conservatorship because they're unable to manage
Speaker 1: their own affairs or resist undue influence by others. And
Speaker 1: you also have to show that a conservatorship is what
Speaker 1: we call the least restrictive means available in order to
Speaker 1: protect them, because there are other ways in which people
Speaker 1: can be protected. For example, if your assets are held
Speaker 1: in trust and you have a trustee, the trustee has
Speaker 1: the power to make financial decisions, you can influence me
Speaker 1: all you want. But I don't have that power anymore.
Speaker 1: My assets are in trust, or I have a healthcare
Speaker 1: directive a power of attorney for healthcare decisions, or I'm
Speaker 1: getting you know, I have care and place to help
Speaker 1: me with my daily living, so I don't necessarily need
Speaker 1: the framework of a conservatorship. But unfortunately a lot of
Speaker 1: people don't have those things, and conservativeships are really the
Speaker 1: best means available to protect them. What's unusual, of course,
Speaker 1: about the Britney case it's not unique. But it's unusual
Speaker 1: is that she's young. Okay, she has been in a
Speaker 1: conservatorship for thirteen years, and she seems to be functioning, right.
Speaker 1: I mean, we see her onstage performing, we see her
Speaker 1: on television co hosting a TV show, and we say
Speaker 1: to ourselves, will wait a minute. If this is a
Speaker 1: conservatorship as supposed to be a system to protect people
Speaker 1: who can't function on their own, and only when they
Speaker 1: really can't function in their own, how is it appropriate
Speaker 1: for her because she seems to be able to function.
Speaker 1: The problem is we just don't really know what's going
Speaker 1: on behind the scenes, and that's the real problem at
Speaker 1: this case. I have a whole barrage of questions about
Speaker 1: the trial of procedure, but before I get to them,
Speaker 1: I first want to I was really struck by what
Speaker 1: you said about that a trust would be considered an alternative,
Speaker 1: and it does seem like a less restrictive alternative. So
Speaker 1: why isn't it the case that for just about anybody
Speaker 1: who would be in a position where conservatorship would be
Speaker 1: applied for that, a court would say, actually, no, let's
Speaker 1: just create a trust, put your assets in the trust,
Speaker 1: and appoint a trustee. Brittany's assets are in trust and
Speaker 1: there is a trustee, and so you might ask, Will
Speaker 1: then why does Brittany have a conservative of the estate. Well,
Speaker 1: it can be useful to have a conservative the estate
Speaker 1: who can be the one to make sure the trust
Speaker 1: he's doing his job, and a conservatorship might be useful
Speaker 1: for that purpose. If the conservatie can't really do that
Speaker 1: and make sure, hey, the trustee is you know, dipping
Speaker 1: or doing things inappropriate. That's actually fascinating because to watch
Speaker 1: the documentary when had the sense that the conservatorship has
Speaker 1: some fundamentally transformational effect on her how her affairs are run.
Speaker 1: But if actually her wealth is in trust and the
Speaker 1: trustee is not the person who's the conservator, which I
Speaker 1: guess is the father, it may be that it doesn't
Speaker 1: make such a big difference that she's in conservatorship, which
Speaker 1: would in turn, to some degree, undercut the perhaps the
Speaker 1: newsworthiness of the whole formulation, which is, oh my goodness,
Speaker 1: this is so shocking. I mean, if the story were
Speaker 1: stars assets in trust, no one would find that shocking
Speaker 1: because many, many people's assets are in trust. Yes, And
Speaker 1: I want to say two things to that, First of all,
Speaker 1: when you're talking about a celebrity, a celebrity oftentimes engages
Speaker 1: in what we call personal service contracts right when they
Speaker 1: actually agree to perform. That's a personal service contract that
Speaker 1: the trustee of your assets can't make. So there is
Speaker 1: a need for her to have somebody who can make
Speaker 1: a decision for things like you know, performing a concerts,
Speaker 1: no doubt. So just to clarify, I think, I think
Speaker 1: I understand. The striking thing then about the conservator is
Speaker 1: that Britney Spears can't even sign a contract to appear
Speaker 1: and sing or do whatever it else she'd been doing
Speaker 1: in her appearance without the conservator signing essentially on her
Speaker 1: behalf exactly, Whereas if it were a trust, that's just
Speaker 1: in a trust, you take the asset that you have,
Speaker 1: whether it's money or real estate, you put it into
Speaker 1: the trust, and that asset gets managed, But the trustee
Speaker 1: doesn't manage your day to day affairs, and so that
Speaker 1: does make it actually pretty distinctive. Well, that sounds like
Speaker 1: it's more of a justification for the documentary than there
Speaker 1: otherwise might have been. Yeah, certainly in the context of
Speaker 1: an entertainer. But it's really important though to understand that
Speaker 1: conservatorships are actually fairly limited in terms of what they
Speaker 1: can really do. To text somebody, yes, they can make
Speaker 1: sure that if there's a contract that needs to be signed,
Speaker 1: a conservator has to sign that contract. You can't walk
Speaker 1: up to somebody who's incapacitated and have them sign away
Speaker 1: their you know, their house that you don't have the
Speaker 1: power to do that. The problem a lot of times
Speaker 1: with conservatorships, though, is they are limited in terms of
Speaker 1: how much you can really help a person. And let
