C.A. Reverses Conflict Ruling Against Children’s Law Center

Tuesday, April 24, 2007

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C.A. Reverses Conflict Ruling Against Children’s Law Center

By KENNETH OFGANG, Staff Writer

A Los Angeles Superior Court commissioner’s order disqualifying Children’s Law Center of Los Angeles from representing a dependent child whose mother is a former CLC client was overturned yesterday by this district’s Court of Appeal.

In a decision that drew three separate opinions, including a lengthy dissent by Presiding Justice Paul A. Turner, Div. Five concluded that Commissioner Stanley Genser erred as a matter of law by disqualifying CLC from representing the daughter of its former client Shadonna C., as she was identified in the opinion.

The mother’s court-appointed attorney moved to disqualify CLC based on what the motion claimed to be a conflict created by the controversial restructuring of CLC, formerly Dependency Court Legal Services, Inc.

Under the previous structure, initiated in 1990, the center—which represents a large majority of children over whom the local dependency courts have assumed jurisdiction—was divided into three independent legal units. Each unit functioned as a separate law firm for the purpose of enabling the representation of clients with conflicting interests, including parents and their children.

Suits Following Restructuring

Under the restructuring initiated by the center’s former executive director, Miriam Krinsky, two of those units are being phased out; CLC no longer will represent parents, whose counsel will be appointed from an independent panel; and cases have been transferred to the surviving “core” unit when CLC management has determined that no conflict exists.

Two former unit heads have sued CLC, claiming they were fired by Krinsky for opposing the consolidation, which they say subjects clients to the loss of their right to conflict-free representation.

Anne E. Fragasso and Kenneth P. Sherman are suing for wrongful termination, age discrimination, violation of the state whistleblower statute, and intentional infliction of emotional distress. Their attorney recently notified the court that the case has been settled, and dismissal is pending.

In the Charlisse C. case, the mother’s attorney claimed that the independence of the units was compromised by a policy, implemented by Krinsky before the restructuring but later dropped, that required the executive director’s approval before blanket disqualification motions could be filed against a judicial officer; by the division of an attorney’s cases among the units when the attorney left CLC; by Krinsky’s inquiring of an attorney about a case; by the transfers of secretaries among the units; by Krinsky’s termination of an attorney in one of the units; and by the sharing of a single library by the lawyers in the different units.

‘Successive’ Conflict Alleged

In granting the motion to disqualify, Genser said the center “says one thing and does something else” with respect to attorney independence.

“They have established a structure which they claim they strictly adhere to, but the underlying facts suggest otherwise,” the commissioner said. The apparent breach of “ethical walls,” Genser said, created an “appearance of conflict.”

But Justice Richard Mosk, writing for the Court of Appeal, said Genser should have denied the motion in light of his finding that “[t]here was no specific—to this case—conflict raised in terms of the divulgence of any confidential or privileged communication.”

Mosk emphasized that this was a case of “successive” rather than “concurrent” alleged conflict, meaning that disqualification was being sought because of past, not current, representation of a party with allegedly conflicting interests. It would be “unsound,” Mosk said, to require automatic disqualification in such cases; instead, there must be “competent, relevant evidence of a disqualifying conflict.”

In the present case, the justice said, it was not clear that the mother had been represented by the surviving “core” unit of CLC; the evidence showed that the attorney in the separate unit representing the child had no access to the mother’s case files.

As to the other ethical breaches alleged in the mother’s motion, Mosk said, they either did not occur while the case was pending, were not breaches, or were irrelevant.

Factors to Consider

There was, the justice wrote, no evidence that Krinsky ever misused information obtained from attorneys within one unit to the detriment of clients of another, or that the use of a single library compromised confidentiality.

In addition, Mosk wrote, administrative measures such as transferring secretaries do not necessarily raise conflict of interest issues; knowledge of confidential information is not imputed to or from non-lawyer employees, so there has to be proof that the employee actually possessed such information and that it was material to the representation.

Mosk elaborated:

“The correct legal standard...is this: If the individual lawyer had a direct and personal relationship with the former client, then the lawyer and the lawyer’s unit should be disqualified automatically, as a matter of law; when the individual lawyer had no direct and personal relationship with the former client, as in this case, but the party moving for disqualification presents evidence that the Center’s ethical screens have been breached, the juvenile court should treat the Center as a single law firm for conflicts purposes only if the moving party’s evidence establishes a reasonable possibility that the lawyer has actually obtained, or will inadvertently acquire, material confidential information relating to the former client’s representation.”

In determining the likelihood of a conflict, he added, the factors to be considered include the length of time that has elapsed since the prior representation; the notoriety of the previous case; whether the current attorney was at CLC at the time of the prior case, and whether he or she was involved in it; and the nature and extent of any breaches of CLC’s internal mechanisms for avoiding such conflicts.

Justice Orville Armstrong, concurring separately, agreed that the motion should have been denied because “the evidence...cannot be read to support a finding that CLC...operated as one law firm.” But he said there was a “real problem” in having CLC view its role as being broader than that of a private law firm.

“It is axiomatic that a lawyer must advocate for the client, not the lawyer or any law firm or institution the lawyer is affiliated with,” he wrote. “I take quite seriously Shadonna’s argument that things will worsen for CLC clients in this regard, given that CLC now raises money from outside sources and, at least according to some of the information in the record, plans to become not just a law office but a ‘child advocacy’ organization. I note that CLC’s own website announces that it not only represents clients, but works for ‘system reform’ to ‘bring about far-reaching changes,’ by sponsoring legislation, taking public positions, and other activities.”

Emphasizing that CLC’s minor clients have no choice of counsel and no way of knowing whether their interests were being sacrificed to the agency’s larger goals, Armstrong said that “[g]reat care must be taken to to insure that the lawyer’s decisions are made solely to benefit the client — one client at a time — and not the institution.”

Turner, dissenting, argued that an abuse-of-discretion standard should be applied, and that there was sufficient evidence, including declarations by Sherman, Fragasso, and others, for Genser to conclude that there was a material conflict warranting disqualification.

Krinsky, the presiding justice wrote, had, on occasion, infringed upon the independence of the units, such as by interfering with Sherman’s decision to subpoena a Department of Children’s and Family Services employee because the appearance of a lack of cooperation with DCFS “would not look good” and by asserting a veto over blanket disqualifications.

Turner said there was evidence that the former director “had access to or obtained confidential information from the different units on several occasions” during the period in which CLC represented Shadonna C.; that cases were moved between units at Krinsky’s direction, in violation of a statute prohibiting changes of counsel without court permission; and that Krinsky viewed the reorganization as creating a “new unified structure” in which children would be viewed as clients of CLC rather than of a particular unit.

“The foregoing evidence, taken together and in its context, demonstrates a breakdown of legally mandated ethical restrictions over a period of time,” the presiding justice argued.

The case is In re Charlisse C., B194568.