Court Conditions Attorney's Withdrawal on Commencement of Article 81 Proceeding for Client

In Cheney v. Wells, __ Misc.3d __, __ N.Y.S.2d __, (Sur. Ct. New York Co. 2008), the Surrogate conditioned the grant of an attorney's motion for leave to withdraw as counsel for respondent on the commencement of an Article 81 proceeding for a limited property guardian for the client within 30 days.

The attorney (one of a number of successor counsels for respondent) sought to withdraw on the ground that a substantial conflict exists between the firm and respondent precluding their continued representation of her in this matter. Following the submission of in camera affidavits, the Court met with respondent and her counsel and determined that it was apparent not only that respondent was incapable of managing the instant litigation, but also that she was unable to appreciate the consequences of that incapacity.

The Court wrote that "this is, of course, precisely the situation addressed by Mental Hygiene Law Article 81, our adult guardianship statute. * * * [which] 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" (MHL § 81.02[b][1], [2]). * * * 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 purpose * * * ."

The Surrogate then stated that ajudicial determination, based on an evidentiary hearing, was need to determine whether respondent 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.

The Court then addressed the issue of whether a client's attorney may be the petitioner in such an Article 81 Proceeding. Finding the soon to be replace Code of Professional Responsibility "decidedly unhelpful" in reesolving the issue, the Court looked at the soon to enacted (April 1, 2009) Model Rules of Professional Responsibility and held that such action would be permitted under Model Rule 1.4. Accordingly, motion to withdrawwas granted contingent upon the attorney commencing an Article 81 proceeding for a limited property guardian for the respondent within 30 days of the date of the Order.