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July 31, 2007

In re Zamer G. (2007) 153 Cal.App.4th 1253

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The Second District holds that due to special statutory protections only actual conflicts of interest will disqualify attorneys representing joint clients in dependency proceedings.   

The Children’s Law Center of Los Angeles is a publicly funded, nonprofit law office that represents parties in the Los Angeles County Juvenile Dependency Court.   It created three independent units to provide legal representation to multiple clients involved in the same proceeding who might have conflicts of interest. 

Zamer was one of five children taken into protective custody who lived with their mother and Nah H.   There was reason to believe that Nah H.  had abused Zamer.   Gupta (Unit 2) represented Zamer, Feldman (Unit 1) represented the other four children.   The court removed Feldman and his Unit 1 as counsel for the minors, finding there was a structural conflict in the way the Children’s Law Center was organized.   The court also disqualified Gupta and her Unit 2 from representation of Zamer.   In addition to the “structural conflict” it appeared that two of the siblings Joshua and Justin, would testify against Nah H., their stepfather and the biological father of two of the other siblings, Naes and Nay.   

The Court of Appeal found it was proper to remove Feldman and Unit 1.   By statute, appointed counsel who represent siblings in dependency proceedings are disqualified in the event of actual, not merely potential conflicts of interest.  This differs from the California Rules of Professional Conduct (CRPC), rule 3-310(C), which precludes representation of potentially conflicting interests absent informed written consent.    This allows the court to initially appoint a single attorney to represent siblings despite potential conflicts.   The attorney has an ongoing duty to evaluate the interests of each sibling to assess whether there is an actual conflict of interest and the court must relieve the attorney from representation if it determines an actual conflict exists.   

A conflict typically arises when there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s duties to another current client.   Attorneys in dependency proceedings are duty bound to represent the child’s best interests, which may differ from the client’s objectives.   Thus, a dependency lawyer does not face a conflict of interest in circumstances that could present a conflict in the civil or criminal context.  For example, although two minor clients may express different preferences regarding visitation, and the attorney has a duty to consider their wishes and report their preferences to the juvenile court, the attorney’s duty is to zealously to advocate only the visitation policy that the attorney believes to be in both minors’ best interests.  Because the dependency attorney’s role is to make a reasonable, independent determination of the minors’ best interests despite the minors’ wishes, conflicting preferences of minor clients do not necessarily give rise to a disqualifying conflict.   

A conflict becomes actual instead of potential only when an attorney’s duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the best interests of one minor client because it would violate a duty owed to another client.   It is also an actual conflict when the attorney is unable independently to evaluate the best interests of each minor client because of their conflicting interests.    

The Court of Appeal disagreed that there was a “structural” conflict due to the CLC’s separate units.   However at the time of the order there was an actual conflict between Joshua and Justin, on the one hand, and Naes.  and Nay, on the other hand.   Nah.H.  was the biological father of Naes and Nay who were preverbal and did not display signs of physical abuse.    Joshua and Justin provided statements to social workers implicating Nah H.  in abuse against all the children in the household.    Feldman had not yet determined that reunification services were not in the girls’ best interests.    The juvenile court had not yet determined whether reunification services between Nah.  H.  and his daughters were required and the statements made by Joshua and Justin would be material to that determination.  To advocate in favor of reunification services for his clients Naes and Nay, Feldman would have to dispute the accuracy or reliability of the statements made by his other clients Joshua and Justin.   It was reasonable for the trial court to conclude that this presented an actual conflict.   

However, it was an abuse of discretion to disqualify Gupta of Unit 2 due to the juvenile court’s finding that Zamer had an actual conflict of interest with clients being represented by Feldman of Unit 1.     Although Zamer, like Joshua and Justin, had an actual conflict with Naes and Nay, it was error to treat Units 1 and 2 as a single law firm for conflict purposes.   There was no record that there was a breach of the Center’s ethical screens or of persistent, material violations indicating that the Center’s ethical screens had broken down. 

Comment: Resources in child dependency proceedings are often stretched thin and a disqualification of the Children’s Law Center would have exacerbated an already difficult situation.   While the organization of the Children’s Law Center may have been appropriate given the statutory protection from conflicts afforded dependency attorneys, firms practicing in other contexts should not assume the same principles would apply.


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