IN RE: Application of Esta RESS (2004)

Appeal from order, Supreme Court, New York County (William J. Davis, J.), entered March 24, 2003, which, in a proceeding under Mental Hygiene Law article 81, inter alia, denied petitioners guardians' application for legal fees, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order, same court and Justice, entered June 19, 2003, which granted petitioners' motion for reargument to the extent of permitting them to make an application, in the first instance, to the Court Examiner for additional compensation for their efforts in connection with the Equitable Life Insurance policy, and otherwise adhered to the prior order denying petitioners' application for a legal fee in connection with the Fleet Bank matter and for permission to pay a legal fee to outside counsel, and, so considered, the order of June 19, 2003 is unanimously affirmed, without costs.

 Petitioner co-guardian, 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 June 1, 2003, after petitioners made their application in January 2003 and indeed after the IAS court decided the application in March 2003, appears to codify case law disfavoring the appointment of a guardian as his/her own attorney except in “unique circumstances” (see Matter of Arnold O., 279 A.D.2d 774, 778, 719 N.Y.S.2d 174).   Here, it appears that the co-guardian was confronted with unique circumstances, 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 permitted petitioners to apply, in the first instance, to the Court Examiner for additional compensation for their efforts in connection with the insurance policy.   However, co-guardian'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.