0:15

Pushkin from

0:20

Pushkin Industries. This is Deep

0:22

Background, the show where we explore

0:25

the stories behind the stories in

0:27

the news. I'm Noah Feldman.

0:30

This season we're exploring power, power

0:33

in the legal system, power in the media,

0:35

the power of personality, you name

0:37

it. This is

0:39

not very usual kind of episode.

0:43

It's still about power, but in an

0:45

unusual way. This past

0:47

February, the New York Times released

0:49

a documentary called Framing Britney

0:52

Spears, a film about Britney's

0:54

rise to stardom and the conservatorship,

0:57

a legal form of guardianship

0:59

she's been in since two thousand and eight.

1:02

The film brought renewed scrutiny to Britney's

1:05

conservatorship and also to conservatorship

1:07

more broadly. In a remarkable

1:10

twist, some House Republicans

1:12

are now calling for national conservatorship

1:15

reform. Here to help us understand

1:17

conservatorship law and what

1:20

happened to Britney Spears is Adam

1:22

Streisand he's a trial attorney

1:24

and really in truth, an

1:26

attorney to the stars. He's always

1:29

involved in high profile litigation and

1:31

private wealth disputes of large

1:34

magnitude. If you saw the documentary,

1:37

you will know who he is. In the

1:39

run up to the conservatorship application,

1:42

Britney Spears met with

1:44

Adam and she hired Adam.

1:47

That means, in legal terms, he was her

1:49

lawyer. He then went into court

1:52

where the judge determined that Britney

1:54

Spears was unable in legal terms,

1:57

to hire her own attorney and to pick her

1:59

own attorney, and therefore gave her a

2:01

court appointed attorney who represents

2:03

her to this day. Adam

2:05

is going to walk us through conservatorship. He's

2:08

going to discuss whether reform is needed and

2:10

if so, how, and he's also going to talk

2:12

about his experiences with Britney's case

2:14

and what it means at the bigger level.

2:18

Adam hasn't given any interviews

2:20

to any other media source that

2:23

I know of since appearing in the documentary,

2:25

so we're particularly lucky

2:27

that he agreed to appear here

2:29

on deep background to take us

2:32

behind the story of Britney spears

2:34

conservatorship. Adam,

2:43

I'm so grateful to you for being

2:45

here on deep background. I'll tell you the backstory

2:47

from my perspective, which is that since

2:50

the documentary about Britney's

2:52

conservatorship, I can't even count

2:55

how many people professional and unprofessional

2:57

have said to me, you know, Noah, you

3:00

know, to tell us what we should think about conservatorship.

3:02

And I said to them, look, I'm not an expert on conservatorship.

3:05

I barely remember what I learned about it in law school.

3:07

I don't even play an expert on deep Let's

3:09

talk to a real expert. And I sort of realized

3:12

at some point that the public interest in this is so fundamental

3:15

and the issues behind it are so significant that

3:17

it's really worth having a conversation with someone

3:19

who genuinely is an expert and who has

3:21

first hand knowledge of the situation. So that's

3:23

the backstory of how you're here, And so I wonder

3:25

if we could start by just walking the

3:28

folks through, and that includes me the

3:30

one on one of conservatorship,

3:32

what it's for, how it's established,

3:34

and when it's well functioning, whether it's a good

3:37

idea. Right. So, the most

3:39

important thing to know about conservatorships

3:42

is that it's a process that's

3:44

designed to protect people

3:46

who are vulnerable. And they

3:48

may be vulnerable because of

3:51

mental illness, dementia,

3:54

other conditions which cause

3:56

them to be either unable to

3:58

manage their own lives, their own

4:00

daily activities of living, getting appropriate

4:03

healthcare, feeding themselves, taining

4:06

shelter, and also making

4:08

finance hual decisions, and very

4:12

importantly resisting the

4:14

influence of people who might want to take advantage

4:17

of them. And let's

4:19

be clear, there is a lot of that going on, especially

4:22

as our population continues

4:24

to age. Healthcare

4:27

is better and better, people are living longer

4:29

lives. But it's sort of the Ronald

4:31

Reagan syndrome. They're healthy

4:33

physically, but not necessarily mentally.

4:36

They become more and more vulnerable and susceptible

4:39

to influence of others or simply unable

4:42

to really manage their own lives,

4:44

you know, make sure they're paying taxes on time. Yeah,

4:46

seen from that perspective, it sounds like we

4:48

need conservatorship in our system because

4:50

there are people who are aging or

4:53

people who have other underlying disease

4:55

and they really do need to be taken

4:57

care of. So what are the safeguards that

4:59

are in place presently, and then we can talk about whether they're

5:02

good enough so that not just anyone

5:04

is placed in a conservatorship. Sure, so,

5:08

conservatives ship are actually really really

5:10

tough to obtain. You

5:13

have to be able to approve to a court

5:15

at a trial by clear

5:17

and convincing evidence right, So that means

5:19

not just your normal civil standard of more

5:22

probable than not, and not your

5:24

criminal standard of beyond a reasonable

5:26

doubt, but somewhere in between, a clear

5:28

and convincing evidence standard

5:31

that the person needs a

5:33

conservatorship because they're unable

5:35

to manage their own affairs or

5:37

resist undue influence by others.

5:40

And you also have to show that a conservatorship

5:43

is what we call the least restrictive

5:46

means available in order

5:48

to protect them, because there are other

5:50

ways in which people can be protected.

