Britney Spears, superstar, lacks a fundamental right that most adult Americans have. Because she is under a conservatorship, she’s unable to enter into a contract. That means she can’t hire her own lawyer. Instead, for the last 13 years, she’s had a lawyer someone else picked for her. Her earnings paid for the lawyer she didn’t select and couldn’t replace. Finally, last week, a California superior court judge granted Spears’ request to let her replace her long-term counsel with someone of her own choosing.
In a landmark 1963 decision, Gideon v. Wainwright, the Supreme Court held that states were required to provide lawyers for defendants in felony criminal cases. The court said having a lawyer in this situation was a fundamental right essential to a fair trial. Citing an earlier case, it admonished, “[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.”
There is no similar guarantee of counsel in civil cases, no right grounded in the Constitution, as in criminal cases, where liberty is at stake. But state bar associations and other organizations are cognizant of the enhanced protections that people who have a lawyer representing them receive. Increasingly, they’ve focused on access to justice programs that expand the availability of counsel in civil proceedings, in recognition that access to a lawyer provides legal awareness along with legal counsel.
Concerns about access to a lawyer focus primarily on people who cannot afford to hire one, but the principle underscores the importance of having counsel. We are a country that believes in “procedural and substantive safeguards designed to assure fair trials before impartial tribunals,” the Supreme Court noted in Gideon. People who have had even a passing encounter with the legal system know how important it is to have a navigator, someone who understands both the substance and the process of the law, acting in their best interests. Without that protection, a person could end up, say, in a 13-year conservatorship without knowing how or even whether they were entitled to challenge it.
Britney Spears is not a defendant in a criminal case and she is certainly able to afford counsel of her own, but the process she has found herself entangled in prohibited her from accessing basic advice about her situation and her options. She did not have someone at her side who was unambiguously committed to seeing her best interests served. She has experienced significant, substantial loss of liberty even though she’s not in physical custody. In some ways, a defendant in a criminal case enjoys more protection of their rights than Spears has had, even though the conservatorship is supposed to work to her benefit.
Spears’ situation has important implications for people in the disability community and others who also find themselves in conservatorships. Although in many situations, particularly those that involve people nearing the ends of their lives or people with catastrophic illness, conservatorships can be necessary and useful, they don’t always operate as the law intends.
Spears’ case highlights the way conservatorships can create a vicious cycle of inability for the people they are supposed to protect, by isolating them from sound advice. That problem presents itself starkly in the pop star’s case, where her earnings are now supporting a conservatorship cottage industry that seemingly benefits everyone but her.
Spears turned cartwheels on social media the day the judge ruled in her favor, permitting her to choose her own lawyer. This decision doesn’t guarantee she’ll be able to win her freedom, but she’ll have a fairer shot. She’ll have a lawyer who is free, one hopes, from outside influence or conflicts of interest.
The change in legal strategy was immediate. “We will be filing as quickly as possible to get Mr. Spears removed from the conservatorship,” Spears’ new lawyer, Mathew Rosengart, said. “If he loves his daughter, it is time to step aside and move on so she can have her life back.”
We live in a society that doesn’t necessarily venerate lawyers. The butt of jokes and water cooler mockery, when the chips are down, most people want a good lawyer in their corner.
It took 13 years for Spears, with her fame, money and access, to secure a lawyer of her choosing. It doesn’t take much imagination to understand how this plays out for people without her celebrity. But there are newer approaches that require a person who legitimately needs some assistance to relinquish less control over their life than a traditional conservatorship.
“Supported decision-making,” a new legal approach that permits people who need some assistance but can make decisions on their own when properly advised, is an option. For people in the disability community who face physical and/or mental challenges but are capable of functioning independently with a strong support network, an approach like this permits them to retain control over key decisions in their lives. For instance, because she had a lawyer, Jenny Hatch, a woman with Down syndrome, won the right to make her own decision about where and how she would live.
Conservatorships are supposed to work for people who need them. Most often they do. But when they don’t, there needs to be an accessible path to challenge them.
Spears' father’s lawyer, Vivian Lee Thoreen, paid for by Spears' money, was able to advocate for him and his wish to stay on as her conservator. "Jamie is not suggesting that he is the perfect dad or that he would receive any 'father of the year' award,” Thoreen told CNN. “Like any parent, he doesn't always see eye to eye on what Britney may want. But Jamie believes every single decision he has made has been in her best interest."
That perhaps is the ultimate irony: Spears was left without the legal protection she provided others. Spears deserves to have a lawyer so her voice can be heard — as do other people who can’t use their own voices to support themselves. That’s why having a lawyer, your own lawyer, matters so much.