Committee on Professional Ethics – Opinion 1046

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NYSBA Committee on Professional Ethics

Conflict of Interest

Representing Incapacitated Client

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. The inquiring law firm asks if it may accept court appointments to serve as court evaluator, guardian or counsel to an AIP for an individual who is a resident of a health care facility if the law firm simultaneously represents the health care facility in matters unrelated to the AIP?

Opinion: The committee concluded that the law firm may accept the court appointments. However, whether a lawyer may accept a court appointment depends on whether the interests of the AIP and the health care facility are differing interests and whether the lawyer has a disabling personal interest, which are questions of fact beyond the jurisdiction of the committee. Additionally, whether the lawyer can obtain consent to the potential conflict depends on whether the AIP is capable of giving informed consent.