Speaker 1: me explain to what I mean by that. One of
Speaker 1: the most heartbreaking things that I have in my practice
Speaker 1: is I get parents who call me all the time
Speaker 1: and they have kids who are adults, but they have
Speaker 1: terrible drug problems, they have terrible eating disorders. They really are,
Speaker 1: you know, having problems living on the street, and they
Speaker 1: really need help. And what I have to tell them
Speaker 1: is a conservatorship is probably not going to help. And
Speaker 1: the reason is that you can't really force somebody who's
Speaker 1: in a conservatorship to be compliant with things like medications
Speaker 1: or going into a treatment program. You can't sign somebody
Speaker 1: into a lockdown facility, you can't force them to take medications,
Speaker 1: so if they're really not compliant, if they're not willing
Speaker 1: to cooperate, conservatorships are pretty limited. There's a whole separate
Speaker 1: type of conservatorship that's called an LPs conservatorship in California,
Speaker 1: which are the initials for the legislators who designed it,
Speaker 1: and that's a conservatorship where you can actually lock somebody up,
Speaker 1: you can put them in a mental institution, you can
Speaker 1: force medications and so forth. They're extremely rare that you
Speaker 1: have to prove by essentially a quasi criminal standard, that
Speaker 1: they're gravely disabled and there are a threat to either
Speaker 1: themselves or others. And no one accept a mental health
Speaker 1: facility a hospital, but all a psychiatric award can actually
Speaker 1: seek that type of conservatorship. So a family member can't,
Speaker 1: a friend can't. It's got to be the hospital that
Speaker 1: says we need this protection for that person. So conservatorships
Speaker 1: the kind that Britney is in are actually pretty limited.
Speaker 1: That other kind you're describing, the LPs kind of sounds
Speaker 1: like it's a version of civil committal. It really is, yeah,
Speaker 1: where you have to prove to the court, you know,
Speaker 1: by a very very high standard, that the prisoners are
Speaker 1: threat to themselves. Or others, and then they can be
Speaker 1: involuntarily restrained in a range of ways. That's right. Yeah,
Speaker 1: And so you know there's a lot of stuff out
Speaker 1: there about you know, Britney can't, can't leave the house,
Speaker 1: she can't take a walk, she can't. None of that's true.
Speaker 1: None of that is None of that is true. It's
Speaker 1: great that people are now interested in what is a
Speaker 1: conservatorship and doesn't really work, and that is important. But unfortunately,
Speaker 1: and I know this is going to be shocking to you,
Speaker 1: but there are legislators who like to grahamstand and in
Speaker 1: our country, yeah, and want to you know, show that
Speaker 1: they're you know, being responsive to to some public outcry.
Speaker 1: And you know, my fear is that all the attention
Speaker 1: that this is getting will lead to some laws that
Speaker 1: will undermine the system and leave people who really need
Speaker 1: protection without the protection that they that they really do need. So, Laura,
Speaker 1: form that makes it much harder to get conservatorships will
Speaker 1: therefore leave fewer people with conservatorships. That it will also
Speaker 1: probably raise the cost people probably have to pay attorney's
Speaker 1: fees to get this done, and it will cost them more.
Speaker 1: Presumably what about the who guards the guardians problem? Once
Speaker 1: you are the conservator, is there any function or role
Speaker 1: for anybody to look over the shoulder of the conservator
Speaker 1: and check on the quality of the work that person
Speaker 1: is doing. Yeah, so that's a that's a really great question.
Speaker 1: So look, first of all, let me say I don't
Speaker 1: think the problem with conservatorships or necessarily this conservatorship is
Speaker 1: a problem of the law. I think the law in
Speaker 1: terms of the framework that it establishes is appropriate, and
Speaker 1: it balances the difficult nature of trying to obtain a
Speaker 1: conservatorship and maintain a conservatorship even after you get it,
Speaker 1: and protecting the rights of the proposed conservaty. But you know,
Speaker 1: we have a judicial system that has elasticity because we
Speaker 1: need to make sure that in each appropriate case it
Speaker 1: makes sense based on the facts of that case. And
Speaker 1: we also have a system that depends on people, and
Speaker 1: that means we have lawyers, we have judges and other professionals, doctors,
Speaker 1: court investigators, all of whom we're human. And it is
Speaker 1: possible that you will find somebody who is corrupt, who
Speaker 1: is unethical, or judge who frankly isn't that smart. It
Speaker 1: makes a bad decision, believe it or not, that happens shocking,
Speaker 1: But so far I've yet to see a judicial system
Speaker 1: that's better than ours in terms of the advocacy that
Speaker 1: it's based on. An advocacy that is, everybody's interests being
Speaker 1: argued to the court, and the court making a decision
Speaker 1: is the best way to find the best version of
Speaker 1: the truth. As Woodward and burst In say, let me
Speaker 1: ask you about the advocacy structures and how they worked here. So,
Speaker 1: if there's an application for a conservatorship, does that automatically
Speaker 1: mean that sort of counsel is appointed if the person
Speaker 1: for whom it sought just acquiescence. I mean, Brittany didn't
Speaker 1: contest this conservatorship, did she? She didn't. So let me
Speaker 1: just back up a little bit and tell you we
Speaker 1: have somebody who can petition the court for a conservatorship.
