Legal Ethics Opinion #1516
Attorney As Witness - Conflict of Interest - Former Client:
Attorney Representing Mother in Custody Matter After Having
Represented Adoptive Parents of Mother's First Child Who Are
Custodians of Second Child About Whom Custody Matter is Current
You have presented a hypothetical situation in which an attorney
represents the young mother ["client"] of a child in Juvenile and
Domestic Relations (J & DR) Court, having filed a petition to
vacate a prior custody order, and return custody to her, with the
express condition that the mother wishes to entrust the child to
the local Department of Social Services (DSS) for placement in a
foster home which has been the primary residence of the minor
male child, born July 1991, for most of his life.
You indicate that the client, who has had substance abuse
problems for several years, alleges that an agreement into which
she entered in late 1992 asking that custody be granted to the
present custodians, and the resulting order which was entered
without a hearing and without her having the benefit of legal
counsel at the time, were procured as a result of erroneous
information supplied her by her own mother and others, and that
the agreement and order did not set forth what the client
understood to be the agreement. The client states that she
believed she would have liberal access to her son, and that she
could get the child back whenever she wanted. When she discovered
that was not the case, she asked the attorney to assist her.
You indicate that, approximately one year earlier, the same
attorney had represented the persons who now have custody of the
male child when they adopted a child placed with them by the
local DSS. You advise that that adoption was completed in March
of 1992 when a final order was entered and that the attorney last
represented the adoptive parents in July 1992 when he forwarded
an amended birth certificate for the adopted child to the
adoptive parents. The attorney's fees for the adoption were paid
by the DSS.
The natural mother of the adopted child is the same mother nve
parents are now the custodians of the "second" child, and the
mother/client is aware of the earlier adoption.
You indicate that the petition filed by the client does not
allege any wrongdoing by the present custodians and, in fact,
stipulates to their fitness. However, the petition alleges that
she is entitled to a return of custody based on a defective Order
and procedure in granting the custody, since she believes they
were improperly contacted by a previous employee of the DSS with
the assistance of the client's own mother. The petition also
alleges that the client is entitled to a preferred standing as
the biological mother. The client believes the custodians
entered into a custody agreement with the client without knowing
that the client was proceeding on erroneous facts.
You further state that the attorney had also advised the person
who had been previously approved as a foster parent by DSS prior
to the agreement as to custody and prior to any involvement by
the present custodians. The attorney's services to the foster
parent (who is the person who has cared for the child for most of
his life) consisted of assistance in helping to get the foster
parent approved by the DSS so that the child could stay with her.
The client now alleges that her earlier efforts to revoke a prior
entrustment agreement with DSS were procured as a result of
fraudulent statements made to her by her own mother, and she now
wishes the DSS and the foster parent to have the legal and
physical custody of her child. She states that she fears the
present custodians of the child, who adopted her former child,
wish to adopt this child and she fears she will be kept away from
this second child while the present custodians oppose efforts to
return the custody of the child to her. The present custodians
are represented by counsel and oppose the return of custody.
(There is no issue as to the prior adopted child.)
The attorney has disclosed all prior representations of persons
connected with the client and has alspresent custodians (his
former clients) by letter and phone to inform them of the
situation. No objection was made of his representation of the
client by the present custodians until their attorney filed a
motion for the withdrawal of the attorney. You advise that the J
& DR judge declines to act upon the motion for withdrawal, saying
that it is a matter of legal ethics to be decided by the attorney
and the Virginia State Bar.
Your facts indicate that the attorney has only met the present
custodians of the child on two occasions in his office when the
adoption proceeding was pending; has never been to the home of
the present custodians; and has no information as to the personal
life of the present custodians except for what is contained in
the report filed by the DSS in the adoption proceeding, a copy of
which was contained in his closed file, but was returned to the
Circuit Court Clerk's Office at the conclusion of the adoption
proceeding. The facts you provide indicate that the attorney
does not believe he has in his possession any confidential
information about the previous clients/adoptive parents. The
attorney believes that the fitness of the present custodians is
irrelevant to the present proceeding, as the petition has been
filed to overturn the custody order on technical grounds rather
than by a comparison of fitness of the various parties.
You indicate that the only information regarding the present
custodians which will be presented at a hearing will be their
stated desire to adopt the child, made to an employee of the DSS,
and the method by which they became involved in the custody
process. None of the evidence to be presented is derived from
the
attorney's files relative to the present custodians, as all
information was gained from either the DSS or from the
mother/client.
Finally, you indicate that a Court proceeding was held at which
the attorney made a special appearance for the purpose of
contesting a Motion for a continuance, filed by the present
custodians, arguing that there were no issues of fitness of the
parties that were relevant to the case and that the client was
entitled to a hearing based on her allegations that the original
Order was improper. The Court granted a continuance and ordered
evaluations made of the client as to her mental competence and an
investigation into the home of the present custodians.
You have asked the committee to opine whether, under the facts of
the inquiry, (1) the prior representation of the present
custodians by the attorney presents a conflict of interest in the
present action; and (2) the attorney must withdraw as counsel for
the present client if the attorney is called as a witness for the
present custodians even if the present client's position is that
the fitness of the parties is irrelevant.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 4-101(B) which provides, in pertinent part,
that an attorney should seek to protect the confidences and
secrets of his client; DR 5-102(B) which states that if, after
undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that he or a lawyer in his firm
may be called as a witness other than on behalf of his client, he
may continue the representation until it is apparent that his
testimony is or may be prejudicial to his client; and DR 5-105(D)
which provides that a lawyer who has represented a client in a
matter shall not thereafter represent another person in the same
or substantially related matter if the interest of that person is
adverse in any material respect to the interest of the former
client unless the former client consents after disclosure.
[emphasis added]
The committee has repeatedly opined that the earlier
representation of a client who is now the adverse party in a suit
brought on behalf of another client is not per se sufficient to
warrant disqualification on ethical grounds. See LEOs
#1399,#1194, #1139. Additional factors to the determination of
disqualification are the relatedness of the two matters and the
critical issue of whether the lawyer obtained secrets and
confidences of the first client in the course of the
representation. See LEOs #441, #569, #672, #792, #933, #l349.
Although your facts indicate that only the custody of the second
child, and not the child previously adopted by the present
custodians, is at issue, the committee is of the opinion that the
current representation of the mother is substantially related to
the prior representation of the custodians since the parties,
i.e., the mother and the present custodians/prior adoptive
parents, are the same as in the first proceeding.
In addition, your facts indicate that the attorney was in
possession of information regarding the personal life of the
present custodians. You indicate that such information was
contained in a report filed by the DSS in the adoption
proceeding, a copy of which was contained for a time in the
attorney's file. Although your facts allege that the attorney
neither read nor glanced at the report following the conclusion
of the first child's adoption proceeding, the committee is of the
opinion that the possession of confidential information may be
imputed to the attorney based upon his having earlier been privy
to the report.
The committee opines, therefore, that it would be improper fbased
upon the substantial relationship of the matters as well as upon
the presumption that the attorney possesses confidential
information which could be used to the disadvantage of the former
clients/present custodians or to the advantage of the current
client/mother.
Having concluded that it would be improper for the attorney to
represent the present client, the committee finds that your
question as to the former clients calling the attorney as a
witness is moot.
Committee Opinion
May 28, 1993
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