OPINION OF THE COURT
By аn order and judgment dated December 7, 1994 the court appointed a guardian for the property management of John E. Lepkowski and coguardians for the personal needs of John E. Lepkowski. In that order and judgment the court included a decretal paragraph directing that the awards for counsel fees for petitioner’s attorney, David Toupin, Esq., court evaluator fees for Terrencе P. Buckley, Esq., and fees for Joseph J. Kunzeman, Esq., the court-appointed attorney for the incapacitated person, would be considered in a separate order to be forthcoming.
The matters of these fees are now considered herein.
First, regаrding counsel for the petitioner, the governing statutory provision is section 81.16 (f) of the Mental Hygiene Law which provides, in relevant part: "When a petition is granted, or where the court otherwise deems it аppropriate, the court may award reasonable compensation for the attorney for the petitioner”.
In his affirmation dated November 15, 1994, L. David Toupin, Esq., counsel for the petitioner, Agnеs L. Roy, has indicated that services were provided by him and his partner William M. Gearty, Esq. In paragraphs "10” and "11” of the affirmation, Mr. Toupin states:
"That the Petitioner has been billed for my services and those of mr. gearty, at the rate of $250.00 per hour. For the total of 42.3 hours of legal services rendered to date, the*148 Petitioner has incurred a total fee in the sum of $10,575.00 as well as expenses and disbursements in the sum of $611.90, for a tоtal legal expense of $11,186.90. It is customary practice for mr. gearty and I to bill for our legal services at the rate of $250.00 per hour in civil litigation matters.
"To date the Petitioner has paid my firm the sum of $9,961.90 for both legal fees and expenses and disbursements incurred to date.”
The petitioner, Agnes L. Roy, has supported the request of her attorney for counsel fees with her own affidavit sworn to on November 16, 1994 aсknowledging her retainer agreement with counsel at an agreed rate of $250 per hour.
Moreover, counsel and the petitioner, Agnes L. Roy, have implicitly asserted that the court should accept the terms of the retainer agreement as the basis for determining the amount of the "reasonable compensation” to award to counsel pursuant to section 81.16 (f) of the Mental Hygiene Law.
Thе court, however, concludes that the terms of the retainer agreement between a petitioner in a Mental Hygiene Law article 81 proceeding and counsel retained by such petitionеr are not necessarily determinative of "reasonable compensation” within the meaning of Mental Hygiene Law § 81.16 (f).
The matter of determining a reasonable fee has been addressed by the courts. In Matter of Karp (
Further, the Court in Matter of Karp (supra, at 215) quoted the following from the Court of Appeals opinion in Matter of Freeman (
The Court further noted in Matter of Karp (supra, at 216), quoting Pasley, Trusts and Administration (23 Syracuse L Rev 236, 261 [1972]): " 'To base a fee solely on hours worked is to penalizе the experienced and skillful lawyer who can perform the services in substantially less time than the inexperienced ones’ ”.
Clearly, then, the determination of "reasonable compensation” for an attorney authorized pursuant to section 81.16 (f) of the Mental Hygiene Law to be paid out of the funds of an incapacitated person involves more than the simple reference to a fеe earned pursuant to the contractual terms of a retainer agreement between the petitioner and the petitioner’s lawyer.
Thus, if an attorney, by anticipating an award pursuant to seсtion 81.16 (f) of the Mental Hygiene Law, persuades a client to sign a retainer agreement to prosecute a Mental Hygiene Law article 81 proceeding with an assuring representation or suggestiоn that the proceeding ultimately will result in no expense to the petitioner, such attorney has either negligently or deliberately made a material misrepresentation to the client.
Guidelines for аn attorney’s conduct in reaching an agreement with a client regarding fees are found in EC 2-19 of the Code of Professional Responsibility: "As soon as feasible after a lawyer has been employed, it is dеsirable that * * * a clear agreement [be reached] with the client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good rеlations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee * * * A lawyer should be mindful that many persons who desire to employ a lawyer mаy have had little or no experience with fee charges of lawyers, and for this reason lawyers should explain fully to such persons the reason for the particular fee arrangement proрosed.”
Accordingly, when consulted by a client anticipating commencement of a proceeding pursuant to Mental Hygiene Law
Thus, if counsel, either by an affirmative misrepresentation, or even merely by failure to provide a sufficiently clear explanation, leads a prospective petitioner in a Mental Hygiene Law article 81 proceeding to believe that whatever fee is paid out-of-pocket pursuant to the retainer agreement necessarily will be ultimately reimbursed pursuant to Mental Hygiene Law § 81.16 (f), that attorney has failed to comply with the Ethical Consideration that instructs that "a clear agreemеnt [be reached] with the client as to the basis of the fee charges to be made.” (Code of Professional Responsibility EC 2-19.)
The unfortunate consequence of any misunderstanding by a client in this regard is that the сourt, which is not bound by the terms of the privately negotiated retainer agreement, may well not deem the fee paid by the petitioner to constitute "reasonable compensation” within the meaning of Mental Hygiene Law § 81.16 (f), resulting in an unanticipated and potentially significant expense to that client.
It bears emphasis that in a proceeding brought to secure the appointment of a guardiаn for a person alleged to be incapacitated, paramount consideration shall be given by the court to protecting the interests of the person alleged to be incapacitated. The court, therefore, plainly will not undertake to protect the petitioner’s pocketbook by granting what it may deem an undue award to counsel for the petitioner at the expеnse of the alleged incapacitated person.
Given all the foregoing considerations the court is constrained to conclude that the instant case is one in which the fee calculаted by counsel for the petitioner pursuant to the terms of the retainer agreement is not coextensive with the court’s determination of "reasonable compensation” determined pursuant tо Mental Hygiene Law § 81.16 (f).
The court would further advise that if any resulting financial prejudice to the petitioner is to any degree the result of a
Based upon the record herein, counsel’s affirmation of services, and the above-recited factors, the court concludes thаt the reasonable compensation payable to counsel for the petitioner pursuant to Mental Hygiene Law § 81.16 (f) is $5,500.
With respect to the court evaluator, Terrence P. Buckley, sectiоn 81.09 (f) provides, in part: "When judgment grants a petition, the court may award a reasonable allowance to a court evaluator * * * payable by the estate of the allegedly incapacitated person.” For his diligent and commendable service herein the court deems the sum of $5,500 a reasonable allowance to be paid out of the guardianship estate of John E. Lepkowski.
Finаlly, for his service as court-appointed counsel for John E. Lepkowski, the court concludes that reasonable compensation payable to Joseph J. Kunzeman, Esq., in accordance with section 81.10 (f) of the Mental Hygiene Law, is $3,500.