A New York Probate Lawyer said that, this motion to withdraw as counsel raises serious and important issues about the obligations of the court and of counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action. Movant represents defendant in an action initially brought in Supreme Court, New York County, by her now-deceased mother. Following the mother’s death, her son, and brother, preliminary executor of the deceased’s estate, was substituted as plaintiff. While there are 11 separate causes of action, the common factual background involves claims that, while living with the deceased’s apartment, the movant engaged in a long course of harassment, threats and mistreatment of her mother that ended only when she was arrested and convicted for an assault on her mother resulting in the latter’s broken arm. Subsequent criminal charges against her, for allegedly soliciting her brother’s murder, were dismissed.
A New York Will Lawyer said that, after various proceedings in Supreme Court, during which the movant was first represented by the coundel, and then by another counsel the case was transferred to this court by order dated August 23, 2007. Since that time, as the case moved toward trial, the movant has gone through four separate sets of counsel. She was initially represented by the Law Offices; on January 15, 2008 and February 25, 2008.
In April 2008, the movant retained an attorney who had previously been employed at the Felder firm. The retainer agreement anticipated that it would secure the services of trial counsel, and in May 2008, after interviewing several firms, he was successful in matching with the law firm. Almost literally on the eve of trial, that firm sought an adjournment which was vigorously opposed by the counsel. The motion was granted, and the trial was adjourned to August 4, 2008, marked final against defendant. On July 18, the counsel moved for leave to withdraw on the grounds, inter alia, that “it has engaged in such conduct which renders it unreasonably difficult for to carry out its employment effectively” pursuant to DR 2-110 of the Code of Professional Responsibility. In support of their motion, they supplied an extensive in camera affidavit detailing issues and difficulties in their representation of the movant.
Shortly thereafter, Westchester County Probate Lawyers said the counsel also moved to withdraw on several grounds, including “a breakdown in communication such that the movant refused to accept his advice and counsel” and her “verbally abusive behavior.” In addition, because of the counsels’ motion, it now feared that he would be required to serve as trial counsel, a role for which, he claimed, he was neither suited nor retained.8 On July 28, the return date of both motions, after considerable colloquy, the motion was granted and the other counsel was held in abeyance, as the latter neither alleged nor provided information (in camera or otherwise) that the attorney-client relationship had so deteriorated that he could no longer represent the movant consistent with his ethical responsibilities. Once again the trial date was adjourned, this time to October 22nd, and again it was marked final against her.
A New York Will Contest Lawyer said that, the counsel now moves for leave to withdraw “on the ground that a substantial conflict exists between the firm and the movant precluding their continued representation of her in this matter.” She submits two in camera affidavits setting forth with more particularity the grounds upon which she believes that, as she stated in open court, continued representation would cause her to violate her ethical obligations under New York’s Code of Professional Responsibility (the Code). Although served with the motion, Diane did not appear on the return date; the motion was marked “submitted” and all counsel were directed to appear for a previously scheduled conference on October 7. The counsel was also directed to again notify Diane of that conference, and to convey the court’s direction that she attends.
A Suffolk County Probate Lawyers said that, the court met with the parties for more than an hour and conversed extensively with the movant about the extremely difficult situation in which she had once again placed herself. She was scheduled, in two weeks, for a trial marked final against her; she had no counsel willing to represent her; the trial would involve complicated evidentiary issues far beyond the command of any non-lawyer; and, if she lost the trial, she could potentially lose both her home and more than $3.8 million. During that conversation, as had previously been detailed in various attorneys’ in camera affidavits, and as the court observed at prior in-court appearances, it was apparent not only that Diane was incapable of managing the instant litigation, but also that she was unable to appreciate the consequences of that incapacity.
The issue in this case is whether the motion to withdraw the counsel should be granted.
This is, of course, precisely the situation addressed by Mental Hygiene Law article 81, our adult guardianship statute. Article 81 begins with the presumption that every adult is fully capacitated, and then permits appointment of a guardian only for those areas in which a person “is likely to suffer harm because” she “is unable to provide for personal needs and/or property management; and the person cannot adequately understand and appreciate the nature and consequences of such inability”. Article 81 guardianships are intended to be “closely tailored” to an individual’s incapacity, and to replace her autonomy only to the extent necessary to protect her from harm with regard to such incapacity.18 Thus, a person who is adequately managing personal needs and most financial needs might, as may be the case here, need a guardian only for a specific and limited purpose19.
