Matter of C. M. v I. E.
Annotate this CaseDecided on May 12, 2021
Supreme Court, Broome County
In the Matter of the Application of C. M., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of I. E., an Alleged Incapacitated Person.
EFCA2021000942
Appearances of Counsel:
Kevin Guyette, Esq., petitioning counsel
Daniel Norton, Esq., of counsel, Hinman Howard & Kattell, LLP
Kristin Snyder, Esq., appointed Court Evaluator, Mental Hygiene Legal Service, Third Dept.
Philip J. Artz, Esq., appointed attorney for the alleged incapacitated person
David H. Guy, J.
C. M. filed a petition dated April 21, 2021, requesting the appointment of a guardian for her mother, I. E., the above-named alleged incapacitated person ("AIP"), pursuant to Mental Hygiene Law Article 81. The Request for Judicial Intervention filed with the Article 81 petition recites a related case pending in Broome County Supreme Court: I. E., by and through her Power of Attorney, T. S. v C. M., Broome Supreme Index No. EFCA2020-2177 (hereinafter referred to as the "Related Case"). The petitioner in this Article 81 matter is the defendant in the Related Case. In both cases, she is represented by Kevin Guyette, Esq. The stated plaintiff in caption of the Related Case is I. E., by and through her Power of Attorney T. S., and the plaintiff is represented by Hinman Howard & Kattell, LLP, Daniel Norton, Esq., of counsel.
A 2017 Power of Attorney ("POA") from I. E. naming T. S. as her agent is the basis of
T. S.'s stated status as plaintiff in the Related Case. The effectiveness of the POA as a resource for I. E. has been called into question by the petition in the Article 81 proceeding. One of the partners at Mr. Norton's law firm is the notary on the POA.
The Court signed an order to show cause in the Article 81 matter on April 22, 2021, appointing Mental Hygiene Legal Service (3rd Dept.) ("MHLS") as Court Evaluator. The matter is set down for a hearing on May 26, 2021. Kristin Snyder, Esq., the attorney from MHLS assigned as Court Evaluator, reported to the Court on May 7, 2021 that she had made an appointment to meet with I. E. at her home. The Court Evaluator further advised that Mr. Norton had communicated to the Court Evaluator that he represents I. E. and wanted to be present [*2]during the meeting. The Court immediately communicated to petitioner's counsel, the Court Evaluator and attorney Norton that since the POA was notarized by an attorney in Mr. Norton's office, and he represents the agent under the POA in the Related Case, his office is disqualified from representing I. E. in the Article 81 proceeding. Reference was made to Matter of S.B. (E.K.), 66 Misc 3d 452 (Sup Ct, Chemung County 2019). The Court offered an attorney's conference to address any questions about this issue. Mr. Norton requested a conference, which was held before the Court via Microsoft Teams on May 11, 2021.[FN1]
Rule 3.7(b) of the Rules of Professional Conduct provides that "a lawyer may not act as advocate before a tribunal in a matter if: (1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or (2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9." Rules of Professional Conduct, 22 NYCRR 1200.0, rule 3.7(b). The petition in the Article 81 raises allegations about I. E.'s capacity and the efficacy of the POA issued to T. S. sufficient to support the Court's execution of the order to show cause. The notary on the POA is a likely witness with respect to the circumstances of its execution, the capacity of I. E. at that time of and the efficacy of the POA as a resource for I. E. Such testimony may be prejudicial to I.E. The mere potential that it could be prejudicial is enough to invoke Rule 3.7(b) and disqualify Mr. Norton and his firm from representing I. E., or any other party to this proceeding.
Mr. Norton also represents T. S., as agent for I. E., in the Related Case. The POA granting T. S. authority has been called into question in the Article 81. Mr. Norton's potential representation of I. E. in the Article 81 arguably implicates Rule 1.7(a)(1), which states that "a lawyer shall not represent a client if a reasonable lawyer would conclude that . . . the representation will involve the lawyer in representing differing interests." An Article 81 petition creates a potentially adversarial posture between the agent and principal/AIP when the efficacy and execution of the POA is called into question by the 81 petition. Mr. Norton and his firm would potentially be representing different and conflicting interests if he were permitted to represent I. E. in this matter. As the subject of a recently initiated Article 81, I. E. cannot be presumed to be in a position to waive any potential conflict. This also implicates Rule 3.7(b)(2), again precluding Mr. Norton's representation of I. E. in the Article 81.
One of the immediate tasks of the Court Evaluator, reiterated at the conference, is to recommend to the Court whether counsel should be appointed for I. E.. The Court Evaluator has so far been precluded from meeting with I. E. by T. S. When the Court Evaluator does meet with I. E., I. E. may communicate her objection to the petition, which would trigger the appointment of counsel, or the Court Evaluator may recommend the appointment of counsel for other reasons. MHL §81.09(c)(3); MHL §81.10(c)(1), (2). There is not a risk that I. E. will be without effective counsel for this proceeding. Based on the discussion at the conference, the Court anticipates the likely request by the Court Evaluator for the appointment of counsel for I. E., and the ongoing appointment of MHLS as Court Evaluator.
The Court's analysis in Matter of S.B. is germane. In that case, there were multiple issues [*3]that rendered problematic the continued representation of the AIP by court-appointed counsel. Ultimately, the court disqualified counsel under Rule 3.7, as is the case here. Matter of S.B., supra at 462. In this case, unlike Matter of S.B., the Court can proactively address this disqualification issue prior to the hearing and not in the middle of the Article 81 proceeding. The Article 81 has just been commenced and part of the Court's responsibility is to move it forward expeditiously, supporting early identification of the disqualification of Mr. Norton and his firm.
This Decision constitutes the Order of the Court
Date: May 12, 2021
_______________________________
Hon. David H. Guy
Acting Supreme Court Justice Footnotes
Footnote 1: The Court's communication to the attorneys incorrectly refers to MHLS as counsel for I. E. MHLS is appointed as Court Evaluator, not counsel. The rules requiring disqualification of Mr. Norton and his firm are applicable in any event.
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