A lawyer who represented a group of children should not have been allowed to then represent the state as it tried to take those children away from their parents, the Vermont Supreme Court ruled last week.
The unanimous, 18-page decision did not address whether there was any specific conflict of interest at play in the Windham County case, writing that the “myriad issues in play in juvenile proceedings” are such that moving between the children and the state in a termination of parental rights proceeding should be considered a conflict as a matter of law.
“First, a host of issues arise in abuse-and-neglect proceedings, and any divergence in the positions of the State and the children on any matter can create material adversity,” the justices wrote. “These are complex questions that can yield varied positions across a spectrum. … In the face of these challenges, a legal presumption of conflict, rather than a case-by-case analysis, provides a straightforward rule for attorneys and courts to apply.”
The case involves an unnamed female attorney who had been initially assigned to represent four siblings born between 2003 and 2011. A footnote in the decision says that while the Supreme Court holds the attorney should have been disqualified, the court did not find that the attorney violated any rules.
The family came to the state’s attention through two incidents. The first, as described in the decision, was an assault by the father upon the mother in the presence of two of the children in August 2014. The second was the following month, when the Department for Children and Families received a report that the three younger children “were playing near a busy road unclothed and without adult supervision.” Social workers found food, trash and dirty laundry all over the floor of the home.
The parents stipulated in October 2014 that their children were “children in need of supervision,” according to the decision, and the court granted DCF custody of the oldest child the following April. By the end of 2015, the younger three were placed in DCF custody and the state moved to terminate parental rights in 2016, succeeding with the younger three.
The lawyer in question represented the children through March of 2016 and was replaced on the case in April, after which she appeared on behalf of the state with the support of the children’s guardian ad litem.
The parents’ attorney raised concerns, citing a section of the Vermont Rules of Professional Conduct that states, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.”
The attorney for the state said there was no conflict because the children and the state agreed, and the judge ruled in the state’s favor. The Supreme Court took a different view.
“Vermont law recognizes the importance of a parent’s interest in the parental relationship, and the provision of counsel for parents and children is one way the Legislature has sought to safeguard those rights,” the justices wrote. “The provision of counsel to both parents and children is required by statute and is an important part of ensuring that termination proceedings are conducted fairly and accurately.”
The court also wrote that attorneys in such cases play a significant role in shaping their clients’ positions.
The decision noted that while “appearance of impropriety” is not typically enough to disqualify a lawyer from a case, the state has greater flexibility in choosing alternate counsel than an individual.
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