Matter of G.G.

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[*1] Matter of G.G. 2004 NY Slip Op 51043(U) Decided on September 14, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2004
Supreme Court, Kings County

In the Matter of the Application of D. G., Petitioner, For the Appointment of a Guardian of Personal needs and Property Management of G.G., An Person Alleged to be Incapacitated



100058/04

John M. Leventhal, J.

In this proceeding brought pursuant to Article 81 of the Mental Hygiene Law petitioner's counsel sought discharge of the Court Evaluator and thereafter petitioner sought to discharge her counsel. This decision explains the Court's rulings on these applications.

In December of 2003, the Alleged Incapacitated Person, (hereinafter "AIP"), age 56, suffered a major stroke. The half sister of the AIP, the petitioner herein, was appointed temporary guardian pending the hearing. Petitioner also sought to be appointed permanent guardian. In her petition for appointment of a guardian neither petitioner nor her counsel revealed that there was a potential medical malpractice action or that a Notice of Claim against the New York City Health and Hospitals Corporation had in fact been filed [FN1].

In her report investigating the appointment of a guardian for the AIP , the Court Evaluator, pursuant to her duties under Article 81 of the Mental Hygiene Law, observed the AIP, the aunt and cousin of the AIP, and spoke with another half sister of the AIP. The Court Evaluator, spoke to the petitioner and proposed guardian, on several occasions, in addition to meeting with her once at the Center for Nursing and Rehabilitation in Brooklyn, where the AIP currently resides. In attendance at this meeting was an occupational therapist and the AIP's aunt. In her report, the Court Evaluator raised several cautions and concerns regarding the appointment of petitioner as guardian.

In court proceedings on August 4, 2004, counsel for the proposed guardian, made an application to the court to strike the Court Evaluator's report, and for the Court Evaluator to recuse herself or for an order for her removal from the case, due to the fact that the Court Evaluator met with petitioner and observed her without counsel being present. The court denied petitioner counsel's application for the following reasons and notes the irony of counsel's application against the backdrop of his law firm's actions regarding the potential and real conflicts of interest in the representation of the petitioner herein.

The court notes that the Court Evaluator is mandated under Article 81 to interview the petitioner. Mental Hygiene Law §81.09 (b) provides in pertinent part that a Court Evaluator may [*2]be anyone from an office of court administration list that has "knowledge of property management, personal care skills, the problems associated with disabilities, and the private and public resources available for the type of limitations the person is alleged to have". A Court Evaluator may be "an attorney-at-law, physician, psychologist, accountant, social worker, or nurse." The statute, however, expressedly does not limit those who may be appointed as a Court Evaluator to these specific occupations. M.H.L. §81.09(b) then continues by articulating the various duties of the Court Evaluator including "interviewing the petitioner."

The Court Evaluator when appointed as such, serves not as an attorney even if she happens to be, but as an arm of the Court. The Court Evaluator is the eyes and ears of the Court in conducting an independent investigation in the best interests of the Alleged Incapacitated Person.

Counsel for petitioner argues that by not being present when the Court Evaluator spoke to his client, he was unable to serve as a "buffer" between the Court Evaluator and his client. Petitioner's counsel argued that the Court Evaluator is an adversarial party to his client. The Law Revision Commission Comments following §81.10 explain that, "The role of Court Evaluator is to act to provide an independent assessment of the allegedly incapacitated person." While this proceeding may be an adversarial proceeding, the Court Evaluator is not an adversarial party nor does he/she serve as an attorney. The Court Evaluator works as an arm of the Court and the assessment made is of an independent nature. Therefore, the Court Evaluator did not impede petitioner's opportunity to have protection from an adversary, as the Court Evaluator is not, in fact, an adversarial party.