5:53

For example, if your assets

5:55

are held in trust and you have a trustee,

5:58

the trustee has the power to make financial

6:00

decisions, you can influence me all

6:02

you want. But I don't have that power

6:05

anymore. My assets are in trust, or

6:08

I have a healthcare directive

6:10

a power of attorney for healthcare decisions,

6:13

or I'm getting you know, I have care

6:16

and place to help me with my

6:18

daily living, so I don't necessarily

6:20

need the framework of a conservatorship.

6:23

But unfortunately a lot of people don't have

6:25

those things, and conservativeships

6:28

are really the best means

6:30

available to protect them. What's

6:32

unusual, of course, about the Britney case it's

6:35

not unique. But it's unusual is

6:37

that she's young. Okay,

6:40

she has been in a conservatorship

6:42

for thirteen years, and

6:45

she seems to be functioning,

6:47

right. I mean, we see her onstage

6:50

performing, we see her on television

6:52

co hosting a TV show, and

6:54

we say to ourselves, will wait a minute. If

6:57

this is a conservatorship as supposed to

6:59

be a system to protect people

7:01

who can't function on their own, and only

7:04

when they really can't function in their own, how

7:07

is it appropriate for her because she seems

7:09

to be able to function. The problem is

7:11

we just don't really know what's

7:13

going on behind the scenes, and that's

7:15

the real problem at this case. I

7:18

have a whole barrage of questions

7:20

about the trial of procedure, but before I get to

7:22

them, I first want to I was really struck by what you said

7:24

about that a trust would be

7:27

considered an alternative, and it does seem

7:29

like a less restrictive alternative. So why

7:31

isn't it the case that for just about anybody who would

7:34

be in a position where conservatorship would be applied

7:36

for that, a court would say, actually,

7:39

no, let's just create a trust, put your assets

7:41

in the trust, and appoint a trustee.

7:44

Brittany's assets are in trust and

7:47

there is a trustee, and so you

7:49

might ask, Will then why does Brittany

7:51

have a conservative of the estate. Well, it

7:54

can be useful to have a conservative

7:56

the estate who can be the

7:58

one to make sure the trust he's doing his job,

8:01

and a conservatorship might be useful

8:03

for that purpose. If the conservatie

8:05

can't really do that and make sure, hey,

8:07

the trustee is you know, dipping

8:10

or doing things inappropriate. That's

8:12

actually fascinating because to watch the documentary

8:15

when had the sense that the conservatorship

8:17

has some fundamentally transformational effect

8:20

on her how her affairs are run. But

8:22

if actually her wealth is in trust

8:25

and the trustee is not the person who's the

8:27

conservator, which I guess is the father, it

8:29

may be that it doesn't make such a big difference

8:31

that she's in conservatorship,

8:33

which would in turn, to some degree, undercut

8:36

the perhaps the newsworthiness

8:38

of the whole formulation, which is, oh my

8:40

goodness, this is so shocking. I mean, if the story were stars

8:44

assets in trust, no one would

8:46

find that shocking because many, many people's

8:48

assets are in trust. Yes, And I want

8:50

to say two things to that, First of all, when

8:53

you're talking about a celebrity, a celebrity

8:56

oftentimes engages in

8:58

what we call personal service contracts right

9:00

when they actually agree to perform.

9:03

That's a personal service contract

9:05

that the trustee of your assets

9:08

can't make. So there is a

9:10

need for her to have somebody

9:12

who can make a decision for things like

9:15

you know, performing a concerts,

9:17

no doubt. So just

9:19

to clarify, I think, I think I understand. The

9:22

striking thing then about the conservator is

9:24

that Britney Spears can't even

9:26

sign a contract to

9:29

appear and sing or do whatever it

9:31

else she'd been doing in her appearance without

9:33

the conservator signing essentially

9:35

on her behalf exactly, Whereas if

9:37

it were a trust, that's just in a trust, you take

9:39

the asset that you have, whether it's money or real

9:41

estate, you put it into the trust, and that asset

9:43

gets managed, But the trustee doesn't manage

9:46

your day to day affairs, and

9:48

so that does make it actually pretty distinctive.

9:51

Well, that sounds like it's more of a justification

9:53

for the documentary than there otherwise

9:55

might have been. Yeah, certainly in the context

9:57

of an entertainer. But it's really important

9:59

though to understand that conservatorships

10:03

are actually fairly

10:06

limited in terms of what they can really

10:08

do. To text somebody, yes, they can

10:10

make sure that if there's

10:12

a contract that needs to be signed, a

10:15

conservator has to sign that contract.

10:18

You can't walk up to somebody

10:20

who's incapacitated and have them sign

10:22

away their you know, their house that

10:25

you don't have the power to do that. The problem

10:28

a lot of times with conservatorships, though,

10:30

is they are limited

10:32

in terms of how much you can really

10:35

help a person. And let me explain to what

10:37

I mean by that. One

10:39

of the most heartbreaking things that I

10:41

have in my practice is I get parents

10:44

who call me all the time and they have kids

10:47

who are adults, but

10:49

they have terrible drug problems, they have terrible

10:51

eating disorders. They really

10:54

are, you know, having problems

10:56

living on the street, and they really

10:58

need help. And what I have to tell

11:00

them is a conservatorship

11:02

is probably not going to help. And the

11:04

reason is that you can't

11:07

really force somebody who's

11:09

in a conservatorship to be

11:11

compliant with things like medications

11:15

or going into a treatment program.

