Steven L. Abel, New City, for respondent.
Linda Christopher, Upper Nyack, for petitioner.
Legal Aid Society, New City (
Veronica Young of counsel),
Law Guardian.
OPINION OF THE COURT
WILLIAM P. WARREN, J. By order to show cause filed with this court on February 27, had no conflict of interest. Therefore, the decision of February 20, 2003 is in conformity with Formal Opinion 345 of the American Bar Association. In the circumstances presented by the instant motion, it is not the board member or lawyer in the board member's firm whose professional judgment we are examining. It is not the exercise of Linda Christopher's professional judgment on behalf of her client, the petitioner, which we are examining to determine if it will be reasonably affected by her own financial, business, property or personal interests so as to warrant her disqualification. Instead, we are looking at the matter from the standpoint of the Law Guardian. One cannot infer from the language of Formal Opinion 345 of the American Bar Association or Opinion 643 of the New York State Bar Association that it is appropriate for the Legal Aid Society of Rockland County to represent children where a board member of that same organization represents an adverse party in that same custody/visitation proceeding. The Legal Aid Society's assertion that Opinion 345 stands for the proposition that no conflict exists for the Law Guardian in this matter belies a true reading of the opinion. In point of fact, Opinion 345 recognizes the potential for conflict in a board member's representation of a client with an adverse interest to a program client. In its Opinion 345 the American Bar Association Standing Committee on Ethics and Professional Responsibility recognized that there may be problems when board members represent clients in an adversarial position to a client represented by the program. Although the committee concluded that the Code of Professional Responsibility is not necessarily violated by the representation by a board member or his firm of a client involved in litigation against a program client, nonetheless they did state the following:
"Having said all this, the Committee does not concur that there is no problem in a Board member's representation of a client adverse to a Program client. Depending upon the nature of the case, the circumstances of the clients or otherwise, one counsel or the other may feel unexpectedly self-restrained from representation of the client in the fullest sense. From the clients' side it should not be overlooked that clients in the poverty group, particularly, may tend to be submissive and to acquiesce in the representation—feeling that they have no choice, but at the same time feeling concerned that they may not be getting independent
representation. The real possibility of an appearance of impropriety, even though no actual impropriety may exist, is also troubling to the Committee."
"Accordingly, it is important that the Board and clients on both sides be made aware of the Board member's role and the fact that he or a lawyer in his firm is representing a client opposing a Program client. The clients and counsel on both sides must feel comfortable that in the particular circumstances neither client will be deprived of independent and uninhibited representation." (Emphasis supplied.)
Looking at the circumstances and the clients in this matter from the vantage point of a disinterested attorney, one can only wonder how it could be explained to a child, especially a young child, that no conflict could potentially exist when the law guardian, who is to act as the child's independent legal counsel, is employed by an organization where the president of that organization represents his/her parent. Since a child cannot, as a matter of law, consent to the representation by a law guardian where in the opinion of a disinterested lawyer the law guardian's professional judgment will be or reasonably may be affected, the law guardian cannot continue to represent the child. (Code of Professional Responsibility DR 5-101 [a] [22 NYCRR 1200.20 (a)].) Neither Opinion 345 nor 643 addresses the unique situation that we have here where the legal service's organization's client is a child. Formal Opinion 345 states that DR 5-101 (a) requires that, "except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests." A plain reading of DR 5-101 (a) reveals that there must be full disclosure and consent of the client before a lawyer can accept employment or continue employment if the exercise of professional judgment on behalf of that client will be or reasonably may be affected by the lawyer's own financial, business or property interests. The Law Guardian's client cannot legally consent to the representation. It also does not matter whether the Law Guardian was on the case before Ms. Christopher was retained. DR 5-101 states that the law guardian shall not accept or
continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected. Ms. Christopher's entry
that the law guardian's role is not adversarial to either party and that the law guardian looks out for the best interests of the child. She claims that her ability to represent the child is not compromised by the fact that the petitioner's counsel is president of the Legal Aid Society. Appellate courts have long recognized the dual role of the law guardian as both the champion of the best interests of their clients and as advocates for their express preferences, if any. This includes being an investigator seeking truth on controverted issues and as recommenders of alternatives for the court's consideration. (
See, Koppenhoefer v Koppenhoefer, 159 AD2d 113 [1990];
Vecchiarelli v Vecchiarelli, 238 AD2d 412 [1997].) Therefore, the role of the law guardian is not merely being a neutral by looking out for the best interests of the child, but as an advocate participating fully in the pretrial stages and trial stages of any proceedings. In its January 1994 pamphlet publication entitled Law Guardian Representation Standards Volume II, Custody Cases, the New York State Bar Association's Committee on Children and the Law describes the role of the law guardian as counsel for children as follows:
"The law guardian is an attorney assigned to represent the child. Hence the law guardian is an advocate, participating fully in motion practice and pre-trial procedures * * *. At trial the law guardian should introduce relevant evidence, subpoena relevant material and cross-examine witnesses * * *. In short, the law guardian acts as an attorney and should use every lawyering skill appropriate to further a result favorable to the child client's interest and position * * *."
While the law guardian is often perceived as being "neutral" in otherwise adversarial proceedings, this is not always so since the law guardian and his or her client often formulate a position which supports that of one of the litigants. Since there exists a reasonable possibility that the law guardian can take an adverse position to that of one party in any visitation or custody case in which they represent the child, to describe the law guardian's role as "a neutral" discounts their role as a zealous advocate for the child participating fully in both pretrial and trial procedures. Therefore, the Law Guardian's position that her office and Linda Christopher's office are not truly adversaries ignores her dual role as champions of the best interests of their clients and advocates for their express preferences.
For all of the reasons stated above, this court grants respondent's application to disqualify the Legal Aid Society of Rockland County from representing the parties' children C., C. and C. in this proceeding. A substitute law guardian from the law guardian panel shall be appointed by this court to represent the children in all further proceedings. [*] The Law Guardian did not file any papers in support or in opposition to the motion and did not participate in the application.