Riley v. Erie Lackawanna R. Co.

• Citation: 119 Misc.2d 619,463 N.Y.S.2d 986
• Parties: Sharon RILEY, as Guardian for Barth Riley, an Infant, Plaintiff, v. ERIE LACKAWANNA RAILROAD COMPANY, an Estate in the possession of Thomas H. Patton and Ralph S. Tyler, Jr., Trustees, Defendant.
• Decision Date: 29 March 1983
• Court: United States State Supreme Court (New York)

Page 986

463 N.Y.S.2d 986

119 Misc.2d 619

Sharon RILEY, as Guardian for Barth Riley, an Infant, Plaintiff, v. ERIE LACKAWANNA RAILROAD COMPANY, an Estate in the

possession of Thomas H. Patton and Ralph S. Tyler,

Jr., Trustees, Defendant.

Supreme Court, Chautauqua County.

March 29, 1983.

Paul William Beltz, P.C., Buffalo, for plaintiff; John R. Streb, Buffalo, of counsel.

Hodgson, Russ, Andres, Woods & Goodyear, Buffalo, for defendant; Daniel M. Darragh, Buffalo, of counsel.

MEMORANDUM

THOMAS F. McGOWAN, Justice.

On April 2, 1982, Sharon Riley, the mother and natural guardian of Barth Riley, an infant, acting without counsel, petitioned for approval of settlement of a claim against the Erie Lackawanna Railroad ("Erie"). On that date, this Court appointed John R. Streb guardian ad litem to review and report concerning the proposed settlement. An Order reflecting this appointment was granted on May 7, 1982.

On January 3, 1983, Mr. Streb presented his report recommending that the settlement not be approved. Prior to that time, on or about October 23, 1982, Mr. Streb, acting in his capacity of guardian ad litem for Barth Riley, had served a verified complaint. On February 8, 1983, this Court accepted the report and recommendation of the guardian ad litem, discharged him, and denied the application for the infant settlement based on that report. Mr. Darragh, counsel for Erie, now questions the propriety of Mr. Streb's continued representation of plaintiff, and he has asked that Mr. Streb, and the Paul Beltz law firm with which he is associated, be disqualified. The Court has agreed to consider this question.

Erie argues that Canons 5 and 9 of the Code of Professional Responsibility preclude a guardian ad litem--appointed to report to the court regarding the merits of a proposed infant settlement--from acting as the attorney to prosecute the claim out of which the settlement offer arose. Counsel contends that the guardian ad litem is an agent of the court and may therefore do nothing that the court itself could not do. Erie also argues that the guardian ad litem has a duty to be objective and fairminded in carrying out his office and that such a role is or can be inconsistent with the role of advocate. In this regard, defendant points out that Mr. Streb actively commenced to pursue the case on behalf of Mrs. Riley and her son even before he had submitted his report and been discharged. Defendant contends that such conduct, of necessity, compromises the objectivity demanded of the guardian ad litem.

Addressing the latter argument first, it cannot be gainsaid that the report of this guardian ad litem could have been more objective. Nevertheless, his investigation of the facts and law has been more than adequate. This infant, only eight years old at the time of the accident, suffered the loss of his left leg below the knee. Clearly the settlement offer of $11,720.00, with $2000.00 of that to be used to satisfy a New York State Department of Social Services lien, is adequate only if either the defendant's liability is virtually non-existent (contributory negligence being applicable to this case) or its ability to respond in damages is questionable. Defendant does not seriously dispute the guardian ad litem's analysis of the facts and the law relative to the liability issues. Erie argues, however, that the guardian ad litem has not addressed the fact of its bankruptcy. At the same time, Erie fails to present information to show that any judgment which plaintiff might secure cannot be collected either in whole or in part.

The prime allegiance of the guardian ad litem is to the infant, but he has a concurrent obligation, as an officer of the court, to make a thorough, fair and objective report of the information he obtains through his investigations (Matter of Ford, 79 A.D.2d 403, 436 N.Y.S.2d 882; 25 Carmody-Wait, 2d N.Y.Prac., p. 241). By the same token, the guardian ad litem need not necessarily maintain the same degree of objectivity as might be required of the court appointing him. ^* In this case, whatever may be the deficiencies of the guardian ad litem's report, it has served the purpose of informing the Court of the salient facts and law involved, and the Court has accepted the report.

A more telling point is defendant's argument that to allow the guardian ad litem to act as attorney for plaintiff would create the appearance of impropriety. It is argued that the guardian ad litem has a quasi-judicial or public function and that by agreeing to act as attorney in a matter in which he had responsibilities as guardian, he is violating Canons 5 and 9.

The guardian ad litem does indeed have a public function, but it differs only in degree from the general obligations required of all attorneys as officers of the court (see N.Y. Jur2d, Attorneys at Law § 2, pp. 421-422). That function differs even less from that of a receiver in a mortgage foreclosure, a trustee in bankruptcy, an executor, administrator, or other similar fiduciary. As to these, for example, it has been stated that there is no ethical impropriety for such a fiduciary to retain, as counsel, the law firm of which he is a member (NY State 471 ). In any event, the intent and meaning of the aforementioned Canons, and particularly EC 9-3 and DR 9-101(B), pertaining to public employees and judicial officers, is unduly distorted if applied to the function of the guardian ad litem.

There is, of course, the danger that the guardian ad litem may be influenced in making his recommendation by the prospect of future employment and that it may appear that he "may have in mind feathering his own nest." (NY State 514 ). These considerations--found applicable in the above opinion to the acceptance by the guardian ad litem, a few days after the conclusion of a conservatorship proceeding, of an appointment as attorney for the conservator--do not necessarily apply here. The conservatorship proceeding often has the earmarks of an adversary...