Speaker 1: That can be a family member, that can be a friend,
Speaker 1: who can ask the court to establish a conservatorship, and
Speaker 1: they're the one who have to prove that a conservatorship
Speaker 1: is necessary. Other friends, family members can object, can show
Speaker 1: up with lawyers and evidence and argue why a conservatorship
Speaker 1: is not appropriate, And of course the proposed conservaty can
Speaker 1: do that also, and a judge will have to make
Speaker 1: a decision at a trial, and in California, the conservaty
Speaker 1: can ask for a jury trial as well. Now, who
Speaker 1: represents the proposed conservaty? And I want to make a
Speaker 1: distinction between when the person is a proposed conservaty and
Speaker 1: when the person is under a conservatorship. So when the
Speaker 1: person is a proposed conservaty under California law and law
Speaker 1: in most states, they have the right to have counsel
Speaker 1: of their own choice unless they if they're unable to
Speaker 1: retain counsel, then the court will appoint counsel for them. Okay,
Speaker 1: somebody who is experienced in the area, and the court
Speaker 1: knows and can appoint the first So that's a narrow
Speaker 1: band because they have to be incompetent enough to merit conservatorship,
Speaker 1: but not so incompetent that they couldn't hire counsels. That's right.
Speaker 1: And it's not entirely clear what it means to say
Speaker 1: that they are unable to retain counsel, because until there's
Speaker 1: a conservatorship, there hasn't been an adjudication that they are incompetent. Okay,
Speaker 1: So here's a perfect example. Adam Streisan is hired by
Speaker 1: Brittany right, her family law attorneys contact me, asked me
Speaker 1: to get involved because they know me and they know
Speaker 1: my reputation. And then I do this kind of thing.
Speaker 1: I meet with Brittany a couple of times. We have
Speaker 1: lots of communication and otherwise by telephone. We talk about
Speaker 1: what the circumstances are. Now I can tell you what
Speaker 1: I told the court because that's publicly. Shout right, it's public.
Speaker 1: And so I told the court with Brittany and I
Speaker 1: agreed I would tell the court. What I did tell
Speaker 1: the court is, Look, she understands that this conservatorship is
Speaker 1: an inevitability. I mean, right now, things are out of control,
Speaker 1: and she gets that resisting the conservatorship is going to
Speaker 1: be very difficult but the one thing that she wants
Speaker 1: and difficult legally. Just forgive me for asking the clarifying question.
Speaker 1: But of course what's is fascinating but difficult. How difficult
Speaker 1: that she couldn't have won? I mean she has Adam
Speaker 1: streisand representing her. If you had sought to oppose it,
Speaker 1: you would have successfully opposed it. Well, I mean, I
Speaker 1: appreciate your confidence in me, and I also have a
Speaker 1: high level of confidence in my own abilities, But the
Speaker 1: fact of the matter must know that there was clearly
Speaker 1: there was medical evidence that she has some fairly serious
Speaker 1: mental illness. I don't know exactly what that is. We'll
Speaker 1: talk about that a little bit is more, but we
Speaker 1: also know because it was very public the kinds of
Speaker 1: things that were going on with her, and she was,
Speaker 1: you know, she was out of control. Now, frankly, ask
Speaker 1: yourself how you would feel with all of the hundreds
Speaker 1: of paparazzi all over you, which I got to witness firsthand,
Speaker 1: and was insane. I don't know how that doesn't make
Speaker 1: you feel crazy. I mean, but it's not. That's different
Speaker 1: than underlying mental illness. That's true. Yeah, Well, if you
Speaker 1: have underlying mental illness and you are hounded by hundreds
Speaker 1: of paparazzi and your husband is not allowing you to
Speaker 1: see your kids, that would make anybody pretty out of control.
Speaker 1: And again I'm saying out of control. I don't mean
Speaker 1: to say she's crazy or anything. Of course, things were
Speaker 1: out of control, and it was very public, and it
Speaker 1: was clear that the court, at least on an interim basis,
Speaker 1: was going to put in some protection for her. It
Speaker 1: was my judgment that what we ought to do is
Speaker 1: we ought to try to get the one thing that
Speaker 1: really really mattered to her, which is, I don't want
Speaker 1: my father controlling my life, okay, which is something we
Speaker 1: ought to talk about. And if we could do that,
Speaker 1: if we could get an appropriate person, an independent professional,
Speaker 1: to be that conservator for some interim basis, and then
Speaker 1: work to try to figure out, all, right, how do
Speaker 1: we get a little bit more control over our life,
Speaker 1: and you know, and move on. And again, Also, I
Speaker 1: didn't know the extent of her of her mental illness
Speaker 1: when I walked into court. The judge said to me,
Speaker 1: mister Streisan, I have a medical report I'm not going
Speaker 1: to show it to you from doctor James Edward Sparr.