Petitioner's counsel further argues that by speaking to petitioner out of his presence, the Court Evaluator improperly trammeled upon his attorney-client privilege. Counsel has failed to articulate any information divulged which invades the attorney-client privilege. Even assuming arguendo that privileged information was imparted by petitioner to the Court Evaluator, the court notes that an attorney-client privilege may be waived by the client. (See Matter of Estate of Weinberg,133 Misc 2d 950, 951; CPLR § 4503). The court also notes that if counsel wished to attend the meeting with the Court Evaluator, he could have notified his client of this and would have had an opportunity to do so or in the alternative, he could have advised the Court Evaluator that he wished to be present at any interviews or meetings with petitioner.

Parenthetically, although counsel for petitioner claimed to be unaware of the meeting with the Court Evaluator and his client, the Court Evaluator stated, and it was uncontested, that she had informed counsel's firm that she was planning to speak to his client. Additionally, upon hearing of the meeting that the Court Evaluator had with his client and the social worker, counsel stated that he did not know of the meeting, but even if he had known of the meeting he would not have attended.

The Court Evaluator acted properly in making an independent investigation and observation of the interested parties in the case, pursuant to the dictates of the statute. The Court Evaluator is not an adversarial party to petitioner. Additionally, the Court Evaluator did not violate any attorney-client privilege. Further, the majority of the Court Evaluator's report regarding petitioner dealt with observations the Evaluator had made of petitioner at the meeting with the social worker. Observations in a public place certainly are not prohibited. Therefore, counsel's application to strike the report of the Court Evaluator was denied. [*3]

Counsel's argument that the attorney/client privilege was violated is ironic in that it is not clear whose interest counsel represents in the Article 81 proceeding.

The petition sought the appointment of a temporary guardian pending the hearing. This Court contacted petitioner's counsel to ascertain why such drastic action was necessary [FN2].Counsel advised this Court that such an appointment was necessary because the AIP's bills including rent, had not been paid and that medical decisions might be required. There was no mention that petitioner's counsel was also representing the AIP or that counsel had sought or in fact had obtained the AIP's medical records [FN3]. This Court granted temporary powers to petitioner and required the posting of a bond and issuance of a commission. The Court also appointed counsel for the AIP as mandated by MHL § 81.10( c) (5).

During the Court Evaluator's initial investigation, she ascertained that there were a number of family members, including another half-sister that were not identified in the petition. These individuals had to be identified and served with the petition in accordance with (MHL § 81.08 [a] [10]). Accordingly, the hearing date was adjourned for further service of the petition.

On the adjourned date of the hearing, petitioner, represented by her counsel, testified. During the testimony of petitioner it was learned that she had testified on a prior occasion regarding the AIP. Upon further inquiry of this Court, it was ascertained that she had testified at a hearing pursuant to GML§ 50-h in anticipation of a medical malpractice lawsuit. At this time counsel for petitioner objected to this line of inquiry, the basis of which was "relevance". This objection was overruled.

It was discovered during petitioner's testimony that petitioner's counsel was representing the AIP in a medical malpractice suit. Counsel had filed a notice of claim and appeared at the 50-h hearing. This information had never been provided by petitioner or her counsel to the Court, counsel appointed for the AIP by the Court or the Court Evaluator. At the conclusion of the day's testimony counsel advised that a medical malpractice action had been commenced that very day, just prior to the hearing.

Counsel's representation of both the petitioner and respondent and the failure to disclose this representation presents a conflict of interest. DR5-105(a) (22 NYCRR 1200.24[a]) mandates that A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or it would be likely to involve the lawyer in representing differing interests...

Counsel for the petitioner, while also representing the alleged incapacitated person [*4]apparently had full access to the alleged incapacitated person's confidential medical records. Although, it is yet unclear when counsel obtained these records [FN4], it is apparent that they were obtained at least prior to the hearing before this Court. The use of these records or even the appearance that confidential information of a client may have to be disclosed to another client creates a conflict, particularly when the client's interests are opposed to each other. An attorney must realize and inform his client of any potential conflict of interest (People v. Lloyd, 51 NY 2d 107).

