LEO: Domestic Relations - Multiple  LE Op. 1304

 

Domestic Relations - Multiple Representation: Attorney

Representing Mother in Child Custody Dispute

also Representing Child in Criminal Matter,

the Disposition of Which May Affect the

Custody Issue.

 

November 21, 1989

 

You have asked the Committee to opine on the following issue: Where a

father/ex-husband has filed a petition to have a child's custody

transferred to him from the mother/ex-wife, alleging lack of supervision

and control, and where a criminal offense matter, a potential disposition

for which would also be the resolution of the custody dispute, is pending

against the child in Juvenile and Domestic Relations Court in the same

jurisdiction, may the lawyer who represents the mother in the custody

matter meet with her and the minor child to discuss substantive matters

surrounding the child's pending alleged criminal offense. For purposes of

this opinion, the Committee assumes that the reasons for the meeting and

the substantive discussion regard the simultaneous representation of the

child by the mother's attorney.

 

The appropriate and controlling rules relative to your inquiry are DR:5-

105(A) and (C) which provide that a lawyer shall decline proffered

employment if the exercise of his independent professional judgment in

behalf of a client will be or is likely to be adversely affected by the

acceptance of the proffered employment, unless it is obvious that he can

adequately represent the interest of each and if each consents to the

representation after full disclosure of the possible effect of such

representation on the exercise of his independent professional judgment on

behalf of each. ( DR:5-105(A) and (C) The Committee opines that the

multiple representation you describe would be improper because of the

potential for the disposition of the child's criminal charges to have an

adverse affect on the custody issue since the allegations against the

mother arose as a direct result of the criminal activity with which the

child has been charged. Under the fact scenario, representing the mother

and child resounds with impropriety, not only because the matters are

substantially related, but because the interests of the child, which

interests may be adverse to the mother's, are not known under the facts

and, as such, an attorney should avoid employment which may affect his

independent judgment or dilute his loyalty to a client. (See EC:5-14)

The Committee believes that contrary to DR:5-105(C), it is obvious that

an attorney could not adequately represent the interest of the mother and

the child in the instant matter. In addition to the obvious lack of

adequate representation, the Committee also believes that the impropriety

could not be cured with the clients' consent after full disclosure under

the circumstances, since the minor child would not have the capacity to

consent without proper authorization.

 

Committee Opinion November 21, 1989