11:17

You can't sign somebody into

11:19

a lockdown facility, you can't

11:22

force them to take medications, so if

11:24

they're really not compliant, if

11:26

they're not willing to cooperate, conservatorships

11:29

are pretty limited. There's a whole separate

11:31

type of conservatorship that's

11:33

called an LPs conservatorship

11:36

in California, which are

11:38

the initials for the legislators

11:40

who designed it, and

11:43

that's a conservatorship where you can actually

11:46

lock somebody up, you can put them in a mental

11:48

institution, you can force medications

11:51

and so forth. They're

11:53

extremely rare that you have

11:55

to prove by essentially a quasi

11:57

criminal standard, that they're gravely disabled

12:01

and there are a threat to either themselves or others.

12:04

And no one accept

12:06

a mental health facility a

12:08

hospital, but all a psychiatric

12:10

award can actually seek that

12:13

type of conservatorship. So a family member

12:15

can't, a friend can't.

12:17

It's got to be the hospital that says we

12:20

need this protection for that person. So

12:22

conservatorships the kind that Britney is

12:24

in are actually pretty limited. That

12:27

other kind you're describing, the LPs kind of sounds like it's

12:29

a version of civil committal. It

12:31

really is, yeah, where you have to prove

12:34

to the court, you know, by a very very high standard,

12:36

that the prisoners are threat to themselves. Or others, and then they can

12:38

be involuntarily restrained in a

12:40

range of ways. That's right. Yeah, And

12:42

so you know there's a lot of stuff out

12:44

there about you

12:47

know, Britney can't, can't leave the house,

12:49

she can't take a walk, she can't. None

12:52

of that's true. None of that is None of that

12:54

is true. It's great that people are

12:56

now interested in what is

12:58

a conservatorship and doesn't

13:00

really work, and that is important. But

13:02

unfortunately, and I know this is going to be shocking

13:05

to you, but there are legislators who

13:07

like to grahamstand and

13:10

in our country, yeah, and want

13:12

to you know, show that they're you know, being responsive

13:15

to to some public outcry.

13:18

And you know, my fear

13:20

is that all the

13:22

attention that this is getting

13:25

will lead to some laws that

13:28

will undermine the system

13:30

and leave people who really need protection

13:33

without the protection that they that they really

13:35

do need. So, Laura, form

13:37

that makes it much harder to get conservatorships

13:39

will therefore leave fewer people with conservatorships.

13:42

That it will also probably raise the cost people

13:45

probably have to pay attorney's fees to get this done,

13:47

and it will cost them more. Presumably what

13:50

about the who guards the guardians

13:52

problem? Once you are the conservator,

13:55

is there any function or role

13:58

for anybody to look over the shoulder of the conservator

14:01

and check on the quality of

14:03

the work that person is doing. Yeah, so

14:05

that's a that's a really great question. So

14:09

look, first of all, let me say I

14:11

don't think the problem with

14:14

conservatorships or necessarily this conservatorship

14:17

is a problem of the law. I

14:19

think the law in terms of the

14:21

framework that it establishes is

14:24

appropriate, and it balances the

14:27

difficult nature of trying to obtain

14:29

a conservatorship and maintain a conservatorship

14:32

even after you get it, and protecting

14:34

the rights of the

14:37

proposed conservaty. But

14:39

you know, we have a judicial

14:41

system that has elasticity

14:43

because we need to make sure that in each

14:45

appropriate case it makes sense

14:48

based on the facts of that case. And we

14:50

also have a system that depends on people, and

14:52

that means we have

14:55

lawyers, we have judges and

14:57

other professionals, doctors, court investigators,

15:00

all of whom we're human. And it is

15:03

possible that you

15:05

will find somebody who is corrupt,

15:08

who is unethical, or judge

15:10

who frankly isn't that smart. It makes a bad

15:12

decision, believe it or not, that happens shocking,

15:15

But so far I've

15:18

yet to see a judicial system that's

15:20

better than ours in terms

15:22

of the advocacy that it's based

15:25

on. An advocacy that is,

15:27

everybody's interests being

15:29

argued to the court, and the court making

15:32

a decision is the best

15:34

way to find the

15:36

best version of the truth. As

15:38

Woodward and burst In say, let

15:41

me ask you about the advocacy structures and

15:43

how they worked here. So, if there's

15:45

an application for a conservatorship, does

15:48

that automatically mean that sort of

15:50

counsel is appointed if the person for

15:52

whom it sought just acquiescence.

15:55

I mean, Brittany didn't contest this conservatorship,

15:57

did she? She didn't. So

16:00

let me just back

16:02

up a little bit and tell you we

16:05

have somebody who can petition the court

16:07

for a conservatorship. That can be a family

16:09

member, that can be a friend, who

16:12

can ask the court to establish a conservatorship,

16:14

and they're the one who have to prove that a conservatorship

16:16

is necessary. Other friends, family

16:19

members can object, can

16:21

show up with lawyers and evidence

16:23

and argue why a conservatorship is not appropriate,

16:26

And of course the proposed conservaty

16:28

can do that also, and a judge will

16:30

have to make a decision at a trial, and

16:33

in California, the conservaty can ask

16:35

for a jury trial as well. Now,

16:38

who represents the proposed conservaty?

16:41

And I want to make a distinction between when

16:43

the person is a proposed conservaty

16:46

and when the person is under a conservatorship.

16:49

So when the person is a proposed conservaty

16:52

under California law and law

16:54

in most states, they have the right

16:56

to have counsel of their own choice unless

17:00

they if they're unable

17:02

to retain counsel, then

17:05

the court will appoint counsel for them.

17:08

Okay, somebody who is experienced in

17:10

the area, and the court knows and

17:13

can appoint the first So that's a narrow band because

17:15

they have to be incompetent enough

17:17

to merit conservatorship, but not so

17:20

incompetent that they couldn't hire counsels.

