Friday, October 31, 2008
Children’s Law Center May Represent Former Client’s Child—S.C.
But Justices Say Burden Is on Public Law Office to Prove Adequacy of Ethical Screens
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court commissioner erred in ruling that an inherent conflict prevented Children’s Law Center of Los Angeles from representing a dependent child whose mother is a former CLC client, the California Supreme Court ruled yesterday.
Justice Ming Chin, writing for a unanimous court, agreed with Div. Five of this district’s Court of Appeal that Commissioner Stanley Genser erred as a matter of law by disqualifying CLC from representing Charlisse C., the daughter of its former client Shadonna C., as they were identified in the opinion.
The court directed that the case be returned to the Superior Court so that CLC may offer proof that it can provide conflict-free representation to the child.
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.
Under the restructuring initiated by the center’s former executive director, Miriam Krinsky, two of those units are being phased out; CLC no longer represents parents, whose counsel are appointed from an independent panel; and children’s cases are transferred to the surviving “core” unit, Unit 1, when CLC management has determined that no conflict exists.
In Charlisse’s 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.
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.”
Chin, however, said it was an abuse of discretion for the commissioner to grant the motion based on an “appearance” standard that did not require a case-specific showing that confidential information might be shared to the mother’s detriment.
Chin 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. In a successive representation case, Chin wrote, disqualification is required only if the moving party demonstrates a “substantial relationship” between the two representations.
In addition, the justice explained, even where a substantial relationship exists, disqualification will not necessarily extend vicariously to other attorneys in the same office, particularly where it is a public office, such as CLC.
He cited several cases involving movement of lawyers between private practice and city attorney officers, or between public defenders’ and district attorneys’ offices. The courts in those cases held that disqualification may be avoided if adequate screening methods are used to make certain that the attorney possessing confidential information does not share it, even inadvertently, with the lawyers handling the case against the ex-client.
“In other words, the juvenile court should have determined whether CLC has adequately protected, and will continue to adequately protect, Shadonna’s confidences through timely, appropriate, and effective screening measures and/or structural safeguards,” Chin wrote.
The justice took issue, however, with Justice Richard Mosk, who concluded in the lead opinion for Div. Five, that the burden in such cases is on the moving party to show that adequate safeguards were not put in place.
“Instead, the burden is on CLC to show that, through timely, appropriate, and effective screening measures and/or structural safeguards, the confidential information acquired during Unit 1’s prior representation of Shadonna has been, and will be, adequately protected during Unit 3’s proposed representation of Charlisse.”
Since there are “potentially significant evidentiary omissions exist in the record that make it inadvisable to make a disqualification determination in the first instance on appeal,” Chin said, the issue must be revisited in the juvenile court.
The case was argued in the high court by Rex S. Heinke of Akin Gump Strauss Hauer & Feld for CLC; John L. Dodd of John L. Dodd & Associates, by appointment of the Supreme Court, for the mother; and Burbank practitioner John Cahill, also by appointment, for the child.
The case is In re Charlisse C., 08 S.O.S. 5972.
Copyright 2008, Metropolitan News Company