Conflicts Analysis for Children’s Attorneys in Dependency Cases

1. Conflicts Analysis for Children’s Attorneys in Dependency Cases Martha Matthews, Children’s Law Center of Los Angeles (323) 980-8700 matthewsm@clcla.org

2. Acknowledgements • Thanks to Jennifer Renne, Staff Attorney, ABA Center on Children and the Law, for allowing me to adapt materials on the Model Rules, and case studies, from her forthcoming book. • Thanks to Jenny Cheung, Children’s Law Center of Los Angeles, for helping to develop this presentation.

3. Useful concepts for conflicts analysis • Duties of confidentiality and loyalty • Concurrent representation and successive representation • Actual and potential conflicts • Declining appointment and withdrawing after appointment.

4. Ethical duties implicated in conflicts analysis • Duty of confidentiality – lawyer must not disclose confidential information communicated by a client or obtained in the course of representation, and must not use such information in a manner adverse to client’s interests.

5. Questions for children’s attorneys: • Is the client capable of confidential communication (in light of age, development)? • Even if client is non-verbal, has the lawyer obtained confidential information about the client from other sources?

6. Ethical duties, continued • Duty of loyalty – lawyer must zealously pursue client’s objectives and not take any action adverse to client. • Related duty of “independent judgment” – lawyer’s representation of client must not be influenced or limited by relationships with other clients or third parties.

7. Questions: • Is the client aware of the lawyer-client relationship (i.e. does the client have an expectation of loyalty?) • Is the lawyer’s duty of loyalty to the client’s expressed wishes or best interests? (depends on lawyer’s role as defined by state law).

8. Concurrent and successive representation • Concurrent representation – representing two siblings in same case (or two unrelated clients with adverse interests). • Successive representation – representing client whose sibling, parent, etc. is former client of same attorney or firm.

9. Questions – concurrent representation • When case involves more than one sibling, should lawyer accept appointment for all siblings? • What information is available at time of appointment from documents, interviews, etc. regarding siblings’ positions?

10. Questions – successive representation • Conflicts check process – how to find out if child in new case is related to former client? • How much information is available about prior case?

11. Actual vs. Potential Conflicts • Actual conflict - lawyer would have to take directly adverse positions on material factual and/or legal issue, to advocate effectively for both clients. • Potential conflict - circumstances of case make it reasonably likely that an actual conflict will arise.

12. Sample Questions – factual conflicts • One client allegedly harmed another client – is this material to future placement, services, etc.? • One client alleges another is lying about parental abuse – inconsistent positions on material issue? • One client allegedly committed a crime – is another client a material witness?

13. Sample Questions – situational or goal conflicts • Older sibling does not want younger sibling to be adopted – does younger sibling want to be adopted (or is adoption in his/her best interests)? • One sibling wants to reunify with a parent, another sibling does not - does first sibling believe home is unsafe for both siblings?

14. Declining appointment and withdrawing after appointment • Declining appointment – attorney refuses to represent all siblings on case, or declines to represent a child related to a former client. • Withdrawing after appointment – attorney withdraws after being appointed due to a conflict of interest.

15. Questions • Should attorney anticipate potential conflict and decline appointment, to avoid risk of having to withdraw later? • How to balance this concern with value of having same attorney represent all siblings in a case?

16. Model Rule 1.7(a)(1) • A lawyer may not represent a person whose interests are directly adverse to a current client, even in an urelated matter.

17. Analysis of rule… • This rule prohibits lawyer from taking adverse position in concurrent representation of another client, even if cases are unrelated, because of duty of loyalty.

18. Model Rule 1.7(a)(2) • A lawyer cannot represent a person if there is a significant risk that the representation will be materially limited by the lawyer’s (or firm’s) responsibilities to a current or former client.

19. Analysis of rule… • This rule prohibits concurrent representation if there is potential conflict, because of duty of independent judgment. • Mere possibility of conflict does not require withdrawal: question is whether actual conflict is likely, and whether it will significantly interfere with lawyer’s independent judgment in pursuing clients’ objectives.

20. Model rule 1.9 • A lawyer may not represent a person whose interests are materially adverse to a former client, in the same or a related matter.

21. Analysis of rule… • This rule prohibits successive representation of persons who have an actual conflict of interest, in same or related case. • (Not as strict as test for concurrent representation.)

22. Model Rule 1.16(a)(1) • Lawyer must withdraw from representation when continued representation of client will result in violation of another rule (MR 1.7 or 1.9).

23. Analysis of rule… • Withdrawal is required when an actual conflict has arisen – not just a potential conflict. • In contrast, lawyers generally should decline initial appointment when there is a potential conflict, to avoid the risk of having to withdraw later.

24. Client consent? • MR 1.7(b) allows lawyer to continue to represent clients even if there is a conflict, if lawyer reasonably believes he or she can comply with duties to both client, and clients consent in writing.

25. Questions • Should minor clients ever be asked to consent to such representation? • What about 18-21 year old clients? • If so, how should lawyer determine whether client is capable of informed consent to conflicted representation?

26. Practice Skills • Client counseling, when client takes factually or legally untenable position, may resolve situation and avoid need to declare conflict. • Negotiated solutions may also avoid conflicts – e.g. post-adoption visits between adopted child and older sibling. • Withdrawal from representation – duties of confidentiality and loyalty still apply – lawyer may not disclose basis for conflict if this would harm client.

27. Case Studies

28. #1. You represent siblings Michael and Dwight, age 12 and 10. Case was filed one year ago due to drug use and neglect by mother. During first six months of foster placement, boys were moved three times due to behavior problems. Agency then locates father and places boys with him. Six months later, agency recommends closing case with primary custody to father. You interview boys to prepare for permanency hearing. Michael says father comes into his room at night and touches him, and threatens to hurt him if he tells anyone. Dwight says father is strict but fair, never hits them or touches them inappropriately, and Michael is upset because father makes them do homework and limits TV, and Michael wants to go back to mother where he could do whatever he wanted. What do you do?

29. #2. You represent Mark, age 17, and Angela, age 2. They are placed together in a foster home. Their mother has long-term, unresolved substance abuse and mental health issues. The agency recommends termination of parental rights and adoption. Mark wants to go home, does not want to be adopted, and does not want to be separated from his sister. He is doing well in school, is in therapy and takes antidepressants, and has a close, loving relationship with Angela. Mark believes he and Angela would be safe with mother, because he can take care of himself and his sister. Angela is also bonded to the foster parents, who want to adopt her and are also willing to adopt Mark. What do you do?

30. #3 – You represented Katie from age 14, when she was removed from home due to sexual abuse by her mother’s boyfriend, to age 18, when her case was closed. She lived in several foster homes and group homes during this four-year period, got in some trouble for truancy and curfew violations, but graduated from high school and had a job and an apartment by the time she turned 18. Two years later, a case is filed regarding Katie’s newborn child Perry because Katie tests positive for marijuana at the time of birth. Can you accept appointment for Perry?