17:22

That's right. And it's not entirely

17:25

clear what it means to

17:27

say that they are unable to

17:30

retain counsel, because until

17:33

there's a conservatorship, there hasn't been an

17:35

adjudication that they are incompetent.

17:37

Okay, So here's a perfect

17:40

example. Adam Streisan

17:42

is hired by Brittany right, her

17:44

family law attorneys contact me, asked

17:47

me to get involved because they know me and they

17:49

know my reputation. And then I do this kind of

17:51

thing. I meet with Brittany a couple

17:53

of times. We have

17:56

lots of communication and otherwise by telephone.

17:59

We talk about what the circumstances

18:01

are. Now I can tell you what I

18:03

told the court because that's publicly.

18:06

Shout right, it's public. And

18:08

so I told the court with Brittany and

18:10

I agreed I would tell the court. What I

18:12

did tell the court is, Look, she

18:14

understands that

18:17

this conservatorship is an inevitability.

18:20

I mean, right now, things are out of control, and she

18:22

gets that resisting the conservatorship

18:25

is going to be very difficult

18:28

but the one thing that she wants and difficult

18:31

legally. Just forgive me for asking the clarifying question.

18:33

But of course what's is fascinating but difficult.

18:36

How difficult that she couldn't have won? I mean

18:38

she has Adam streisand representing her. If you

18:40

had sought to oppose it, you

18:42

would have successfully opposed it. Well,

18:46

I mean, I appreciate your confidence

18:48

in me, and I also have a high

18:50

level of confidence in my own abilities, But the

18:52

fact of the matter must know that there

18:55

was clearly there was medical

18:57

evidence that she has

18:59

some fairly serious

19:02

mental illness. I

19:04

don't know exactly what that is. We'll talk

19:06

about that a little bit is more, but

19:09

we also know because it was

19:11

very public the

19:14

kinds of things that were going on with

19:17

her, and she was, you

19:19

know, she was out of control. Now, frankly, ask

19:22

yourself how you would feel

19:24

with all of the hundreds of

19:26

paparazzi all over you, which I got to witness

19:28

firsthand, and was insane.

19:31

I don't know how that doesn't make you feel crazy. I mean,

19:34

but it's not. That's different than underlying mental illness.

19:37

That's true. Yeah, Well, if you have underlying

19:39

mental illness and you are hounded by hundreds

19:41

of paparazzi and your husband

19:44

is not allowing you to see your kids, that

19:46

would make anybody pretty out of control.

19:49

And again I'm saying out of control.

19:52

I don't mean to say she's crazy

19:54

or anything. Of course, things were out of control,

19:56

and it was very public, and

19:59

it was clear that the

20:02

court, at least on an interim basis,

20:05

was going to put in some protection

20:08

for her. It was my judgment

20:10

that what we ought to do

20:13

is we ought to try to get the one thing that

20:15

really really mattered to her, which is, I

20:18

don't want my father controlling my

20:20

life, okay, which is something we ought

20:22

to talk about. And if

20:24

we could do that, if we could get an appropriate

20:27

person, an independent professional, to

20:29

be that conservator for some interim

20:31

basis, and then work to try to figure

20:33

out, all, right, how do we get a little bit more control

20:36

over our life, and you

20:38

know, and move on. And again, Also, I

20:41

didn't know the extent of her of

20:43

her mental illness when I walked

20:45

into court. The judge said to

20:47

me, mister Streisan, I have

20:50

a medical report I'm not going to show

20:52

it to you from doctor

20:54

James Edward Sparr. Now I know doctor Sparr.

20:56

I've known him for years. I know the guy

20:59

is a man of integrity. I

21:01

know that he is the

21:04

best of what he does in terms of valuating

21:06

mental illness. And the judge tells

21:08

me that doctor spar has concluded that

21:11

she suffers from mental illness

21:13

to the point where she cannot

21:16

retain a direct counsel. Now, my

21:19

perspective was she made some pretty

21:21

sound judgments, right. She was

21:23

able to take my advice. Hey, let's not

21:26

try to resist. This will

21:29

look reasonable. We'll get the thing you really

21:31

really want right now, which is not your

21:33

father, and then we'll work on

21:35

the next step of doing away with the

21:38

conservatorship framework. I

21:40

thought that was pretty sad. But I'm not a doctor, right,

21:43

And if doctor Sparr says she's

21:45

really that bad, I said

21:48

to the court, if doctor Sparr has

21:51

concluded that, I accept

21:53

that. I mean, I respect doctor Sparr. And if the court

21:55

feels that she would be better served

21:58

with another lawyer, that's fine. We'll

22:01

be right back. Can

22:11

I ask a a sort of loggy question here?

22:14

Sure was she your client at

22:16

this point or were someone else your client?

22:18

She was my client. She signed

22:20

an engagement agreement with me. She you

22:23

know, we met, we discussed the term. So

22:25

when the court said that she lacked the capacity

22:27

to retain counsel, what did that This is the

22:29

loggy question. What did that do to your

22:31

existing representational

22:33

relationship with her? I mean, you had she had

22:35

signed an agreement with you, and there's the court

22:38

telling you her lawyer that she lacks

22:40

the capacity to retainue. So I mean, what happens?

22:43

Well, you know, could I have fought

22:45

it. I probably could have fought it.