Speaker 1: Now I know doctor Sparr. I've known him for years.
Speaker 1: I know the guy is a man of integrity. I
Speaker 1: know that he is the best of what he does
Speaker 1: in terms of valuating mental illness. And the judge tells
Speaker 1: me that doctor spar has concluded that she suffers from
Speaker 1: mental illness to the point where she cannot retain a
Speaker 1: direct counsel. Now, my perspective was she made some pretty
Speaker 1: sound judgments, right. She was able to take my advice. Hey,
Speaker 1: let's not try to resist. This will look reasonable. We'll
Speaker 1: get the thing you really really want right now, which
Speaker 1: is not your father, and then we'll work on the
Speaker 1: next step of doing away with the conservatorship framework. I
Speaker 1: thought that was pretty sad. But I'm not a doctor, right,
Speaker 1: And if doctor Sparr says she's really that bad, I
Speaker 1: said to the court, if doctor Sparr has concluded that,
Speaker 1: I accept that. I mean, I respect doctor Sparr. And
Speaker 1: if the court feels that she would be better served
Speaker 1: with another lawyer, that's fine. We'll be right back. Can
Speaker 1: I ask a a sort of loggy question here? Sure
Speaker 1: was she your client at this point or were someone
Speaker 1: else your client? She was my client. She signed an
Speaker 1: engagement agreement with me. She you know, we met, we
Speaker 1: discussed the term. So when the court said that she
Speaker 1: lacked the capacity to retain counsel, what did that This
Speaker 1: is the loggy question. What did that do to your
Speaker 1: existing representational relationship with her? I mean, you had she
Speaker 1: had signed an agreement with you, and there's the court
Speaker 1: telling you her lawyer that she lacks the capacity to retainue.
Speaker 1: So I mean, what happens? Well, you know, could I
Speaker 1: have fought it. I probably could have fought it. I
Speaker 1: did have again, respect for the conclusions that doctor Sparr reached.
Speaker 1: If she had been adjudicated as being incompetent, that would
Speaker 1: have seriously put into question whether or not she could
Speaker 1: have maintained an attorney client relationship with me. Once she's
Speaker 1: a conservative, Once there's an adjudication she lacks capa ascity
Speaker 1: to contract, then there's a question about whether she should
Speaker 1: be able to have a person represent her that she
Speaker 1: wants to represent her. And the law doesn't say you can't.
Speaker 1: The law doesn't say. The court couldn't have said, sure,
Speaker 1: you know, mister Stisan, we're going to allow you to
Speaker 1: be the lawyer. But the court has more latitude at
Speaker 1: that point to say no, we're going to appoint somebody.
Speaker 1: And it's important to remember something. First of all, Judge
Speaker 1: Gets was Commissioner Gets at the time. She was new
Speaker 1: to the bench, she was brand new to probate. She
Speaker 1: didn't know me. Frankly, if the decision were made today
Speaker 1: she knows me now, I'm sure the decision would have
Speaker 1: been different. But she didn't know me. And I'm walking
Speaker 1: into the courtroom saying I represent Britney spears. Now, I
Speaker 1: could be part of the gang who's under the influencinger
Speaker 1: and trying to take advantage of her. I could be
Speaker 1: somebody who is being really being retained or pushed on
Speaker 1: Britney by somebody who is manipulating her. And so I
Speaker 1: think there is an important role for the court to
Speaker 1: play in saying, you know what. It is important for
Speaker 1: the Conservaty to have the right to say, this is
Speaker 1: somebody I want to represent me. But it's also important
Speaker 1: for the court to have the ability to say, you
Speaker 1: know what, I've got enough evidence here that makes me think,
Speaker 1: you know, it'd be better to appoint somebody to represent
Speaker 1: the Conservaty. That's what happened at that moment, right. The
Speaker 1: Court then appointed different counsel for her, and then that
Speaker 1: council made a decision not to contest the conservatorship. Is
Speaker 1: that right? Not only that, but that council Sammingham made
Speaker 1: a decision for the past twelve years not to contest
Speaker 1: the appointment of her father as the Conservative, which I
Speaker 1: found very curious. Now, is it I don't know what
Speaker 1: happens in closed room between her and her council. Is
Speaker 1: it possible that a different decision was made and that
Speaker 1: made a rational decision at that point, or or is
Speaker 1: it possible that the quarter pointing council was not advocating
Speaker 1: the one thing that was really really important to her.
Speaker 1: And that's a problem that I have. I mean, that's
Speaker 1: potentially a serious problem. And it also raises a puzzle
Speaker 1: that I myself don't understand, and you may have some
Speaker 1: insight into, which is, if she wanted to contest the conservatorship,
Speaker 1: you know, into totality, or just seek a conservator who
Speaker 1: was not her father, she would need to convince her
Speaker 1: counsel to do that. Right. Well, it's interesting that you
Speaker 1: say she should need to convince her counsel. Right, that's
Speaker 1: an interesting word choice. You don't convince your lawyer to
Speaker 1: do something unless usually you just asked them to do it.
