Opinion
Index No. 850149-I-2022
05-11-2023
In the Matter of the Application of Julean W., For the Appointment of a Guardian for the Personal Needs and Property Management of Pamela W., An allegedly Incapacitated Person.
Christopher T. McGrath, Esq. Ronald H. Roth, Esq. Proposed personal injury attorney Jay D. Robert, Esq. Petitioner attorney in guardianship proceeding
Unpublished Opinion
Christopher T. McGrath, Esq.
Ronald H. Roth, Esq.
Proposed personal injury attorney
Jay D. Robert, Esq.
Petitioner attorney in guardianship proceeding
Gary F. Knobel, J.
PAPERS and HEARINGS CONSIDERED:
Affirmation of Roth & Khalife, LLP
1
Christopher T. McGrath's Report and Exhibits
2
Orders dated January 13and February 9, 2023 (Knobel, J.)
3-4
Hearings conducted on January 10, 2023, and February 15, 2023
4-5
Letter from Roth firm dated May 10, 2023
6
This is an Mental Hygiene Law Article 81 guardianship proceeding for an order appointing a guardian for the personal and property management needs of Pamela W., an allegedly incapacitated person, who sustained a traumatic brain injury as a result of a car accident in August of 2022.
The critical issue which was not resolved during the guardianship hearing conducted on January 10, 2023, raised ethical and practical questions which face personal injury attorneys and families in similar situations where the individual suffers a serious injury from an incident and as a result is now allegedly incapacitated: can a family member who was not granted a power of attorney retain an attorney to represent the allegedly incapacitated individual in a potential personal injury action related to those injuries?
No emergency application had been made to the Court pursuant to Article 81 for the appointment of a temporary guardian, nor was there an emergency application made to the Court for the appointment of a guardian ad litem to commence a personal injury action on behalf of Pamela W.
The relevant facts are as follows:
Pamela W., who is 65 years old, was a passenger in a bus or van owned and operated by her church, which crashed in upstate New York on August 24, 2022. Pamela W. was ejected from the vehicle and suffered a traumatic brain injury and multiple fractures. Pamela W. had never executed a power of attorney or any advanced directives. On September 5, 2022, petitioner Julean W. and Jennifer Fairclough, Pamela's daughters, retained Mr. Ronald Roth to represent and protect Pamela's interests vis-à-vis a potential lawsuit against the owner of the van/bus. During this period of time Mr. Roth and his law firm, Roth & Khalife, LLP,
(1) on September 13, 2022, requested the accident report;
(2) on September 24, 2022, submitted the No fault Claim;
(3) on October 20, 2022, sent a HIPPA form to get Pamela W.'s medical records;
(4) on November 2, 2022, emailed defense counsel representing the owner of the van to preserve the vehicle so that an expert could examine; and
(5) on December 5, 2022, emailed the defense attorney again on the prior request.
On December 2, 2022, the underlying petition and order to show cause was submitted to the Court and signed; a hearing was scheduled a in January, 2023. In the interim, on January 2, 2023, Pamela W. was released from the rehabilitation facility. On January 10, 2023, the hearing on the petition was conducted, and it was orally determined by this Court that Pamela W. is a person in need of a guardian pursuant to Mental Hygiene Law § 81.02. During the hearing the petitioner's attorney, Jay Robert, insisted that the Court consider the petitioner's request that the Roth personal injury firm represent Pamela W. in the potential lawsuit (tr Jan. 10, 2023, at 31, lines 13-24; tr at 32, lines 1-13). The Court stated that it was the Court's responsibility and decision as to who to appoint on behalf of Pamela W., but the proposed attorney can submit an affirmation as to why he or she is qualified for the appointment (id. at 32, lines 14-23; id. at 33, lines 3-17).
Subsequently, Nolan Roth, Ronald Roth's son, submitted on behalf of Ronald Roth, an affirmation dated January 11, 2023, detailing why Roth & Khalife, LLP should be appointed counsel in a possible personal injury law suit. Thereafter, this Court, by order dated January 13, 2023 (Knobel, J.), appointed Christopher T. McGrath, Esq., pro bono, to report on whether Ronald Roth and Roth & Khalife LLP should be appointed to represent Pamela W. in the aforementioned lawsuit. A hearing on the issue was conducted on February 15, 2023.
Between the end of the January hearing and the February hearing, Mr. McGrath requested numerous items from Roth & Khalife, LLP regarding the work the firm had performed on behalf of Pamela W. On January 29, 2023, Ronald Roth visited Pamela W. and had an approximately a one-hour long conversation in which he recorded a ten-minute portion. This meeting concluded with Pamela W. signing a retainer agreement with Mr. Roth.Mr. McGrath followed up on his January 30, 2023, request, to which Mr. Roth replied that there is no longer a need for a guardianship since Pamela W. has a made a "remarkable recovery" and is "completely fine" (McGrath Report dated Feb. 2, 2023, Ex. C). The email goes on to state that since Pamela W. "is clearly no longer incapacitated, she will be withdrawing her consent to this proceeding and seeking to retain whoever she wishes to represent her for the injuries she sustained in this accident" (id.).