This conflict whether apparent or real was compounded by counsel's failure to disclose the existence of and intent to bring a medical malpractice action. This action was not disclosed in the petition drafted by petitioner's counsel. This action remained undisclosed to the alleged incapacitated person's court appointed counsel, who in order to properly represent his client's interests should have been informed. Finally, it was not revealed to the Court Evaluator whose role it was to investigate all the circumstances surrounding the alleged incapacitated person. It raised the question as to whether counsel was representing the interests of petitioner or the other client, the alleged incapacitated person. This conflict could have been easily resolved had the facts been fully exposed.

During the second day of testimony, another conflict arose regarding counsel's representation. The parties advised the Court that they were attempting to reach a resolution. The Court adjourned the matter for its afternoon session, wherein counsel for petitioner informed the Court that petitioner wished to discharge him. The petitioner herself, stated on the record that she no longer desired to be guardian but rather preferred that the cousin of the alleged incapacitated person be appointed guardian. Petitioner maintained that her attorney advised her not to consent to her cousin's appointment as guardian. Accordingly, she wanted her attorney discharged.[FN5]

DR5-101 (22 NYCRR 1200.20[a])mandates that a lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property or personal interests....

The conflict here involves the differing interest of the petitioner versus the financial interests of the attorney. Quite simply, if someone other than petitioner was to be appointed guardian, it is a distinct possibility that the guardian may seek other counsel to represent the alleged incapacitated person in the malpractice action. It became clear during the course of the proceeding that counsel was trying to control the litigation and shield information from the Court. Counsel was protecting the interest of the law firm and not necessarily the best interests of [*5]the petitioner or the AIP. Accordingly, a conflict arose as to counsel's adherence to his client's requests versus the interest of his firm in retaining the malpractice action. This conflict is a real one.

The Court notes that had full disclosure been made at the onset, steps could have been taken that may have avoided these conflicts from arising. However, since disclosure had not been made, the apparent conflict grew into a real one prior to the Court having had the opportunity to take possible prophylactic measures.

This Court declines at this time to rule on whether counsel and his law firm may continue in their representation of the medical malpractice action. The guardian has been given the authority to consult with other attorneys to determine who she would prefer to provide representation. If there is a request to retain the same counsel, the Court will rule on that issue at that time. Counsel for petitioner is directed to provide the guardian with copies of notice of claim, 50-h hearing transcript, the summons and complaint and all medical records.

Accordingly, for the reasons set forth above, counsel for petitioner's motion to discharge the Court Evaluator was denied and the application of petitioner to discharge her counsel was granted.

This constitutes the decision of the Court.

John M. Leventhal

J. S. C. Footnotes

Footnote 1:Poignantly, petitioner successfully applied to be temporary guardian until the hearing was scheduled and decided. The reason proffered for the need for the appointment of temporary guardian was to pay immediate bills. There was no mention of a lawsuit.

Footnote 2:It is the policy of this Court to grant temporary powers only when it is absolutely necessary. The issuance of temporary powers prior to a hearing deprives an individual of his/her rights without any "opportunity to be heard" and should only be granted when there are exigent circumstances.

Footnote 3:Counsel for petitioner has not yet advised the Court when the AIP's medical records were obtained. However, it is presumed that they were obtained prior to filing a notice of claim, attendance at the 50-h hearing and the drafting of a complaint.

Footnote 4:Counsel for petitioner has been directed to provide this Court with a submission setting forth when and under what circumstances the firm obtained the medical records of the alleged incapacitated person.

Footnote 5:Prior to the afternoon hearing, petitioner's counsel should have asked to be relieved. (See, Death v. Salem, 111 AD 2d 778, [An attorney may not place himself in a position where a potential conflicting interest may, even inadvertently, affect or create the appearance of affecting his personal judgment or duty of undivided loyalty to his clients.])