Last week, the Vermont Supreme Court issued an opinion in which it addressed this question:
- “whether a court may terminate parents’ parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter.”
Short answer: no. The opinion is here.
The Court’s opinion relies on an analysis of Rule 1.9 of the Vermont Rules of Professional Conduct. As such, I think it’s a natural for this blog. That being said, as was the Court, I want to be crystal clear: I am not suggesting that the State’s lawyer should face a disciplinary sanction.
By way of background, of the inquiries I receive, no topic comes up more often than conflicts of interest. I rarely, if ever, say “yes, you have a conflict” or “no, you don’t.” Rather, I cite lawyers to the relevant rules, comments, and opinions, then leave the decision to the lawyer.
Similarly, if a lawyer asks whether opposing counsel has a conflict, I never provide a definitive answer. It’s impossible to do so without hearing from opposing counsel. Again, I cite the lawyer to the relevant rules, comments, and opinions. I also offer to discuss the matter with opposing counsel.
That being said, when talking about conflicts, it’s not uncommon for me to say two things:
- the rules prohibit actual conflicts, not the appearance of a conflict; and,
- even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint. Either can be costly and aggravating.
Which gets me to the Court’s recent opinion: at least in TPR cases, appearances matter.
I don’t want to bore you or make this blog too long. Plus, the Court writes better than I do anyway. So, I suggest reading the opinion.
Still, here’s a synopsis:
- throughout a CHINS proceeding, Lawyer represented 4 children;
- then, Lawyer represented the State in the subsequent TPR;
- a guardian ad litem consented to Lawyer representing the State;
- citing Rule 1.9, Mother’s attorney notified the trial court of concerns about Lawyer’s appearance for the State;
- Lawyer argued that there was no conflict due to the State & children both taking the position that termination was warranted and, further, that the guardian had waived any conflict;
- the trial court had “no concern” given that the State and children had the same interest (termination) and that the guardian had consented to Lawyer appearing for the State;
- parents’ rights were terminated with respect to 3 of the children; and,
- parents appealed.
When a lawyer has formerly represented a client in a matter, Rule 1.9 prohibts the lawyer from representing anyone in the same or a substantially related matter whose interests are materially adverse to the former client’s. Exception: the former client gives informed consent that is confirmed in writing.
On appeal, the Court “decline[d] to parse the State’s and children’s specific positions in this case to evaluate whether they are actually materially adverse.” Rather, the Court noted that:
- “given the myriad issues in play in juvenile proceedings, the potentially dynamic nature of the parties’ positions, and the difficulty in discerning the children’s interests, determining whether the parties’ interests are truly aligned is a potentially complex undertaking.”
Thus, the Court concluded:
- “as a matter of law that the potential conflict inherent in representing different clients in the same matter should be treated as an actual conflict for the purposes of determining whether counsel in an abuse-and-neglect case should be disqualified from subsequent representation of a different party in that same matter.”
In essence, then, the Court established a bright-line rule regarding disqualification in abuse & neglect cases, but recognized that the bright-line rule “is broader than the strict requirements of the ethical rule as applied in disciplinary proceedings.”
Finally, the Court noted that a lawyer’s prosecution of a TPR after having represented the children in the same matter “undermines the integrity of the judicial process . . . creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State – factors that are particularly significant in the context of abuse-and-neglect proceedings.”
In short, for disqualification purposes in abuse & neglect cases, appearances matter.