On February 9, 2023, this Court ordered that an in-person hearing be conducted on the question of whether Mr. Roth and his firm should be appointed to represent Pamela W. in a potential lawsuit against the owner of the church van. At the hearing held on February 15, 2023, Christopher T. McGrath, Ronald Roth, and Jay Robert testified. Mr. McGrath testified first, and detailed his qualifications and over forty years of experience as a personal injury attorney; however, he was unable to make a true determination as to whether or not Mr. Roth's firm should be appointed (tr Feb 15, 2023, at 5-18). (id.). Ultimately, Mr. McGrath concluded that absent preservation requests, the actions by Roth were unusual since he (McGrath) has never seen a situation where an attorney had sent HIPPA requests when there is no authority to act and where an individual, who is currently the subject of a guardianship proceeding, signed a retainer agreement without permission from the Court (id. at 17, lines 6-21). Mr. McGrath further testified that he would have never put in writing that a client has totally recovered (id. at 18, lines 3-4).
Mr. Roth testified that he has been practicing as a personal injury attorney since 1988 and started his firm in 1990; he has represented approximately 8,000 clients since then (tr Feb. 15, 2023, at 19-43). Roth further stated that he was only acting in what he believed was in the best interest of Pamela W. He claimed that he has known family members for twenty years and had been retained on a matter in 2002. Mr. Roth first met with Pamela W. 20 years ago and did not see her again until January 2023.
Regarding the work he performed on behalf of Julean W. and Pamela W., Roth testified that he only engaged in "bare bones" approach to essentially preserve the claim and evidence after being retained by Pamela W.'s daughters (tr Feb 15, 2023, 26-27). Additionally, Mr. Roth explained that although he never had Pamela W. sign a HIPPA authorization, he coincidentally had another client named Pamela W. and his staff mistakenly sent a copy of that HIPPA authorization to the hospital. As a result, the hospital provided the medical records for Pamela W., despite the HIPPA containing information of a separate individual (id. at 27-28).
When confronted by the Court about the retainer agreement, Mr. Roth stated that he didn't act upon it and wanted it "just in case the proceeding [was] withdrawn" and if it ever became relevant; Roth incredulously claimed that the retainer agreement was otherwise meaningless (id. at 29-33, 40). He maintained that the reason why he went to visit Pamela W. was because he was informed that the home health aides were no longer necessary. Roth testified that during his conversation with Pamela W. she was very lucid and that her daughters wanted the guardianship withdrawn; Pamela W. never discussed withdrawing the guardianship with Roth (id. 37-28). Roth stated that Mr. Robert only told him to "write a letter to the judge" explaining his qualifications and he was not aware of what else transpired at the January 10, 2023, hearing (id at 29-30). There was no evidence proffered that Mario Bove, court appointed counsel for Pamela W., was ever informed that Roth was going to meet with Pamela W., nor was he present at the meeting.
Jay Robert was the last witness to testify (tr Feb. 15, 2023, 43-54). He disagreed with Mr. Roth's recollection of their conversation and recalled having an "in-depth conversation" with Roth where he explained that the Court would decide who would represent Pamela W., and that Roth should submit a resume to the Court to be considered as an appointee. Mr. Robert claimed that he then had many conversations with Roth over a three week period (id. at 44-45). Mr. Robert further testified that he never had any conversations with Pamela W. about withdrawing the guardianship proceeding, nor did Pamela W. express to him that she wanted Ronald Roth to represent her in a personal injury action against the owner of the van (id. at 49-50). Mr. Robert only had a "feeling" that Pamela wanted Roth to represent her (id.)
An attorney shall not put him or herself in a position where he or she could be both counsel and a witness (see, Courtney v. Edelschick, 157 A.D.2d 818, 820 [2nd Dep't 1990]. It is well settled that an attorney should be disqualified from representation when it is likely that the attorney's testimony as a witness is necessary (see S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-446 [1987]; Matter of State of New York v. Karl M., 192 A.D.3d 1119, 1122 [2nd Dep't 2021]). The Rules of Professional Conduct also require that a lawyer shall not intentionally prejudice or damage the client during the course of representation (Rules Prof Conduct R 1.1[2]).
This Court cannot appoint an individual to represent Pamela W. who has put himself in a position to be not only possibly be a witness in a lawsuit, but also a witness who could possibly be detrimental to Pamela W.'s personal injury claim. Despite the fact that this record is sealed, the retainer agreement that Mr. Roth had Pamela W. sign, along with his written testament that Pamela W. has recovered could be used as evidence. The Court recognizes that Mr. Roth acted in what he believed to be the way to protect the interest of Pamela W. in a potential lawsuit against the owner of the van. However, this court concludes that it is not in the best interest of Pamela W. to have Mr. Roth appointed counsel for that lawsuit given the actions that he undertook.
Accordingly, this Court appoints a well-qualified, experienced personal injury attorney who is on the Part 36 Fiduciary list , E. David Woycik, Jr., Esq., fiduciary number 241366, 100 Garden City Plaza, Garden City NY, 11530-3207, telephone number 516-527-1116, email address COLONELDAVE & commat;SSBWLAW.COM, to represent Pamela W. in immediately commencing a lawsuit against the owner of the subject van/bus. Mr. Roth is directed to immediately turn over to Mr. Woycik the complete file he has compiled on behalf of Pamela W. A copy of this order shall be immediately given by Mr. Robert to the guardian and to Pamela W.
The Court notes that Mr. Roth is not on the Part 36 Fiduciary list.
The foregoing constitutes the decision and order of this Court.