22:48

I did have again, respect

22:50

for the conclusions that doctor Sparr

22:52

reached. If she had been adjudicated

22:56

as being incompetent,

22:58

that would have seriously put into question whether

23:01

or not she could have maintained an attorney

23:03

client relationship with me. Once

23:05

she's a conservative, Once there's an adjudication

23:08

she lacks capa ascity to contract,

23:11

then there's a question about whether she

23:13

should be able to have a person represent

23:16

her that she wants to represent her. And

23:18

the law doesn't say you can't. The

23:20

law doesn't say. The court couldn't have said, sure,

23:23

you know, mister Stisan, we're going to allow you to

23:25

be the lawyer. But the

23:28

court has more latitude at that point to say

23:30

no, we're going to appoint somebody. And it's

23:32

important to remember something.

23:36

First of all, Judge Gets was

23:39

Commissioner Gets at the time. She was new to

23:41

the bench, she was brand new to probate. She

23:43

didn't know me. Frankly, if the decision were

23:45

made today she knows me now, I'm sure the

23:47

decision would have been different. But she

23:49

didn't know me. And I'm walking into

23:51

the courtroom saying I represent Britney spears.

23:54

Now, I could be part

23:57

of the gang who's under

24:00

the influencinger and trying to take advantage of her. I

24:02

could be somebody who is being

24:04

really being retained or

24:07

pushed on Britney by somebody who

24:09

is manipulating her. And so

24:11

I think there is an important

24:13

role for the court to play

24:16

in saying, you know what. It

24:19

is important for the Conservaty to have the

24:21

right to say, this is somebody I want

24:23

to represent me. But it's also important

24:25

for the court to have the ability to say, you know

24:27

what, I've got enough evidence here

24:29

that makes me think, you

24:33

know, it'd be better to appoint somebody

24:35

to represent the Conservaty. That's what happened

24:37

at that moment, right. The Court then appointed

24:40

different counsel for her, and then that council

24:42

made a decision not to contest the

24:45

conservatorship. Is that right? Not

24:47

only that, but that council Sammingham

24:50

made a decision for the past twelve years

24:53

not to contest

24:56

the appointment of her father as the Conservative,

24:58

which I found very curious. Now, is it

25:01

I don't know what happens in closed room

25:03

between her and her council. Is it possible

25:06

that a different decision was made

25:08

and that made a rational decision at

25:10

that point, or or

25:13

is it possible that the quarter pointing

25:15

council was not advocating

25:18

the one thing that was really really

25:20

important to her. And that's a problem

25:23

that I have. I mean, that's potentially

25:25

a serious problem. And it also raises

25:28

a puzzle that I myself don't understand,

25:30

and you may have some insight into, which is, if

25:33

she wanted to contest the conservatorship,

25:36

you know, into totality, or just

25:38

seek a conservator who was not her father, she

25:42

would need to convince her counsel

25:44

to do that. Right. Well, it's

25:46

interesting that you say she should need

25:48

to convince her counsel. Right,

25:51

that's an interesting word choice. You don't

25:53

convince your lawyer to do

25:55

something unless usually you just asked them to do it. You

25:57

asked them, and the lawyer has an ethical

26:00

obligation, as you know, to be a zealous advocate,

26:02

even if the lawyer thinks that it's

26:05

not in the client's best interest, right.

26:07

I mean, I always am

26:10

brutally honest with clients, But at the end of

26:12

the day, the client makes the decision. Unless

26:14

it's something they're asking me to do. That's unethical

26:17

on my own part. My job is to

26:19

advocate for them. So the

26:21

ethical duty of her attorney is if she were

26:24

to say to him, listen, I want to challenge

26:26

this conservatorship, he would have a duty

26:28

to return to court and start

26:31

a filing and a hearing to change the conservators

26:33

ship. Presumably so, assuming that he's behaving

26:36

ethically, which we don't have any objective

26:38

reason to think he isn't. It seems

26:40

like the answer that puzzle is that that's not what Britney

26:42

Spirits has done. That she hasn't challenged the

26:45

conservatorship. And if that's so,

26:47

then that's a puzzle that's in some ways at

26:49

odds with the kind

26:51

of the public thrust of the Free Britney

26:54

movement. Not that I understand or claim to understand the movement

26:56

in any detail, but to the extent

26:58

that it seems to be composed of the idea that she's

27:00

being involuntarily blocked from

27:02

a change in circumstances. She

27:05

does have an attorney who, under the

27:07

norms of ethics, the cannons of ethics, would

27:09

have to go to court and challenge the conservatorship

27:12

if she wanted to, and he hasn't,

27:15

and from that, it seems that we could infer that

27:18

most likely she has not asked

27:20

him to do so, is that chain of logic sound?

27:23

That is a sound chain of

27:25

logic. The problem is

27:27

there is some countervailing evidence

27:30

that gives me a little bit of trouble, and that

27:32

is, as I told you, the one

27:34

most important thing to her when I first met

27:37

with her in two thousand and eight was

27:39

I don't want my father to be the conservator. Now,

27:42

once Samingham was appointed, we

27:44

never heard that again until

27:47

all of a sudden twelve years later, Sammingham

27:50

files in petition saying

27:53

I don't want my father

27:56

to be the conservator. So

27:58

then I asked myself, well, why

28:00

did it take twelve years for

28:03

him to advocate the one thing that

28:05

was so important to her when I met with

28:07

her in two thousand a day? And

28:10

if he wasn't advocated, and again

28:12

there may have been some reason why there was a change

28:14

of course, but if he wasn't advocating

28:18

that, then maybe he wasn't

28:20

advocating other things that she wanted

28:23

to be advocated. And herein

28:26

lies one of the problems

28:28

that I do think exists when

28:31

you have to rely on a system of people

28:33

who are involved and have various interests,

28:36

some of which may conflict with the interests of the

28:38

Conservative. Sam

28:40

Ingham is appointed by the Court to be

28:43

Britney's lawyer. Now

28:45

sam Ingham gets paid by

28:47

making petitions to the Court for approval

28:49

of his fees to be paid from

28:51

the conservatorship a state that's

28:53

controlled by the Conservator. Now,

28:56

if somebody doesn't like what sam

28:58

Ingham is doing, they're more likely

29:01

to object to his petitions

29:03

for fees, and there are more likely to

29:05

be questions raised about those fees.

