NYSBA Committee on Professional Ethics – Conflict of Interest

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NYSBA Committee on Professional Ethics – Conflict of Interest –  Court Appointed Attorney – Guardianship Proceedings

Ethics Opinion 1046

Background: The inquiring law firm receives court appointments under the Mental Hygiene Law to serve as court evaluator or guardian to an alleged incapacitated person. These appointments are necessary when there is no family member or close associate willing to serve on behalf of the AIP. Many of these AIPs reside in health care facilities as there are no family members able or willing to take care of them.  The law firm asked if it may accept these appointments when the law firm simultaneously represents the health care facility in matters unrelated to the AIP.

Opinion: The committee concluded that a lawyer may accept court appointments to serve as court evaluator or guardian for an alleged incapacitated person in a guardianship proceeding under the relevant law for an individual who is a resident of a health care facility represented by the law firm in unrelated matters. The lawyer does not represent the AIP as counsel. Whether a lawyer accepts a court appoint to serve as counsel for an AIP in a guardianship proceeding in which the petitioner is the health care facility depends on whether the interests of the AIP and the health care facility are differing interests and whether the lawyer has a disabling personal interests. Further, it depends on whether the lawyer can obtain consent to any potential conflict, which requires a careful assessment by the lawyer of whether the AIP is capable of giving informed consent.