The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
A baby is born cocaine exposed and is removed from the mother at the hospital. The baby, now three months old, has minor medical issues related to her cocaine exposure. The mother, who is 25, has two other children, 11 and 13 years old, placed temporarily with the maternal grandmother. The baby’s father has a substance abuse problem as well and is not in treatment. Although the maternal grandmother has been able to care for the older siblings, she did not pass a home study for placement of the baby due to concerns about her ability to handle the baby’s special medical needs and that she would not likely become a permanent placement for the baby due to her age (68). The baby is placed in foster care since no other relatives are able and willing to care for her. Mom is requesting that the baby be placed with her in a residential treatment facility.
You represent all of the children. The older children have clearly expressed a strong interest in having their baby sibling placed with them; however, you have determined the baby’s short- and long-term interests are best served by remaining in foster care until the mother makes some progress in drug treatment and the baby can be placed back in her care.
Attorneys must be loyal to their clients, use independent judgment, maintain client confidences, and zealously pursue the client’s objectives. The Model Rules prohibit lawyers from representing multiple clients when representing one will compromise the duties owed to the other(s). This is considered a conflict. Model Rule of Professional Conduct 1.7 states that:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
However, the analysis does not end with the mere presence of a conflict. MR 1.7 addresses situations in which pursuing one client’s objectives prohibits the lawyer from pursuing another client’s interests. Part (b) of the rule explains:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
To determine whether a conflict exists, you can ask the following questions: 1
- Does representing one client foreclose alternatives for the other?
- Will confidential information from one client be compromised in representing the other(s)?
- Can the attorney comply with duties owed to each client, including the duty to pursue the client’s position?
- Will the client “reasonably fear” that the attorney will pursue her case less effectively because the attorney is deferring to the other client?
- Can the lawyer ask for consent?
The scenario here presents a conflict. As the child’s attorney, you cannot possibly zealously advocate for the siblings to be placed together (older children’s position) while also advocating for the baby to remain in a foster home. How would you proceed now that a legitimate conflict of interest exists?
In this case, because your older clients and baby client have different positions, it would not be reasonable to believe that you could provide competent and diligent representation to all clients. Thus, you have two choices: (1) withdraw from representation of either the older two children or the baby, or (2) withdraw from representing all children. Although continuity of representation is important for a baby, in this case your best approach is to withdraw from representing the baby and continue to represent the older children. If you choose to withdraw from the older children’s representation and continue to represent the baby, you may face more ethical issues. If you represent the baby, you will likely need to disclose confidential information provided by the older siblings. You may also violate your duty of loyalty to the older siblings, who will very possibly feel abandoned and confused by your withdrawal from their case.
What would the ethical considerations be, however, if the facts were slightly different and the older siblings do not have an opinion regarding placement with their baby sibling? Does a conflict of interest exist? No. Under these circumstances, the position of the older siblings and baby are not directly adverse and there is no significant risk that representing the baby will be materially limited by representing the older sibling. MR 1.7(a)(1-2). In fact, in this modified scenario, one attorney for all children may actually serve the goal of sibling contact and family connection for both the baby and the older siblings.
Candice L. Maze, JD, is president of Maze Consulting, Inc. in Miami, FL. She has worked for more than a decade in the child welfare arena. Jennifer L. Renne, JD, is director of the National Child Welfare Resource Center on Legal and Judicial Issues at the ABA Center on Children and the Law.
1 Renne, Jennifer L. Legal Ethics in Child Welfare Cases. Washington, DC: ABA Center on Children and the Law, 2004.