Mary L. Meltzer died a resident of Broome County on May 22, 2019. Her distributees are her daughter (S. M.) and three grandchildren, David C. Meltzer, Jr., Katherine M. McCarthy and Nolan R. Meltzer, who are the children of decedent's predeceased son, David C. Meltzer. A petition for the probate of an instrument dated June 30, 2016, purporting to be the Last Will and Testament of the decedent, was filed with the Court by NBT Bank (NBT), the named executor, on June 24, 2019. The offered Will makes various specific cash bequests to individuals and entities, including bequests of $300,000 to each of decedent's three grandchildren. The residuary of the estate passes to a charitable remainder unitrust for the benefit of S. M. Upon S. M.'s death, the charitable remainder unitrust passes equally to three local charities. The unitrust payments to S. M. are not payable directly to her, but to a Supplemental Needs Trust (SNT) that was created for S. M.'s benefit by agreement date July 31, 2012. NBT also serves as trustee of S. M.'s SNT.

S. M. is under disability, suffering from long-standing mental health disorders which have resulted in multiple hospitalizations. She is presently living in an assisted living facility in the Hudson Valley. The Court appointed David E. Berti, Esq., as Guardian ad Litem for S. M. in the probate proceeding.

At the initial return date in the probate proceeding, David C. Meltzer, Jr. advised the Court that he intended to secure legal counsel concerning the proceeding. On August 15, 2019 a demand for a 1404 examination of the witnesses and draft person of the Will was filed by attorney Lawrence I. Garbuz, Esq., on behalf of decedent's grandchildren (Objectants). A 1404 examination of the witnesses of the Will was conducted by attorney Garbuz on September 19, 2019. On October 31, 2019, attorney Garbuz filed objections to the probate of the offered Will, on behalf of the Objectants.

On November 25, 2019, Binghamton based attorney Palmer J. Pelella, Esq., filed a Notice of Appearance as local counsel for David C. Meltzer, Jr. to assist attorney Garbuz, whose [*2]offices are located in New York City. On December 20, 2019, a second Notice of Appearance was filed by Mr. Pelella confirming he was appearing on behalf of all three Objectants as local counsel.

At a scheduled Court appearance on February 27, 2020, counsel for NBT raised the issue of a potential conflict of interest between Mr. Pelella's representation as local counsel for the Objectants and Mr. Berti's role as Guardian ad Litem. The Court was made aware of a working relationship between Mr. Pelella and Mr. Berti. Counsel indicated they would be discussing the matter further and Mr. Pelella indicated he would be communicating with his clients about the issue. In an e-mail to the Court dated April 29, 2020, copied to counsel, Mr. Pelella confirmed that Objectants wished him to continue as local counsel on this matter.

On May 21, 2020, NBT filed a motion requesting the disqualification of Mr. Pelella as local counsel for the Objectants and of Mr. Berti as Guardian ad Litem for S. M. The motion is supported by affirmation of estate counsel Jamye L. Lindsey, Esq., dated May 18, 2020 and a memorandum of law dated May 20, 2020. An affirmation of attorney Garbuz, an affirmation of attorney Pelella and memorandum of law, all dated June 11, 2020, were filed in opposition to the motion. The Guardian ad Litem filed a letter relating to the motion with the Court on June 23, 2020.

The matter is before the Court for a decision on submission. For the reasons set forth below, the Court finds that Mr. Pelella is disqualified from continuing as local counsel for the Objectants, but Mr. Berti will not be disqualified from continuing to serve as Guardian ad Litem for S. M.

The potential issue came to light when Mr. Berti sent a letter, in his role as Guardian ad Litem for S. M., to an annuity company which Mr. Berti had become aware might have an annuity benefit payable to S. M. as a result of her mother's death. Mr. Berti copied the trust officer at NBT who is responsible for S. M.'s SNT, who is also the representative of NBT in connection with this pending probate petition. That letter lists attorney Pelella as "of counsel" to Mr. Berti's firm. Upon inquiry, Mr. Berti advised petitioner's counsel about his relationship with Mr. Pelella, which appears to be less formal than a typical "of counsel" relationship with which attorneys are familiar. However, the listing of Mr. Pelella on Mr. Berti's letterhead as "of counsel" raised a flag with NBT's trust officer, an experienced professional under no disability.

Mr. Berti and Mr. Pelella have been forthright in their disclosure of their business relationship. Mr. Pelella works on certain files with Mr. Berti. The potential exists that Mr. Pelella may take over Mr. Berti's practice upon Mr. Berti's retirement, but neither that relationship nor Mr. Berti's retirement have been formalized. Both Mr. Berti and Mr. Pelella assert, and petitioner does not dispute, that they have not discussed the Meltzer estate, or their respective clients' positions. There is no assertion that either Mr. Berti or Mr. Pelella have accessed confidential or sensitive information of another party to this proceeding.

