Opinion
V-03291/18
03-08-2019
In the Matter of a Custody/Visitation Proceeding NOELLE M., Petitioner, v. CHRISTOPHER C., Respondent. In the Matter of a Custody/Visitation Proceeding Alejandro R., Petitioner, v. Noelle M., Respondent.
The parties appeared before the Court in connection with, a petition for sibling visitation filed by Noelle M. (the Mother). It was at this appearance that a question arose as to the potential conflict of interest for the Attorney for the Children (AFC) to represent all three children: Roland C. (DOB: X/XX/2008), Gabriel R. (DOB X/XX/2011) and Michael R. (DOB: X/XX/2013). The AFC began representing the R. children in 2014 and she began representing Roland in 2012. Specifically and in terms of the sibling visitation, it was expressed to the Court by the AFC that Roland C. does not wish to partake in any sibling visits. She stated that Roland associates contact with the R. children with the trauma that he suffered during visits he made to the Mother's home when she resided there with Alejandro R. and the R. children. Roland simply wants to move on and not be reminded of those times. He does not want to see his half-siblings at all. It was further expressed by the AFC that the younger two boys, Gabriel R. and Michael R., may be okay with sibling visitation, but that she had not met to discuss this issue directly with the R. children. Instead, she gathered this information collaterally through other sources and/or parties. It became clear that divergent interests likely existed between the children, begging the question: Is it a conflict of interest for the AFC to continue the representation for all three children? The AFC argues that she can remain the AFC for all three children. She stated that the conflict on this one issue does not affect her ability to remain on the case. The Mother's attorney objected to her continued representation.
In Corigliano v. Corigliano , 297 AD2d 328; 746 N.Y.S.2d 313 (2nd Dept. 2002) the Appellate Division held that the lower court erred in denying that branch of the father's motion which was to appoint a law guardian, (now known as Attorneys for Children), to represent the subject child separately from his siblings. It was noted that the law guardian adopted the position of one of the children without a complete or appropriate inquiry with the other children. The Court went on further to state that the potential conflict of interest in the law guardian's representation of the children warranted the appointment of independent law guardians for the children.
In the Matter of Brian S. , 141 AD3d; 1145; 34 N.Y.S3d 851 (4th Dept. 2016) the issue presented to the Court was whether two of the subject children were deprived effective assistance of counsel by the AFC who jointly represented them as well as their sister during the underlying proceedings. The Appellate Court agreed that the child, Brian, was deprived effective assistance of counsel because the trial AFC failed to advocate his position. The Court stated that "an AFC must zealously advocate the child's position" even if the AFC "believes that what the child wants is not in the child's best interest." 141 AD3d at 1147. In the case at bar, two of the children are allegedly in favor of sibling visitation, the other is not. How can the AFC zealously represent the interests of all three of her clients under that scenario? If she argues that the best interest of Roland are served by not be subjected to sibling visits, then she is effectively forced to not zealously advocate for the R. children's interest.
In the Matter of James I. (Jennifer I.) , 128 AD3d 1285 ; N.Y.S.3d 745 (3rd Dept. 2015) an appeal was taken, inter alia, as to the AFC's alleged conflict of interest in jointly representing two children with divergent interests. The siblings had a divergent interest with regard to where and with whom they would reside. Accordingly, to advocate zealously for one child, the AFC would have to take a position contrary to that of the other child. The Court held that both children were entitled to separate representation.
Here, it is clear that Roland C. most likely has a divergent interest with that of his two younger siblings as regards to the issue of sibling visitation. There is a significant chance the the AFC will be put in the position to of having to chose one child's wishes over the others in her advocacy. The AFC cannot zealously represent the interests of one client if it is opposed to or divergent from the interests of another client. This is a clear conflict of interest. Separate representation is warranted, and as such, the Court must intercede and appoint separate counsel for the children.
The Court must now determine whether the AFC can continue representing any of the children or if new counsel for all children must be appointed. The Court is aware that a bond has been created between the AFC and the child, Roland. The AFC has asked to remain as AFC for Roland even if she must be discharged from representing Gabriel and Michael. However, that request will not be able to be honored. In In re H. Children , 160 Misc 2d 298 ; N.Y.S.2d 784 (2nd Dept. 1994) the Court held that "the law guardian's continued representation of either child presented an irreconcilable conflict of interest and created an appearance of impropriety." 160 Misc 2d at 299. The Court further concluded that there was a "reasonable probability" that one child had revealed confidences to the law guardian, relevant to the case, and therefore, there was an ethical dilemma created as to whether the law guardian would use those confidences to that child's advantage. Id. at 301. The Court concluded that the "ethical and public policy considerations" mandated that the law guardian be removed and that separate attorneys for each child, be appointed. Id. (emphasis added ) Further, it was determined that the new law guardians appointed should have no prior connection with the parties or pending matter.
In this case, the AFC has represented all three children for many years. She has arguably had a plethora of privileged communications with them about a variety of issues potentially relevant to these proceedings. As such, it would not be appropriate for her to remain as AFC for any of the children. The Court in In Re H. Children , supra , noted that the Code of Professional Responsibility, DR 5-105 mandates an attorney who undertakes the joint representation of two parties in a lawsuit not continue as counsel for either one after an actual conflict of interest has arisen. 160 Misc 2d at 301. This Court recognizes that there are some circumstances where an adult may waive a conflict of interest via a written waiver submitted to the Court. Here, the conflicts pertains to minors. As noted in In Re H. Children , supra , it is a matter of law that a minor must be presumed to lack the ability to knowingly make such a waiver. Id.
Here, the Court has determined that an actual conflict exists between Roland and the R. children. It appears that Gabriel and Michael are united in their interest and the divergent positions are only between Roland and his two brothers collectively. While this Court is not suggesting that any impropriety took place thus far in the AFC's representation of her three clients, going forward, there cannot be even the slightest hint of the appearance of impropriety, which would be the case if she continued to represent any of the children. All three children must arrive on equal footing to have their positions effectively represented by their attorneys. As such, new AFCs are to be appointed to represent (1) Roland C. and (2) Gabriel and Michael R.
ACCORDINGLY, IT IS ORDERED that there is a conflict of interest for Attorney for the Children to continue representation of all three children and must be discharged as counsel for all three children; and it is further
ORDERED that the Court shall appoint a new attorney to represent the interests of Roland C.; and a new separate attorney to represent the interests of Gabriel and Michael R.