SAN FRANCISCO — Basil Plastiras, the attorney representing Patricia Davis Daneman Amster in her case against Frank Mulberg, disagreed with the California First District Court of Appeal's decision to not award his client attorney's fees.
"Frankly, the denial of fees was a close call," Plastiras told the Northern California Record. "I felt that the trial judge had the obligation and the right to determine if the trustee had acted in good faith. He concluded that the trustee was so wedded to his defense that he was still acting in good faith. This is a question of fact usually reserved for the trial judge. This is a well-qualified judge, and I can understand the court of appeal's reluctance to overturn a factual finding."
Plastiras also said Mulberg had presented a poor case.
"The sworn position of the trustee was that none of the fees he took were legal fees," Plastiras said. "That all fees were trustee fees. He was forced to either take this position because of the dual compensation prohibitions contained in Probate Code 15687. Yet his billings and even the checks he signed were clearly indicative of legal services and fees."
Probate Code 15687 stipulates that trustees who are attorneys can only receive trustee compensation from the trust unless the attorney is granted prior approval for additional compensation, including legal fees.
Plastiras said he does not plan to appeal the decision.
"I think that attorneys have a higher obligation to take reasonable positions and to settle when it is clear that they are in the wrong," Plastiras said. "Lawyers have the capacity and access to the law, and when it is clear, they should accept and follow the law. In this case, this lawyer of many years’ experience adamantly took the position before, during and after trial in the court of appeals that he had not violated Probate Code 15687 when it was abundantly clear that he had in fact violated it not just once, but repeatedly and in a variety of ways."