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Concerned that his client’s erratic behavior might jeopardize his personal injury suit, a Bronx lawyer recently petitioned the court to declare the client incapacitated and to appoint a guardian on the client’s behalf. Now, a judge has denied the petition, holding that the attorney’s interests conflict with his client’s. The petitioning attorney, David Lesch, may have sought the declaration to insulate himself against the ethical concerns associated with prosecuting a case on behalf of a potentially incapacitated person, wrote Bronx Supreme Court Justice Alexander W. Hunter Jr. “The court is left to wonder if the petitioner, by bringing this proceeding, was merely protecting himself from possibly violating the code of professional responsibility as he continued to prosecute his client’s … personal injury action,” Hunter said in Matter of J.G., 2005. The judge, who is not handling the personal injury action, also found that the attorney’s testimony in support of the petition violated attorney-client privilege. “As the person’s attorney [in a] personal injury action, the petitioner has become privy to confidential information that he cannot divulge unless and until his client waives the attorney/client privilege,” Hunter said. “Accordingly, it was improper for the petitioner to present his evidence at the hearing in the manner in which he did.” Portions of the testimony, if discovered, could potentially endanger the client’s personal injury claim, according to the decision. In the underlying suit, “J.G.,” as he is known in the present decision, sought damages for an accident in which he was hit by a car while bicycling. A number of obstacles complicated the prosecution of the suit. A 69-year-old retired mechanic who lives alone, J.G. has endured memory loss since suffering a stroke last year, he testified in Matter of J.G. “He said that he feels nervous and pressured because he has no money and needs money to pay for the eight medications he takes ‘for many different things,’” Hunter wrote. Lesch, the only other witness in the guardianship proceeding, added that J.G. exhibited “erratic and aggressive behavior,” and that on one occasion Lesch had J.G. forcibly removed from the courtroom. In an interview yesterday, Lesch said he sought advice from numerous attorneys and judges regarding how to proceed. The consensus, he said, was that an Article 81 guardianship would protect both him and his client from the ramifications of J.G.’s alleged incapacitation. But those dual interests fatally conflicted, according to Hunter. “In looking out for his own interests, was petitioner truly looking out for [J.G.'s] best interest as well? Can petitioner protect himself and his client at the same time in the same proceeding? Is it in [J.G.'s] best interests to be declared an incapacitated person?” asked Hunter in his decision. He added that Lesch failed to introduce any evidence that J.G. suffered from a mental impairment that would render him incapacitated. GOOD INTENTIONS He therefore denied the petition, instead directing Lesch to contact Adult Protective Services to attempt to obtain assistance for J.G. Hunter criticized Lesch’s procedure, not his intentions. “[E]ven though the petitioner has chosen the incorrect vehicle to achieve his desired goals, whatever they may be, he is to be commended for his insight and concern for his client’s overall health and welfare,” Hunter wrote. Lesch, a partner at Bronx-based Lesch & Lesch, said, “I could have just gone to trial and not done anything, but then what if he did so poorly because he was incapacitated? I wanted to do the right thing to protect him, and that’s what I did.”

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