29:08

If, on the other hand, you are

29:11

peering in court and consistently saying,

29:13

yes, your honor, I think the Conservatory is doing a

29:16

great job. I support what the Conservator

29:18

wants to do. How closely

29:20

do you think the Conservator is going to

29:23

examine the bills, especially

29:25

because the Conservators not paying those bills.

29:28

The Conservative is paying those bills.

29:30

And so if there

29:33

is a weakness in the system,

29:36

that is one potential weakness. And the

29:38

problem is we

29:40

do have to depend on people, especially

29:42

lawyers, to be ethical lawyers, and

29:44

I tend to believe that generally

29:47

they are. There are exceptions, however,

29:49

sadly, but changing the

29:51

law will have my view

29:54

unintended consequences that

29:56

will really hurt people who need protection.

29:59

Are the fee applications

30:01

by the lawyer representing

30:04

Brittany at the court assigned lawyer public?

30:07

Does it a matter of public record how much he's

30:09

paid and how frequently he's asked for it? And is it also a matter

30:11

of public record whether those applications

30:13

have been opposed or objected to by your

30:15

father? So generally

30:18

these things would be a matter of public record.

30:21

The court does have some latitude

30:23

to seal those records, and I think that's

30:25

what's happened in Brittany's case. Query

30:28

whether that's really appropriate

30:30

or not, because the public does

30:32

have a right to know, I mean in our system,

30:34

in the American system. I know my British colleague

30:36

is always wins at this. But

30:39

one of the things that is

30:41

important in carrying out

30:43

this issue of balancing

30:45

the public's right to know versus a person's

30:48

right to privacy is it

30:51

it has to be applied in a way that doesn't

30:53

favor the rich. I represent

30:56

a lot of high net worth individuals

30:58

right What I have to say to them all the time is just

31:01

because you have a lot of money doesn't mean

31:03

that you have a right to greater protection

31:06

of your privacy than

31:08

people who don't have a lot of money. There has

31:10

to be some other reason, right, There has to be like

31:12

the Patty Hurst reason. I mean, I was involved

31:14

in the Hearst matter. If

31:16

there's a threat that somebody could

31:18

be kidnapped, we don't want that kind

31:21

of financial information out in the open,

31:23

Okay, So there is

31:25

an important reason for balancing

31:27

those interests. But in this case, so far, I

31:30

believe those records have been sealed.

31:32

If a person under conservatorship

31:35

with a court appointed attorney wanted

31:38

to hire a different attorney and

31:41

reached out, of course she wouldn't be legally

31:43

able to sign a contract with

31:45

another attorney, but she could

31:47

make a phone call. And then would

31:50

it be permissible for the other attorney

31:52

to then go to court and challenge

31:54

the representational efficacy of

31:57

the court appointed attorney. So,

31:59

in other words, if in theory purely hypothetical,

32:01

Brittany or someone in her position were to contact you

32:04

and say, listen, I'm not happy with my lawyer, what

32:06

options would you have? Would you be able to go to court and says

32:09

the person wants me to represent them,

32:11

Yes, that is an option, but also

32:14

keep in mind, and I've seen this happen

32:17

that if a Conservative says to

32:19

her lawyer, I don't want you to

32:21

represent me, that lawyer then

32:23

has an ethical obligation to say

32:26

to the court, your honor, I

32:28

should be relieved as counsel because

32:30

I can't maintain a relationship

32:33

of trust and confidence. The Conservative

32:36

does not want me to be that lawyer, and

32:38

the Court's going to have to make a decision about whether

32:40

that's something that is

32:43

appropriate to change the lawyer. Given

32:46

the concerns that you have that you've expressed

32:49

about whether, in fact this lawyer

32:51

may have been fully representing Britney's

32:53

best interests, do you ever

32:55

have regret about not

32:58

about that moment when you didn't contest

33:00

the court's decision to remove and replace

33:02

you. I mean, I don't think you were under any ethical

33:05

obligation to do otherwise. The court had made the

33:07

decision and so that's

33:09

on the court. And she was also going to be represented

33:11

by independent counsel. So you know, ethically,

33:14

I'm under the cannons of ethics. You're clearly fine,

33:17

but you have human regret about that

33:19

moment. You know. It's

33:21

funny. First of all, I have to tell you that I've

33:24

represented a lot of famous

33:26

people and been involved in a lot of you know, sort

33:28

of celebrity cases and so forth,

33:31

and for me in my career, this was,

33:34

you know, kind of a blitp. So it's

33:36

not like, well, you know, this is Britney

33:38

Spears and you know, the representation of my lifetime.