Speaker 1: You asked them, and the lawyer has an ethical obligation,
Speaker 1: as you know, to be a zealous advocate, even if
Speaker 1: the lawyer thinks that it's not in the client's best interest, right.
Speaker 1: I mean, I always am brutally honest with clients, But
Speaker 1: at the end of the day, the client makes the decision.
Speaker 1: Unless it's something they're asking me to do. That's unethical
Speaker 1: on my own part. My job is to advocate for them.
Speaker 1: So the ethical duty of her attorney is if she
Speaker 1: were to say to him, listen, I want to challenge
Speaker 1: this conservatorship, he would have a duty to return to
Speaker 1: court and start a filing and a hearing to change
Speaker 1: the conservators ship. Presumably so, assuming that he's behaving ethically,
Speaker 1: which we don't have any objective reason to think he isn't.
Speaker 1: It seems like the answer that puzzle is that that's
Speaker 1: not what Britney Spirits has done. That she hasn't challenged
Speaker 1: the conservatorship. And if that's so, then that's a puzzle
Speaker 1: that's in some ways at odds with the kind of
Speaker 1: the public thrust of the Free Britney movement. Not that
Speaker 1: I understand or claim to understand the movement in any detail,
Speaker 1: but to the extent that it seems to be composed
Speaker 1: of the idea that she's being involuntarily blocked from a
Speaker 1: change in circumstances. She does have an attorney who, under
Speaker 1: the norms of ethics, the cannons of ethics, would have
Speaker 1: to go to court and challenge the conservatorship if she
Speaker 1: wanted to, and he hasn't, and from that, it seems
Speaker 1: that we could infer that most likely she has not
Speaker 1: asked him to do so, is that chain of logic sound?
Speaker 1: That is a sound chain of logic. The problem is
Speaker 1: there is some countervailing evidence that gives me a little
Speaker 1: bit of trouble, and that is, as I told you,
Speaker 1: the one most important thing to her when I first
Speaker 1: met with her in two thousand and eight was I
Speaker 1: don't want my father to be the conservator. Now, once
Speaker 1: Samingham was appointed, we never heard that again until all
Speaker 1: of a sudden twelve years later, Sammingham files in petition
Speaker 1: saying I don't want my father to be the conservator.
Speaker 1: So then I asked myself, well, why did it take
Speaker 1: twelve years for him to advocate the one thing that
Speaker 1: was so important to her when I met with her
Speaker 1: in two thousand a day? And if he wasn't advocated,
Speaker 1: and again there may have been some reason why there
Speaker 1: was a change of course, but if he wasn't advocating that,
Speaker 1: then maybe he wasn't advocating other things that she wanted
Speaker 1: to be advocated. And herein lies one of the problems
Speaker 1: that I do think exists when you have to rely
Speaker 1: on a system of people who are involved and have
Speaker 1: various interests, some of which may conflict with the interests
Speaker 1: of the Conservative. Sam Ingham is appointed by the Court
Speaker 1: to be Britney's lawyer. Now sam Ingham gets paid by
Speaker 1: making petitions to the Court for approval of his fees
Speaker 1: to be paid from the conservatorship a state that's controlled
Speaker 1: by the Conservator. Now, if somebody doesn't like what sam
Speaker 1: Ingham is doing, they're more likely to object to his
Speaker 1: petitions for fees, and there are more likely to be
Speaker 1: questions raised about those fees. If, on the other hand,
Speaker 1: you are peering in court and consistently saying, yes, your honor,
Speaker 1: I think the Conservatory is doing a great job. I
Speaker 1: support what the Conservator wants to do. How closely do
Speaker 1: you think the Conservator is going to examine the bills,
Speaker 1: especially because the Conservators not paying those bills. The Conservative
Speaker 1: is paying those bills. And so if there is a
Speaker 1: weakness in the system, that is one potential weakness. And
Speaker 1: the problem is we do have to depend on people,
Speaker 1: especially lawyers, to be ethical lawyers, and I tend to
Speaker 1: believe that generally they are. There are exceptions, however, sadly,
Speaker 1: but changing the law will have my view unintended consequences
Speaker 1: that will really hurt people who need protection. Are the
Speaker 1: fee applications by the lawyer representing Brittany at the court
Speaker 1: assigned lawyer public? Does it a matter of public record
Speaker 1: how much he's paid and how frequently he's asked for it?
Speaker 1: And is it also a matter of public record whether
Speaker 1: those applications have been opposed or objected to by your father?
Speaker 1: So generally these things would be a matter of public record.