This case calls out for a judicial determination, based on an evidentiary hearing, as to whether the movant is capable of managing this litigation within the definition of article 81. If she is, then the case will be tried, with or without counsel representing her. If she is not, and the article 81 court so determines, a limited property guardian can be appointed and the trial will proceed with that guardian directing the litigation, including any counsel she may choose to retain. All parties and counsel—including even her—agree that an article 81 proceeding is appropriate and should be commenced.
The difficulty arises in ascertaining precisely who can or should bring the proceeding. The statute requires the article 81 petition to contain “specific factual allegations as to the financial transactions or other actual occurrences involving the person alleged to be incapacitated which are claimed to demonstrate that the person is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for property management”. In this case, that would include only those who are or have been privy to the often confidential communications between attorney and client.
The Code is decidedly unhelpful in determining whether counsel may22 or should commence a guardianship proceeding for an allegedly incapacitated client. While there are several nonbinding Ethical Considerations that bear upon the obligations of an attorney representing an incapacitated client, they make no reference to guardianship or other protective proceedings except insofar as they require an attorney to take direction from an already existing guardian or other “duly constituted” personal representative.
Further, even the few, somewhat contradictory ethical opinions that exist do not provide clear guidelines. In the absence of guidance from the Code, it is appropriate to look to the two main sources of legal ethics in this country, the ABA Model Rules of Professional Conduct and the Restatement (Third) of Law Governing Lawyers (2000) (Restatement). Model rule 1.14, “Client With Diminished Capacity,” provides: “(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. “(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”
Restatement § 24 provides: “(4) A lawyer representing a client with diminished capacity as described in Subsection (1)29 may seek the appointment of a guardian or take other protective action within the scope of the representation when doing so is practical and will advance the client’s objectives or interests, determined as stated in Subsection (2).”
Here, where it can be reasonably determined that Diane is unable to act in her own interest, and, as the Restatement adds, no other practical method is available to protect her interest,31 these authorities would permit the counsel to commence an article 81 proceeding to appoint a limited property guardian to litigate and defend the instant action.
Equally, if not more compelling, the NY State Bar Association has engaged in a multiyear study of a proposed revision to the Code of Professional Responsibility, essentially replacing the Code with the Model Rules, through its Committee on Standards of Attorney Conduct (COSAC) formed in 2003. COSAC’s report was unanimously approved by the New York State Bar Association’s House of Delegates on November 3, 2007. The Proposed Rules are currently under submission to the Appellate Division, and COSAC’s report, and the new rules it would adopt, have already been cited with approval.
Proposed rule 1.14 provides, in pertinent part, “(b) Where the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem or guardian. “(e) A lawyer should not be subject to professional discipline for invoking or failing to invoke the permissive conduct authorized by this Rule if the lawyer has a reasonable basis for the lawyer’s action or inaction.”
The Comment recognizes that, in bringing a guardianship proceeding, “the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary”.
Based on all three relevant authorities, it appears that there is no ethical impediment to the counsel’s bringing a limited guardianship proceeding for her client, and to disclosing to the article 81 court whatever information may be necessary.35 Such a proceeding is the “least restrictive alternative” available, and the counsel is the only available person with significant knowledge to bring it. In addition, the current Code provision relating to confidentiality specifically provides that an attorney may not disclose communications with his client except under strictly limited circumstances including “when permitted under Disciplinary Rules or required by law or court order”.
Accordingly, the court held that, the counsel’s motion to withdraw is granted contingent upon her commencing an article 81 proceeding for a limited property guardian for the movant within 30 days. The trial previously scheduled for October 22 has been adjourned sine die pending the results of that hearing.
If you are in a similar situation seek the expert advice of a competent and reliable counsel at Stephen Bilkis and Associates, our New York Will Contest Attorney and New York Probate Attorney can help you.