33:42

But I do. I accepted

33:46

that people were acting honorably

33:48

and ethically as I thought I was

33:51

when I agreed to step

33:53

aside and say, okay, if the court believes,

33:56

based on the evidence the Court has,

33:58

that it's really more appropriate for an

34:00

independent council and that

34:02

would make the court more comfortable and

34:05

maybe even more effective, right because if

34:07

the court has a point, it's somebody the court

34:09

at least should have confidence that that is

34:11

a person that the Court can trust and rely on, not

34:14

necessarily somebody who's just walking in off

34:16

the street and saying I represent Britney Spears. So

34:19

I really did believe that

34:22

that might actually be helpful

34:24

to Brittany at that moment. I have to say

34:27

that as time

34:29

has gone by, the one thing I keep

34:31

saying to people is we just

34:34

don't know what we don't know, right,

34:38

So, for example, these

34:40

Republican Congressmen who have now demanded

34:43

hearings, have said the conservatorships

34:45

are used to take advantage

34:47

of people and manipulate the courts,

34:50

and that the Britney case is the prime examples,

34:52

says who based on what evidence, we

34:55

don't really know what

34:57

the mental illness is

35:00

that she may have. We

35:02

don't really know what's going on behind

35:04

closed doors. And as you pointed out,

35:08

in thirteen years,

35:10

assuming that her lawyer is acting

35:12

ethically, she could have

35:15

at any time in those thirteen years,

35:17

she could have every single day for thirteen

35:19

years, petition the court determinate

35:21

the conservatorship and be prepared to come forward

35:24

with evidence showing that she doesn't need a conservatorship

35:26

and she's never done that. Or she

35:28

could have just gone on Facebook or Instagram

35:31

and said I'm unhappy

35:33

with my attorney or i don't like this conservatorship.

35:35

It wouldn't require any great you

35:38

know, let me give you the give you the retort by

35:40

the Free Britney movement to that, though, they'll

35:42

say, and they have a point which is

35:45

yes, but they're using her children

35:47

as pawns. They're threatening

35:49

her that you know you won't have

35:52

visitation rights, will take your kids away

35:54

if you complain. Okay, Now, again,

35:57

nobody really knows what's

35:59

actually being said, and that would be fundamentally

36:02

unethical of her attorney. It

36:04

would be fundamentally unethical of her attorney.

36:06

And but I will say this,

36:09

Imagine a scenario where

36:11

you have, say, a sister

36:14

who is severely mentally handicapped,

36:17

or she's she's got a terrible drug problem or

36:20

drinking problem, and she's just danger to her

36:22

kids, and you say, look,

36:24

unless you go into treatment, I'm

36:27

going to go to the family law court and

36:29

say you shouldn't have custodial

36:31

rights over your children. Okay,

36:34

So you can't

36:36

just look at everything in a vacuum and say,

36:38

oh, but they're using her kids as a pond. Well,

36:40

first of all, we don't know. But even

36:42

even if there is some

36:44

suggestion, bear in mind the other

36:47

side, which is it

36:49

may not be inappropriate. You

36:52

know, it's always struck me that Britney Spears's

36:54

public story from as long as you

36:57

know, I've been aware of her in the media, which is, you know, pretty

36:59

much as long as she's been in the media, which is a long time

37:01

now, has always functioned as

37:03

a kind of stand

37:06

in or you know, morality

37:08

to al for whatever preoccupations

37:11

we have at a given moment. You

37:13

know, are we worried about the emerging

37:15

sexuality of young women, Well, let's turn

37:18

that into the Britney story. You know, are we worried about

37:20

mental health issues around childbirth? Let's

37:23

turn that into the Britney story. I'm

37:25

interested in what it means this time because

37:27

my takeaway from your very, very

37:29

cogent analysis is

37:31

that we don't really know whether this is a tragedy,

37:34

which it would be if she were in the grips of unethical

37:37

actors who were threatening her and making

37:39

it difficult for her to object to representation, or

37:42

whether it's an instance of the system more or

37:44

less working the way it should be, in

37:46

that there is a conservator, she has representation,

37:48

her money is in a trust, and

37:51

she's actually getting what she needs and doesn't seem

37:53

to be objecting to it. So we have

37:55

just profound uncertainty around this, exactly

37:58

right. So if that's the case, I guess my question

38:00

is this is really a psychological question rather than a legal

38:02

one. But what is

38:04

that our preoccupation that the Free Britney

38:07

movement is focused on now,

38:09

and is it maybe the idea that women

38:13

in general, and young women in particular are really

38:15

vulnerable to judgments

38:17

made by men who

38:19

say, you know, you're not responsible enough

38:21

to take care of yourself. We're taking away your agency.

38:24

Is this maybe a metaphor for agency in some

38:26

broader sense? I

38:28

think that's absolutely right. The thing

38:30

that was wrenching for

38:32

me and watching the documentary is really

38:35

seeing the frankly, the misogyny

38:37

and the sexism. And I

38:40

mean from the moment she's a

38:42

little girl on stage and Ed McMahon

38:44

is sexualizing her. So then

38:46

it does lead into questions

38:48

about is

38:51

she being treated differently in

38:53

this conservativeship process because she's a woman?

38:56

Is she more vulnerable to a system

39:00

that is paternalistic

39:02

right in all senses of the term, in

39:04

all sense of the terms right, putting her father in control

39:07

of her life, that you know, sort

39:09

of one person we don't want. By the way,

39:11

I do want to mention

39:14

about that. You know, the conservator

39:16

could have been thousands of different people, right,

39:19

It could have been anybody. It didn't

39:21

have to be her father. And if the one

39:23

thing that this system is designed to do

39:26

is to help vulnerable people,

39:28

why on the world would you make give

39:31

the control and the power to the person

39:34

that makes her feel less in controller

39:36

makes her feel more vulnerable. So

39:39

well, I want to thank you for just an extraordinarily

39:42

clear and direct explanation of everything,

39:44

and also for your candor about your own experiences

39:46

and your overall analysis. If you ever

39:49

get bored of being a celebrity

39:51

lawyer, you can always be a law professor on the side.