Speaker 1: The court does have some latitude to seal those records,
Speaker 1: and I think that's what's happened in Brittany's case. Query
Speaker 1: whether that's really appropriate or not, because the public does
Speaker 1: have a right to know, I mean in our system,
Speaker 1: in the American system. I know my British colleague is
Speaker 1: always wins at this. But one of the things that
Speaker 1: is important in carrying out this issue of balancing the
Speaker 1: public's right to know versus a person's right to privacy
Speaker 1: is it it has to be applied in a way
Speaker 1: that doesn't favor the rich. I represent a lot of
Speaker 1: high net worth individuals right What I have to say
Speaker 1: to them all the time is just because you have
Speaker 1: a lot of money doesn't mean that you have a
Speaker 1: right to greater protection of your privacy than people who
Speaker 1: don't have a lot of money. There has to be
Speaker 1: some other reason, right, There has to be like the
Speaker 1: Patty Hurst reason. I mean, I was involved in the
Speaker 1: Hearst matter. If there's a threat that somebody could be kidnapped,
Speaker 1: we don't want that kind of financial information out in
Speaker 1: the open, Okay, So there is an important reason for
Speaker 1: balancing those interests. But in this case, so far, I
Speaker 1: believe those records have been sealed. If a person under
Speaker 1: conservatorship with a court appointed attorney wanted to hire a
Speaker 1: different attorney and reached out, of course she wouldn't be
Speaker 1: legally able to sign a contract with another attorney, but
Speaker 1: she could make a phone call. And then would it
Speaker 1: be permissible for the other attorney to then go to
Speaker 1: court and challenge the representational efficacy of the court appointed attorney. So,
Speaker 1: in other words, if in theory purely hypothetical, Brittany or
Speaker 1: someone in her position were to contact you and say, listen,
Speaker 1: I'm not happy with my lawyer, what options would you have?
Speaker 1: Would you be able to go to court and says
Speaker 1: the person wants me to represent them, Yes, that is
Speaker 1: an option, but also keep in mind, and I've seen
Speaker 1: this happen that if a Conservative says to her lawyer,
Speaker 1: I don't want you to represent me, that lawyer then
Speaker 1: has an ethical obligation to say to the court, your honor,
Speaker 1: I should be relieved as counsel because I can't maintain
Speaker 1: a relationship of trust and confidence. The Conservative does not
Speaker 1: want me to be that lawyer, and the Court's going
Speaker 1: to have to make a decision about whether that's something
Speaker 1: that is appropriate to change the lawyer. Given the concerns
Speaker 1: that you have that you've expressed about whether, in fact
Speaker 1: this lawyer may have been fully representing Britney's best interests,
Speaker 1: do you ever have regret about not about that moment
Speaker 1: when you didn't contest the court's decision to remove and
Speaker 1: replace you. I mean, I don't think you were under
Speaker 1: any ethical obligation to do otherwise. The court had made
Speaker 1: the decision and so that's on the court. And she
Speaker 1: was also going to be represented by independent counsel. So
Speaker 1: you know, ethically, I'm under the cannons of ethics. You're
Speaker 1: clearly fine, but you have human regret about that moment.
Speaker 1: You know. It's funny. First of all, I have to
Speaker 1: tell you that I've represented a lot of famous people
Speaker 1: and been involved in a lot of you know, sort
Speaker 1: of celebrity cases and so forth, and for me in
Speaker 1: my career, this was, you know, kind of a blitp.
Speaker 1: So it's not like, well, you know, this is Britney
Speaker 1: Spears and you know, the representation of my lifetime. But
Speaker 1: I do. I accepted that people were acting honorably and
Speaker 1: ethically as I thought I was when I agreed to
Speaker 1: step aside and say, okay, if the court believes, based
Speaker 1: on the evidence the Court has, that it's really more
Speaker 1: appropriate for an independent council and that would make the
Speaker 1: court more comfortable and maybe even more effective, right because
Speaker 1: if the court has a point, it's somebody the court
Speaker 1: at least should have confidence that that is a person
Speaker 1: that the Court can trust and rely on, not necessarily
Speaker 1: somebody who's just walking in off the street and saying
Speaker 1: I represent Britney Spears. So I really did believe that
Speaker 1: that might actually be helpful to Brittany at that moment.
Speaker 1: I have to say that as time has gone by,
Speaker 1: the one thing I keep saying to people is we
Speaker 1: just don't know what we don't know, right, So, for example,
Speaker 1: these Republican Congressmen who have now demanded hearings, have said
Speaker 1: the conservatorships are used to take advantage of people and
Speaker 1: manipulate the courts, and that the Britney case is the
Speaker 1: prime examples, says who based on what evidence, we don't
Speaker 1: really know what the mental illness is that she may have.
Speaker 1: We don't really know what's going on behind closed doors.
Speaker 1: And as you pointed out, in thirteen years, assuming that
Speaker 1: her lawyer is acting ethically, she could have at any
Speaker 1: time in those thirteen years, she could have every single
Speaker 1: day for thirteen years, petition the court determinate the conservatorship
Speaker 1: and be prepared to come forward with evidence showing that
Speaker 1: she doesn't need a conservatorship and she's never done that.
