Potential Conflict of Interest Arising from Representation of Co-Guardians Required that the Co-Guardians Each Have Their Own Counsel

The First Department, over a dissent, determined a single attorney representing co-guardians of an incapacitated person created the appearance of representing conflicting interests. The court held there was a potential conflict of interest because the co-guardians were dependent upon the incapacitated person and had competing financial interests in the terms of a trust and as beneficiaries of the incapacitated person’s will:

It is well settled that an attorney “must avoid not only the fact, but even the appearance, of representing conflicting interests” … . “[W]ith rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . Moreover, “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification” … . Full disclosure and prior consent by the parties may, on occasion, obviate the objection to conflicting representation … .

Applying these principles to the facts of this case, we find that the motion court properly determined that joint representation of the co-guardians by a single counsel would be improper. While an actual conflict may not have arisen “at this time” and in this proceeding as the dissent posits, there is clearly a potential conflict of interest … . Matter of Strasser v Asher, 2015 NY Slip Op 04763, 1st Dept 6-9-15