In re Ress
Opinion of the Court
Appeal from order, Supreme Court, New York County (Wil
Petitioner coguardian, an attorney, obtained reinstatement of the incapacitated person’s insurance policy for home nursing care, and through substantial efforts, but prior to litigation, recovered very significant proceeds under that policy. Petitioner sought a legal fee for these efforts, but the IAS court denied the request on the ground that under recently promulgated 22 NYCRR 36.2 (c) (8), a guardian cannot be appointed his/her own attorney “unless there is a compelling reason to do so.” That rule, which became effective January 1, 2003, codifies case law disfavoring the appointment of a guardian as his/her own attorney except in “unique circumstances” (see Matter of Arnold O., 279 AD2d 774, 778 [2001]). However, it appears that the co-guardian was confronted with unique circumstances here, and had a compelling reason, justifying his acting as his own attorney, namely, his inability to find an attorney who would handle the matter on a contingency fee basis due to a perceived unlikelihood of success. Accordingly, upon reargument, the IAS court properly granted petitioners’ application, made to the Court Examiner, for additional compensation for their efforts in connection with the insurance policy. However, coguardian’s efforts with respect to the Fleet Bank matter did not require any special legal skills or training warranting payment of a separate legal fee. Nor do petitioners show that their outside counsel rendered legal advice necessary to the administration of the estate. Concur—Mazzarelli, J.P., Andrias, Sullivan, Lerner and Gonzalez, JJ. [As amended Aug. 26, 2004.]
Case-law data current through December 31, 2025. Source: CourtListener bulk data.