Speaker 1: Or she could have just gone on Facebook or Instagram
Speaker 1: and said I'm unhappy with my attorney or i don't
Speaker 1: like this conservatorship. It wouldn't require any great you know,
Speaker 1: let me give you the give you the retort by
Speaker 1: the Free Britney movement to that, though, they'll say, and
Speaker 1: they have a point which is yes, but they're using
Speaker 1: her children as pawns. They're threatening her that you know
Speaker 1: you won't have visitation rights, will take your kids away
Speaker 1: if you complain. Okay, Now, again, nobody really knows what's
Speaker 1: actually being said, and that would be fundamentally unethical of
Speaker 1: her attorney. It would be fundamentally unethical of her attorney.
Speaker 1: And but I will say this, Imagine a scenario where
Speaker 1: you have, say, a sister who is severely mentally handicapped,
Speaker 1: or she's she's got a terrible drug problem or drinking problem,
Speaker 1: and she's just danger to her kids, and you say, look,
Speaker 1: unless you go into treatment, I'm going to go to
Speaker 1: the family law court and say you shouldn't have custodial
Speaker 1: rights over your children. Okay, So you can't just look
Speaker 1: at everything in a vacuum and say, oh, but they're
Speaker 1: using her kids as a pond. Well, first of all,
Speaker 1: we don't know. But even even if there is some suggestion,
Speaker 1: bear in mind the other side, which is it may
Speaker 1: not be inappropriate. You know, it's always struck me that
Speaker 1: Britney Spears's public story from as long as you know,
Speaker 1: I've been aware of her in the media, which is,
Speaker 1: you know, pretty much as long as she's been in
Speaker 1: the media, which is a long time now, has always
Speaker 1: functioned as a kind of stand in or you know,
Speaker 1: morality to al for whatever preoccupations we have at a
Speaker 1: given moment. You know, are we worried about the emerging
Speaker 1: sexuality of young women, Well, let's turn that into the
Speaker 1: Britney story. You know, are we worried about mental health
Speaker 1: issues around childbirth? Let's turn that into the Britney story.
Speaker 1: I'm interested in what it means this time because my
Speaker 1: takeaway from your very, very cogent analysis is that we
Speaker 1: don't really know whether this is a tragedy, which it
Speaker 1: would be if she were in the grips of unethical
Speaker 1: actors who were threatening her and making it difficult for
Speaker 1: her to object to representation, or whether it's an instance
Speaker 1: of the system more or less working the way it
Speaker 1: should be, in that there is a conservator, she has representation,
Speaker 1: her money is in a trust, and she's actually getting
Speaker 1: what she needs and doesn't seem to be objecting to it.
Speaker 1: So we have just profound uncertainty around this, exactly right.
Speaker 1: So if that's the case, I guess my question is
Speaker 1: this is really a psychological question rather than a legal one.
Speaker 1: But what is that our preoccupation that the Free Britney
Speaker 1: movement is focused on now, and is it maybe the
Speaker 1: idea that women in general, and young women in particular
Speaker 1: are really vulnerable to judgments made by men who say,
Speaker 1: you know, you're not responsible enough to take care of yourself.
Speaker 1: We're taking away your agency. Is this maybe a metaphor
Speaker 1: for agency in some broader sense? I think that's absolutely right.
Speaker 1: The thing that was wrenching for me and watching the
Speaker 1: documentary is really seeing the frankly, the misogyny and the sexism.
Speaker 1: And I mean from the moment she's a little girl
Speaker 1: on stage and Ed McMahon is sexualizing her. So then
Speaker 1: it does lead into questions about is she being treated
Speaker 1: differently in this conservativeship process because she's a woman? Is
Speaker 1: she more vulnerable to a system that is paternalistic right
Speaker 1: in all senses of the term, in all sense of
Speaker 1: the terms right, putting her father in control of her life,
Speaker 1: that you know, sort of one person we don't want.
Speaker 1: By the way, I do want to mention about that.
Speaker 1: You know, the conservator could have been thousands of different people, right,
Speaker 1: It could have been anybody. It didn't have to be
Speaker 1: her father. And if the one thing that this system
Speaker 1: is designed to do is to help vulnerable people, why
Speaker 1: on the world would you make give the control and
Speaker 1: the power to the person that makes her feel less
Speaker 1: in controller makes her feel more vulnerable. So well, I
Speaker 1: want to thank you for just an extraordinarily clear and
Speaker 1: direct explanation of everything, and also for your candor about
Speaker 1: your own experiences and your overall analysis. If you ever
Speaker 1: get bored of being a celebrity lawyer, you can always
Speaker 1: be a law professor on the side. So thank you
Speaker 1: for the explanations. Well, thank you. I want you to
Speaker 1: know I've had requests, you know, frankly, all over the
Speaker 1: world to be interviewed, do podcast, documentaries, TV whatever. I've
Speaker 1: ignored all of it. Yours is the one request that
Speaker 1: I answered. I really admire you. I'm trying also to
Speaker 1: forgive you for our latest Supreme Court justice, but I
Speaker 1: really do. I appreciate you, I admire you. I hope
Speaker 1: you are right about our Supreme Court justice. But it's
Speaker 1: been a real pleasure to talk to you. Thank you
Speaker 1: very much, and I really am deeply grateful that you agreed,
Speaker 1: notwithstanding my views of Supreme Court, to join us. So
Speaker 1: thank you very much. You're very welcome. That fascinating conversation
Speaker 1: with Adam streisand tells you a lot about the complexities
Speaker 1: of conservatorship and indeed about power. In fact, just listening
Speaker 1: to that conversation, you hear what an excellent, brilliant lawyer
Speaker 1: who is hired by those with unlimited resources sounds like,
Speaker 1: and how he thinks about and analyzes legal issues. That
Speaker 1: alone is always a matter of real value. What really
Speaker 1: surprised me most about the conversation were the details of
Speaker 1: the process, which was not really detailed in the documentary
Speaker 1: of how Adam was hired by Britney Spears. How he
Speaker 1: went into court and was then effectively told by the judge,
Speaker 1: you can't represent her because she's not capable of hiring you.
