By Paula A. Monopoli
Northeastern University Press

"AMERICAN PROBATE" RECOUNTS several notorious cases involving thefts by attorney fiduciaries and attempts to use these cases as vehicles for examining problems in the probate courts and suggesting solutions. Unfortunately, the lack of a clear focus and gratuitous criticism of the legal profession prevent this book from being a serious study of its intended subject matter.

The book begins in New Hampshire- with a discussion of the John Fairbanks case, with most of the details taken from the report of a legislative study committee. Observations about the quaint and casual environment that existed in the New Hampshire probate courts are fair and accurate. For example, Fairbanks often failed to file paperwork as required, going as long as 10 years without filing an annual account in a guardianship, without consequence. The former register of probate continued to hold office after becoming a resident of a nursing home. Surety bonds, to the extent they existed, were insufficient to cover victims' losses. The Attorney General's Office's mishandling of complaints against Fairbanks, and the failure of the Professional Conduct Committee (of which Fairbanks was a member) to take any meaningful action were other gaping holes in the safety net that should have existed for the victims. The inadequacy of the client indemnity fund was another failure of the system. Perhaps the most significant factor noted was that Fairbanks enjoyed "favorable and at times deferential and preferential treatment by the NH government at many levels over a period of many years." The latter factor seemed to override whatever legal safeguards might have existed on paper.

The book appropriately ends by revisiting New Hampshire and many reforms implemented under the leadership of Probate Court Administrative Judge John Maher since the Fairbanks case came to light. The book accurately notes that of all the states studied, New Hampshire has adopted the most comprehensive reforms. These reforms include mandatory default notices for late accounts followed by show cause orders; a computerized system of record- keeping that produces default notices automatically; and a standard practice of requiring bonding in the full amount of liquid assets in an estate. Other reforms include the process that essentially waives administration in estates when the decedent's spouse or only child is the sole beneficiary. A convincing argument is made that "the optimal judicial process allows for supervision but flexibility in administration."

Unfortunately, Ms. Monopoli touches on many issues, but fails to stay with a consistent theme. The case studies all involve large-scale thefts, but the author's discussion that follows does not focus on the prevention of financial crimes by fiduciaries. The case studies highlight serious flaws in the probate systems in the states where they occurred, and the variety of different ways that probate courts can be dysfunctional. The political favoritism and general corruption of the New York Surrogate's Court is legendary, and an entertaining reminder that money alone will not necessarily create a better system or better protect the public. If Ms. Monopoli had concentrated her efforts on exploring in greater depth the strengths and weaknesses of the diverse probate systems represented by these states, she might have contributed more to our understanding of the issues that challenge probate courts.

In a chapter on probate avoidance, Ms. Monopoli uses as her focus the case of attorney James Gunderson of California whose misdeeds included the exploitation of an elderly man through a living trust of which Gunderson was successor trustee. She argues that an attorney who drafts a will or trust should not serve as the executor or trustee. The author's exclusive focus on thefts by attorney fiduciaries, as opposed to family members and non-attorneys, is inappropriate and misleading if the intent of the book is to study weaknesses in the probate court system and the alternatives to probate. With non-attorneys, there are fewer safeguards for potential victims, such as random audits of trust accounts and the possibility of disbarment or other professional sanctions. Furthermore, with living trusts and durable powers of attorney for finances, it is often family members who are the perpetrators of financial crimes.

The only reference to durable powers of attorney for finances is in one sentence near the end of the book. No mention is made of the rise in financial exploitation cases in recent years, usually perpetrated by non-attorneys, since these instruments have become a popular alternative to guardianship. This area is currently the subject of much litigation and legislation around the country, including New Hampshire. This omission makes the book seem outdated, but also suggests that the author's agenda is to criticize the legal profession and that any issue in the probate arena that does not fit into that theme, regardless of its significance, is ignored. In fact, the abuses inherent in durable powers of attorney, often promoted to older people without adequate warning of the lack of oversight or need for a trustworthy agent, support the need for probate courts to be more cost-effective, accessible and user friendly, as widespread probate avoidance in inappropriate situations may come at a significant cost.

Throughout the book, Ms. Monopoli digresses into commentaries on many issues that have little if anything to do with how to improve probate or prevent thefts by fiduciaries. She sharply criticizes efforts of bar associations to prevent the sale of legal self-help resources, such as the classic "How to Avoid Probate" in the 1960s, and efforts to prevent the unauthorized practice of law. In a diatribe on all that is wrong with law-school education, she claims that the case study method is not functional, that tuition is too high and that professors devote too much time to publishing at the expense of "mentoring" students. She quotes ridiculously inflammatory statements (e.g. "[Most law professors] allow law schools to serve as incubators for malpractice" and "[Young lawyers] are increasingly incompetent") without providing the basis of the quoted commentator's assertions or support for their validity.

Ms. Monopoli devotes considerable attention to the issue of malpractice insurance coverage, even though malpractice policies typically contain exclusions that prevent them from being a safeguard against theft and other intentional acts. If the negligence of incompetent and uninsured attorneys poses a major problem in the probate arena, this would be a legitimate issue to explore in a book that is supposed to be about "American Probate." However, the book does not lay a foundation for this issue or address its magnitude in objective terms.

The excessive cost associated with the probate process in some states is a serious concern. One offensive practice mentioned is that of attorneys charging a percentage of the value of estate assets as their fee for services, regardless of the actual amount of time spent on the case. While this practice has been discredited in New Hampshire, it continues to be standard practice in many states. Such legally sanctioned looting harms the public, justifiably undermines respect for the legal profession and leads to probate avoidance, which in turn results in the loss of safeguards inherent in court oversight.

Ms. Monopoli identifies the need for adequate resources for the court system, but is quick to dismiss the possibility that such resources will be forthcoming and instead chooses to emphasize the need for attorneys to report the misconduct of other attorneys, as if this must substitute for the lack of court funding. She concludes, "Full funding of court budgets is not likely to come any time soon ....This puts more pressure on other lawyers in the community to detect unethical behavior by lawyers and fiduciaries."

The most troubling aspect of this book is that it perpetuates the popular misconception that lawyers are responsible for the court system. Unless courts are recognized as critical public institutions whose proper operation is a public responsibility, they are not likely to ever be properly funded. When discussing the Fairbanks case, Ms. Monopoli mentioned more than once that Bernice Johnson, the register of probate, served as register while living in a nursing home, yet never suggested that the voters who elected her might have some responsibility for keeping her in office or appreciating the importance of the registry. If a court system that is responsive to the needs of the public is a goal, then the public must take responsibility for assuring that elected officials provide adequate funding and responsible oversight. Our greatest challenge as legal professionals may be to better educate the public about the needs of the court system and the public's responsibility for its operation and improvement.

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