39:55

So thank you for the explanations. Well,

39:57

thank you. I want you to know I've

39:59

had requests, you know, frankly,

40:01

all over the world to be interviewed,

40:04

do podcast, documentaries, TV

40:07

whatever. I've ignored all of it. Yours

40:09

is the one request that I answered.

40:13

I really admire you. I'm trying also to

40:15

forgive you for our latest Supreme Court justice,

40:17

but I really do. I appreciate

40:19

you, I admire you. I hope you are right about

40:21

our Supreme Court justice. But it's been

40:23

a real pleasure to talk to you. Thank you very

40:26

much, and I really am deeply grateful that you agreed,

40:28

notwithstanding my views of Supreme Court,

40:31

to join us. So thank you very

40:33

much. You're very welcome. That

40:42

fascinating conversation with Adam streisand

40:45

tells you a lot about the complexities

40:47

of conservatorship and indeed

40:49

about power. In fact, just listening

40:52

to that conversation, you hear what

40:54

an excellent, brilliant lawyer

40:56

who is hired by those with unlimited

40:58

resources sounds like, and how

41:01

he thinks about and analyzes legal issues.

41:03

That alone is always a matter

41:05

of real value. What

41:08

really surprised me most about the conversation

41:10

were the details of the process, which

41:12

was not really detailed in the documentary

41:15

of how Adam was hired by Britney

41:18

Spears. How he went into court

41:20

and was then effectively told by the judge,

41:23

you can't represent her because she's

41:25

not capable of hiring

41:27

you. That put Adam in

41:29

an extremely difficult position of

41:31

trying to decide whether he should fight the judge's

41:33

determination or alternatively

41:36

acquiesce in a judgment that was dependent

41:38

on the opinion of a

41:40

doctor, and as Adam explained,

41:43

he ended up making the judgment that

41:46

there might be reasons for the court

41:48

to remove him and replace him with a court

41:50

appointed attorney, because after all, how

41:53

would the court know that he was legitimate

41:55

and ethical himself. That's

41:58

a classic example and a really

42:01

surprising one of the kind of difficult

42:03

decision that lawyers sometimes have to make

42:05

in real time. Someone has hired

42:07

you, which means that she wants you to

42:09

represent her, then a chord is

42:11

telling you she lacked the capacity to

42:14

do so. That is not a

42:16

simple decision to make, and it

42:18

both fascinated and surprised me to

42:20

hear that Adam was put in that situation. Under

42:23

the conservatorship system as it exists,

42:25

Brittany does, at least in principle,

42:28

have mechanisms she could use to

42:30

draw attention to any dislike

42:33

or dissatisfaction that she has with her

42:35

lawyer or with the conservatorship. But

42:38

we don't know, as Adam emphasized,

42:41

whether there are potential distortions

42:44

in the system that nevertheless exist in

42:46

which Brittany is somehow being threatened

42:49

so that she's unable to

42:51

raise those concerns or feels

42:53

she's unable to raise those concerns.

42:56

The whole issue is therefore, at least

42:58

as complicated, and I think actually much

43:00

more complicated than it appeared to be

43:03

in the documentary, and it demonstrates

43:06

that power is complexly deployed

43:09

our legal system. You could be

43:11

very rich and very famous

43:13

and still find yourself represented by

43:15

a court appointed attorney, and perhaps

43:18

without the power to change

43:20

the basic circumstances in

43:22

which you are operating legally speaking.

43:26

At the same time, there are also protections

43:28

available in this system. As Adam pointed

43:30

out, Brittany can leave her

43:33

house, the conservator cannot,

43:35

in practical terms, block her from doing

43:37

most of the things that she might choose

43:39

to do. And

43:42

what's more, her assets are in trust,

43:44

and the trustee of that trust is not

43:47

the conservator. The takeaway

43:50

power is deployed in very

43:53

complicated ways in the legal system. The

43:55

legal system designs itself and tries

43:57

to operate in such a way as to use mutual

44:00

checks so that lawyers check lawyers

44:03

and we reduce the probabilities

44:05

of fundamental distortion. But

44:08

as Adam said, that process still

44:10

depends to a great extent on

44:12

the assumption that lawyers will behave

44:15

ethically. I would love

44:17

to believe, as a law professor and a

44:19

person who cares about the legal system, that all lawyers

44:21

are ethical, but as probably every

44:23

single person listening knows, that's

44:26

just not always the

44:28

case. There

44:30

is no magic bullet solution to

44:32

the potential for unethical lawyering, and

44:35

it remains a challenge to figure out

44:37

how legal power can be deployed

44:40

as ethically as is

44:42

possible. Until the

44:44

next time I speak to you, be careful,

44:46

be safe, and be well. Deep

44:51

Background is brought to you by Pushkin Industries.

44:53

Our producer is Mo laboord, our

44:56

engineer is Martin Gonzalez, and our shorerunner

44:58

is Sophie Crane mckibbon. Editorial

45:00

support from noahm Osband. Theme

45:03

music by Luis Guerra at Pushkin.

45:05

Thanks to Mia Lobell, Julia Barton, Lydia

45:08

Jean Cott, Heather Fain, Carl mcniori,

45:11

Maggie Taylor, Eric Sandler, and Jacob

45:13

Weisberg. You can find me on Twitter at

45:15

Noah R. Feldman. I also write

45:17

a column for Bloomberg Opinion, which you can find

45:19

at bloomberg dot com slash Feldman.

45:22

To discover Bloomberg's original slate of podcasts,

45:25

go to Bloomberg dot com slash Podcasts,

45:27

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write a review or tell a friend. This

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