Speaker 1: That put Adam in an extremely difficult position of trying
Speaker 1: to decide whether he should fight the judge's determination or
Speaker 1: alternatively acquiesce in a judgment that was dependent on the
Speaker 1: opinion of a doctor, and as Adam explained, he ended
Speaker 1: up making the judgment that there might be reasons for
Speaker 1: the court to remove him and replace him with a
Speaker 1: court appointed attorney, because after all, how would the court
Speaker 1: know that he was legitimate and ethical himself. That's a
Speaker 1: classic example and a really surprising one of the kind
Speaker 1: of difficult decision that lawyers sometimes have to make in
Speaker 1: real time. Someone has hired you, which means that she
Speaker 1: wants you to represent her, then a chord is telling
Speaker 1: you she lacked the capacity to do so. That is
Speaker 1: not a simple decision to make, and it both fascinated
Speaker 1: and surprised me to hear that Adam was put in
Speaker 1: that situation. Under the conservatorship system as it exists, Brittany does,
Speaker 1: at least in principle, have mechanisms she could use to
Speaker 1: draw attention to any dislike or dissatisfaction that she has
Speaker 1: with her lawyer or with the conservatorship. But we don't know,
Speaker 1: as Adam emphasized, whether there are potential distortions in the
Speaker 1: system that nevertheless exist in which Brittany is somehow being
Speaker 1: threatened so that she's unable to raise those concerns or
Speaker 1: feels she's unable to raise those concerns. The whole issue
Speaker 1: is therefore, at least as complicated, and I think actually
Speaker 1: much more complicated than it appeared to be in the documentary,
Speaker 1: and it demonstrates that power is complexly deployed our legal system.
Speaker 1: You could be very rich and very famous and still
Speaker 1: find yourself represented by a court appointed attorney, and perhaps
Speaker 1: without the power to change the basic circumstances in which
Speaker 1: you are operating legally speaking. At the same time, there
Speaker 1: are also protections available in this system. As Adam pointed out,
Speaker 1: Brittany can leave her house, the conservator cannot, in practical terms,
Speaker 1: block her from doing most of the things that she
Speaker 1: might choose to do. And what's more, her assets are
Speaker 1: in trust, and the trustee of that trust is not
Speaker 1: the conservator. The takeaway power is deployed in very complicated
Speaker 1: ways in the legal system. The legal system designs itself
Speaker 1: and tries to operate in such a way as to
Speaker 1: use mutual checks so that lawyers check lawyers and we
Speaker 1: reduce the probabilities of fundamental distortion. But as Adam said,
Speaker 1: that process still depends to a great extent on the
Speaker 1: assumption that lawyers will behave ethically. I would love to believe,
Speaker 1: as a law professor and a person who cares about
Speaker 1: the legal system, that all lawyers are ethical, but as
Speaker 1: probably every single person listening knows, that's just not always
Speaker 1: the case. There is no magic bullet solution to the
Speaker 1: potential for unethical lawyering, and it remains a challenge to
Speaker 1: figure out how legal power can be deployed as ethically
Speaker 1: as is possible. Until the next time I speak to you,
Speaker 1: be careful, be safe, and be well. Deep Background is
Speaker 1: brought to you by Pushkin Industries. Our producer is Mo laboord,
Speaker 1: our engineer is Martin Gonzalez, and our shorerunner is Sophie
Speaker 1: Crane mckibbon. Editorial support from noahm Osband. Theme music by
Speaker 1: Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton,
Speaker 1: Lydia Jean Cott, Heather Fain, Carl mcniori, Maggie Taylor, Eric Sandler,
Speaker 1: and Jacob Weisberg. You can find me on Twitter at
Speaker 1: Noah R. Feldman. I also write a column for Bloomberg Opinion,
Speaker 1: which you can find at bloomberg dot com slash Feldman.
Speaker 1: To discover Bloomberg's original slate of podcasts, go to Bloomberg
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Speaker 1: This is Deep Background.