MHL ARTICLE 81 - New York State Unified Court System

wanted to terminate its relationship with the firm in the Art 81 proceeding and also wanted to
consent to a cousin’s appointment as Guardian and the law firm tried to discourage the petitioner
from consenting to the cousins appointment, presumably because the cousin, as Guardian, could then
decide to hire new counsel for the med mal case. The court finds violations of DR5-105(a) and also
DR5 101 in that the law firms independent judgement was compromised by both its dual allegiances
and its own financial interests. (See also under Petitions and petitioners– Matter of J.G., NYLJ,
August 17 2005, p. 1, Col. 4 (Sup. Ct , Bronx Cty) (Hunter, J.); 8 Misc 3d 1029A; 806 NYS2d
445. “A person otherwise concerned with the welfare of the person alleged to be incapacitated”
under MHL §81.06 cannot be an attorney representing the AIP in a personal injury suit. As the
attorney in the personal injury suit, the petitioner is privy to confidential information that he cannot
divulge unless his client waives the attorney client privilege.)
Matter of Application of St. Luke's Hospital Center (Marie H.), 159 Misc.2d 932; 607 N.Y.S.2d
574 (Sup. Ct., NY Cty., 1993); modified and remanded, 215 A.D.2d 337; 627 N.Y.S.2d 357 (1st st
Dept., 1995); aff’d, 236 A.D.2d 106; 640 N.Y.S.2d 73, (1 Dept., 1996), aff’d, 89 N.Y.2d 889, 653
N.Y.S.2d 257 (1996)
Where Article 81 petition for indigent AIP, seeks power to transfer AIP to nursing home or to make
major medical or dental treatment decisions without consent, responsibility of paying for assigned
counsel falls upon locality under Article 18-B, rather than State pursuant to Judiciary Law §35.
st
Matter of Wogelt/Matter of Lichenstein, 223 A.D.2d 309; 646 N.Y.S.2d 94, (1 Dept., 1996);
on remand sub nom, In re: Lichtenstein, 171 Misc.2d 29; 652 N.Y.S.2d 682 (Sup. Ct., Bronx
Cty., 1996)
Court's failure to appoint counsel for AIP when it became apparent that AIP contested appointment
of the guardian and opposed move to different nursing home, as well as failure to notify AIP on
record of purpose and possible consequences of proceeding, her right to be represented by counsel,
and fact that court would appoint counsel if she so desired resulted in reversal of appointment of
guardian.
In re: DOE, 181 Misc.2d 787; 696 N.Y.S.2d 384 (Sup. Ct., Nassau Cty., 1999)
Appointment of counsel for AIP in Article 81 proceeding does not extend to unrelated proceedings.
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