The fact remains that Mr. Berti and Mr. Pelella currently represent parties with potentially differing interests in this estate. Whether S. M.'s interest will be enhanced or diminished if this Will is not probated is uncertain and unquantified. To a certain extent the issue is mathematical, based on the actuarial value of S. M.'s interest in the residuary unitrust. To another extent the answer is subjective: if the Will is probated S. M.'s interest will be defined by a trust, while failure of the Will may result in her outright inheritance, which may or may not be benenficial for her.

Whether to disqualify counsel is a decision within the sound discretion of the Court. [*3]Kelleher v. Adams, 148 AD3d 692 (2nd Dept., 2017); Sosa v. Serrano 130 AD3d 636, 637 (2nd Dept., 2015). The bulk of reported cases deal with an attorney who was formerly affiliated with an office now representing an opposing party in a different litigation. See, e.g., Cardinale v Golinello, 43 N.Y.S.2d 288 (1977); Nemet v Nemet, 112 AD2d 359 (2nd Dept., 1985). In this case is the request for disqualification is not based on prior representation, but ongoing representation of two clients whose interests may be adverse.

Normally both clients may agree to waive a potential conflict in writing, preventing disqualification. In this case, S. M. is under disability, so cannot legally give consent to waive the potential conflict. Matter of Merrick's Will, 107 Misc 2d 988, 990 (Surr Ct, Suffolk Co, 1980). It is also apparent to the Court that S. M. would not likely appreciate the subtleties of this case, both whether her interest is adverse to or consistent with those of the Objectants, and whether Mr. Pelella's relationship with Mr. Berti is problematic. Given the potential concern generated in petitioner's trust officer upon receipt of Mr. Berti's letterhead, how could S. M. be less confused were she to see that letterhead, or otherwise become aware of a business relationship between the two attorneys? She should not even be put to that task.

The issue of disqualification requires a balancing by the Court of any appearance of impropriety with each party's right to counsel of their respective choice. NYAHSA Services, Inc., Self-Insurance Trust v People Care, Inc., 156 AD3d 1205 (3rd Dept., 2017). That balancing requires the disqualification of Mr. Pelella. There is a potential appearance of impropriety in this case, made insurmountable by the disability of one of the clients. Objectants' right to counsel of their choosing is not as compelling where the counsel at issue is local counsel. With no disrespect to Mr. Pelella's capability or the importance of the role of local counsel, a client's right to counsel of their choice is simply not implicated as strongly with local counsel.

No affidavit is submitted from Objectants that they will be disadvantaged by loss of their choice of local counsel. Mr. Garbuz describes his office as Objectants' "primary litigation counsel" and Mr. Pelella as "local counsel to assist Lewis and Garbuz, P. C. with court appearances and filings". Mr. Pelella describes his role in this case as "solely to act as an intermediary and messenger" among the Objectants, their primary counsel and the Surrogate's Court. Mr. Pelella affirms he "will not be advising or making recommendations regarding the legal issues", which will be left up to primary counsel. One of Mr. Pelella's responsibilities, participating in Court appearances where Mr. Garbuz is unable to do so, is rendered nearly moot by the changes in Court protocols which have been instituted in response to the Covid pandemic. Every appearance in the Broome County Surrogate's Court, by counsel across the street, or across the country, is virtual at this time.

Balancing these same factors with respect to Mr. Berti's continued service as Guardian ad Litem for S. M. compels a different result. First, Mr. Berti was not retained by S. M., but is a Court appointee, who appropriately views his role "as a representative of the court with my job being the protection of the interests of my ward". It is not disputed that S. M.'s disabilities are long term and very challenging. Mr. Berti has established a rapport with S. M. during his service as Guardian ad Litem. He has assisted her with placement and has worked very effectively with her providers and with the petitioner in its role as trustee of her SNT. His continued service in his role as Guardian ad Litem is deemed by the Court as clearly in S. M.'s best interest.

The Court further finds that Mr. Berti's relationship with Mr. Pelella does not rise to the level to require per se disqualification of both attorneys. There is no perceivable risk that S. M.'s interests may be prejudiced by Mr. Pelella's representation as local counsel to Objectants. Kelly [*4]v. Paulson, 145 AD3d 1398, 1400 (3rd Dept., 2016).

All other arguments and case law raised by the parties have been considered and, to the extent not specifically addressed in this decision, deemed not relevant or applicable to the Court's analysis and exercise of its decision.

Mr. Pelella is relieved as local counsel for the Objectants. If he has need to do so, he may submit any issue relating to his compensation for services rendered to date to the Court for determination. Mr. Berti will continue as Guardian ad Litem for S. M..

This Decision constitutes the Order of the Court.